\i ) / 
 
 mi 
 
 \ \ 
 
 
Digitized by the Internet Archive 
 
 in 2007 with funding from 
 
 IVIicrosoft Corporation 
 
 http://www.archive.org/details/electoralsystemoOOdougrich 
 
THE ELECTORAL SYSTEM OF 
 THE UNITED STATES 
 
 ITS HISTORY, TOGETHER WITH A STUDY OF THE PERILS THAT 
 HAVE ATTENDED ITS OPERATIONS, AN ANALYSIS OF THE 
 SEVERAL EFFORTS BY LEGISLATION TO AVERT THESE 
 PERILS, AND A PROPOSED REMEDY BY AMEND- 
 MENT OF THE CONSTITUTION 
 
 BY 
 
 J. HAMPDEN DOUGHERTY 
 
 G. p. PUTNAM'S SONS 
 
 NEW YORK AND LONDON 
 
 (Tbe finicltecbocRec ipreea 
 1906 
 
r3 
 
 ^^^'^.^il 
 
 tiUtttUa. 
 
 Copyright, 1906 
 
 BY 
 
 J. HAMPDEN DOUGHERTY 
 
 Ube 1knicF:erbocker press^ flew J^orft 
 
CONTENTS 
 
 PAGE 
 
 Introduction '. . . i 
 
 CHAPTER I 
 
 The Provisions of the Constitution Respecting 
 THE Electoral System — Counting in 1789 — The 
 Act of 1792 13 
 
 CHAPTER II 
 
 Counting, 1793 until 1857 32 
 
 CHAPTER III 
 Three Theories of Counting — The Bill of 1800 . 58 
 
 CHAPTER IV 
 
 Counting, 1861-1873 — The Morton Bill . . 75 
 
 CHAPTER V 
 
 Debate on the Electoral Commission Bill of 1877 105 
 
 CHAPTER VI 
 
 The Case of Florida before the Electoral Com- 
 mission . 136 
 
 CHAPTER VII 
 The Louisiana Case 162 
 
iv Contents 
 
 CHAPTER VIII 
 
 PAGE 
 
 The Oregon Case — The South Carolina Case . 184 
 
 CHAPTER IX 
 The Act of February 3, 1887 214 
 
 CHAPTER X 
 
 The Electoral System should be Abolished — De- 
 fects IN THE Constitutional Provisions Re- 
 garding THE Presidential Succession . . 250 
 
 CHAPTER XI 
 
 The Appointment of Electors Treated Histori- 
 cally — Evils OF the General-Ticket System 281 
 
 CHAPTER XII 
 
 Amendments Offered in Congress Relative to the 
 
 Electoral System . . . . . . 325 
 
 CHAPTER XIII 
 
 A Suggested Remedy 364 
 
 Index , 409 
 
THE ELECTORAL SYSTEM OF 
 THE UNITED STATES 
 
*^v ^ 
 
 THE ELECTORAL SYSTEM OF 
 THE UNITED STATES 
 
 INTRODUCTION 
 
 IT is matter of familiar knowledge that the framers of 
 the Constitution of the United States, in devising 
 the so-called electoral system, intended to repose absolute 
 control over the choice of the President and Vice-President 
 in a small body of citizens carefully selected by the several 
 States. Their object was to avoid, on the one hand, the 
 popular tumult and passion that might be involved in an 
 election of the executive by the people, and, on the 
 other, the legislative domination of the executive that 
 might be involved in his election by the Congress. The 
 tendency in this democratic age is to overlook the fact 
 that the fathers of the Constitution were not believers in 
 the rule of the people and that it was not until after 1800 
 that manhood suffrage was adopted in any of the States. 
 Democracy has completely subverted the electoral theory 
 of the framers of the Constitution, yet it still employs 
 the same mechanism. The electoral theory contemplated 
 the emancipation of the electors from outside control: 
 they were to be appointed in the several States inde- 
 pendently. The idea of a general convention was dis- 
 carded because of the subtle influence which might be 
 employed to affect the action of an assembled body, and 
 because of the difficulty in convening so large a gathering 
 
2 The Electoral System 
 
 at the national capital.] By the electoral plan the appoint- 
 ees of each State were to meet in that State and cast a 
 secret ballot on the same day upon which the electors con- 
 vened in all the other States, the intent being that each 
 separate electoral college should, when making its choice, 
 be unaware of the decision of the others. But in prac- 
 tical effect, the secret, independent, unpledged electors 
 in a brief time became the absolute servants of party. 
 Their action was early dominated by legislative and con- 
 gressional caucuses, and when party conventions were de- 
 veloped, they became mere registers of the convention's 
 will. Each elector thus became so completely an autom- 
 aton that in ordinary circumstances he would not dream 
 of exercising any freedom in the use of his ballot, for 
 violation of his tacit pledge to the party that elected him 
 would bring upon him all the odium attaching to a 
 traitor. 
 
 This metamorphosis of the electoral system is familiar 
 to all who possess the most superficial acquaintance with 
 its history. But it is not so generally appreciated that 
 the weakest part of the electoral system is the provision 
 regarding the electoral count. In consequence of this 
 ambiguous provision, the country has twice been brought 
 to the brink of revolution. The Constitution prescribes 
 that lists of the votes of electors in the several States, 
 properly authenticated by the State executive officer, 
 shall be transmitted in sealed packages to the president 
 of the Senate; that they shall be opened by him in the 
 presence of the Senate and of the House of Representa- 
 tives, and that ''the votes shall then be counted." This 
 mandate, thrown into the passive form, perhaps for solemn 
 emphasis, fails explicitly to declare who shall count the 
 votes. It is, says Von Hoist, "a formula that forces us 
 to suppose that according to the views of the framers of 
 the Constitution, the question was one simply of addi- 
 tion." The practice of the fathers seems to have im- 
 
Introduction 3 
 
 posed the duty of counting upon the president of the 
 Senate ; and it has been forcibly argued that their action 
 was equivalent to an exposition of the meaning of the 
 Constitution by its creators and contemporaries. By 
 degrees the two Houses deposed the president of the 
 Senate from this office, first by appointing tellers and 
 passing resolutions as to the mode of counting, in which 
 more or less of power over the count was assumed; later, 
 by the adoption of the twenty-second joint rule, and, 
 more recently, by the special legislation of 1877 and the 
 general enactment of February 3, 1887. The unconsti- 
 tutionality of any interference by Congress with the 
 assumed prerogatives of the president of the Senate has 
 been as earnestly argued in recent years as it was by 
 Charles C. Pinckney in the Senate of 1800. But the 
 discovery of the full significance of the ambiguity that 
 resides in the passive expression, "the votes shall then be 
 counted," was gradual. The convention doubtless as- 
 sumed that none but legal votes would be presented by 
 electors, all constitutionally qualified to vote, and that 
 counting or enumerating the votes would be a simple 
 task. Five disabilities were imposed by the Constitution 
 upon the presidential office. One disability was imposed 
 upon the office of presidential electors. The only limita- 
 tion upon electors was that they should not be in the 
 service of the United States, and it was to be presup- 
 posed that no State would impair or nullify its votes by 
 appointing as its agents persons ineligible to execute the 
 exalted trust. With like reason was it assumed that the 
 electors appointed by a State would never select for 
 the presidency an alien, a foreign potentate, or a person 
 ineligible for lack of years or of residence, lest such a 
 choice should invalidate the vote of the State ; and the 
 jealousy with which the smallest States guarded their 
 prerogatives and insisted upon their rights was one of the 
 cardinal difficulties that beset the convention in devising 
 
4 The Electoral System 
 
 a plan of election that would be received by them with 
 favor. The imagination of the framers of the Constitu- 
 tion could not, therefore, readily conceive that the count- 
 ing of the electoral vote would ever be other than a 
 simple ministerial duty to be performed, as they probably 
 intended, by the president of the Senate, in the presence 
 of both Houses, as witnesses of the solemn ceremony. 
 John Adams, as the president of the Senate, in announc- 
 ing his own election to the presidency in 1797, declared 
 that, in pursuance of the Constitution and the resolution 
 of the two Houses, he had counted the votes; and no 
 exception was taken to the declaration, or could well have 
 been, under the language of the resolution adopted by 
 the Houses just prior to the ceremony. But "counting" 
 was found in time to involve more than "enumerating" 
 the electoral votes, and gradually took on the significance 
 of "canvassing." In the evolution of history, the word 
 "State" was thought to require definition. Was Indiana 
 a State in 18 16? Was Missouri a State in 1820? Each 
 appointed electors, and a certificate from the so-called 
 electors of the self-styled State of Indiana lay in the pile 
 of electoral certificates before the president of the Senate 
 in 1 8 17; and a similar certificate was transmitted from 
 Missouri in 1821, although it had not actually been ad- 
 mitted as a State when its electors voted in December, 
 1820. When the question was raised, there appeared to 
 be no constituted authority to solve it, and its solution 
 was evaded. 
 
 The Act of Congress of 1792, following the Constitu- 
 tion, prescribed the time when the electors should as- 
 semble in the different States, to vote for President and 
 Vice-President ; and when the electoral certificate of Wis- 
 consin was opened in the Senate in 1857 it disclosed the 
 fact that the electors had attempted in good faith to obey 
 the law and to assemble on the appointed day, but were 
 deterred from doing so by a violent snow-storm. They 
 
Introduction 5 
 
 consequently met and voted the following day. When 
 the vote was challenged in the joint session of the two 
 Houses of Congress it was asked whether the act of God 
 should disfranchise a State, but the actual question was, 
 Who was to decide upon the legality of the vote? Did the 
 Constitution import that this vast power — that of deter- 
 mining whether a commonwealth claiming to be a State 
 was in fact a State, or whether a State might lawfully 
 vote upon a different day from that designated by Con- 
 gress if its vote upon the appointed day was prevented 
 by act of God — should be confided to the president of 
 the Senate, who might be vitally interested in the de- 
 cision as a candidate for the presidency? Faulty and 
 irregular certificates, certificates criticised for various 
 reasons as invalid were, on later occasions, deposited on 
 the Vice-President's desk; finally came dual, treble, and 
 quadruple returns from a State, each importing to be 
 sufficiently authenticated, each claiming to disclose the 
 electoral will of the State. Was the president of the 
 Senate to decide between these conflicting returns? If 
 so, was he not then the arbiter of the nation's destinies? 
 Was the power, on the other hand, in Congress; and if 
 in Congress, was it to be exercised by the Houses sitting 
 as one body, voting per capita ; and if not, how was a 
 conclusion ever to be reached if the two Houses should 
 fail to agree? 
 
 Just before the close of the Civil War Congress adopted 
 the twenty-second joint rule, — a measure of doubly 
 doubtful validity. For while the power of Congress to 
 constitute itself, by legislation, judge of disputed returns 
 is questionable, it is equally questionable whether a joint 
 rule, not requiring even the approval of the President, 
 could constitutionally be employed as a substitute for 
 legislation. From generation to generation it was pre- 
 dicted that trouble would ensue. Congress was urged 
 by some to pass a general enactment, not only prescrib- 
 
6 The Electoral System 
 
 ing how State certificates should be authenticated, and 
 State votes counted, but also creating some tribunal to 
 decide the various questions that might, from time to 
 time, arise. Others argued that in the legislation of 1792 
 and 1845, fixing the day for the choice of electors and of 
 their assembling, and prescribing how their appointment 
 should be certified, Congress had exhausted its power. 
 But Congress never passed a general law until 1887. Al- 
 though amendments designed to overcome the inherent 
 difficulties of the Constitution were introduced from time 
 to time, none was ever adopted. 
 
 In 1877, the oft-prophesied danger arose, when action 
 upon the vote of a State was bound to decide the result. 
 The emergency was met by an expedient of doubtful con- 
 stitutionality, — the creation of an electoral commission. 
 
 The crisis of 1877 emphasized the necessity either of 
 adequate legislation or of a constitutional amendment, if 
 such legislation were beyond the province of Congress. 
 The outcome of ten years' debate is the statute of Febru- 
 ary 3, 1887. This act, in so far as it recognizes each State 
 to be the sovereign and exclusive judge over the appoint- 
 ment of its electors, is in undoubted harmony with the 
 Constitution. But it raises the perennial question whether 
 Congress has any power so to legislate as to vest in itself 
 the decision of disputes over returns, for Congress thus 
 becomes an ultimate President-maker. The statute is 
 not only cumbersome in its details, but defective in fail- 
 ing to provide how the vote of a State shall be saved 
 from rejection when the two Houses disagree. 
 
 The greatest aggression by Congress was the adoption 
 of the twenty-second joint rule, — a rule which placed the 
 electoral vote of a State at the mercy of a partisan ma- 
 jority in either House. This rule was repealed by the 
 Senate on January 20, 1876, and when the difficulties of 
 1877 arose, the rule could not be revived, as the two 
 Houses were of different political complexion. The 
 
Introduction 7 
 
 Senate would not consent to its reinstatement, for the 
 House alone could have rejected any disputed return, 
 and thus have made Tilden President. The substitute 
 method, the Electoral Commission law, was adopted to 
 avoid anarchy, and this law was criticised on the floor of 
 the Senate by Senator Ingalls in 1886, as "a device that 
 was favored by each party in the belief that it would \ 
 cheat the other, and it resulted in defrauding both." \ 
 The late Senator Dawes of Massachusetts truthfully 
 said that it was a patriotic device, "concurred in at the 
 time by both political parties, to avoid questions that 
 neither could answer"; and he added: "If doubts of a 
 like character shall ever again make the result uncertain, 
 their solution cannot be looked for through any such 
 method, and these questions, unanswered, may yet 
 wreck the Government." 
 
 The Act of 1887 is an attempt to answer these ques- 
 tions, but it has yet to be subjected to practical test. 
 The framers of the act conceded that it was unsatisfac- 
 tory ; its critics declared that it was unconstitutional, and 
 their contention was sound. 
 
 It is beside the purpose of these pages to attempt to 
 determine where the Constitution intended to place the 
 counting power. A century of discussion finds the advo- 
 cates of antagonistic views convinced of the correctness 
 of their own positions. The point to be emphasized is 
 that the history of the nation, since the formation of 
 the Union, demonstrates not only the breakdown of the 
 system, but the peril of its continuance. The danger is 
 intensified, not averted, by the Act of 1887. In these 
 circumstances, prudence dictates an amendment provid- 
 ing a radical cure. 
 
 The belief that has inspired the preparation of this 
 book is that the dangers of the electoral system are not 
 commonly understood, and that, when once they are ap- 
 preciated, the electoral system will be abolished. 
 
8 The Electoral System 
 
 Although innumerable propositions for an amendment 
 of the organic law have been offered in Congress since the 
 earliest years of the nineteenth century, and although the 
 disputed election of 1876 produced widespread and pro- 
 found disquietude, the history of the electoral count has 
 never formed the sole topic of any book. Much infor- 
 mation contained in subsequent pages is to be extracted 
 only from the records of Congress. Of the numerous 
 proposals to amend the Constitution which these records 
 reveal, none were ever successful after the adoption of 
 the Twelfth Amendment in 1804. Many of the proposals 
 were printed by the House in which they were presented, 
 but never received further consideration. Some were 
 referred to committees and were made the subject of 
 report, but were never discussed upon the floor of Con- 
 gress. A few provoked animated debate. There de- 
 veloped in the winter of 1823-4 and of 1825-6, an intense 
 desire for amendment, and many of the ablest leaders of 
 the Senate and House spoke upon the numerous sugges- 
 tions then made. Between 1873 and the winter of 1876-7, 
 Morton was the protagonist of the electoral reform, and 
 the discussions took a broader range than formerly, inas- 
 much as intervening history had shed new light upon 
 the problems of the electoral count. Two figures in 
 these two separate epochs stand out pre-eminently as 
 advocates of reform, — Benton and Morton. 
 
 There is not much to encourage the hope of successful 
 reform in the story of the failures of the past. While 
 the State constitutions, as Mr. Henry Hitchcock has so 
 admirably shown, exhibit great flexibility and have re- 
 peatedly been altered by amendment, the Federal Con- 
 stitution has for a century resisted peaceful alteration, 
 and with the increase in the number of States its rigidity 
 becomes greater. 
 
 The necessity for constitutional changes in the electoral 
 system is far more evident to-day than it was in Benton's 
 
Introduction 
 
 ^ 
 
 time, and the reform has a powerful ally, the nee d of 
 which he realized, — public opinion. If the people can j 
 be taught the transcendently urgent importance of abol- ' 
 ishing a system that was an exotic when it was first 
 adopted; that has never performed its contemplated 
 function; that has been criticised ever since its creation, 
 has become useless, and, what is much worse, dangerous,, 
 their wisdom may be trusted to discover the reme dy. / 
 
 The aim in this discussion of the electoral system has 
 been to admit nothing irrelevant, and to omit nothing 
 essential ; for no amendment that has been proposed can 
 be properly criticised, nor can anything synthetic be at- 
 tempted, until the history is understood. I have, after 
 the briefest analysis of the present constitutional pro- 
 visions, traced the story of the electoral count from 1789 
 up to the scenes in Congress in 1857. ^ have proceeded 
 to state the various interpretations which had been 
 given to the inscrutable words "the votes shall then be 
 counted," and briefly explained the Federalist bill of 
 1800, which, although it never became law, was the ger- 
 minal idea from which all subsequent rules and enact- 
 ments have sprung. I have given the unbroken record of 
 the count up to 1857, before discussing the bill of 1800, 
 because that seemed a necessary prelude to a full com- 
 prehension of the bill itself. The history of the Electoral 
 Commission law of 1877 and an analysis of the proceed- 
 ings before the electoral tribunal seemed necessary not 
 only to explain the circumstances which led to the enact- 
 ment of the general law of February 3, 1887, but to show 
 the radical need of a constitutional remedy and the nature 
 of that remedy. If, as some of our greatest jurists have- - 
 said, the weakest spot in the Constitution is the electoral' _ 
 system, no subject more important can engage th e atten- 
 tio n of thoughtful and patriotic A merican^^__^ 
 
 The debates, except during the excitement of an actual 
 count, exhibit, as a rule, a lack of partisanship in the 
 
lo The Electoral System 
 
 divergence of opinion. These debates cover thousands 
 of pages, yet there is much in them worthy of study. 
 Morton's speech to the Senate, in moving a reference of 
 the subject of the electoral count to the Committee on 
 Privileges and Elections, in February, 1873, is a luminous 
 statement of the case up to that date and clearly shows 
 the need of an amendment to the Constitution ; and, to 
 the hour of his death, Morton was convinced that noth- 
 ing short of an amendment would be adequate. Pro- 
 found interest attaches to Senator Conkling's speech 
 upon the Electoral Commission bill of 1877, ^s Conkling^ 
 contrary to the expectation of the extreme members of 
 his party, argued that the power to count was not with 
 the president of the Senate, but had been reposed by the 
 Constitution in the two Houses assembled at the opening 
 of the electoral certificates. 
 
 The "general-ticket" plan of choosing electors, which 
 has come to be universal in its operation, has been little 
 discussed by writers upon the Constitution. Kent, who 
 was retired from the judiciary of New York at sixty,' 
 but who added a nobler lustre to his fame by his Com- 
 mentaries y written between 1826 and 1830, naturally failed 
 to deal with a system which was then in its comparative 
 infancy. Story^writi ng u po n the Constitution in 18 33, 
 after an allusion to the gradual abandonment of the dis- 
 trict system, then retained by only two States, and the 
 disadvantage it might occasion them while other States 
 gave an unbroken electoral vote, m erely says that a con- 
 stitutional M^endhm^itpro\^ 
 
 by the people" has been thought desirable by many 
 statesmen. Bryce, in his American Commonwealth^ de- 
 votes less than a page to the topic. Edward Everett 
 strongly commended the general-ticket plan in the House 
 of Representatives in 1826, in replying to those who 
 favored the establishment of a uniform district system 
 
 ^ The age limit under the first and the second constitution of the State. 
 
Introduction 1 1 
 
 by an amendment to the Constitution. The general- 
 ticket plan is not of the warp and woi:^f of the Constitu- 
 tion, although one of the Presidents, Benjamin Harrison, 
 wished it incorporated into the fundamental law of the 
 land. An attempt is here made to depict the evils of 
 that system. 
 
 The district system is also considered, with the con- 
 clusion that, although a possible improvement upon the 
 general-ticket method, it contains grave and apparently 
 irremediable imperfections. There is no plan so admira- 
 ble as the £roportional plan/ which has the great advah- 
 ta^e over, all~Qt hers. as is shown in Chaptef''"!^'ffii.,- of 
 wonderfully simplifying the whole subject ot the electoral 
 count, in effect making~a' contest highly improbable, it 
 not practically impossible." JN o author haslihdertaken to" 
 discuss the various amendments to the electoral system 
 that have from time to time found earnest and able ad- 
 vocates in Congress. One cardinal weakness present in 
 all these propositions is their defective provision for the 
 electoral count. 
 
 Every one, it may be said, grants that the electoral 
 system has outlived its usefulness. Many practical con- 
 siderations, such as the inability of voters to deal with a 
 complicated electoral ballot, demonstrate the inefficiency 
 of the system. It should be, others say, a comparatively 
 simple task to frame an amendment dispensing with elec- 
 tors and still retaining the relative influence the Constitu- 
 tion assigns to the States. A rational amendment has to 
 be predicated upon adequate historical knowledge. The 
 conviction that without a more thorough appreciation 
 
 ^ " Proportional representation means simply representation in propor- 
 tion to the number of votes cast as distinguished from the present majority 
 rule, where it is all or nothing. It is secured in this way : Divide the 
 whole number of votes cast in any political unit, whether it be a State, 
 county, city, or town, by the number of representatives to be chosen, and 
 the quotient will be the quota or number of votes necessary to elect one 
 representative.'' — (63 Ail. Mo., p. 428, March, 1889.) 
 
12 The Electoral System 
 
 than is commonly manifest of the practical peril immin- 
 ent in the electoral system, no person can reasonably offer 
 or accept a remedy, has directed the preparation of this 
 book. 
 
 An amendment is needed on account of defects other 
 than those of the electoral system. The Constitution 
 fails to provide who shall succeed to the presidency if the 
 President-elect should die before his inauguration. Con- 
 gress would be justified, if necessary, in the adoption of 
 extra-constitutional means for keeping the executive de- 
 partment alive, for the right of the Government to main- 
 tain itself, or, as Seward wrote to Charles Francis Adams 
 in 1862, "to live," is fundamental and deeper than any 
 written law. If, for example, during the War of 181 2, 
 the British had captured the city of Washington and had 
 imprisoned or deported not only the President and the 
 Vice-President of the United States, but all officers of 
 the Government who, under the law of 1792, would have 
 succeeded them in executive authority, it would have 
 been the duty of Congress to continue the executive 
 department, and to prevent its cessation for a single 
 moment. But resort to such expedients in a time of 
 peace and intense party excitement might be productive 
 of civil war or revolution, and hence the paramount 
 necessity of some adequate provision in the Constitution 
 itself to cover every possible case of failure of executive 
 authority. 
 
or THfe 
 
 - UNIVERSITY 
 
 OF 
 £±L\FORt^ 
 
 CHAPTER I 
 
 THE PROVISIONS OF THE CONSTITUTION RESPECTING 
 
 THE ELECTORAL SYSTEM — COUNTING IN 
 
 1789— THE ACT OF 1 792 
 
 NO subject debated in the convention which framed 
 the Federal Constitution gave rise to more ani- 
 mated or protracted discussion than the manner of 
 choosing the President. The delegates considered the 
 advisability of an election by vote of the people and also 
 by both Houses of Congress. The plan finally adopted 
 was that the electors appointed by a State should meet 
 in the State on the same day on which the electors as- 
 sembled in all the other States, and that each separate 
 electoral college, untrammelled and uninfluenced, should 
 select some person fit in the judgment of its members to 
 be chief magistrate of the country. 
 
 The idea of election by the people had able advo- 
 cates. One of these was Gouverneur Morris, of Pennsyl- 
 vania, who successfully opposed a choicQ by the Federal 
 legislature. Others included Dr. Franklin, and John 
 Dickinson, of Delaware, James Wilson, of Pennsylvania, 
 and Daniel Carroll, of Maryland. Profound distrust of 
 the people was expressed by other delegates. Roger 
 Sherman, of Connecticut, thought that "the people would 
 never be sufficiently informed of the character of men to 
 vote intelligently for the candidates that might be pre- 
 sented." Charles C. Pinckney, of South Carolina, said, 
 "The people would be incited by designing and active 
 
 13 
 
14 The Electoral System 
 
 demagogues." Elbridge Gerry, of Massachusetts, con- 
 sidered a popular election "radically vicious," and George 
 Mason, of Virginia, went so far as to say, "It would be 
 as unnatural to refer the choice of a proper person for 
 President to the people, as to refer a trial of colors to a 
 blind man." Unwilling to confide the election to the 
 people, but equally resolute in the determination that 
 Congress should have no part or lot in the selection of 
 the chief executive, the convention finally approved the 
 electoral plan. Upon no subject was there more vacilla- 
 tion or uncertainty. "No less than ten methods of 
 choosing a President were seriously proposed and de- 
 bated," said Ingalls, of Kansas, in the Senate, on Feb- 
 ruary I, 1886. Bancroft thus reviews the proceedings: 
 
 " And now the whole line of march to the mode of the elec- 
 tion of the President can be surveyed. The convention at first 
 reluctantly conferred that office on the national legislature; 
 and to prevent the possibility of failure by a negative of one 
 House on the other, to the legislature voting in joint ballot. 
 To escape from danger of cabal and corruption, it next trans- 
 ferred full and final power of choice to an electoral college that 
 should be the exact counterpart of the joint convention of the 
 two Houses in the representation of the States as units, as well 
 as the population of the States, and should meet at the seat of 
 government. Then, fearing that so large a number of men 
 would not travel to the seat of government for that single pur- 
 pose, or might be hindered on the way, they most reluctantly 
 went back to the choice of the President by the two Houses in 
 joint convention. At this moment, the thought arose that the 
 electors might cast their votes in their own several States, and 
 transmit the certificates of their ballots to the seat of govern- 
 ment. Accordingly, the work of electing a President was 
 divided; the convention removed the act of voting from the 
 joint session of the two Houses to electoral colleges in the sev- 
 eral States, the act of voting to be followed by the transmission 
 of authenticated certificates of the votes to a branch of the 
 
Provisions of the Constitution 15 
 
 general legislature at the seat of government; and then it re- 
 stored to the two Houses in presence of each other the same 
 office of counting the collected certificates which they would 
 have performed had the choice remained with the two Houses 
 of the legislature." ^ 
 
 Hamilton, advocating in the Federalist the ratification 
 of the Constitution by the people of the State of New 
 ^ York, after stating that no part of the system framed by 
 the convention was attended with greater difificulty than 
 the method of choice of a President, thus praises this part 
 of the convention's work; 
 
 " The precautions which have been so happily concerted in 
 the system under consideration promise an effectual security 
 against this mischief (the danger of tumult and disorder); the I 
 choice of several to form an intermediate body of electors will ' 
 be much less apt to convulse the community with any extra- 
 ordinary and violent movements than the choice of one who 
 was himself to be the final object of the public wishes.^ And 
 as the electors chosen in each State are to assemble and vote 
 in the State in which they are chosen, this detached and di- 
 vided situation will expose them much less to heats and fer- 
 ments that might be communicated from them to the people 
 than if they were all to be convened at one time, in one place." 
 
 Chancellor Kent, in treating of the election of Presi- 
 dent, observes: 
 
 ' ' The mode of his appointment presented one of the most 
 difficult and momentous questions that occupied the delibera- 
 tions of the assembly which framed the Constitution; and if 
 ever the tranquillity of this nation is to be disturbed, and its 
 liberties endangered by a struggle for power, it will be upon 
 this very subject of the choice of a President. This is the 
 question that is eventually to test the goodness and try the 
 strength of the Constitution ; and if we shall be able, for half 
 ^ Hist, of U. S. (Bancroft), vi., pp. 339, 340. 
 
i6 The Electoral System 
 
 a century hereafter, to continue to elect the chief magistrate of 
 the Union with discretion, moderation, and integrity, we shall 
 undoubtedly stamp the highest value on our national charac- 
 ter, and recommend our republican institutions, if not to the 
 imitation, yet certainly to the esteem and admiration of the 
 more enlightened part of mankind. 
 
 " The Constitution, from an enlightened view of all the 
 difficulties that attend the subject, has not thought it safe or 
 prudent to refer the election of a President, directly and im- 
 mediately to the people ; but it has confided the power to a 
 small body of electors, appointed in each State, under the di- 
 rection of the Legislature ; and to close the opportunity as much 
 as possible against negotiation, intrigue, and corruption, it has 
 declared that Congress may determine the time of choosing the 
 electors, and the day on which they shall vote, and that the 
 day of election shall be the same in every State. This security 
 has been still further extended by the act of Congress direct- 
 ing the electors to be appointed in each State within thirty- 
 four days of the election." 
 
 The report of the Senate Committee on Privileges and 
 Elections, in 1874, states: 
 
 " The theory of the electoral college was that a body of men 
 should be chosen for the express purpose of electing a Presi- 
 dent and Vice-President, who would be distinguished by their 
 eminent ability and wisdom, who would be independent of 
 popular passion, who would not be influenced by tumult, cabal, 
 or intrigue, and that in the choice of the President they would 
 be left perfectly free to exercise their judgment in the selec- 
 tion of the proper person. And in order to secure more per- 
 fectly the independence of the electors the Constitution 
 provides that they shall vote by ballot in the electoral college, 
 so that it might not be known to each other or to the country 
 how they voted. In short, the idea was that a small body of 
 select men could be more safely intrusted with the election of 
 the President and Vice-President than the whole body of the 
 people." 
 
Provisions of the Constitution 1 7 
 
 Says Mr. Justice Story, in his Commentaries on the 
 Constitution : 
 
 " The appointment of the President is not made to depend 
 upon any pre-existing body of men, who might be tampered 
 with beforehand to prostitute their votes; but is delegated 
 to persons chosen by the immediate act of the people, for 
 that sole and temporary purpose. All those persons, who, 
 from their situation, might be suspected of too great a de- 
 votion to the President in office, such as Senators and Repre- 
 sentatives, and other persons holding offices of trust or profit 
 under the United States, are excluded from eligibility to the 
 trust. Thus, without corrupting the body of the people, the 
 immediate agents in the election may fairly be presumed to 
 enter upon their duty free from any sinister bias. Their 
 transitory existence and dispersed situation would present 
 formidable obstacles to any corrupt combinations; and time, 
 as well as means, would be wanting to accomplish, by bribery 
 or intrigue of any considerable number, a betrayal of their 
 duty." 
 
 Mr. Bryce, in his American Commonwealth^ writes: 
 
 " To have left the choice of the chief magistrate to a direct 
 popular vote over the whole country would have raised a dan- 
 gerous excitement, and would have given too much encourage- 
 ment to candidates of merely popular gifts. To have entrusted 
 it to Congress would have not only subjected the Executive to 
 the legislature in violation of the principle which requires these 
 departments to be kept distinct, but have tended to make him 
 a creature of one particular faction instead of the choice of 
 the nation." 
 
 The growth of democracy quickly revolutionized the 
 plans of the framers of the Constitution. The independ- 
 ence which electors were to exercise in choosing a can- 
 didate for the presidency soon gave way to a positive 
 obligation upon their part to obey the dictates of party. 
 
1 8 The Electoral System 
 
 No presidential elector would to-day cast his vote for any- 
 presidential candidate other than the one selected by the 
 party whose representative he himself is. In 1796 three 
 Democratic electors, passing over the preference of their 
 party, voted for John Adams for the presidency. El- 
 bridge Gerry, one of the electors selected by the Democ- 
 racy of Massachusetts, voted for Adams in place of 
 Jefferson, but subsequently explained his action by letter 
 to Jefferson, evidently to the latter's satisfaction. Had 
 two of the three Democratic electors who voted against 
 their party's candidate voted for him, Jefferson would 
 have succeeded to the presidency in 1797, instead of 1801. 
 No one at the time questioned the propriety of the action 
 of these electors; whereas, to-day, the exercise of such 
 freedom would be deemed a breach of trust. Since 1796 
 there has been no well-authenticated case of an elector's 
 failure to carry out his party's expectations.^ 
 
 The Constitution of the United States commits the 
 method of the appointment of electors absolutely to each 
 State. Several modes of choosing electors were, in the 
 early elections, simultaneously in use in different States, 
 namely, choice by the Legislature, either by joint ballot 
 or concurrent vote; election by the people by general 
 ticket, the whole number of electors being voted for on 
 one ballot throughout the State ; or choice by districts. 
 
 ' " From the beginning," says Benton, " the electors have stood pledged 
 to vote for the candidates indicated [in the early elections] by the public 
 will ; afterwards, by Congress caucuses, so long as these caucuses followed 
 the public will ; and since, by assemblages called conventions, whether 
 they follow the public will or not. In every case the elector has been an 
 instrument, bound to obey a particular impulsion ; and disobedience to 
 -which would be attended with infamy, and with every penalty which public 
 indignation could inflict. From the beginning these electors have been 
 useless, and an inconvenient intervention between the people and the object 
 of their choice, and in time may become dangerous. The institution 
 ■should be abolished, and the election committed to the direct vote of the 
 people ! " 
 
Provisions of the Constitution 19 
 
 This last method is considered by Hildreth, in his History 
 of the United States , as 
 
 "evidently that which gave the fairest expression of public 
 opinion by approaching nearest to a direct vote. But those 
 States which adopted it were placed at the disadvantage of 
 being exposed to a division of their strength and neutralization 
 of their vote; while the electors chosen by either of the other 
 methods voted in a body on one side or the other, making the 
 voice of the State decisively felt." 
 
 This consideration, he says, induced the two leading 
 States of Massachusetts and Virginia to abandon the 
 district system. In Virginia the Democratic-Republican 
 (the modern Democratic) party w^as overwhelmingly pre- 
 dominant ; hence the legislature of that State gave to the 
 people the right of choice by general ticket. In Massa- 
 chusetts, the parties being more evenly divided, the 
 Legislature retained the right of appointment. The 
 general-ticket system, however, gradually came into favor 
 and was finally adopted by all the States. 
 
 In a speech in the Senate in December, 1823, in which 
 he advocated a constitutional amendment providing for 
 an election by the people in districts, Benton said : 
 
 " The general-ticket system now existing in ten States was 
 the offspring of policy and not of any disposition to give fair 
 play to the will of the people. It was adopted by the leading 
 men of those States to enable them to consolidate the vote of 
 the State. It would be easy to prove this by referring to facts 
 of historical notoriety. It contributes to give power and con- 
 sequence to the leaders who manage the elections, but it is a 
 departure from the intention of the Constitution, violates the 
 right of minorities, and is attended with many other evils." 
 
 His argument as to the infringement of the rights of 
 minorities is unanswerable: 
 
 " In New York thirty-six electors are chosen, nineteen is a 
 
20 The Electoral System 
 
 majority, and the candidate receiving the majority is fairly 
 entitled to count nineteen votes; but he counts in reality 
 thirty-six, because the minority of seventeen is added to the 
 majority. These seventeen votes belong to seventeen masses 
 of people, of 40,000 souls each, in all 680,000 people, whose 
 votes are seized upon and taken away, and presented to whom 
 the majority please. Extend the calculation to the seventeen 
 States now choosing electors by general ticket or legislative 
 ballot, and it will show that three millions of souls, a popula- 
 tion equal to that which carried us through the Revolution, 
 may have their votes taken from them in the same way." 
 
 The provisions of Article II. of the Constitution of the 
 United States relative to the election of the President 
 and Vice-President are brief and apparently not am- 
 biguous. Nevertheless, discussion of one short phrase 
 continued for the better part of one hundred years, and 
 opinion as to its meaning is not unanimous to-day. 
 
 Subdivision 2 of Section i of Article II. is 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 Represen- 
 tative or person holding an office of trust or profit under the 
 United States shall be appointed an elector." 
 
 This terse clause, the outcome of long debate in the con- 
 vention, is so worded as to vest the manner of appoint- 
 ment of the electors to which each State is entitled, in 
 the Legislature of the State. There is no obligation on 
 the part of a State to appoint electors. It may, if it so 
 wills, decline to participate in a presidential election, and 
 such failure actually happened in New York in 1789. 
 The State Assembly, full of the partisans of Clinton, and 
 strongly Anti-Federal, wished to vote for electors in 
 joint convention with the Senate, which would have 
 
Provisions of the Constitution 21 
 
 given the Anti-Federalists two United States Senators 
 and ten electors. But the Upper House insisted upon a 
 concurrent vote, which would have given it one Senator 
 and five electors. As neither House would recede from 
 its position, the State lost its electoral .vote. Neither 
 North Carolina nor Rhode Island had ratiiied the Federal 
 Constitution when the first election occurred, and as a 
 consequence neither of those States took part in it. 
 
 The Legislature of each State is clothed with absolute 
 power to determine in what manner the electors shall be 
 appointed. The word "appointed " is highly significant. 
 It was designedly employed. It is n^'t a democratic 
 term ; there is no implication of a popular election in it. 
 The convention could not have employed a stronger ex- 
 pression to import the plenary authority of the State.' 
 So absolute is the power conferred upon each State legis- 
 lature that it may, as was said by the eloquent Henry R. 
 Storrs, of New York, in the House of Representatives in 
 the spring of 1826, vest the appointment of electors in 
 *'a board of bank directors, a turnpike corporation, or 
 a synagogue. " The number of electors to which each 
 State is entitled is equal to the whole number of Senators 
 and Representatives to which the State is entitled in 
 Congress. This clause is one of the compromises of the 
 Constitution between the large and the small States. It 
 recognizes the rights of a State as a separate entity, but 
 also the right of majority rule. The electoral colleges, 
 says Bancroft, were to be the "exact counterpart of the 
 joint convention of the two Houses in the representation 
 of the States as units, as well as the population of the 
 States." A State, no matter how small in population, 
 is entitled to two Senators and at least one Representative. 
 This inequality of representation gave rise to the senti- 
 ment that "the small States were the favorites of the 
 
 ' It " was manifestly used as conveying the broadest power of determina- 
 tion."— McPherson vs. Blacker, 146 U. S., i. 
 
22 The Electoral System 
 
 Constitution," but this apparent advantage is nullified 
 under the general-ticket system, which makes the election 
 turn upon the vote in the large States. 
 
 While Subdivision 3 of Section i of Article II. was 
 amended in 1804, the original provisions must be con- 
 sidered in order that the subject may be fully understood. 
 
 Under Subdivision 3 the provision is that the electors 
 meeting in their respective States shall vote by ballot for 
 two persons, one at least of whom shall not be an inhabi- 
 tant of the same State with themselves. This provision 
 was a concession to the smaller States, who were fearful 
 that the President would be chosen exclusively from the 
 larger States. The same jealous feeling led to their de- 
 mand that whenever there should be a failure to reach a 
 choice through the electoral college, not less than five of 
 the highest candidates should be voted for in the House 
 of Representatives. 
 
 Subdivision 3 further provides that the electors shall 
 make a list of all the persons voted for and of the num- 
 ber of votes for each, which list they shall sign and cer- 
 tify 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 the presence of the 
 Senate and House of Representatives, open all the cer- 
 tificates, and the votes shall then be counted." As the 
 Constitution originally stood, it prescribed : 
 
 * ' The person having the greatest number of votes shall be the 
 President if such number be a majority of the whole number 
 of electors appointed ; and if there be more than one who have 
 such majority, and have an equal number of votes, then the 
 House of Representatives shall immediately choose by ballot 
 one of them for President; and if no person have a majority, 
 then from the five highest on the list the said House shall in 
 hke manner choose the President. But in choosing the Presi- 
 dent, the votes shall be taken by States, the representation 
 from each State having one vote; a quorum for this purpose 
 
Provisions of the Constitution 23 
 
 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. In every case after the choice of the President, the 
 person having the greatest number of votes of the electors 
 shall be the Vice-President. But if there should remain two 
 or more who have equal votes, the Senate shall choose from 
 them by ballot the Vice-President." 
 
 A plurality of the electoral vote was not deemed suffi- 
 cient for the election of a President. He must have a 
 majority of the number of electors, and, as the electors 
 of each State were free to choose two persons, obviously 
 more than one person might have a majority of votes. 
 Hence, where two persons had the same number of votes^ 
 and a majority of votes, the election was transferred to 
 the House of Representatives, in which representation is 
 the counterpart of that in the electoral system, for the 
 House of Representatives is composed of members from, 
 each State, apportioned among the several States ac- 
 cording to their respective numbers. The choice in the 
 House was to be made between the two persons having a 
 majority and the same number of electoral votes. If, as 
 might happen, no person had a majority of all the elec- 
 toral votes, the House was to choose from the five highest 
 on the list, but as a concession to the small States the 
 vote was to be taken by States, the entire representation 
 from each State having but one vote, a majority of the 
 States being necessary to a choice.* 
 
 ^ Hon. O. P. Morton, in a speech in the Senate in 1873, said : " The ob- 
 jections to this constitutional provision for the election of a President need, 
 only to be stated, not argued. First, its manifest injustice. In such a» 
 election each State is to have but one vote. Nevada, with its forty-two» 
 thousand population, has an equal vote with New York, having one hun- 
 dred and four times as great a population. It is a mockery to call such aa- 
 election just, fair, or republican." He also showed that under the appor- 
 tionment existing in 1873, forty-five members of the House, drawn from 
 nineteen States which he named, could, each State having one vote, con- 
 trol an election in a House then consisting of two hundred and ninety-two 
 
24 The Electoral System 
 
 Only a few years were needed to develop some of the 
 worst imperfections of the original electoral plan. 
 
 ** The theory," says Judge Cooley/ " failed miserably and 
 utterly twelve years after the plan was first carried into effect. 
 It was shown in the presidential election of 1800 that under its 
 workings a person whom no man's purpose or judgment had 
 selected for the first position might receive and was likely to 
 receive as many votes as the person whom the same electors 
 had intended to prefer by their suffrages, and that when the 
 election was transferred to the House of Representatives the 
 former, though never intended for any other than the subordi- 
 nate position, might possibly be chosen over the real choice 
 of a majority of the electors. On that occasion, Mr. Burr, 
 though probably not the choice of a single elector, might have 
 been and probably would have been chosen but for the patri- 
 otism of Mr. Hamilton and a few others among the Federalists 
 who protested against it. But Mr. Jefferson's election was 
 not accomplished until after the subject of filling the position 
 in some extra-constitutional mode had been mooted, the at- 
 
 members, representing thirty-seven States. "Nineteen States, or a ma- 
 jority of the States in the Union, and forty-five members, may cast their 
 votes, and elect a President of the United States, against the wishes of the 
 other two hundred and forty-seven members of the House of Representa- 
 tives. Again, these nineteen States have an aggregate population by the 
 census of 1870 of a fraction over eight millions of people, while the remain- 
 ing eighteen States have an aggregate population of about thirty millions. 
 So that nineteen States, having scarcely more than one fifth of the entire 
 population of the United States, may elect a President in the House of 
 Representatives against the wishes of the other four fifths. And this by 
 courtesy has been called Republican government ! Compared with it the 
 rotten-borough system was a mild and very small bagatelle." 
 
 Justice Story was greatly impressed with the danger to the stability of 
 the Government involved in the necessity of a choice in the House, which 
 had occurred twice when he wrote his Commentaries, but has never since 
 taken place, although he thought there was every probability of its frequent 
 occurrence. The first such election resulted in the Twelfth Amendment ; 
 the second, which gave the people in J. Q. Adams a minority candidate, 
 led to a demand for a constitutional amendment in which the election 
 •should be had by the people voting in districts. 
 
 1 " Method of Electing the President," 5 Int. Rev. 198. 
 
Provisions of the Constitution 25 
 
 tempt to do which would probably have been resisted with 
 force. ' * 
 
 The difficulty had been predicted years before it arose. 
 As early as January 6, 1797, an amendment was offered, 
 although ineffectually, in the House of Representatives, 
 the object of which was to require the electors to distin- 
 guish in their ballots between candidates for the presi- 
 dency and the vice-presidency. William L. Smith of 
 South Carolina, who offered the amendment, declared 
 that great inconveniences might arise under the then ex- 
 isting mode, that "it could not answer the end intended " 
 by its framers, — **to carry into effect the real intention 
 of the electors.** A similar amendment was offered in 
 the same House on February 16, 1799, but the motion 
 to refer it to a committee was negatived by a vote of 
 fifty-six to twenty-eight. Just about a year before the 
 Jefferson-Burr contest, on February 4, 1800, the same 
 idea reappeared in an amendment presented in the 
 House, which further proposed that the Senate, in the 
 failure of a choice of a Vice-President by the electors, 
 should make the selection from the five highest on the 
 list. On January 24, 1798, Humphrey Marshall, of Ken- 
 tucky included this idea in an amendment which he in- 
 troduced in the Senate. The simple change eventually 
 made by the Twelfth Amendment was not possible until, 
 in 1 801, the country was taught its necessity by actual 
 peril. The conservative spirit of the time is well illus- 
 trated by the statement in the House, of Huger of South 
 Carolina, in opposition to the proposed Twelfth Amend- 
 ment, that he confessed he trembled at the idea of alter- 
 ing the Constitution, although he was attached to that 
 part of it which gave the right of altering it, A like 
 feeling prompted Storrs of New York to exclaim in the 
 House in 1826, "The convention which framed the Con- 
 stitution seemed to have been inspired in their labors." 
 
26 The Electoral System 
 
 This unreasoning reverence, by taking away all virility 
 from the power of amendment, would check constitu- 
 tional development. Another defect in the article under 
 consideration lay in the fact that while the clause care- 
 fully safeguarded the elected chief executive from 
 foreign influence and fixed the minimum age-limit of 
 eligibility, it left the door wide open for the intrusion of 
 a foreigner or of a person under age into the presidential 
 office in case the Vice-President became acting President. 
 The Twelfth Amendment remedied this by prescribing 
 that no person ineligible to the presidency should ever 
 become Vice-President. It was finally approved in the 
 House of Representatives on December 12, 1803. The 
 vote was 83 yeas to 42 nays, and the Speaker's yea was 
 requisite to its passage. It was ratified by thirteen of the 
 seventeen States and declared in force September 25, 1804. 
 The convention which framed the Federal Constitution 
 provided in Article VII. thereof that its ratification by 
 conventions in nine States should be sufficient for the 
 establishment of the Constitution between the States so 
 ratifying the same. It also drafted a resolution which 
 was presented with the Constitution to the various States 
 for ratification. The full text of this important resolu- 
 tion is as follows : 
 
 ''Resolved, That it is the opinion of this convention, that as 
 soon as the conventions of nine States shall have ratified this 
 Constitution, the United States in Congress assembled should 
 fix a day on which electors should be appointed by the States 
 which shall have ratified the same, and a day on which the 
 electors should assemble to vote for the President, and the 
 time and place for commencing proceedings under this Con- 
 stitution; that after such publication the electors should 
 be appointed, and the Senators and Representatives elected; 
 that the electors should meet on the day fixed for the election 
 of the President, and should transmit their votes, certified, 
 signed, sealed, and directed, as the Constitution requires, to 
 
Provisions of the Constitution 27 
 
 the Secretary of the United States in Congress assembled; 
 that the Senators and Representatives should convene at the 
 time and place assigned ; that the Senators should appoint a 
 president of the Senate, for the sole purpose of receiving, 
 opening, and counting the votes for President; and that after 
 he shall be chosen, the Congress, together with the President, 
 should, without delay, proceed to execute the Constitution." 
 
 The language of the Constitution in Subdivision 3 of 
 Section i of Article II. (and the same phraseology reap- 
 pears in the Twelfth Amendment) is, "the president of 
 the Senate shall in the presence of the Senate and House 
 of Representatives open all the certificates, and the votes 
 shall then be counted." The clause evidently imports 
 that both Houses shall assemble in one place, that the 
 president of the Senate shall act as the presiding officer 
 of the joint meeting, and that he shall open all the cer- 
 tificates.* No words of the Constitution have given rise 
 to more discussion or more seriously threatened the per- 
 manency of the Government. Yet as Senator Edmunds 
 declared in the debates of January, 1877, the early Con- 
 gress found no difficulty in this clause, for it left it un- 
 changed in the Twelfth Amendment. 
 
 ^ Bancroft says : " The Vice-President was never charged with the power 
 to count the votes. The person who counted the first votes for President 
 and Vice-President was no Vice-President, but a Senator elected by the 
 Senate as its presiding officer, for that act, under a special authority con- 
 ferred by the Constitution for that one occasion when the Constitution was 
 to be set in motion." The "special authority conferred by the Constitu- 
 tion" is an allusion to the resolution framed by the convention of 1787, 
 and submitted with the Constitution for popular ratification. 
 
 " The Constitution does not expressly declare by whom the votes are to 
 be counted and the result declared. In the case of questionable votes, and 
 a closely contested election, this power may be all-important ; and I pre- 
 sume, in the absence of all legislative provision on the subject, that the 
 President of the Senate counts the votes, and determines the result, and 
 that the two Houses are present merely as spectators, to witness the fair- 
 ness and accuracy of the transaction, and to act only if no choice be made 
 by tlie electors." — Kent's Commentaries, i., p. 277. 
 
28 The Electoral System 
 
 The article under consideration further provides that 
 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. 
 These are the only constitutional provisions touching the 
 election of the President and the Vice-President. 
 
 The Constitution provides that "the ratification of the 
 conventions of nine States shall be sufficient for the 
 establishment of this Constitution between the States so 
 ratifying the same." Such ratification having been se- 
 cured, a resolution was passed by the Congress of the 
 Confederation, declaring: That the first Wednesday in 
 January, 1789, should be the day for appointing electors 
 in the several States which, before that date, should have 
 ratified the Constitution; that the first Wednesday in 
 February, 1789, should be the day for the electors to 
 assemble in their respective States, and vote for a Presi- 
 dent, and that the first Wednesday in March of the same 
 year should be the time and the seat of Congress (at that 
 time. New York,) the place for commencing proceedings 
 under the Constitution. When the first Senate under 
 the Constitution convened in April, 1789, after appoint- 
 ing a president, it directed the House of Representatives 
 to be advised 
 
 ** that a quorum of the Senate had been formed, and a presi- 
 dent had been elected, for the sole purpose of opening the 
 certificates and counting the votes of the electors of the several 
 States in the choice of a President and Vice-President of the 
 United States, and the Senate is now ready in the Senate 
 chamber to proceed, in the presence of the House, to discharge 
 that duty; and that the Senate have appointed one of their 
 members to sit at the clerk's table to make a list of the votes 
 as they shall be declared; submitting it to the wisdom of the 
 House to appoint one or more of their members for the like 
 purpose." 
 
Provisions of the Constitution 29 
 
 The House, upon the receipt of this message, resolved : 
 
 '* That Mr. Speaker, attended by the House, do now with- 
 draw to the Senate chamber, for the purpose expressed in 
 the message from the Senate; and that Mr. Parker and Mr. 
 Heister be appointed, on the part of this House, to sit at the 
 clerk's table with the members of the Senate, and make a list 
 of the votes as the same shall be declared." 
 
 Thereupon the Speaker, attended by the House, with- 
 drew to the Senate chamber, for the purpose expressed 
 in the message from the Senate. John Langdon of New 
 Hampshire, the president of the Senate, opened and 
 counted the votes and declared the result to the two 
 Houses. No question seems to have arisen regarding 
 any of the certificates, and the counting was nothing more 
 than a mere computation. The reasonable deduction 
 from the language of the resolution, which was accepted 
 by a Congress some of whose members had been dele- 
 gates to the convention of 1787, is, that the duty of 
 opening the certificates and counting the votes fell to the 
 president of the Senate. 
 
 On March i, 1792, Congress passed an act fixing the 
 time and place in which the electors should meet in the 
 several States, and designating the officer who should be 
 President in case of vacancies in the offices of both Presi- 
 dent and Vice-President. The act provided that electors 
 should be appointed in each State within thirty-four days 
 preceding the first Wednesday in December, 1792, and 
 within thirty-four days preceding the first Wednesday 
 in December in every fourth year thereafter; that the 
 electors should meet and give their votes on said first 
 Wednesday in December at such place in each State as 
 should be directed by the Legislature thereof; that the 
 electors in each State should make and sign three certifi- 
 cates of all the votes by them given, and seal up the same, 
 certifying on each that a list of the votes of such State 
 
30 The Electoral System 
 
 for President and Vice-President was contained therein, 
 and, by writing under their hands or under the hands 
 of a majority of them, appoint a person to take charge of 
 and deliver to the president of the Senate at the seat of 
 government, before the first Wednesday in January then 
 next ensuing, one of the said certificates, forward by post 
 to the president of the Senate at the seat of government 
 one other of the certificates, and cause the third to be 
 delivered to the Federal judge of the district in which 
 they assemble. The act further made it the duty of the 
 executive authority of each State to have three lists of 
 the names of the electors of such State made, certified, 
 and delivered to the electors on or before the said first 
 Wednesday in December, and the electors were directed 
 to annex one of said lists to each list of their votes. In 
 case no list of votes should be received from a State at 
 the seat of government on the first Wednesday of Jan- 
 uary, the Secretary of State was instructed to send a 
 special messenger to. the district judge for the list trans- 
 mitted to him by the electors. Congress was then re- 
 quired to be in session on the second Wednesday in 
 February succeeding every meeting of the electors, and 
 the certificates were then to be opened, the votes counted, 
 and the persons to fill the offices of President and Vice- 
 President ascertained and declared according to the Con- 
 stitution. If there should be no president of the Senate 
 at the seat of government on the arrival of the persons 
 entrusted with the lists of the votes of the electors, the 
 votes were then to be delivered into the temporary 
 custody of the Secretary of State, who was charged with 
 the duty of promptly delivering them to the president 
 of the Senate upon that official's arrival. The statute 
 also contained provisions declaring what officer should 
 be President, in case of vacancies in the office both of 
 President and Vice-President. 
 
 Except for a supplementary act enforcing the provisions 
 
Provisions of the Constitution 31 
 
 of the Twelfth Amendment, this legislation continued in 
 force, unaltered, until January 23, 1845, when Congress 
 prescribed that the electors should be appointed in each 
 State on the Tuesday next after the first Monday in the 
 month of November of the year in which they were to be 
 appointed. Each State was also authorized to provide 
 by law for the filling of any vacancies in its college of 
 electors, when such college met to give its electoral vote ; 
 and in case of failure to make a choice of electors at an 
 election duly held it was provided that electors might be 
 appointed on a subsequent day in such manner as the 
 State might by law prescribe. There is express authority 
 in the Constitution for the first branch of this legislation, 
 for that instrument declares that the Congress may de- 
 termine the time of choosing the electors and the day on 
 which they shall give their votes. But as each State has 
 absolute control over the appointment of its electors, the 
 latter branch of the Act of 1845 seems to be unnecessary, 
 if not inimical to the Constitution. 
 
CHAPTER II 
 
 COUNTING— 1793 UNTIL 1857 
 
 AT the election of 1793, the two Houses of Congress 
 adopted a mode of procedure for the counting of 
 electoral votes, which, with changes subsequently to be 
 noted, has been pursued ever since. Each House ap- 
 pointed a committee' to join a committee of the other, 
 "to ascertain and report 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 report to the 
 Senate from the joint committee upon the mode of pro- 
 cedure, reads, 
 
 "that the two Houses shall assemble in the Senate chamber; . . . 
 that one person be appointed a teller on the part of the Senate, 
 to make a list of the votes as they shall be declared; that the 
 result shall be delivered to the president of the Senate, who 
 shall announce the state of the vote and the persons elected to 
 the two Houses assembled as aforesaid; which shall be deemed 
 a declaration of the persons elected President and Vice-Presi- 
 dent, and together with a list of the votes be entered on the 
 journals of the two Houses." 
 
 This was agreed to. A like report from the joint com- 
 mittee to the House of Representatives was agreed to 
 
 ^ The proposition for a joint committee originated in the House of 
 Representatives . 
 
 32 
 
Counting — 1793 Until 1857 33 
 
 by that body, with this difference, that the House appoint 
 two tellers. These resolutions would appear to conflict 
 with the theory that the president of the Senate had 
 plenary control of the count. No question arose over the 
 electoral vote of 1793. Both Houses assembled in the 
 Senate chamber, tellers were appointed in conformity 
 with the resolution to make a list of the votes, and the 
 president of the Senate announced the result. The jour- 
 nal of the Senate contains the following entry : 
 
 " The two Houses having accordingly assembled, the certifi- 
 cates 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, and is as follows: 
 
 [Here follows table of votes.] 
 
 ** Whereupon 
 
 " The Vice-President declared George Washington unani- 
 mously elected President of the United States, for the period 
 of four years, to commence with the fourth of March next; 
 and 
 
 " John Adams elected by a plurality of votes Vice-President 
 of the United States for the same period, to commence with 
 the fourth day of March," 
 
 In the counting of the vote in 1797 the course of pro- 
 cedure adopted in 1793 was substantially followed, except 
 that the Senate anticipated the House in moving a joint 
 committee. In the election of 1797, the count showed 
 71 votes for Adams, 68 for Jefferson, and 59 for Thomas 
 Pinckney. This state of the vote became known during 
 the winter of 1796, and as party feeling was strong, 
 some were disposed to question the validity of the vote 
 for Adams in Vermont because the Legislature of that 
 State had appointed electors without first enacting a law 
 
34 The Electoral System 
 
 prescribing the manner of their appointment/ The Ver- 
 mont certificate was accepted in the joint session ap- 
 parently without question, Mr. Adams as president of the 
 Senate declaring the result and his own election. The 
 result evinced the close balance of parties and portended 
 the change in administration that was soon to occur. 
 
 In the spring election in New York City in 1800 the 
 Federalists, whose prestige had fallen all over the Union, 
 were defeated. General Hamilton became so alarmed at 
 the probable loss of the Legislature and of the State 
 electors by his party that he urged Governor Jay im- 
 mediately to convene the existing Legislature for the 
 purpose of securing a law providing for the election of 
 electors by the people in districts, notwithstanding the 
 fact that such a suggestion had been defeated at the pre- 
 ceding session by the vote of the Federalists in the Legis- 
 lature. "I am aware," wrote Hamilton, **that there are 
 weighty objections to the measure, but the reasons for it 
 appear to me to outweigh the objections; and in times 
 like these in which we live, it will not do to be over- 
 scrupulous." So long as nothing was proposed which 
 integrity would forbid, **the scruples of delicacy and pro- 
 priety," he asserted, "ought not to hinder the taking of 
 a legal and constitutional step to prevent an atheist in 
 religion, and a fanatic in politics, from getting possession 
 of the helm of state." The choosing of electors by the 
 people in districts would ensure a majority of votes in the 
 United States for a Federal candidate. Jay refused to 
 adopt Hamilton's suggestion, and the new Legislature 
 in joint ballot chose Democratic electors. In December 
 it was learned that the electoral votes throughout the 
 country stood 73 for Jefferson; 73, Burr; 65, Adams; 
 
 ^Jefferson had previously declared that "in so great a case, substance 
 and not form should prevail. I cannot suppose that the Vermont constitu- 
 tion has been strict in requiring particular forms of expressing the legisla- 
 tive will." 
 
Counting — 1793 Until 1857 35 
 
 64, Pinckney; and that the tie between Jefferson and 
 Burr would throw the election into the House of 
 Representatives. ' 
 
 On February ii, 1801, both Houses convened in the 
 Senate chamber. One teller was appointed for the Senate 
 and two for the House. The tellers broke the seals of 
 the electoral certificates and opened the envelopes, hand- 
 ing the certificates to Mr. Jefferson, the president of the 
 Senate, who in turn announced the vote, the tellers writ- 
 ing the results and in clerical capacity making the actual 
 computation. 
 
 According to Matthew L. Davis, Burr's intimate friend 
 and chosen biographer, the tellers, believing there was 
 some informality in the vote of Georgia, handed Jeffer- 
 son a package containing the electoral certificate from 
 that State, which was not authenticated by the signa- 
 ture of the electors, but merely declared, without sig- 
 nature, that the votes of the State were four for Jefferson 
 and four for Burr. To the surprise of the tellers, Jeffer- 
 son promptly announced that the votes stood four for 
 Jefferson, and four for Burr. Mr. Wells, one of the 
 tellers, is said afterwards to have stated that the vote of 
 Georgia was informal, and that if the ballots from that 
 State had not been accepted by the presiding officer, the 
 result would have brought all the candidates for the 
 presidency before the House, Pinckney among the num- 
 ber, and that Jefferson could not have been elected 
 President. Jefferson probably knew the votes were 
 
 * " One vote for Jefferson in Pennsylvania deserves notice, since it is be- 
 lieved to have been given by the only elector in the history of the country 
 who has ever betrayed the trust reposed in him by those who supported 
 him, . . . The treachery of this elector was the subject of an exceed- 
 ingly plain-spoken communication in the United States Gazette from an ex- 
 asperated Federalist. 'What! ' he exclaimed, ' do I chuse Samuel Miles to 
 determine for me whether John Adams or Thomas Jefferson shall be Presi- 
 dent? No ! I chuse him to act, not to think.' " — Stanwood, A History of 
 the Presidency, pp. 50, 51. 
 
3^ The Electoral System 
 
 regular, but uncertified through simple inadvertence, and 
 read them as a matter of course, without reflection upon 
 the remote consequence that might ensue if they were 
 not counted. 
 
 The whole number of electors voting was 138, of which 
 number Thomas Jefferson and Aaron Burr had a majority ; 
 but as the vote for each was equal there was no choice, 
 and consequently the duty of electing a President devolved 
 upon the House of Representatives. The two Houses 
 then separated and the representatives returned to their 
 own chamber. The roll was called, the gallery cleared, 
 and the voting begun. The balloting continued in the 
 House from February 11 to February 17, 1801, without 
 adjournment, and upon the thirty-sixth ballot the Speaker 
 declared that the votes of ten States had been given to 
 Jefferson, the votes of four States had been given to 
 Aaron Burr, and the votes of two States (New Jersey 
 
 and Delaware) had been given to . The ten States 
 
 which finally voted for Jefferson were New York, Penn- 
 sylvania, Virginia, North Carolina, South Carolina, 
 Georgia, Kentucky, Tennessee, Vermont, and Maryland. 
 
 Hamilton thus extolled the method adopted by the 
 convention of 1787: 
 
 ** The mode of appointment of the chief magistrate of the 
 United States is almost the only part of the system, of any 
 consequence, which has escaped without severe censure, or 
 which has received the slightest mark of approbation from its 
 opponents. The most plausible of these, who has appeared 
 in print, has even deigned to admit that the election of the 
 president is pretty well guarded. I venture somewhat further, 
 and hesitate not to affirm, that if the manner of it be not per- 
 fect, it is at least excellent. It unites in an eminent degree all 
 the advantages the union of which was to be wished for." 
 
 The cardinal merit of the system, according to other ad- 
 vocates, was that it would prevent intrigue and cabal, yet 
 
 f 
 
 I 
 
Counting — 1793 Until 1857 37 
 
 the strange fact is that the system adopted by the con- 
 vention encouraged the evils it was expected to avoid. 
 Burr, whether justly or unjustly, was charged with nego- 
 tiating with Federalist electors to obtain their support. 
 During the vote in the House of Representatives, the 
 delegations from Vermont and Maryland were divided 
 until the thirty-sixth ballot. The Federalist electors 
 were violently opposed to the election of Jefferson, but 
 at the last, because of an alleged promise that certain 
 Federalist officials should not be removed if Jefferson 
 were elected, the opposition of Vermont was withdrawn, 
 blank ballots were voted by the Federalists from Mary- 
 land, and thus the contest was terminated. 
 
 The election of 1801 demonstrated the unwisdom of 
 voting for both President and Vice-President upon the 
 same ballot. It showed the danger of a tie vote. It re- 
 vealed the innumerable temptations to candidates and 
 electors to enter into bargains and coalitions. It proved 
 the possibility of electing a President from one party and 
 a Vice-President from another. To obviate these evils, 
 the Twelfth Amendment was adopted. This amendment 
 provides that if no person have a majority of all the elec- 
 toral votes, the choice of President shall be made by the 
 House from the persons having the highest number, not 
 exceeding three ; and in distinct ballots the electors of the 
 several States are to vote for Vice-President. That per- 
 son shall become Vice-President who has the greatest 
 number of electoral votes, if it be a majority of the whole 
 number of electors appointed. If no person have such 
 majority, then the senate shall choose from the two 
 highest numbers on the list the Vice-President. Two 
 thirds of the Senators shall constitute a quorum, and a 
 majority of the whole number shall be necessary to a 
 choice. 
 
 "This amendment," says Judge Story, "has alternately 
 been the subject of praise and blame, and experience alone 
 
38 The Electoral System 
 
 can decide whether the changes proposed by it are in all re- 
 spects for the better, or the worse. In some respects it is a 
 substantial improvement. In the first place, under the original 
 mode, the Senate was restrained from acting until the House 
 of Representatives had made their selection, which, if parties 
 ran high, might be considerably delayed. By the amendment 
 the Senate may proceed to a choice of the Vice-President im- 
 mediately on ascertaining the returns of the votes. In the 
 next place, under the original mode, if no choice should be 
 made of a President by the House of Representatives until 
 after the expiration of the term of the preceding officer, there 
 would be no person to perform the functions of the office, and 
 an interregnum would ensue, and a total suspension of the 
 powers of Government. By the amendment, the new Vice- 
 President would in such case act as President. By the original 
 mode, the Senate are to elect the Vice-President by ballot; by 
 the amendment, the mode of choice is left open, so that it may 
 be viva voce. Whether this be an improvement, or not, may 
 be doubted." 
 
 No special question as to the validity of any of the 
 electoral certificates arose for a number of years, but the 
 day before the opening of the electoral votes in 1805 
 the Senate passed a resolution that it w^ould "be ready 
 to receive the House of Representatives in the Senate 
 chamber on the 13th of February for the purpose of be- 
 ing present at the opening and counting of votes for the 
 President and Vice-President of the United States." 
 The House of Representatives passed a resolution for the 
 appointment of a committee of the House **to join such 
 committee as might be appointed on the part of the 
 Senate to ascertain and report a mode of examining the 
 votes for President and Vice-President " ; but the Senate 
 did not concur and appointed no committee of its own. 
 The House tellers appear, however, to have participated 
 with the teller appointed by the Senate in the examina- 
 tion of the returns at the joint session. The remarks of 
 
Counting — 1793 Until 1857 39 
 
 Aaron Burr, the Vice-President, to the two Houses as- 
 sembled in joint meeting have often been quoted as evi- 
 dence of the lack of power of the presiding officer. He 
 said: "You will now proceed, gentlemen, to count the 
 votes, as the Constitution and laws direct." Little or no 
 weight is to be attached to this utterance, for it is counter- 
 acted by the certificate prepared by the Senate on the fol- 
 lowing day and signed by Burr, wherein it is declared that 
 "the under-written Vice-President of the United States 
 and president of the Senate did in the presence of the 
 Senate and House of Representatives, open all the cer- 
 tificates and count all the votes of the electors for a Presi- 
 dent and Vice-President of the United States." 
 
 In 1809, ^ joint committee was raised in accordance 
 with the precedent set in 1797 and followed in 1801, and 
 the two Houses assembled in the House of Representa- 
 tives as in 1797. In the discussion in the House over the 
 form of the invitation to the Senate, Randolph objected 
 to the Speaker's vacating his chair, or to any one else 
 taking his place, except by consent of the whole House. 
 Nicholas, of Virginia then moved that when the- mem- 
 bers of the Senate were introduced the Speaker should re- 
 linquish the chair to the president of the Senate ; and this 
 was agreed to. Petitions had been previously received 
 in the House of Representatives from citizens of Massa- 
 chusetts, remonstrating against the mode of appointment 
 of electors' in that State "as irregular and unconsti- 
 tutional." The real difficulty was that the Federalist 
 legislature had passed a resolution reinvesting itself with 
 the appointment of electors, and had refused to submit it 
 to Governor Sullivan on the ground that he had nothing 
 to do with the mode of appointment, which, by the 
 Federal Constitution, was exclusively vested in the legis- 
 lature. The House sent the petitions to the Senate, 
 where they were laid on the table. In the joint session, 
 objection was made to the returns from one of the States 
 
40 Th€ Electoral System 
 
 (Massachusetts) as defective for lack of the governor's 
 certificate, but this was disregarded. One of the votes 
 from Kentucky (that of elector Walton) was missing, but 
 when the letter of the elector explaining his inability to 
 attend the electoral college was brought to the attention 
 of the House of Representatives the day after the count, 
 and a motion was made to amend the record of the pro- 
 ceedings so as to state the reason why the vote of the 
 State was deficient, the motion was negatived. 
 
 In 1813, joint committees were again appointed, but no 
 special question arose. Ever since 1809 both Houses 
 have convened in the House of Representatives to wit- 
 ness the electoral count. The number of States in 1817 
 had risen to nineteen, Indiana having been admitted 
 since the last presidential election. Indiana had adopted 
 a constitution in June, 1816, and was admitted to the 
 Union on December nth of that year, and the question 
 which arose over the electoral count of 18 17 related to 
 the right of Indiana to vote for presidential electors. 
 Until 1817 the message had been worded, "to attend at 
 or in the opening and counting of the votes," but whether 
 by inadvertence or otherwise the House of Representa- 
 tives on this occasion notified the Senate of its readiness 
 "to proceed agreeably to the mutual resolution of yester- 
 day to open and count the votes for President and Vice- 
 President." Indiana's votes presented a novel question. 
 John W. Taylor, of New York, addressing the Speaker 
 of the House (Clay), objected to the reading and record- 
 ing of the votes from Indiana, but the Speaker inter- 
 rupted him with the remark that the two Houses had 
 met for the sole purpose of performing the constitutional 
 duty they were then discharging and that while so acting 
 in joint meeting they could consider no proposition and 
 perform no business not prescribed by the Constitution. 
 Upon motion of Senator Varnum, of Massachusetts the 
 Senate decided to withdraw and did so ; and discussion 
 
Counting — 1793 Until 1857 4^ 
 
 upon the reception of Indiana's vote proceeded in the 
 House alone, the point of Taylor's objection being that 
 the joint resolution admitting Indiana into the Union 
 was subsequent in date to the day prescribed for the 
 meeting and voting of the electors; that Indiana was not 
 a State on that day, and no more entitled to participate in 
 the election than Missouri or any other Territory. Tay- 
 lor urged upon the House the importance of a decision 
 upon the question, and proposed a joint resolution declar- 
 ing that Indiana's votes were illegal and should not be 
 counted. The jealousy with which the House main- 
 tained its assumed prerogatives is shown in the sugges- 
 tion of Bassett, of Virginia, that the resolution should 
 not be joint, lest it become a precedent that might, in 
 case of a tie, "deprive this House of one of its powers by 
 permitting the Senate to participate in this question." 
 No conclusion was reached, for a motion that the votes 
 of the State were properly and legally given and ought 
 to be counted was indefinitely postponed, the Senate in- 
 vited to return, the joint session resumed, and the votes, 
 including those of Indiana, were counted. Their accept- 
 ance had no effect upon the result, as Monroe had 183 
 electoral votes out of a total of 217 cast; or, exclusive of 
 Indiana, 180 out of 214.' The Senate journal was subse- 
 quently ordered changed, to efface all record of a some- 
 what similar debate in that body during the recess. 
 From this period onward, joint sessions were frequently 
 interrupted in order to permit the two Houses separately 
 to debate upon the acceptance or rejection of returns, 
 and were resumed when those discussions were con- 
 cluded. 
 
 Between February, 181 7, and February 14, 1821, when 
 the next electoral count took place, new States had been 
 added to the Union: Mississippi, December 10, 1817; 
 
 ^ The full electoral vote would have been 221 ; but three Federalist elec- 
 tors chosen in Maryland, and one of the Delaware electors, did not vote. 
 
42 The Electoral System 
 
 Illinois, December 3, 1818; Alabama, December 14, 1819; 
 and Maine, March 15, 1820. Missouri adopted a constitu- 
 tion in July, 1820, but was not formally acknowledged as 
 a State until August 10, 1821. Ever since the organiza- 
 tion of the government, it had been the practice to admit 
 a free and a slave State simultaneously, or nearly so, 
 thereby preserving the balance of power in the Senate be- 
 tween the North and the South. Maine had been ad- 
 mitted in 1820, but Missouri's entrance had been delayed 
 by the controversy over her constitution and the Missouri 
 Compromise, and it was not until the adoption of the 
 Compromise that Congress consented to her admission 
 with a constitution favoring slavery. Further delay en- 
 sued because of a provision inserted in her constitution 
 that was aimed at forbidding the presence of free negroes 
 or mulattoes within her borders. The House of Repre- 
 sentatives insisted that this objectionable feature should 
 be expunged before the State should be allowed to enter 
 the Union, but the Senate objected that the sovereignty 
 of the State would be infringed. A settlement was ulti- 
 mately reached by which it was agreed that Missouri 
 should be admitted upon the solemn pledge of her Legis- 
 lature to the next meeting of Congress that her constitu- 
 tion should not be construed to authorize the passage of 
 any act, and that no act should be passed, by which any 
 of the citizens of either of the States, whether white or 
 colored, should be excluded from the enjoyment of any 
 of the privileges and immunities to which they were 
 entitled under the Constitution of the United States. 
 Missouri accepted these conditions. But the agreement 
 between the two Houses was not effected until the end 
 of the session, and debate was in progress when the day 
 for the joint session of the two Houses to count the 
 electoral vote arrived. 
 
 Although Missouri was not formally admitted to the 
 Union until August 10, 1821, she elected electors of 
 
Counting — 1793 Until 1857 43 
 
 President and Vice-President in December, 1820, and 
 transmitted her electoral votes to the capital. The elec- 
 tion of Monroe and Tompkins was assured without the 
 votes of Missouri ; but so excited was the state of public 
 feeling, and so pronounced the difference of opinion be- 
 tween the House and the Senate, that the two Houses 
 could not be expected to concur in accepting or rejecting 
 the votes. Hence arose a long and acrimonious discus- 
 sion as to the mode of counting the electoral vote. For 
 the first time in the history of the country, the theory of 
 a casus omissus in the Constitution was advanced. 
 
 A few days before the joint meeting. Clay offered a 
 resolution in the House of Representatives to the effect 
 that if any objection should be made to the votes of 
 Missouri, the counting or omitting to count which should 
 not essentially change the result of the election, that re- 
 sult should be reported in the following manner: 
 
 " Were the votes of Missouri to be counted, the result would 
 be, for A. B., for President of the United States, — votes; if 
 not counted, for A. B., as President of the United States, — 
 votes; but in either event A. B. is elected President of the 
 United States; and in the same manner for Vice-President." 
 
 Clay's argument in the House, in moving the resolution 
 for the ** alternative count," well presents the issue that 
 arose over Missouri's votes. 
 
 "Suppose," he said, "this resolution not adopted, the 
 president of the Senate will proceed to open and count the 
 votes; and would the House allow that officer, singly and 
 alone, thus virtually to decide the question of the legality of 
 the votes? If not, how, then, were they to proceed? Was it 
 to be settled by the decision of the two Houses conjointly, or 
 of the two Houses separately? One House would say the 
 votes ought to be counted, the other that they ought not; and 
 then the votes would be lost altogether." 
 
44 The Electoral System 
 
 If the question were decided in a joint meeting, the ma- 
 jority of the two Houses would unquestionably favor 
 the counting. There was, Clay said, "no mode pointed 
 out in the Constitution of settling litigated questions 
 arising in the discharge of this subject," and he thought 
 *'it would be proper, either by some act of derivative 
 legislation or by an amendment of the Constitution itself, 
 to supply the defect." In Clay's argument "that the 
 votes would be lost altogether," unless both Houses 
 agreed they should be counted, there is implied the 
 power of either House to reject the vote of a State. This 
 was the idea at the basis of the famous twenty-second 
 joint rule, adopted by the Houses of Congress in 1865. 
 
 After debate the House agreed to the resolution by a 
 sectional vote of 90 to 6j, and the Senate, on motion of 
 Barbour, of Virginia, also adopted it. On the 14th of 
 February, just prior to the meeting of the Houses in 
 joint convention, a message from the House informed 
 the Senate, which was dominated by the pro-slavery 
 leaders, that the House had rejected a resolution of 
 the Senate declaring the admission of Missouri into the 
 Union. When the certificates of the Missouri electors 
 were opened, objection was made by Representative 
 Livermore, of New Hampshire to the counting of the 
 votes, and Floyd, of Virginia asked the presiding officer 
 whether or not the votes of Missouri had been counted. 
 The Houses then separated, following the precedent of 
 1 817, and when they reconvened the president of the 
 Senate received the votes of Missouri, and declared, after 
 interruption by Floyd and Randolph, both of whom were 
 pronounced out of order, that the whole number of elec- 
 tors appointed, inclusive of those of Missouri, was 235, 
 or, exclusive of Missouri, 232, and that Mr. Monroe and 
 Mr. Tompkins had each more than a majority of the 
 larger vote, and hence were elected respectively President 
 and Vice-President. 
 
Counting — 1793 Until 1857 45 
 
 In the recess, the discussion in the House, which arose 
 upon Floyd's motion that Missouri was one of the States 
 of the Union and that her votes ought to be received and 
 counted, disclosed the uncertainty which prevailed re- 
 garding the proper practice under the Constitution. The 
 advocates of the acceptance of Missouri's votes, promi- 
 nent among whom were Randolph and Archer, well 
 aware that the Senate was in sympathy with them, 
 argued that the president of the Senate WcS to count the 
 votes, and that the House of Representatives had no 
 right to determine whether any vote should be received 
 or rejected. Floyd, in moving that *' the electoral votes 
 of Missouri have this day been counted and do constitute 
 a part of the majority of 231 votes given for President 
 and of 218 votes for Vice-President," said: "Let us know 
 whether Missouri be a State of the Union or not. Sir, 
 we cannot take another step without hurling this Govern- 
 ment into the gulf of destruction. For one, I say I have 
 gone as far as I can go in the way of compromise ; and if 
 there is to be a compromise beyond that point, it must 
 be at the edge of the sword." Randolph supported 
 Floyd at great length and with much vehemence, but 
 finally gave place to Clay, who moved to table Floyd's 
 resolution, which was carried by a large majority. On 
 Clay's motion the Senate was invited to return "to con- 
 tinue the enumeration of votes, according to the joint 
 resolution agreed upon between the two Houses." In 
 the resumed joint session when the votes had all been 
 enumerated, as the president of the Senate was declaring 
 the result, Floyd rose to inquire whether Missouri's votes 
 were to be counted or not. Randolph also tried to inter- 
 pose, but both were ruled out of order and the election 
 announced amid considerable murmuring, in accordance 
 with the "alternative count " provided for in Clay's and 
 Barbour's resolutions. As the Senate retired from the 
 joint meeting, Randolph was heard addressing the House. 
 
4^ The Electoral System 
 
 Although wrong in his previous contention that the votes 
 of Missouri should be counted, he correctly declared that 
 there had never before been any other proclamation than 
 one stating "the whole number of votes given in," 
 whereas, upon this occasion, no such annunciation was 
 made. He therefore moved two resolutions: one, that 
 the electoral vote of the "State of Missouri" had that 
 day been counted, and the other that the whole number 
 of electors appointed and votes given had not been an- 
 nounced agreeably to the provisions of the Constitution, 
 and that therefore the proceedings were irregular and 
 illegal. Before a vote could be had upon these resolu- 
 tions a motion to adjourn was carried. 
 
 The second occasion on which the duty of electing a 
 President devolved upon the House of Representatives 
 was in 1825, when John Quincy Adams, Jackson, Clay, 
 and Crawford were the leading candidates for the presi- 
 dency. It was known throughout the Union in advance 
 of the opening of the certificates in February that no 
 candidate had a majority of the electoral votes, and that 
 the election would be thrown into the House of Repre- 
 sentatives, unless votes for one candidate should be trans- 
 ferred to another. Under the Twelfth Amendment the 
 House was limited to a choice from the three highest 
 names upon the list. The usual joint committee of both 
 Houses was raised, but the concurrent resolution, antici- 
 pating the result of the electoral vote, provided, as in 
 1 801, that if it should appear on the opening of the cer- 
 tificates and the counting of the votes that no person had 
 a majority of the votes of the whole number of electors 
 appointed, and that a member or members from two 
 thirds of the States were present, the House should im- 
 mediately proceed by ballot to choose a President from 
 the three highest on the list of the electoral votes. 
 
 On February 9, 1825, both the Houses assembled 
 in the House of Representatives. Tazewell, of Vir- 
 
Counting — 1793 Until 1857 47 
 
 ginia, was appointed a teller for the Senate; Taylor, of 
 New York, and Barbour, of Virginia, were the tellers for 
 the House. The president of the Senate opened the 
 certificates and handed them to the tellers, who recorded 
 the count, which showed that out of 182 electoral votes 
 Adams had 84, Clay 37, Crawford 41, and Jackson 99; 
 Calhoun, receiving 182 electoral votes, was declared 
 elected Vice-President. The House was extremely punc- 
 tilious about its assumed prerogatives, for its tellers 
 presented themselves in front of the Speaker of the 
 House, and not to the president of the Senate. No one 
 having been elected President, the Senate withdrew, and 
 the House proceeded to ballot for a President, with the 
 result that Adams received the votes of thirteen States, 
 Jackson of seven, and Crawford of four. On no occasion 
 since 1825 has an election for the presidency fallen to the 
 House of Representatives. 
 
 The electors, in 1824, were chosen by the Legislature in 
 Delaware, Georgia, Louisiana, New York, South Caro- 
 lina, and Vermont. In other States, the popular vote, 
 dismissing minor figures, stood as follows : For Jackson, 
 155,800; Adams, 105,300; Crawford, 44,200; Clay, 46,- 
 500. Jackson, as a military hero, was high in public 
 esteem, and a feeling not altogether unreasonable pre- 
 vailed in many quarters that the large popular plurality 
 for him indicated that he ought to be chosen President. 
 The idea that Jackson, as the most popular candidate, 
 ought to have been selected by the House of Represent- 
 atives undoubtedly aided in creating the sentiment which 
 was successful in placing him in the presidential chair in 
 1829.* As in 1 801, the election in the House of Repre- 
 
 ^ The New York Senate, in 1828, passed a series of resolutions declaring 
 that the election of John Quincy Adams by the House of Representatives 
 was in defiance of the clear and undoubted sense of the American people, 
 and in consequence of systematic efforts to prevent a choice by the elec- 
 toral college, and urging an amendment to the Constitution, giving the 
 choice of President and Vice-President to the people. 
 
4^ The Electoral System 
 
 sentatives was not conducted without secret intrigues or 
 unjust calumnies. The unfounded charge against Clay is 
 well known, that he bartered votes in his favor to Adams 
 in consideration of the promise of future preferment. 
 And when Adams offered him the portfolio of State, 
 Clay's enemies, unsupported as was the charge of a bar- 
 gain, professed themselves convinced of its existence, nor 
 did that distinguished patriot ever fully escape from this 
 imputation.' 
 
 ^ In 1837, the resolution adopted by the two Houses 
 provided for counting Michigan's vote in the alternative. 
 Michigan's case was somewhat like that of Missouri in 
 1 82 1. The State was admitted by formal proclamation 
 on January 26, 1837. Hence she was not a State when 
 the electors voted, but was such at the date of the 
 electoral count. When the Houses convened in joint 
 meeting, the president of the Senate announced that in 
 pursuance of the provisions of the Constitution he would 
 proceed to open the votes and deliver them to the tellers 
 in order that they might be counted ; after the report of 
 the tellers he declared that if the votes of Michigan were 
 to be counted, the result would be, for Martin Van Buren 
 for President of the United States, 170 votes, but with- 
 
 ' The presidential election of 1824 is worthy of note because it brought 
 to an end the practice of caucus nominations for the presidency by mem- 
 bers of Congress. 
 
 No objections were made, says Stanwood, to any votes at the time of 
 the count ; but in May, after the election, Mr. Wilde of Georgia introduced 
 in the House of Representatives a resolution that a message be sent to the 
 Senate requesting copies of all the certificates of electoral votes. In a long 
 speech he gave his reason for making this motion, which was that few of 
 the certificates were strictly correct and in due form. They either did not 
 assert that the electors voted in district ballots for President and Vice- 
 President, or did not report a vote by ballot, — district ballots being required 
 by the Constitution. The resolution was opposed on the ground that it was 
 too late and that " the elections in the States are not subject to revision by 
 Congress, and, on motion, was laid on the table." — Stanwood, A History 
 of the Presidency^ p. 137. 
 
Counting — 1793 Until 1857 49 
 
 out the votes of Michigan, 167 votes, and in either event 
 Van Buren was elected. 
 
 The effect of the choice by a State of electors declared 
 to be ineligible by the Federal Constitution was first dis- 
 cussed in the proceedings of this year. When the usual 
 resolution for the appointment of a committee was moved 
 in the Senate, an amendment was voted on Clay's motion 
 to authorize the committee 
 
 " to inquire into the expediency of ascertaining whether any 
 votes were given at the recent election contrary to the prohi- 
 bition contained in the second section of the second article of 
 the Constitution; and, if such votes were given, what ought to 
 be done with them; and whether any and what provision ought 
 to be made for securing the faithful observance in future of 
 that section of the Constitution." 
 
 The resolution was approved by the House. The report 
 of the committee, of which Felix Grundy, Henry Clay, 
 and Silas Wright were members on the part of the Senate, 
 contained the following interesting and important clauses : 
 
 " The committee are of opinion that the second section of 
 the second article of the Constitution which declares that ' no 
 Senator or Representative, or person holding an office of trust 
 or profit under the United States, shall be appointed an elector, 
 ought to be carried, in its whole spirit, into rigid execution, in 
 order to prevent officers of the general Government from 
 bringing their official power to influence the elections of Presi- 
 dent and Vice-President of the United States. This provision 
 of the Constitution, it is believed, excludes and disquafifies 
 deputy postmasters from the appointment of electors; and the 
 disqualification relates to the time of the appointment, and that 
 a resignation of the office of deputy postmaster, after his ap- 
 pointment as elector, would not entitle him to vote as elector 
 under the Constitution." 
 
 " Should a case occur in which it became necessary to 
 ascertain and determine upon the qualifications of electors of 
 President and Vice-President of the United States, the im- 
 
so The Electoral System 
 
 portant question would be presented: What tribunal would, 
 under the Constitution, be competent to decide? Whether the 
 respective colleges of electors in the different States should 
 decide upon the qualifications of their own members, or Con- 
 gress should exercise the power, is a question which the com- 
 mittee are of opinion ought to be settled by a permanent 
 provision upon the subject." 
 
 In the debate in the House of Representatives upon 
 the report of the joint committee, Mr. Francis Thomas, 
 chairman of the House committee, stated that the com- 
 mittee came unanimously to the conclusion that they 
 (the postmasters in question) were not eligible at the time 
 they were elected and therefore the whole proceeding was 
 vitiated ab initio. The notion that the title of an elector 
 de facto, an elector who had cast his ballot for President 
 or Vice-President, could not be impeached, was appar- 
 ently not suggested. No "permanent provision upon 
 the subject" had been made by Congress, and conse- 
 quently all the perplexing questions suggested by the 
 joint committee came iip for decision at that time, with- 
 out any prior law for their determination. The debates 
 evoked one very telling query. One Senator asked 
 Grundy, the chairman of the Senate committee, what 
 course would have been pursued had the vote of Michi- 
 gan been essential in the count, to which Grundy replied 
 that he could not "answer a question which the wisest 
 of their predecessors had purposely left undetermined. 
 What might be done under the circumstances adverted 
 to, should they ever occur, the wisdom of the day must 
 decide." ^ 
 
 ' For the first and the only time in the history of the nation the Senate 
 was on this occasion called upon to perform its constitutional duty of elect. 
 ing the Vice-President. The electoral count had showed that Richard M. 
 Johnson, of Kentucky, and Francis Granger, of New York, had each 147 
 electoral votes, including those of Michigan, or 144 without them, and 
 either count was a majority. The Senate subsequently chose Johnson 
 Vice-President. 
 
Counting — 1793 Until 1856 51 
 
 The question of the legality of the action of State 
 electors was presented in a different form in 1857, when 
 discussion arose over the vote of Wisconsin. Congress, 
 by the Act of March i, 1792, had provided that the 
 electors of the several States should meet for the purpose 
 of balloting for President on the first Wednesday of De- 
 cember. The Constitution required that this day should 
 be uniform throughout the United States to "close the 
 opportunity as much as possible against negotiation, in- 
 trigue, and corruption." The Wisconsin electors were 
 unable to reach the State capital on the day fixed by law 
 because of a violent snow-storm, but they actually as- 
 sembled and voted on the next succeeding day. Their 
 certifieate was transmitted to the president of the Senate 
 with an explanation of the circumstances that had pre- 
 vented their meeting on the prescribed day. The usual 
 joint committee was selected "to ascertain and report a 
 mode of examining the votes for President and Vice- 
 President of the United States, and of notifying the per- 
 sons elected of their election." In the joint meeting of 
 the two Houses of Congress, on February 11, 1857, when 
 the vote from Wisconsin was reached, the tellers reported 
 that the certificate of the electors of that State showed 
 that the electoral vote of that State had not been cast 
 on the day prescribed by law. Objection was made by 
 Letcher, of Virginia, to the reception of the vote, but the 
 presiding officer. Senator Mason, of Virginia, ruled that 
 debate was out of order while the tellers were occupied 
 with the count. When the tellers' statement had been 
 completed, it showed that the five votes of Wisconsin 
 cast for Fremont and Dayton on December 4th were in- 
 cluded; and Jones, of Tennessee, one of the tellers, in 
 announcing the report to the joint meeting, declared that 
 the tellers found all the votes regular and cast on the day 
 prescribed by law, except in the case of the votes cast by 
 the electors of the State of Wisconsin, which were cast 
 
52 The Electoral System 
 
 on December 4th, instead of December 3d, as prescribed 
 by law. The report then proceeded as follows : ''All the 
 returns show that James Buchanan, of the State of Penn- 
 sylvania, received 174 votes for President of the United 
 States; that John C. Fremont, of the State of California, 
 received — including the votes of Wisconsin — 114 votes for 
 President of the United States. " Letcher again inquired 
 whether it would now be in order to move to exclude the 
 vote of Wisconsin from the count, but the president 
 again ruled debate not in order. This impelled Senator 
 Crittenden, of Kentucky, to ask whether the chair de- 
 cided "that Congress, in no form, has power to decide 
 upon the validity or invalidity of a vote." The presid- 
 ing officer replied that he had made no such ruling, but 
 that, in his opinion, under the law and the concurrent 
 order of the two Houses, 
 
 '* nothing can be done here, but to count the votes by tellers, 
 and to declare the vote thus counted to the Senate and the 
 House of Representatives sitting in this chamber. What 
 further action may be taken, if any further action should be 
 taken, will devolve upon the properly constituted authorities 
 of the country — the Senate, or the House of Representatives, 
 as the case may be." 
 
 He then proceeded to recapitulate the votes as announced 
 to the joint committee, stating that the tellers reported 
 the whole number of electors to be 296, that, according 
 to the vote, "as delivered by the tellers," Buchanan and 
 Breckenridge had each 174 votes and Fremont and Dayton 
 each 114, and thereupon declared Buchanan and Brecken- 
 ridge President and Vice-President. This provoked ob- 
 jections from political friends and foes in both Houses, 
 Senators Toombs, Butler, and Crittenden being especially 
 earnest in their protest that the effect of this declaration 
 was to include the Wisconsin vote. A spirited debate 
 began, but Senator Cass thereupon objecting that debate 
 
Counting — 1793 Until 1857 53 
 
 was not permissible in a joint meeting, the presiding 
 officer, after further discussion, so ruled, the Senate re- 
 turned to its own hall, and the certificate of the tellers 
 was never read to the joint session. It has been often 
 said that the president of the Senate on this occasion 
 counted the votes of Wisconsin, but the record shows 
 that he disclaimed authority to count, and that all he did 
 was to announce what votes had been received by the 
 tellers, without question of their legality, and to declare 
 the result to the two Houses.' As Wisconsin's vote was 
 of no moment as affecting the election, this clever evasion 
 met with ultimate acquiescence, although a violent debate 
 arose in each House when the joint session was dissolved. 
 A number of Republicans, prominent among whom 
 were Hale, in the Senate, and Washburn, of Maine, in 
 the House, insisted that the vote of Wisconsin ought to 
 be counted. Seward expressed his doubt but sustained 
 the action of the chair. Hale argued that as the people 
 of Wisconsin had done all in their power to express their 
 voice in the presidential election, the penalty of disfran- 
 chisement should not be visited upon them, since it was 
 through unavoidable accident that the electors had failed 
 to arrive at the State capital on December 3d. Critten- 
 den and Thompson, of Kentucky, affirmed the Consti- 
 tution to be inexorable in its requirement that all the 
 votes must be given on a particular day. To the majority 
 of the Senate the more important questions were whether 
 
 ' " In reference to one State, the State of Wisconsin, the tellers have re- 
 ported that the vote of that State was cast on a day different from that pre- 
 scribed by law. The presiding officer is not aware that what effect, if any, 
 such a difference would have on the vote of that State can be decided by 
 him. Nor is it his duty to decide upon whom devolves the duty of deter- 
 mining what the effect may be. The presiding officer is further required 
 [under the concurrent rules of the two Houses] to declare the whole vote as 
 given. That duty he has discharged. He is further required to declare 
 who has received a majority of the whole vote from the list delivered to 
 him by the tellers, and to declare such person elected President or Vice- 
 President as the case may be." 
 
54 The Electoral System 
 
 the President had in fact counted Wisconsin's vote, which 
 he maintained he had not (and in this, numerous Senators 
 supported him), and, especially, where the power to count 
 resided. Upon this last question the widest possible 
 differences of opinion were developed in the two Houses. 
 It was argued that the president of the Senate was to de- 
 termine what votes should be counted or rejected, and 
 that it was his duty, and his duty alone, to ascertain 
 whether they were valid votes. To others, such a view 
 involved a usurpation by that officer of the powers of 
 Congress, and would make the president of the Senate 
 an authority greater than Congress itself. Some claimed 
 that as the House alone was to elect, in case no candidate 
 had a majority of electoral votes, that body was the sole 
 tribunal to pass upon Wisconsin's vote, while others 
 argued that the two Houses sitting separately were the 
 constitutional arbiters of all such questions. The theory 
 first suggested in the debates of 1800 was again presented, 
 that the Houses in joint session formed one body, in 
 which a vote should be had per capita. Senator Pugh, 
 of Ohio, after arguing that at no stage of the joint pro- 
 ceedings had dissent from the reception of the vote been 
 held to be in order, said : 
 
 " I believe the two Houses assembled together were a board 
 of canvassers organized by the Constitution for the express 
 purpose of counting these votes. The whole number of Sen- 
 ators and Representatives taken together is equal to the whole 
 number of electors in all the colleges. . . . All the States, 
 if they had voted there yesterday through their Senators and 
 Representatives, would have exercised the precise power which 
 they exercised in the election of President " ; 
 
 and have cast their votes per capita^ as the Representa- 
 tives and Senators from each State had the same number 
 of votes as the State in the electoral college. Mallory, 
 of Kentucky, answered that this was introducing a third 
 
Counting — 1793 Until 1857 55 
 
 mode of electing the President, unknown to the Consti- 
 tution. The view was strongly advocated that, as the 
 law then stood there existed no competent authority 
 to decide upon the validity or invalidity of the votes. 
 Charles E. Stuart, of Michigan, and Benjamin, of Louis- 
 iana, urged the Senate to pass a general act providing 
 that votes not cast on the day required by law should 
 not be counted. Stuart, maintaining that the presiding 
 officer had simply fulfilled his duty in the announcement 
 he had made as to the vote, thus put the dilemma : 
 
 ** Either the presiding officer is bound to count all the votes 
 that are certified to him by the State authorities, or else the 
 presiding officer, under the present law, and he alone, has the 
 right to decide whether he will count or reject them. . 
 In either event, it will be conceded, I think, by every Senator, 
 that it is a dangerous power. It is dangerous to leave it to 
 the certifying officers or the electors themselves, who make the 
 certificates on the part of the States; it is dangerous to leave 
 it in the hands of the presiding officer of the Senate ; but irt 
 one or the other it rests; and I submit that to undertake to 
 say that it rests in the two Houses assembled together en masse 
 to decide such a question would fall but little short of revo- 
 lution." 
 
 The vital point was touched by Stuart when he declared 
 that it was "imperative on Congress by legislation to de- 
 termine definitely what should be done in such a case," 
 and in this view Hale, Collamer, Seward, and others 
 joined. Thompson, of Kentucky, asserted that the 
 Senate was the counting power, "and the House of 
 Representatives are admitted to be present at the count 
 to prevent a combination, a clandestine operation, a 
 secret measure, a coup d'etat ",• and he added later, that 
 the House could "fall back upon their parliamentary or 
 revolutionary rights, whatever they were, if we did 
 wrong." In the House, Humphrey Marshall, of Ken- 
 
5^ The Electoral System 
 
 tucky, arguing that the president of the Senate had 
 usurped the right to count the votes, denied that a vote 
 could be taken per capita ^ and insisted that until the 
 House of Representatives agreed to the vote offered it 
 was not constitutionally counted, nor could the president 
 of the Senate declare a result to which the House had 
 not agreed. Washburn thought there was a casus omissus 
 and that 
 
 "it is of the highest importance that there should be some 
 legislation on this subject. All that we can now do is to 
 acquiesce in the decision that has been made, and to set our- 
 selves to work immediately for the passage of a law which will 
 prevent any trouble or difficulty of this kind in the future. I 
 received a letter but a few days ago from a gentleman eminent 
 for his wisdom and ability, who stated therein that Chancellor 
 Kent, of New York, had told him that here was clearly a casus 
 omissus J that there was no power either in the House or Senate 
 or in a joint convention, to interfere and participate authorita- 
 tively in counting and declaring the votes and deciding upon 
 their validity ; and he said that the Chancellor added that he 
 feared the time might come when the country would be shaken 
 to its centre on this point. We cannot," he eloquently con- 
 cluded, "over-estimate the importance of such a law [a general 
 law]. Let the election of President depend upon the vote of 
 a single State, and let that vote be contested in earnest, what 
 weight or power would the decision of one man have with the 
 country, or would that of Congress possess, acting arbitrarily, 
 without law, without rules and orders of proceeding, and with 
 a view to making the President, rather than ascertaining who 
 had been duly elected by the people. Suppose the will of the 
 people defeated by a partisan president of the Senate, or a 
 partisan majority of Congress, . . . what shall save us 
 from revolution?" 
 
 The debate ran through two days in each House, but 
 was unproductive of any result. It was closed by a reso- 
 
Counting — 1793 Until 1857 57 
 
 lution, emanating from the joint committee, of notifica- 
 tion to the successful candidates of their election. 
 
 The antagonisms of opinion were hopelessly irreconcil- 
 able. While the wiser and cooler heads saw the necessity 
 of general legislation to settle all questions arising upon 
 the count, such legislation was not then possible. The 
 count had not yet vitally affected the election, and each 
 Congress, realizing the difficulties of framing a general 
 enactment, was glad to postpone the task. Thirty years 
 after the controversy over the Wisconsin vote Congress 
 first passed such a law, the merit of which yet remains to 
 be tested. But before that law could be enacted, an 
 occasion arose when alternative counting was out of the 
 question, and the nation, in the peril so clearly foreseen 
 by Chancellor Kent, had to devise an emergency plan to 
 escape anarchy. 
 
CHAPTER III 
 
 THREE THEORIES OF COUNTING — THE BILL OF 180O 
 
 BEFORE reviewing the difficulties which arose in con- 
 nection with the electoral count after 1857, it may 
 be well to rehearse concisely the course of development 
 from 1789 to 1857. Three theories or interpretations of 
 the clause of the Constitution in regard to the opening 
 of the certificates and counting of the votes have held 
 sway at different times, says McKnight in his treatise 
 upon The Electoral System of the United States : 
 
 " The first is that the president of the Senate shall count 
 the votes ; the second, that there is a casus omissus in that re- 
 gard; and the third is, that the two Houses present shall 
 count. . . . From the time of the first Congress in 1789 
 to the year 182 1, history shows that the unquestioned custom 
 was for the president of the Senate to ' declare ' the votes 
 officially, while counting was, what the language of the law 
 would seem to convey clearly enough, simple enumeration." 
 
 During this period, McKnight remarks, the framers of 
 the Constitution occupied the seats of honor in the na- 
 tion, and particularly during the first fifteen years were 
 conspicuous in the halls of Congress. **From 1821 to 
 1 861, it was generally held that a casus omissus existed 
 in the Constitution, and that no one was empowered to 
 'count'; whilst counting was used in the broader and 
 unwarranted sense of 'canvassing.' " But in the early 
 practice no difficulties arose to make counting more than 
 
 58 
 
Three Theories of Counting 59 
 
 simple enumeration; whereas, in 1821, 1837, and 1857, 
 questions touching the validity of the certificates trans- 
 mitted to the Senate required a determination by some 
 competent authority, in accordance with some clearly 
 applicable law, as well as a simple count. As was re- 
 peatedly asked in debates, when the Constitution says 
 the votes shall be counted, what votes are intended? 
 While some laid stress on the word "count," others put 
 the emphasis on the word "votes." If votes claimed to 
 be irregular or invalid were opened, their validity or in- 
 validity had to be settled before counting could properly 
 take place. The third theory, which according to 
 McKnight, became operative in 1861, is that Congress 
 possesses the right to count, i,e.y to enumerate as "an 
 affirmative act," and "that the votes are, of course, the 
 legal votes, which thus devolves on Congress the power 
 also to determine their legality." McKnight's view is 
 that this assumption by Congress is an unwarranted 
 usurpation. One of the clearest and most sagacious of 
 our historians, the late Alexander Johnston, says : 
 
 " In this first period, there is no instance of a declaration 
 of the electoral canvass by any other power than the president 
 of the Senate, and the only open attempt to pervert the system 
 was the Federalist bill of 1800. As the certificates which the 
 president of the Senate, in the absence of an authenticating 
 law, decided to be valid were opened, he passed them to the 
 tellers appointed by the two Houses, who * counted * them in 
 the proper meaning of the word. The certificates of election 
 which were made out by order of Congress from 1797 until 182 1, 
 all contained the distinct affirmation that * the president of the 
 Senate did, in the presence of the said Senate and House of 
 Representatives, open all the certificates and count all the votes 
 of the electors." 
 
 But no case of double or contested returns occurred. As 
 
6o The Electoral System 
 
 exhibiting the growth of the claim of congressional power 
 Johnston says that 
 
 "an amendment to the Constitution was introduced in Con- 
 gress in January and February, 1798, for the purpose, among 
 others, of giving Congress the very power of decision upon 
 'contests ' which it now exercises without such an amendment, 
 but this was not adopted, nor was it inserted in the Twelfth 
 Amendment." 
 
 The progressive changes of language in the messages 
 from the two Houses announcing their readiness to attend 
 the count are, he says, worthy of notice. 
 
 "They are as follows: (1793-1805) that they are ready to 
 meet one another ' to attend at the opening and counting of 
 the votes'; (1809 and 1813) ' to attend in the opening and 
 counting of the votes '; (1817) * to proceedin opening the cer- 
 tificates and counting the votes * or ' to proceed to open and 
 count the votes,' the former being that of the Senate and the 
 latter that of the House. These changes are landmarks." 
 
 Johnston argues cogently that the views of Pinckney in 
 1800, and of John Randolph in 1821, were sound, and 
 that Congress doubly violated the Constitution in 1821, 
 ** first by usurping control of the canvass and second by 
 refusing to fulfil the charge that the 'votes shall then be 
 counted,' " for the count of the votes was evaded and an 
 "alternative count" substituted. And the evasion was 
 repeated in 1837 and again in 1857. It was predicted 
 again and again in the course of debates that some ade- 
 quate general legislation was imperative upon Congress, 
 because the occasion might arise (as it did in 1877) when 
 the acceptance or rejection of a contested vote would 
 determine the election. From the early period it will be 
 found also that there was a gradual assumption of au- 
 thority by the tellers, for whose appointment there is no 
 
Three Theories of Counting 6i 
 
 warrant in the Constitution, who were originally merely 
 clerical officers appointed to facilitate the work of the 
 president of the Senate and examine and add up the 
 votes. The contrary theory that the power to count 
 belongs to the two Houses of Congress in the joint meet- 
 ing provided for in the Constitution has been forcibly 
 presented in the following terms : 
 
 " The exclusive jurisdiction of the two Houses to count the 
 electoral votes by their own servants and under such instruc- 
 tions as they may deem proper to give on occasions arising 
 during the counting, or by previous concurrent orders, or by 
 standing joint rules, or by the formal enactments of law, has 
 been asserted from the beginning of the government; that 
 exclusive jurisdiction has been exercised at every presidential 
 election from 1793, when a regular procedure was first estab- 
 lished, until and including the last count of electoral votes in 
 1873. It was exercised by concurrent orders of the two 
 Houses from 1793 to 1865, and by a standing joint rule in 
 1865, 1869, and 1873. Every counting at these twenty-one 
 successive presidential elections has been conducted under and 
 governed by the regulations thus imposed. These regulations 
 have prescribed every step in the procedure; have defined and 
 regulated the powers of every person who has participated in 
 any ministerial service in the transaction. They have con- 
 trolled every act of the president of the Senate in respect to 
 the counting, except the single act of opening the packages 
 of the electoral votes transmitted to him by the colleges, which 
 is a special duty imposed on him by the Constitution. During 
 all this long period, the exclusive jurisdiction of the two 
 Houses, exercised upon numerous successive occasions, has 
 never, in a single instance, been the subject of denial, dispute, 
 or question. 
 
 *' The president of the Senate, although he has regularly, in 
 person or by some substitute appointed by the Senate, per- 
 formed the constitutional duty of opening the electoral votes, 
 has never, on any occasion, or in any single instance, attempted 
 
62 The Electoral System 
 
 to go a step beyond that narrow and limited function. . . . 
 The two Houses have also asserted the right to prescribe a 
 permanent method of counting the electoral votes." ^ 
 
 These arguments shovv^ the opposing attitude of jurists 
 and constitutional lawyers, both in and out of Congress, 
 from the inception of the Government almost to the 
 present day. 
 
 An act of Congress declaring what constitutes a State 
 and when a Territory has ripened into Statehood would 
 have prevented all controversy over Missouri's vote and 
 so also a law prescribing whether or not the Constitution 
 is mandatory in requiring all electors to vote on the 
 same day would have rendered the turmoil over Wiscon- 
 sin's vote impossible. The simple act of counting in 
 accordance with such a previously enacted law would 
 then have been nothing more than a ceremony even had 
 it been performed by the president of the Senate. If it 
 would have been a usurpation for the president of the 
 Senate to decide, in the absence of law, whether Missouri 
 was entitled to vote or whether the Wisconsin electors 
 had cast valid ballots, it would have been equally a usur- 
 pation for Congress in the joint meeting of the Houses 
 to undertake to answer these questions. The confusion 
 in the minds of statesmen arose from the absence of a 
 general law, but no such law was possible until a majority 
 in Congress agreed as to the true constitutional deposi- 
 tary of the counting power and as to the constitutional 
 subjects of legislation. 
 
 The bill of 1800, the title of which was "An act pre- 
 scribing the mode of deciding disputed elections of 
 President and Vice-President " was in reality the germ 
 from which eventually sprang the twenty-second joint 
 rule, the Morton bill of 1873 to govern the electoral 
 count, the Electoral Commission bill of 1877, and the act 
 
 ^ The Presidential Counts, by D. Appleton & Co., xli. 
 
The Bill of 1800 63 
 
 of February, 1887. The bill originated in the Senate, 
 which at that time was under Federalist control, and it 
 was designed to circumvent the ambition of the presiding 
 officer of that body. Yet its strongest and most eloquent 
 opponent was a member of the Federalist party. The 
 bill was ultimately defeated, because the amendments 
 added in the House of Representatives so completely 
 revolutionized and obliterated some of its radical features, 
 as to frustrate the purpose for which it was drawn. The 
 antagonism between the two Houses reveals the struggle 
 for mastery of the electoral count. The Senate plan 
 would have vested the final control in the Senate. 
 Whether the motive was sinister or not, such would have 
 been the result. The House struck out from the bill all 
 those features which gave the Senate control, and the 
 consequence was that the bill failed of passage. The de- 
 bate is unfortunately very scantily reported in the Aimals 
 of Congress. The Republicans generally were of the 
 opinion that the bill was aimed directly at the Pennsyl- 
 vania vote, which, it was assumed, would be cast by the 
 Legislature of that State. Duane charged in the Aurora 
 that its purpose was to enable the Federal majority in 
 Congress through a committee to reject that vote as 
 irregular. The importance of Pennsylvania's vote was 
 recognized by both parties. "If," wrote Jefferson to 
 Madison on March 8th, "Pennsylvania votes, then either 
 Jersey or New York giving a Republican vote, decides 
 the election. If Pennsylvania does not vote, then New 
 York determines the election." 
 
 On January 23, 1800, James Ross, of Pennsylvania, 
 whom the Federalists of that State had unsuccessfully 
 supported for governor the preceding year, offered a 
 resolution in the Senate that a committee be appointed 
 to consider whether any and what provisions ought to 
 be made by law for deciding disputed elections of Presi- 
 dent and Vice-President of the United States; and for 
 
64 The Electoral System 
 
 determining the legality or illegality of the votes given for 
 those officers in the different States. It is evident that 
 the votes referred to in the resolution were not popular, 
 but electoral votes; in a majority of the States electors 
 were chosen by the Legislature. The resolution was 
 passed after debate. Brown, of Kentucky, thought that 
 Congress had no right to legislate upon the subject. If 
 the provisions of the Constitution were incomplete or de- 
 fective, the remedy lay in recommending an amendment 
 to that instrument. Ross replied that the Constitution 
 made no provision upon the subject, but merely directed 
 that after the reception of the votes the certificates should 
 be opened and the votes counted. Suppose, said he, 
 persons should claim to be electors who had never been 
 properly appointed. Should their vote be received? 
 Suppose they should vote for a person to be President 
 who had not the age required by the Constitution, or 
 who had not been long enough a citizen of the United 
 States, or for two persons who were both citizens of the 
 same State. What would happen in such a case? He 
 therefore considered it their duty to make provision for 
 the contingency, and he believed this could be done by 
 an act of Congress. 
 
 Samuel Dexter, of Massachusetts, one of the foremost 
 lawyers of his age, supporting Ross, argued that the Con- 
 stitution gave Congress the power to enact the necessary 
 legislation. The power was contained in the eighth sec- 
 tion of the first article, and is this: "To make all laws 
 which shall be necessary and proper for carrying into 
 execution the foregoing powers, and all other powers 
 vested by this Constitution in the Government of the 
 United States or in any department or officer thereof." 
 Samuel Livermore, of New Hampshire, concurring with 
 Dexter, declared he never felt less doubt on any subject 
 than upon this of the power of Congress. But Abraham 
 Baldwin, of Georgia, who was one of the four members 
 
The Bill of 1800 65 
 
 of the Senate of 1800 that had been delegates to the con- 
 stitutional convention of 1787, found nothing to criticise 
 in the practice and proceedings of the electoral college 
 or in the count of the votes. When Senators and Repre- 
 sentatives met together in joint session, their only office 
 was "to judge of the authentication of the act of the 
 electors, and then to proceed and count the vote as 
 directed." If a body of the electors of all the States had 
 been directed by the Constitution to assemble in one 
 place, he took it for granted that none of the questions 
 underlying the legislation would have occurred. Every 
 one would have acknowledged that all these were to be 
 settled in that assembly. That it had been "deemed 
 more safe by the Constitution to form them into different 
 electoral colleges, to be assembled in the several States, 
 does not at all alter the nature or distinctness of their 
 powers or subject them any more to the control of the 
 other departments of the Government." He did not, 
 however, content himself with eulogy of the existing 
 methods, but observed further that, if such radical and 
 important changes were to be made as the resolution con- 
 templated, they must be made by proposing an amend- 
 ment to the Constitution, for they could not be made by 
 law without violating the Constitution. His argument is 
 of profound interest, not only as coming from a mem- 
 ber of the convention of 1787, but as containing the sub- 
 stance of the views of those who have opposed legislation 
 on the ground that it is inadequate and without warrant 
 in the organic law. In answer to Dexter, who had in- 
 voked the clause at the close of the eighth section of 
 Article I. of the Constitution, Baldwin denied that tbe 
 section "could be extended to this case." That sec-' 
 tion, he continued, 
 
 " speaks of the use of the powers vested by the Constitution 
 — this resolution relates to the formation of a competent and 
 
66 The Electoral System 
 
 essential part of the government itself; that speaks of the 
 movements of the government after it is organized ; this relates 
 to the organization of the executive branch, and is therefore 
 clearly a constitutional work, and to be done, if at all, in the 
 manner pointed out by the Constitution, by proposing an 
 article of amendment to the Constitution on that subject." 
 
 The constitutionality of the bill was assailed with great 
 ability by Charles C. Pinckney, of South Carolina, who 
 had been a very active member of the convention of 
 1787. "The value of Mr. Pinckney 's defence of the Con- 
 stitution," says McKnight, "is enhanced an hundredfold 
 by the fact that he, a Federalist and a candidate for 
 President on that ticket in the fall of this same year, was 
 the unrelenting opponent of a political measure offered 
 by his own party." Pinckney 's speech, according to 
 the Philadelphia Aurora^ was generally allowed to have 
 been equal in eloquence and strength of reasoning to 
 anything ever delivered in the halls of Congress. He 
 spoke unquestionably with profound conviction. The 
 Constitution, he truly maintained, had left the exclusive 
 control of the election with the States. In case the 
 State Legislatures should neglect or refuse to elect, there 
 was no power to compel them, nor to force them to legis- 
 late as to the manner in which electors should be chosen. 
 There is not, he said, 
 
 *' a single word in the Constitution which can, by the most tor- 
 tured construction, be extended to give Congress, or any branch 
 or part of our Federal Government, a right to make or alter 
 the State Legislatures' directions. I well remember," he con- 
 tinued, " it was the object [of the Constitutional Convention] 
 to give to Congress no interference in or control over the elec- 
 tion of President. ... It never was intended, nor could 
 it have been safe, in the Constitution, to have given to Con- 
 gress thus assembled in convention the right to object to any 
 votes, or even to question whether they were constitutionally or 
 properly given." 
 
The Bill of 1800 67 
 
 The few provisions of the Constitution as to the qualifica- 
 tions of electors or eligibility of candidates would, he felt 
 convinced, be faithfully observed by the States in the 
 performance of their function of appointing electors. 
 The point that if two different sets of electors should 
 insist that they were constitutionally elected, or that if 
 double returns should be transmitted, one certified by 
 the governor of the State, the other not, there was no 
 power, unless the States legislated affirmatively or Con- 
 gress passed some appropriate enactment, to remedy the 
 trouble and decide between the conflicting claims, Pinck- 
 ney did not meet, unless by the expression of his hope 
 that the States, in the exercise of their prerogatives, 
 would do their duty. It 
 
 " would be safer and less injurious to the interests of the peo- 
 ple that these few irregular votes, if transmitted and certified 
 by an executive, shall be received and counted, than that a 
 new and unknown power like this should be created, under 
 whose control not a few, but every vote that is given, must be 
 reviewed, and received or rejected as they decree. If the 
 bill is not passed, we are to depend, as we have hitherto done, 
 on the attachment of the States, and the good sense and 
 integrity of their executives." 
 
 The law of 1792, in his judgment, went to the verge of 
 the power of Congress. His criticisms of that feature of 
 the Senate bill which provided for the taking of testimony 
 were acute and just. It was also a great mistake to pro- 
 pose that the judiciary, an altogether separate branch of 
 the Government, should have anything to do with the 
 electoral count, and the remedy by taking testimony 
 would have been found utterly impracticable. 
 
 *Mt is very important," said Pinckney, *' in deciding on the 
 bill before you, to peruse this act of [1792] with great at- 
 tention; to recollect by whom, and when, and under what 
 
68 The Electoral System 
 
 circumstances, it was made. This law was passed in 1792, when 
 a number of able and well-informed men, who have been 
 since appointed to some of your most respectable situations 
 at home and abroad, and many who have voluntarily retired 
 with deserved and well-earned honor to private life, filled the 
 seats of both Houses of Congress; when the executive au- 
 thority was held by General Washington, for whom your 
 whole nation at present mourns. . . . And here, sir, let 
 me ask whether from a Congress thus ably formed, and from 
 an executive thus discerning and independent, as much 
 knowledge of the Constitution, its precise directions, and the 
 agency it intended Congress to have in counting the votes and 
 declaring the President, were not to have been expected, as 
 from the present. Were not the then executive, and a num- 
 ber of the members of both Houses, members of the convention 
 which framed the Constitution; and if it intended to give to 
 Congress, or authorize them to delegate to a committee of their 
 body, powers contemplated by this bill, could the Congress or 
 the President of 1792 have been so extremely uninformed, 
 and indeed ignorant of its meaning and of their duty, as not 
 to have known it ? " 
 
 But the experience of intervening years has taught the 
 nation that some legislation supplementing that of 1792 
 is necessary, or the Constitution is defective. As soon 
 as Pinckney had finished his address, the vote was taken 
 on the passage of the bill, which was carried by the close 
 vote of 16 to 12, Baldwin, Langdon, and Pinckney being 
 among those recorded against it. 
 
 The bill of 1800, as reported to the Senate, provided 
 that on the day prior to the opening of the electoral 
 votes each House should choose by ballot six persons, 
 who, with the chief justice of the United States (or one 
 of the associate justices), should form a grand committee. 
 The powers of the grand committee are thus set forth in 
 Section 8 of the bill : 
 
 " Sec. 8. The grand committee shall have power to inquire, 
 
The Bill of 1800 69 
 
 examine, decide, and report upon the constitutional qualifica- 
 tions of persons voted for as President and Vice-President of 
 the United States, upon the constitutional qualifications of 
 the electors appointed by the different States, and whether 
 their appointment was authorized by the State Legislature or 
 not; upon all petitions and exceptions against corrupt, illegal 
 conduct of the electors, or force, menaces, or improper means 
 used to influence their votes, or against the truth of their re- 
 turns, or the time, place, or manner of giving their votes; 
 Provided always that no petition or exception shall be granted, 
 allowed, or considered by the sitting grand committee, which 
 has for its object to dispute or draw into question the number 
 of votes given for an elector in any of the States, or the fact 
 whether an elector was chosen by a majority of the votes in 
 his State or district." 
 
 The grand committee was directed by the bill to make 
 a report showing the number of legal electoral votes for 
 each person, the number rejected and the reason for re- 
 jection. The report of the majority of the committee, 
 which was to be reached in secret session, was to decide, 
 finally all disputes and to determine the number of legal 
 votes. Under such a measure Congress was called upon 
 to resign its functions, if it had any, over the count, to a 
 committee so constituted that the Senate would always 
 control its decisions. Evidence of the ambition of the 
 Senate to become the deciding factor in any disputed 
 presidential election had appeared in some of the amend- 
 ments which, even at that early day, had been proposed 
 to the method of election : Humphrey Marshall, of Ken- 
 tucky in the Senate, on January 24, 1798, had offered 
 an amendment proposing among other things that the 
 electors distinguish in the ballots between President 
 and Vice-President and that the Senate elect the Vice- 
 President, should the electors reach no choice as to that 
 officer. The third section of his amendment may be 
 taken as an index of the spirit pervading that section of 
 
70 The Electoral System 
 
 the bill of 1800 which provides for the eventual control 
 of the grand committee, and was as follows : ** Should any 
 contest arise relative to any vote for President, the same 
 shall be determined by the Senate, or should any contest 
 arise relating to any vote for Vice-President, the same 
 shall be determined by the House of Representatives." 
 The grand committee was empowered to send for persons, 
 papers, and records, to administer oaths, and to punish 
 contumacious witnesses, as fully and absolutely as the 
 Supreme Court of the United States is able to do in suits 
 therein. 
 
 The bill as passed by the Senate is substantially the 
 bill reported to that body, the only important change 
 being in the composition of the grand committee. The 
 Senate decided (and rightly) that the Supreme Court 
 should have nothing to do with the count. The bill pro- 
 vided that each House should choose six of its members; 
 that the Senate should select three others of its own 
 number, from whom the House of Representatives should 
 choose one, to constitute the thirteenth member of the 
 grand committee. In other words, the Senate bill gave 
 that body the control of the grand committee and then 
 vested in the committee the final and absolute decision 
 of all questions touching disputed returns. Jonathan 
 Dayton alone, of the members of the Senate who had 
 been delegates to the constitutional convention of 1787, 
 voted for the bill. 
 
 The bill, as Jefferson wrote, "underwent a revolution 
 in the House of Representatives." John Marshall, who, 
 in the following year, was appointed by President Adams 
 Chief Justice of the Supreme Court of the United States, 
 was chairman of the select committee of the House to 
 which the bill was referred. Marshall expressed doubt 
 upon two points, whether the Senate should name the 
 chairman of the grand committee and whether the opin- 
 ion of that committee should be final. If we may rely 
 
The Bill of 1800 71 
 
 upon Jefferson,^ who was keenly interested in the fate of 
 
 the bill, 
 
 "Marshall made a dexterous mancEuvre; he declared 
 against the constitutionality of the Senate's bill, and proposed 
 that the right of decision of their grand committee should be 
 controllable by the concurrent votes of the two Houses of Con- 
 gress; but to stand good if not rejected by a concurrent 
 vote. You will readily estimate," wrote Jefferson, "the 
 amount of this sort of control," and he continued: "The 
 committee of the House of Representatives, however, took 
 from the committee the right of giving any opinion, requiring 
 them to report facts only, and that the votes returned by the 
 States should be counted, unless reported by a concurrent vote 
 of both Houses." 
 
 What the House committee actually did was to reduce 
 the functions of the grand committee to those of a simple 
 committee to take testimony and report to both Houses. 
 But the most momentous change which the House made 
 was in the eighth section of the bill, as to the procedure 
 in the Houses upon a disputed return. The vital expres- 
 sion of the House bill was: "And if the two Houses have 
 concurred in rejecting the vote or votes objected to, such 
 vote or votes shall not be counted, but unless both 
 Houses concur, such vote or votes shall be counted." 
 
 The amended bill passed the House on May 2d, by a 
 vote of 52 to 37, and was returned to the Senate, which, 
 on May 8th, amended by substituting the word "admit- 
 ting" for "rejecting." To this proposed amendment of 
 the Senate the House refused to agree, by a vote, on 
 May 9th, of 73 to 15, Harper, of South Carolina, and 
 Bayard, of Delaware, both arguing that the Senate 
 amendment had very materially changed the principle of 
 the bill, inasmuch as it would put it in the power of one 
 or two members of either House to require the majority 
 
 ' Jefferson to Edward Livingston, 1800. Randall's Jefferson, vol. ii, 526. 
 
72 The Electoral System 
 
 of both Houses to admit a vote or votes; in default of 
 which the whole vote of a State might be rejected. This, 
 it was argued, was contrary to the maturely expressed 
 will of the House. The Senate refusing to recede, the 
 bill was lost. Thus the effort to provide a method for 
 the settlement of disputes in regard to electoral returns 
 resulted in failure, because of an irreconcilable conflict 
 between the two Houses upon the question whether one 
 House alone had the right to reject the vote of a State 
 or the power resided concurrently in the two Houses. 
 It may seem extraordinary that the Federalists, who had 
 a majority in the House of Representatives, could not 
 pass the Ross bill through that body. Jefferson, in com- 
 menting upon their inability to "carry a single strong 
 measure through the Lower House, during the whole 
 session," wrote to Madison that "when they met it was 
 believed they had a majority of twenty, but many of 
 these were new and moderate men and soon saw the true 
 character of the party, to which they had been well dis- 
 posed when at a distance." 
 
 While the subject was under consideration in the 
 House, Albert Gallatin disapproved of the provision in- 
 corporated in the House bill that, in case of doubt, the 
 two Houses should separate to their respective chambers 
 to consider the votes which were objected to, and 
 proposed as a substitute that if questions should arise 
 at the counting of the votes, they should be submitted, 
 without debate, to be decided by a majority of the mem- 
 bers of both Houses present in the joint session. His 
 motion evoked a long debate, but was defeated by the 
 very close vote of 46 to 44. The idea that the two 
 Houses assembled in joint session have lost their separate 
 identity, and are merged in one body having constitutional 
 jurisdiction over all questions touching the electoral 
 count, reappeared in the debates in 1857 and 1876, and 
 in various forms was broached in the debates culminating 
 
The Bill of 1800 73 
 
 in the Act of 1887. The propriety of either House 
 retiring from the joint session has often been discussed. 
 The Constitution requires the count to proceed in the 
 presence of the two Houses, and it has been persuasively 
 argued that no step can be taken unless both Houses are 
 present. 
 
 In 1824, Martin Van Buren, as the organ of the Judi- 
 ciary Committee of the Senate, in response to a resolution 
 passed December i6, 1823, that the committee ascertain 
 and report what the public interest and the public safety 
 required in regard to the count of electoral votes, re- 
 ported a bill. This bill, in which, as Senator Conkling 
 said, in 1877, **the ultra pretensions of the Senate were 
 abandoned," passed the Senate on April loth, but not 
 without objection by Macon, of North Carolina, one 
 of the ablest Senators of that day, that it went beyond 
 the constitutional power of Congress. The House re- 
 ferred the bill to its Committee on Judiciary, of which 
 Webster was the chairman, and it was reported back 
 without amendment by Webster, but no further ac- 
 tion was taken. The bill provided, among other things, 
 that on the first occasion when the votes were to be 
 counted, the joint meeting should be held in the hall of 
 the House, and on all future occasions "in the centre 
 room of the capitol," which, said Senator Conkling in 
 the debate of January, 1877, was the rotunda. "They 
 were to meet under the dome of the capitol on neutral 
 ground between the two halls." As to the procedure 
 the bill prescribed that the packet containing the certifi- 
 cates from the electors of each State should then be 
 opened by the president of the Senate, beginning with 
 the State of New Hampshire, and 
 
 "if no exceptions are taken thereto, all the votes contained in 
 such certificates shall be counted; but if any exception be 
 taken, the person taking the same shall state it in writing, 
 
74 The Electoral System 
 
 directly and not argumentatively, and sign his name thereto; 
 and, if the exception be seconded, each House . . . shall 
 immediately retire, without question or debate, to its own de- 
 partment, and shall take the question on the exception, with- 
 out debate, by ayes and noes. So soon as the question shall 
 be taken in either House, a message shall be sent to the other 
 informing them of the decision of the question, and that the 
 House sending the message is prepared to resume the count; 
 and when such message shall have been received by both 
 Houses, they shall again meet in the same room as before, and 
 count shall be resumed. And if the two Houses have con- 
 curred in rejecting the vote or votes objected thereto, such 
 vote or votes shall not be counted; but unless both Houses 
 concur, such vote or votes shall be counted." 
 
 The bill of 1800 having failed because of the hopeless 
 division of opinion betw^een the two Houses of Congress, 
 and differences of view as to the respective powers of the 
 Houses developing from time to time, and a like fate 
 overtaking the bill of 1824, no further legislation was 
 attempted by Congress until 1865, with the single excep- 
 tion of the Act of 1845.' 
 
 ' In 1845, for the first time, the words "college of electors," or "elec- 
 toral college," appear in any legislation. They are first found in the de- 
 bates, about 1800. 
 
CHAPTER IV 
 
 COUNTING, 1861-1873— THE MORTON BILL 
 
 WHEN the two Houses met for the purpose of 
 opening the electoral certificates on February 
 13, 1 861, eleven of the States of the Union had seceded 
 and had attempted to organize a government known as 
 the Confederate States of America. Returns had been 
 transmitted from the seceding States to the president of 
 the Senate in the preceding December, but upon the 
 theory that there was "an indissoluble union of inde- 
 structible States," these States were still within the 
 Union, and their electoral votes, having been given while 
 they were constituent parts of the Union, were entitled 
 to be counted, and all the votes were, in fact, counted. 
 The usual joint committee was appointed. Nothing 
 occurred to mar the tranquillity of the proceedings. 
 The president of the Senate, Breckenridge, of Ken- 
 tucky, who declared the result, subsequently became a 
 major-general in the Confederate army. 
 
 In 1864, parts of Louisiana and Tennessee having been 
 occupied by the forces of the United States, President 
 Lincoln, in conformity with the proclamation issued by 
 him in August, 1861, authorized State governments to 
 be organized, and these appointed presidential electors 
 in November, 1864. The electors in these States had 
 assembled, voted, and transmitted certificates to the 
 president of the Senate. The leaders in Congress fore- 
 saw a renewal of the fierce discussion of 1857 regarding 
 
 75 
 
76 The Electoral System 
 
 the validity of these certificates, unless some measure 
 were adopted to foreclose debate. As Senator Edmunds 
 some years later stated in the Senate, they were anxious 
 to provide against the contingency that the Southern 
 Confederacy might send votes to the president of the 
 Senate, ** adequate with the Democratic returns from 
 loyal States to reject Mr. Lincoln and seat General Mc- 
 Clellan, who was supposed to be more favorable to their 
 views." Hence they framed a joint resolution, which 
 was passed by both Houses. After reciting that the 
 inhabitants of the States of Virginia, North Carolina, 
 South Carolina, Georgia, Florida, Alabama, Mississippi, 
 Louisiana, Texas, Arkansas, and Tennessee, had rebelled 
 against the Government of the United States, had con- 
 tinued in a state of armed rebellion for more than three 
 years and were in such a state of armed rebellion on the 
 8th of November, 1864,^ that no valid election for Presi- 
 dent and Vice-President was held therein on said day, the 
 resolution declared said States not entitled to representa- 
 tion in the electoral college for choice of President and 
 Vice-President of the United States for the term of office 
 commencing on March 4, 1865; it further provided that 
 no electoral votes from either of those States should be 
 received or counted. Mr. Lincoln delayed action upon 
 the resolution until the day fixed by law for the opening 
 of the electoral college. It was not until the very day 
 of the count "that he conquered his reluctance," says 
 Morse, "and when at last he did so, and decided to sign 
 the resolution, he at the same time carefully made his po- 
 sition plain by a brief message. ' ' He returned the resolu- 
 tion, with his formal approval, to the House from which 
 it emanated, in a message disclaiming all right of the 
 executive to interfere in any way in the matter of can- 
 vassing or counting the electoral vote, and asserting his 
 
 ' Added in the Senate, because insurrection had then ceased in Louisiana, 
 and Tennessee and these two States had sent in electoral votes. 
 
Counting, 1861-1873 ^^ 
 
 conviction that the two Houses of Congress have com- 
 plete power to exclude from counting all electoral votes 
 deemed by them to be illegal. Mr. Lincoln, in renounc- 
 ing all prerogative of the executive to interfere, may not 
 have intended to discriminate between conflicting claims 
 as to the exact lodgment of the power to count the votes; 
 sufficient for him that the executive, under the guise of 
 a joint resolution, should have no concern with the 
 count. It has been asserted that Lincoln's delay in ap- 
 proving the joint resolution led to the adoption of the 
 famous twenty-second joint rule. Upon this point, 
 Senator Edmunds made this interesting statement in the 
 Senate on December 11, 1876: 
 
 "The twenty-second joint rule sprang into existence one 
 morning here. . . . Nobody knew exactly who the father 
 of it was. I think I have seen it stated that the Senator who 
 contrived it, a few years afterwards, expressed his great aston- 
 ishment that any such thing should ever have been presented 
 and adopted. A very distinguished Senator, once the chair- 
 man of the Committee on the Judiciary of this body, indeed 
 for a very long time and still a prominent statesman in the 
 central part of the continent, expressed his infinite surprise 
 that such a thing as that should be in existence; and yet on 
 looking it up it turned out that he was the identical person 
 who wrote it and put it through." 
 
 Senator Edmunds subsequently mentioned Lyman Trum- 
 bull, of Illinois, by name, as the author of the resolution. 
 Trumbull, who was chairman of the committee of the 
 Senate in January, 1865, appointed to ascertain and re- 
 port a mode of examining the votes for President and 
 Vice-President, had actually moved the passage of the 
 rule. This rule did not require the President's signature, 
 being simply a rule of the two Houses, and was probably 
 substituted because of alarm lest President Lincoln might 
 not sign the joint resolution. After the usual language 
 
78 The Electoral System 
 
 as to the assembling of both Houses, the appointment of 
 tellers and their duties, and the reading of the certificates 
 by the tellers, the rule provided that if, upon the reading 
 of any certificate, any question should be raised as to the 
 vote therein certified, 
 
 "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 concurring votes of 
 the two Houses. ' ' 
 
 This did not require the President's signature and seems 
 to have been put in this shape for that reason. It was 
 objected in the Senate that under this rule either one of 
 the two Houses might disfranchise a State. 
 
 "Suppose," said Cowan, of Pennsylvania, "there is a 
 question then whether the votes of Louisiana shall be counted. 
 The Senate retires to its chamber, and decides that it shall; 
 the House of Representatives organizes and decides that it 
 shall not; how is the question then to be decided ? ... I 
 think it belongs to the Houses in joint convention to decide 
 that question when it arises. It is evident that they are there 
 with some power and authority over it. . . . Any one 
 [either] of the Houses could disfranchise a State," 
 
 under this rule. To this Trumbull replied that if Cowan 
 meant the joint vote was to be taken per capitay there 
 was no constitutional authority for such action, an-d such 
 a course had never been pursued since the Government 
 was formed ; but he failed to meet Cowan's criticism upon 
 the rule that : 
 
 " If there was a partisan majority in the Senate opposed to 
 counting the votes of a particular State, all it had to do would 
 
Counting, 1 861-1873 79 
 
 be to stand firmly upon its resolve that they should not be 
 counted, and that State would be disfranchised by the act of 
 the Senate alone. The House would have the same privilege 
 precisely. Was that ever contemplated? " 
 
 To this Trumbull rather lamely rejoined that the obsti- 
 nate refusal of either House to attend the joint session 
 would break up the Government, and one imaginary case 
 was as likely to happen as the other. 
 
 The canvass, for such it had come to be, of the electoral 
 vote took place on February 8, 1865, ostensibly under 
 both the joint resolution and the joint rule. When the 
 tellers had completed their report, which made no men- 
 tion of the votes of Louisiana or Tennessee, Senator 
 Cowan inquired of the Vice-President whether there were 
 any further returns to be counted ; for, said the Senator, 
 "if there are, 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 replied: "The chair has in his pos- 
 session returns from the States of Louisiana and Ten- 
 nessee, but, in obedience to the law of the land, the chair 
 holds it to be his duty not to present them to the joint 
 convention." Cowan then asked whether the joint reso- 
 lution had received executive approval, and forced the 
 chair to acknowledge that it had. The twenty-second 
 joint rule, although in force, was not operative in the 
 count of 1865, for Louisiana and Tennessee were excluded 
 from the count under the terms of the joint resolution 
 which had just received the President's signature. Such 
 a rule was a perversion of the powers of Congress. A 
 rule is to govern the conduct and proceedings of bodies, 
 but is never designed as a substitute for legislation. Its 
 inappropriateness is apparent in the fact that its opera- 
 tions were negative, and enabled one House to check the 
 other. Applied in strictness it would have brought the 
 
8o The Electoral System 
 
 Government to an end, for if one House, for partisan 
 advantage, might reject the returns of certain States, 
 the other, if of opposite politics and actuated by the 
 same kind of impulses, might reject the votes of other 
 States. 
 
 " The power assumed by Congress in the adoption of this 
 joint resolution [rule]," says Stanwood, " has frequently been 
 assailed as an invention of the Republican party, and as a 
 power never before asserted. But by reference to the pro- 
 ceedings in Congress in the year 1800 it will be seen that a bill 
 making permanent provision for counting the electoral vote 
 failed only because the Senate then insisted that either branch 
 of Congress might reject a vote, while the House of Repre- 
 sentatives maintained that it should be rejected only by a 
 concurrent vote." 
 
 The bill of 1800 never became law and the power was 
 never exercised before 1865. The Senate of 1800, frus- 
 trated in its aim to control the count through the grand 
 committee, was probably for that reason impelled to 
 amend the House substitute bill so as to vest either 
 House alone with power to reject the vote of a State. 
 Some of the ablest senators of the day denounced the 
 bill as unconstitutional. In the House, in support of 
 the necessity of concurrent action to reject a State vote, 
 were men like Marshall, Bayard, and Harper. 
 
 The action of Congress in 1865 is the first instance of 
 the rejection of the votes of a State by Congress, for it 
 will be recalled that the count was in the alternative in 
 1 82 1, 1837, and 1857. This rejection was not due to 
 general legislation as to disputed or doubtful returns, but 
 was based upon the joint resolution, which was special 
 legislation. 
 
 When the electoral count was made in 1869 the scenes 
 of tumult and disorder eclipsed even the violent occur- 
 rences of 1857. A stormy debate followed in the House, 
 
Counting, 1861-1873 81 
 
 lasting three days after the count was completed. The 
 origin of the trouble was the status of certain lately re- 
 constructed States, especially Georgia. Congress in the 
 preceding session had passed a resolution defining the 
 circumstances under which the lately rebellious States 
 might vote at the coming presidential election. No elec- 
 toral vote from any of these States was to be counted 
 unless at the time prescribed by law for the choice of 
 electors, there was a government organized and in opera- 
 tion in the State under a constitution adopted after March 
 4, 1867, and unless the election had been held under the 
 authority of that constitution and government, and unless 
 the State had become entitled to representation in Con- 
 gress pursuant to acts of that body. This resolution was 
 vetoed by President Johnson, but was passed over his 
 veto by two thirds of both Houses. Virginia, Mississippi, 
 and Texas were not allowed to participate in the election. 
 Georgia at the time of the count had her representatives 
 in the House, but the question whether she had fully 
 complied with the reconstruction acts of Congress was 
 still before the Senate. To avoid the count of Georgia's 
 electoral vote, and the possible inference that she was 
 entitled to all the prerogatives of a State, Edmunds 
 offered in the Senate, on February 6, 1869, a resolution 
 which provided for an alternative count of her vote after 
 the manner established by the Missouri precedent of 
 1821. 
 
 The resolution was criticised by Trumbull and opposed 
 by Hendricks, of Indiana, and Whyte,' of Maryland, but 
 agreed to, and was promptly approved in the House. As 
 was afterwards said by General Butler, o£ Massachusetts, 
 it was passed in the Senate "with very little debate," 
 and "put through this house at night without a single 
 word of debate, under a suspension of the rules," with 
 nearly one half of the House absent. The joint session 
 
 " Grandson of the eminent and eloquent William Pinkney, of Maryland. 
 
 6 
 
82 The Electoral System 
 
 occurred on February lo, 1869. The first objection re- 
 lated to the count of the votes certified from Louisiana, 
 and was that no valid election of electors had been held 
 in that State. The Senate retired to its chamber and, 
 after considerable discussion, although debate was not in 
 order, decided by a vote of 5 1 to 7 that the votes of that 
 State should be counted. The House, by a vote of 137 
 to 63, reached the same conclusion ; the joint session was 
 resumed and the vote of Louisiana was accepted. Geor- 
 gia, for some reason, had been placed at the end of the 
 list of States, although the custom had been to call the 
 roll alphabetically. Butler, of Massachusetts, objected 
 under the twenty-second joint rule to the count of its 
 votes, on four grounds: first, that the vote of the elec- 
 tors in the electoral college was not given on the first 
 Wednesday of December as then required by law ; 
 secondly, that at the date of the election the State had 
 not been readmitted to representation as a State in Con- 
 gress or become entitled thereto ; thirdly, that she had 
 not at that date complied with the reconstruction acts of 
 Congress ; and, fourthly, that the pretended election held 
 in that State in the preceding November was not a free, 
 just, equal, and fair election. Butler's objections at once 
 raised the question whether the count was to be had 
 under the resolution or the twenty-second joint rule. 
 Edmunds, in answer to Butler's objections, urged that 
 the two Houses were proceeding under a special joint 
 resolution and not under the joint rule, and that under 
 that resolution no objection to Georgia was to be con- 
 sidered, but that the count was to be taken in the alter- 
 native. Butler, replied that the votes must either be 
 counted or rejected, and that the concurrent resolution 
 could not bind the joint convention. The president of 
 the Senate, Wade, of Ohio, ruled to uphold the concur- 
 rent resolution, the purport of which was that if the votes 
 of Georgia should not change the result, they might be 
 
Counting, 1 861-1873 83 
 
 counted, but that if they did alter the result, they should 
 not be counted. A burst of laughter greeted this deci- 
 sion. Butler then proposed to appeal from the decision 
 to the House of Representatives, but was informed by 
 the chair that such an appeal was impossible. One other 
 member of the House objecting, the presiding officer 
 directed the Senate to retire. Although debate was not 
 permissible, much talk followed in the Senate, which at 
 last resulted in a vote of that body, of 32 to 27, that 
 under the joint resolution the objections to counting the 
 electoral vote of Georgia were not in order. Wade, the 
 presiding officer, several times asked how the decision of 
 the Senate was to be announced upon the reassembling 
 of the two Houses, but received no light. Edmunds 
 said the chair ought to announce the decision of the 
 Senate and then "proceed under the joint rule" [resolu- 
 tion]. Sherman declared the question most grave, "be- 
 cause if the rule now laid down is to be observed, no 
 President of the United States could ever be elected with 
 the Senate one way and the House the other." In the 
 meanwhile, the vote in the House was upon an entirely 
 different proposition, which was "shall the vote of Geor- 
 gia be counted, notwithstanding the objections of the 
 gentleman from Massachusetts? " The House promptly 
 resolved to reject the vote, by 150 yeas to 31 nays. 
 When the joint session was resumed, the president of 
 the Senate declared that the objections of the gentleman 
 from Massachusetts had been overruled by the Senate, 
 and that the result of the vote would be stated as it 
 would stand were the vote of Georgia counted, and as it 
 would stand were the vote of that State not counted. 
 Butler appealed to the joint convention, but the presid- 
 ing officer declined to entertain his appeal. Butler in- 
 sisted that arbitrary proceedings could not "override the 
 privileges of this House," but he and all other repre- 
 sentatives who insisted the appeal should be heard were 
 
84 The Electoral System 
 
 ruled out of order in the midst of a great uproar, in 
 which Butler rudely demanded that the Senate should 
 retire. "We certainly have the right to clear the hall of 
 interlopers/* The count was completed and the result 
 declared in the alternative, as in 1821 and 1857. When 
 the House resumed its session, Butler moved a resolution 
 of protest that *'the counting of the vote of Georgia by 
 order of the president /r^ tem^ was a gross act of oppres- 
 sion and an invasion of the rights and privileges of the 
 House." After an animated and tumultuous debate of 
 three days his motion was defeated. 
 
 The acrimonious discussion that arose in the House 
 over Butler's resolution exhibited the same discordant 
 views that had appeared in every preceding debate in 
 Congress. Butler was violent and denunciatory, but 
 sound in his criticism of the joint resolution as an evasion 
 of the constitutional duty to count. It had not, he de- 
 clared, **any more force and effect than the blank paper 
 it was written on.'* The Speaker, Colfax, defended 
 Wade's action. Shellabarger, of Ohio, in an exhaustive 
 argument, contended that the president of the Senate 
 was not only to open but also to count the votes, and 
 that no concurrent or joint resolution, or even act of 
 Congress, could permit the Senate and the House to 
 separate, and, by themselves, adopt any form of order or 
 decision which should render it impossible for the joint 
 convention, when reassembled, to count any one of the 
 States. He admitted that his argument gave great power 
 to the president of the Senate, "but," said he, "there 
 are difficulties whichever way we turn." The danger of 
 giving the power to reject the votes to either House or 
 both Houses was 
 
 * ' even greater than in giving it to the president of the Senate, 
 because by rejecting the votes, the Senate and House can 
 throw by their own act the election of the President into the 
 House, and of the Vice-President into the Senate. . . . 
 
Counting, 1 861-1873 85 
 
 Indeed, the gentleman from Massachusetts, who proposes this 
 most severe and extraordinary censure has exclaimed himself, 
 more than I can exclaim, against the frightful consequences 
 which would come from permitting one or either House of 
 Congress to get by itself, and there, in separate session, by the 
 per capita vote of its members, without debate, vote out the 
 decision of the people of any and every State in selecting 
 the Chief Magistrate of the republic." 
 
 Shellabarger dwelt w^ith emphasis and iteration upon the 
 pernicious nature of the twenty-second joint rule, declar- 
 ing that if its true interpretation was that no vote should 
 be counted until both Houses, by separate vote, should 
 concur in accepting the vote, it was plainly void as in 
 conflict with the Constitution, "which requires, in so 
 many words, that every act that enters into and makes a 
 counting of the votes shall be in the presence of the two 
 Houses." But he was not so successful in maintaining 
 the constitutionality of the concurrent resolution or in 
 vindicating Wade's action, for an alternative count is in 
 reality no count at all, but an evasion. Eldridge, of 
 Wisconsin, was on truer ground in criticising both the 
 concurrent resolution and the twenty-second joint rule as 
 violating the Constitution. 
 
 This disgraceful controversy over the solemn act of 
 ascertaining who had been elected President clearly re- 
 veals one of two things: Either the Constitution had 
 proven faulty or Congress had for years shirked its duty 
 in failing to pass any general law to regulate the count. 
 Garfield reminded the House that in March, 1868, he had 
 moved that the Judiciary Committee should be em- 
 powered to inquire into the expediency of providing by 
 law for the settlement of a contested election for Presi- 
 dent and Vice-President, but that no report had been 
 made by the committee. Congress remained deaf to 
 the voice that spoke of danger, yet the country kept 
 drifting towards the maelstrom. 
 
86 The Electoral System 
 
 The counting of the electoral vote in February, 1873, 
 was not attended by such dramatic incidents as marked 
 the count of 1869, yet the treatment of at least one State 
 was grossly unjust. Louisiana sent two sets of returns 
 to Washington, one, sustained by the certificate of Gov- 
 ernor Warmoth, based upon a partial canvass of a return- 
 ing board appointed by him under a statute of the State 
 passed in 1872; the other, predicated upon evidence as 
 to the election submitted to a rival canvassing body 
 known as the Lynch board. From the report of a special 
 committee of inquiry raised in the Senate of the United 
 States, it would seem that the Louisiana statute had not 
 been complied with by the governor, and also that the 
 Lynch board had not been permitted to inspect the re- 
 turns. In the opinion of a majority of the Senate com- 
 mittee, the Greeley electors had received a majority of 
 the votes at the November election. Subsequent to the 
 meeting of the electors in December, the Supreme Court 
 of Louisiana decided that the Lynch board was the legal 
 returning board, but, as will be hereafter seen in the 
 discussion of the Florida case before the Electoral Com- 
 mission of 1877, the majority of that commission held 
 that 2i post hac judgment could not invalidate the title of 
 electors who had previously cast their ballots. Senator 
 Morton, who was of this opinion in 1877, nevertheless 
 stated in an addendum made by him to the report of the 
 Senate committee of 1873, of which he was a member, 
 that "decisions of courts of last resort are made at the 
 end of causes, and not at the beginning, and are held to 
 relate back and establish the rights of parties throughout 
 the whole controversy." In the joint session of the two 
 Houses held on February 12, 1873, the twenty-second 
 joint rule was again enforced. The House, upon objec- 
 tion to the electoral vote of Arkansas, which was attested 
 by the Secretary of State only and authenticated by his 
 official seal, voted to count it, while the Senate voted 
 
Counting, 1861-1873 87 
 
 to reject it, and under the twenty-second joint rule it 
 was not counted. Objection was made by Potter, of 
 New York, to one vote of Mississippi cast by an elector 
 chosen to fill a vacancy, which was certified only by the 
 Secretary of State. Senator Trumbull, of Illinois, also 
 objected to the vote of Mississippi on the ground that 
 the certificates failed to state that the electors voted by 
 ballot, but the two Houses agreed to accept all the votes 
 of the State. In the case of Louisiana both Houses 
 were also in accord, — that none of the returns reported 
 by the tellers as the electoral votes of that State should 
 be counted. This resolution was carried in the Senate 
 by 33 yeas to i6 nays, and was also carried in the House.* 
 The authenticity of the seal attached to the certificate 
 from Texas, which was made by the Secretary of State 
 and not the governor, was challenged, but both the 
 Senate and the House agreed to accept the votes of that 
 State. A novel question arose over the Georgia returns. 
 Hoar, of the House, objected 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, cannot lawfully be counted because said Horace 
 Greeley, for whom they appear to have been cast, was dead at 
 the time said electors assembled to cast their votes, and was 
 not a * person ' within the meaning of the Constitution, this 
 being an historic fact of which the two Houses may properly 
 take notice." 
 
 Upon the separation of the two Houses to pass upon this 
 objection, the House, by a vote of loi to 99, resolved 
 that the vote "ought not to be counted, the said Horace 
 Greeley having died before the votes were cast." The 
 Senate, on the contrary, decided that the votes should 
 be counted, but was perturbed about the form in which 
 
 * Vote in House is not given in the record. 
 
88 The Electoral System 
 
 its resolution should be phrased. The motion offered 
 was that **the electoral votes of Georgia cast for Horace 
 Greeley be counted." To this Senator Conkling wished 
 to add, "the function of the two houses being ministerial 
 merely and this question being independent of the ques- 
 tion of the effect of the votes or of the count." This 
 amendment, which was defeated, was unsuccessfully re- 
 newed in other forms, and the Senate finally agreed to 
 count Georgia's vote, 44 yeas to 19 nays. As three of 
 Georgia's electors had voted for Greeley, the votes of 
 three of the electors of that State were excluded under 
 the joint rule. The two Houses of Congress differing 
 as to Louisiana, the votes of that State were rejected. 
 
 The Arkansas case illustrates the gross injustice which 
 the twenty-second joint rule, with its denial of debate, 
 rendered possible. The point of the objection to the 
 vote of that State was that the returns read by the tellers 
 were not certified according to law. The House voted 
 to count, but the Senate to reject, and the State was 
 accordingly disfranchised under the joint rule. In the 
 debate in March, 1876, upon the Morton bill to count 
 the electoral vote, Senator Sherman acknowledged that 
 the Arkansas decision was unjust. 
 
 " Each senator went up to the desk and examined the 
 paper, and without having time to look at the law, without 
 having even time to send to the library to see what the con- 
 stitution of Arkansas required, we fell into the error of sup- 
 posing a fact which did not exist, that the State of Arkansas 
 had a seal, and therefore we rejected the vote of that State 
 because of the want of a State seal to the certificate." 
 
 Morton's confession of error was even blunter; he pro- 
 nounced the Senate decision "a. foolish blunder," which 
 liad the astonishing result "that in twenty minutes we 
 disfranchised about six hundred thousand people." The 
 Federalist would assuredly never have declared the elec- 
 
The Morton Bill 89 
 
 toral system perfect if its author could have conceived 
 such an outcome as constitutionally possible. 
 
 A few weeks before the electoral count of 1873, Senator 
 Morton, who had for years been giving serious thought 
 to the difficulties arising in connection with the count, 
 moved in the Senate the following resolution : 
 
 ** Resolved, That the Committee on Privileges and Elections 
 be instructed to examine and report, at the next session of 
 Congress, upon the best and most practicable mode of electing 
 the President and Vice-President, and providing a tribunal to 
 adjust and decide all contested questions connected therewith, 
 with leave to sit during vacation." 
 
 Senator Morton's speech upon the resolution is an admi- 
 rable exposition of the meaning and purpose of the elec- 
 toral system and an irrefragable argument against the 
 "twenty-second joint rule." It well shows how the 
 electoral machinery has been perverted from the original 
 design, and exposes its fallacies, absurdities, and in- 
 justices. 
 
 Of the twenty-second joint rule, Morton asserted that 
 it was adopted without much consideration and with a 
 view apparently of furnishing an additional safeguard 
 against the acceptance of electoral votes from States that 
 had recently been in rebellion. "It is, in my judgment," 
 he said, "the most dangerous contrivance to the peace of 
 the nation that has ever been invented by Congress." 
 
 Morton's speech further portrayed the evil effects of 
 the joint rule: 
 
 ** Here is a powerful temptation to the House of Represent- 
 atives, by non-concurrence, to throw the election into its own 
 body, and thus, perhaps, secure the election of a candidate 
 who may have been overwhelmingly beaten at the polls. . . . 
 The rule is an invitation to partisans to make captious and 
 factious objections. It makes the concurrent action of the 
 
90 The Electoral System 
 
 two Houses necessary where it should not be ; and to sum up 
 its perilous absurdity, its 'monstrous illogic,' its dangerous 
 unconstitutionality, it places it in the power of a defeated 
 party, which may happen to have a majority in either House, 
 to defeat an election by the people and to take the chances of 
 anarchy or of victory by throwing the election into the House 
 of Representatives." 
 
 The Constitution, he argued, in providing that "each 
 House may determine the rules of its own proceedings," 
 did not confer the power upon the two Houses by a joint 
 rule to enable either House to disfranchise States by re- 
 jecting their electoral votes. 
 
 " The provisions of this [the twenty-second joint] rule, to 
 have any validity, must be embraced in a law duly enacted, 
 which has been submitted to the President for his approval; 
 and, even as a law, it would be the most fearful enactment on 
 the statute-book, conferring as it does upon either House the 
 power to block the wheels of government and plunge the na- 
 tion into anarchy. It was the purpose of the framers of the 
 Constitution to make the executive and legislative branches so 
 far independent of each other that the existence of the one 
 would not depend upon the consent or action of the other; 
 but here is a rule, a mere parliamentary rule, which gives to 
 either House a fatal negative upon the election of a President 
 by the people. A power so vast and dangerous certainly can- 
 not be created as a mere rule of proceeding." 
 
 Senator Morton favored an election of President and 
 Vice-President directly by the people in congressional 
 districts. His immediate object, he declared, was 
 
 " not so much to advise and propose remedies, as to point out 
 to the Senate and to the country dangers that lie in the path- 
 way of the nation, contingencies, some of them not remote^ but 
 near and probable, which threaten the country with revolution 
 and the government with destruction, and to urge that . . . 
 
The Morton Bill 91 
 
 now, in a time of peace and political calm throughout the 
 nation, we should address ourselves to the removal of these 
 perilous obstructions that were hidden to the eyes of our 
 fathers, but have been brought to our knowledge by obser- 
 vation and experience." 
 
 The committee should bring forward such measures as 
 might be deemed necessary, whether in the form of 
 statutes or amendments to the Constitution. The reso- 
 lution was adopted. On January 26, 1875, Morton 
 introduced in the Senate a bill "to provide for and 
 regulate the counting of votes for President and Vice- 
 President, and the decision of questions arising thereon." 
 It differed from the twenty-second joint rule in providing 
 that no electoral vote or votes from any State should 
 be rejected except by the affirmative vote of the two 
 Houses, whereas the twenty-second joint rule prescribed 
 that a vote should not be counted if either House ob- 
 jected. In case of more than one return from a State, 
 the bill provided that that return, and that only, should 
 be counted which the two Houses, sitting separately, 
 should decide to be the true and valid return. A long 
 debate ensued in which every feature of the bill was care- 
 fully discussed. Edmunds sought to amend it so as to 
 provide, by way of analogy to the bill of i8cx), that all 
 the papers opened in the presence of the two Houses 
 should be referred to a sworn committee of four Senators 
 and four Representatives, who should report to the two 
 Houses, and that their report should be accepted unless 
 both Houses agreed upon rejection, — a measure, in this 
 last feature, similar to the Electoral Commission bill of 
 1877. This amendment was not accepted, and the bill, 
 after some verbal alterations, was passed by the Senate 
 by a vote of 28 to 20. The lengthy debate revealed 
 many sharp conflicts of opinion. Edmunds held that the 
 election of a President might be made the subject of a 
 contest in the courts of the United States, but Thurman 
 
92 The Electoral System 
 
 took issue with him. The Federal courts had no juris- 
 diction to try a case involving the title to the presidency. 
 If such a suit was affirmed upon appeal by the highest 
 tribunal and its decision should direct the President de 
 facto to be ousted from office, how was the judgment to 
 be enforced? The Supreme Court would be powerless 
 to execute its judgment; "it has no army, it has no 
 treasury." How can a judgment of ouster be enforced 
 against the man who is de facto President of the United 
 States? The fathers plainly never intended that the 
 office of chief magistrate should be contested in any 
 court; on the contrary, whatever the error in deciding 
 the election, the Constitution meant that the title of the 
 person declared to be President in the joint assembly of 
 the two Houses should never be in doubt for a moment 
 after he had been declared elected in pursuance of its 
 provisions. Merrimon, of North Carolina, Hamilton, of 
 Maryland, Saulsbury, of Delaware, like Gallatin, Macon, 
 John Nicholas, and John Randolph in 1800, denied the 
 right of the two Houses to separate during a joint ses- 
 sion, and insisted that every step of the count must be in 
 the physical presence of both Houses sitting as one body. 
 It was known that the succeeding House of Representa- 
 tives would be under Democratic control. Bayard, 
 Eaton, and others counselled delay, that the measure 
 might have the benefit of non-partisan discussion. Some 
 argued that it deprived the president of the Senate of his 
 constitutional power to count, and others condemned it 
 as at variance with the organic law in other particulars. 
 All the affirmative votes were Republican, but Carpenter, 
 Conkling, Edmunds, and Windom voted with the Demo- 
 crats against it. 
 
 The bill, which was not acted upon by the House, was 
 revived in the Senate in the following winter and was 
 fully and exhaustively discussed during March, 1876. 
 
 The first section provided substantially as follows : The 
 
The Morton Bill 93 
 
 two Houses of Congress shall assemble in the hall of the 
 House of Representatives, at the hour of one o'clock, on 
 the last Wednesday in January next succeeding the meet- 
 ing of the electors of President and Vice-President of the 
 United States, and the president of the Senate shall be 
 their presiding officer; one teller shall be appointed on 
 the part of the Senate, and two on the part of the House 
 of Representatives, to whom shall be handed, as they are 
 opened by the president of the Senate, the certificates of 
 the electoral votes ; and the tellers, having read the same 
 in the presence and hearing of the two Houses then as- 
 sembled, shall make a list of the votes as they shall ap- 
 pear from 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 the votes, be entered on the journals of the two 
 Houses. If, upon the reading of any 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 with- 
 draw, and the question shall be submitted to the body for 
 its decision ; and the Speaker of the House of Represent- 
 atives shall, in like manner, submit the question to the 
 House of Representatives for its decision ; and no elec- 
 toral vote or votes from any State, to the counting of 
 which objections have been made, shall be rejected except 
 by the affirmative vote of the two Houses. When the two 
 Houses shall have voted, they shall immediately reassem- 
 ble, and the presiding officer shall then announce the decis- 
 ion of the question submitted. And any other question 
 pertinent to the object for which the two Houses are as- 
 sembled may be submitted and determined in like manner. 
 
94 The Electoral System 
 
 The language of the second section was in effect: If 
 more than one return shall be received by the president 
 of the Senate from a State, purporting to be the cer- 
 tificates of electoral votes given at the last preceding 
 election for President and Vice-President in such State, 
 all such returns shall be opened by him in the presence 
 of the two Houses when assembled to count the votes; 
 and that return from such State shall be counted which 
 the two Houses, acting separately, shall decide to be the 
 true and valid return. 
 
 By the third section it was provided : When the two 
 Houses separate to decide upon an objection made to 
 the counting of any electoral vote or votes from any 
 State, or for the decision of any other question pertinent 
 thereto, each Senator and Representative may speak to 
 such objection or question ten minutes, and not oftener 
 than once ; but after such debate has lasted two hours, it 
 shall be in the power of a majority of each House to 
 direct that the main question shall be put without further 
 debate. 
 
 Section 4 declared : At such joint meeting of the two 
 Houses seats shall be provided as follows : For the presi- 
 dent of the Senate, the Speaker's chair; for the Speaker, 
 immediately upon his left ; the Senators in the body of 
 the hall upon the right of the presiding officer; for the 
 Representatives, in the body of the hall not provided for 
 the Senators ; for the tellers, secretary of the Senate, and 
 clerk of the House of Representatives, at the clerk's 
 desk; for the other officers of the two Houses, in front 
 of the clerk's desk and upon each side of the Speaker's 
 platform. The joint meeting shall not be dissolved until 
 the electoral votes are all counted and the result de- 
 clared; and no recess shall be taken unless a question 
 shall have arisen in regard to counting any such votes, in 
 which case it shall be competent for either House, acting 
 separately, in the manner hereinbefore provided, to direct 
 
The Morton Bill 95 
 
 a recess not beyond the next day, at the hour of ten 
 o'clock in the forenoon. 
 
 The earlier discussions of the bill related to its separate 
 provisions, and particularly to its mode of dealing with 
 two or more returns, but the debate afterwards took a 
 wider range and involved the fundamental inquiry as to 
 the meaning of the Constitution and where it had in- 
 tended to repose the counting power. The twenty- 
 second joint rule had few, if any, defenders. The rule 
 was rescinded by the Senate on January 20, 1876. 
 Bayard considered that the concurrence of the House 
 was not essential. He denounced the rule, "that gave 
 the power of absolute veto to either House ... in 
 separate session and without an opportunity of debate" 
 as "utter usurpation, utterly without warrant in the Con- 
 stitution, dangerous in the extreme" ; and in sufficiently 
 plain terms he reminded the Senate that the rule had not 
 been rescinded because of its "monstrosity," for, until 
 there was a change in the majority of the popular branch 
 of Congress, "this rule, with all its unhallowed and dan- 
 gerous and despotic power, stood unquestioned and un- 
 assailed." Whyte called it "an enormity," and said the 
 Senate was wise in "annihilating" it. 
 
 The necessity for a general law was obvious to many 
 besides the framer of the bill. 
 
 " Soon after the count of the votes at the last presidential 
 election," said Thurman, " I took occasion to say in the Sen- 
 ate that, in my judgment, unless something were devised to 
 obviate the danger to the country that might grow out of the 
 count of the vote for President, we might find the country 
 plunged into civil war upon the question who has been elected 
 President of the United States. That count was calculated to 
 make every one reflect, to make every one feel how dangerous 
 is our situation. We saw more than one State deprived of its 
 electoral vote on that count, where the two Houses were 
 divided in opinion; we saw States lose their vote entirely; 
 
96 The Electoral System 
 
 and fortunate it was for the country that the rejection of those 
 States did not change the result." 
 
 The clause of the bill eliciting the most earnest discussion, 
 reflecting singular differences of opinion, related to double 
 returns. The defect — that the two Houses might never 
 agree — did not escape the astuteness of several Senators, 
 yet no ingenuity was able to devise a satisfactory pro- 
 vision; for the reason, doubtless, that the theory of a 
 congressional count by two Houses (a theory at variance, 
 I think, with the Constitution) is subject to mathemati- 
 cal laws which inexorably forbid a solution by two co- 
 ordinate bodies. Suppose the two Houses disagree, is 
 the vote of the State then to be sacrificed? was asked by 
 many Senators. "It is a grave question," said Bayard, 
 "whether the two Houses have the power to constitute 
 themselves a tribunal for the acceptance or rejection of 
 the vote of a State at will" ; and he doubted "whether 
 the two Houses of Congress were ever intended to be- 
 come the judges of the electoral vote of the people of 
 this country." Withers pertinently said that if the in- 
 ability of the two Houses to agree upon the correct 
 return was to result in the rejection of the vote of a 
 State, it was left in the power of either House to veto 
 the vote of such a State, and Eaton asked Morton to 
 avert this possible wrong to a State and "find some 
 tribunal which will determine the matter." Thurman 
 also hoped that some such tribunal might be devised, 
 although he confessed his own inability to suggest any. 
 He did, however, utter some wholesome truths. In 
 order to aid in the solution of the problem, it should be 
 remembered, he said, that "it is not Congress, in its 
 legislative capacity, . . . Congress, as a law-making 
 power, that counts the votes. . . . Congress can 
 provide by law the mode of counting the votes. The 
 only question is what limitations are there on our power 
 
The Morton Bill 97 
 
 to provide that mode." So sceptical was he of the 
 ability of the Senate to provide some ultimate tribunal 
 between the two Houses, that he feared it would finally 
 decide to give the decision of one of the two a predomi- 
 nance over the other. 
 
 Various remedies were proposed, but to each some 
 valid objection was advanced. Cooper, of Tennessee, 
 offered an amendment providing that if the two Houses 
 should not be in accord, that return should be counted 
 which the House of Representatives, voting by States, 
 in the manner prescribed by the Constitution when the 
 election devolves upon it, should decide to be the true 
 and valid return. Kernan, of New York, thought the 
 amendment would partially annul the will of the people, 
 because a State having only one representative would 
 exercise a power "equivalent to the vote of four millions 
 of people in another State," and Morton conclusively 
 refuted Cooper's idea that his plan could be representa- 
 tive of the people when it proposed to leave the decision 
 to a House elected two years previously ; and he used the 
 occasion to quote remarks from his former speeches, to 
 the effect that the constitutional requirement for an elec- 
 tion in the House, where no candidate had a majority of 
 the electoral vote, was the weakest and most vicious 
 feature of the electoral system. Johnston, of Virginia, 
 in presenting an amendment to Cooper's amendment, 
 argued that a vote should instead be had by States in a 
 joint meeting of the two Houses, the representation from 
 each State, including its Senators, to have one vote ; but 
 all these amendments were voted down. 
 
 Senator Frelinghuysen, of New Jersey, held it would 
 be a great calamity to the country to have the will of the 
 people defeated in the election of President by the failure 
 to count the vote of a State. It was a duty, he said, to 
 enact such a law that the vote of every State should cer- 
 tainly be counted. Some action was imperative, but 
 
98 The Electoral System 
 
 ''the best that can be said for any plan is, that it is not 
 in violation of any provision of the Constitution." Fre- 
 linghuysen would have referred the difference between 
 the two Houses, in case of more than one return, to the 
 Chief Justice of the Supreme Court, the presiding officer 
 of the Senate, and the Speaker of the House, whose de- 
 cision should be final. The utmost he could advance for 
 his own plan was that it "was not contrary to the Con- 
 stitution." The fathers, he said, had not progressed so 
 far in political ethics as had the men of his own day. 
 The former did not anticipate two governors in a State. 
 It had been urged by Thurman that the famous passage 
 in Kent's commentaries, "I presume, in the absence of 
 all legislative provision on the subject, that the president 
 of the Senate counts the votes and determines the re- 
 sult," implied the power of Congress to regulate the 
 entire matter; to which Whyte responded that the ques- 
 tion was whether Kent, in this expression, meant legisla- 
 tion in regard to organic or statute law, adding that, in 
 his opinion, Kent meant not a statutory, but a constitu- 
 tional provision. But Johnston quickly retorted that 
 Chancellor Kent certainly knew the difference between a 
 legislative and a constitutional proceeding. 
 
 Christiancy, of Michigan, although impressed by the 
 reasoning upon which the power of the two Houses to 
 count was predicated, was ''inclined to think the only 
 safe mode to remedy the evil is by an amendment to the 
 Constitution." Stevenson, of Kentucky, also believed 
 there was a casus omissus^ which could be reached only by 
 a change in the fundamental law. Whyte, in two elabo- 
 rate speeches, forcibly argued that the president of the 
 Senate was the proper person to count the votes, and 
 that the duty was ministerial. He appealed to the pre- 
 cedent set at the formation of the Government by the 
 Resolution of 1787, framed by the creators of the Con- 
 stitution, which distinctly laid the duty of counting the 
 
The Morton Bill 99 
 
 votes upon the president of the Senate, and with much 
 earnestness declared that he would vote for no bill 
 ** which takes away the power of counting the vote, the 
 power of opening the returns, from that officer, whom, in 
 my judgment, our fathers designated as the proper 
 depositary for such power." 
 
 Dawes, of Massachusetts, exclaimed against the bill 
 as "a delusion." It was not a constitutional bill; what 
 was necessary was an amendment to the Constitution, 
 but as the bill was better than nothing he would vote for 
 it. Maxey, of Texas, favored reposing the power to 
 count in the president of the Senate when the two 
 Houses could not agree. Jones, of Florida, considered 
 the bill "a plain departure from the Constitution," differ- 
 ing little, if at all, from the much-condemned twenty- 
 second joint rule. The discussion, as Withers said, had 
 "drifted off into two great channels. . . . One is, 
 upon whom the constitutional right devolves to count the 
 votes of ordinary electors. The other is, . . . what 
 course shall be taken where two returns come up from a 
 State, each claiming to be the proper return of that 
 State?" He pronounced Whyte's argument upon the 
 first branch conclusive ; and the same view of the duty 
 of the president of the Senate was taken by Maxey and 
 Stevenson, while Johnston expressed himself as diametri- 
 cally opposed. All other amendments being out of the 
 way, Maxey proposed an amendment giving the ultimate 
 decision upon disputed returns to the president of the 
 Senate, but it in turn was rejected. Merrimon there- 
 upon proposed to amend the second section of the bill so 
 as to provide, in case of a double return, that that return 
 from the State should be counted which should "be 
 duly authenticated by the State authorities recognized 
 by and in harmony with the United States as provided 
 by the Constitution," and supported it by an elaborate 
 argument, traversing the views of Whyte and others. 
 
loo The Electoral System 
 
 who believed the president of the Senate should count 
 the votes. But Morton conclusively exposed the weak- 
 ness of this plan. It left undecided the question which 
 of the two pretended governments was recognized by 
 and which one was in harmony with the United States. 
 
 " There being two returns and two pretended governments, 
 somebody must decide the question. We say the president 
 of the Senate cannot decide it; the House cannot decide it 
 alone; the Senate cannot decide it alone. Therefore, that 
 government must be selected by both Houses; and the amend- 
 ment of the Senator still leaves the main question open to be 
 decided, which is the government acting in harmony with the 
 United States? in other words, which is the lawful government 
 of the State? I submit to my friend that that question can 
 only be determined by both Houses, and where the two Houses 
 disagree about that, the question is left open just as it was 
 before." 
 
 The amendment proposed by Merrimon was rejected, 
 whereupon Randolph, of Michigan, to reconcile all differ- 
 ences, proposed that if the two Houses disagreed, the 
 disputed returns should be referred to the Houses as- 
 sembled in joint meeting, to be determined upon by a 
 per capita vote, the president of the Senate to give the 
 casting vote if the votes were equally divided. This 
 amendment met prompt opposition, as being in conflict 
 with the Constitution, and was defeated. The final 
 amendment offered was by Bayard, that the House of 
 Representatives should alone decide, if the Houses failed 
 to agree, but this was rejected. 
 
 The terms of the bill were for weeks subjected to most 
 careful scrutiny by able lawyers. The debate, as Bayard 
 said, was a "strong proof of the want of direct provision 
 in the Constitution in relation to this question of the 
 count of the votes." It is seldom that views so diverse 
 have been expressed in relation to a matter that seems so 
 
The Morton Bill loi 
 
 simple in itself. The bill was passed by the Senate on 
 March 24, 1876, by a vote of 32 to 26, fifteen members 
 being absent, Bayard and all of the Democrats, except 
 Thurman, persisting in opposition. With them, against 
 their own party, were Conkling and Edmunds. Morrill, 
 of Vermont, and Boutwell were among those not voting. 
 
 If Congress possessed no authority to pass any law, 
 the only remedy lay in a constitutional amendment, for 
 no one would insist that any more power than the Consti- 
 tution had given to the two Houses, when sitting under 
 that clause of the Constitution, could be conferred upon 
 them by legislation. Men of like political beliefs expressed 
 profound differences of opinion, some arguing for the 
 plenary authority of the president of the Senate to de- 
 cide upon the certificates, and count the votes; others 
 asserting that the two Houses sitting separately were 
 ultimate arbiters; others again contending that the Con- 
 stitution intended to give the two Houses when sitting 
 together complete power to decide all doubtful questions ; 
 others again regarding any interference by either House 
 or by the Houses in joint session, with the counting of 
 the vote, as an unconstitutional usurpation of power. 
 
 Had the Morton bill been passed, the difficulties which 
 arose in 1877, when double and even treble returns were 
 presented from some of the Southern States, might have 
 been readily solved, but the measure would probably 
 have resulted in electing Mr. Tilden to the presidency. 
 Conkling said in the Senate, in January, 1877, that the 
 bill "would have deposited with the House of Repre- 
 sentatives absolutely the decision of the late election." 
 Tilden had 184 electoral votes, while 185 were essential 
 to the election of Mr. Hayes. As more than one return 
 came from Florida, South Carolina, Louisiana, and Ore- 
 gon, and as the Senate and the House, from difference 
 in political complexion, would not have been able to 
 agree upon these returns, no certificates would have been 
 
I02 The Electoral System 
 
 received from the three Southern States had the Morton 
 bill become law, and one electoral vote from Oregon 
 would have been counted for Tilden. Tilden would then 
 either have had a majority of the electoral votes counted, 
 or, if without a majority of the electors appointed, the 
 election that would then have taken place in the House 
 of Representatives would have unquestionably seated 
 him in the presidency. 
 
 As in 1875, the motives of the advocates of the bill of 
 1876 were occasionally impugned. It was said that the 
 inspiration of the bill was partisan and its object to fore- 
 stall a free and impartial consideration of this grave 
 matter by the next Congress, in which the House of 
 Representatives would be under Democratic control.' 
 The idea of political advantage may have actuated some 
 Senators, yet the twenty-second joint rule was vehemently 
 criticised both by Republicans and Democrats. Had the 
 joint rule been in force in 1877, it would probably have 
 elected Mr. Tilden, for the House alone could have re- 
 jected any or all the returns from Florida, South Caro- 
 lina, or Louisiana, and have refused its acceptance of the 
 Hayes votes from Oregon. 
 
 The practical operation of the bill of 1876, had it be- 
 come law, would have been as follows : A single electoral 
 return from a State, upon objection to its receipt by any 
 member of either House while the two were in joint ses- 
 sion, would have been submitted to the two Houses sepa- 
 rately, but would have been sure in the end to be counted, 
 unless both Houses concurred in throwing it out ; whereas, 
 
 ' Thus Thurman wished the decision of the matter remitted to the next 
 Congress, "when one House will be of one political complexion and an- 
 other of another, and when a measure may be matured that would be more 
 likely to give universal satisfaction : for I take it to be almost certain that 
 the twenty-second joint rule cannot stand as the law of Congress." "You 
 might as well," said Edmunds, " institute a court composed of two judges, 
 and hold that no evidence shall be received, as the present rule is, except 
 the two judges concur to receive it." 
 
The Morton Bill 103 
 
 in the case of more than one return from a State, the vote 
 of the State was certain not to be counted, unless both 
 Houses agreed that one of the multiple certificates repre- 
 sented the true and valid return of the State's vote. In 
 this latter provision lay its weakness, and it is one of the 
 radical defects in the Act of 1887. For the possibility of 
 securing the rejection of the vote of a State might lead 
 to the fabrication of dual returns. Thurman, who hesi- 
 tatingly voted for the bill of 1876, thus stated the argu- 
 ment for this section: "Something must be done for a 
 case where there are two conflicting returns; and what 
 can you do but to require the two Houses to consider 
 each of these returns, and then determine which of them 
 shall be received? They can make no decision to receive 
 one, unless both Houses concur." But the difficulty of 
 the problem was hardly an argument for erecting the two 
 Houses into a tribunal to solve it, unless the organic law 
 expressly or impliedly conferred this power upon them, 
 and here was the persistent query. 
 
 The vote was so nearly upon party lines that Thurman 
 promptly moved its reconsideration. While he confessed 
 his inability to see any partisan advantage in the bill, he 
 was convinced that there was a "fatal omission" in it; it 
 did not provide for an "ultimate decision" in case there 
 were two or more returns from a State. He candidly 
 said he could not recall a discussion in the Senate on any 
 great public measure that had been freer from party con- 
 siderations, and Morton expressed the same sentiment. 
 The motion to reconsider was subsequently passed by a 
 vote of 31 to 23, Conkling and Edmunds voting in the 
 affirmative with the Democrats; consideration of the bill 
 was resumed in August, but the proximity of the election 
 was doubtless the reason why no further vote was 
 reached. 
 
 The constitutional objections to the bill, often reiterated 
 in the course of the debates, cannot but impress the 
 
I04 The Electoral System 
 
 student with a sense of the great departure which it pro- 
 posed from the intent of the founders of the Government, 
 a departure that was accomph'shed by the Act of 1887. 
 One striking fact is that, whether the debate be in the 
 Senate chamber or the more popular House, whether it 
 be in 1800, in 1821, over the Wisconsin vote in 1857, 
 during the reconstruction era, or over the Morton bill, 
 we listen to the old familiar arguments, and hear the same 
 doubt raised as to the power of the president of the 
 Senate or of the two Houses to count; and to every 
 legislative panacea objection is convincingly urged that 
 nothing short of a constitutional amendment will furnish 
 an effective remedy. 
 
CHAPTER V 
 
 DEBATE ON THE ELECTORAL COMMISSION BILL OF 1 877. 
 
 THE preceding review illustrates how sharp and irrec- 
 oncilable were the differences of opinion whenever 
 question arose upon the electoral count or the significance 
 of the constitutional mandate "the votes shall then be 
 counted." This brief clause seemed to be a riddle com- 
 parable with that propounded by the ancient sphinx to 
 Edipus. Senator Sherman, in the debates of 1877, said 
 that since 1801 there had been eleven cases of disputes 
 over the electoral votes and that twenty-one objections 
 had been made to the votes of different States. Yet, 
 although there had often been angry and prolonged de- 
 bate. Congress never ventured to frame a bill until 1875, 
 and that bill, while twice approved by the Senate, failed 
 of passage in the House. Seventy years previously 
 
 "Congress," said Senator Edmunds, during the debate of 
 1876-7, " had endeavored to pass a law, and after great de- 
 liberation the two Houses had separated upon a radical differ- 
 ence as to the treatment that a disputed certificate was to 
 receive, one side by a great strength of votes and with a great 
 show of reason contending that nothing ought to be admitted 
 into this most vital function of the republic except what the 
 House of Representatives and Senate should agree to admit. 
 The other said, at the other end of the capitol, by a still 
 greater number of votes and with an equal show of reason, 
 . . . that no sister in this republic of States should have her 
 voice excluded from the performance of this most interesting 
 
 105 
 
io6 The Electoral System 
 
 and useful function, unless the two great powers of the State 
 and people agree that she ought to be rejected." 
 
 The old divisions still persisted, for Pinckney, in 1800, in 
 denying Congress the power to decide upon the vote of a 
 State, hardly went to greater length than Morton in 1873, 
 when the latter said that "the proposition that Congress 
 has power to sit as a canvassing board upon the electoral 
 votes of the States, admitting or rejecting them for 
 reasons of its own, subverts the whole theory by which 
 the appointment was conferred upon the States." With 
 the Houses at variance, and with party members at war 
 among themselves over the proper interpretation of the 
 Constitution as to the powers of the president of the 
 Senate, or of the two Houses of Congress, with conflict- 
 ing opinions as to the necessity of remedial legislation, 
 or the competency of Congress to deal with a subject 
 upon which the Constitution was silent, or, as had been 
 asserted by strict constructionists and loose construction- 
 ists alike, over which the States had plenary and exclusive 
 jurisdiction, there was imminent danger, as had often 
 been predicted, that a presidential election would occur 
 when ** alternative counting" would be impossible, and 
 when a true count would become essential to the declara- 
 tion of the true result. Constitutional amendments were 
 from time to time introduced in Congress, but these 
 usually looked to such a change in the organic law of the 
 nation as would bring about an election of the chief 
 executive by the people, in districts. General Jackson, 
 in his inaugural messages, never forgetting his defeat in 
 the House election of 1825, urged the passage of an 
 amendment giving the election directly to the people. 
 McDuffie in 1823, Benton in 1824 and again in 1844, and 
 Gilmer in 1835, offered resolutions in Congress looking 
 to a substantially similar change in the organic law. But 
 Congress contented itself with enacting special legislation 
 
Electoral Commission Bill of 1877 107 
 
 adapted to a temporary condition when it passed the 
 joint resolution of 1865. The joint rule of February 6, 
 1865, simultaneously and mysteriously called into being, 
 and with only slight debate, was rigorously employed in 
 that year and in 1873 to enforce the congressional policy 
 of reconstruction, but this rule was repealed by the 
 Senate on January 20, 1876, the House then being 
 Democratic. 
 
 The presidential election of 1876 precipitated the 
 long-feared crisis. The earliest returns in November 
 indicated that Mr. Tilden had secured 184 electoral votes 
 out of a total of 369. 
 
 The riots and disorder which accompanied the election 
 in the State of Louisiana and the uncertainty as to the 
 vote of that State and of the vote of South Carolina and 
 of Florida are familiar history. Although Mr. Chandler, 
 chairman of the Republican National Committee, claimed 
 on the morning after election that Mr. Hayes had secured 
 185 electoral votes, including the votes of these three 
 States, the country quickly realized the peril which would 
 confront it when the count came to be made in the pres- 
 ence of both Houses, if there should be no agreement 
 between the two bodies as to the mode of counting, and 
 such an agreement, with the two Houses in antagonism, 
 seemed at first impossible. It was asserted by one mem- 
 ber of Congress in an address in the city of Washington 
 that one hundred thousand persons would be present at 
 the capital on February 14, 1877, to see that the votes 
 were counted, and Morton in the Senate stated that as- 
 sertions of a similar tenor were received by members of 
 Congress from all parts of the country. Inasmuch as the 
 Senate was Republican and the House Democratic, it 
 was evident that neither House would be in accord with 
 the other as to the method by which the proceedings 
 should be regulated. The claim that the president of 
 the Senate (Mr. Ferry), a Republican, had the constitu-' 
 
io8 The Electoral System 
 
 tional power to count was revived, while in the House 
 this theory of the powers of the president of the Senate 
 was repudiated, and resolutions were offered denying his 
 possession of any such authority, asserting that the 
 power was in both Houses concurrently and that the 
 House would consent to no arrangement which would 
 permit questionable returns to be counted without its 
 approval. 
 
 In an article published by Senator Edmunds in the 
 American Law Review, m October, 1877, the gravity of 
 the danger that menaced the country is well depicted. 
 It was, he said, morally certain that "the Senate would 
 declare Hayes President, and the House Tilden." In 
 that case, he continued, 
 
 " each of those gentlemen would have taken the oaths of 
 office, and attempted to exercise its duties; each would have 
 called upon the army and the people to sustain him against 
 the usurpations of the other; and each would have found great 
 numbers of supporters rallying to his standard in every State 
 and district of the Union. The legislative branches of the 
 government would, of necessity, have been placed in an atti- 
 tude of direct and absolute antagonism, not only as to the right- 
 ful title to the office of President, but upon every subject of 
 legislation; for there could be no legislation without an execu- 
 tive, and neither would recognize the President of the other. 
 Mr. Tilden could make no appointment effectual, for the 
 Senate would not recognize him; and neither he nor Mr. 
 Hayes could get money to carry on the government, for 
 neither House would grant it, save to the person it regarded 
 as the true President. The solemn ceremonies and the grand 
 pageant of inauguration would be only the first act in the 
 awful tragedy of anarchy and civil war; lasting probably until 
 the time for the next presidential election, and making such 
 election practically impossible, unless, indeed, before that 
 time some other system of government should have been 
 established upon the ruins of our national structure." 
 
y 
 
 Electoral Commission Bill of 1877 109 
 
 In the preceding Senate, in March, 1876, a joint reso- 
 lution had been introduced proposing an amendment to 
 Article XII. of the Constitution, prescribing that the 
 Supreme Court should open the certificates and count the 
 votes, and that no person holding the office of Justice of 
 the Supreme Court should be eligible for President or 
 Vice-President until the expiration of two years next 
 after he should have ceased to be justice. But this reso- 
 lution met the fate of all attempts to amend this article 
 of the organic law made after 1804. Early, therefore, in 
 the session which commenced in December, 1876, it was 
 apparent that a deadlock would exist between the two 
 Houses, with imminent danger to the peace and tranquil- 
 lity of the nation, unless some temporary measure of 
 pacification acceptable to the two opposing Houses 
 should be devised. Fortunately the spirit of patriotism 
 rose higher than party feeling. On December 14, 1876, 
 the House of Representatives passed a resolution for the 
 appointment of a committee of seven, with power to act, 
 in conjunction with a similar committee to be appointed 
 by the Senate, to prepare and report without delay a bill 
 for the removal of the differences of opinion as to the 
 proper mode of counting the electoral vote, and as to 
 the mode of settlement of such questions as might arise 
 relative to the legality and validity of the returns of the 
 votes made by the several States, to the end that the 
 votes should be counted and the result declared "by a 
 tribunal whose authority none can question and whose 
 decision all will accept as final." This resolution was 
 approved without regard to party lines. On December 
 1 8th a like resolution passed the Senate, and was ap- 
 proved by President Grant, and accordingly each House 
 appointed a committee of seven members. The Senate 
 committee consisted of Edmunds, Morton, Frelinghuy- 
 sen, Conkling, Thurman, Bayard, and Matthew W. 
 Ransom, of North Carolina. Henry B. Payne, of Ohio, 
 
no The Electoral System 
 
 Eppa Hunton, of Virginia, Abram S. Hewitt, of New 
 York, William M. Springer, of Illinois, George W. Mc- 
 Crary, of Iowa, George F. Hoar, of Massachusetts, and 
 George Willard, of Michigan, constituted the House com- 
 mittee. On January i8, 1877, the joint committee sub- 
 mitted a report to the respective Houses, in which all the 
 members joined, with the single exception of Morton, 
 recommending the passage of the bill that subsequently 
 became the Electoral Commission law. In the Senate, 
 Edmunds, as chairman of the committee, presented its 
 report, together with the bill which the committee had 
 framed, which was entitled: "An act to provide for and 
 regulate the counting of votes for President and Vice- 
 President, and the decision of questions arising thereon, 
 for the term commencing March 4, 1877." As the title 
 indicates, the bill proposed mere special legislation. 
 Edmunds' address clearly sketched the main features of 
 the bill. The bill, in brief, after providing for the meet- 
 ing of the two Houses on January 31st, and the appoint- 
 ment of two tellers on behalf of the Senate (which had 
 customarily appointed but one), and of two tellers from 
 the House, prescribed that where but one return was re- 
 ceived from a State the validity or regularity of which 
 was questioned, that return should not be discarded 
 except by the concurrent vote of the two Houses, thus 
 reversing the principle of the twenty-second joint rule. 
 It further provided that where more than one return was 
 received, all questions in relation to the returns should, 
 in the first instance, be referred to a commission consist- 
 ing of fifteen persons, five to be members of the Senate, 
 five, members of the House of Representatives (each 
 House selecting its members of the commission), and five 
 from the Supreme Court of the United States. Four of 
 the Supreme Court justices were designated by the act 
 — the justices assigned to the first, third, eighth, and 
 ninth circuits — and the fifth justice was to be selected by 
 
Electoral Commission Bill of 1877 ^^^ 
 
 his four judicial associates in such manner as the major- 
 ity of the four should deem fit. The decision of a major- 
 ity of the commission upon all such returns was then to 
 be referred to each House and its decision was to stand 
 as the determination of Congress, unless it was overruled 
 by both Houses. The joint session was to commence its 
 work two weeks earlier than usual, in order to give the 
 tribunal time to pass upon any questions that might be 
 submitted to it, before the date for the inauguration of a 
 new President should arrive. 
 
 In the Senate of that day, and also in the House of 
 Representatives, there were many able constitutional 
 lawyers ; and while it has been said, and perhaps justly, 
 that the discussions of 1877 have added nothing to the 
 elucidation of the perplexing problem, the gravity of the 
 occasion, the vigor and eloquence of the opposing argu- 
 ments, and the remarkable divergence of opinion, justify 
 some brief allusion to the important features of the de- 
 bate. At the outset of his speech, Edmunds announced 
 that it was the aim of the joint committee to prepare a 
 bill which would effect a decision that all men would de- 
 clare to be right. * * Opposing political opinions, opposing 
 political convictions, warm wishes, partisan feelings have 
 subsided on both sides," for the bill had the unanimous 
 sanction of all members of the joint committee save one 
 (Morton). Wherever but one set of returns was received 
 from a State, the bill provided substantially, if not liter- 
 ally, what the Morton bill of 1876 contained upon this 
 subject. He himself had not approved of that feature of 
 the Morton bill, but he had acquiesced in its embodi- 
 ment in the present measure. Respecting the appoint- 
 ment of a commission, he gave reasons why a selection 
 of fifteen had been made instead of nine. The larger 
 number was "so large as to produce every variety of in- 
 tellectual capacity and learning and as to produce con- 
 fidence against any possible attempt that might be made 
 
112 The Electoral System 
 
 — scarcely conceivable, to be sure — to unduly influence 
 any one or two or three," while it was at the same time 
 not so unwieldy that it would not be "capable of prompt, 
 effective consultation and deliberate and orderly proced- 
 ure and decision." That such a measure would not have 
 been practicable without the antecedent discussion of 
 almost a hundred years, Edmunds' argument seems to 
 imply. The bill, in fact, was a compilation from all 
 previous experience. Had Congress, without the advan- 
 tage it derived from the study and discussions of its 
 predecessors, been suddenly called upon to frame a bill, 
 upon a novel emergency, in the absence of all precedent, 
 it could hardly have hoped within the brief time per- 
 mitted to enact a measure which would have met the 
 general acceptance of its members and of the country. 
 The Supreme Court judges to be placed upon the com- 
 mission were selected, said Edmunds, from various parts 
 of the Union in order to represent the shades of opinion 
 in all sections, and — this language is interesting in view 
 of the result — 
 
 ** to guard against prejudices in the minds of these ten millions 
 of active voters, . . . not to guard against prejudice in 
 the judges, not to guard against prejudice in senators, or 
 members, . . . but to leave no faultfinder in the country 
 a right to complain. We say that these four men shall choose 
 a fifth from among their own associate members." 
 
 An unfortunate feature of the measure, frequently ex- 
 posed in the course of debate, was the provision which 
 gave the four judges the choice of the fifth. Although 
 the bill had been subjected to intense scrutiny in the few 
 days succeeding its preparation, the chairman of the 
 Senate committee had observed no criticism upon the 
 absolute fairness and justice of the mode devised, apart 
 from the doubt that had been expressed as to whether it 
 harmonized with the Constitution. The bill placed each 
 
Electoral Commission Bill of 1877 113 
 
 of the fifteen commissioners upon a solemn oath, 
 and they would unquestionably "dismiss every consider- 
 ation that would cloud their intellects or warp their 
 judgments." 
 
 Edmunds dwelt upon the point that the bill clothed 
 the commission with authority to determine how many 
 and what persons had been duly appointed as electors in 
 each State, inasmuch as the duty of electing the Presi- 
 dent, if no candidate should be found to have a majority 
 of the electoral vote, would revert to the House. That 
 the House might know whether the time had come for 
 the exercise of its constitutional function of choosing the 
 chief executive, it was essential, in the first instance, 
 that the commission should report how many and what 
 electors had been duly appointed. The critical question, 
 upon which opinions in the committee had varied, was 
 whether the measure should, in express terms, vest the 
 commission with **the power to descend below the deci- 
 sion of a State authority." The consensus of the com- 
 mittee's opinion approved the bill in its existing form, 
 for in that form it authorized the commission to consider 
 all double returns, with the same powers, if any, as the 
 two Houses possessed, acting either separately or to- 
 gether. The contest was to be decided in accordance 
 with the law of the land as it stood at the time of the 
 election, for it was neither the purpose nor the province 
 of Congress to create a law after the election, which 
 might elect an executive not chosen by the nation. That 
 would be substituting the will of Congress, by arbitrary 
 and unconstitutional retrospective legislation, for the will 
 of the people. 
 
 A measure which would have expressly clothed the 
 commission with power to go behind the returns, however 
 extra-constitutional, would probably have been acclaimed 
 with delight by the Democrats of the nation, but Ed- 
 munds skilfully argued, as a reason why no such power 
 
TI4 The Electoral System 
 
 had been conferred, that if the two Houses possessed 
 such power, they possessed it under constitutional war- 
 rant ; while, if they did not possess it, the bill should not 
 give the commission such unconstitutional authority. 
 
 The next question related to- the constitutionality of 
 the plan. The framers of the Constitution had not re- 
 posed the power to count, nor intended to repose it, in 
 the president of the Senate, hence the bill deprived that 
 official of no constitutional function. Edmunds, in deny- 
 ing the power, said: "It staggers human credulity that 
 the convention [of 1787] intended to turn the president 
 of the Senate into a judge in the most critical of all cases 
 for the well-being of the republic." The fathers had not 
 said he possessed the power, and for forty years no paper 
 coming from a State under its great seal, certified by its 
 governor or certified by electors, had been drawn into 
 question. He defended the law as constitutional under 
 the residuary power vested in Congress. In the uncer- 
 tainty in which the matter of counting was left by the 
 Constitution, it was competent for Congress to create a 
 tribunal impartially to consider these questions and report 
 their decision to the two Houses. 
 
 The bill, as he stated, expressly provided that nothing 
 in the act should be held to impair or affect any right 
 under the Constitution and laws to determine, by proceed- 
 ings in the judicial courts of the United States, the title 
 of any person who should be declared elected or who 
 should claim to be President or Vice-President of the 
 United States, if such right exists. 
 
 Morton, the only member of the joint committee who 
 opposed the enactment of the bill, characterized it as "a 
 compromise, like the Compromise of 1820, and the Com- 
 promise of 1850." He affirmed his belief that Hayes had 
 been elected under forms of law, and expressed his fear 
 that the bill in some obscure manner clothed the commis- 
 sion with power to go behind the returns. The power to 
 
Electoral Commission Bill of 1877 ^^5 
 
 count was either in the president of the Senate or in the 
 two Houses, and if in the two Houses, it could not be 
 delegated, nor was the vicious and unconstitutional 
 nature of the proposed transaction cured by referring 
 the matter from the commission back to the two Houses. 
 He stigmatized the bill as "a contrivance, to use the 
 mildest words, a contrivance, a patched-up thing; five 
 representatives, five senators, four judges first, and they 
 to choose a fifth, and thus this tribunal is to be created, 
 that is to make a President of the United States. There 
 are no analogies for it in our Constitution or in our laws 
 or in our history." Even had the commission been re- 
 stricted to members of the two Houses, it would have 
 been unconstitutional, for the Houses of Congress could 
 not appoint a committee to pass a law and make it bind- 
 ing unless it was reversed by both of them concurrently. 
 The bill, he said, **gives an appeal from the commission 
 to the Congress of the United States, provided that if 
 the appeal shall be sustained by both Houses concur- 
 rently, the decision below shall be reversed." 
 
 Frelinghuysen said it was the paramount wish of the 
 people that the national legislature, rising above party 
 considerations, should at this critical period do exactly 
 right. Alluding to the amendment he had proposed to 
 the Morton bill in the session of 1876, to refer all dis- 
 puted questions upon the electoral count to the president 
 of the Senate, the Speaker of the House, and the Chief 
 Justice of the United States to decide, he declared that 
 the measure before the Senate was in accord with the 
 principle of that amendment. "I can," he added, "con- 
 ceive of nothing more at variance with the Constitution, 
 than that Congress should go into an investigation 
 whether each of the three hundred and sixty-nine presi- 
 dential electors fairly received a higher vote than his 
 competitor, or whether the three hundred and sixty-nine 
 electors were all eligible." Congress could not be made 
 
ii6 The Electoral System 
 
 a grand returning board to investigate millions of votes, 
 nor, for that matter, he might have added, could the 
 commission have any such function. If no bill were 
 passed, quo warranto proceedings to test the title to the 
 presidential office might become necessary and the na- 
 tional executive might justly feel impelled to extreme 
 measures to preserve public order. For these reasons 
 his voice was for its passage. 
 
 Sherman declared the bill a novelty, but was reminded 
 by Edmunds of its similarity, in many features, to the 
 Senate bill of 1800, which went, said the latter, "much 
 further than this bill." Sherman justly criticised it as 
 special legislation, and, as such, of evil example, deserv- 
 ing careful scrutiny. The vice of the bill lay in the fact, 
 not plainly printed on its face, that Congress intended 
 the commission, so far as the members from the House 
 and the Senate were concerned, to be composed of an 
 equal number from each political party. There were to 
 be three Republicans and two Democrats selected from 
 the Senate and three Democrats and two Republicans, 
 chosen in the House, to sit in the commission. The four 
 justices selected by the bill were equally divided in their 
 political views. The fifth judge, "the controlling mem- 
 ber," is, he asked, — "to be selected how? In such 
 manner as the majority of the four shall deem fit, . . . 
 by ballot, . . . viva voce, ... it may be by 
 law, by chance, by any of the forms of chance known to 
 gamblers." For the selection of this controlling mem- 
 ber, Congress had no better scheme than to employ "the 
 element of blind chance," and this fifteenth commissioner 
 was to decide the presidential election. He arraigned the 
 bill as unconstitutional, because the members of the com- 
 mission were officers under the law and the Constitution, 
 yet were not to be appointed in a constitutional manner. 
 As the bill had been declared analogous to the bill of 
 1800, he reminded the Senate that that bill failed because 
 
Electoral Commission Bill of 1877 117 
 
 of a difference regarding amendments between the two 
 Houses, for the question of having the chief justice one 
 of the grand committee was eliminated from that measure 
 by the Senate itself. 
 
 The speech delivered by Senator Conkling may be 
 ranked as the most powerful, as it was the longest and 
 most exhaustive, argument in favor of the bill. A parti- 
 san, a stalwart Republican, he had been expected to 
 array himself upon the side of those who would assert 
 the plenary power of the president of the Senate to 
 count. The claim of the president of the Senate to 
 count was, said Jeremiah S. Black, "the great rallying 
 point until Mr. Conkling took it up, and in a speech of 
 surpassing ability utterly demolished and reduced it to 
 invisible atoms." ' Much of this sort of applause greeted 
 the speech from Democratic sources. The late Senator 
 Hoar, who admits in his autobiography that he had 
 formed an exceedingly unfavorable opinion of Conkling, 
 eulogized him for his patriotic stand in the crisis of 1877. 
 "He was on the side of the country in her hour of 
 peril. ' * Conkling was twitted in the debates for unneces- 
 sary prolixity in contending that the president of the 
 Senate had not the power to count, for it was said that 
 not more than four senators considered that official 
 clothed with any such function. His address of eight 
 hours was characterized by Morton as a "two-story 
 speech." Conkling spoke with apparently sincere con- 
 viction, and after study of every utterance in regard 
 to the subject " to be found in the books. ' ' He probably 
 felt it incumbent upon him to leave no vestige of the 
 claim for the powers of the president of the Senate, if he 
 were to vindicate his attitude to the partisan element of 
 the Republican party. In the judgment of many, both 
 Democrats and Republicans, he achieved his aim, yet his 
 argument, while cogent, is not irresistible. Conceding 
 
 ^Electoral Conspiracy^ 125 N. A. R., i, 23. 
 
ii8 The Electoral System 
 
 that a power which Congress has claimed to exercise is a 
 rightful power and not a usurpation, it then follows that 
 precedents may be drawn from the course of Congress 
 to refute the power of the president of the Senate and 
 establish that of the two Houses; but if the tendency of 
 Congress had been to usurp a power never granted to it 
 by the Constitution, no usurpation, however long con- 
 tinued, would supply the original lack of constitutional 
 authority. There is much in Conkling's argument that 
 deserves consideration. He reviewed the history of the 
 clause which closes with the inscrutable words, "the votes 
 shall then be counted," showing what changes and trans- 
 positions were made in the phraseology, which, neither 
 in its original form nor in any revision, gave the presi- 
 dent of the Senate authority to count. His argument 
 was that the framers of the Constitution were masters of 
 style, that every word was used advisedly, and that the 
 omission of the Constitution to declare in unqualified 
 terms that the votes should be counted by the president 
 of the Senate clearly evinced that the power was not 
 given to him. In stately and eloquent phrase he said : 
 
 ** The men who drafted this solemn instrument, masters of 
 language as most of them were, were so fastidious in taste, so 
 scrupulous in the execution of their work, so determined that 
 words should become exact vehicles of thought, that they ap- 
 pointed a committee on style, in order that every syllable 
 might do its needed office." 
 
 Yet he overlooked the counter-argument, for the ambi- 
 guity operates both ways; his balanced periods might 
 have been employed against the contention that the two 
 Houses were to count. Morton in reply trenchantly 
 asked: "If it had been the intention of the Constitution 
 to give the two Houses the right to count the vote, would 
 it not have said so? " With much plausibility Conkling 
 urged that the person who was to open the certificates 
 
Electoral Commission Bill of 1877 119 
 
 was not to count; that, as the Houses were to be wit- 
 nesses, they should be participants; that the president of 
 the Senate might take up a paper and peruse it as he 
 would a letter, the Senate seeing him from the body of 
 the hall, but nevertheless no better able to see or know 
 the signatures or seals or words or figures on the paper 
 "than if they gazed at the spectacle from the galleries, or 
 saw it as a concourse sees the oath of office administered 
 to the President on the eastern portico of the capitol." 
 If the president of the Senate counted and announced 
 that no one had a majority, the House would be forced 
 either to accept his statement, however incredible or 
 against its own belief, and proceed to an election, or dis- 
 regard his statement and refuse to proceed. He dissented 
 from Morton's somewhat hasty assertion that all votes are 
 to be counted, "good, bad, and indifferent." The presi- 
 dent of the Senate had no power to send for persons and 
 papers, to compel the surrender of telegrams or imprison 
 witnesses ; hence it could not have been intended that he 
 should count. But this argument assigns to the word 
 "count," the meaning of "canvass," which was not in 
 the minds of the framers of the Constitution. He cited 
 analogies, somewhat fanciful, for the powers of Congress 
 from the control which the lords and commons under 
 the British constitution exercised over the election and 
 qualifications of officials, and drew similar arguments 
 from the powers of the early State Legislatures. He 
 enlarged with emphasis on the much-quoted expression 
 of Chancellor Kent: "In the absence of legislative pro- 
 vision on the subject, I presume that the president of 
 the Senate is to count," and showed that the Chancellor's 
 expression, which was merely "I presume," being pre- 
 dicated upon the power of Congress to legislate, conceded 
 its right to make an affirmative enactment. But the 
 nature of the law which the Constitution authorizes Con- 
 gress to make was the very question at issue. 
 
I20 The Electoral System 
 
 Conkling waved aside the resolution adopted by the 
 convention of 1787 (which provided that the president of 
 the Senate should count the votes at the first election), 
 as **a prefatory or provisional proceeding. The resolu- 
 tion did not profess to declare or construe any clause in 
 the Constitution." Beginning in 1793, he said, until 
 1869, 
 
 **as often as electoral votes were to be counted, committees 
 were raised by each House in advance, to ascertain and report 
 the mode in which the votes should be examined. The com- 
 mittees reported how the proceedings should be conducted, 
 the report was adopted by each House, and one thing always 
 provided for was the appointment of tellers by each House. 
 The right of the Houses thus asserted was never questioned. 
 No president of the Senate, no member of either House ever 
 interposed a challenge. When the day to open the certificates 
 arrived, the two Houses directed the proceedings throughout. 
 The tellers counted. Every question which arose was referred 
 to the Houses. The Houses framed the certificate; they 
 directed it to be signed. He who signed it was the organ and 
 representative of the two Houses." 
 
 But the certificate in the earlier period was always signed 
 by the president of the Senate and, as already noted, if 
 Congress had entered upon a usurpation of power, no 
 argument drawn from continued usurpation established 
 the original authority. 
 
 His historical review was elaborate. He quoted Jeffer- 
 son as in accord with the Nicholas amendment in the 
 Senate to the bill of 1800, that **the inference from the 
 course of proceedings in Congress was that the power to 
 count resided in both Houses." Committees of both 
 Houses were continued until the twenty-second joint rule 
 was adopted, and when that rule was repealed the custom 
 was revived. It is interesting to note his repugnance to 
 the joint rule, which he admitted he had advocated in 
 
Electoral Commission Bill of 1877 121 
 
 1865. "Mr. Stevens reported it in the House, and de- 
 manded the previous question upon it, to which nobody 
 objected ; I state this to show that no debate took place 
 and, according to my recollection, no Republican, not 
 one, recorded himself against it. I believe no Republi- 
 can Senator voted against it." In the same context, he 
 acknowledged that it had been wisely repealed. 
 
 In support of the power of Congress, Conkling cited 
 the Van Buren bill of April, 1824, which was to the effect 
 that if the two Houses should have concurred in rejecting 
 the vote or votes objected to, such vote or votes should 
 not be counted; but that, unless both Houses should 
 concur, such vote or votes should be counted. He thus 
 closed his allusion to the Van Buren bill: "Be it wise or 
 unwise, it asserts again, by a unity of voices, with no re- 
 corded doubt, that the paramount law had reposed in the 
 two Houses the duty" to count and see that the true 
 result was constitutionally ascertained. Reviewing the 
 proceedings in 1817, 1821, 1837, and 1857, he said that 
 Senator Douglas, John J. Crittenden, of Kentucky, and 
 others, in the latter year, protested in the joint session, 
 over which Senator Mason was the presiding officer, 
 "against any curb or bit upon proceedings here," and 
 that the president of the Senate, who was commonly as- 
 serted to have controlled the count, disclaimed all inten- 
 tion to influence the proceedings. He patriotically said 
 that he was not surrendering the rights of the Republican 
 party, and that he wished Hayes to have a title so clear 
 that it could never be challenged. The bill was not a 
 compromise ; it was to establish the fact of his election. 
 "To ascertain and establish the fact is not a compromise." 
 Nor did the bill involve a surrender of any rights. The 
 Morton bill of the preceding winter would have given 
 the House of Representatives absolute power to decide 
 the election ; yet this bill was "branded as a surrender, by 
 those who lately insisted that one House and one House 
 
122 The Electoral System 
 
 alone, in unbridled caprice, and with no statement of 
 reasons required, might exclude a State by merely say- 
 ing the vote shall not be counted." To the objection 
 that Congress was making an unwarrantable delegation 
 of power, he replied that the two Houses, consisting of 
 four hundred members, could not each handle, scrutinize, 
 examine, and tabulate all the contents, true and false, of 
 the electoral certificates, and that it might properly depute 
 this work to a committee, which was what our fathers 
 proposed in 1800, and which they then called a grand 
 committee. But here again the idea of a canvass of votes 
 by Congress vitiates Conkling's argument. The commit- 
 tee or commission were to report back to the Houses, and 
 were, in effect, to do what a referee or master in chancery 
 would do for a court which reserved for itself final deter- 
 mination over the subject. ** The two Houses retain the 
 whole thing to the end absolutely in their own hands." 
 Precisely the opposite of this is what the bill effected. 
 Conkling seems to have entertained the view that the 
 commission might go behind the returns and inquire into 
 the popular election for electors, for he quoted from a 
 speech he had made in the Senate in 1873, in which he 
 said: 
 
 " I see no reason to doubt that any State having provided a 
 popular election as the mode of appointing electors, and it 
 being alleged that no such election has been held, or that the 
 election was a mere mockery or mob, violative not only of the 
 laws [of Louisiana] but ... of the supreme law of the 
 United States, we are within the scope of our power in send- 
 ing a committee to find whether the allegation be fiction or 
 fact." 
 
 Justice to this speech cannot be done by citations; it 
 may be ranked as one of the ablest of Conkling's addresses 
 in Congress. It had the effect of convincing many Re- 
 publicans in either House and throughout the country 
 
Electoral Commission Bill of 1877 123 
 
 that the president of the Senate did not possess the 
 power to count the vote; that Conkling was not re- 
 linquishing any ground upon which the party could 
 safely stand, and that the measure of pacification, the 
 enactment of which he advocated, was necessary to solve 
 a debatable election. Nor was concession made by 
 Republican Senators alone. Bayard, in supporting the 
 bill, argued that if either House might reject the return 
 from a State, which had been the practice under the joint 
 rule, it was in the power of either to throw the election 
 into the House of Representatives, which was under the 
 control of the Democrats. He advocated the measure in 
 the interest of a peaceful solution, believing the act to be 
 not unconstitutional. 
 
 Thurman also supported the bill, which, he asserted, 
 was not novel, which '.'does not go outside of the Con- 
 stitution, unless the opinions of the most eminent men 
 who have lived since the Government was formed are 
 worthy of no regard." No single instance had occurred, 
 he said, in which the president of the Senate ever decided 
 a disputed question in respect to an electoral vote. In 
 answer to those Democrats who wished a bill that ex- 
 plicitly defined the power of the two Houses, he declared 
 that to frame a bill upon the idea of defining, by law, 
 what the Constitution means, would be a simple impos- 
 sibility. He adverted to the fact that Jefferson in 1800 
 entertained the view that the Houses act as one body 
 while in a joint convention. He also appealed to Van 
 Buren's bill of 1824, reminding the Senate that it had 
 been approved in the House of Representatives, without 
 the change of a letter, by so eminent a constitutional ex- 
 pounder as Daniel Webster, and ended by arguing that 
 the bill was constitutional, inasmuch as it created a com- 
 mission as a tribunal merely to investigate and report. 
 
 Morrill, who, nevertheless, voted for the bill, declared 
 that fourteen fifteenths of the commission were to be 
 
124 The Electoral System 
 
 partisan, yet one fifteenth part was expected to be true 
 and unbiased; *'but for this," he said, "the bill would 
 nowhere find support." 
 
 Morton, in replying to the supporters of the measure, 
 disclaimed all fear that violence was to be apprehended if 
 it should not become law; "the people would not stand 
 for it." Recalled attention to the historical fact that 
 the president of the Senate, in 1789, was authorized to 
 open and count the vote by the resolution submitted 
 with the Constitution to the people of the several States. 
 John Langdon did so in 1789, and himself issued a cer- 
 tificate of election to General Washington over his own 
 signature, in which he declared that at a certain day and 
 in a certain place he had opened the certificates and 
 counted the votes. Nine successive presidents of the 
 Senate, from 1789 to 1825 inclusive, issued certificates of 
 election to the President-elect, "in which they solemnly 
 declared they had opened the certificates and counted all 
 the votes." The practice then changed; certificates of 
 election were no longer issued, but a joint committee of 
 the two Houses notified the President of his election. 
 Congress might have authority to go behind the certificate 
 of a governor of a State, for Congress had by enactment 
 provided for such certificates, but it could not go behind 
 the certificate of the returning board. Here is fore- 
 shadowed the opinion which Morton subsequently held 
 as a member of the commission. "The returning boards 
 or canvassing officers are appointed by the laws of the 
 States to determine the result of the election. That is 
 the binding authority behind which the Congress of the 
 United States cannot go." Morton had always consist- 
 ently held this opinion, and he declared such to have 
 been his view in 1873 : 
 
 " I took the ground from first to last that Congress had no 
 right to go behind the decision of the returning board in 
 
Electoral Commission Bill of 1877 ^^5 
 
 Louisiana. . . . That was my position then, as it is my 
 position now. I believe it is a vital point in the constitutional 
 doctrine of our country, and I believe that this very bill that 
 I am opposing in vain to-night will violate, and I believe is 
 intended to violate, that doctrine." 
 
 Edmunds had said that neither the president of the Sen- 
 ate nor the two Houses had the right to count a vote in 
 the absence of legislation, but, said Morton, if this were 
 so it would follow that for seventy-five years the votes 
 were counted without authority of law; "I do not be- 
 lieve it." If the powers of the Electoral Commission 
 were judicial, such powers could not be delegated to it 
 under the Constitution. He truthfully asserted that if 
 the bill had, in terms, deprived the commission of power 
 to go behind the returning boards of the several States, 
 no Democratic member of either House would vote for 
 it. The Constitution declared that the count should take 
 place in the presence of the two Houses ; but what was 
 done in the presence of the commission was not in the 
 presence of the two Houses, and the commission was for 
 that reason an unconstitutional body. 
 
 Blaine was unwilling to approve of the measure. He 
 had favored the Edmunds resolution of a few weeks pre- 
 ceding for an amendment to the Constitution, to vest the 
 power of deciding upon disputed returns in the Supreme 
 Court of the United States ; and he urged the Senate not 
 to close its session without carefully maturing and sub- 
 mitting to the States a constitutional amendment which 
 would remove as far as possible all embarrassment in the 
 future. 
 
 Whyte supported the bill, although he would decline 
 to vote for it if it were to be a permanent measure; in 
 fact, a bill of this tenor would never have passed as a 
 permanent measure. Whyte coincided with Clay and 
 Barbour in the opinion that here was a casus omissus in 
 
126 The Electoral System 
 
 the Constitution. This modern difficulty had never been 
 contemplated by its framers. He said, addressing the 
 president of the Senate : 
 
 " They meant that you, the highest officer next to the Presi- 
 dent of the United States, were to exercise the purely minis- 
 terial power of counting the vote, and left it to the House of 
 Representatives, if you counted it falsely, and pronounced a 
 man elected who had not a majority of the votes cast, imme- 
 diately to proceed and exercise their jurisdiction in choosing a 
 President over the man you had falsely counted in." 
 
 He was undoubtedly right that the convention of 1787 
 intended to confer upon the president of the Senate a 
 purely ministerial power; but assuming that the Electoral 
 Commission bill had not been enacted, that Mr. Ferry as 
 president of the Senate had undertaken to count the 
 Hayes certificates from the doubtful States, and declared 
 Mr. Hayes President of the United States, the House of 
 Representatives, under Whyte's view, might have repu- 
 diated his action on the theory that he had falsely counted 
 votes, and might have proceeded to exercise its authority 
 and thereupon have chosen Mr. Tilden. No escape from 
 the dilemma seemed possible without the enactment of 
 this extra-constitutional measure. 
 
 The session of January 24th was an all-night session. 
 Debate ceased about seven in the morning of January 
 25th, and the Senate adjourned to the 26th, when it 
 passed the bill by a vote of 47 yeas and 17 nays, ten 
 members being absent. But one Democratic Senator 
 voted in opposition. 
 
 The debate in the House of Representatives was a con- 
 fusing babel of tongues, but the dominant tone strongly 
 favored the joint committee's bill. On January 25th 
 McCrary, as a member of that committee, initiated the 
 discussion with an argument that the power to count the 
 electoral vote was lodged in the two Houses concurrently. 
 
Electoral Commission Bill of 1877 127 
 
 There was, he said, a widespread, honest difference of 
 opinion, of long standing, as to the authority to decide 
 upon disputed votes. Among believers in the power of 
 the president of the Senate, he cited Senator Thompson, 
 of Kentucky, and Senator Stuart, of Michigan, in 1857; 
 Shellabarger, of Ohio, in 1869, Thomas F. Bayard, of 
 Delaware, Whyte, of Maryland, and Stevenson, of Ken- 
 tucky, in 1876, and the somewhat doubtful opinion of 
 Chancellor Kent ; and among believers in the powers of 
 the two Houses, J. J. Crittenden, of Kentucky, and 
 Pugh, of Ohio, in 1857; Colfax, of Indiana, in 1869; 
 Schenck, of Ohio, Boutwell, of Massachusetts, Thurman, 
 of Ohio, Christiancy, of Michigan, Frelinghuysen, of New 
 Jersey, and Dawes, of Massachusetts. He confuted the 
 theory that one House alone was the depositary of the 
 power, argued that in this confusion of opinion the sole 
 way out of the difficulty was to enact the bill into law, 
 and, in support of the constitutionality of the measure, 
 urged reasons similar to those advanced in the Senate. 
 
 Eppa Hunton, of Virginia, followed McCrary in similar 
 strain. The joint resolution, which had been approved 
 by Lincoln, and the twenty-second joint rule, which had 
 been applied in 1865, 1869, and 1873, were, he declared, 
 quasi legislation. Each served in its time to count for 
 some particular occasion. "The present bill only pro- 
 vides for this occasion," — which was its chief vice. The 
 constitutionality of the measure could not be affected 
 whether the provision covering the count were controlled 
 by concurrent or joint resolution, joint rule, or by bill. 
 George F. Hoar, of Massachusetts, also spoke in its favor, 
 declaring it not a compromise bill. "There is not a drop 
 of compromise in it," as it allows every argument of 
 either party to be presented to a tribunal so constituted 
 as to ensure a righteous decision, "so far as the lot of 
 humanity will admit." 
 
 Hale, of Maine, was against the measure. A single 
 
128 The Electoral System 
 
 man, he said, the fifteenth commissioner, was to decide 
 this election. He believed in the power of the president 
 of the Senate to count ; as long as one man was to count, 
 he saw no propriety in substituting the fifteenth commis- 
 sioner for the constitutional authority. He had no fear 
 of trusting the president of the Senate, and did not be- 
 lieve in invading the judiciary to take a man from it to 
 perform such an unconstitutional function. Hewitt, of 
 New York, unnecessarily lauded the bill. "The very 
 spirit and essence, the pineal gland of the Constitution, is 
 in the proposed measure." He declared it to contain the 
 genius of Magna Charta, the great petition of right, the 
 settlement of 1688, the Declaration of Independence. 
 Springer, of Illinois, made an elaborate and forcible argu- 
 ment for the bill. Reviewing the proceedings in the 
 convention of 1787 he showed how the clause as to the 
 counting of the votes, reported by Brearley on Septem- 
 ber 4th, provided that the president of the Senate should 
 open the votes in the Senate alone and that if there were 
 no election by the electors, the Senate should be em- 
 powered to elect. These provisions were criticised as 
 giving the Senate too much power in the selection of 
 President, and the clause for that reason was so modified 
 as to require the opening of the certificates in the presence 
 of the two Houses. The Morton bill, introduced in the 
 last session of the Forty-third Congress and passed in 
 the first session of the existing one, Springer declared, 
 was subjected in the Senate to a discussion most exhaust- 
 ive and as able as was ever given to any measure in 
 Congress. "The action of Congress on the Ross bill of 
 1800, the Van Buren bill of 1824, and the Morton bill of 
 1875-6 constitute precedents fully establishing the 
 authority of Congress to pass the first section of the 
 joint committee's bill," — in relation to single returns. 
 The precedent, he continued, went even further and 
 justified the provision for double returns. Here was no 
 
Electoral Commission Bill of 1877 129 
 
 improper delegation of power, inasmuch as the com- 
 mission was merely to make a prima facie case for the 
 two Houses to act upon. The counting of the votes 
 would thus in the end be the act of the two Houses. 
 
 The argument of Garfield against the bill is in many 
 respects one of the ablest addresses delivered at that ses- 
 sion of the Houses. He brushed aside all fears of civil 
 war if the measure were not made law, and inquired what 
 would be its effect upon our institutions. An answer 
 could not be made without a brief reference to history. 
 The men who framed the Constitution were deeply versed 
 in the political philosophy of their day and had learned 
 from Montesquieu, Locke, F^nelon, and other great teach- 
 ers that liberty is impossible without a clear and distinct 
 separation of the three powers of government. The 
 fathers used the utmost precaution to hedge the electoral 
 system about with every conceivable protection against 
 the interference or control of Congress. Recalling the 
 provisions of the Constitution regarding electors, he de- 
 clared that ** within these simple, plain limitations, the 
 electoral colleges are absolutely independent of the States 
 and of Congress. . . . These colleges are none the less 
 sovereign and independent because they exist only for a 
 day." Analyzing the clause providing for the opening 
 of the certificates, which ends with the words "the votes 
 shall then be counted," he said: "Here the language 
 changes from the active to the passive voice, from the 
 personal to the impersonal ; to the trusted custodian of 
 the votes, succeeds the impersonality of arithmetic." 
 Comparing the bill with the constitutional plan, he de- 
 clared that it assailed and overthrew that plan to its very 
 foundations. 
 
 " Coming only as an invited guest to witness a grand and 
 imposing ceremony, this bill makes Congress the chief actor 
 and umpire in the scene, and, under cover of the word. 
 
I30 The Electoral System 
 
 * count, ' proposes to take command of every step in the pro- 
 cess of making a President. . . . Pass this bill, and the 
 old constitutional safeguards are gone. Congress becomes a 
 grand returning board from this day forward . . ." 
 
 The joint rule was the cause of most of our entangle- 
 ments, and he unconsciously arraigned his party for 
 originating that rule. 
 
 **At the last session of Congress, every Senator, without 
 distinction of party, voted to declare it unwarranted by the 
 Constitution. . . . The plain declaration of the first sec- 
 tion [of this bill] is that Congress may, at its discretion, for 
 any reason, good or bad, or for no reason, stifle the vote of a 
 State. The Constitution commands that the votes shall be 
 ■counted; the bill declares that the votes may be rejected. It 
 is a monstrous assumption, a reckless usurpation of power." 
 
 Congress had no more authority than Great Britain to 
 say that a State shall not vote. By the Constitution, 
 the agency of Congress was narrowed down to a mere 
 shadow, to a presence. It is said that the words "in the 
 presence" of the two Houses imply that they are to 
 take some part. The Constitution never intended the 
 two Houses to count the votes. ** Formulate that con- 
 struction in definite words" and the Constitution "will 
 read : 'In the presence of the two Houses, the votes shall 
 be counted by the two Houses.' That is, they shall 
 count the votes in their own presence. Let us not charge 
 the framers of the Constitution with such stupid tautol- 
 ogy." Congress might legislate upon the subject wher- 
 ever the Constitution had made legislation possible. As 
 to the second section of the measure, empowering the 
 commission, in the first instance, to determine upon dis- 
 puted dual returns, he argued that here was an unlawful 
 delegation of power. If it were a delegation of legislative 
 power, it was clearly in conflict with the Constitution ; if 
 
Electoral Commission Bill of 1877 ^3^ 
 
 the power were executive or judicial, then the members 
 of the commission were officers of the United States, but 
 were not appointed as the Constitution requires. 
 
 Mills, of Texas, was also among the dissenters. Under 
 the terms of the bill, the award of the joint commission 
 would require the concurrence of both Houses to reject 
 it, which was tantamount to declaring that the assent of 
 but one House would sustain it, thereby allowing one 
 House to count the votes and declare the President 
 elected, — which was what actually happened. "No man 
 can legally be the President of the United States, unless 
 both Houses have concurred in declaring him elected, or 
 both Houses have concurred in declaring no one is elected, 
 and the House elects." 
 
 Lamar, of Louisiana, combated Mills. Under the 
 Constitution both Houses were present to witness the 
 count. If they should retire and declare they had wit- 
 nessed not the count, "but a fraud and a lie," the whole 
 proceeding would be void. The two Houses testify 
 whether the right vote was counted. This implies power 
 to discriminate between legal and illegal votes. The bill 
 devised a method by which, in case of double returns, the 
 Senate and the House might ascertain the legal vote, 
 which ought to be counted. Such a measure was within 
 the residuary powers of Congress. 
 
 Baker, of Indiana, another opponent of the bill, cor- 
 rectly said that it had never entered the minds of the 
 sages of the Constitution that more than one electoral 
 college would claim to be appointed in any State, nor 
 that two sets of certificates from rival electoral colleges 
 would ever be transmitted to the president of the Senate. 
 In the eyes of our fathers the count was never expected 
 to involve an inquiry. He denied the power of Congress 
 to delegate any of its functions, whatever they were, to 
 a commission. The commission was not fitly constituted 
 for the safe settlement of the matters confided to it for 
 
132 The Electoral System 
 
 decision. Its jurisdiction was not defined with sufficient 
 precision nor were the modes of its procedure accurately 
 prescribed. 
 
 Watterson, of Kentucky, supported the bill, declaring 
 that Senator Edmunds had made it clear that the bill was 
 constitutional and that he accepted and adopted Ed- 
 munds' view without reservation. Bland, of Mississippi, 
 hoped that the bill would secure substantial justice, while 
 Lapham and Townsend, of New York, both disapproved 
 of it, believing that it deprived the president of the 
 Senate of his immemorial power. Harrison, in depicting 
 the crisis which would arise if the president of the Senate 
 should declare Hayes President and the House Tilden, 
 said no man who lived could predict what would happen 
 in such a contingency. He denied the power of the 
 president of the Senate to count, and concluded by say- 
 ing: "With the lights before me I hold that the Consti- 
 tution requires a law to put this clause into effect." But 
 special legislation, such as the Electoral Commission act, 
 was not the sort of legislation alluded to by Chancellor 
 Kent in his oft-quoted dictum. 
 
 Knott claimed that there could be no controversy over 
 the question of the right of Congress to count, for the 
 Houses undoubtedly possessed the power to decide upon 
 disputed votes, but they had no power to delegate 
 their functions to a commission. Conceding the claimed 
 authority of the president of the Senate, that officer 
 could not be stripped of his constitutional prerogative; 
 if the House had the power, it, in turn, could not re- 
 nounce it. The residuary clause did not confer authority 
 to create such a tribunal. Congress, under pretence of 
 aiding the President in an emergency, might strip him of 
 his powers as commander-in-chief and transfer them to 
 a commission. He reiterated the argument, which had 
 several times been heard in the Senate, that the bill was 
 unconstitutional because under its terms the votes were 
 
Electoral Commission Bill of 1877 133 
 
 not to be counted in the presence of the two Houses. 
 Carr, in an elaborate address, expressed his hope that the 
 judges would hold themselves aloof from the commission. 
 Hardenburgh and Lawrence, of Ohio, also opposed. 
 
 The vote, after a great volume of discussion, was 
 reached on January 26th, when the bill was sustained by 
 191 yeas to 86 nays, 14 not voting.' 
 
 Debate in both Houses had been prolonged to tedious- 
 ness, but the country remained tranquil and patient, 
 realizing that the discussion involved the meaning of a 
 transcendently important constitutional provision, touch- 
 ing the succession to the presidency. Argument was as 
 full and exhaustive as if the subject had not been the 
 theme of perennial controversy. The law which was the 
 fruit of the joint committee's efforts is itself a legislative 
 declaration of the doubt of Congress as to its own author- 
 ity. The act, by its own terms, in its provision referring 
 double returns to the consideration of the Electoral Com- 
 mission, concedes its own questionable constitutionality, 
 since it purports to clothe the commission "with the 
 same powers, if any, now possessed for that purpose by 
 the two Houses acting separately or together." If Con- 
 gress lacked power, it could not constitutionally legislate 
 upon the subject at all, nor confer any authority upon a 
 commission. The outcome of practically one hundred 
 years of discussion of a brief clause of the Constitu- 
 tion was a law confessedly temporary in its operation, 
 in which the doubts of a century are crystallized into 
 statutory form. It is hardly probable that in the whole 
 
 ' Blaine, in his Twenty Years of Congress, analyzes the vote on the Elec- 
 toral bill as follows : 
 
 " In the Senate, 26 Democrats voted for the bill and i against it. 
 
 " In the Senate, 21 Republicans voted for the bill and 16 against it. 
 
 " In the House, 160 Democrats voted for the bill and 17 against it. 
 
 " In the House, 31 Republicans voted for the bill and 69 against it. 
 
 " In the two Houses jointly, 186 Democrats voted for the Electoral bill 
 and iS against it ; while 52 Republicans voted for the bill and 75 against it." 
 
134 The Electoral System 
 
 range of congressional legislation a parallel utterance can 
 be found. The act was in every sense a compromise, 
 despite Conkling and Hoar to the contrary. It was a 
 renunciation by Congress of the power with which it 
 claimed to be constitutionally vested, — an evasion of 
 arrogated authority worse than "alternative counting," 
 a peace-at-any-price measure. It referred the disputed 
 returns to a commission of extra-constitutional origin; 
 and while nominally retaining plenary authority over the 
 commission's report, both Houses deliberately tied their 
 own hands so as to compel approval of that report, be- 
 cause it was almost scientifically demonstrable that the 
 two Houses would not agree to overthrow the commis- 
 sion's verdict. It was the case of a plaintiff and defend- 
 ant assenting to a reference or arbitration, and agreeing 
 that the decision of the referee or the award of the 
 umpire should stand unless both contestants should 
 acquiesce in setting it aside. A bill referring the dis- 
 cordant electoral certificates to a commission for its 
 report, but expressly reserving all the constitutional 
 powers, if any, of the two Houses, to approve or over- 
 rule the report, would have incurred certain defeat. 
 Nothing would content Congress except a law that ren- 
 dered a reversal of the commission practically impossible 
 unless one party or the other abandoned its pretensions. 
 There is but one explanation of such remarkable legisla- 
 tion, — not consolatory to the dignity of the nation, — 
 which is, that the antagonistic parties agreed upon this 
 mode of arbitrament solely because each had deluded 
 itself with the belief that by the creation of this commis- 
 sion it was sure to win the prize. 
 
 The bill received executive approval on January 29, 
 1877; and on January 30th both the Senate and the 
 House viva voce named their respective representatives 
 upon the commission. The Senate appointed George 
 F. Edmunds, Oliver P. Morton, Frederick T. Frelinghuy- 
 
 / 
 
Electoral Commission Bill of 1877 135 
 
 sen, Thomas F. Bayard, and Allen G. Thurman, as the 
 senatorial members of the commission; and the House 
 designated from its body Henry B. Payne, Eppa Hun- 
 ton, Josiah G. Abbott, James A. Garfield, and George 
 F. Hoar. It is almost needless to add that three of the 
 Senators were Republican and two Democratic ; and 
 that from the House came two Republicans and three 
 Democrats. While the measure was under consideration 
 in Congress, the common assumption appears to have 
 been that the choice of the four justices who were named 
 in the bill would make Justice David Davis, who had 
 been nominated to the Supreme Court by President 
 Lincoln, the fifth judicial member. The first blow of 
 fate came in his sudden and unexpected election by the 
 Illinois Legislature, by a Democratic majority, to the 
 senatorship from that State, as the successor of John A. 
 Logan, on the afternoon of January 25th. Judge Davis* 
 election was treated as rendering him ineligible to a place 
 upon the commission, and "the four judges" ' unani- 
 mously selected Associate Justice Joseph P. Bradley as 
 the fifth justice and the "fifteenth member" of the com- 
 mission. Sherman's "element of blind chance" seemed 
 to be at work even before the bill had become law.' 
 
 The Electoral Commission was organized on January 
 31, 1877. Without impugning the good faith of a single 
 member, the outcome of its proceedings might have been 
 predicted. 
 
 ' " The four judges " were Clifford, Field, Miller, and vStrong. 
 
 ^ " The Electoral Commission was, in a large degree, the creation and 
 offspring of the Democratic party ; its leading members uniting for that 
 purpose with patriotic Republicans willing to surrender a political advan- 
 tage to secure the peace and tranquillity of the country, seriously imperilled, 
 as they believed, by threats of Democratic leaders, who asserted that if the 
 Republican candidates should be declared elected by the president of the 
 Senate, the House of Representatives would proceed to elect, and forcibly 
 install, Tilden as President."— 125 JV. A. A"., 198, E. W. Stoughton. 
 
 1 
 
CHAPTER VI 
 
 THE CASE OF FLORIDA BEFORE THE ELECTORAL COM- 
 MISSION 
 
 IT was shown in the preceding chapter that the Electoral 
 Commission law failed to define the powers of the 
 commission. Congress vested, or attempted to vest, the 
 commission with the powers, if any, of the two Houses, 
 acting separately or together, to decide upon conflicting 
 returns. All amendments offered to the bill in order to 
 insure explicit delimitation of authority were voted down. 
 So far from bestowing unmistakable jurisdiction upon the 
 commission, Congress was unable to make any clear 
 affirmation as to the extent of its own authority, and at- 
 tempted none. Upon one proposition the two Houses 
 by a substantial majority were in accord — that the presi- 
 dent of the Senate had no constitutional power to count 
 the votes; yet, by the irony of fate, the elaborate 
 machinery invented to depose him, and confide the func- 
 tion to Congress, resulted in exactly such a decision as 
 might have been expected had the president of the Sen- 
 ate, in the presence of the two Houses as witnesses, dis- 
 charged this duty. That official in all probability would 
 have declared the first certificate received from Florida, 
 Louisiana, or South Carolina, purporting to come under 
 the seal of the State and the authentication of its gover- 
 nor, the valid return in each instance; which was precisely 
 the decision of the commission by a vote of 8 to 7. The 
 only circumstance to be pleaded in palliation of the Elec- 
 
 136 
 
The Case of Florida 137 
 
 toral Commission law is that the decision of the presi- 
 dent of the Senate might not have been accepted by both 
 parties. History thus presents the anomaly of the 
 acquiescence by a free and intelligent people in an extra- 
 constitutional device for settling a disputed presidential 
 succession, whereas the employment of what was prob- 
 ably intended to be the constitutional method, the 
 method proposed in the resolution of the convention of 
 1787, adopted in 1789, and apparently approved for years 
 afterwards, might not have been peacefully accepted. 
 
 Some reference to the subject of returning boards 
 should precede an account of the cases presented to the 
 Electoral Commission. While the laws of the States 
 varied widely, each State had some kind of canvassing 
 or returning board, by which the returns sent from the 
 various districts or counties were canvassed and the result 
 of the election was authoritatively declared. In Oregon 
 the functions of a canvassing board, in the opinion of a 
 majority of the commission, were concentrated in the 
 Secretary of State of that State; in other States these 
 duties were reposed in several designated State officers. 
 All such canvassing boards, however constituted, ordi- 
 narily discharge ministerial functions only. As Judge 
 Cooley says, they are "not vested with judicial powers 
 to correct errors and mistakes that may have occurred 
 with any officer who preceded them in the performance 
 of any duty connected with the election, or to pass upon 
 any disputed fact which may decide the result." But in 
 1876, in at least three States, it was claimed that a broader 
 authority had been given by legislation to the State can- 
 vassing or returning board, and the Supreme Court of 
 one of those States, Louisiana, prior to the election of 
 that year, had sustained as constitutional the extraordi- 
 nary grant of authority to the board, in certain circum- 
 stances, to exclude returns. In Florida, as will hereafter 
 be seen, the highest tribunal of the State, in the decision 
 
13^ The Electoral System 
 
 of a suit between rival candidates for the governorship, 
 held such a judicial delegation of power to a returning 
 board to be unconstitutional. 
 
 The Florida statute of February 27, 1872, constituted 
 the Secretary of State, Attorney-General, Comptroller of 
 Public Accounts, or any two of them, together with any 
 other member of the Cabinet designated by them, a 
 board to canvass the returns of the elections, and deter- 
 mine and declare who had been elected State officers and 
 presidential electors. The statute provided that if any 
 returns should be shown or should appear to be so irregu- 
 lar, false, or fraudulent that the board should be unable 
 to determine the true vote, the board should so certify 
 and should not include such return in its determination 
 and declaration ; and the Secretary of State was required 
 to preserve on file in his ofifice these returns, with all 
 documents received by him or the canvassing board. 
 Under this statute, the returns of the election for presi- 
 dential electors in Florida were canvassed in 1876. On 
 December 6, 1876, the day for the electors to vote, the 
 canvassing board certified that Humphreys, Pearce, 
 Holden, and Long had been appointed electors and on 
 the same day the governor, Marcellus L. Stearns, issued 
 them a certificate as prescribed by the Act of Congress 
 of 1792. They met together later in the day, balloted 
 and transmitted to Washington a properly certified re- 
 turn showing that they had voted for Hayes for President 
 and for Wheeler for Vice-President. Likewise, on De- 
 cember 6th, four Democrats, named Call, Yonge, Hilton, 
 and Bullock, claiming to be electors, met, cast their 
 ballots for Tilden for President and Hendricks for Vice- 
 President, and sent an appropriate certificate to Wash- 
 ington. By that certificate it further appeared that, 
 believing themselves to have been chosen electors by 
 popular vote, they made demand upon the governor 
 for a certificate, which was refused. As O'Conor, one 
 
The Case of Florida 139 
 
 of the Democratic counsel, subsequently stated to the 
 Electoral Commission, 
 
 " Every form prescribed by the Constitution, or by any law- 
 bearing upon the subject, was equally complied with by each 
 of the rival electoral colleges, unless there be a difference be- 
 tween them in this: The certified lists provided for in section 
 136 of the Revised Statutes [Act of 1792] were, as to the 
 Tilden electors, certified by the Attorney-General, and were, 
 as to the Hayes electors, certified by Mr. Stearns, then Gov- 
 ernor. All this appears of record and no additional evidence 
 is needed in respect to any part of it." 
 
 The Democratic candidate for the governorship, Drew, 
 brought suit in the Supreme Court of the State in De- 
 cember, 1876, against Stearns, the Republican candidate 
 for re-election, to try the title to the office, and this suit 
 resulted in a judgment directing the board of canvassers 
 to make another count of the votes for governor and 
 State officers, rejecting all testimony of irregularity and 
 fraud, except such as might appear on the face of the 
 returns. A proceeding in quo warranto had also been 
 instituted in the Circuit Court of the State, in the second 
 judicial circuit, by the Tilden electors against the Hayes 
 electors, to test the title to the electoral office. This 
 suit v^as begun on December 6, 1876, the day when the 
 electors were required to meet to vote, but, according to 
 Commissioner Miller, it was not shown whether the writ 
 was actually served before the vote by the Hayes electors 
 or afterwards. This quo warranto resulted, on January 
 25, 1877, in a decree which adjudged that the Hayes 
 electors were not, on December 6, 1876, or at any other 
 time, entitled to assume or exercise the functions of 
 electors, but were mere usurpers, and their acts illegal 
 and void, and that the Tilden electors had been duly 
 appointed. 
 
 After the Supreme Court in the Drew case, L e,y the 
 
I40 The Electoral System 
 
 suit by Drew against Stearns, had given a construction 
 to the election law and had held that the canvassers im- 
 properly and illegally exercised judicial functions in re- 
 jecting votes, the Legislature, on January 17, 1877, 
 passed a law to correct the count, entitled "An act to 
 provide for a canvass according to the laws of the State 
 of Florida, as interpreted by the Supreme Court, of the 
 votes for electors for President and Vice-President, cast 
 at the election held November 7, 1876." The act re- 
 quired the new canvassing board to recanvass the returns 
 and determine and declare who were appointed electors 
 at that election, as shown by the returns on file in the 
 office of the Secretary of State. The canvassers made 
 the directed canvass, and certified that the Tilden electors 
 had received a majority of the votes. Thereupon, on 
 January 26, i87i,/the Legislature passed an act declaring 
 the Tilden electors duly chosen and appointed and en- 
 titled to exercise the powers and duties of the office of 
 electors on December 7, 1876, and ratified and confirmed 
 the acts of the Tilden electors. It also directed the new 
 governor to certify in due form, in conformity with the 
 Act of Congress of 1792, the lists prepared by the Tilden 
 electors and to transmit the same, with an authentic copy 
 of the act of the State Legislature, to the president of 
 the Senate, and declared such lists to be as valid and 
 effectual as if they had been made, delivered, and trans- 
 mitted on December 7, 1876, and further declared the 
 Hayes certificates void. It also required the governor 
 to cause three other lists of the names of the Tilden elec- 
 tors to be made, certified, and delivered to such electors, 
 and required them to meet at the State capital and make 
 and sign three additional certificates of the votes given 
 by them on December 6, 1876, one list of electors fur- 
 nished by the governor to be annexed to each; and 
 furthermore required that these three certificates should 
 also be transmitted as prescribed in the Act of Congress 
 
The Case of Florida 141 
 
 of 1792. The governor and the Tilden electors obeyed 
 the new law. "None of these proceedings," as was said 
 by Commissioner Clifford, "were intended to choose new 
 electors, but merely to ascertain who were elected at the 
 antecedent general election." 
 
 Early in the session of Congress which commenced on 
 December 5, 1876, the House of Representatives ap- 
 pointed a committee of investigation to ascertain the 
 facts and report the truth as to who had been elected 
 electors in the States of Florida, Louisiana, and South 
 Carolina. The committee, proceeding to Florida, took 
 a vast mass of testimony, which it returned, with its 
 conclusions, to the House on January 31, 1877. The 
 report recommended the passage by the House of a reso- 
 lution stating that the Tilden electors had been fairly and 
 duly chosen and declaring the votes cast by them for 
 Tilden and Hendricks, "the legal votes of Florida," 
 to "be counted as such." This resolution was subse- 
 quently adopted by the House by a vote of 142 yeas to 
 82 nays. While allowance must be made for the excited 
 state of public feeling at the time, it is evident that the 
 House exceeded its prerogatives in passing the resolu- 
 tion. The count of the electoral vote is not confided by 
 the Constitution to the House of Representatives, but is 
 to take place in joint session of the Houses when the 
 lists have been opened. The action of the House was 
 revolutionary. A sub-committee on privileges and elec- 
 tions of the Senate, after investigating the Florida case, 
 made a report adverse in its conclusions to those of the 
 House committee, but the report was never adopted by 
 the Senate. 
 
 The two Houses, on January 31, 1877, convened in 
 joint meeting to count the electoral vote. On the same 
 date the Electoral Commission met and organized in the 
 Supreme Court room at the capitol, with Justice Clifford 
 as presiding officer. The returns from the States were 
 
142 The Electoral System 
 
 taken up by the two Houses in alphabetical order. The 
 first case which arose for reference to the commission was 
 that of Florida, and the hearing in that case began on 
 February 2, 1877. An array of distinguished counsel 
 gathered in the chamber of the highest tribunal of the 
 nation to represent the Democratic and the Republican 
 candidates for the presidency and vice-presidency and 
 to advocate, by every argument which learning or ingenu- 
 ity could furnish, the causes of their respective clients. 
 Besides legal representatives from both Houses of Con- 
 gress, O'Conor, of New York, Black, of Pennsylvania, 
 Merrick, of the District of Columbia, Green, of New 
 Jersey, Carpenter, of Wisconsin, and Hoadley, of Ohio, 
 appeared for the Democratic side; while Evarts and 
 Edwin W. Stoughton, of New York, and Stanley Mat- 
 thews and Samuel Shellabarger, of Ohio, appeared to 
 support the Republican cause. A hearing more impres- 
 sive in character or fraught with greater consequences has 
 never taken place in that celebrated chamber, the scene 
 of many notable forensic discussions. 
 Mr. O'Conor truly declared the cause 
 
 "to be the most important that has ever been presented to 
 any official authority within these United States. ... It 
 is brought here under circumstances that give absolute assur- 
 ance, as far as absolute assurance can exist in human things, 
 of a sound, upright, intelligible decision that will receive the 
 approval of all just and reasonable men. The great occasion 
 which has given rise to the construction of this tribunal has 
 attracted the attention of every enlightened and observing in- 
 dividual in the civihzed world. This commission acts under 
 that observation. The conclusion at which it may arrive 
 must necessarily pass into history, and, from the deeply inter- 
 esting character, in all their aspects, of the proceedings had and 
 the judgment to be pronounced, that history will attract the 
 attention of students and men of culture and intelligence as 
 long as our country shall be remembered; for it cannot be 
 
The Case of Florida 143 
 
 supposed that a question will ever arise and be determined in 
 a similar manner which, by its superior magnitude, importance, 
 delicacy, and interest, will obscure this one or cause it to be 
 overlooked. ' ' 
 
 Three separate "sets of lists" or returns had been re- 
 ceived by the president of the Senate from the State of 
 Florida, the first being a return signed by Humphreys, 
 Pearce, Holden, and Long, the four Hayes electors. To 
 this return, which bore date December 6, 1876, was at- 
 tached the certificate of Marcellus L. Stearns, then gov- 
 ernor of the State, also dated on that day. Return No. 
 2 consisted of a list, dated December 6, 1876, signed by 
 the Tilden electors, authenticated, not by the governor's 
 certificate, but by the certificate of the attorney-general 
 of the State as one of the members of the State board of 
 canvassers ; and appended to the return was an additional 
 certificate of the electors themselves to the effect that 
 Governor Stearns had refused to comply with their de- 
 mand for a certificate of their appointment. Certificate 
 No. 3, like No. 2, was signed by the Tilden electors, but 
 was authenticated by the certificate of George F. Drew, 
 the governor who took office January i, 1877. This 
 return bore date January 26, 1877. Governor Drew's 
 certificate recited the quo warranto proceedings begun by 
 the four Tilden electors against the four Hayes electors 
 and the judgment of the court declaring the Tilden elec- 
 tors duly elected. It recited also the act of the State 
 Legislature passed January 17, 1877, directing a recanvass 
 of the vote for electors and stated that such recanvass 
 had been made, with the result of establishing the elec- 
 tion of the Tilden electors. 
 
 To the first return, which attested the election of the 
 Hayes electors, the counsel for Mr. Tilden objected that 
 the so-called Hayes electors were not appointed electors 
 in the manner directed by the Legislature of the State; 
 
144 The Electoral System 
 
 that the qualified voters of the State had actually ap- 
 pointed Call, Yonge, Hilton, and Bullock electors; that 
 the certificates issued to the pretended Hayes electors 
 and the lists made by them had been annulled by a sub- 
 sequent lawful certificate of the executive of Florida, in 
 which the Tilden electors were declared to be the lawful 
 electors, duly appointed by the State in the manner 
 directed by its constitution and also by the act of the 
 State Legislature and the quo warranto decree in the suit 
 of the Tilden electors against the so-called Hayes elec- 
 tors ; that the Tilden electors had lawfully cast the elec- 
 toral vote of the State; and that the certificate issued 
 by Governor Stearns to the Hayes electors had been 
 annulled and declared void by the executive and by the 
 Legislature and judiciary of the State. 
 
 A special objection was made to the return signed by 
 the Hayes electors, that one of their number, Hum- 
 phreys, was, at the date of his appointment as an elector, 
 a United States shipping commissioner at the port of 
 Pensacola, and that his appointment was null and void 
 under the constitutional provision prohibiting any Sena- 
 tor or Representative or any person holding a Federal 
 office of trust or profit from appointment as an elector. 
 
 To each of the two returns made by the Tilden elec- 
 tors, counsel for Mr. Hayes made various objections, in 
 effect that the return signed by the Hayes electors was 
 the only valid return and that its acceptance precluded 
 consideration of the others. To return, No. 2 they ob- 
 jected because of its lack of certification, as required 
 by the Federal law of 1792, by the governor of the State 
 in office at the time ^f the election. To the third return 
 they objected that, while it bore the certificate of a 
 governor of the State, he was not governor on the date 
 when, by the law of 1792, the electors were required to 
 convene and vote ; that the return itself was predicated 
 upon a new canvass, made under a statute not in exist- 
 
The Case of Florida i45 
 
 ence when the electors were appointed, but subsequently 
 enacted. They declared the return to \i^ ex post facto, 
 made after the electoral college had become functus 
 officio, and they objected to the quo warranto decree in 
 the suit between the rival electors as null and void and 
 of no effect upon the ti);le of the electors returned by the 
 State canvassing board in December, 1876, as duly 
 elected. To the decree adjudging Drew to have been 
 lawfully elected governor of the State and the action of 
 the returning board with respect to the electoral votes 
 fraudulent, they objected as obiter, on the ground that, 
 assuming the jurisdiction of the tribunal over the subject 
 the validity of the return of the State canvassing board 
 regarding the electors was not in issue in that suit. 
 
 After some preliminary discussion O'Conor formu- 
 lated the Democratic offer of proof in a series of proposi- 
 tions, none of which seemed to require extrinsic evidence 
 other than the documents attached to the objections, 
 except the following: 
 
 ** Fifthly. The only matters which the Tilden electors desire 
 to lay before the Commission by evidence actually extrinsic 
 will now be stated: 
 
 ** I. The board of State canvassers, acting on certain erro- 
 neous views when making their canvass, by which the Hayes 
 electors appeared to be chosen, rejected wholly the returns 
 from the county of Manatee and parts of returns from each of 
 the following counties: Hamilton, Jackson^ and Monroe. 
 
 V ■ • •■ • 
 
 ** II. Evidence that Mr. Humphreys, a Hayes elector, held 
 office under the United States." 
 
 It is unnecessary to review in detail the elaborate argu- 
 ments made by the Democratic counsel in support of 
 their offer of proof, nor the counter-arguments against 
 its reception. The Democrats contended that the gover- 
 nor's certificate which the Act of 1792 requires to be 
 
146 The Electoral System 
 
 annexed to the electors' lists was not an absolute pre- 
 requisite to a valid return, because the Constitution con- 
 tained no such requirement and the statute could not go 
 beyond the terms of the Constitution. The certificate 
 issued by Governor Stearns to the Hayes electors pos- 
 sessed no superior sanctity, but could be inquired into 
 and proof should be given that the certificate was not in 
 conformity with the fact. If the governor, by mistake 
 or fraud, should furnish a certified list in favor of persons 
 not appointed electors, was there, they asked, no remedy? 
 must the State lose its vote, or have its vote cast against 
 its will, as if by a false personation made before its eyes, 
 in the open day, which it has no power to resist? 
 
 If the State returning board or the executive of the 
 State transcended its or his authority in making a false 
 return or certificate, such act, they argued, was ultra 
 vires and void; it was electing, instead of determining 
 the result of an election. They appealed with confidence 
 to the judgment in Drew against Stearns, the adjudica- 
 tion in Call vs, Pearce, the suit of the Tilden electors 
 against the Hayes electors, and the act of the Legislature 
 of January 26, 1877, and they also argued that Hum- 
 phreys was ineligible to appointment as an elector. 
 Counsel for Mr. Hayes, in resisting the introduction 
 of the proffered evidence, argued that certificate No. 
 I was valid and the other two void. The commission, 
 they insisted, was not a general canvassing board. 
 Their arguments tended to restrict its powers and the 
 powers of the two Houses of Congress within the limita- 
 tions understood to apply to the powers of the president 
 of the Senate. The duty of counting the votes was 
 purely ministerial. Your power, they said to the com- 
 mission, is broad enough to ascertain whether the papers 
 before you, as certificates, are genuine and not counter- 
 feits and have been verified by the State authority as 
 required under the Constitution and laws; broad enough 
 
The Case of Florida 147 
 
 to enable you to ascertain whether the electoral college 
 has duly complied with the law. But it is the electoral, 
 and not the popular vote, that is to be counted. The 
 question is not which set of electors in Florida received 
 a majority of the popular vote, but which set, by the 
 actual declaration of the final authority of the State 
 charged with the duty of determining the result, became 
 entitled to cast the electoral vote of the State. Counsel, 
 moreover, repudiated the notion that either Congress or 
 the commission could investigate the popular vote. The 
 inquiry would be physically impossible, because it could 
 not stop at the first stage of the descent, but must go to 
 the bottom ; it was legally impossible, because the Act of 
 1792 prescribed the evidence of the appointment of elec- 
 tors, and it was constitutionally impossible, because there 
 was no judical power in Congress or the commission. 
 Such power was vested by the Constitution in the Su- 
 preme Court and in such inferior courts as Congress 
 should ordain and establish, and clearly the commission 
 was not an inferior court, since appeal from its decision 
 lay, not to the Supreme Court, but to Congress. 
 
 As to the alleged disqualification of Humphreys, the 
 Republican view was forcibly stated by Evarts : 
 
 " If a disqualified elector has passed the observation of the 
 voters in the State, passed the observation of any sentinels 
 or safeguards that may have been provided in the State law, 
 when these are all overpassed and the vote stands on the pre- 
 sentation and authentication of the Constitution — that is, upon 
 the certificate of the electors themselves and the governor, — it 
 must stand unchallengeable and unimpeachable in the count." 
 
 Or, as Shellabarger phrased it, 
 
 "if an elector on the voting day is endowed with all the in- 
 signia of right, with all the apparent title of office that can^ ac- 
 cording to the then existing State machinery, be held on that 
 
14^ The Electoral System 
 
 day, he is, to every possible legal intent, as against the States, 
 the elector both de facto and de jure. If, after that, any power 
 can try the title, it is not the State, but the nation. . . . 
 That boundary is at the point where the vote is sealed and 
 goes to the capital. . . . Before that vote, the State must 
 have done her last act in adjudging who are her electors and 
 bestowing the evidences of their title." 
 
 The battle v^ras fought over the offer of proof. The 
 decision of the commission, by a vote of eight to seven, 
 not to receive evidence outside of the certificates, except 
 as to Humphreys' eligibility, foreshadowed the result of 
 the whole controversy and portended the defeat of the 
 purpose of the Democratic counsel to go behind the re- 
 turns. Its decision was that "it is not competent under 
 the Constitution and the law, as it existed at the date 
 of the passage of said act" [the Electoral Commission 
 law], 
 
 * * to go into evidence aliunde the papers opened by the presi- 
 dent of the Senate in the presence of the two Houses to prove 
 that other persons than those regularly certified to by the 
 governor of the State of Florida, in and according to the de- 
 termination and declaration of their appointment by the board 
 of State canvassers of said State prior to the time required for 
 the performance of their duties, had been appointed electors, 
 or by counter-proof to show that they had not, and that all 
 proceedings of the courts or acts of the Legislature or of the 
 executive of Florida subsequent to the casting of the votes 
 of the electors on the prescribed day are inadmissible for any 
 such purpose." 
 
 Although the counsel for the Republican candidates had 
 argued that the acts of Humphreys, as a de facto elector, 
 were valid, the commission, by a vote of eight to seven 
 (Bradley, the fifteenth member, voting upon this question 
 with the Democratic members of the commission), de- 
 
 1 
 
The Case of Florida 149 
 
 cided to receive evidence as to Humphreys' disqualifica- 
 tions. After hearing the evidence, the commission, by 
 the same vote, was of the opinion that "without refer- 
 ence to the question of the effect of the vote of an ineli- 
 gible elector, the evidence does not show that he held the 
 office of shipping commissioner on the day when the 
 electors were appointed.'* 
 
 The opinions of the commission exhibit the immemorial 
 doubt as to where the Constitution intended to repose 
 the power to count the votes. This tribunal declined to 
 express any definite opinion as to the authority of the 
 two Houses of Congress; nor were the eight members 
 who voted to exclude the Democratic offer of proof in 
 accord in their reasons for such exclusion. It is an 
 interesting circumstance, however, that the prevailing 
 theory was in reality more democratic than the theory 
 advocated by the Democratic counsel, or, if not more 
 democratic, more strictly consonant with the Constitu- 
 tion. As was anticipated when the Electoral Commission 
 bill was under discussion, the commission divided along 
 political lines upon every question, save that Bayard 
 admitted that he had become satisfied as to Humphreys' 
 eligibility. That Senators and Representatives recently 
 transferred from the partisan arena of Congress should 
 have been unable instantly to assume judicial-mindedness 
 is, perhaps, not remarkable; but that the four justices of 
 the Supreme Court selected by law should have differed 
 in the same manner, evinces how profoundly political 
 beliefs, like religious and philosophical convictions, affect 
 human action. Morton held that the only issue to be 
 tried was whether certificate No. i came from the elec- 
 tors. This was established by the determination of the 
 State returning board and Governor Stearns' certifi- 
 cate. It was not in the power of the State to undo or 
 impair what she had done, by subsequently declaring that 
 the electors who had voted had not been appointed, and 
 
150 The Electoral System 
 
 that by a recount of the votes, real" or pretended, other per- 
 sons were shown to have been appointed. Morton also 
 approved of the doctrine that an elector who had been 
 declared elected by the State returning officers and had 
 received the governor's certificate had the color of office, 
 and was an elector de facto y whose acts were valid. All 
 contests or corrections should be concluded before the 
 vote of the electors was cast. Frelinghuysen quoted 
 from a letter written a few days previously by Chief 
 Judge Church, of the New York Court of Appeals, a 
 distinguished Democrat, stating that the authentication 
 of the election of presidential electors according to the 
 laws of each State is final and conclusive, and that there 
 exists no power to go behind it. As to Humphreys' case, 
 he argued that the provision of the Constitution on which 
 the charge against that elector was based was not self- 
 executing, and no machinery had ever been devised for 
 an investigation to determine upon electoral disqualifica- 
 tions. Hoar regarded the determination of the canvassing 
 board as in the nature of a judgment. The subsequent 
 proceedings of the State Legislature were without val- 
 idity, and "the right of a State to withdraw the vote 
 of its electors for President, in obedience to the decree 
 of a court entered afterwards, will not bear discussion." 
 Garfield claimed that neither the two Houses nor the 
 commission had the power to revise the action of the 
 State as evidenced in certificate No. i. Thurman, Bay- 
 ard, Abbott, and Hunton, on the other hand, insisted 
 that the decision of the State canvassing board was 
 impeachable, and that every department of the State 
 government, executive, legislative, and judicial, had de- 
 cided against the pretensions of the Hayes electors. 
 Bayard declared: "If a State cannot succeed by the 
 united voices of its three branches, executive, legislative, 
 and judicial, in establishing a fact transacted under its 
 own laws and within its own limits, it is idle to talk 
 
The Case of Florida 151 
 
 of State existence or State rights." In Florida, said 
 Abbott, 
 
 "we have this strange spectacle: The governor and all the 
 State officers having been voted for on the same ticket with 
 the Tilden electors, having received substantially the same 
 vote, and having been counted out by the same board of can- 
 vassers, have been declared elected by the highest judicial 
 authority of the State, and are now exercising the powers of 
 their respective offices peaceably and to the general content- 
 ment of the whole people, while the Tilden electors, we are 
 told, — although they, too, have been declared elected by the 
 courts, — have no power to act and their vote must not be 
 counted. . . . Where do we get the right to set up our 
 construction or rather the construction of the State board of 
 canvassers, of a statute of Florida, against the Supreme Court 
 of Florida? " 
 
 And Thurman urged the repeated scrutiny by Congress 
 of the vote of a State as a reason why such procedure 
 should again be followed : "The power of the two Houses 
 to go behind the governor's certificates and the decisions 
 of canvassing boards has been again and again asserted 
 by Congress and carried into execution." 
 
 That certificates were, prima facie ^ always open to re- 
 buttal, was the idea of Mr. Justice Field, and he pro- 
 nounced the doctrine that a fraudulent, coerced, or 
 mistaken canvass was conclusive "as unsound in law as 
 it is shocking in morals." The canvassing board had 
 only ministerial powers. After elaborately reviewing all 
 the proceedings in Florida following the election, he de- 
 clared that there was the highest possible evidence of the 
 action of that State, and that there could be no serious 
 question as to which of the two sets of electors had been 
 duly appointed. "That State has spoken to us through 
 her courts, through her Legislature, and through her 
 executive, and has told us in no ambiguous terms what 
 
152 The Electoral System 
 
 was her will and whom she had appointed to express 
 it." 
 
 Mr. Justice Strong regarded the offer of proof as 
 equivalent to asking the commission to recanvass a State 
 election for State agents or officers. Has Congress, he 
 inquired, the power to recanvass the votes and returns of 
 votes given in a State for presidential electors, and 
 answered, it had not. 
 
 " The framers of the Constitution well understood what was 
 necessary to confer upon Congress, or upon either House, 
 power to canvass elections or returns, and the subject did not 
 escape their attention. When such power was intended to be 
 granted, it was given in plain language. Each House was 
 made a judge * of the elections, returns, and qualifications 
 of its members.' No such language was used respecting 
 electors, and for what appears to me to be the plainest reason. 
 The scheme of the Constitution was to make the appointment 
 of electors exclusively a State affair, free from interference 
 
 of the legislative department of the government 
 
 Congress, therefore, had no right to enter into the considera- 
 tion of the evidence offered, and the commission obviously 
 has no larger authority than Congress had. The State pos- 
 sessed ample power to purify her own elections, correct erro- 
 neous canvasses, rectify false returns; but these things she 
 should accomplish completely before the day of casting the 
 electoral vote arrives." 
 
 He, like most of his associates, admitted that the gover- 
 nor's certificate was not unimpeachable. "It may be 
 shown to be untrue by proof that it does not correspond 
 with the determination of the canvassing board. It may 
 be proved to be a forgery. But in the present case these 
 things are not alleged." What was done in Florida after 
 December 6th, he argued, was immaterial. Neither the 
 action of the Legislature nor a post hac decision of a 
 court could affect an act rightfully done, when it had 
 
The Case of Florida i53 
 
 been completed before the Legislature and the court at- 
 tempted to annul it. "There must be a finality in ascer- 
 taining the results of an election, and when the election 
 is a mode of appointment of persons to cast a vote for a 
 State on an appointed day, the finality must be on or be- 
 fore that day, else nothing can be settled. ' ' If, he added, 
 "the votes of electors can be destroyed by State action 
 after they have been cast, it may be done next July as 
 well as it can be now." This last argument is untenable, 
 because the Constitution itself interposes a bar to inquiry 
 after the electoral votes have been counted in the pres- 
 ence of the two Houses, for it declares that the person 
 having the greatest number of votes for President (if a 
 majority) shall be President, and provides no machinery 
 for contest or debate after the actual count has taken 
 place. 
 
 Perhaps the greatest constitutional lawyer upon the 
 Supreme Bench of that day was Samuel F. Miller, and 
 his reasons for rejecting the Democratic offer of proof 
 are worthy of note. As to Humphreys' eligibility, he 
 claimed that the vote, being a fact accomplished, could 
 not be annulled by any subsequent proceeding to ques- 
 tion his eligibility, that the Constitution was not self- 
 executing, and that since neither the Constitution nor 
 Congress, nor Florida had created a tribunal or provided 
 a mode of procedure by which the eligibility of an elector 
 might be inquired into and determined, Humphreys, the 
 de facto elector, rightfully cast his vote. 
 
 Upon the main question, he said : 
 
 "It is manifestly the duty and therefore the right of the 
 State, which is the appointing power, to decide upon the 
 means by which the act of appointment shall be authenti- 
 cated and certified to the counting power and to the electors 
 who are to act on that authority. To this proposition I 
 have heard no dissent from any quarter. This evidence of 
 
154 The Electoral System 
 
 appointment must in its nature vary according to the manner in 
 which the electors are appointed. If elected by the Legis- 
 lature, as they may be, an appropriate mode would be the 
 signatures of the presiding officers of the two Houses to the 
 fact of such appointment or a certified copy of the act by 
 which they were elected. If appointed by the governor, his 
 official certificate with the seal of the State would be an ap- 
 propriate mode. If elected by popular suffrage, that election 
 should be ascertained and authenticated in the mode which 
 the law of the State prescribes for that purpose." 
 
 After reciting the Florida statute, defining the duties of 
 the State returning board, he said : 
 
 "When the canvassing board herein mentioned has can- 
 vassed the returns of the election, has determined who is 
 elected, and has declared that fact by signing the certificate, 
 which is to be deposited with the Secretary of State, the per- 
 son named in the certificate is from that moment a duly ap- 
 pointed elector. The fact of his appointment, that is, his 
 election, has been ascertained and declared by the tribunal, 
 and the only tribunal, to which the duty and power of so de- 
 claring has been confided by law." 
 
 This is the best exposition to be found in any of the 
 opinions concerning the appointment of an elector, which 
 is completed, not by his election, but, as Mr. Justice 
 Miller says, when the appropriate State authority certifies 
 to that fact. The Florida board, he maintained, had not 
 exceeded its jurisdiction, because the statute of Florida 
 clothed it with power, upon all the facts submitted to it, 
 **to determine, that is, to declare, who is elected." The 
 only votes which the Constitution authorizes either the 
 president of the Senate or the Houses to count are 
 the votes of the electors of President and Vice-President, 
 "and not the votes by which the electors are appointed." 
 The certificates received at the seat of government from 
 
The Case of Florida 155 
 
 the State authorities are evidence of the appointment 
 of the electors. Summing up, he said : 
 
 ** Congress has nothing to do with this appointment, neither 
 with the manner of appointment, nor the manner of authenti- 
 cating the appointment. 
 
 "If, then, a body of electors present with the vote which 
 they cast for President and Vice-President the evidence which 
 the State has prescribed of their appointment, the inquiry of ' 
 the two Houses is answered. They have been legally and 
 officially informed who are entitled to vote as electors for that 
 State. . . . Much has been said of the danger of the 
 device of returning boards, and it may be they have exer- 
 cised their power in a manner not always worthy of commen- 
 dation. But I take the liberty of saying that such a power 
 lodged in one or in both Houses of Congress, would be a far 
 more permanent menace to the liberty of the people, to the 
 legitimate result of the popular vote, than any device for 
 counting those votes which has as yet been adopted by the 
 States." 
 
 The "fifteenth" member of the commission, Mr. Jus- 
 tice Bradley, was more severely criticised than the other 
 Republican members, probably for the unphilosophical 
 reason that, while partisanship was expected of fourteen, 
 the "fifteenth" member, the real judge, should have been 
 unbiassed. It was his opinion that the president of the 
 Senate had not the power to count, — that the Constitu- 
 tion devolved this duty upon the two Houses. But if 
 examination was to be made by them, how far could the 
 Houses go? "The extreme reticence of the Constitution 
 leaves wide room for inference." The appointment of 
 electors belongs exclusively to the States ; so completely 
 is congressional and Federal influence excluded, that not 
 a member of Congress nor an officer of the Federal Gov- 
 ernment is allowed to be an elector. This exclusive 
 power and control of the State is ended and determined 
 
156 The Electoral System 
 
 when the day fixed by Congress for voting has arrived, 
 and the electors have deposited their votes and made out 
 the lists required by the Constitution. Until that time 
 the whole proceeding, except as to the date of election, 
 is conducted under State law and State authority. Con- 
 gress, he declared, cannot institute a scrutiny into the 
 appointment of electors by a State. The utmost it can 
 do is to ascertain whether the State has made an appoint- 
 ment according to the form prescribed by its laws. In 
 support of this view he referred to the proviso in the bill 
 of 1800 that "no petition or exception shall be granted, 
 allowed, or considered by the sitting grand committee, 
 which has for its object to draw into question the number 
 of votes given for an elector in any of the States, or the 
 fact whether an elector was chosen by a majority of the 
 votes in his State or district." The deduction was that 
 neither the commission nor Congress had power to enter 
 upon the proposed investigation. But, he said, inquiry 
 naturally arises as to the manner in which the electors 
 appointed by a State are to be accredited. The certificate 
 of the governor demanded by the Act of 1792 is only 
 prima facie evidence. The Houses may undoubtedly 
 inquire whether the supposed certificate is genuine. The 
 Houses would be bound to recognize the determination 
 of the State board of canvassers as the act of the State, 
 and, while they might go behind the governor's certificate, 
 if necessary, they could do so only for the purpose of in- 
 quiring whether he had truly certified the results at which 
 the board arrived. Discussing the Florida judgments, 
 which were pressed by the Democratic counsel with great 
 zeal upon the commission as conclusive, he asked "whether 
 the subsequent action of the courts or Legislature of 
 Florida can change the result arrived at and declared by 
 the board of State canvassers, and consummated by the 
 vote of the electors and the complete execution of their 
 function." He confessed that at one stage of the pro- 
 
The Case of Florida 157 
 
 ceedings he was inclined to consider the quo warranto 
 decree as sufficient to contradict the determination of the 
 State board of canvassers, — assuming, of course, that 
 the court had jurisdiction of the case; but upon reflec- 
 tion, viewing the action of the board of canvassers as a 
 determination, a species of judgment upon the vote of 
 the State, a quasi judicial proceeding under the Florida 
 statute, he had concluded that the judgment on the quo 
 warraiito was an attempted reversal of this decision, made 
 without jurisdiction. 
 
 " If," he said, ** the court had had jurisdiction of the sub- 
 ject-matter, and had rendered its decision before the votes of 
 the electors were cast, its judgment, instead of that of the re- 
 turning board, would have been the final declaration of the 
 result of the election. But its decision being rendered after 
 the votes were given, it cannot have the operation to change 
 or affect the vote, whatever effect it might have in a future 
 judicial proceeding in relation to the presidential election. 
 The official acts of officers de facto ^ until they are ousted by 
 judicial process or otherwise, are valid and binding. But it 
 is a grave question whether any courts can thus 'interfere with 
 the course of the election for President and Vice-President. 
 The remarks of Mr. Justice Miller on this subject are of great 
 force and weight." 
 
 Mr. Justice Clifford, president of the commission, 
 probably stated the Democratic offer of proof with judi- 
 cial accuracy : 
 
 ** Few, I presume, will deny that it is competent for the 
 commission to take notice of the statutes of the State relating 
 to the matter in controversy without any formal proof of their 
 legal authenticity. Suppose that is so, then there are no mat- 
 ters involved in the legal issues presented which may not be 
 thoroughly examined in a very few hours. Differences of 
 opinion may exist as to the legal effect of the evidence, if 
 admitted, but I have yet to learn that any one denies that 
 
I S3 The Electoral System 
 
 the alleged facts are capable of being proved by authentic 
 documents in the archives of the State. Certified copies of 
 the records and judgment of the court in the quo warranto 
 proceedings are also here, ready to be introduced, and no one, 
 I suppose, will deny that a duly exemplified copy of a record 
 or judgment between the same parties would be admissible in 
 this case, unless it be held that the action of the State can- 
 vassers or the certificate of the governor closes the door to all 
 investigations." 
 
 That neither the return of the State board nor the gov- 
 ernor's certificate concluded inquiry, he then proceeded 
 to argue. 
 
 None of the proceedings subsequent to December 6, 
 1876, **were intended to choose new electors" ; they were 
 "merely to ascertain who were elected at the antecedent 
 general election," and the Democratic contention was 
 stated, with great impressiveness by Justice Clifford, 
 when he said : 
 
 " Repeated admissions have been made during the discus- 
 sion that a State may determine what persons the qualified 
 voters have chosen and appointed electors of President and 
 Vice-President, but the proposition is advanced that the deter- 
 mination must be made before the electors meet and cast their 
 votes, and that it cannot be made at any subsequent time. 
 Antecedent investigation could not be made in this case be- 
 fore the electors voted, for the reason that the old board of 
 State canvassers did not make their return until the day when 
 the votes were cast, nor were the Hayes electors furnished 
 with the certificate of the governor until that day. All that 
 could be done by the way of investigation before that time 
 was done, as appears by the certificate of the Attorney Gen- 
 eral, which was also given to the Tilden electors on the same 
 6th of December. Without a moment's delay the Tilden 
 electors sued out a writ of quo warranto against the usurpers, 
 and by extreme diligence caused it to be served on them one 
 hour before they cast their votes. Weighed in the light of 
 
The Case of Florida 159 
 
 these suggestions, the proposition that subsequent investigation 
 cannot be made is monstrous, as it shows a mockery of justice. 
 You may investigate before the votes are cast when it is im- 
 possible for want of time, but you shall not after that, as you 
 would then have an opportunity to ascertain the truth! " 
 
 The following seems to be a fair summary of the points 
 actually decided by a majority of the commission: (i) 
 Congress has nothing to do v^rith the appointment of elec- 
 tors or the manner of their appointment. The single 
 function of an elector is to give one of the votes to which 
 the State is entitled for President and Vice-President. 
 His powers begin and end there. He has no permanent 
 office with continuing functions. (2) When the State 
 canvassing authority has declared who has been elected 
 an elector and has so certified in accordance with the law 
 of the State, the person named in that certificate is a duly 
 appointed elector, whose title, if he be not constitution- 
 ally disqualified, is beyond all challenge or impeachment, 
 except perhaps by the State, through some appropriate 
 tribunal. (3) But any such inquiry, assuming it can law- 
 fully be made, must be completed before the day for 
 casting the electoral vote arrives. (4) When the electors 
 have cast their votes, and transmitted them to the presi- 
 dent of the Senate, their functions are gone forever. 
 The power of the State in the election of a President is 
 then exhausted, her jurisdiction absolutely extinguished. 
 It is not in her power to undo or impair what she has 
 done, either by the action of her Legislature or her 
 courts. 
 
 There is a lack of unanimity among the majority of the 
 commission upon the question whether a State could re- 
 vise the action of its canvassing authority, even before 
 December 6th. Mr. Justice Strong said that if there be 
 any power over the election of electors up to the day 
 when the electors cast their ballots for President, the 
 
i6o The Electoral System 
 
 State undoubtedly has it. Mr. Justice Bradley seemed 
 to doubt whether any courts could interfere with the 
 course of an election for President and Vice-President. 
 
 Greater diversity of sentiment existed among the ma- 
 jority of the commission upon the question of an elector's 
 eligibility. An elector invested with color of office, said 
 Morton, was an elector de factOy whose right to vote 
 could not be challenged, even if he belonged to the class 
 upon which the Constitution has laid its prohibition. 
 Frelinghuysen declared the provision of the Constitution 
 not self-executing. Hoar would not rely upon **the doc- 
 trine which recognizes as valid in law the acts of public 
 or corporate officers, who, without rightful title, perform 
 the functions of an office with which they are in part 
 clothed." Garfield did not discuss the point. Justice 
 Strong also refused to consider it, because he regarded 
 the Hayes electors as officers de jure. Justice Miller's 
 view that the inquiry as to Humphreys' eligibility came 
 too late has been considered. The constitutional provi- 
 sion, in Miller's judgment, was not self-executing, nor 
 had Florida established any tribunal for the trial of ques- 
 tions affecting electors. Justice Bradley, while express- 
 ing similar views, said, in his opinion in the Louisiana 
 case, that he was not entirely satisfied with his previous 
 conclusion that "if a disqualified elector casts his vote 
 when disqualified, the objection cannot be taken. . . . 
 But as at present advised, I am inclined to the opinion 
 that, if constitutionally disqualified when he casts his 
 vote, such vote ought not to be counted." All the 
 minority of the commission unanimously held the con- 
 stitutional prohibition self-executing. The vote of an 
 elector whom the supreme law of the land forbids a State 
 to appoint they considered absolutely void. But what 
 tribunal was to decide the question? 
 
 The report of the commission, announcing its decision 
 that the Hayes electors had received the vote of Florida 
 
The Case of Florida i6i 
 
 and were duly appointed electors was made on February 
 9, 1877. The Houses convened on February loth, and 
 as objection was made to the decision the Houses then 
 separated. The Senate, by a strict party vote, sustained 
 the commission and decided that the votes given by the 
 Hayes electors should be counted. The decision of the 
 commission was received with disapproval in the House 
 of Representatives, which, on February 12th, by a vote 
 of 168 to 103 (nineteen not voting), decided to count the 
 votes given by the Tilden electors. The vote was a strict 
 party vote, except that one Democrat concurred with the 
 Republicans. 
 
CHAPTER VII 
 
 THE LOUISIANA CASE 
 
 THE views enunciated by a bare majority of the com- 
 mission in the Florida case plainly foreshadowed 
 their decision upon the returns from Louisiana and South 
 Carolina. From Louisiana there came to the presiding 
 officer of the Senate three sets of returns, and these, with 
 the objections thereto, were referred to the commission. 
 
 To understand the case presented to the commission, 
 a brief summary of antecedent events in Louisiana be- 
 comes necessary. 
 
 The Legislature of Louisiana, in the winter of 1872, 
 abolished the returning or canvassing board created by 
 an act passed in 1870, and authorized the State Senate to 
 elect from all political parties a new board of five per- 
 sons, to be the returning officers for elections in the State 
 and to have power to make the returns of all elections, a 
 majority to constitute a quorum. 
 
 The returning officers were to compile the statements 
 from all polls or voting places at which there should have 
 been a fair, free, and peaceable registration and election. 
 And whenever, from any poll or voting place, there 
 should be received the statement of any supervisor of 
 registration, or commissioner of election, in the form 
 prescribed by the act, based upon the affidavits of three 
 or more citizens, of any riot, tumult, acts of violence, in- 
 timidation, armed disturbance, bribery, or corrupt influ- 
 ence, preventing or tending to prevent a fair, free, and 
 
 162 
 
The Louisiana Case i6 
 
 o 
 
 peaceable vote of all the qualified electors entitled to 
 vote at such poll or voting place, the returning officers 
 were charged with the duty of investigating the state- 
 ment, and if upon investigation they should become 
 satisfied that such riot, tumult, acts of violence, intimida- 
 tion, armed disturbance, bribery, or corrupt influence did 
 materially interfere with the purity and freedom of the 
 election or registration at such polling place, the return- 
 ing officers were authorized to exclude all the votes from 
 such place from their returns. 
 
 This statute, while it conferred extensive judicial 
 powers upon the returning officers, — powers which the 
 Supreme Court of the State had decided to be constitu- 
 tionally granted, — authorized these returning officers to 
 reject the votes of a poll only when a verified statement, 
 based upon affidavits of at least three citizens, had been 
 forwarded by the supervisor of registrations or the com- 
 missioner of elections in the district and when the state- 
 ment after investigation had been proved correct. The 
 statement was required to be forwarded to the board, 
 together with the returns from the precinct or parish 
 concerned. ' ' Not a single parish, ' ' said one of the Demo- 
 cratic counsel, "sent up any such statement with its 
 return, verified by the affidavit of three persons." The 
 returning officers had no authority to make the investiga- 
 tion, as Morton had said in the report of the Senate 
 committee of 1873, unless the foundation was first laid by 
 the sworn statements of officers present at the election. 
 On February 23, 1875, a committee of the House of 
 Representatives, of which Hoar, Wheeler, and Frye were 
 members, reported to the House that the powers of the 
 returning board were limited to a canvass and compila- 
 tion of the returns lawfully made to them by the local 
 officers, except in cases where such returns were accom- 
 panied by the certificate of the supervisor or commis- 
 sioner, provided in the third section of the Act of 1872. 
 
1 64 The Electoral System 
 
 ** In such cases, the last sentence of that section shows that 
 it was expected that they [the returning officers] would ordi- 
 narily exercise the grave and delicate duty of investigating 
 charges of riot, tumult, bribery, or corruption on a hearing of 
 the parties interested in the office. It never could have been 
 meant that this board, of its own motion, sitting in New- 
 Orleans, at a distance from the place of voting, and without 
 notice, could decide the rights of persons claiming to be 
 elected." 
 
 On November i6, 1876, the returning officers met in 
 New Orleans to canvass the returns of the recent elec- 
 tion. The fifth member of the board, who was a Demo- 
 crat, resigned immediately after the election, and his 
 four Republican associates declined to fill the vacancy. 
 Against the protests of Democratic leaders the board 
 held its sessions in secret, nor would it allow the United 
 States supervisors to be present or counsel for contest- 
 ants to watch the counting of returns. Although in four 
 Republican parishes the names of only three electors ap- 
 peared on the ballots, it treated these ballots as though 
 they bore the names of the eight electors. Its principal 
 changes had been made by counting for all the eight 
 Hayes electors some twelve thousand ballots bearing the 
 names of only three ; and by throwing out without even 
 the semblance of a protest about thirteen thousand 
 Democratic and two thousand Republican votes, mainly 
 in the parishes of East Baton Rouge, De Soto, East and 
 West Feliciana, Grant, Iberia, Lafayette, Lafourche, 
 Morehouse, and Ouachita. The fraudulent and illegal 
 action of the returning officers had. Senator McDonald 
 claimed before the Electoral Commission, been proved in 
 the evidence taken by the Senate Committee on Privileges 
 and Elections, in pursuance of a resolution of the Senate, 
 adopted December 4, 1876, and had been established in 
 the testimony taken by a special committee of the House 
 of Representatives. Senator Howe, in his address before 
 
 
The Louisiana Case 165 
 
 the commission, admitted that the board had rejected the 
 votes, in part or in whole, of twenty-two parishes, but 
 maintained that these votes had been thrown out after 
 satisfactory proof to the returning officers of violence and 
 intimidation. He did not claim, however, that the statu- 
 tory protests had first been filed. Direct proof of violence 
 or intimidation was wanting in a number of instances; 
 the Republican counsel sought to supply the lack by 
 inference. The great disparity between the registration 
 of white and colored citizens and the actual vote proved 
 conclusively, they said, that colored men had been for- 
 bidden to vote or forced to cast their ballots for Demo- 
 cratic electors. 
 
 The first of the three sets of returns from Louisiana 
 was nominally correct in form. It was signed by the 
 eight Hayes electors on December 6, 1876, and to it was 
 annexed a certificate of William Pitt Kellogg, then gov- 
 ernor of the State, certifying to the election of these 
 electors, of whom he himself was one. Return No. 3, 
 was in effect the same as No. i. Return No. 2 was 
 signed by the eight Tilden electors and was attested 
 by the certificate, dated December 6, 1876, of John 
 McEnery, who claimed to be the governor of the State. 
 To certificates No. i and No. 3, the Democratic counsel 
 registered a long series of objections, in substance as 
 follows: That the State was without a Republican 
 form of government and that Kellogg was not its gover- 
 nor; that there was no law in force in November, 1876, 
 regulating the appointment of presidential electors; that 
 the people had elected the Tilden electors by a majority 
 for each of six thousand and upwards, and that said elec- 
 tors had received a certificate from the lawful governor, 
 McEnery; that the returning board was an unconstitu- 
 tional body; that the statutes creating it and clothing it 
 with judicial functions conflicted with the Constitution; 
 and that four members of the board, all of one political 
 
1 66 The Electoral System 
 
 party, had no jurisdiction to canvass the votes. It was 
 objected also that these returning officers could not reject 
 the statement of the votes at any poll without the cer- 
 tificate and proofs required by the statute ; that no pro- 
 tests sufficient to change the result of the election as 
 shown on the face of the returns had been filed, but that 
 the board had fraudulently rejected votes and changed 
 returns; and that two electors, Levissee and Brewster, 
 were Federal officers on November 7, 1876, the first a 
 commissioner of the United States Circuit Court, and 
 the second a surveyor-general of the land office of the 
 district of Louisiana. It was further objected that the 
 State law forbade the appointment of certain State offi- 
 cers, including the governor, as electors. 
 
 To return No. 2 the Republican counsel objected 
 that there was no evidence that any of the so-called 
 Tilden electors had been appointed as the Legislature 
 directed, and that McEnery was not the governor of the 
 State. 
 
 At the suggestion of the commission, the Democratic 
 counsel through Trumbull formulated an offer of proof 
 analogous to that made by O'Conor in the Florida case. 
 This offer contained the several matters set up by the 
 Democrats in opposition to certificates numbered i and 3 ; 
 and the discussion proceeded upon this proffer of evidence. 
 In their argument the Democratic counsel not only con- 
 tended that the two Houses in joint meeting had power to 
 go behind the State returns, but went to the extreme 
 length of insisting that as each House of Congress was the 
 constitutional judge of the election of its own members, 
 the two Houses were judges of the election of presidential 
 electors. In support of a claim hostile to the Constitution, 
 appeal was made to the action of Congress in 1873. 
 Senator McDonald, of Louisiana, urged the commission 
 to consider the evidence that had been taken by the 
 Senate committee and the special committee of the 
 
The Louisiana Case 167 
 
 House, and to find, either upon that evidence or upon 
 any other that the commission decided to receive, 
 whether the Hayes or the Tilden electors had been 
 elected. Representative Jenks, one of the counsel for 
 the Tilden electors, stated that he was prepared to prove 
 that the Tilden electors were elected in the manner pre- 
 scribed by the statutes of Louisiana, and he dilated upon 
 the fact that votes had been thrown out by the returning 
 board in a number of parishes throughout the State. It 
 was the duty of the commission, said Jenks, to receive 
 the testimony taken by the Senate and the House com- 
 mittees, for the commission was acting "substantially as 
 though it were a congressional body." Matthew H. 
 Carpenter, whose affiliations had formerly been with the 
 Republican party and who had been a member of the 
 Senate committee which reported upon the unconstitu- 
 tional and unwarrantable action of the returning board 
 of Louisiana, in 1873,' argued that four persons styling 
 themselves the returning board of that State had, with- 
 out the semblance of jurisdiction, rejected ten thousand 
 Tilden votes and declared the Hayes electors elected by 
 about two thousand majority. Starting with the premise 
 that both Houses of Congress had power to count the 
 electoral returns, and that both Houses had repeatedly, 
 through committees, made inquiry into the election pro- 
 cesses of the State, the Democratic counsel easily deduced 
 
 ' " I desire to say, in the first place, that I do not appear for Samuel J. 
 Tilden. He is a gentleman whose acquaintance I have not the honor of ; 
 with whom I have no sympathy ; against whom I voted on the 7th of No- 
 vember last ; and if this tribunal could order a new trial, I should vote 
 against him again, believing, as I do, that the accession of the Democratic 
 party to power in this country to-day would be the greatest calamity that 
 could befall the people except one, and that one greater calamity would be 
 to keep him out by fraud and falsehood. I appear here for 10,000 legal 
 voters of Louisiana, who, without accusation or proof, indictment or trial, 
 notice or hearing, have been disfranchised by four villains, incorporated 
 with perpetual succession, whose official title is ' The Returning Board of 
 Louisiana.' " 
 
1 68 The Electoral System 
 
 the possession of such power by the commission. Against 
 the claim that Levissee and Brewster, who were Federal 
 officers on November 7, 1876, had been appointed elec- 
 tors, Carpenter very forcibly said : 
 
 " Every lawyer will concede that a person forbidden by the 
 Constitution to be appointed an elector is equally forbidden by 
 the Constitution to be an elector or to cast a vote for President 
 or Vice-President. . , . The provision of the Constitution 
 strikes at the very root of the matter. ... In other 
 words, he violates the Constitution by acting and voting in the 
 electoral college. ' ' 
 
 Votes cast by such Federal officers he affirmed to be no 
 votes; such should be excluded from the count. 
 
 Lyman Trumbull, a former Republican and the famous 
 author of the ironclad twenty-second joint rule, offered 
 to show that Kellogg the elector and Kellogg the gover- 
 nor de facto were identical; that the constitution of 
 Louisiana forbade any person to hold more than one 
 office of trust or profit in the State, with the single ex- 
 ception of justices of the peace and notaries public. Pur- 
 suing the same line of argument as Carpenter, he claimed 
 that Kellogg had not been elected, but actually had seven 
 thousand less votes than each of the Tilden electors. He 
 pleaded for the exercise by the commission of the power 
 to canvass the vote, which, he urged, had been deposited 
 with the two Houses of Congress, and trenchantly asked : 
 "Is it to turn out that this commission was formed for 
 the mere purpose of doing a sum in arithmetic, of adding 
 up certain figures?" In 1873, said Trumbull, both 
 Houses, as a result of the reports of their investigating 
 committees, decided not to count the electoral vote of 
 Louisiana, although Governor Warmoth had given a cer- 
 tificate in due form. But an inquiry by Commissioner 
 Edmunds elicited the fact that the Senate committee in 
 1873 had expressed the sound opinion that neither the 
 
The Louisiana Case 169 
 
 Senate nor both Houses jointly "have the power under 
 the Constitution to canvass the returns of an election, 
 and count the votes to determine who have been elected 
 presidential electors, but that the mode and manner of 
 choosing the electors are left exclusively to the States." 
 Trumbull having also argued that the appointment of 
 certain electors was invalid under the constitution of the 
 State of Louisiana, Morton asked the profoundly inter- 
 esting question whether, inasmuch as the Federal Consti- 
 tution gives to the Legislature of a State the control of 
 the appointment of electors, it was competent for the 
 State by her constitution to control the Legislature in 
 the exercise of that power. Trumbull answered: "I 
 should say a Legislature is bound to observe the State 
 constitution as well as the Constitution of the United 
 States, unless they conflict." 
 
 Shellabarger, one of the ablest lawyers of his day, and 
 an advocate, in 1869, of the power of the president of 
 the Senate to count the votes, made a cogent argument 
 in support of the Republican objections to return No. 
 2 and against the contentions of the Democratic counsel. 
 The main question, said Shellabarger, is what the com- 
 mission has just decided regarding Florida: "whether or 
 not it is competent for you to go behind the action of 
 the returning board of Louisiana for the purpose of 
 finding out what happened in its exercise of the jurisdic- 
 tion vested in it by statute"; and he cited the decision 
 of the Louisiana courts to show that the acts of the re- 
 turning board were final. The real question had been 
 accurately phrased by Judge Miller — whether, there being 
 a board competent under Louisiana law to make the 
 returns and required by that law to find out, declare and 
 certify who were duly elected to the offices in the State, 
 including the office of presidential electors, the commis- 
 sion had any power to review the board's conclusions. 
 Evarts, in a logical and powerful argument, showed that 
 
lyo The Electoral System 
 
 the Democrats had shifted their ground. They had at 
 first insisted that the commission had judicial power; and 
 afterwards that it had legislative power, — the power of 
 the two Houses of Congress, in respect to the election of 
 their own members. Evarts maintained that the commis- 
 sion had only the powers vested in the two Houses in the 
 sole matter of counting the votes, — "the powers that the 
 two Houses have in the act and transaction of counting 
 the vote, and no other powers." The offer of evidence, 
 he argued, included nothing tending to show that either 
 Levissee or Brewster was ineligible on December 6, 1876; 
 nevertheless, assuming them to have been ineligible, 
 "they had been elected, inducted into the office of elec- 
 tors," and the State could not be stripped of its electoral 
 vote "by extraneous evidence, adduced at the moment 
 of counting the vote, that a man was ineligible." 
 
 During the argument of Judge Campbell, who closed 
 the case for the Tilden* electors, an interesting colloquy 
 took place between him and Judge Strong, in which the 
 Democratic and the Republican mind seemed to occupy 
 positions the reverse of those which would naturally be 
 ascribed to them. Judge Strong asked Campbell whether 
 it was within the power of the State to constitute a 
 tribunal to try contests between two sets of electors who 
 claimed under an election. 
 
 " Unquestionably," answered Judge Campbell. " Then," 
 said Commissioner Strong, " you contend that the power of 
 judging of the honesty or accuracy of the decision of the re- 
 turning board is in the State. 
 
 "Campbell: In case of State officers. 
 
 " Commissioner Strong: I am speaking of electors. 
 
 "Campbell: . . . My own opinion is that the State 
 has no jurisdiction over the elector. 
 
 " Strong: Cannot review its own election for electors? 
 
 "Campbell: ... I say that the election is to be re- 
 viewed and examined finally by the two Houses of Congress, 
 
( UNIv 
 
 Of 
 
 %^jfc6uisiana Case 171 
 
 when their certificates of returns come. . . . My view 
 of these electors under the Constitution is, that the State is the 
 instrument and the agency, and its laws are instrumental for 
 the purpose of communicating to the two Houses of Congress 
 the election of electors; and the two Houses of Congress, in 
 determining who has a majority of all the electors, necessarily 
 can inquire whether those electors were fairly chosen or not. ' * 
 
 The expanding functions of Congress include authority 
 not only to count the electoral votes presented at the 
 joint session of the two Houses, but to descend beneath 
 the certified return from the State, brush aside the deter- 
 mination of the State returning board, and conduct a 
 trial of the question whether electors had actually been 
 elected ! This assuredly is far from the old Democratic 
 moorings. Campbell was on safer ground when he 
 added : 
 
 " Congress could create a tribunal to inquire into the validity 
 and truthfulness and regularity of any election for electors, for 
 the purpose of determining the question whether the votes 
 cast for President and Vice-President are cast by men compe- 
 tent to do so. It is the only legitimate place where such a 
 tribunal could come from, because the power to be exercised 
 by electors affects every citizen and every interest in the 
 United States; every State in this Union is interested in that 
 decision, and no State would be justified in allowing the de- 
 termination of such questions finally to rest in a State tribunal. " 
 
 He closed his argument with a graphic and powerful 
 description of affairs in the State : 
 
 " The State is in the possession of an oligarchy of unscrupu- 
 lous, dishonest, corrupt, overreaching politicians and persons 
 who employ the powers of the State for their own emolument. 
 . . . For years they have usurped the powers of the State 
 by means that have brought upon them the condemnation of 
 the Senate of the United States, of the House of Representa- 
 
172 The Electoral System " 
 
 tives of the United States, and, I may say, of the whole people 
 of the United States. Those practices have been covered; 
 immunity has been granted to them, because of their inter- 
 course and connection with the politics and parties of the 
 Union; and, without that connection, they would not stand 
 in that State for a single hour. By their association they 
 have prostrated every material and endangered every moral 
 interest within the limits of the State. . . . The rings in 
 Louisiana have affected the peace of this country." 
 
 While the history of Louisiana during reconstruction 
 remains to be fully written, there exists little doubt of 
 the truthfulness and accuracy of the indictment formu- 
 lated and presented to the commission by the Democratic 
 counsel. But a question of greater and more profound 
 interest than the anarchic state of affairs in Louisiana 
 was before the commission, and that question was as to 
 the right of that body or of Congress to revolutionize the 
 Government of the United States by an investigation of 
 an election of presidential electors within a State. 
 
 The commission divided, as in the Florida case, by a 
 vote of eight to seven. Morton, in his opinion, said: 
 "An offer is made to impeach the decision of the return- 
 ing ofificers of Louisiana by showing that they threw out 
 votes in violation of law, that their rulings were arbitrary 
 and unjust, and that in point of fact the Tilden electors 
 were appointed." He voted in favor of excluding such 
 proofs because the appointment of the Hayes electors 
 was duly certified by the governor of the State, and their 
 appointment by the votes of the people was declared in 
 due form of law by the proper returning ofificers of the 
 State, who alone were duly authorized to canvass, and 
 determine the persons appointed electors. 
 
 ** The whole question comes down to this simple proposi- 
 tion: Is it competent for the two Houses of Congress, or for 
 this commission acting in their stead, when counting the elec- 
 
The Louisiana Case 173 
 
 toral votes for President, to go behind the decision made by 
 the officers appointed by the Legislature of the State for the 
 purpose of canvassing and determining the result of the elec- 
 tion, to inquire what was the number of votes cast for one set 
 of candidates, or for the other; whether the election was fairly 
 conducted and whether the officers appointed by the State to 
 conduct the election or to determine its results acted within 
 the limits of the law or upon sufficient evidence. A majority 
 of this commission decided in the Florida case that we had 
 no such power, and I believe that time and the good sense of 
 the American people will justify the decision in every respect." 
 
 Senator Thurman, on the contrary, in voting for the 
 admission of the evidence, forcibly said : 
 
 * * I deny that the returning board of Louisiana has any law- 
 ful existence. I deny that the constitution of that State, or 
 anything in the Federal Constitution, confers upon her Legis- 
 lature power to create such a board. . . . It is a board 
 consisting of five persons holding their offices without any 
 limitation of time and filling all the vacancies that occur in 
 their own body. It is, therefore, a kind of perpetual, self- 
 preserving, and self-perpetuating corporation. . . . The 
 board is in effect constituted the State — to govern it accord- 
 ing to its own arbitrary will and discretion. There is no repub- 
 lican government in Louisiana. There can be no republican 
 government in that State so long as this returning board is 
 upheld. An oligarchy more corrupt, more odious, more anti- 
 republican, never before existed on this globe." 
 
 But as there was a semblance of government in the State, 
 and as the courts of the State had sustained the validity of 
 the legislation under which the returning board was organ- 
 ized, Thurman's argument was unsound. And there was 
 a fallacy in his contention that inasmuch as Congress had 
 gone behind the returns in 1873, the commission, armed 
 with like powers, should ignore the determination of the 
 
174 The Electoral System 
 
 State board and hear the evidence offered by the Demo- 
 cratic counsel. The evil example of Congress was no 
 guide to a body seeking to follow the Constitution. In 
 fact, the decision of the commission was a severe arraign- 
 ment of the Republican policy of investigating Southern 
 elections. 
 
 Frelinghuysen, who voted with the majority, answering 
 Thurman's objection that the board was not composed 
 of members from all political parties, said: "If the pro- 
 vision that the board must consist of those having differ- 
 ent political opinions were constitutional, which I much 
 doubt, the requirement is clearly only directory" ; but it 
 was beside the mark to attempt to pass upon the consti- 
 tutionality of this State legislation. 
 
 Bayard argued that the Democratic proofs should be 
 received. There was an offer to prove that four persons 
 only, for two years and upwards, had composed a board 
 which, by the language of the act, was to consist of five 
 persons ; and that, although there were eighty-six thou- 
 sand registered Democratic voters in Louisiana, not one 
 of them had ever been elected to fill the vacancy. 
 
 " The case presented for our consideration is whether we 
 will sustain the constitution and the rights of the State of 
 Louisiana under it to have the voice of her people, as pro- 
 claimed at the election held on November 7, 1876, hearkened 
 unto and obeyed, or whether we will permit this false persona- 
 tion of the State, a band of infamous men and treacherous 
 officials, to palm off upon the State of Louisiana and upon 
 every State in this Union eight false electoral votes, and by 
 such votes determine the possession of the executive power of 
 this government for the next four years. . . . " 
 
 Right or wrong, Bayard was in accord with Hoar, 
 Wheeler, and Frye, when they declared, in their report 
 to the House, in 1875, that the question did not con- 
 cern the people of Louisiana alone, but that the people of 
 
The Louisiana Case 175 
 
 the United States had "an interest in the question whether 
 Senators and Representatives for Louisiana, thrust into 
 their seats by illegal means, shall sit in Congress to make 
 laws for them, and whether electors y gaining their office in 
 like manner, shall turn the scale in the choice of a President 
 of the United States.'' Bayard argued also that Levissee 
 and Brewster both held offices of trust and profit under 
 the United States on November 7, 1876, that the Federal 
 Constitution prohibited their appointment, and that the 
 provision of the Constitution was self-enforcing. He 
 described that provision as "a limitation upon the power 
 of the State to do a certain act." Nor did Bayard sub- 
 scribe to the view that the Constitution of the United 
 States meant to exalt the State Legislature over the 
 State constitution in the appointment of presidential 
 electors. 
 
 ** I do not hold that the Constitution of the United States 
 contemplated the deposit in the * Legislature ' of a State of the 
 control of the appointment of electors as a body distinct from 
 the State itself, with power to act independently and regard- 
 less of the arrangements of the constitution of the State. All 
 power vested in the Legislature of a State is defined and limited 
 by the State constitution, and all laws passed by any State 
 Legislature in violation of the constitution of a State are as 
 absolutely void as if passed in violation of the Constitution of 
 the United States, which is the supreme law of the land. The 
 Legislature of a State being, therefore, merely one department 
 of the State government and clearly subordinate to the will of 
 the State as expressed in its constitution, cannot give validity 
 to any statute which violates the principles of republican gov- 
 ernment in a State or deprives the people of that State of their 
 rights intended to be secured against encroachment by any 
 of their rulers or officials by the terms of their written consti- 
 tution and charter of powers." 
 
 Eppa Hunton, in commenting upon the features of 
 
i;^ The Electoral System 
 
 the case that distinguished it from the Florida case, 
 said: 
 
 " In the first place it is offered to prove that this canvassing 
 board was not legal, because it should have consisted of five 
 whereas it consisted only of four. That these four persistently- 
 refused to fill the board, and give the Democrats a represen- 
 tation in said board, and that such refusal was for the purpose 
 of concealing from the opposite party the fraudulent acts of 
 said board by which they gave the returns to the Hayes 
 electors." 
 
 The report, of the committee of the House of Representa- 
 tives declaring the action of the Louisiana returning 
 board in 1873 null and void was acquiesced in by both 
 Houses of Congress, and the electoral vote of Louisiana 
 was rejected by concurrent action on the ground, Hunton 
 said, that the laws of the State had not been complied 
 with in the canvass and return of the votes cast for 
 electors. 
 
 According to Commissioner Abbott, there was no 
 legally constituted returning board in Louisiana, with 
 any power to canvass the vote. Commissioner Hoar 
 failed to express any opinion in the Louisiana case other 
 than that indicated by his vote, while Commissioner 
 Garfield considered the conclusion reached by the com- 
 mission in the Florida case as decisive of the Louisiana 
 case, there being no difference in principle between the 
 two as to the offer of proof. The Louisiana Supreme 
 Court, he asserted, had decided that a board of four per- 
 sons was the lawful returning board of the State, and the 
 construction given by a State court to the statutes of the 
 State was binding upon Federal tribunals. The Louisi- 
 ana courts had also upheld the constitutionality of the 
 law creating the board. Louisiana had followed the 
 method prescribed by her Legislature, which had been 
 reviewed by her highest court and declared constitu- 
 
 J 
 
The Louisiana Case i77 
 
 tional. The State possessed the sole authority to deter- 
 mine who were her electors. "Certificate No. 2 comes 
 before us," he said, "with no semblance of authority. 
 . . . It is signed by a man who for three years has 
 not even pretended to be governor." He took sharp 
 issue with Bayard, declaring that, whether the acts of the 
 returning board were in conflict with the constitution of 
 Louisiana or not, they were in accordance with the mode 
 of procedure prescribed by her Legislature; "and the 
 national Constitution confers upon the State Legislature 
 the sole and exclusive authority to prescribe the mode of 
 appointment." 
 
 As in the Florida case, neither Commissioner Edmunds 
 nor Commissioner Payne delivered an opinion. Mr. 
 Justice Field wrote no opinion on the Louisiana case, 
 nor did Commissioner Strong, his views having suffi- 
 ciently appeared in the colloquy between him and Mr. 
 Justice Campbell. Nor did Commissioner Miller take 
 any part in the discussion, because, as he afterwards said, 
 in his opinion in the Oregon case, the Louisiana case was 
 governed by the principles laid down by him in the 
 Florida case and which had received the approval of the 
 commission. 
 
 Great interest attaches to the opinion of Mr. Justice 
 Bradley, who has been satirically styled the "fifteenth" 
 member of the commission. Judge Bradley condensed 
 the objections to the first and third return from Louisi- 
 ana, asserting that the first two objections,— that the 
 State is without a republican form of government, and 
 that Kellogg was not the governor, — had not been seri- 
 ously urged. The third objection, that there was no 
 law in force in November, 1876, regulating the appoint- 
 ment of electors, which had been strenuously argued by 
 several of the Democratic counsel, turned, said Judge 
 Bradley, upon the question whether the presidential 
 electoral law of 1868 was or was not repealed by the 
 
178 The Electoral System 
 
 general election law of 1872; and after reviewing the 
 statutes he declared the earlier law unrepealed, except as 
 to the mode of canvassing the returns, which was to be 
 performed by the returning board created by the act of 
 1872. He failed, he said, to perceive the unconstitu- 
 tionality of the law creating the returning board, for he 
 considered that question had been settled by the Louisi- 
 ana Supreme Court. "The objection that there were 
 only four members constituting the board at the canvass 
 in December last," he said, "is met by the general rule 
 of law in regard to public bodies, that the happening of 
 a vacancy does not destroy the body if a quorum still 
 remain." With the motives that inspired the Republican 
 members to leave the vacancy unfilled, he considered the 
 commission had nothing to do. "The question with 
 which we have to do is a question of power, of legal 
 authority in four members to act. And of this I have 
 no doubt." As to the general charge of fraud in the 
 proceedings of that board, he deemed his views in the 
 Florida case an adequate answer ; the commission could 
 not go behind the returns. On two points he declared 
 himself perfectly clear: First, that the two Houses did 
 not constitute a canvassing board for the purpose of in- 
 vestigating and deciding on the results of an election for 
 electors in a State. The proposed act of 1800 carefully 
 excluded any inquiry into the number of votes on which 
 an elector was elected, and it could not well be pretended 
 that the Houses had power to go farther into the inquiry 
 than was proposed by that bill. Secondly, they did not 
 constitute a tribunal or court for trying the validity of 
 election returns and sitting in judgment on the legality 
 of the proceedings in the course of the election. Never- 
 theless, Congress had in previous years usurped this 
 power, and one of the strongest pleas made by the 
 Democratic counsel was that the commission should 
 follow the course of Congress. The following quota- 
 
The Louisiana Case 179 
 
 tions from Judge Bradley's opinion are profoundly inter- 
 esting: 
 
 ' * Whether the legislative power of the Government might 
 not, by law, make provision for an investigation into frauds 
 and illegalities, I do not undertake to decide. It cannot be 
 done, in my judgment, by any agency of the Federal Govern- 
 ment without legislative regulation. The necessity of an 
 orderly mode of taking evidence and giving opportunity to 
 cross-examine witnesses would require the interposition of 
 law. The ordinary power of the two Houses as legislative 
 bodies, by which they investigate facts through the agency of 
 committees, is illy adapted to such an inquiry. It seems to 
 me, however, the better conclusion, that the jurisdiction of 
 the whole matter belongs exclusively to the States. Let them 
 take care to protect themselves from the perpetration of 
 frauds. They need no guardians. They are able, and better 
 able than Congress, to create every kind of political machinery 
 which human prudence can contrive, for circumventing fraud, 
 and preserving their true voice and vote in the presidential 
 election." 
 
 His decision, therefore, was for the rejection of the 
 evidence. 
 
 Judge Bradley declared that the alleged ineligibility 
 under State laws was a matter beyond the pale of con- 
 sideration by the commission. He further said : 
 
 " Two of the electors, however, Levissee and Brewster, are 
 alleged to have held offices of trust and profit under the United 
 States, when the election was held on the 7th of November. 
 It is not alleged that they did so on the 6th of December, 
 when they gave their votes. Being absent when the electoral 
 college met, their places were declared vacant, and the college 
 itself proceeded to reappoint them under the law, and sent 
 for them. They then appeared and took their seats. So 
 that, in point of fact, the objection does not meet the case, 
 unless their being Federal office-holders at the time of the 
 election affects it. 
 
I So The Electoral System 
 
 ** Though not necessary to the decision of this case, I have 
 re-examined the question of constitutional ineligibility since 
 the Florida case was disposed of, and must say that I am not 
 entirely satisfied with the conclusion to which I then came, 
 namely, that if a disqualified elector casts his vote when dis- 
 qualified, the objection cannot be taken. I still think that 
 this disqualification at the time of his election is not material, 
 if such disqualification ceases before he acts as an elector. 
 But, as at present advised, I am inclined to the opinion that if 
 constitutionally disqualified when he casts his vote, such vote 
 ought not to be counted. 
 
 " I still think, as I thought in discussing the Florida case, 
 that the form of the constitutional prohibition is not material ; 
 that it is all one, whether the prohibition is that a Federal 
 officer shall not be an elector, or that he shall not be appointed 
 an elector. The spirit and object of the prohibition is to 
 make office-holding under the Federal Government a disquali- 
 fication. That is all. And this is the more apparent when 
 we recollect the reasons for it. When the Constitution was 
 framed, the great object of creating the office of electors to 
 elect the President and Vice-President was to remove this 
 great duty as far as possible from the influence of popular 
 passion and prejudice, and to place it in the hands of men of 
 wisdom and discretion, having a knowledge of public affairs 
 and public men. The idea was that they were to act with 
 freedom and independence. The jealousy which was mani- 
 fested in the convention against the apprehended influence 
 and power of the General Government, and especially of the 
 legislative branch, induced the prohibition in question. It 
 was feared that the members of the Houses of Congress and 
 persons holding office under the Government would be pecul- 
 iarly subject to these influences in exercising the power of 
 voting for chief magistrate. It was not in the process of ap- 
 pointment that this influence was dreaded; but in the effect it 
 would have on the elector himself in giving his vote. 
 
 " It seems to me, therefore, that if a person appointed an 
 elector has no official connection with the Federal Government 
 when he gives his vote, such vote cannot be justly excepted 
 
The Louisiana Case i8i 
 
 to. And that substantial effect is given to the constitutional 
 disqualification if the electoral vote given by such officer is 
 rejected. And my present impression is that it should be 
 rejected. 
 
 " Circumstances, it is true, have greatly changed since the 
 Constitution was adopted. Instead of electors being, as it was 
 supposed they would be, invested with power to act on the 
 dictates of their own judgment and discretion in choosing a 
 President, they have come to be mere puppets, elected to ex- 
 press the pre-ordained will of the political party that elects 
 them. The matter of ineligibility has come to be really a 
 matter of no importance, except as it still stands in the Con- 
 stitution, and is to be interpreted as it was understood when 
 the Constitution was adopted. Hence we must ascertain, if 
 we can, what was its original design and meaning, without 
 attempting to stretch or enlarge its force." 
 
 Mr. Justice Clifford, the president of the commission, 
 believing further discussion useless, rendered no opinion 
 either in the Louisiana or the Oregon case. 
 
 The commission, on February i6, 1877, by a vote of 
 eight to seven, decided that evidence that the returning 
 board was unconstitutional and its acts null and void was 
 inadmissible, and that an offer to prove that it was ille- 
 gally constituted or possessed of no jurisdiction should 
 also be rejected. It declined to receive testimony show- 
 ing that frauds had been committed in the returns or 
 that the votes cast had never been canvassed by the 
 returning board, and also refused to receive evidence 
 tending to prove the ineligibility of any of the electors, 
 the vote upon each proposition being eight to seven. It 
 upheld the doctrine announced in the Florida case, that 
 it had no jurisdiction to go behind the determination of 
 the State returning officers. 
 
 Mr. Justice Bradley alone, of the majority of the 
 commission, expressed any opinion upon the alleged in- 
 eligibility of Levissee or Brewster. Neither Morton, 
 
1 82 The Electoral System 
 
 Frelinghuysen, nor Garfield, the only others of the 
 majority who wrote opinions in the Louisiana case, 
 alluded to the subject ; whereas all of the minority mem- 
 bers who wrote agreed that the testimony as to ineligibil- 
 ity should be received. Thurman declared that the 
 Constitution of the United States made such officers 
 ineligible not merely to hold an office or trust, but to be 
 appointed to the office or trust. Nor did his perusal of 
 the Louisiana statutes reveal to him the source of the 
 power exercised by the other electors to fill vacancies in 
 the college. Bayard, after reviewing at length the pro- 
 visions of the Louisiana statutes, reached the conclusion 
 that "no statute exists authorizing the filling of a vacancy 
 in the office of elector"; and, even were there such a 
 statute, there were no vacancies, as the men were ineligi- 
 ble, and their attempted appointment utterly void. 
 Hunton coincided with Thurman and Bayard and quoted 
 extensively from that part of Carpenter's address in 
 which the latter urged that, in any event, the votes of 
 these two Hayes electors must be rejected. It is 
 difficult to explain the extraordinary divergence of 
 opinion between the Democratic and the Republican 
 commissioners, all men of disciplined faculties and 
 trained in the investigation and analysis of facts; it, 
 indeed, shows, as Judge Bradley said, that "the pass- 
 age of some law regulating the matter is on all ac- 
 counts desirable." The Louisiana case, like the Florida 
 case, illustrates the folly as well as the danger of entrust- 
 ing the decision of a contested presidential election to 
 any tribunal, however wise or impartial it is assumed to 
 be, which is not governed and controlled by positive 
 statutory regulations prescribed in advance. There was 
 no existing law to govern the count ; and, as Mr. Blaine 
 well said, in his Twenty Years of Congress, it is in the 
 nature of things impossible, to constitute, after an elec- 
 tion, a commission whose decision will be accepted by 
 
The Louisiana Case 183 
 
 both political organizations as impartial. The decisions 
 of such a commission can hardly be impartial. The de- 
 cision of the commission that the certificates of the Hayes 
 electors were the true vote of Louisiana was reported to 
 the two Houses and the electoral count was resumed by 
 them on February 19th. Upon objection to the deci- 
 sion, the two Houses separated. The Senate, by a vote 
 of 41 to 28, sustained the decision, but the House — 173 
 to 99 (18 not voting) — voted that the electoral votes 
 cast by the Hayes electors ought not to be counted. As 
 in the case of Florida, the vote in each House was a 
 strict party one, save that two Republicans in the House 
 of Representatives voted with the Democrats. 
 
CHAPTER VIII 
 
 THE OREGON CASE— THE SOUTH CAROLINA CASE 
 
 THE Oregon count was reached in the joint session of 
 the two Houses on February 2ist, and at once re- 
 ferred to the commission. 
 
 The essential question presented by the Florida and 
 the Louisiana returns was whether the Electoral Com- 
 mission or the Houses of Congress had the power to go 
 behind the determination of the highest returning board 
 of the State. The decision of the majority of the com- 
 mission was that the determination of a State returning 
 board was unimpeachable and that any attempt to inquire 
 into the facts certified by it was beyond the competency 
 of the commission or Congress. Such an inquiry would 
 be an impertinence, — a trespass upon the prerogatives of 
 the State. Incidentally the question of the eligibility of 
 electors was considered. The Oregon case presented this 
 same question, but in a different form. Here the issue 
 was sharply raised and exhaustively debated whether the 
 Constitution of the United States did not so absolutely 
 forbid the appointment of an elector who was a Federal 
 officer as to render every stage of the proceedings cul- 
 minating in his appointment null and void. If the ap- 
 pointment was void ab initio^ it was argued that no 
 vacancy whatever existed to be filled by the electors who 
 had been legally appointed, because an office which never 
 had an incumbent could not become vacant by the pre- 
 tended resignation or refusal to act of one who had no 
 title as elector. 
 
 184 
 
The Oregon Case 185 
 
 The principles controlling the decision of the bare 
 majority of the commission in the two earlier cases are 
 lucidly stated in the argument of Richard T. Merrick, one 
 of the counsel for Mr. Tilden in the Oregon case. 
 
 ' * You go behind the certificate [of the governor] . . . 
 until you find some authentication of the fact with reference 
 to which you are inquiring, made under the authority and by 
 virtue of a power in the State herself. When, in the case of 
 Florida and Louisiana, you passed by the certificate of the 
 governor, given in obedience to the act of Congress, and 
 found yourselves confronted with the results of a returning 
 board, you said: * Here we must stop, for here the State has 
 challenged Federal power, and bade it take no further step in 
 invading the State and the matters of self-government.' It 
 was not the result of the canvass; it was not any virtue in 
 the board; it was not because of any sanctity in Wells or 
 Casanave or their associates, but it was because when you 
 reached them you reached the broad seal of the State, affixed 
 as evidence to a State fact, under State law, and by State 
 authority. . . . The Federal Government, speaking, as I 
 understand your decisions, through the adjudications of this 
 tribunal, has said that as the appointment of the electors is an 
 office given to the States by special grant of power, ... as 
 the appointment of the electors is a power in the States, and 
 the States are required to exercise that power, when they have 
 done so, we will go no further into the inquiry as to the pro- 
 priety of State action than the solemn and great seal of the 
 State, whenever we find it affixed to the ultimate fact under 
 the authority of State law, and by the sanction of the State 
 organization." 
 
 Evarts had previously addressed the commission in 
 similar strain, the difference being that Merrick clearly 
 sums up the decision reached by that body, while Evarts 
 states it as the thesis successfully maintained by the 
 Hayes counsel. 
 
 ** We laid down the proposition that the ultimate fact under 
 
1 86 The Electoral System 
 
 the laws of the State in completion of the election by the cer- 
 tification of boards or officers charged with the completion of 
 the final canvass was a point beyond which, in looking into 
 the transactions of the State, the Federal Government could 
 not go. We laid down at the same time the further proposi- 
 tion that this conclusion of the State's action was the principal 
 fact that, under the legislation of Congress, was made the sub- 
 ject of any lawful certification, and that, as that principal fact 
 could not be overreached by any previous inquiry into the 
 transaction of the State, so that principal fact could not be 
 disparaged or falsified by any congressional authority exer- 
 cised in certification of that fact. 
 
 " The proposition [continued Mr. Evarts], as we then laid 
 it down for Florida, we adhered to in the case of Louisi- 
 ana, and ... we adhere to in the case of Oregon. We 
 find in Oregon, as in Florida or Louisiana, that by its laws 
 there is some final ministerial canvass, which, completed, 
 shows what the election was; and we need only to look into 
 the laws of this State, as of the other States, to see whether 
 the apparent canvassing board was one that had such authority 
 under the laws of the State." 
 
 In the Oregon case there was no dispute as to the 
 facts. No one denied that the three Hayes electors had 
 a plurality of the popular vote. The crux of the contro- 
 versy was whether J. W. Watts, who received more than 
 a thousand majority over his highest Democratic com- 
 petitor, but who at the time of the November election, 
 as was shown by the testimony taken before the commis- 
 sion, was postmaster in the town of La Fayette, in that 
 State (which office he resigned on November 13th, his 
 resignation being immediately accepted by the Postmas- 
 ter-General), was, under the Constitution of the United 
 States, eligible either to be voted for at the popular elec- 
 tion or to be appointed an elector. The Secretary of the 
 State of Oregon, who, according to the decision of a ma- 
 jority of the commission, constituted the sole canvassing 
 
The Oregon Case 187 
 
 authority of the State on December 6, 1876, canvassed the 
 vote for presidential electors in the presence of the gov- 
 ernor and prepared a tabulated statement of the returns 
 from the various counties, which he placed on file in his 
 office, as a complete and lawful canvass showing that 
 Watts, Odell, and Cartwright had been appointed electors 
 for the State of Oregon. All this appeared by an official 
 certificate under the seal of the State, signed by him and 
 delivered by him to the Hayes electors and forwarded by 
 them to the president of the Senate, with their votes. 
 On the morning of December 6th the governor of the 
 State issued three certificates, in each of which he stated 
 that Odell and Cartwright, together with E. A. Cronin, 
 were the three eligible persons receiving the highest num- 
 ber of votes, and that they were duly appointed electors. 
 Cronin received these certificates from the governor and, 
 after communicating their contents to Odell, Cartwright, 
 and Watts, upon their refusal to recognize him as an 
 elector, appointed two persons to act as electors, instead 
 of Odell and Cartwright, and these three voted, Cronin 
 for Tilden and the remaining two for Hayes. The gov- 
 ernor refused to give Watts a certificate of election be- 
 cause he deemed Watts ineligible, but the Secretary of 
 State, as the State canvassing officer, having issued a 
 certificate to Odell, Cartwright, and Watts, they met 
 together as an electoral college on December 6th. Watts 
 resigned the office of elector, but was immediately elected 
 by his two associates to fill the so-called vacancy created 
 by his resignation, and the three thereupon cast the 
 vote of the State for Hayes for President and Wheeler 
 for Vice-President. 
 
 Two antagonistic certificates or returns came to the 
 two Houses of Congress in joint session. The first was 
 signed by Odell, Watts, and Cartwright, and to it were 
 appended the certificate of the Secretary of State and the 
 tabular list or abstract of the votes cast at the election on 
 
1 88 The Electoral System 
 
 November 7th, for presidential electors, conclusively 
 showing that they each received the highest number of 
 votes in the State. The second return was signed by 
 Cronin, a Democrat, and his associates, Miller and Parker, 
 Republicans, as electors, and was certified by the gover- 
 nor of the State. Under the Electoral Commission law, 
 there being two conflicting returns, the case was referred 
 to the Electoral Commission. 
 
 The laws of Oregon did not provide for a board of 
 State canvassers, but directed the Secretary of State, in 
 the presence of the governor, to proceed, within thirty 
 days after an election, to canvass the votes given for State 
 officers and members of Congress, and it directed, with 
 regard to presidential electors, that the votes for electors 
 should be canvassed in the. same manner as those for 
 members of Congress. It then provided that the Secre- 
 tary of State should prepare two lists of the names of 
 the electors elected and affix the seal of the State to the 
 same, and that the lists signed by the governor and the 
 secretary should be transmitted to the college of electors 
 at the hour of their meeting on the first Wednesday of 
 December. The Oregon statute further provided: "If 
 there shall be any vacancy in the office of an elector oc- 
 casioned by death,. refusal to act, neglect to attend, or 
 otherwise, the electors present shall immediately proceed 
 to fill by viva voce and plurality of votes such vacancy in 
 the electoral college." 
 
 The charges of fraud and intimidation in Florida and 
 Louisiana were never fully proved. Opinions may differ 
 as to whether the action of the board of canvassers of 
 either of those States was in accordance with the true 
 and honest vote of the people of the State. But the in- 
 disputable fact in the case of Oregon was that Watts was 
 the choice of a majority of the voters. The substitution 
 of Cronin, who received a minority vote, as an elector 
 in Watts' place, would have defeated the will of the 
 
The Oregon Case 189 
 
 people. The claim was seriously argued by some of the 
 Democratic counsel that the vote for Watts was void 
 because of his ineligibility, and that Cronin, the next 
 highest candidate, was for that reason chosen an elector. 
 It is to the honor of the Democratic members of the 
 Electoral Commission that they declined to adopt this 
 view. As was well said by Commissioner Bayard: "The 
 underlying theory of our republican rule is the residence 
 of power in the majority. That minority candidates 
 should fill places by popular election is contrary to our 
 American theory, although sometimes, by constitutional 
 arrangements, such a result is reached." The Democrats 
 upon the commission were unwilling to vote to seat a 
 minority candidate because of the ineligibility of his op- 
 ponent, in the absence of express provision in the law of 
 the State compelling them to do so. 
 
 The reasoning upon which the Republican counsel 
 predicated their arguments for the acceptance of the re- 
 turn signed by the Hayes electors was briefly that, under 
 the statutes of Oregon, the Secretary of the State was 
 the final canvassing officer, whose functions were those 
 of the State canvassing board in Florida and Louisiana; 
 that his decision was conclusive as to the result of the 
 State election, and showed that the three Hayes electors 
 had a majority of the popular vote; that the governor 
 of the State had no jurisdiction to pass upon the question 
 of Watts' ineligibility and no lawful right to withhold 
 from the three Hayes electors the certificate required by 
 the Act of 1792; that the governor's certificate was not 
 essential to complete the "appointment" of electors; 
 that the certificate was a statutory and not a constitu- 
 tional requirement ; that the certificate was impeachable ; 
 that Cronin was a minority candidate; that the governor 
 could not, by delivering him a certificate, defeat the 
 popular will; and that, whatever might be the correct 
 theory as to Watts' position, the rules of law would not 
 
iQo The Electoral System 
 
 make a defeated candidate the successful one, even if his 
 adversary were ineligible to office. The argument as 
 far as this point seems impregnable, and the last of these 
 contentions, namely, that the ineligibility of a candidate 
 having the highest vote would not elect one who had a 
 smaller vote, was accepted by all the members of the 
 Electoral Commission. This is the only proposition 
 upon which they were unanimous. 
 
 But if Watts were ineligible, and Cronin were not 
 elected, only two of the three electors to whom Oregon 
 was entitled would have been seated in the electoral 
 college. Hence it was necessary for the Republicans to 
 establish that the fact that Watts held the postmaster- 
 ship on November 7th was unimportant. Here argu- 
 ments diverged into several paths. 
 
 Watts had unquestionably resigned his office and his 
 resignation had been accepted before the day when the 
 electors assembled to vote for President and Vice-Presi- 
 dent, and this resignation, it was argued, created a 
 "vacancy" in the electoral college which his two asso- 
 ciates could fill, and which was actually filled on Decem- 
 ber 6th, by their electing Watts himself to the place 
 made vacant by his resignation. The law of Oregon, 
 counsel said, authorized them to fill the vacancy, and 
 when Watts was selected by Odell and Cartwright he was 
 no longer ineligible, as he had ceased to be postmaster. 
 The language of the Oregon statute was : 
 
 "The electors of President and Vice-President shall 
 convene at the seat of government on the first Wednesday 
 of December next after their election, at the hour of 
 twelve of the clock at noon of that day, and if there shall 
 be any vacancy in the office of an elector, occasioned by 
 death, refusal to act, neglect to attend, or otherwise, the 
 electors present shall immediately proceed to fill, by viva 
 voce^ and plurality of votes, such vacancy in the electoral 
 college, and when all the electors shall appear, or the vacan- 
 
The Oregon Case 191 
 
 cies, if any, shall have been filled as above provided, such 
 electors shall proceed to perform the duties required of them 
 by the Constitution and laws of the United States." 
 
 Another line of argument by which Watts' title was 
 supported was that the people of Oregon had voted for 
 him without knowledge of his ineligibility; that the 
 highest canvassing official of the State (the Secretary of 
 State) had given him a certificate of election ; that he 
 thereby became a de facto if not also a de jure elector ; 
 that neither the laws of the United States nor of the 
 State ordained any tribunal to try the question of his 
 title to office, and that he was therefore legally appointed. 
 
 The Democratic lawyers controverted both of these 
 positions, dwelling with emphasis upon the express lan- 
 guage of the Federal Constitution which forbade the ap- 
 pointment as an elector of any person holding an office 
 of trust or profit under the United States Government, 
 a provision they declared to be self-executing, rendering 
 Watts' appointment null and void. And they further 
 argued with great cogency that, if Watts was ineligible 
 when voted for on November 7th, there was, within the 
 meaning of the Oregon statute, no vacancy whatever in 
 the electoral office on December 6th, because a person 
 who was ineligible could not resign an office he never 
 held and thereby create a vacancy; and they quoted, 
 among other authorities, the language of Lord Chief 
 Justice Cockburn that "a man cannot resign that which 
 he is not entitled to and which he has no right to 
 occupy." Merrick, in particular, commented upon the 
 terms "vacancy", "occasioned." Not any vacancy exist- 
 ing^ but a vacancy occasioned. Apart from the rule 
 "noscitur a sociis,'' which the Republicans contended 
 was too narrow and technical, he argued that any vacancy 
 might have been meant if the phrase commencing with 
 the word * * occasioned" had been omitted altogether. To 
 
192 The Electoral System 
 
 the argument that Watts was de facto if not de jure an 
 elector, having been so declared by the State canvassing 
 authority (the Secretary of State, according to the Re- 
 publican counsel), the Democratic counsel retorted that 
 both the governor and secretary were the State canvass- 
 ing board, that Cronin held their certificate, and was 
 therefore de facto an elector. The governor, they con- 
 tended, would have violated his oath of ofifice had he 
 given a certificate to an ineligible elector. 
 
 The commission, by the usual vote of eight to seven, 
 upheld the certificate emanating from the Secretary of 
 State, declaring that Odell, Cartwright, and Watts had 
 the highest votes, and it therefore gave the three electoral 
 votes of the State to Hayes and Wheeler. Unquestion- 
 ably the commission was right in holding that the gover- 
 nor's certificate was not conclusive. Merrick had said 
 that "when the bark of the counsel on the other side was 
 tossed against the Scylla of Florida, the pilot looked 
 ahead to the Charybdis that threatened peril in Oregon," 
 and had added that "adroitly as he may have led on his 
 way, if this commission adhere to the course to which the 
 helm was set to shun the reefs of Florida, the bark must 
 be wrecked on those of Oregon. " In the Florida case the 
 commission decided, he said, that it was not competent, 
 under the Constitution and the law as it existed when 
 the commission was created, 
 
 "to go into evidence aliunde the papers opened by the presi- 
 dent of the Senate in the presence of the two Houses, to prove 
 that other persons than those regularly certified to by the 
 governor of the State of Florida on, and according to, the de- 
 termination and declaration of their appointment by the board 
 of State canvassers of said State prior to the time required for 
 the performance of their duties, had been appointed electors, 
 or by counter-proof to show that they had not. ' ' 
 
 In the Louisiana case, continued Merrick, these identical 
 
The Oregon Case 193 
 
 words were repeated in the decision. He himself ad- 
 mitted that the governor's certificate was not unimpeach- 
 able, for that was not given in the discharge of a State 
 duty confided to him by State law, but in response to an 
 act of Congress which was simply a Federal request. But 
 he argued that the governor's certificate was conclu- 
 sive evidence of title, unless impeached by a judicial 
 proceeding. 
 
 ** Suppose that the governor issues his certificate, what is 
 the effect of that certificate when issued? When he has exer- 
 cised his power, and issued his certificate, and affixed the seal 
 of the State to the certificate, that certificate, so accompanied 
 by the seal, is, conclusive evidence of the title and cannot be 
 questioned except in a regular legal proceeding for the pur- 
 pose of invalidating the commission. Such was the decision 
 of the court of last resort in Massachusetts upon questions sub- 
 mitted to it by the executive department of the government." 
 
 Nor are the opinions of the majority of the commission 
 entirely satisfactory. Morton held that if Watts was 
 eligible on the 6th of December when the electoral 
 college voted, having previously resigned his office of 
 postmaster, it was of no importance that he had been 
 postmaster when voted for in November. Falling back 
 upon the views expressed by him in the Florida and in 
 the Louisiana case, he considered Watts' title good de 
 facto and de jure, but said that as the college of electors 
 was expressly authorized by law to fill "any vacancy in 
 the office of an elector, occasioned by death, refusal to 
 act, neglect to attend or otherwise," the vacancy created 
 by Watts' resignation had been filled by his appointment 
 by Odell and Cartwright, at a time when his disqualifica- 
 tion had ceased. He construed the word "otherwise" 
 as broad enough to cover vacancies ab initio, or cases 
 where there had been no appointment. He declared the 
 
194 The Electoral System 
 
 Secretary of State the sole canvassing authority under the 
 laws of Oregon. 
 
 * ' When the secretary has canvassed, certified, and returned 
 the votes of electors to his office, their appointment is com- 
 plete. All that the governor has to do with the matter there- 
 after under the statute is purely ministerial. He has no 
 judicial power upon the subject. He has no discretion what- 
 ever reposed in him by the law." 
 
 His failure to give the certificate required by the Act of 
 1792 was of no moment. The certificate he gave to 
 Cronin could not stand against the facts as certified by 
 the highest authority of the State. 
 
 " The question of eligibility of electors belongs to the States, 
 and if it is disregarded by the States, there is no way, when 
 the votes are counted in the presence of the two Houses or by 
 this commission, to try and settle such questions. . . 
 There are few provisions of the Constitution that are self-exe- 
 cuting and clearly this is not one. . . . The very highest 
 interests of society require that the validity of official acts shall 
 not be disturbed because of the ineligibility of the persons 
 performing them to hold office. And the reasons for this 
 doctrine apply as strongly in this case as in any other. If the 
 vote of an elector can be stricken out by a subsequent decision 
 that he was ineligible, the evil is without remedy; the State 
 has lost the vote and the spirit of the Constitution has been 
 violated." 
 
 There is, I think, no such war between the spirit and the 
 letter of the Constitution, and the express provision is 
 that no State shall appoint, etc. If a State, in defiance 
 of the supreme law of the land, elect a man to an office 
 which the Constitution of the United States explicitly 
 declares he shall not fill, the fault is her own and the 
 punishment of the loss of the electoral vote should follow. 
 Frelinghuysen put his decision on the ground that the 
 
The Oregon Case 195 
 
 canvass of the Secretary of State was the final determina- 
 tion and that Watts' resignation caused a vacancy which 
 was properly filled. Neither Hoar nor Garfield nor Payne 
 nor Edmunds filed opinions. 
 
 Justice Strong's views were ably expressed. 
 
 "I still think, as I thought when we had the Florida and 
 Louisiana cases under consideration, that when the laws of a 
 State have appointed a tribunal, either a board, a council, an 
 officer, or any authority to ascertain, decide, or determine 
 what have been the results of an election for presidential 
 electors, the decision of that board, officer, or authority is 
 conclusive, so long as it remains unreversed by a judicial 
 tribunal empowered by State law to reverse it." 
 
 The right of a person claiming to be elected is to be 
 tested, he declared, by the results of the State canvass, 
 not by what either preceded or followed that canvass. 
 The law of Oregon, said the justice, makes the Secretary 
 of State the sole canvassing officer, and the governor of 
 Oregon has no authority to canvass the returns of votes 
 for presidential electors. His unauthorized certificate 
 was the sole foundation for the claim made by the Tilden 
 electors. "I said distinctly more than once, when re- 
 marking upon the Florida case, the governor's certificate 
 is not unimpeachable." But to say that the certificate 
 may not be unimpeachable does not meet Merrick's point 
 that there existed no tribunal to test its validity. To 
 paraphrase Morton in order to put his assertion interroga- 
 tively: When the votes are counted in the presence of 
 the two Houses is there any way to try and settle the 
 question whether an executive certificate is true or false? 
 The learned justice's reasoning upon the subject of 
 Watts' ineligibility is not convincing: "I believe that 
 neither this commission nor Congress has any power 
 under the Constitution to judge of the qualifications 
 of a State elector, no more than we have to judge of 
 
19^ The Electoral System 
 
 State elections and returns." The fallacy of this argu- 
 ment is that the State upon which a prohibition is laid 
 becomes the judge of its own obedience. But whatever 
 the doubtful powers of the commission or Congress, 
 surely within the Federal Government there must reside 
 authority to annul a vote by an ineligible elector. Judge 
 Strong also argued that if Watts was ineligible on the 
 day of his election, his disqualification for appointment 
 ceased on the 14th of November. 
 
 ** Concede, for the sake of argument, he was ineligible on 
 the 7th of November, and, therefore, was not elected, though 
 he received a higher number of votes than any competitor, 
 then there were two chosen and the college, consisting of three, 
 was not full. One elector was wanting. There was a vacancy, 
 and that vacancy was filled on December 6th, by the action of 
 the two electors who were chosen, who then appointed Watts 
 to fill it." 
 
 The notion that a vacancy can exist only when an office 
 has had an incumbent, he characterized as technical! 
 The language of the Oregon statute was very compre- 
 hensive; it covered vacancies occasioned in specified 
 ways and "otherwise." 
 
 Mr. Justice Miller adhered to the view he expressed in 
 the Florida case, that the fact that an elector held an 
 office of trust or profit under the United States at the 
 date of his election did not render that election void. 
 '*I concede, as I did then, that his title to the office could 
 have been avoided if there had been any tribunal com- 
 petent to try the question of his ineligibility, and it had 
 been so tried and found before he gave his vote for Presi- 
 dent and Vice-President." The governor of the State 
 was not such a tribunal, and had no authority to pass 
 upon the case. 
 
 " If [continued Justice Miller] Watts' election was not 
 
The Oregon Case 197 
 
 void, his subsequent resignation and failure to attend made a 
 vacancy in the electoral college, which the other members 
 were by statute authorized to fill, and his appointment by 
 them to fill that vacancy was valid, because he had then 
 ceased to hold the office of postmaster." 
 
 The wilful refusal of the governor to sign a certificate 
 "is not sufficient to nullify everything else that was done, 
 and make it of no effect. No such force has been attrib- 
 uted to it in the other cases, and I do not see how it 
 can be so here." 
 
 Mr. Justice Bradley was of the view that the Secretary of 
 State was the highest canvassing authority in the State, 
 and that his certificate was equivalent to the return of the 
 State canvassing board in Florida or Louisiana. The 
 governor's action in attempting to disregard the canvass 
 and to reject an elector whom he believed ineligible was 
 a clear act of usurpation. The certificate given by the 
 governor to Cronin v^diS prhna facie evidence, 
 
 " but no person has contended that it cannot be contradicted 
 and shown to be untrue, especially by evidence of equal 
 dignity. We did not so decide in the other cases. We held 
 that the final decision of the canvass by the tribunal or au- 
 thority constituted for that purpose could not be revoked by 
 the two Houses of Congress, by going into evidence behind 
 their action and return." 
 
 Upon the subject of Watts' ineligibility, Bradley said : 
 "It is agreed by a large majority of the commission that 
 Cronin was not elected. Some of this majority take the 
 ground that Watts was duly elected, whatever effect his 
 ineligibility, had it continued, might have had on his 
 vote. Others take the ground that there was no election 
 of a third elector." In either case, said Bradley, there 
 was a vacancy. The broad language of the Oregon 
 statute provided for every supposable case of a vacancy 
 in the office of elector. 
 
igS The Electoral System 
 
 The Democratic members of the commission did not 
 agree with Mr. Tilden's counsel that a minority candi- 
 date was elected when his opponent was ineligible. In 
 their judgment the board consisted of both the secretary 
 and the governor and both had certified to the election 
 of Cronin, Miller, and Parker. But it was of much less 
 moment to determine where the Oregon statute had 
 placed the power — although that was important — than to 
 determine whether an elector ineligible under the Con- 
 stitution could nevertheless vote. The opinions of the 
 Democratic commissioners in regard to the effect of the 
 choice of an ineligible elector are clear, able, consistent, 
 eloquent. 
 
 Said Bayard: 
 
 *' I have not yet been able to comprehend the force of the 
 argument that the provisions of the Constitution prohibiting 
 the appointment as electors of certain official classes can be 
 held self-executing on the 6th of December, but not self-exe- 
 cuting on the 7th of November; and this in the teeth of the 
 plain words affixing the disqualification upbn the person and 
 the limitation upon the power of the State." 
 
 The failure of the people of Oregon to elect an eligible 
 elector did not create a vacancy. Watts' resignation 
 was in opposition to the plain mandate of the Constitu- 
 tion that ke should not be appointed ; consequently he 
 could not resign an office he never held, nor by any act 
 of his could he create a vacancy in such office. Senator 
 Bayard also paid this tribute to Governor Grover, whom 
 Merrick styled "the much-abused executive," whose 
 motives in issuing the certificate to Cronin had been 
 assailed : 
 
 ** The very able arguments which we have heard upon this 
 subject, and the elaborate briefs submitted for our instruction, 
 if they are not adequate to control us in the adoption of the 
 
The Oregon Case 199 
 
 view taken by Governor Grover in this case, are more than 
 sufficient to place his action upon a high plane of conscientious 
 discretion, which lifts him to a level with as sound and repu- 
 table jurists as have adorned the bench of England or of the 
 United States." 
 
 It was the decision of Bayard, as of his Democratic asso- 
 ciates on the commission, that but two votes of the 
 State of Oregon should be counted, — the votes of Odell 
 and Cartwright, Hayes electors. 
 
 Hunton also took the stand that the vote cast by the 
 Cronin college was not the constitutional vote of Oregon ; 
 that Watts was ineligible and his resignation did not 
 create a vacancy. Abbott, who coincided in these views, 
 put the prohibition of the Federal Constitution in a strong 
 light when he said : 
 
 ** The Constitution must be construed as saying in terms to 
 the people of Oregon, * You shall not vote for J. W. Watts.* 
 It, in effect, so says to the people of any State in reference to 
 any candidate who holds an office of trust or profit under the 
 United States. To claim that this prohibition upon the States 
 is left to them, . . . and to them only, to enforce, is 
 against all logic and reason. ' ' 
 
 Equally forcible was Abbott's analysis of the Oregon law 
 providing for the filling of vacancies in the electoral col- 
 lege. A vacancy could happen only when the office had 
 once been occupied. The phraseology shows this clearly, 
 and the words "or otherwise," applying the accepted 
 canon of construction embodied in the Latin maxim 
 ''noscitur a sociis,'' import a vacancy for analogous 
 causes. Mr. Justice Field urged the point with impres- 
 siveness and eloquence. "The prohibition" [of the 
 Constitution] 
 
 ** is unqualified and absolute. All the power of appointment 
 possessed by the State comes from the Constitution. The 
 
200 The Electoral System 
 
 office of elector is created by that instrument. Her power of 
 selection is, therefore, necessarily limited by its terms; and 
 from her choice the class designated is excluded. The object 
 of the exclusion was to prevent the use of the patronage of the 
 Government to prolong the official life of those in power." 
 
 The clause, he argued, operated by its own force. Like 
 the prohibition against passing an ex post facto law or a 
 bill of attainder, or a law impairing the obligation of 
 contracts, it executes itself; it requires no legislation to 
 carry it into effect. He distinguished the case of an 
 elector from that of a Representative or Senator. The 
 clause of the Constitution declaring that "no person j//<3:// 
 be a Representative who shall not have attained to the 
 age of twenty-five years," and the clause that "no person 
 shall be a Senator who shall not have attained to the age 
 of thirty years," do not forbid an election of persons thus 
 disqualified; they only prohibit them from holding the 
 office so long as the disqualification exists. 
 
 *' They can take the office whenever that ceases. But with 
 respect to electors the case is different; there is an incapacity 
 on the part of the State to appoint as electors certain classes 
 of officers. This distinction between ineligibility to an office 
 and disquahfication to hold the office is well marked. The 
 one has reference to the time of election or appointment; the 
 other to the time of taking possession of the office. . . . 
 If, therefore, at the time of the election, persons are within 
 the classes designated, their appointment is impossible. . . . 
 One clause of the same section cannot be disregarded any 
 more than the other, and surely the appointment of a greater 
 number of electors than the State was entitled to have would 
 be a vain proceeding." 
 
 Replying to those who argued that the governor's re- 
 fusal of a certificate to Watts was an act of usurpation, 
 an assumption of judicial functions, Justice Field declared 
 that the governor was bound by the Constitution and his 
 
 I 
 
The Oregon Case 201 
 
 oath of office to decline the certificate, and he ridiculed 
 the opposing contention that it was that official's duty 
 to issue his certificate of election to any one who might 
 obtain, according to the determination of the canvassers, 
 the highest number of votes, however ineligible the per- 
 son and however imperative the prohibition against his 
 taking the office. 
 
 " To test this doctrine, I put this question to these gentle- 
 men: Supposing the law declared that only white persons 
 should be eligible to an office, and the highest number of 
 votes, according to the canvassers, should be cast for a colored 
 man, would the governor be bound to issue a commission to 
 him? The gentlemen answered that he would be thus bound; 
 that the governor could not in such case decide the question 
 of the colored man's ineligibility. Mr. Senator Thurraan put 
 this further question: Supposing the law of the State declared 
 that only males should be elected to an office, and the highest 
 number of votes were cast, according to the report of the can- 
 vassers, for a female, would the governor be bound to issue a 
 commission to her? The gentlemen replied as before, that he 
 would be thus bound; that the governor could not determine 
 the ineligibility of the party on the ground of her sex. There 
 is something refreshing in these days of sham and pretence to 
 find men who will thus accept the logic of their principles to 
 whatever result they may lead." 
 
 Mr. Justice Field would not vote that Cronin, the candi- 
 date having the next highest number of votes to Watts, 
 "was duly appointed," for he was a minority candidate. 
 The commission, by a unanimous vote, decided that 
 the certificate signed by Cronin, Miller, and Parker, pur- 
 porting to cast the electoral vote of the State of Oregon, 
 did not contain or certify the constitutional vote to 
 which said State was entitled; but, by a vote of eight to 
 seven, decided that Odell, Cartwright, and Watts, the 
 persons named as electors in certificate No. i, were the 
 
202 The Electoral System 
 
 lawful electors of the State of Oregon, and that their 
 votes were the votes provided for by the Constitution of 
 the United States, and should be counted for President 
 and Vice-President of the United States. This decision 
 was communicated to the two Houses on February 23, 
 1877; objection was made to it, the Houses again went 
 through the formality of separating to consider the de- 
 cision, and the Senate voted for its acceptance, the House 
 for its rejection. The Senate vote was 41 yeas to 24 
 nays; the House vote, which was upon the resolution 
 that the vote given by Watts should not be counted, was 
 151 yeas to 106 nays. 
 
 SOUTH CAROLINA 
 
 Two certificates had been transmitted from South 
 Carolina to the president of the Senate ; one, signed by 
 Governor Chamberlain under the seal of the State, with 
 the return of the seven Hayes electors attached; the 
 other, signed by the seven Tilden electors, setting forth 
 their claim that they had been duly appointed electors of 
 the State of South Carolina, elected by general ticket, 
 and had received the highest number of votes at the 
 popular election of 1876. The certificate further stated 
 that the State board of canvassers, after a pretended 
 canvass of the returns, had illegally declared the Hayes 
 electors elected ; that the Tilden electors had instituted 
 quo warranto proceedings in the Supreme Court of the 
 State to try their title to the electoral office; that the 
 proceeding was still pending undetermined ; that they had 
 made demand upon the Secretary of State of South Caro- 
 lina for the lists required by law and that their demand 
 had been refused. 
 
 Objections were made in the joint session of the two 
 Houses to each certificate. The Democratic objections 
 to the certificate attesting the election of the Hayes elec- 
 tors were, first, that no legal election was held in the 
 
The South Carolina Case 203 
 
 State for presidential electors, inasmuch as the General 
 Assembly of the State had not provided, as required by 
 statute, for the registration of persons entitled to vote; 
 secondly, that there was no republican form of govern- 
 ment, such as is guaranteed by the Constitution to every 
 State in the Union, in existence in South Carolina at the 
 time of the election ; thirdly, that the Federal army was 
 used to prevent, and that it actually did prevent, a legal 
 or free election ; fourthly, that deputy marshals of the 
 United States, over one thousand in number, so inter- 
 fered with the election that a full and free exercise of the 
 right of suffrage was impossible; and, lastly, that there 
 was not, at the time, any State government in the State. 
 Objections were filed by Republican Senators and Repre- 
 sentatives to the Tilden lists as lacking the governor's 
 certificate, and on the ground that the Hayes electors 
 were the actual electors entitled to cast the vote of the 
 State. Under the Electoral Commission law the cer- 
 tificates and objections were referred to the commission, 
 which met for their consideration on February 23, 1877, 
 and reported its decision to the two Houses on the even- 
 ing of the same day. It was not urged before the com- 
 mission that the votes of the Tilden electors should be 
 counted, for the Hayes electors had undoubtedly received 
 a majority of the votes cast. The effort of Representa- 
 tives Hurd and Hurlbut, who appeared for the objectors 
 to certificate No. i, was to establish that South Carolina 
 had not a republican form of government and that the 
 violation by the Legislature of the provision of the State 
 constitution requiring the passage of a State registration 
 law nullified the entire vote of the State, while the pres- 
 ence of Federal soldiers prevented a fair suffrage. The 
 commission, by a vote of eight to seven, declined to re- 
 ceive the evidence proffered in support of these objec- 
 tions. The objection that the government of the State 
 was not republican in form, inasmuch as the State was 
 
204 The Electoral System 
 
 recognized as a member of the Union by the executive 
 department of the Government and by the national 
 legislature through the presence of its Senators and Re- 
 presentatives in the national Congress, could hardly have 
 been urged with confidence that it would appeal to a 
 tribunal that had in all its previous decisions divided 
 along political lines. The one question of abiding in- 
 terest raised in the South Carolina case, was whether, on 
 all matters relating to the appointment of electors, the 
 Legislature of a State, deriving its authority from the 
 Constitution of the United States, is beyond and above 
 the constitution of the State. .The objectors argued that 
 the South Carolina constitution made a registration law 
 an essential prerequisite to a valid election, but it was 
 answered by Representative Lawrence, on behalf of 
 the Hayes electors, that a failure by the Legislature of 
 the State to comply with the provisions of the State con- 
 stitution could not defeat the duty imposed on the State 
 by the "higher law" of the supreme national Constitu- 
 tion, or disfranchise a State in the election of a President. 
 There is nothing new, said Lawrence, in the suggestion 
 that a State constitution may, in some of its provisions, 
 be unconstitutional and void because in conflict with the 
 Constitution of the United States. Mr. Justice Story, 
 in the Massachusetts Constitutional Convention of 1820, 
 denied the right of any State to insert in its constitution 
 "a provision which controls or destroys a discretion 
 which may be, nay, must be, exercised by the Legislature, 
 in virtue of powers confided to it by the Co?istitution of the 
 United States.'' 
 
 Morton, Frelinghuysen, and Bradley were the only 
 Republican commissioners who delivered opinions in the 
 South Carolina case. Morton said that, whatever might 
 be the legal effect of the absence of a registry law upon 
 the election of State officers, it would be absurd to pre- 
 tend that it could have any upon the appointment of 
 
The South Carolina Case 205 
 
 electors. His utterances are so important that I quote 
 them in full: 
 
 "The manner of the appointment of electors has been 
 placed by the Constitution of the United States in the Legis- 
 lature of each State and cannot be taken from that body by 
 the provisions of a State constitution. If the constitution of 
 a State should provide that electors should be appointed by 
 the Supreme Court of the State, that could not prevent the 
 Legislature from providing that electors might be appointed 
 by the vote of the people. The Constitution of the United 
 States provides that Senators shall be chosen by the Legis- 
 lature of each State, and it is not competent in the constitu- 
 tion of a State to require that Senators shall be elected by the 
 people at a general election and thus take from the Legislature 
 the right to elect. The power to appoint electors by a State 
 is conferred by the Constitution of the United States, and 
 does not spring from a State constitution, and cannot be im- 
 paired or controlled in any respect by a State constitution. It 
 is competent for the constitution of the State to provide that 
 State officers shall be chosen at an election where the voters 
 have been registered, but it is not competent to make any such 
 requisition as to the appointment of electors. If the Legis- 
 lature provides that electors may be appointed by the people 
 at the polls without having been previously registered it has a 
 clear right to do so." 
 
 Frelinghuysen declared it a sufficient answer to the 
 objection that the failure to enact a registration law ren- 
 dered the election void, that the Legislature, in the ap- 
 pointment of electors, "acts under the authority of 
 the Constitution of the United States and is entirely 
 untrammelled by the State constitution." Justice 
 Bradley's opinion omits all notice of the point, but is 
 chiefly devoted to overthrowing the contention that the 
 two Houses, in their capacity of a joint convention to 
 count the electoral vote, have the same extensive power 
 of inquisition that belongs to them as legislative bodies. 
 
2o6 The Electoral System 
 
 Hence, while the commission declined to receive evidence 
 to impeach the title of the Hayes electors, only two com- 
 missioners. Senator Morton and Senator Frelinghuysen, 
 denied the right of a State through its constitution to 
 control the State Legislature in the appointment of 
 electors. 
 
 The Democratic commissioners who wrote opinions in 
 the 3outh Carolina case were Bayard, Hunton, and Ab- 
 bott. Thurman resigned from the commission, because 
 of indisposition, at the close of the Oregon hearing, and 
 Senator Kernan, of New York, was elected by the Sen- 
 ate as his substitute, but Kernan delivered no opinion in 
 the case. Bayard held the objection to registration not 
 well taken, because another section of the State constitu- 
 tion controlled. But in the Louisiana case he had de- 
 clared that the State Legislature was not paramount to 
 the State constitution in the appointment of electors 
 so long as its regulations were not in conflict with the 
 nation's organic law. Neither Hunton nor Abbott 
 discussed the subject. Upon one proposition the com- 
 mission were unanimous, that the Tilden electors were 
 not the lawful electors, and that their votes should not 
 be counted. The majority of the commission, in report- 
 ing to the two Houses that the Hayes electors were the 
 duly elected electors of the State, declared that the 
 commission 
 
 " must take notice that there is a government in South Caro- 
 lina, republican in form, since its constitution provides for 
 such a government, and it is, and was on the day of appoint- 
 ing electors, so recognized by the executive and by both 
 branches of the legislative departments of the Government 
 of the United States." 
 
 The troops, it held, were placed within the State by the 
 President of the United States, to suppress insurrection, 
 at the request of the State authorities. 
 
The South CaroHna Case 207 
 
 The two Houses, upon receiving the commission's 
 report upon the South Carolina returns, separated. The 
 Senate voted that the certificate showing the appoint- 
 ment of the Hayes electors should be received, the vote 
 being 39 to 22, while the House voted against acceptance 
 by 190 to 72. Thus, in every case referred to the com- 
 mission, the two Houses were diametrically opposed in 
 their views, the Senate always sustaining the majority of 
 the commission, the House always sustaining the minor- 
 ity, and the vote in each instance in the Senate and the 
 House being on strict party lines. Under the terms of 
 the law creating the commission, the failure of the two 
 Houses to agree resulted in the acceptance of the com- 
 mission's report and the counting of the vote for the 
 Republicans in every instance. 
 
 It would be digressing from our prescribed course 
 to criticise the judgments of the Electoral Commission. 
 Partisans pro and contra were heard in the press of the 
 time ; and probably, as opinions have long differed upon 
 many of the debatable points of history, — whether, for 
 example, the resistance of the people to Charles I, of 
 England was justifiable or criminal, whether the conven- 
 tion of 1792 rightly condemned Louis XVI., or the mas- 
 sacre of the Albanian prisoners at Jaffa by Napoleon was 
 defensible under the laws of war, — so they will long be in 
 antagonism regarding the decisions of the electoral tribu- 
 nal. The majority of the commission announced a doc- 
 trine in conformity with the Constitution when they 
 declared the Federal authority powerless to question the 
 determination of a State canvassing board upon the num- 
 ber of votes cast at an election of presidential electors. 
 The reconstruction theory of a returning board with 
 judicial functions is not likely to be revived; it is un- 
 American. One proposition subtly urged upon the com- 
 mission was that a statute creating a board with judicial 
 powers to reject votes for presidential electors was 
 
268 The Electoral System 
 
 authorized under the Federal Constitution, and that the 
 right of the Legislature of a State to enact such a law- 
 could not be limited by the constitution of the State. 
 Most of the commissioners failed to discuss the question. 
 Garfield, in his opinion in the Louisiana case, declared 
 that the national Constitution had conferred upon the 
 State Legislature the sole and exclusive authority to 
 prescribe the mode of appointment, and consequently to 
 vest the returning board with power to reject votes, but 
 he added: "If I were framing a body of laws for Ohio, 
 I certainly should not adopt the Louisiana law as my 
 model." 
 
 Senator Bayard, in his opinion, expressed his total dis- 
 sent from the notion that the Federal Constitution gave 
 to the State Legislature a power above and beyond the 
 reach of the people of the State through its organic law. 
 The Hon. Matthew H. Carpenter, in his address in the 
 Louisiana case, forcibly stated the same view in this form : 
 
 '* When the Constitution of the United States says a State, 
 in such manner as its Legislature shall prescribe, shall appoint 
 electors, it refers of course to that form of government whose 
 Legislature is restricted by its own constitution. It does not 
 mean some Hottentot community. It means one of our States, 
 one of the constitutional States; . . . our Constitution 
 should be read just as though the words were that the Legis- 
 lature shall prescribe a method in conformity with their own 
 constitution." 
 
 In the South Carolina case Morton and Frelinghuysen 
 expressed their unqualified approval of the doctrine that 
 the State Legislature in the appointment of electors was 
 subject only to the fundamental law of the nation. 
 Thus, at the very threshold of the provisions of the Fed- 
 eral Constitution arises a question of transcendent import : 
 Is the power which has been directly granted by that 
 instrument to the several State Legislatures, in the ap- 
 
The South Carolina Case 209 
 
 pointment of electors, of such a nature that it is beyond 
 the control of the people of the State, through their 
 organic law? Has the Legislature of a State the su- 
 preme, sovereign authority to deprive the citizens of the 
 State of the selection of presidential electors, although 
 the State constitution may declare that their election 
 shall be by popular vote? Under this Czar-like power, 
 the Legislature might defiantly arrogate to itself the ap- 
 pointment of electors, or bestow it upon the judiciary 
 or upon any agent or board or legislative committee. 
 
 It is a fruitless search through the arguments of coun- 
 sel or the opinions of the commission for anything like 
 unanimity of definition of an elector. Beyond repeating 
 the few phrases of the Constitution, many were reti- 
 cent, and those who spoke uttered dissonant theories. 
 Evarts on several occasions used the term "representative 
 elector. ' ' He declared that * ' the elector was not an officer 
 of the State ; that in no very considerable sense could he 
 be treated as an officer of the United States ; that he was 
 an elector , having the right under the Constitution of the 
 United States to vote for President, and that he was a 
 representative elector." Asked by Commissioner Thur- 
 man whether the elector was an officer at all, either Fed- 
 eral or State, Evarts replied: "I do not think he is. 
 Certainly he is not a State officer." Judge Campbell, 
 replying, twitted Evarts with inability to tell "what sort 
 of a creature an elector is. I am not sure that in his 
 conception he is a human being; . . . he is not an 
 officer of the United States; he is not an officer of the 
 State." So elusive is the electoral function that per- 
 plexity shrouds its ephemeral existence. If an elector 
 declared by the Federal Constitution to be ineligible 
 should be chosen, is his eligibility to be decided by the 
 State? In other words, is the alleged offender against 
 the nation's organic law to be exclusive judge or 
 
 judge at all? Justice Campbell, under interpellation by 
 14 
 
210 The Electoral System 
 
 Commissioner Strong, insisted that Congress alone could 
 create a tribunal to inquire into the competency of elec- 
 tors, because every State in the Union would be inter- 
 ested in the decision. Justice Miller, on the other hand, 
 doubted the power of Congress to establish any tribunal 
 to pass upon the validity of an elector's appointment or 
 his eligibility to office. Justice Campbell's contention 
 cannot lightly be ignored, erroneous as was his claim that 
 the two Houses had power to count the popular vote. 
 
 The Florida decision suggests interesting questions. 
 Had the quo warranto proceedings been initiated in 
 time to enable the State court of last resort to pro- 
 nounce a final decree before the electors met, would 
 its adjudication that either the Hayes electors or the 
 Tilden electors were the lawful deputies to cast the bal- 
 lots of the State for President have been accepted by the 
 defeated party? If such a controversy might be imagined 
 as arising in the State of New York in a presidential elec- 
 tion turning upon the vote of that State, would both 
 parties acquiesce in the judgment of the State tribunal? 
 Or assume that, after the vote of the false elector had 
 been cast, the State court had in the clearest and most 
 convincing manner established his failure of election, 
 would the acceptance of his ballot not seem a species of 
 treason? Would the view of a number of the commis- 
 sion's members prevail, that, once the office had been 
 attained and the vote given, all inquiry should be barred, 
 and the vote of the de facto y if not also de jure, elector 
 accepted as beyond impeachment, although fraud in the 
 election should have been made clear as day to the 
 State authorities? These interrogatories are put with 
 no thought of criticising the judgment of a majority 
 of the commission. It was probably sound, and was 
 certainly sustained by all arguments of convenience. 
 The inquiry does not trench upon the plainly valid 
 and unanswerable decision of the commission, that the 
 
The South Carolina Case 211 
 
 determination of the State's returning board, when 
 not overthrown in appropriate legal proceedings, is 
 binding upon the Federal counting power. But, as 
 was forcefully said by the Tilden counsel, Florida 
 sought,— through her Legislature, through her executive, 
 through her courts, — to right what she conceived to be 
 a monstrous wrong done to her people, in the false per- 
 sonation of her electoral voice by the unjust action of the 
 State returning board; should such misrepresentation 
 be endured when the State herself, by all her constitu- 
 tional agencies, declared the action of the returning board 
 fraudulent and void? To assume to question the validity 
 of the determination in a direct attack upon it before the 
 commission would be one thing; but to bring to the 
 commission a judgment which, although /d?^/ haCy might 
 have been rendered by a tribunal of competent jurisdic- 
 tion, would be another thing. Edwin W. Stoughton,* 
 in his answer to Black, does not meet this question. He 
 says: 
 
 " The Hayes electors cast and certified their vote as duly 
 demanded, and with that ended all their functions. The liti- 
 gation proceeded, and, true to the work expected of him(?), 
 the judge, a few days before the vote of Florida was counted, 
 decided that the Hayes electors were not duly appointed. 
 Let us suppose the same decision made — as it might have been 
 — after his inauguration as President. What effect would 
 Judge Black, to be consistent with himself, give in such case 
 to the decision of the Florida judge? The President should, 
 upon his theory, descend from his great office and give place 
 to Mr. Tilden, should he not? And then, supposing this to 
 be done, let us imagine the decision reversed at the end of a 
 year by the Appellate Court of Florida, what then should be 
 done with Mr. Tilden? Should he, too, in imitation of his 
 predecessor, depart in peace, that the latter might also enjoy 
 
 ' "The Electoral Conspiracy Bubble Exploded," 125 N. A. R., 193, 213, 
 214. 
 
212 The Electoral System 
 
 the fruits of Florida justice? This game of shuttle-cock would 
 not quite suit the majesty of the great office in question, nor 
 the temper of the American people. . . ." 
 
 To say that the case is the same as though a decision 
 were announced after Hayes' inauguration implies a mis- 
 conception that is fundamental. The Constitution pro- 
 vides no machinery for the deposition of a President 
 seated in the office without election to it. When the 
 votes shall have been counted and the result declared by 
 the president in the joint meeting of the two Houses as 
 provided in the Constitution, the case is closed, the title 
 has been conferred. But during the counting process, 
 error is rectifiable ; and while the majority of the commis- 
 sion was probably right in rejecting the quo warranto 
 proceedings in Florida, and the legislative declaration, 
 itself a solemn nullity, that the acts of the returning 
 board were invalid and that the Tilden electors had been 
 chosen or appointed, doubt is still permissible whether 
 the decree of a State court of competent jurisdiction, 
 affirmed on appeal or acquiesced in without appeal, sup- 
 posing it were not made until after the electors had met 
 and voted, could constitutionally be denied all recogni- 
 tion, if presented to the counting authority before the 
 count was complete or the result declared. But if this 
 doubt be not well founded ; if, for the peace and security 
 of government, the vote of the electors must be accepted 
 as valid de facto, ^ the possibility that a great wrong should 
 
 1 " Mr. Justice Strong frankly admitted in a letter addressed to Hon. 
 George W. Jones, of Tennessee, bearing date February 26, 1877, that he 
 feared a great wrong had been done in the Louisiana case. Mr. Justice 
 Bradley said that he had serious doubts in the Florida case, and that he had 
 written and rewritten several different opinions." — "The Electoral Com- 
 mission of 1877," 38 Am. Law Rev., 174, by Hon. John Goode, who was a 
 member of the House of Representatives in 1877, and favored the Elec- 
 toral Commission law. 
 
 In an article on "Presidential Inability," Governor Butler, in calling 
 attention to the danger of political bias in the consideration of political 
 
The South Carolina Case 213 
 
 be done to a State and to the nation, through the ap- 
 plication of a technical rule, is sufficient reason for the 
 abolition of a system well calculated to engender discord 
 and strife, and to effect subversion of the popular will. 
 
 questions, by any tribunal, said: "A most striking example of this ten- 
 dency t>f the judicial mind was seen in the decision of the judges who com- 
 posed a part of the Electoral Commission in 1876. Without impugning the 
 motives or judicial fairness of any one, still the striking fact remains that 
 every great question of constitutional law involved in that controversy was 
 decided precisely according to the political relations of the several judges. 
 If the majority were right, it was because they were Republicans. If the 
 minority were wrong, it was because they were Democrats. If either were 
 right, it was because they were politicians." — 133 N. A. R., 433. 
 
CHAPTER IX 
 
 THE ACT OF FEBRUARY 3, 1 88/ 
 
 THE Electoral Commission law was special legisla- 
 tion. It was passed to meet the crisis that con- 
 fronted the people of the United States in the presidential 
 election of 1876, Congress never having enacted a general 
 law applicable to the subject, although frequently urged 
 to do so. The act, as has been seen, did not attempt to 
 determine where the Federal Constitution had reposed 
 the power to count the electoral vote; it contented itself 
 with conferring upon the commission the powers, if any, 
 that both Houses of Congress possessed where there were 
 two or more returns. The result was that the discussion, 
 which had continued for generations in Congress, as to 
 the proper repository of the counting power, was renewed 
 before the commission. Nor did the commission attempt 
 to settle that question. The crisis arose and passed 
 without any legislation prescribing in what authority the 
 counting power was actually vested, or fixing the boun- 
 daries of that power. The commission reached a nega- 
 tive decision in the Louisiana and the South Carolina 
 case, as to the power of Congress in the counting of the 
 electoral vote, when it held that, whatever might be the 
 authority with which the two Houses in joint session 
 were clothed, they had not the same broad power of in- 
 quisition which they might constitutionally exercise in a 
 case involving the election of one of their own members. 
 The decision of the commission as to the lack of 
 
 214 
 
The Act of February 3, 1 887 2 1 5 
 
 power of the Federal Government to inquire into the 
 correctness of the electoral vote of a State, or, as it is 
 popularly stated, to go behind the returns, has met with 
 increasing approval. The commissioners and the counsel 
 who predicted that time would vindicate the justice of 
 the decision were correct in their prognostications. 
 When once the ultimate State authority charged with 
 the determination of the results of a canvass of a vote 
 for electors has definitely spoken, whether it be a State 
 canvassing board, as in Florida or Louisiana, or a State 
 canvassing officer, as in Oregon, its utterances must pass 
 unchallenged by the Federal Government. The creden- 
 tials of the electors, so far as the fact of their appoint- 
 ment is concerned, cannot constitutionally be subjected 
 to further scrutiny. Upon such perplexing questions as 
 must arise whenever an elector ineligible under the lan- 
 guage of the Federal Constitution is chosen by the peo- 
 ple, the commission reached no decision satisfactorily 
 applicable to future cases. 
 
 Despite the gravity of the situation in 1877, Congress 
 for many years failed to enact any remedial legislation. 
 The Senate three times passed a bill in substance like 
 the bill which ultimately became the Act of February 
 3, 1887, but the House on each occasion withheld its 
 approval. 
 
 Edmunds, from a select committee of the Senate in 
 1878, had reported a bill with almost identically the 
 features of the bill of 1887, and it had passed the Senate. 
 Failing in the House, it was reintroduced in the Senate 
 by Hoar in 1882. Pugh, of Alabama, speaking in regard 
 to it in April, 1882, said: "No political or governmental 
 power or duty has been more fully or ably discussed in 
 both Houses of Congress than the power and duty of 
 counting the votes of the electors appointed by each 
 State to choose a President and Vice-President of the 
 United States." In arguing for the power of the two 
 
2i6 The Electoral System 
 
 Houses in joint session to count, he declared that only a 
 few — "not more, I am informed, than two of this august 
 body" — entertained the opinion that the president of the 
 Senate possessed this power. 
 
 "A few believe that, as the Constitution is silent as to where 
 the power to count is located, it is a casus omissus^ and the 
 only remedy is an amendment to the Constitution; but the 
 overwhelming weight of argument, authority, and public opin- 
 ion has located the power and duty of ascertaining all of the 
 facts necessary to the legal validity of the votes, and of settling 
 all disputes in relation thereto, and of counting the legal votes 
 and declaring the final result of each presidential election, 
 under rules of evidence of their own creation, in the Senate 
 and House of Representatives, constituting the Congress re- 
 quired by law to be in session on the second Wednesday in 
 February succeeding every meeting of the electors." 
 
 But a study of the annals of Congress shows that the 
 number of dissidents is far greater than Pugh assumed, 
 and that it includes some of the most eminent constitu- 
 tional lawyers who have ever sat in either House. 
 
 Garland, of Arkansas, who subsequently became At- 
 torney-General under President Cleveland, and who had 
 opposed the bill of 1878, resisted its progress in 1882. 
 He acknowledged that it was **not to be disguised that 
 it is the most important question that can be brought be- 
 fore Congress or the public," but, in his opinion, while 
 the Constitution did undertake to deal with the question 
 and to prescribe how the thing should be done, it was 
 strangely silent as to matters of detail. **The Constitu- 
 tion stops short of doing what it should have done. If 
 it stops short, nothing but an amendment to the Consti- 
 tution can reach the case." 
 
 The bill of 1882 underwent amendment in the House. 
 The House committee suggested a per capita vote in 
 joint convention as a substitute for the concurrent vote 
 
The Act of February 3, 1887 217 
 
 of the two Houses in separate session, and this proposi- 
 tion was carried in the House. Eaton, of Connecticut, 
 was prominent in the debate in support of the constitu- 
 tionality of this change, but he inconsistently afifirmed, 
 with great solemnity, that the exclusive authority to 
 count the electoral vote was reposed in the House of 
 Representatives alone/ 
 
 On December 8, 1885, Edmunds again introduced the 
 measure in the Senate. It was referred to the Committee 
 on Privileges and Elections, reported favorably by it, and 
 passed by the Senate, but not without many weighty 
 expressions of dissent. The purpose of the bill, as an- 
 nounced in its title, was to fix the day for the meeting of 
 electors of President and Vice-President and to provide 
 for and regulate the counting of the votes for President 
 and Vice-President and the decision of questions arising 
 thereon. Speaking of the measure. Senator Hoar de- 
 clared that it had been the subject of consideration and 
 discussion for more than twelve years. "The debate 
 may almost be said to have been in progress during the 
 whole time since the December session of 1875. The 
 bill has passed the Senate three times, I believe, almost 
 unanimously." In advocating its passage. Hoar stated 
 its object to be "to remove ... by legislation, and 
 without an amendment to the Constitution, a difficulty 
 which grows out of an imperfection in the Constitution 
 itself." Whatever differences of opinion, continued Hoar, 
 existed earlier in our history, two matters have been 
 settled by the present generation : first, that the presi- 
 dent of the Senate has not the power to count the elec- 
 toral vote, and, secondly, that the power to decide 
 questions and make the count is not exclusively vested in 
 the House of Representatives. To clothe the president 
 
 ' " As I believe in the Almighty, I believe this House has sole power to 
 count the electoral vote, as in no other way can it be determined when it is 
 to elect a President." 
 
2i8 The Electoral System 
 
 of the Senate with such transcendent office would have 
 been a transgression of Lord Coke's maxim, not to 
 make a man a judge of his own case, for the Vice-Presi- 
 dent is frequently a candidate for the presidential office. 
 There was "a failure of the Constitution," a ''casus 
 omissus,'" a "failure to provide an arbiter" when the two 
 Houses disagreed. The provision for such an arbiter 
 came within the residuary power of Congress. 
 
 The debate in the Senate clearly reveals the fact that 
 opinion by no means unanimously sustained Hoar's first 
 proposition, that the president of the Senate had not the 
 power to count. Nor were Senators in accord in their 
 view of the constitutionality of the bill. If there were a 
 casus omissus in the Constitution, as was originally argued 
 by Henry Clay in 1821, had Congress power under the 
 residuary clause of the Constitution to determine where 
 the counting authority should be placed, and had it 
 authority to vest the power, as it was inevitable that 
 Congress would do, in itself?' 
 
 Senator Sherman, who was an opponent of the Elec- 
 toral Commission bill of 1877, actively fought the new 
 measure in the Senate, pronouncing it to be unconstitu- 
 tional in principle and defective in detail. He especially 
 challenged the provisions of the bill referring to single 
 and double returns. He reviewed the history of the 
 counts in 1821, in 1857, during reconstruction times, and 
 in 1877. Of the Electoral Commission, he said: "We 
 came to a point that did really threaten our national 
 existence ; when civil war . . . was happily avoided 
 by a contrivance,— for I cannot call it much more, and I 
 
 ' In a valuable article upon " The Electoral Count," 3 Polit. Set. Quar- 
 terly, pp. 632-652, Professor John W. Burgess argues for the existence of 
 the power, as have many statesmen since the debate of 1800. The oppos- 
 ing view has been sufficiently presented in foregoing pages. The deepest 
 objection is that such a power blends and confuses governmental functions 
 which the authors of the Constitution intended to keep separate. 
 
The Act of February 3, 1887 219 
 
 suppose Senators did not think it much more; I did not 
 support it' at the time, but it was a wise measure" ; and 
 he added, "I should like to have the provisions pointed 
 out to me which authorized Congress to make such a 
 tribunal for such a purpose." Sherman trenchantly- 
 criticised the sections of the bill then before the Senate 
 prescribing the procedure in case one return was received 
 from a State, and he also objected to the methods the 
 bill proposed for the solution of questions arising upon 
 the presentation of two or more returns. If any measure 
 were to be adopted, he favored a disposition of all the 
 problems in a joint session of the two Houses, "polling 
 each House separately to decide the result by a vote of 
 a majority of the representatives of the people and the 
 representatives of the States 'combined." He rightly 
 argued that whatever was done would involve more or 
 less danger. 
 
 ** Without extending this debate further, this matter is sur- 
 rounded by many difficulties. When I proposed the other day 
 that the question should finally be decided by the two Houses 
 of Congress acting in a joint convention, I was not entirely 
 satisfied, because I could see that that involved great diffi- 
 culties. ... I do not wish to continue this discussion 
 further. I do not believe that in the present condition of the 
 bill we are likely to come to any wise solution of it. I would 
 rather recommit the bill to the Committee on Privileges and 
 Elections, which I know would approach this question with 
 great care. At any rate I trust that we shall not now be 
 forced to vote upon propositions that are not satisfactory to 
 the Senate. ... I would rather take the Supreme Court 
 of the United States, much as I object to drawing that great 
 tribunal into this controversy, because that court would at 
 least give a decision ; it would say which of two returns should 
 be counted." 
 
 And he concluded his speech with the renewed assertion 
 that the bill was not a sufficient remedy and that after 
 
2 20 The Electoral System 
 
 thirteen years' debate a point had not been reached ** where 
 the other House or the Senate can be satisfied with the 
 solution that is proposed of this most difficult problem.'* 
 Ingalls made an eloquent attack upon the measure, 
 satirically intimating that in such an opinion as Hoar's it 
 was assumed that the perfection of human wisdom had 
 been attained, and 
 
 " that any attempt to reach higher excellence could not result 
 in advantage to the Senate or in any wiser solution of the con- 
 fessed difficulties by which this question is surrounded." 
 ** This matter," he justly declared, " has been debated since 
 1789. It will continue to be debated, no matter what action 
 may be taken by the Senate, until there is a constitutional 
 amendment, a change in the organic law that shall entirely 
 take the subject out of its present attitude and place it where 
 it should be placed, in accordance with the predetermined 
 will of the American people. So the Senator need not com- 
 fort or console himself by the ex.pectation that, by any piece 
 of legislative patchwork we can adopt here, debate upon this 
 great question is to come to an end." 
 
 Ingalls also uttered direct and wholesome truth about 
 the legislation of 1877: 
 
 ** The Democratic majority in the House of Representatives 
 at that time never would have consented to the creation of 
 that tribunal [the Electoral Commission] had they not sup- 
 posed that the fifteenth member of the Commission under the 
 provisions of that statute was in favor of the election of Samuel 
 J. Tilden. We all know the providential interposition by 
 which that great and good man David Davis of Illinois was 
 removed from that tribunal and translated to a happier sphere. 
 In the dispensations of Providence, he was transferred from 
 the bench of the Supreme Court to the Senate of the United 
 States after the passage of the bill, and thus the fifteenth man 
 upon the tribunal was in favor of the election of Mr. Hayes to 
 the presidency. That is the way that seven to eight became 
 
The Act of February 3, 1887 221 
 
 changed to eight to seven. I have heard much about the 
 patriotism of the Democratic party in that contest and the 
 moderation of its candidate in consenting to this measure, and 
 renouncing the presidency; but I venture to say that, could 
 they have foreseen in December, 1876 [January, 1877], when 
 that bill was passed, what the transmutations of politics were to 
 bring about, there never would have been a concurrence on 
 the part of the House of Representatives in the enactment of 
 the Electoral Commission bill. It was a fatal error under the 
 Constitution for the Democratic party; and the bill we are now 
 considering is but a faint and feeble and fragile imitation of 
 the Electoral Commission. ... It had never been determined 
 by any tribunal, it had never been decided by any competent 
 authority, that the phrase * the votes shall then be counted ' 
 might not by an absolutely justifiable inference have been held 
 to mean that the president of the Senate, being the custodian 
 of those votes, having the right to open them, had also the 
 right to count them; and, in the great contests of the future, 
 emergencies may arise, emergencies are not unlikely to arise, 
 in the state of the law on this subject, when it might be well 
 not to be confronted by that pernicious precedent." 
 
 Legislative remedies, in Ingalls* judgment, were utterly- 
 futile. Nothing less than a constitutional amendment 
 would meet the difficulty. 
 
 " Careful consideration of this subject will convince any 
 thoughtful student of the Constitution that the scheme which 
 has been devised and which now remains in our organic law 
 is fatally defective, and that nothing can be done by way of 
 legislation to cure the inevitable evils by which it is sur- 
 rounded; and the more we proceed by legislation to patch, to 
 bridge over apparent difficulties, to abbreviate the number of 
 perils which surround it, by so much we retard and delay the 
 exercise of the power which the people must ultimately be 
 called upon to perform in adopting some system that shall re- 
 move the perils in which it is now environed." 
 
222 The Electoral System 
 
 Evarts, who was one of the number that believed in 
 the right of the president of the Senate to count, advo- 
 cated a recommitment of the bill, with the amendments 
 proposed, to the committee, for "a fuller examination 
 and a more complete treatment of all the possible or 
 probable occasions of mischief and misconstruction that 
 may arise when the mere act of the counting of the 
 vote is to be performed. . . . My experience in 
 attending upon the discussions of the electoral count 
 satisfies me that the greatest difficulties are from the 
 very instant and very limited means by which any doubts 
 are to be solved." To one serious difficulty he called 
 attention. Before the House of Representatives is 
 authorized to elect the President, it must appear that the 
 count shows a failure of a majority for any candidate of 
 all the electors that have been appointed. To ascertain 
 how the result stands, we must first learn how large is the 
 whole number of appointed electors. Suppose, he con- 
 tinued, that, in 1877, the three votes of Oregon had been 
 rejected upon the ground that electors had not been 
 appointed : 
 
 ** then you would have seen that, having reduced by three the 
 whole body of electoral votes to be computed and divided, 
 Mr. Tilden by having 184 votes would have been elected, be- 
 cause he would have had a majority of the whole electoral list 
 reduced by three. ... I know no more critical, no more 
 embarrassing situation, under our Constitution, than a doubt 
 produced in such a narrow state of votes, as to whether the 
 House can elect or whether the next and inferior candidate is 
 elected by his own right by having a majority of the reduced 
 electoral colleges." 
 
 Evarts might have drawn an equally pertinent illustration 
 from the electoral vote of Georgia in 1873. Three 
 electors then voted for Greeley, although his death 
 occurred before the members of the electoral college 
 
The Act of February 3, 1887 223 
 
 met. The House of Representatives, upon Hoar's initia- 
 tive, rejected these three votes as void, "the said Horace 
 Greeley having died before the votes were cast," but the 
 more conservative Senate decided they ought to be 
 counted, for the reason, doubtless, — although the debates 
 are not clear upon the point, — that these three electors 
 had actually been appointed, and that a future case might 
 arise where the fact of appointment might become of 
 moment in ascertaining the total number of electors ap- 
 pointed and the number requisite to constitute a majority. 
 It would have been a bad precedent to reject these votes 
 as null and void. "It was an important question," as 
 Morton said in the Senate debate of March, 1876, "be- 
 cause it went to determine what constituted a majority 
 of all the electors appointed. It might become a very 
 important question in a future contest." 
 
 Although disposed at first to view with favor Sherman's 
 suggestion of a per capita vote by the Houses in joint 
 session, Evarts, upon reflection, withdrew his support. 
 Nor, he said, did he "look with complacency upon a 
 reference to the Supreme Court or to any judicial tribu- 
 nal." He was also hostile to the opening of judicial 
 proceedings in the State below to intercept and interpret 
 or suppress the vote of a State. 
 
 "The framers of the Constitution looked with extreme 
 solicitude upon the principal fact and result that a President 
 should be chosen; . . . their chief concern was . . . 
 that the progress from the first act of voting up to the final 
 declaration should be as little impeded and as little interrupted 
 as possible." 
 
 This opposition to a determination by a proper State 
 tribunal is consistent with the attitude assumed by 
 Evarts before the Electoral Commission, but hardly with 
 the prevailing view of the commission itself. 
 
 Evarts drafted an amendment, which was subsequently 
 
224 The Electoral System 
 
 incorporated in the third section of the bill, requiring the 
 governor of each State to certify not only the names of 
 electors, but also the number of votes given or cast for 
 all persons voted for as electors by the people. This, he 
 said, was neither more nor less than was required for the 
 security of elections in our own States. 
 
 Wilson, of Iowa, doubted the power of Congress to 
 legislate upon the subject at all. The fathers were cer- 
 tainly fallible, for they seemed to have taken for granted 
 that no questions could ever arise upon the subject of 
 counting the vote, and that nothing more would ever be 
 necessary than to open the certificates which were pro- 
 duced in the presence of both Houses and to count the 
 number and names as returned. *'The bill we are now 
 considering has not, in my judgment, the sanction of the 
 Constitution." Regarding the general welfare cause, 
 which was relied upon in justification of the measure, he 
 said : "Here is a delegation of power to provide for carry- 
 ing into effect the power to open and count the votes of 
 the electors lodged in the president of the Senate. But 
 it does not confer on Congress the power to assume unto 
 itself the duty which the Constitution imposes on that 
 ofificer." And he put this keen interrogatory, going to 
 the crux of the whole subject: 
 
 ** Can we conclude that the framers of our Constitution, 
 when they conferred on the respective Houses of Congress 
 these extraordinary powers [as in certain contingencies to 
 elect President and Vice-President], intended to invest them 
 with the still more extraordinary power of rejecting the votes 
 of electors appointed by the several States, and thereby creat- 
 ing, by themselves and for themselves, the contingency which 
 alone gives them the right and power to elect a President and 
 Vice-President? The mere statement of such a proposition is 
 its own refutation. And if no such power rests with the two 
 Houses for concurrent action, how much more preposterous 
 does it seem to be to claim that it rests with either House 
 
The Act of February 3, 1887 225 
 
 alone, and especially with the House of Representatives, with 
 which body the power to elect a President abides in the event 
 of a failure of the electors to elect. . . . The framers of 
 the Constitution clearly indicated their purpose to exclude" 
 Senators and Representatives ' ' from all power in or over the 
 matter of the election of a President by the electors appointed 
 by the State. . . . Our Constitution in this regard may 
 not be in the best form. But we cannot change it by an act 
 of Congress, nor by such act confer power on Congress not 
 given by the Constitution. It is no new thing to find that our 
 Constitution needs amendment. Fifteen articles of amend- 
 ments testify to this fact. If we have discovered a defect in 
 the respect of which the pending bill treats, it were better for 
 us to do what has been done fifteen times heretofore, provide 
 for an amendment of the Constitution in manner and form as 
 it points out, rather than resort to the doubtful expedient now 
 before us." 
 
 In the House of Representatives the progress of the 
 bill w^as beset by similar objections, ably presented. 
 
 The bill of 1887 was amended when it reached the 
 House. After a conference, agreement was reached 
 upon the bill in its present form. Legislation seemed to 
 be imperatively necessary, for the neglect of previous 
 Congresses to frame an adequate law or a proposed con- 
 stitutional amendment had led the country in 1877 almost 
 to the brink of revolution, and it was the general senti- 
 ment of the supporters of the bill in both Houses that 
 some enactment must be placed upon the statute book, 
 even if it were not the best attainable. No trouble had 
 arisen in the count either in 1881 or 1885. Early in 
 February, 1881, a resolution was adopted by both Houses 
 which in effect reinstated the method in use before 
 the twenty-second joint rule went into operation.' It 
 
 ^ " When the Houses came to count the votes in Mr. Garfield's election, 
 after fruitless efforts to provide a rule, or a law, under which they could be 
 actually counted, it was necessary to resort to a temporary expedient by 
 which all questions were suppressed that could give rise to controversy, in 
 
2 26 The Electoral System 
 
 provided for two tellers on the part of the Senate, thus 
 following the Electoral Commission law of 1877, ^^d it 
 further provided that if it should appear that the electoral 
 vote of any State had been given on any other day than 
 that fixed by law, which was the case of Georgia, the 
 declaration of the result should be in the alternative form 
 adopted in 1821 and followed in 1837 and in 1857. The 
 count of 1 88 1 took place under this resolution, the elec- 
 toral vote of Georgia being counted in the alternative. 
 The count of February 11, 1885, was in accordance with 
 a joint resolution adopted by both Houses, practically 
 identical in form with the first portion of the resolution 
 of 1 88 1, omitting the provisions for alternative counting. 
 The first section of the statute substituted the second 
 Monday of January for the first Wednesday of December 
 as the day on which the electors of each State should 
 meet and give their votes. The object of Congress in 
 changing a date which had been in effect ever since the 
 passage of the act of 1792 was to allow more time for the 
 settlement in a State of any dispute regarding the ap- 
 pointment of an elector. Unhappily this additional 
 month may stimulate nefarious activity, as it allows so 
 much more time to fabricate objections and obtain dual 
 returns. 
 
 order to declare a result which no one disputed, but which left the vote of 
 Georgia uncounted. If New York had voted for General Hancock, Geor- 
 gia voting, as she did, on a day not fixed by the laws of the United States, 
 the result would probably have been a tie in the electoral college. One 
 vote in the House might also have divided the States equally, and the Sen- 
 ate in that event would have chosen a Vice-President who would have be- 
 come President, or else a person not elected by the people would have 
 captured the office. It would have been beyond the bounds of a reasonable 
 hope to have expected a peaceful result in this gauntlet of chances to which 
 this great office would have been thus exposed. It should be enough to say 
 to a wise people that all questions are open and dangerous that relate to the 
 counting of the votes of electors. They are as numerous as it is possible 
 for the ambition, the cupidity, the fraud, and the skill of wicked men to 
 invent." — " Some Dangerous Questions," by Senator John T. Morgan, 133 
 JV. A. R., 315, 324. 
 
The Act of February 3, 1887 227 
 
 Section 2 provides as follows : 
 
 "Sec. 2. That if any State shall have provided, by laws 
 enacted prior to the day fixed for the appointment of the 
 electors, for its final determination of any controversy or con- 
 test concerning the appointment of all or any of the electors 
 of such State, by judicial or other methods or procedures, 
 and such determination shall have been made at least six days 
 before the time fixed for the meeting of the electors, such de- 
 termination made pursuant to such law so existing on said 
 day, and made at least six days prior to the said time of meet- 
 ing of the electors, shall be conclusive, and shall govern in the 
 counting of the electoral votes as provided in the Constitution, 
 and as hereinafter regulated, so far as the ascertainment of 
 the electors appointed by such State is concerned." 
 
 The section provokes several comments. Section 2 of 
 the Senate bill of 1882, unlike the present Section 2, 
 provided that each State, pursuant to its laws existing 
 on the day fixed for the appointment of the electors, 
 might try and determine, before the time fixed for the 
 meeting of the electors, any controversy concerning their 
 appointment, and that every such determination made 
 pursuant to such law so existing on said day and made 
 prior to the said time of meeting of the electors, should 
 be conclusive evidence of the lawful title of the electors 
 who should have been so determined to have been 
 appointed, and should govern in the counting of the 
 electoral votes as provided in the Constitution, and as 
 regulated by the proposed bill. 
 
 Section 2 of the Act of 1887 was criticised in Congress, 
 and has since been criticised, as conferring undue power 
 upon the State. Congress, it has been said, renounces 
 too much jurisdiction. Professor Burgess declares that 
 the section "reveals at the outset an excessively States'- 
 right view of the whole subject," and that "from a 
 purely scientific standpoint one must consider the provi- 
 
228 The Electoral System 
 
 sion an ultra and unwise concession to the State," which, 
 he thinks, is grounded upon the proposition that only 
 the State in which the controversy or contest occurs has 
 any interest in its determination. Nevertheless, if the 
 prevailing opinions of the Electoral Commission of 1877 
 are to be treated as properly defining the relative limits 
 of State and national power, the first part of the section 
 is in accordance with the constitutional theory, whether 
 that theory be scientific or not. The commissioners, 
 both Democratic and Republican, agreed to the proposi- 
 tion that State control was absolute over the appointment 
 of electors, except in the matter of time, and the majority 
 of the electoral tribunal decided that any determination 
 reached by the State as to the title of her electors must 
 precede the casting of the electoral ballot. When the 
 Florida case was before the commission, the Democratic 
 counsel argued that the statute enacted by Florida in 
 January, 1877, and the judgment of her circuit court 
 upon the title of electors was a reversal of the decision of 
 her State canvassing board and binding upon the com- 
 mission; but the Republican counsel objected to this 
 legislation and to the judgment, as ex post facto, and 
 were sustained by the commission. Had the commission 
 framed the first part of this section, consistency with the 
 views of the majority would have required it to phrase 
 that part as it now reads. 
 
 Section 2 of the Act of 1887 requires that every judicial 
 or other determination of a contest over the appointment 
 of an elector must be settled at least six days before the 
 time fixed for the meeting of the electors, as well as 
 settled by law existing prior to that day. So apathetic 
 have the people remained since the crisis of 1877 that 
 none of the States have provided by legislation for the 
 settlement of controversies of contests concerning the 
 appointment of their electors. 
 
 But whether Congress has not transcended its powers 
 
The Act of February 3, 1887 229 
 
 in requiring that the State decision must be reached at 
 least six days before the second Monday of January, is a 
 matter for grave doubt. The Federal Constitution 
 clothes the States with absolute control over the appoint- 
 ment of their electors, except as to the day of appoint- 
 ment, and it is difficult to perceive how Congress can 
 interfere with this control for a single moment. Dibble 
 argued that the six-day limitation was improper. 
 
 ** Up to the day of election, the day when the electors are 
 to cast their votes, the State power as to appointment cannot 
 be interfered with in any manner, shape, or form by the Con- 
 gress of the United States, or by any other power. Up to 
 that time the State stands fortified by the privilege granted in 
 the Constitution. The fact that the day is to be designated 
 by Congress and is to be the same throughout the United 
 States of course limits the time when the appointing power 
 can be exercised." 
 
 The same objection had previously been made by Eaton 
 of the House, who was reminded by Browne that the 
 section merely declared what evidence Congress would 
 receive as conclusive of the fact of the selection of a par- 
 ticular elector by the State. But Dibble's objection was 
 valid, if it be assumed that the States have exclusive 
 control over the appointment of their electors. In a 
 matter of such momentous importance as the correct 
 determination of the electoral vote of a State, it is hardly 
 befitting the dignity of Congress to take a sort of snap 
 judgment against the State by declaring that the solemn 
 adjudications of its tribunals will be treated as conclusive 
 upon Congress only when made at least six days before 
 the electors meet to vote. This provision might result 
 in the gross injustice to the State of sustaining the title 
 of one set of electors, although the highest court of the 
 State had, before the electoral vote was cast, decided that 
 set of electors to have no title, and their opponents, whose 
 
230 The Electoral System 
 
 certificate might also be before Congress, the actual rep- 
 resentatives of the voice of the commonwealth. The 
 interposition of the absolute bar of a judgment which 
 Congress will treat as conclusive must, if it have any 
 meaning, operate as an interference with the State's full 
 control. The distinction between the appointment and 
 the validity of the acts of the electors is fundamental and 
 must not be lost sight of. The appointment, if made 
 upon the prescribed day, is the sole concern of the State. 
 But whether electors are constitutionally eligible, and 
 whether they have voted in conformity with the Consti- 
 tution of the United States, are questions which, as was 
 intimated in the discussion of the Louisiana case, may 
 be of wider import and may affect all the States. 
 
 Section 3 of the statute is as follows : 
 
 " Sec. 3. That it shall be the duty of the executive of each 
 State, as soon as practicable after the conclusion of the ap- 
 pointment of electors in such State, by the final ascertainment 
 under and in pursuance of the laws of such State providing for 
 such ascertainment, to communicate, under the seal of the 
 State, to the Secretary of State of the United States, a certifi- 
 cate of such ascertainment of the electors appointed, setting 
 forth the names of such electors and the canvass or other 
 ascertainment under the laws of such State of the number of 
 votes given or cast for each person for whose appointment any 
 and all votes have been given or cast; and it shall also there- 
 upon be the duty of the executive of each State to deliver to 
 the electors of such State, on or before the day on which they 
 are required by the preceding section to meet, the same cer- 
 tificate, in triplicate, under the seal of the State; and such 
 certificate shall be inclosed and transmitted by the electors 
 at the same time and in the same manner as is provided 
 by law for transmitting by such electors to the seat of govern- 
 ment the lists of all persons voted for as President, and of 
 all persons voted for as Vice-President; and Section 136 of 
 the Revised Statutes is hereby repealed; and if there shall 
 have been any final determination in a State of a controversy 
 
The Act of February 3, 1887 231 
 
 or contest, as provided for in Section 2 of this act, it 
 shall be the duty of the executive of such State, as soon as 
 practicable after such determination, to communicate, under 
 the seal of the State, to the Secretary of State of the United 
 States, a certificate of such determination, in form and manner 
 as the same shall have been made; and the Secretary of State 
 of the United States, as soon as practicable after the receipt 
 at the State Department of each of the certificates hereinbe- 
 fore directed to be transmitted to the Secretary of State, shall 
 publish, in such public newspaper as he shall designate, such 
 certificates in full; and at the first meeting of Congress, there- 
 after, he shall transmit to the two Houses of Congress copies in 
 full of each and every such certificate so received theretofore 
 at the State Department." * 
 
 Several important questions arise under this section. 
 The section makes it the duty of the executive of each 
 State to "communicate" to the Secretary of State of the 
 United States a certificate giving the names of the elec- 
 tors and the canvass showing the votes given or cast for 
 each aspirant for that office. It is also his duty to deliver 
 to the electors themselves a certificate in triplicate to the 
 same effect, and the certificate is to be transmitted by 
 the electors, together w^ith the return showing for whom 
 they have voted for President and Vice-President. But 
 how is the duty of the executive to be enforced? Sup- 
 pose a State executive, following the example of Gover- 
 nor Grover of Oregon in 1877, should decline to furnish 
 
 ' The framers of the law of 1887 neglected to change Section 141 of the 
 revision of the statutes (containing the original provision of the Act of 1792), 
 that whenever a certificate of a vote from a State had not been received at 
 the seat of government on the first Wednesday of January after an election, 
 the Secretary of State should send a special messenger to the district judge 
 in whose custody one of the certificates of the vote of the State had been 
 required to be lodged. As the Act of 1887 requires the electors to vote on 
 the second Monday of January, this section needed amendment. Con- 
 gress, accordingly, on October 19, 1888, amended Section 141 so as to 
 change the date therein to the fourth Monday of January. 
 
232 The Electoral System 
 
 a certificate to a candidate ultimately decided to be ap- 
 pointed and to be entitled thereto? What is to happen? 
 
 It is questionable whether the Evarts amendment is 
 salutary. So long as the State has made its determina- 
 tion, and certified it in the statutory manner, it is of no 
 moment to Congress to be advised of any facts underlying 
 the State returns. Why Congress should busy itself with 
 the number of votes cast for an elector it is difficult to 
 conjecture. Similar tabulations accompanied the con- 
 flicting returns in 1877, but the commission paid no 
 heed to them. Even in Oregon's case these tabulations 
 were ignored, the commission accepting a certificate of 
 Oregon's secretary of State as a determination by the 
 State canvassing authority. Nothing properly belongs 
 before Congress or the counting power except ultimate 
 State results. It was of far more consequence that the 
 law should prescribe whether it is mandatory upon the 
 State governor to deliver to the electors the certificate 
 required by the Act of 1792, and what should be the 
 consequence of a failure on his part so to do, or how his 
 neglect should be remedied. The act should also have 
 prescribed how the certificate might be impeached, as- 
 suming, as the Electoral Commission did, that it was im- 
 peachable. To be complete, the act should not only 
 have defined all vague terms used therein, but have care- 
 fully distinguished between the appointment of electors 
 and the exercise of electoral functions by lawful electors, 
 the one subject being exclusively within State cognizance, 
 the other, at least according to a respectable amount of 
 opinion, and, as I interpret it, according to the act itself, 
 a matter exclusively of Federal supervision. 
 
 The section which evoked the most debate, which was 
 amended in the House, and assumed its final form only 
 after a conference between the two Houses, is Section 
 4, which is as follows : 
 
 " Sec. 4. That Congress shall be in session on the second 
 
The Act of February 3, 1887 233 
 
 Wednesday in February succeeding every meeting of the 
 electors. The Senate and House of Representatives shall 
 meet in the hall of the House of Representatives at the hour 
 of one o'clock in the afternoon, on that day, and the president 
 of the Senate shall be their presiding officer. Two tellers 
 shall be previously appointed on the part of the Senate and 
 two on the part of the House of Representatives, to whom shall 
 be handed, as they are opened by the president of the Senate, 
 all the certificates and papers purporting to be certificates 
 of the electoral votes, which certificates and papers shall be 
 opened, presented, and acted upon in the alphabetical order 
 of the States, beginning with the letter A; and said tellers, 
 having then read the same in the presence and hearing of the 
 two Houses, shall make a list of the votes as they shall appear 
 from the said certificates; and, the votes having been ascer- 
 tained and counted in the manner and according to the rules 
 in this act provided, the result of the same shall be delivered 
 to the president of the Senate, who shall thereupon announce 
 the state of the vote, which announcement shall be deemed a 
 sufficient declaration of the persons, if any, elected President 
 and Vice-President of the United States, and, together with a 
 list of the votes, be entered on the journals of the two Houses. 
 Upon such reading of any such certificate or paper, the presi- 
 dent of the Senate shall call for objections, if any. Every 
 objection shall be made in writing, and shall state clearly and 
 concisely, and without argument, the ground thereof, and 
 shall be signed by at least one Senator and one member of the 
 House of Representatives before the same shall be received. 
 When all objections so made to any vote or paper from a State 
 shall have been received and read, the Senate shall thereupon 
 withdraw, and such objections shall be submitted to the Senate 
 for its decision; and the Speaker of the House of Representa- 
 tives shall, in like manner, submit such objections to the 
 House of Representatives for its decision; and no electoral 
 vote or votes from any State which shall have been regularly 
 given by electors whose appointment has been lawfully certified 
 to according to Section 3 of this act, from which but one re- 
 turn has been received, shall be rejected, but the two Houses 
 
234 The Electoral System 
 
 concurrently may reject the vote or votes when they agree that 
 such vote or votes have not been so regularly given by electors 
 whose appointment has been so certified. If more than one 
 return or paper purporting to be a return from a State shall 
 have been received by the president of the Senate, those votes, 
 and those only, shall be counted which shall have been regu- 
 larly given by the electors who are shown by the determination 
 mentioned in Section 2 of this act to have been appointed, if 
 the determination in said section provided for shall have 
 been made, or by such successors or substitutes, in case of 
 a vacancy in the board of electors so ascertained, as have 
 been appointed to fill such vacancy in the mode provided 
 by the laws of the State; but in case there shall arise the 
 question which of two or more of such State authorities de- 
 termining what electors have been appointed, as mentioned 
 in Section 2 of this act, is the lawfult ribunal of such State, 
 the votes regularly given of those electors, and those only, 
 of such State shall be counted whose title as electors the 
 two Houses, acting separately, shall concurrently decide is 
 supported by the decision of such State so authorized by its 
 laws; and in such case of more than one return or paper 
 purporting to be a return from a State, if there shall have 
 been no such determination of the question in the State afore- 
 said, then those votes, and those only, shall be counted which 
 the two Houses shall concurrently decide were cast by lawful 
 electors appointed in accordance with the laws of the State, 
 unless the two Houses, acting separately, shall concurrently 
 decide such votes not to be the lawful votes of the legally ap- 
 pointed electors of such State. But if the two Houses shall 
 disagree in respect of the counting of such votes, then, and in 
 that case, the votes of the electors whose appointment shall 
 have been certified by the executive of the State, under the 
 seal thereof, shall be counted. When the two Houses have 
 voted, they shall immediately again meet, and the presiding 
 officer shall then announce the decision of the questions sub- 
 mitted. No votes or papers from any other State shall be 
 acted upon until the objections previously made to the votes 
 or papers from any State shall have been finally disposed of." 
 
The Act of February 3, 1887 235 
 
 This section embodies in statutory form the practice 
 which has prevailed for several generations. The pro- 
 vision for two tellers on the part of the Senate is taken 
 from the Electoral Commission law of 1877. 
 
 In the case of a single return from a State Section 4 
 prescribes that no electoral vote or votes from a State, 
 which shall have been regularly given by electors whose 
 appointment has been lawfully certified according to 
 Section 3, shall be rejected, except where the two 
 Houses concurrently agree that its votes have not been 
 regularly given. 
 
 The main objection to this clause was fairly stated by 
 Senator Sherman in December, 1886. "That," he ar- 
 gued, "is a dangerous power. It allows the two Houses 
 of Congress, which are not armed with any constitutional 
 power whatever over the electoral system, to reject the 
 vote of every elector from every State, with or without 
 cause, provided they are in harmony in that matter." 
 The language is none too strong. If a Congress, pro- 
 tected by an adequate vote in each chamber, wished to 
 destroy the Government, this provision would enable it 
 to do so. It permits a majority, upon technical grounds, 
 to defeat the popular will, to nullify constitutional gov- 
 ernment, and prevent the inauguration of a new President ; 
 and the danger grows out of the fact that Congress has 
 invaded a province or department of the Government 
 which the framers of the Constitution planned to keep 
 absolutely aloof from and independent of the legislative 
 branches. Nor are fears of a majority idle or chimerical. 
 The security of the Government lies in the constitutional 
 distribution of power. The Act of 1887 puts the very 
 being of the nation at the mercy of a majority in either 
 House, — a thing not only never dreamed of by the fathers, 
 but the possibility of which they believed they had effec- 
 tually averted. This provision was criticised in the re- 
 port of the minority of the House committee. 
 
236 The Electoral System 
 
 Congress, from the outset of the Constitution, has 
 gradually been usurping a jurisdiction over the electoral 
 system. It is not necessary to decide whether the presi- 
 dent of the Senate was to count the electoral vote. 
 Whatever the ambiguity of the original expression "the 
 votes shall then be counted," whatever doubt arises as 
 to the true depositary of the counting power or as to the 
 extent of that power, one thing seems beyond contra- 
 diction : that the Constitution intended the operations of 
 the electoral system, in all its phases, to be free from 
 congressional interference or control. Even the Con- 
 gress of 1877, that framed the Electoral Commission bill, 
 would not declare that the counting power was in Con- 
 gress ; this dangerous and revolutionary theory first finds 
 place upon the statute-book after one hundred years of 
 national existence, in the Act of 1887. 
 
 It is difficult to find any basis in logic or reason for 
 such congressional domination in the case of only a single 
 return from a State. Section 2 of the act is at its 
 outset predicated upon the just assumption that the ap- 
 pointment of electors is the sole concern of the State, 
 and that the appointment may be reviewed by the appro- 
 priate State tribunal. Thus far the act is based upon 
 the constitutional theory of the electoral office. Any 
 final determination by the State authority of any contest 
 or controversy as to the appointment of its electors is 
 by section two made conclusive, and is to govern in the 
 counting of the electoral vote, so far as the ascertainment 
 of the electors appointed by the State is concerned, — 
 language plainly implying a discrimination in the legis- 
 lative mind between the function of the State, which is 
 that of appointing, and the function of the counting 
 power, which is to pass upon the regularity of the vote. 
 And the State executive is required by Section 3 to 
 certify to the appointment, and also to the determination 
 of a controversy where any such decision has been made. 
 
The Act of February 3, 1887 237 
 
 The Section (4) clearly means that in case of such 
 prior determination in the State, only the regularity of 
 the votes given shall be questioned in the two Houses. 
 But what shall happen to the vote of the State, if the 
 two Houses do not separately agree that it has been 
 regularly given? Is it to be lost? If so, the vote of a 
 State is sure to be counted only when both Houses agree 
 that it has been regularly given. This clause of Section 
 4 and every other clause of the section raises the ques- 
 tion so exhaustively considered in the debate of 1876 
 upon the Morton bill, as to the effect of non-concurrence 
 of the Houses upon the State's vote. 
 
 The subject of multiple returns must be treated under 
 several aspects. In the first place, if there has been a 
 determination in a State of a contest over the appoint- 
 ment of electors, the votes regularly given by electors 
 declared appointed by this determination are to be ac- 
 cepted by Congress, and the others discarded from con- 
 sideration. In this single instance Congress renounces 
 all right of inquiry into the State vote except to ascertain 
 what votes have been regularly given, a field of inquiry 
 that may cover electoral disqualifications and votes by 
 eligible electors for unconstitutional candidates. If the 
 two Houses do not separately concur that the votes are 
 regular, State disfranchisement ensues.^ In the second 
 case, if conflicting State authorities or tribunals, two ex- 
 ecutives, for example, certify to diff"erent sets of electors, 
 "the votes regularly given of those electors, and those 
 only, of such State shall be counted whose title as electors 
 
 ' *' It is not expressly stated in this period of the section that if the two 
 Houses in separate assembly decide that such electors have not given their 
 votes regularly, they may, by concurrent action, reject these votes, though 
 it is to be presumed that such is the meaning of the law. The language of 
 this paragraph is very confused, almost unintelligible ; and since we have, 
 as yet, had no actual precedents of interpretation, there are several points 
 concerning which our predications cannot claim the attribute of certainty." 
 —Burgess, 3 P. Q. S., 643. 
 
2Z^ The Electoral System 
 
 the two Houses, acting separately, shall concurrently de- 
 cide is supported by the decision of such State so author- 
 ized by its laws." In this class of cases the two Houses 
 acting separately are given the power concurrently to 
 decide upon the title of electors, as well as upon the 
 regularity of their votes. And if they should fail to 
 agree that a set of electors represents the State, there is 
 no provision as to what shall happen, but presumably 
 the vote of the State is to be sacrificed. Or, in the case 
 under examination, after having agreed upon the title of 
 the electors, the Houses may disagree as to whether the 
 votes have been regularly given, in which event the State 
 loses its vote. In questioning the title of electors, how 
 far is the inquiry to go? The act does not fix limitations. 
 Thus in this class of cases the State has two chances of 
 disfranchisement. Here Congress arrogates a power of 
 review of the decision of the State tribunal, and if the 
 two Houses do not concur (which they would not, if of 
 opposite political complexion) the vote of the State is 
 lost. In this particular case, as Sherman pointed out in 
 the Senate, Congress is given "the power to exclude the 
 vote of New York or any other State in the Union, not 
 by the will of the two Houses, but by the veto of either 
 House" ; and, as he forcibly added, "If the Senate should 
 reject the vote of a State and thus secure a party advan- 
 tage, the House could reject the vote of another State to 
 secure a like advantage." 
 
 In the third case, where there has been more than one 
 return, but no decision by a State tribunal upon the ap- 
 pointment of electors, the State may be disfranchised 
 through the failure of the two Houses to agree. The 
 language is: 
 
 ** Those votes and those only shall be counted which the two 
 Houses shall concurrently decide were cast by lawful electors, 
 appointed in accordance with the laws of the State, unless the 
 
The Act of February 3, 1887 239 
 
 two Houses, acting separately, shall concurrently decide such 
 votes not to be the lawful votes of the legally appointed elec- 
 tors of the State. But if the two Houses shall disagree in re- 
 spect of the counting of such votes, then, and in that case, the 
 votes of the electors whose appointment shall have been certi- 
 fied by the executive of the State, under the seal thereof, shall 
 be counted." 
 
 The two Houses may in this class of cases inquire whether 
 the electors have been legally appointed and also whether 
 their votes are lawful votes. If the two Houses disagree 
 upon either proposition, the votes (the word "lawful " is 
 omitted before "votes ") of the electors who are fortified 
 in their appointment by the certificate of the State ex- 
 ecutive are to be counted. In this one case of a double 
 return, a difference of opinion between the two Houses 
 will not lead to the rejection of the State's vote, if there 
 is a certificate of the State executive as to the appoint- 
 ment of the electors. In the fourth case, the same broad 
 powers are conferred upon the two Houses. Where 
 there is more than one return from a State, in which 
 there has been no determination of the question who are 
 its electors, and neither of the rival sets of electors is 
 furnished with the certificate of the executive, the two 
 Houses may determine who are the lawful electors of the 
 State, and the votes of such electors shall be counted, 
 unless the two Houses by concurrent resolution decide 
 that such electors have not given their votes regularly or 
 lawfully. But if another Oregon case should arise, the 
 vote would be certain to be sacrificed, unless the two 
 Houses were in political affinity, — as they were not in 
 
 1877. 
 
 The scope of this particular clause is uncertain. Re- 
 curring again to the Oregon case, and assuming that one 
 set of electors presented the certificate of the governor, 
 as did Cronin, Miller, and Parker, in 1877, while their 
 
240 The Electoral System 
 
 antagonists were armed with the certificate of the secre- 
 tary of State, would this case present the question" Which 
 of two or more such State authorities determining what 
 electors have been appointed, as mentioned in Section 
 2 of this act, is the lawful tribunal of such State"? If 
 so, those votes only would be counted which the two 
 Houses acting separately should concurrently decide to 
 be supported by the decision of such State so authorized 
 by its laws; and upon that construction, had the law been 
 in operation in 1877, Watts' vote, if not the votes of 
 Odell and Cartwright also, would not have been counted, 
 as the two Houses failed to agree. On the other hand, 
 if the supposititious Oregon case is to be treated as a case 
 "where there was no determination of the question in the 
 State," unless the two Houses agreed, — which they did 
 not in 1877, — "the votes of the electors whose appoint- 
 ment shall have been certified by the executive of the 
 State, under the seal thereof, shall be counted," unless 
 not regularly or lawfully given ; in other words, the votes 
 of Cronin, Miller, and Parker, who were armed with Gov- 
 ernor Grover's certificate, would have to be counted. In 
 the first case two out of three Republican votes would 
 have been counted, or no vote at all would have been 
 counted ; in the second, the vote of all the Democratic 
 electors would have been counted. Thus, a political 
 majority in control of both Houses may reject the vote 
 of a State when there has been no decision by a tribunal 
 of the State upon conflicting returns, and likewise, "in 
 case there shall arise the question which of two or more 
 State authorities determining what electors have been 
 appointed ... is the lawful tribunal," a majority 
 in both Houses may throw out the vote of the State; 
 and in the case of a single return also Congress reserves 
 like control. 
 
 Fortunately, or perhaps unfortunately, no occasion has 
 arisen to test the Act of 1887, but it suggests problems 
 
The Act of February 3, 1887 241 
 
 which must some day be perplexing and gravely embar- 
 rassing.' The provisions giving Congress any review of 
 the determination of a State tribunal are, I think, un- 
 constitutional, and all assumption of the counting power 
 by Congress is in defiance of the spirit, if not the letter, 
 of the organic law. 
 
 Such legislation is but clumsy patcljiwork at best.* 
 What it does is to reveal the defects and lay bare the de- 
 formities of the whole electoral system. We may regard, 
 even reverence, the work of the framers of the Constitu- 
 tion without extolling it as perfect. After a century's 
 experience candor compels the admission that what the 
 Federalist praised as "excellent, if not perfect," is a 
 failure. Electors are not, and for a. century have not 
 been, the independent choosers of a President they were 
 expected to be, but have become^ the slaves of party ; 
 more strictly puppets than the electors who formerly 
 chose the Emperor of Germany ; the machinery for count- 
 ing the electoral votes is so defective that it has on several 
 occasions prevented a true count, and has twice threat- 
 
 ' " Suppose that only one return has been made from a State, and there 
 has been no final determination of the controversy or contest in the State, 
 and upon opening the certificates the objection is made that the appoint- 
 ment of the electors has not been lawfully certified or that their votes have 
 not been regularly given, or that some of them hold ofBces of trust or profit 
 under the United States, or that they were appointed on the wrong day ; 
 or suppose that all the proceedings were regular on their face, that all the 
 electors were duly chosen and qualified, and found to be so by the State 
 tribunal, but objection is made that the person voted for as President was 
 not a natural-born citizen of the United States, or was not thirty-five years 
 old, or had not been a resident of the United States for fourteen years, — it 
 is not going too far to say that, if the result of the election should depend 
 upon the decision of any one of these questions, by a partisan Congress, 
 there would be at least very great danger of civil commotion and strife." — 
 " Dangerous Defects in the Electoral System," J. G. Carlisle, 24 Forum^ 
 265. 
 
 ' Professor Burgess, who defends and commends it, except for what he 
 
 deems its undue surrender of power to the States, admits its clumsiness and 
 
 points out some defects. 
 16 
 
242 The Electoral System 
 
 ened the perpetuation of the Government; the interval 
 that elapses between the popular vote and the meeting 
 of the electoral colleges (by the Act of 1887 extended 
 from one month to two) gives opportunity for all sorts of 
 political intrigues and tempts us into the very dangers 
 against which the inventors of the electoral system aimed 
 to protect us; and the statute which is the outcome of 
 one hundred years of electoral experience is not only 
 usurpation by Congress, but is cumbrous and perplexing 
 in the extreme. And when traps and pitfalls beneath 
 the question of the ineligibility of electors are considered, 
 the inquiry is pertinent. Why should such obsolete and 
 defective machinery be kept in existence to imperil the 
 future safety of the nation? 
 
 Sections 5 and 6 are as follows: 
 
 *' Sec. 5. That while the two Houses shall be in meeting as 
 provided in this act the president of the Senate shall have 
 power to preserve order; and no debate shall be allowed and 
 no question shall be put by the presiding officer except to 
 either House on a motion to withdraw. 
 
 ** Sec. 6. That when the two Houses separate to decide 
 upon an objection that may have been made to the counting 
 of any electoral vote or votes from any State, or other question 
 arising in the matter, each Senator and Representative may 
 speak to such objection or question five minutes, and not more 
 than once; but after such debate shall have lasted two hours 
 it shall be the duty of the presiding officer of each House to 
 put the main question without further debate." 
 
 The purpose of Sections 5 and 6 is to facilitate the 
 disposition of all contests, so that the result shall surely 
 be declared in time to enable the new chief magistrate to 
 be installed on the succeeding March 4th, but it is easy 
 to imagine a controversy of such gravity and extent that 
 it could not be justly or equitably settled between the 
 second Wednesday of February and the 4th of March. 
 
The Act of February 3, 1887 243 
 
 The Electoral Commission law of 1877 recognized this 
 possibility, and therefore required the joint session for the 
 counting of the electoral vote to commence on January 
 31st of that year. The leaders of that epoch were pa- 
 triots, and both parties combined to press for a speedy 
 decision, yet the commission remained in almost con- 
 tinuous session up to March 2d, and the commission was 
 a small body of expert lawyers and judges, with resulting 
 advantage for the expedition of business. Patriots may 
 not always guide party deliberations, and the spirit of 
 filibustering could readily bring about a perilous crisis in 
 the State if it should have no executive head. While 
 under the joint rule debate was not permissible, discus- 
 sion or remarks in the separate chambers often consumed 
 hours. On the other hand, the lack of power to debate 
 has, again and again, been deplored and has several times 
 led to the unjust disfranchisement of a whole State. 
 
 There is no attempt in the statute to determine the 
 effect of the election of an ineligible elector.' Our exam- 
 ination of the proceedings before the Electoral Commis- 
 sion showed a divergence of views as to the effect of a 
 vote by the people for an elector prohibited by the Con- 
 stitution from appointment. One claim was that the vote 
 for an elector who at the time of his election held an office 
 of trust or profit under the Constitution of the United 
 States was null and void. It was argued by the Demo- 
 
 ^ ' ' The law purports to be mandatory only so far as it relates to the pro- 
 ceedings connected with the certification of the electoral appointments, and 
 to the counting of the electoral vote. Indeed, even as to these matters it 
 leaves a wide scope for disagreements, with their attending asperities and 
 dangers. 
 
 " But it is by no means certain that the statute will be effective as to any 
 of the matters to which it relates ; for it seems tolerably clear to the com- 
 mon understanding that, when the two Houses of Congress meet to open 
 the certificates and count the electoral vote, they possess all the powers 
 conferred upon them by the Constitution itself, whatever they are, and no 
 others, and that these powers can neither be enlarged nor diminished by a 
 law enacted by the two Houses themselves." — J. G. Carlisle, 24 Forum^ 265. 
 
244 The Electoral System 
 
 cratic counsel and the Democratic members of the com- 
 mission that the Constitution said to the people of the 
 State, "You shall not vote for this man." The result, 
 according to the Democratic counsel, was that the candi- 
 date having the next highest number of votes was elected, 
 but that extreme view was wisely repudiated by the 
 Democratic members of the commission. According to 
 them the effect of a vote for an ineligible elector was 
 that the State lost that vote in its electoral college. 
 Morton, and perhaps Justice Miller, entertained the opin- 
 ion that a vote for an ineligible elector made him a de 
 facto if not also a de jure elector, unless the State pro- 
 vided some tribunal for passing upon his ineligibility. 
 Justice Miller in the Florida case argued that the inquiry 
 as to Humphreys' eligibility came too late "because Mr. 
 Humphreys, acting under the credentials which the law 
 prescribes as his authority, has already cast his vote for 
 President and Vice-President. That vote, being a fact 
 accomplished, cannot be annulled by any subsequent 
 proceeding to question his eligibilty." Various Repub- 
 lican members of the commission regarded the prohibi- 
 tions of the Constitution as not self-executing. There 
 was no State law and there was no State tribunal to en- 
 force them. Whether Federal law could create a tribunal 
 to pass upon the question was considered doubtful. And 
 all the Republican members of the commission were of 
 the opinion that an ineligible elector could resign, and 
 that if the State statute provided for the filling of va- 
 cancies in the electoral college, his associate electors 
 could fill the vacancy. These notions were vigorously 
 combatted by the Democratic commissioners, who agreed 
 in treating the constitutional prohibition as self-execut- 
 ing. And they scouted the idea that if there were no 
 State machinery to declare the vote for an ineligible 
 elector void it would have to be recognized as valid, pro- 
 nouncing this doctrine equivalent to conferring upon the 
 
The Act of February 3, 1887 245 
 
 State the alternative of obeying or disobeying the organic 
 law of the nation, at her own will. It is the author's 
 opinion that Justice Field and Senators Bayard and 
 Thurman had the better side of the argument. Had 
 Napoleon Bonaparte or George III. or Talleyrand been 
 elected an elector by any State, the fathers would not 
 have long hesitated to declare the vote invalid and the 
 place never filled, and they would have shown scant 
 courtesy to de facto or de jure claims. If the prohibition 
 upon the appointment of electors is not self-executing, 
 the best of reasons is given for a general law upon the 
 subject. By analogy, if the electors should elect as 
 President a person whom the Constitution declares to be 
 ineligible, would he nevertheless be entitled to the office, 
 in the absence of legislation carrying the Constitution 
 into effect? There is an imperative need of some pro- 
 vision of law to eliminate all uncertainty. The joint com- 
 mittee raised by the two Houses in 1837, in which such 
 distinguished statesmen as Henry Clay, Silas Wright, and 
 Felix Grundy represented the Senate, declared in its re- 
 port that if the question of the eligibility of an elector 
 should arise, the important question demanding imme- 
 diate answer would be, what tribunal, under the Consti- 
 tution, would be competent to decide. It was in their 
 opinion the duty of Congress by some general legislation 
 to settle whether the right to. pass upon electors' qualifi- 
 cations belongs to the State or to the general Govern- 
 ment. Intermediate events have added emphasis to the 
 committee's suggestions, but the law of 1887 is abso- 
 lutely silent upon the point. Another question needing 
 legislative solution is, in what manner and under what 
 circumstances the certificate of a governor in support of 
 an electoral list may be attacked. The electoral tribunal 
 of 1877 decided such a certificate to be impeachable, and 
 the commission actually went behind and ignored it in the 
 Oregon case. Merrick admitted in argument before 
 
246 The Electoral System 
 
 the commission that the certificate was not conclusive, 
 but insisted that it could be set aside only by some com- 
 petent tribunal established by law. The Act of 1887, 
 which seems to invest a governor's certificate with new 
 dignity, offers no suggestion as to how it may be im- 
 peached. If the two Houses in joint session are to pass 
 upon the eligibility of an elector or the validity of a gov- 
 ernor's certificate, or are to ascertain what is the actual 
 determination of a State canvassing authority upon the 
 popular vote for electors, it would seem impossible that 
 justice could be done, in the short time at command, 
 since debate is not permitted either in the joint conven- 
 tion or the separate sessions of the Houses. 
 
 The doubtful constitutionality of the Electoral Com- 
 mission law has been generally recognized, but the enact- 
 ment of 1887 goes far beyond that temporary expedient. 
 That law upon its face acknowledged that Congress 
 might not have any constitutional authority to count the 
 electoral vote. The present law admits no such doubt, 
 yet the Constitution has not been altered. The legality 
 of the enactment was questioned by some of the ablest 
 constitutional lawyers in the Senate and the House. 
 Those members were right who protested against any 
 such legislation, who declared the only sound remedy lay 
 in an amendment to the Constitution. The act is a quag- 
 mire, but the common sense and patriotism of the nation 
 should see to it that there shall never be a chance to 
 flounder in the bog. An amendment would forestall all 
 danger. 
 
 Nor does the Act of 1887 offer any solution of the 
 vexatious question that provoked the turbulent discussion 
 over the electoral count of 1857, — as to whether, if the 
 electors of the State were through act of God prevented 
 from voting on the prescribed day, their vote should be 
 received or rejected. Judah P. Benjamin, whose rank 
 and abilities as a constitutional lawyer will be readily 
 
The Act of February 3, 1887 247 
 
 acknowledged, declared in the Senate that there ought 
 to be a law directing that whenever the vote of a State 
 presented for count should appear to have been given on 
 a day different from that provided by law, it should be 
 the duty of the president of the Senate not to count that 
 vote. Other Senators urged that the provision of the 
 Constitution was directory and not mandatory, that an 
 act of Congress and not the Constitution fixed the day, 
 that form should yield to substance, and that the Consti- 
 tution never intended that an inevitable accident should 
 result in the disfranchisement of a whole commonwealth. 
 Garland, in 1882, admitted that whether the Constitution 
 was mandatory or not "was a most perplexing question." 
 Had the electoral vote of some State in the plight of 
 Wisconsin in 1857 been essential in 1877 to the success 
 of either party, the dusty records of Congress would have 
 been thoroughly studied for argument to show how un- 
 just such disfranchisement would be, and opinions in 
 support of that view could have been readily found. 
 
 It is questionable whether Section 4 of the Act of 
 1887 is any improvement upon the corresponding pro- 
 vision of the Morton bill of 1873, and it has been shown 
 how consistently that measure was criticised. The pres- 
 ent act, in its provision that that set of returns shall 
 be counted which the two Houses agree concurrently to 
 count, is no better than the provision of the Morton bill. 
 There is as pronounced a negative upon the vote of the 
 State in certain cases under the Act of 1887, as there was 
 under the infamous twentj^-second joint rule. The vote 
 of the State may quite as effectively be sacrificed by a 
 failure of the two Houses to concur as by its rejection 
 by one House. The test of the act will come when the 
 two Houses are in antagonism. If they should disagree, 
 there would be no ultimate arbiter. The Act of 1877 
 compelled their agreement, but the law of 1887 allows 
 them to drift far apart. The 4th of March may come 
 
248 The Electoral System 
 
 and the title to the presidency and the vice-presidency 
 remain in doubt because of a deadlock between the two 
 Houses. 
 
 Were the statesmen of 1887 wiser than their compeers 
 of 1876? Was it any more possible in the later year than 
 in the earlier to confide the fate of a State's electoral 
 vote to the two Houses in joint meeting? The laws of 
 mathematics had not changed in the interval, and these 
 clearly demonstrate that if the two Houses should not be 
 in accord, but their concurrence be essential to the count 
 of a vote of a State, that vote would be discredited and 
 fail of acceptance. Nothing but the experience of Con- 
 gress with the electoral vote of Louisiana in 1873 and 
 the powerful leadership of Morton impelled the Senate, 
 in 1876, by a meagre majority, to accept a bill which was 
 conceded to be imperfect, and even this temporary ap- 
 proval was promptly withdrawn by a vote for reconsider- 
 ation. Nothing but the experience of 1877 compelled 
 Congress, against the judgment of its ablest members, to 
 enact the law of 1887. The intervening discussion but 
 emphasizes the conviction that the problem is insoluble, 
 and that any legislation clothing the two Houses jointly 
 with the power to count is of doubtful constitutionality 
 and of more than doubtful expediency. Hoar himself 
 admitted the deficiencies of the act : 
 
 " A perfect bill, as I believe, would provide for a common 
 arbiter between these two bodies to which the Constitution 
 has left the law-making power, and that has been the attempt 
 of the statesmanship that has dealt with this subject from the 
 begmning of the century to the present day; but every such 
 attempt has failed. There never has assembled at the seat of 
 government, since the government went into operation, a 
 Congress whose two Houses would agree as to the person who 
 should be the suitable common arbiter between these two 
 bodies. John Marshall tried it and failed in 1800; Daniel 
 Webster tried it and failed in 1824; the men of 1876 tried it 
 
The Act of February 3, 1887 249 
 
 and failed, except for the single occasion with which the Elec- 
 toral Commission bill dealt." 
 
 No more powerful plea against trusting to a measure 
 vulnerable in its vital parts was made by the bill's op- 
 ponents. What Dawes said in 1876, when he reluctantly- 
 lent his support to the Morton bill, reveals the temper of 
 many who voted for the Act of 1887: 
 
 ** The Senator has pressed upon me the question, What shall 
 we do ? I say, meet it fairly and squarely; bring forward 
 some measure for an amendment of the Constitution upon a 
 subject which the framers of the Constitution did not think 
 there was any necessity for amending, but which subsequent 
 experience has shown is vital and essential. But while such 
 an amendment is pending, and until it becomes a part of the 
 organic law, I shall vote for this bill.** 
 
 Had a tithe of the intellectual force spent in efforts to 
 frame legislation in defiance of the laws of mathematics 
 been devoted to the preparation of an amendment to the 
 Constitution, that beneficent end would long ago have 
 been attained.* 
 
 ^ The debates in 1800 and in 1874, 1875, and 1876 require to be studied 
 in connection with the electoral count law of February 3, 1887. " It is a 
 very dangerous practice," said Pinckney in the Senate of 1800, " to en- 
 deavor to amend the Constitution by making laws for the purpose." This 
 pithy criticism may well be applied to the Act of 1887. 
 
CHAPTER X 
 
 THE ELECTORAL SYSTEM SHOULD BE ABOLISHED— DE- 
 FECTS IN THE PROVISIONS OF THE CONSTITUTION 
 REGARDING THE PRESIDENTIAL SUCCESSION 
 
 At^HIS brief review of the history of the electoral system 
 1 would fail of its purpose if it should not reveal how 
 far the system as at present operated diverges from the 
 theory of the convention of 1787. The electors were 
 originally designed to be the agents of a State, armed 
 with plenary authority to cast its vote for President and 
 Vice-President in such manner as the agents themselves 
 or a majority of them might will, all danger of abuse of 
 the trust being intended to be averted by the selection 
 of worthy and fitting instruments for the execution of 
 this high office.' The chief magistrate of the nation, 
 according to the unsophisticated notions of our fathers, 
 was to be the nominee of these electors. In the evolu- 
 tion of history, without a syllable of alteration in the 
 text of the organic law, the nature of the agency of the 
 electors has been revolutionized ; it has become a special- 
 ized agency never imagined by the framers of the Consti- 
 tution.^ Electors are now the mere instruments of party, 
 "party puppets," as Justice Bradley termed them, to per- 
 form a function which an automaton without intelligence 
 or volition might as fittingly discharge. Ingalls hardly 
 
 'As far back as 1823, Benton characterized the elector as "nothing but 
 an agent, tied down to the execution of a precise trust. Every reason 
 which induced the convention to constitute electors has failed. They are 
 no longer of any use, and may be dangerous to the liberties of the people." 
 
 250 
 
Defects 251 
 
 detracted from the dignity of their supposed office when 
 he likened them to ''the marionettes in a Punch and 
 Judy show." The source from which the theory of the 
 electoral system drew its inspiration is obscure ; it is not 
 based upon any analogies in antecedent State experience, 
 unless, perhaps, that of Maryland, which elected electors 
 to choose the members of the State Senate. History 
 has instructive but warning examples in the electors of 
 the old German Empire, and of Poland, and to its elective 
 principle historians have ascribed the downfall of that 
 unhappy state. "The idea of intermediate electoral 
 bodies," said Morton, in 1873, was, when the Consti- 
 tution was formed, " working in the minds of the 
 doctrinaires and revolutionists of France, and received 
 its full development in the celebrated project of Abb^ 
 Siey^s, which was adopted and had short life." An 
 electoral body, as Mr. Bryce well says in his Holy Romaji 
 Empire, is "a contrivance which has always had and will 
 probably always continue to have seductions for a certain 
 class of political theorists," but the distinguished men 
 who sat in the convention at Philadelphia in 1787 were 
 neither visionaries nor doctri?iaires, but practical states- 
 men with clearly defined ideas regarding the necessity of 
 a sharp division of legislative, executive, and judicial 
 functions and the wisdom of adhering closely to the po- 
 litical experience of the States. Professor Alexander 
 Johnston has conclusively shown ' that the growth of 
 the Constitution was institutional; that, with the single 
 exception of the electoral features, all its provisions, if 
 not precisely transcripts of the older State constitutions, 
 are derivatives from them, and he said further: 
 
 " Not creative genius, but wise and discreet selection, was 
 the proper work of the convention; and its success was due to 
 its clear perception of the antecedent failures and successes, 
 
 ^ New Princeton Review, September, 1887. 
 
252 The Electoral System 
 
 and to th^ self-restraint of its members. . . . Was there 
 then no effort of creative genius on the part of the convention, 
 not immediately suggested by State experience, and not im- 
 peratively called for by the circumstances of its work? The 
 electoral system is almost the only feature of the Constitution 
 which was purely artificial, not a natural growth; it was the 
 one which met least criticism from the contemporary opponents 
 of the Constitution, and most unreserved praise from the 
 y Federalist; and Democracy has ridden right over it." 
 
 Whatever the origin of the electoral plan, its failure in 
 I purpose is clear. The idea of th e electo r as_ an over-lo rd 
 1 is not consonant with3emocratic institutions, and our 
 institutions while not democratic at the outset have be- 
 come increasingly so. Nominally free in Washington's 
 day, the electors never dreamed of resisting the sentiment 
 that universally acclaimed the father of his country the 
 first President of the new Union. In Adams' time there 
 were one or two electors who asserted their constitutional 
 prerogatives, but the majority obeyed the desires of party 
 leadersJand since that period the search is vain for the 
 theoretical elector of the Constitution. Party spirit has 
 deposed him and made him its tool. That elector would 
 render himself infamous who, accepting the office upon 
 the only possible conditions upon which it would be con- 
 ferred, — which tacitly bind him to obey his party's be- 
 hests, — should employ it to defeat the will of those who 
 placed him in it. An accomplished jurist and author, 
 and a student under Joseph Story,* writing in the North 
 American Review for January, 1877, made the follow- 
 ing striking reflections upon the remarkably scrupulous 
 fidelity to a merely tacit obligation always evinced by 
 the e lectoral colleges : 
 
 " For seventy-six years, that is, for nineteen presidential 
 elections, no member of an electoral college has failed to vote 
 
 1 Richard H. Dana, Jr. 
 
Defects 253 
 
 for the candidate designated by his party, or been subjected to 
 the imputation of being open to any influences in that direc- 
 tionn Yet the party takes from the elector no written pledge, 
 and indeed exacts no oral pledge. /F rom the fact that he is 
 nominated by his partyas_a„-p*€sidential elector, the party 
 having first designate d whom iU yishes to have made President, 
 he comes under the implied obligation to vote for that candi- 
 date, and to-di^gard the obligation the Constitution intends 
 to put upon him ot selectin g a nd voting for a President ac- 
 cordmj^to his'own luQgmentTl^ The number of electors who 
 duTTfig thiTperiod have so l^t faith with their parties must 
 have been between three and four thousand." 
 
 Nevertheless there is the ever present po ssibility of a 
 breach of tru st. Treason may seem a remote contin- 
 'gericyTyet in a time of great temptation there might 
 come an electoral Benedict Arnold.' It is in the face of 
 all logic and experience to infer that, because no traitor 
 has yet been discovered, a temptation of such peculiar 
 subtlety will forever remain without a victim. The pos- 
 sible methods of disloyalty are so occult that it cannot 
 always be known whether an elector has kept faith. In 
 States where several electors representing different parties 
 have been appointed, an elector or a number of electors 
 might resign, and thus give to the remaining members of 
 the college the opportunity to fill the vacancies with their 
 political friends; or a fraud might be perpetrated that 
 would seem a mistake, by a failure to make a proper cer- 
 tificate or to obtain the prescribed authentication; or the 
 transmission of the return required by the Constitution 
 might in some manner be thwarted. 
 [ The elector in the constitutional sense is an abortive 
 
 * " And the elector is not only permitted but directed to vote by ballot. 
 This is an anti-democratic provision which may cause a blunder, and could 
 be easily used to cover a crime. An agent of the people should never be 
 permitted to act secretly in transacting their business, except in cases where 
 the public safety may require." — William Purcell, 140 JV. A. R., 112. 
 
 ,/ 
 
2 54 The Electoral System | 
 
 organism. He has no function to fulfil. But he is not 
 merely functionless, he is dangerous, j It is as true in the 
 moral as it is in the material reairrT that any mechanism 
 or organ that has ceased to perform its function is sure 
 to work mischief, if not positive detriment. The famous 
 phrase of the Constitution "the votes shall then be 
 counted" has been like an apple of discord almost since 
 the beginning of the Government. The authors of the 
 Constitution probably intended the president of the 
 Senate to do the counting, for in their eyes it was to be 
 a simple computation or enumeration. As the fathers 
 erred in failing to gauge the strength of the nascent 
 democratic impulse, or in supposing that democracy 
 would consent to renounce its prerogative of choosing a 
 President, so they were equally mistaken in their as- 
 sumption that counting would always remain a purely 
 arithmetical process. It derogates little from their just 
 claims to reverence to declare this portion of the noble 
 edifice of the Constitution incongruous with the rest of 
 the structure. 
 
 The practical inquiry so often made by our wisest states- 
 men is constantly reiterated — Why continue a system 
 that has missed its functions; why retain in our constitu- 
 tional machinery a piece of mechanism shown to be both 
 dangerous and useless? After a century of discussion, 
 after a crisis that had repeatedly been prophesied and that 
 threatened the Government when it came. Congress 
 finally passed the Act of 1887. That enactment was 
 earnestly and honestly opposed as violative of the Con- 
 stitution, because it vests Congress with a power never 
 intended to be conferred upon it. The act was also 
 criticised as giving Congress sovereign authority to dis- 
 franchise a State. It is an awkward piece of machinery 
 which has never yet been put to genuine test. Similar 
 criticisms were made upon the Morton bill, and both 
 Morton and the sponsors of the Act of 1887 were forced 
 
Defects 
 
 to admit that their devices for counting the electoral vote 
 created no final arbiter for an occasion when the two 
 Houses should fail to agree. The fathers of the Consti- 
 tution were convinced of the importance of separating 
 the executive from the legislative power. They would 
 never have placed the executive under the subjugation 
 of Congress, for nothing is more clearly shown by the de- 
 bates of the convention than its unconquerable reluctance 
 to give the choice of the executive to the national legis- 
 lature. One central truth illuminates the wearisome, 
 almost interminable discussions before the Electoral 
 Commission of 1877, that the great effort of the framers 
 of the Constitution was "to make the executive inde- 
 pendent of the legislative and to place the election of 
 the President beyond the reach or control of Congress." 
 The act of 1887 is diametrically opposed to this theory, 
 in giving Congress a veto upon the action of the States 
 not only in the case of double returns but even, at times, 
 in the case of a single return. The law of 1887 exalts 
 Congress over the executive department, and gives it the 
 power, by throwing out the votes of a State, to elect a 
 President at its will. Nor did the creators of a bicameral 
 Congress mean to introduce any such uncertainty into 
 counting the electoral vote as would result from clothing 
 one House with a veto upon the other. Counting, in its 
 nature, is an affirmative process, and a count that is to 
 be made by two independent Houses of Congress, where 
 one may nullify the action of the other, is both illogical 
 and illusory. We cannot dismiss such criticisms as chi- 
 merical because the nation was fortunate in meeting the 
 difficulty of 1877. History furnishes no warrant for such 
 optimism. The constitutionality of the present act might 
 be directly assailed in a future contest, and there has 
 hitherto been no decision upon it by the Federal courts. 
 The details of the act are as vulnerable as the principle 
 upon which it is based. Nor does the law provide a 
 
256 The Electoral System 
 
 tribunal to pass upon the qualifications of electors claimed 
 to be ineligible. This is not a matter for determination 
 by a particular State. The Federal Constitution creates 
 the prohibition and Federal authority should enforce it, 
 where the State is recreant. The appointment by a State 
 of electors whom the Federal Constitution inhibits her 
 from appointing is not the concern of that State alone. 
 That the general Government had at least concurrent 
 jurisdiction over the subject was suggested by Clay, 
 Wright, and Grundy, in 1837. Other States are vitally 
 interested in a State's obedience to the nation's funda- 
 mental law. The State has absolute and exclusive con- 
 trol over the selection and appointment of these agents 
 of hers, subject to the one essential condition that in 
 their appointment she has not disobeyed the Constitution 
 of the United States, which, in the plainest and most un- 
 qualified terms, says to each commonwealth: "You may 
 appoint your electors in whatsoever manner your respec- 
 tive Legislatures may direct, and when you notify the 
 Government of their appointment, its only duty is to see 
 that they present the proper credentials prescribed by 
 your laws and by act of Congress ; but there are certain 
 classes of Federal officials that you shall not appoint, or 
 your appointment will be a nullity." As the provision 
 of the nation's organic law is explicit, the United States 
 Government has no more right to renounce jurisdiction 
 over matters within ultimate Federal control than it has 
 to invade the jurisdiction of the State and inquire into 
 the method and the fact of the appointment of lawful 
 electors. Hence some tribunal should be provided by 
 Congress to decide whether the State has obeyed the 
 mandate of the Constitution, or the constitutional prohi- 
 bition should be rescinded. Obviously the Federal power 
 could not act until the matter comes within its jurisdic- 
 tion, — until the last scene in the State drama is closed, 
 and the lists, transmitted to the president of the Senate, 
 
Defects 257 
 
 are opened in the joint meeting of the two Houses. The 
 power of the United States to determine whether the 
 State has disobeyed the paramount law has been doubted 
 by distinguished judges and advocates, and affirmed by 
 jurists of equal reputation ; but unless the central author- 
 ity is to abdicate a right, plainly its own, to ascertain 
 whether its own fiat has been disobeyed, some tribunal 
 should be created by Congress. But all doubt, all diffi- 
 culty, all need for any tribunal whatsoever, would vanish 
 with the abolition of the electoral system. 
 
 Stanley Matthews, when before the Electoral Commis- 
 sion, recalled the quaint saying of Selden (in an essay on 
 papal councils and their enlightenment by the spirit that 
 dwelt in the Holy Ghost) — that he had generally found 
 that the spirit dwelt in the odd man. The Electoral 
 Commission was eulogized by the speaker as a tribunal 
 that "could not be equally divided." But Congress, in 
 the present electoral count law, has cast experience to 
 the winds and has seemed to imagine that a court of twQ 
 persons (two Houses), a theory never before devised,' 
 should be created to discharge the exalted duty of count- 
 ing the vote for the most august executive officer in the 
 nation, if not in the world. The veto which one House 
 would have upon the other would put the Government 
 to death and usher in the reign of chaos, if party passion 
 should ever have sufficiently violent sway. It is futile 
 to dream that some arbiter may be found, and the law 
 amended to realize the ideals of its framers. Every sug- 
 gestion imaginable was made in the debate of 1876, but 
 none proved acceptable. Of all schemes, the most per- 
 nicious would be to clothe the Supreme Court or any of 
 
 ^ I say '* never before devised," because the Electoral Commission law, 
 while it nominally conferred the power in a special instance upon the two 
 Houses, so prearranged the decision as to prevent a difference between the 
 two Houses upon the report of the commission from having any effect 
 whatever. 
 
258 The Electoral System 
 
 its justices with the functions of an ultimate counting 
 authority ; but the danger of the adoption of such a plan 
 has lessened since the experience of the country in 1877, 
 when it was found that the pure ermine of the bench was 
 no shield against partisanship. 
 
 In these circumstances, the dictate of practical wisdom 
 is to abolish the letter of the system altogether — which 
 might easily be done by a single amendment to the Con- 
 stitution. If the people of the United States entertain 
 to-day the repugnance to a vote for President and Vice- 
 President by the people as a whole that was felt by the 
 representatives of the small States in the convention of 
 1787, the theory of electoral representation might be 
 preserved, and yet the perilous electoral machinery abol- 
 ished. Each State might still have the electoral votes to 
 which its representation in the United States Senate and 
 in the House entitles it under the present Constitution. 
 The useless and antiquated mechanism should, however, 
 be discarded and the State, by an amendment to the 
 national Constitution, be declared entitled upon the au- 
 thoritative canvass of the popular vote to its proportional 
 vote for President and Vice-President in a fictitious elec- 
 toral college. The office of elector having disappeared, 
 there would be no occasion for electors to convene in a 
 State capital for the purpose of casting the vote of the 
 State, and the State would be saved the attendant ex- 
 pense, and the possible loss of its vote if, for example, as 
 happened in Wisconsin in 1857, the electors should be 
 prevented by an accident from convening on the day fixed 
 by act of Congress. All contention over the ineligibility 
 of electors would cease, and such an imbroglio as arose 
 over the appointment of electors in Oregon in 1877 
 would never vex the nation again. We should not, it is 
 true, be able by this change to prevent the recurrence of 
 such a disgraceful proceeding as a fraudulent and iniqui- 
 tous determination of a State canvassing board, subversive 
 
Defects 259 
 
 of the actual popular vote, but we should get rid of many 
 perils and perplexities of the present system. Or, if the 
 people desired to return to the district system so largely 
 in favor at an earlier epoch of our history, that could be 
 as readily accomplished. The district system of voting 
 was the essential change embodied in the amendments to 
 the Constitution unsuccessfully proposed at different 
 times by Benton, Van Buren, McDufifie, Morton, and 
 Sumner.^ 
 
 The Constitution provides that "the Congress may de- 
 termine 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." The difficulty 
 which befell the Wisconsin electors in 1857 has been more 
 than once mentioned in these pages. Fortunately the 
 vote of Wisconsin was not decisive of the result, as 
 Buchanan's election was assured whether the vote of that 
 State was counted or rejected. The fathers wisely de-^ 
 termined that the electoral colleges should meet on the 
 same day, in order to forestall intrigues and machina- 
 tions. But the vote of a State might be prevented by 
 **act of God " on the appointed day and that vote might 
 be essential to elect a candidate. While the Act of 1845 
 allows the States to authorize their electors to fill vacan- 
 cies in the respective electoral colleges, it is not altogether 
 
 ' Mr. George Ticknor Curtis some years ago advocated an amendment 
 to the Constitution of the United States which he proposed to call the six- 
 teenth article, which should provide for the assembling, at the seat of gov- 
 ernment, of an integral body of electors representing all the electoral 
 colleges, and constituting an electoral chamber, the body itself to be the 
 judge of the elections, qualifications, and returns of its own members. 
 The members of this electoral chamber were then to vote for President and 
 Vice-President per capita. Obviously, this plan would obliterate all State 
 lines in the election of the chief executive. Mr. Curtis was convinced that 
 "if any safe and prudent method can be devised which, while accomplish- 
 ing other benefits, will take the whole process of counting the electoral 
 votes out of the hands of the two Houses of Congress, it will be a consum- 
 mation most devoutly to be wished." — 29 Century Magazine, 124. 
 
26o The Electoral System 
 
 ■unreasonable to imagine that all the electors of a State 
 might perish in a common disaster, in which event there 
 would be no survivor or survivors to elect members to 
 the vacant seats in the board. By the irony of fate, the 
 electoral system has itself resulted in giving endless op- 
 portunities to the cabals, conspiracies, and intrigues 
 against which the convention of 1787 fondly supposed it 
 had impregnably environed the choice of President and 
 Vice-President. The earlier history of the country con- 
 tains instances of coalitions and bargains tending to cor- 
 rupt and debauch electors, and while Clay has been 
 vindicated of the charge that he brought to Adams' 
 support in 1825 sufficient electoral reinforcement to elect 
 Adams and defeat Jackson, in consideration of a bargain 
 that he should have the portfolio of State, the stigma of 
 that unjust accusation attached to him for years. The 
 very fact that two months elapse between the popular 
 election and the meeting of the colleges in January, gives 
 a chance for all sorts of intrigues and furnishes powerful 
 incentives to corrupting negotiations. The intervention 
 of electors, so far from being a potent defence against 
 fraud, has become one of the most efficient agencies for 
 its perpetration ; and, as has been well shown by Ostro- 
 goski, has tended to make the success of democracy for- 
 mal rather than vital. Nomination, the most important 
 element in the choice of the chief magistrate, is, under 
 the iron-clad control of conventions, ruled by the very 
 class of office-holders that the Constitution intended to 
 deprive of all voice in the selection of the President. 
 
 Nor is the catalogue of the perils that hide beneath 
 the constitutional plan exhausted by this recital. The 
 House of Representatives becomes the body to choose 
 the President when no candidate has a majority of the 
 whole number of electors appointed. Electors may be 
 elected by the people, yet never be appointed, for an 
 elector chosen by the people might be ineligible under 
 
Defects 261 
 
 the nation's organic law, or he might die or resign and a 
 question arise as to the appointment of his successor er 
 substitute. The subject is of the highest importance in 
 its bearing upon the question as to when the time arrives 
 at which the House is constitutionally warranted in enter- 
 ing upon the choice of a President. Evarts in the Senate 
 in February, 1886, pointed out the desirability of incor- 
 porating in the bill for counting the electoral vote some 
 provision clearly directing how and when this question 
 should be settled. A candidate might not have a ma- 
 jority of the votes received by the president of the Senate 
 or of all the electoral colleges, and still have a majority 
 of the electors appointed. Had Georgia's three votes 
 for Greeley been rejected, during a contest when their 
 count had been essential to determine whether a candi- 
 date had a majority of the electors appointed, the parti- 
 sans of that candidate would have insisted that he was 
 elected, whereas the friends of a defeated candidate 
 might have as reasonably argued that no one had a ma- 
 jority of the electors appointed and that therefore the 
 election should go into the House of Representatives. 
 There is no authority to decide between them. 
 
 The Constitution is silent upon the question who shall 
 determine when the right of the House of Representa- 
 tives to proceed to an election may be said to mature. 
 Is the House to be the sole judge? The debates of Con- 
 gress show that on several occasions during the tumultu- 
 ous session of 1857, ^^S^Y and dissatisfied members of 
 the House asserted that the hour had come for the exer- 
 cise of its prerogatives. It is not inconceivable that, in 
 some future dispute over a single or a double return, 
 one or the other of the two Houses may be tied so that 
 no decision shall be possible, or that a deadlock between 
 them may be prolonged, and the question would then be 
 presented whether the House of Representatives should 
 not itself elect the President. In 1876 there were in the 
 
 7 
 
262 
 
 The Electoral System 
 
 House members who urged that, inasmuch as there was 
 no constitutional machinery for the counting of the elec- 
 toral vote, the House would abdicate its office if it should 
 not proceed to an election. As was said when the Act 
 of 1887 was under consideration, the discussions over 
 disputed returns might easily be protracted until the mid- 
 night of March 3d and the House might be influenced 
 to assume the role of President-maker. There is a plain 
 casus omissus in the Constitution, as Evarts and Ingalls 
 pointed out in 1887, in its failure to prescribe some exact 
 means for the determination of this question! These 
 dangers are not fanciful, for one has but to peruse the 
 record of presidential contests to find these or like claims 
 repeatedly made in the more popular chamber. 
 
 Inasmuch as the Constitution imperatively requires the 
 House, if there shall be no choice declared in the joint 
 session, immediately to proceed to the election of a Presi- 
 dent, the choice of the chief executive is thus intrusted 
 to a House of Representatives about to go out of exist- 
 ence ; and such a House may even be under the control 
 of the party defeated at the preceding November election. 
 The fact that the vote in the House of Representatives 
 for President is not per capita, but by States, introduces 
 an additional element of a most confusing and unsatis- 
 factory nature, for it results in giving the power to elect 
 
 J to a majority of States representing a minority of the 
 
 I population of the country. 
 
 One remarkable omission from Article H. of the Con- 
 stitution not only shows that its frame'rs were not in- 
 fallible, but also emphasizes the importance of a speedy 
 amendment to remove a danger that may at any time 
 become actual. Subdivision 6 of Section i of Article H. 
 provides as follows : 
 
 ** In case of the removal of the President from office, or of 
 his death, resignation, or inability to discharge the powers and 
 
Defects 263 
 
 duties of the said office, the same shall devolve on the Vice- 
 President; and the Congress may by law provide for the case 
 of removal, death, resignation, or inability, both of the Presi- 
 dent and Vice-President, declaring what officer shall then act 
 as President, and such officer shall act accordingly until the 
 disability be removed or a President shall be elected," 
 
 The Constitution here makes provision for two classes 
 of cases. The first is v^here the actual chief executive 
 dies, resigns, or becomes unable to discharge the pov^^ers 
 and duties of his office. In any one of these contin- 
 gencies, the Constitution itself declares that the office 
 held by the deceased, resigning or disabled President 
 shall devolve on the Vice-President. There is no pos- 
 sible ambiguity or obscurity in the clause, except in the 
 case of the inability of a President. Death is a fact 
 which speaks for itself. As to " resignation, " Mr. J ustice 
 Story says: '* Congress, with great wisdom and foresight, 
 has provided that it shall be by some instrument in writ- 
 ing, declaring the same, subscribed by the party, and de- 
 livered into the office of the Secretary of State." But 
 inability is not easily determinable, and inability is not 
 defined in the Constitution. In the debate of 1886 in 
 the Senate, Ingalls, commenting upon this uncertainty of 
 the fundamental law, declared that it afforded no means 
 for determining when "inability" had occurred, orbits 
 nature, extent, duration, and end"; and he contended 
 that Garfield was disabled, under the Constitution, "from 
 the moment when he sank to the floor of the railroad 
 station, penetrated by the bullet of the assassin," and 
 that from that moment the Constitution devolved the 
 presidency upon Chester A. Arthur, who was not in- 
 ducted into the office or clothed with its powers and 
 duties until after Garfield's death. 
 
 The second class of cases consists of those in which 
 there has been removal, death, resignation, or inability 
 
264 The Electoral System 
 
 both of the President and Vice-President. For any of 
 these last-named contingencies, Congress is empowered 
 to legislate, — for the Constitution gives no specific direc- 
 tion, — and to declare what officer shall thereupon act as 
 President, but the Constitution prescribes that "such 
 officer shall act accordingly, until the disability be re- 
 
 ! moved or a President shall be elected." While Presi- 
 dents and Vice-Presidents have died in office, it has never 
 ;Jyet happened that a President-elect or a Vice-President- 
 I elect has died. Nor has there ever occurred a resignation 
 ) or removal of a President or Vice-President. The cour- 
 j age and patriotism of seven Senators stood between the 
 I country and the possibility of a removal of a President, 
 when articles of impeachment were preferred against 
 President Johnson, in 1868. Nor has Congress ever pre- 
 scribed what shall constitute disability. The presidential 
 succession law of 1886 prescribes, in brief, that if for any 
 reason both the President and the Vice-President are un- 
 able to serve, a member of the Cabinet in the following 
 order shall act as President until the disability of the 
 President or Vice-President shall be removed or a new 
 President be elected: the Secretary of State, Secretary 
 of the Treasury, Secretary of War, Attorney-General, 
 Postmaster-General, Secretary of the Navy, and Secre- 
 tary of the Interior. In the judgment of some eminent 
 constitutional lawyers, the Constitution has ordained a 
 ** periodicity," as Evarts termed it, in the election of the 
 President and Vice-President ; and it seems to have been 
 assumed in discussion in Congress that under the law of 
 1886, if the President- and Vice-President-elect should 
 die, the Secretary of State of the outgoing administration 
 would hold the office of President for the next four years. 
 But this view has not met with universal sanction, and 
 will not stand analysis. Here the Constitution is defec- 
 tive and nothing short of an amendment will remedy the 
 defect. Let us consider the two cases : the death of the 
 
Defects 265 
 
 President-elect, and the death of both President-elect and 
 Vice-President-elect. 
 
 This constitutional provision above quoted does not, 
 in strictness, apply to the case of the death, resignation, J 
 
 or disability of a President-elect, or Vice-President-elect, t/ 
 
 and the question is of transcendent significance — ^Whatl /?>^/Q> 
 would happen if the President-elect were to die beforel^ 
 his inauguration? This inquiry involves several distinctly 
 queries. In the first place, if the candidate for the chief] 
 magistracy of the nation should die before the assemb-/ 
 ling of the electoral colleges in January, how should theyl 
 vote? Strictly speaking, under the letter of the Consti-' 
 tution, the electors would have absolute control of the 
 selection.^ Should they choose the vice-presidentiali 
 candidate, or cast their suffrages for some other party \ 
 leader? Under the existing system, which treats the | 
 elector as a party puppet, the determination of this ques- 
 tion might naturally fall to the party's convention or i 
 national committee. The case is not purely imaginary, ' 
 for Greeley, the candidate of the Democratic party for 
 the presidency in 1872, died before the colleges met to 
 vote, and, while the electors chosen in some of the States 
 to vote for him scattered their votes as they pleased 
 among other candidates, votes were actually cast for him 
 in the Georgia college. The Senate decided that the 
 votes for Greeley should be counted notwithstanding his 
 death, but the House voted that they should not be, 
 "the said Horace Greeley having died before the votes 
 were cast," and, under the twenty-second joint rule, the 
 three Greeley votes were rejected, as the two Houses 
 failed to concur. Under the Act of 1887, such votes 
 
 * " Should accident so^hape events that the presidential candidate of the 
 victorious party should die before the meeting of the electoral colleges, then 
 the United States would again have a President who was not only in form, 
 but in truth, elected by the electors. The effects that such an accident 
 might produce are incalculable." — Von Hoist, Federal Constitution, 87. 
 
266 The Electoral System 
 
 would have to be counted, unless they were held to be 
 votes not "regularly" given, because for atpredeceased 
 candidate. The act might well have been more specific 
 upon this subject. Such a contingency might expose 
 electors to a dangerous temptation. Had General Grant 
 died at the same time as Greeley, the strain to which the 
 Republican electors might have been subjected can be 
 readily imagined. The death of Hayes or Tilden during 
 the earnest debate in the winter of 1876-77, upon the 
 question where the power to count actually lay, might 
 easily have made even an incorruptible elector conceive 
 it to be his patriotic duty to break with the tradition of 
 party fealty. 
 
 In the second place, if the colleges had voted and trans- 
 mitted their returns to the president of the Senate, in 
 compliance with the Federal law of 1792 (now embodied 
 in sections 1 31-135, 138, 140, 142 of the Revised Statutes 
 of the United States), and the successful candidate should 
 thereafter die, but before the two Houses met in joint 
 session in February, would the Houses go through the 
 solemn pageant of appointing tellers and counting votes 
 for a dead man, and would it be the duty of the president 
 of the Senate to declare the recipient of the highest num- 
 ber of votes, although a dead man, the President of the 
 \ United States? It is conceivable that such a ceremony 
 ! might be coincident with the funeral services of the man 
 ; thus pompously announced elected chief executive. 
 The business of opening and counting the votes and 
 declaring the result could not be postponed, however in- 
 opportune its occurrence might be. Whom should the 
 president of the Senate declare elected? Does the Con- 
 stitution make provision upon this subject, or does the 
 section above set forth refer only to the then existing 
 incumbents of the presidential and vice - presidential 
 ofifice? In the third place, the President-elect might die 
 between the second Wednesday of February and the 4th 
 
Defects 267 
 
 of March, when the same question would arise as in the 
 case of his death between the second Monday of January 
 and the second Wednesday of February, the only differ- 
 ence being that in this instance he would have been de- 
 clared President while still alive. The electoral colleges 
 could not be reconvened in either instance, because, upon 
 the hypothesis, they would have already met, voted, and 
 transmitted their lists to the seat of government. The 
 present law of Congress makes no provision for their re- 
 convening, nor could it constitutionally do so. Each 
 college would, as the lawyers say, h^ functus officio. It 
 would be a most elastic interpretation of the existing 
 Constitution that would apply it to the death of a Presi- 
 dent-elect. It may be answered that the Vice-President 
 would be declared elected to his own office, and that on 
 the 4th of March he would be sworn into that office and 
 immediately thereafter be inducted into the vacant office 
 of the presidency ; but such a procedure (while it might 
 be acquiesced in) would not be technically or correctly 
 within the purview of the Constitution, for the Constitu- 
 tion does not explicitly say what shall happen if a Presi- 
 dent-elect die. Suppose, after the conclusion of the 
 proceedings of the Electoral Commission of 1877, ^"<^ 
 the antagonistic votes of the Senate and the House 
 (which under the law made the decision of the commis- 
 sion binding upon Congress), Mr. Hayes had died, is it 
 reasonable to assume that the Democrats of the country, 
 smarting under a keen sense of injustice, believing them- 
 selves out-generalled by the Republicans and unfairly 
 treated by the electoral tribunal, would have tamely 
 submitted to the inauguration of Vice-President Wheeler 
 as President of the United States? The fathers were 
 most anxious to avert the possibility of the occurrence 
 of an interregnum in the executive office at any time, 
 and it may persuasively be urged that the course of pro- 
 cedure just outlined would be the constitutional one. 
 
268 The Electoral System 
 
 But the same catastrophe which removed the President- 
 elect might also terminate the life of the Vice-President- 
 elect. We have but to recall the assassination of Lincoln 
 and the attempted assassination of Seward and other 
 Cabinet officers to see how possible is such a train of 
 calamities. And whether the deduction be sound that 
 the Constitution would leave the country without a 
 President if the President-elect should die, there can be 
 no escape from the conclusion that the Constitution fails 
 to point out who shall be the executive if both President- 
 elect and Vice-President-elect die. Nor does it confer 
 upon Congress the power to provide for such a contin- 
 gency by legislation ; for it authorizes Congress to provide 
 who shall be President only when there shall have oc- 
 curred the removal, death, resignation, or inability of the 
 actually existing President and Vice-President. 
 
 It may be argued that, in the case of the death of the 
 President-elect, the election would devolve upon the 
 House of Representatives, the vote to be taken by States. 
 The Constitution prescribes that 
 
 ** the president of the Senate shall in the presence of the Sen- 
 ate 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 number, not exceeding three on the 
 list of those voted for as President, the House of Representa- 
 tives shall choose immediately, by ballot, the President. ' * 
 
 The only contingency in which, by the Constitution, the 
 duty of election falls to the House is when no person has 
 a majority of the whole number of electors appointed. 
 But in the supposititious case under consideration the 
 majority of that number would have been given for a 
 candidate deceased before the joint convention of the 
 
Defects 269 
 
 Houses assembled, so that in strictness the House of 
 Representatives could not constitutionally exercise the 
 function of making a choice. It may well be doubted 
 whether that instrument intended to confer upon the 
 House of Representatives the duty of electing a Presi- 
 dent, where the President-elect died before the second 
 Wednesday of February. Had Mr. Hayes died just prior 
 to the second Wednesday of February, 1877, any claim of 
 right on the part of the House of Representatives to pro- 
 ceed to the election of a President and to elevate Mr. 
 Tilden to the presidency would have been bitterly con- 
 tested, and no one can tell into what a sea of troubles 
 such a calamity as Mr. Hayes' death at that juncture 
 would have plunged the country. If the House should 
 have undertaken this office, the question would have 
 arisen whether the choice should be confined to the two 
 candidates, then living, having the highest number of 
 votes. From the tenor of a colloquy between Hoar and 
 Ingalls, during the debate in the Senate on the electoral 
 count bill in 1887, it would seem that Hoar's opinion was 
 that if the successful candidates for both the presidency 
 and vice-presidency at the November election should die 
 before the second Monday of January, the House of 
 Representatives would proceed to exercise its constitu- 
 tional function ; whereas if both died between the second 
 Wednesday of February and the 4th of March — which 
 would not be likely to happen, said Hoar, "once in five 
 thousand years" — the Secretary of State of the existing 
 administration would hold over under the presidential 
 succession law until the end of the next four years. In- 
 galls dissented from both of Hoar's propositions as to 
 what then would be the constitutional procedure, and 
 emphatically contended that such a possibility as the 
 continuance in office, for four years, of the Secretary of 
 State of the old administration, was never contemplated 
 when the succession law of 1886 was before the Senate; 
 
270 The Electoral System 
 
 and he refused to admit that the interim between the 
 declaration of the result in February and March 4th was 
 so short that such an evil as the death of both President- 
 and Vice-President-elect might not happen. * ' The fatali- 
 ties of the past twenty years have familiarized the public 
 mind with the dangers that attend this subject. The 
 people of this country are no longer prepared to disregard 
 death as a factor in the great drama of political supre- 
 macy in this republic." 
 
 Hoar, in his autobiography, states his conviction that 
 the Constitution is defective in failing to prescribe the 
 mode of succession in the case of the death of both the 
 President- and the Vice-President-elect. He says : 
 
 " That this is not an imaginary danger is shown by the fact 
 of the well-known scheme to assassinate Lincoln on his way 
 to the seat of the Government, and also by the fact that either 
 the President or the Vice-President has died in office so many 
 times in the recollection of men now living. President Harri- 
 son died during his term; President Taylor died during his 
 term; Vice-President King died during Pierce's term; Presi- 
 dent Lincoln died during his second term; Vice-President 
 Wilson died during Grant's term; President Garfield died 
 during his term; Vice-President Hendricks died during Cleve- 
 land's term; Vice-President Hobart died during McKinley's 
 term; and President McKinley during his own second term. 
 So within sixty years eight of these high officials have died in 
 office; five of them within thirty years; four of them within 
 twenty years. I have also drawn and repeatedly procured the 
 passage through the Senate of an amendment to the Constitu- 
 tion to protect the country against this danger. That (also) 
 has failed of attention in the House. I suppose it is likely 
 that nothing will be done about the matter until the event 
 shall happen, as is not unlikely, that both President and Vice- 
 President-elect shall become incapacitated between the election 
 and the time for entering upon office." 
 
 There is too easy and ill-founded an optimism in Hoar's 
 
 
Defects 271 
 
 apparently confident opinion that the death of the Presi- 
 Jent-elect alone before the 4th of March would present 
 no serious difficulty.' It is not at all clear that both the 
 President- and Vice-President-elect must die between 
 the time of counting the electoral vote and March 4th, to 
 create a most novel, embarrassing, and alarming posture 
 of affairs. Nevertheless, even if no difficulty should arise 
 except in the contingency that both die, its occurrence 
 would be fraught with such danger that the Constitution 
 should contain provision for it. Some of these questions 
 have recently been considered by the Committee on 
 Privileges and Elections of the House of Representatives, 
 in a report upon a bill to amend the presidential succes- 
 sion law so as to provide that the two Cabinet officers, 
 the Secretary of Agriculture and the Secretary of Com- 
 merce and Labor, whose offices have been created since 
 the passage of the act of 1886, shall in certain contin- 
 gencies respectively succeed to the presidency. The 
 report of the committee contains the following interesting 
 paragraphs : 
 
 ** Your committee are not called upon to express any opinion 
 as to the merits of the existing law [Act of 1886]. It may not, 
 perhaps, be out of place to call the attention of the House 
 briefly to the inadequacy of the present provisions for the 
 
 * Caldwell, in the House in 1886, inclined to think the Constitution inap- 
 plicable to the case of a President-elect and Vice-President-elect, and de- 
 clared that Justice Story and George Ticknor Curtis were his authorities. 
 Curtis says : " But there is every reason to believe that this provision em- 
 braces the case of a vacancy in both offices occasioned by removal, death, 
 resignation, or inability, not of the President- and Vice- President-elect, but 
 of the President and Vice-President in office. It may be doubted whether 
 the framers of the original Constitution intended to provide for a vacancy 
 in both offices occasioned by the failure of the House of Representatives to 
 elect a President, and the death of the Vice-President-elect ; or a non- 
 election of a Vice-President by the Senate before the fourth day of March. 
 . . . It does not refer to the President- and Vice-President-elect whose 
 term of office has not commenced." 
 
2 72 The Electoral System 
 
 presidential succession, and the need of early attention to that 
 subject by the Congress. Who would determine the question 
 of * inability * on the part of the President, and when such 
 inability ceased ? If an election were ordered in case of a 
 vacancy in the office, could it be for the unexpired term, or 
 would it have to be for a term of four years, thus disarranging 
 the four-year period of the Government ? 
 
 " If a President-elect were to die before becoming Presi- 
 dent, would the Vice-President-elect be President for the 
 term ? Again, if a President-elect and Vice-President-elect 
 should both die prior to taking their offices, would the Cabinet 
 officers appointed by the outgoing President succeed in the 
 order named in the present law when the new term began ? 
 Suppose the Democratic candidates for President and Vice- 
 President had been elected at the last election and had died 
 before new Cabinet officers had been confirmed, would the 
 Republican Cabinet officers be in line of succession ? There 
 is no easy answer to any of these questions. 
 
 ** The existing law provides that in case the succession shall 
 devolve upon any of the persons named in the law, if Congress 
 be not in session, and would not meet by law within twenty 
 days thereafter, then the person upon whom the duties of the 
 office devolve shall by proclamation convene Congress in ex- 
 traordinary session, * giving twenty days' notice of the time of 
 the meeting.' Could he give more than twenty days' notice ? 
 Ought he not to be required to call Congress together in 
 twenty days in no uncertain language ? Or rather, should not 
 the coming together of Congress in such a case be made to 
 happen certainly, and not be dependent upon the proclamation 
 of the officer succeeding to the duties of the presidency ? -" 
 
 There appears to be a plain conflict between the views, 
 above expressed, of the late Senator Hoar and the views 
 of the committee upon several of the questions suggested 
 in the committee's report, notably as to whether the 
 death of the President-elect might not create a hiatus in 
 the succession. Evarts declared it a misfortune that the 
 two Houses have no power under the Constitution to fill 
 
Defects 273 
 
 **the little space between the electoral count and the 4th 
 of March, if gap it be"; but the Constitution gives the 
 power to legislate only when both President and Vice- 
 President die, and if its terms do not cover other cases, 
 there is a defect that can be rectified only by amendment. 
 "If a President-elect were to die before becoming Presi- 
 dent, would the Vice-President-elect be President for the 
 term?" is the vital inquiry of the Committee on Privi- 
 leges and Elections. My view is that the Constitution has 
 no application to the President-elect or Vice-President- 
 elect in these provisions, and I have distinguished the 
 three attendant contingencies. Hoar concluded that the 
 House would elect in case of the death of the President- 
 elect ; but admitted that the death of both the Presi- 
 dent- and Vice-President-elect, — a contingency which he 
 declared in the Senate might not happen once in five 
 thousand years, but which in his autobiography he treats 
 as far more serious, — would leave the country without 
 any executive head, and that nothing short of a constitu- 
 tional amendment could provide against the emergency. 
 An extraordinary provision of the twelfth amend- 
 ment, due to the narrow jealousy of the small States, 
 limits the House of Representatives in its choice to the 
 consideration of the three highest names on the list. In 
 1824 and in i860 there were four candidates, all of whom 
 received a substantial number of electoral votes, so that 
 it is easy to imagine a case where all four candidates 
 might have the same number of votes or the third and 
 fourth candidates have an equal number of electoral 
 votes; and in either of these cases the question would 
 arise how the House of Representatives, restricted to 
 a choice from three names, could proceed to an elec- 
 tion. Professor Johnston instances these possibilities 
 in an article on the Executive in Lalor s Cyclopcsdia, and 
 Mr. Carlisle, who was Secretary of the Treasury under 
 President Cleveland, also comments on this remarkable 
 
2 74 The Electoral System 
 
 limitation/ Assuming that there might be three or four 
 formidable parties, which he deems not unlikely, believing 
 the tendency in the direction of dispersion rather than 
 consolidation, Mr. Carlisle says •. 
 
 "If, however, owing to the multiplicity of the electoral 
 tickets, it should happen that more than three persons voted 
 for as President should receive the highest number and an 
 equal number of votes, then there would be no choice by the 
 electoral colleges, and there could be no constitutional election 
 by the House of Representatives, because, under the Constitu- 
 tion, not more than three persons could be voted for in that 
 body." 
 
 And if there should be more than two of the candidates 
 for the vice-presidency in a similar category, the Senate 
 could make no choice. "In all such cases," he added, 
 "the electoral system would exhaust itself; leaving the 
 country without an elected executive, or a Vice-Presi- 
 dent to take his place." By the original clause of the 
 Constitution the President and the Vice-President were 
 to be chosen in the House from the five highest upon the 
 list. The resolution for the twelfth amendment, as it 
 was adopted by that House, authorized the selection of 
 the President from the same number of persons, but in 
 the Senate, upon motion of Wilson Carey Nicholas, the 
 number five was struck out and a blank inserted in its 
 stead. Dayton, of New Jersey, wished to insert five, 
 but his motion was rejected, whereupon Samuel Smith, 
 of Maryland, moved to insert three, which was carried, 
 1 8 to 13. The opposition of the smaller States to the 
 larger number was due to their fear that the use of the 
 greater number would tend to throw the election into 
 the House, and that a candidate from a large State who 
 had only a small electoral vote — Jay had only one such 
 
 ' 24 Forum. 
 
Defects 275 
 
 vote in 1801 — might thus secure the vote of that body, 
 where the vote was to be taken by States. Thus Smith, 
 of Maryland, asserted that if the number five were to be 
 continued, and the House of Representatives made the 
 last resort, the choice would devolve upon the House four 
 times out of five. Butler, of South Carolina, was posi- 
 tive that if the small States agreed to the amendment, it 
 would forever fix the combination of the larger States, 
 which would choose not only the President but the 
 Vice-President in spite of their smaller sisters. Nicholas 
 thought that with the smaller number "you place the 
 choice with more certainty in the people at large." John 
 Quincy Adams, who had recently been elected to the Sen- 
 ate from Massachusetts, protested against any change in 
 the number that had been approved by the House of 
 Representatives.' He would suppose, he said, that there 
 should not be three persons voted for; or that, though 
 three or more should be voted for, none of them should 
 have an actual majority of the electors. "What would 
 be your situation then ? " He instanced another case, that 
 the highest two should have an equal number of votes, 
 and that there were to be a third and fourth who should 
 have an equal number also, — how could the three highest 
 be found in this case when the third and fourth persons 
 were equally high in votes? He also raised the question 
 "whether some explanation should be given of the prin- 
 ciple upon which the votes were to be counted." The 
 irony of fate has made the system so carefully devised to 
 protect the smaller States, especially when operated 
 under the general-ticket plan, work against the designs 
 
 ' Had Adams' argument prevailed with the Senate, and the number 
 "five "been retained in the amendment, it is an interesting speculation 
 whether he would have ever become President, Clay could then have 
 been voted for in the House of Representatives, as well as Jackson, Adams, 
 and Crawford, and Clay's popularity might have obtained him a majority 
 of the States. 
 
276 The Electoral System 
 
 of its framers. The unpleasant possibilities of a failure 
 of choice in the House for the reasons above given 
 should lead to prompt amendment. 
 
 The Constitution fails to define the "inability" of 
 a President, although it declares the consequences of such 
 inability. The protracted illness of President Garfield 
 led to considerable discussion as to what constitutes a 
 presidential inability within the meaning of the Consti- 
 tution, and what officer or body should pass upon the 
 question of inability and determine its existence and 
 who should discharge the powers and duties of the 
 President in case of such inability. A series of articles 
 in the North American Review ^^ in November, 188 1, 
 shows an interesting variety of opinion. Lyman Trum- 
 bull considered that the word "inability" includes both 
 physical and mental inability. According to him, while 
 the exercise of the powers and duties of the presidential 
 office would devolve upon the Vice-President in a case 
 of "inability," the Vice-President would not become 
 President, and upon the cessation of the disability the 
 President would resume his office. But so eminent an 
 authority as the late Judge Cooley defined "inability" as 
 permanent in its nature. The Vice-President was to act 
 in the case of the President's inability, and as he could 
 do so no more after the inability ceased than before it 
 commenced, the inability contemplated must be continu- 
 ing or one that, at least, would threaten an inconvenience 
 in public affairs. He argued further that Congress had 
 the power to provide by a general law for such cases. The 
 late Benjamin F. Butler, of Massachusetts, construed 
 "inability" as covering every bodily or mental condition 
 which prevented the President from discharging the 
 duties of his office or the exercise of his powers, but 
 denied that there was any authority in Congress to make 
 provision by legislation for the case of "inability" of the 
 
 ^ 133 N. A. R., 417. 
 
Defects 277 
 
 President alone, since the Constitution simply authorized 
 Congress to make legislative provision in the case of the 
 removal, death, resignation, or inability both of the Presi- 
 dent and Vice-President. 
 
 " The Constitution, providing expressly what Congress may 
 do in case of inability of both President and Vice-President, 
 excludes the idea that Congress may by law add to or diminish 
 the constitutional provision as to what shall be done in case of 
 the inabihty of the President only and the constitutional de- 
 volution of the duties of his office upon the Vice-President." 
 
 The late Professor Theodore W. Dwight difTered from 
 all other participants in the discussion in construing the 
 word "inability" in accordance with the English common 
 law. "To take 'inability' or 'disability' in a popular 
 sense would be to enter upon a shoreless sea of conjec- 
 ture." Whether the disability was permanent or tem- 
 porary, the Vice-President having once become clothed 
 with all the functions of the office of the chief executive, 
 nothing, in turn, but his death, removal from office, 
 resignation, or inability could take the office away from 
 him. The condition of mind which constituted "inabil- 
 ity" would have to be established by evidence under the 
 forms of law which Congress is competent to prescribe, 
 and when "inability" was properly established the office 
 would devolve upon the Vice-President ; who would there- 
 upon become President, retaining the office until the end 
 of the four years' term unless a constitutional disability 
 should intervene to require surrender of the office by him. 
 Analysis of Section 6 of Article II. of the Constitution 
 also reveals grave uncertainties of meaning, if not abso- 
 lute omissions, which, in view of the great importance 
 of the presidential office and the necessity to public secu- 
 rity that there should never be a break in the continuity 
 of constitutionally exercised executive power, should be 
 promptly remedied by constitutional amendment. 
 
278 The Electoral System 
 
 / The likelihood of electing a minority candidate in the 
 House of Representativesjfwhere the choice depends 
 upon an agreement between a majority of States having 
 less than half the population of the country, and the pos- 
 sibility, which has several times ripened into a certainty, 
 that the candidate having a majority of votes in the elec- 
 toral colleges may have obtained only a minority of the 
 suffrages of citizens, that is, less than a defeated candi- 
 date, should be sufficiently potent reasons for a change 
 in the method of electing the Pre sident^ When all the 
 defects, weaknesses, and dangers of the present system are 
 weighed, they should more than counterbalance the con- 
 servative disposition which is hostile to revision. Inas- 
 much as the framers of the Constitution, admitting the 
 probability that their work might need alteration, pro- 
 vided two methods whereby it might be amended, the one 
 with the consent of two thirds of each House of Congress 
 and the approval of three fourths of the States, the other 
 by means of a convention to be summoned into being 
 upon the request of two thirds of all the States, the nar- 
 row, unprogressive spirit which fears or refuses to attempt 
 a remedy for existing evils should yield to a more rational 
 sentiment. We should approach the solution of these 
 problems with the same kind of faith and courage that 
 led the fathers to form the present Union. As has well 
 been said : 
 
 "It is the spirit, not the letter, of our Constitution which 
 has made it so successful in solving the greatest political prob- 
 lems with which our race ever had to deal, and in showing the 
 world how civilized peoples may be governed. We only 
 weaken this spirit, and do no honor to the Constitution or its 
 founders, when we refuse to amend it in the way the document 
 itself provides. " * 
 
 ^ Prof. Simon Newcomb, N. A. R., vol. clxxx., No. i, p. 16. 
 
Defects 279 
 
 The evils entailed by the system are not light or tran- 
 sient, but enduring and threatening. It is a patriotic 
 duty not only to point out their existence, but to warn 
 against their continuance. The consideration of methods 
 for their extirpation is a business which may well engage 
 the attention, as it will task the powers, of our wisest; 
 statesmen. 
 
 Note to Chapter X 
 
 Since the foregoing chapter was written I have found 
 that Hoar, in 1898, concluded that there is no pro- 
 vision in the Constitution as to who should succeed to 
 the presidency if the President-elect should die between 
 the date of the vote in the electoral colleges and the in- 
 auguration. At the session commencing in December, 
 1897, Senator Frye, of Maine, introduced a resolution for 
 an amendment to the Constitution providing for the suc- 
 cession to the presidency in certain contingencies. In 
 the course of the discussion over the amendment, which 
 had been referred to the Judiciary Committee, modified 
 by it, and then favorably reported. Hoar read a letter 
 received by him from Mr. Albert W. Paine, of Maine. 
 Mr. Paine's communication states in substance that the 
 Constitution fails to provide for the contingency of the 
 death of the President-elect after the electors have cast 
 their votes in January and before his inauguration on the 
 4th of March. Should such a death occur, says Mr. 
 Paine, 
 
 "there is no provision whereby another President could be 
 elected and Congress could not supply the deficiency, so that 
 no President could afterwards be legally or constitutionally 
 chosen, the only contingency provided for being that of the 
 death of the President. The person elected by the electors as 
 President does not become such until his inauguration in 
 March afterwards. So that the provision cited does not cover 
 
28o The Electoral System 
 
 the case, and there being none other the defect charged really 
 exists and needs an amendment. ' ' 
 
 Mr. Paine calls attention to the fact that had Blaine been 
 a candidate for the presidency in 1892 and been elected, 
 as his death occurred on January 27, 1893, there would 
 have been no constitutional successor to President Harri- 
 son. Blaine was prominently mentioned as a Republican 
 candidate in 1892, and it has been declared that nothing 
 but his explicit refusal to accept precluded his nomina- 
 tion in the summer of 1892. His death on January 27, 
 1893, would have followed a successful vote for him 
 in the electoral colleges, but would have preceded the 
 electoral count, which took place on February 8, 1893. 
 
CHAPTER XI 
 
 THE APPOINTMENT OF ELECTORS TREATED HISTORI- 
 CALLY — EVILS OF THE GENERAL-TICKET SYSTEM 
 
 FROM the outset of the Government until 1832 great 
 diversity prevailed in the methods in use in the 
 different States in the appointment of electors ; and re- 
 peated changes were made in almost every State in the 
 law prescribing the manner of their selection. Inasmuch 
 as each State Legislature could alter the method at its 
 pleasure, the mode of election became "as various as the 
 views of different States, and as changeable as the power 
 and ascendency of rival parties." Whether the district 
 system, as Chief Justice Fuller asserts, and as Madison's 
 writings seem to show, was considered by many of the 
 members of the convention of 1787 as the most equitable, 
 or whether there was any consensus of opinion among the 
 delegates beyond that manifested in the decision to en- 
 trust the appointment to each State Legislature, it is 
 easy to perceive the disadvantages entailed by the failure 
 of the fathers to agree upon a uniform plan for all the 
 States. Hardly had the Constitution been ratified by 
 the requisite number of States ere contests arose over 
 the method of appointment of electors; and these con- 
 tinued with more or less virulence until the almost uni- 
 versal adoption of the general-ticket system in 1832. 
 New York failed to appoint any electors in 1788, and 
 the State, through party contentions, was bereft of the 
 honor of participating in the first election of Washington. 
 
 281 
 
282 The Electoral System 
 
 The Anti-Federalists and partisans of George Clinton, 
 then governor of the State, were in control of the As- 
 sembly, while the Federalists dominated the Senate. 
 The lower house was willing to vote for electors in joint 
 session per capita with the upper house ; but to this the 
 Senate would not assent, and in the schism between the 
 two houses the vote of the State was lost. In 1800, 
 Hamilton, doubtless the greatest constructive statesman 
 of his time, asked Governor Jay to convoke the expiring 
 Legislature to inaugurate the district system of election 
 without permitting the voters of the State to express any 
 choice in the matter of the change; but Jay rejected the 
 proposal, and the new Legislature chose Republican elec- 
 tors. In 1824, the contest between the friends of Craw- 
 ford and the people's party as to the mode of choosing 
 electors evoked such a proscriptive spirit that DeWitt 
 Clinton was dismissed from his ofBce of canal commis- 
 sioner, but only to be elevated, by an outraged people, 
 through an overwhelming vote, to the highest executive 
 office in the State. Between 1788 and 1804 the Legisla- 
 ture of New Jersey directly appointed presidential elec- 
 tors. The law was changed so as to confer upon the 
 people, by a vote throughout the State, the right to 
 choose electors in 1808. But in 181 2, in order to defeat 
 the election of electors favorable to Madison and to es- 
 cure the appointment of Federalist electors to vote for 
 DeWitt Clinton, the Legislature of that State, only three 
 days before the date when the voters of that common- 
 wealth expected to exercise their privilege at the polls, 
 repealed the law giving the choice to the citizens and 
 arbitrarily invested itself with the power of appointment. 
 At the first presidential election the appointment of 
 electors was made by the Legislatures of Connecticut, 
 Delaware, Georgia, New Jersey, and South Carolina. 
 This mode of appointment may, in some instances, have 
 been due to the fact that the governors of these States 
 
 I 
 
The Appointment of Electors 283 
 
 failed to call the Legislature into session in time to enact 
 a law for election by the people. Pennsylvania, by Act 
 of October 4, 1788, provided for the election of electors 
 on a general ticket. Virginia, by Act of November 17, 
 1788, was, for electoral purposes, divided into twelve 
 separate districts, while for the election of Congressmen 
 the State was divided into ten other districts. In Massa- 
 chusetts the General Court, by resolve of November 17, 
 1788, divided the State into districts for the election of 
 Representatives in Congress, and provided for their elec- 
 tion December 18, 1788; and the resolve further pre- 
 scribed that at the same time the qualified inhabitants of 
 each district should give their votes for two persons as 
 candidates for elector of President and Vice-President of 
 the United States, and from the two persons in each dis- 
 trict having the greatest number of votes, the two houses 
 of the General Court by joint ballot should elect one 
 elector, and in the same way should elect two electors 
 at large. In Maryland, where the election was exciting, 
 under an act passed December 22, 1788, electors were 
 elected on general ticket, five being residents of the 
 Western Shore and three of the Eastern Shore. In New 
 Hampshire an act was passed November 12, 1788, pro- 
 viding that five electors should be elected by popular 
 vote or, in the event of no choice by this method, that 
 they should be appointed by the Legislature from among 
 twice as many candidates as there were electors to be 
 chosen. At the election, which occurred on the third 
 Monday of December, 1788, the date prescribed by the 
 Legislature, no elector received a majority, and the duty 
 of choosing electors therefore devolved upon the Legis- 
 lature, or General Court, as it was termed in the New 
 England States. But no method of choice by the Legis- 
 lature had been provided in the law, and the two houses 
 at once fell into antagonism as to the mode of procedure. 
 The lower house proposed a joint ballot, which would 
 
284 The Electoral System 
 
 have placed the selection under its control as the more 
 numerous ; but the Senate demanded equal right of ap- 
 pointment, and finally, to prevent the utter sacrifice of 
 the vote of the State, the House was constrained to ap- 
 prove of the electors chosen by the Senate. But this was 
 not without an indignant protest that its acquiescence 
 should not be treated as a precedent. North Carolina 
 and Rhode Island had not then ratified the Constitution. 
 
 Fifteen States participated in the second presidential 
 election, in nine of which electors were chosen by the 
 Legislatures. Maryland and Pennsylvania elected their 
 electors on a general ticket ; the people of New Hamp- 
 shire did the same, and thus avoided a recurrence of the 
 contest which had divided the two houses in 1788; and 
 Virginia chose her electors by districts. In Massachu- 
 setts the General Court, by resolution of June 30, 1792, 
 divided the State into four districts, two of these to elect 
 five and two, three electors. Under the apportionment 
 of April 13, 1792, North Carolina was entitled to ten 
 members of the House of Representatives. The Legis- 
 lature was not then in session, nor did it meet until No- 
 vember 15th, while under the act of Congress of March i, 
 1792, the electors were to ballot for President on Decem- 
 ber 5th. This short interval between the assembling of 
 the Legislature and the date fixed for the meeting of 
 electors allowed no time to enact a law for a popular 
 election. The Legislature passed an act dividing the State 
 into four districts and directing the members of the Legis- 
 lature residing in each district to meet on the 25th of No- 
 vember and choose three electors. At the same session an 
 act was passed dividing the State into districts for the elec- 
 tion of electors in 1796, and every four years thereafter.' 
 
 Sixteen States took paCrt in the third presidential elec- 
 tion, Tennessee having been admitted June i, 1796. In 
 
 * Some of these facts have been taken from the opinion in McPherson vs. 
 Blacker. 
 
The Appointment of Electors 285 
 
 nine States — Delaware, New Jersey, Georgia, Connecticut, 
 New York, Rhode Island, Vermont, Kentucky, and South 
 Carolina — the electors were appointed by the Legislatures, 
 and in Pennsylvania and New Hampshire by popular vote 
 for a general ticket. Virginia, North Carolina, and Mary- 
 land elected by districts. The Maryland law of Decem- 
 ber 24, 1795, entitled "An Act to Alter the Mode of 
 Electing Electors," provided for dividing the State into 
 ten districts, each district to "elect and appoint one per- 
 son, being a resident of the said district, as an elector." 
 Massachusetts adhered to the district system, electing 
 one elector in each congressional district by a majority 
 vote. It was provided that if no one had a majority the 
 Legislature should make the appointment on joint ballot, 
 and the Legislature also appointed two electors at large 
 in the same manner. In Tennessee an act was passed 
 August 8, 1796, which provided that three electors 
 should be elected, "one in the district of Washington, 
 one in the district of Hamilton, and one in the district of 
 Mero" ; and, in order that the said electors might be 
 elected "with as little trouble to the citizens as possible," 
 certain persons of the counties of Washington, Sullivan, 
 Green, and Hawkins were named in the act and appointed 
 electors to elect an elector for the district of Washington ; 
 certain other persons of the counties of Knox, Jefferson, 
 Sevier, and Blount were by name appointed to elect an 
 elector for the district of Hamilton; and certain others 
 of the counties of Davidson, Sumner, and Tennessee to 
 elect an elector for the district of Mero. Electors were 
 chosen by the persons thus designated. The law of 
 Pennsylvania, as has been stated, provided for a choice 
 by general ticket, and the result in that State was thought 
 likely to decide the choice of President. 
 
 " The friends of Jefferson had been very anxious for a choice 
 by districts, which would have divided the votes; but the 
 
286 The Electoral System 
 
 Federalists, confident in their strength, had refused. Great, 
 therefore, was their chagrin to find that the heavy vote of the 
 trans-Alleghany district and the unexpected majority of two 
 thousand for the opposition in the city and county of Phila- 
 delphia, had carried the State against them by a very close 
 vote, onlv^i«e of the Federalist candidates being chosen." * 
 
 In the fourth presidential election Virginia, the mother 
 of Presidents, under the advice of Mr. Jefferson, '^ adopted 
 the general ticket, at least "until some uniform mode of 
 choosing a President and Vice-President of the United 
 States shall be prescribed by an amendment to the Con- 
 stitution" ; and Madison introduced the general-ticket 
 bill in the House of Delegates in a speech declaring that 
 necessity impelled Virginia to this change. In fact, the 
 preamble to the bill condemned the system. Virginia's 
 departure from the district system and her adoption of 
 the general-ticket plan, according to Barbour's statement 
 in the House of Representatives on March 9, 1826, v^ere 
 "demanded by the right of self-defence and the duties 
 of retributive justice." In Massachusetts, w^here parties 
 w^ere more equally divided, the appointment viras as- 
 sumed by the Legislature, w^hich passed a resolution 
 providing that the electors of that State should be ap- 
 pointed by joint ballot of the Senate and House. 
 
 "In Maryland the Federalists controlled the State Senate, 
 and, had they succeeded in carrying the House, they would 
 also have adopted a choice by the Legislature ; but in the elec- 
 tion for members of the House, which had just taken place, 
 the opposition had obtained a majority, and the choice by 
 
 » Hildreth, Hist, of U. S., iv,, 690. 
 
 2 " On the subject of an election by a general ticket or by districts, most 
 persons seem to have made up their minds. All agree that an election by 
 districts would be best if it could be general, but while ten States choose 
 either by their Legislatures or by a general ticket, it is folly or worse than 
 folly for the other six not to do it." Jefferson to Monroe, January 12, 1800. 
 — Randall's Jefferson, ii., 521. 
 
The Appointment of Electors 287 
 
 districts remained as before. Similar causes produced a similar 
 result in North Carolina." 
 
 In Pennsylvania also the ** opposition," as Hildreth styled 
 the Republicans, "succeeded to their wishes in electing a 
 majority of the lower house of the Assembly; but the 
 Federalists still retained a majority in the Senate."* The 
 popular body wished a joint ballot, but the Senate would 
 not consent. The differences were finally harmonized by 
 the passage of a bill by which each house was to nomi- 
 nate eight electors, from whom by joint ballot fifteen elec- 
 tors were to be chosen. The result gave the Republicans 
 eight and the Federalists seven. It was the fear that the 
 Legislature of Pennsylvania would cast the electoral vote 
 of the State that led Ross to introduce in the Senate of 
 the United States the bill of 1800. Six States, however, 
 chose electors by popular vote, Rhode Island supplying 
 the place of Pennsylvania, which theretofore followed 
 that course. Tennessee, by Act of October 26, 1799, 
 designated persons by name to choose its three electors 
 as under the Act of 1796. 
 
 In the fifth presidential election, the first under the 
 twelfth amendment, the contest was close, party rivalry 
 was intense, and the changes in the law governing the 
 mode of appointment of electors in several of the States 
 were utterly indefensible. Massachusetts, which holds a 
 position of primacy for variations in the method of choice 
 of electors, now abandoned legislative appointment and 
 passed a law under which all her nineteen electors should 
 be chosen over the entire State by general ticket. The 
 passage of the law was vigorously opposed and a strong 
 protest made by the minority of the Legislature. This 
 protest was grounded in popular feeling, and the Repub- 
 licans had the satisfaction of carrying all the electoral 
 
 » Hildreth, Hist, of the U. S.,\., p. 390. 
 
288 The Electoral System 
 
 college under the substitute system.' Connecticut, with 
 the end in view of keeping the Republicans from return- 
 ing many electors, retained the system of legislative ap- 
 pointment. New Hampshire abandoned the legislative 
 method in 1804 and again employed the general-ticket 
 system, but the Republicans were also successful in this 
 State. At the presidential election of 1808 there was 
 another volte face in Massachusetts. The Federalists, 
 being in the ascendency, provided for the election of 
 electors by the Legislature, despite a message from the 
 governor advising that the appointment of electors ought 
 to be submitted to the people. New Jersey this year 
 went over to the general-ticket system. 
 
 It would be tedious to pursue the narrative of the 
 numerous, almost kaleidoscopic changes in the methods 
 of selecting the men who were to represent the States in 
 the choice of President and Vice-President. The animat- 
 ing purpose of the "diversified and clashing expedients" 
 adopted by the States was the political advantage of the 
 party or faction in temporary control in any State; cer- 
 tainly, whatever the intention of the convention of 1787, 
 its surviving members could not have felt much gratifica- 
 tion in the actual operation of this feature of its work. 
 Nor were these startlingly frequent changes limited to 
 the electoral system ; they pervaded the field of congres- 
 sional representation. Frequent resolutions were intro- 
 duced in Congress to amend the Constitution so as to 
 establish the district system of representation for mem- 
 bers of Congress and the choice of presidential electors. 
 As early as 1801, Hamilton bent his energies towards the 
 passage of an amendment providing that Congress should 
 lay out the districts, and a resolution drawn by him was 
 presented to the Legislature of New York by De Witt 
 Clinton and adopted by it, and then forwarded to Con- 
 
 ^ Jefferson's pleasure at ** the return of Massachusetts into the fold of the 
 Union" was keen. — Hist. U. S., Henry Adams, iii., p. 8. 
 
The Appointment of Electors 289 
 
 gress. In December, 181 3, a resolution for amendment 
 was introduced in the House of Representatives by Israel 
 Pickens, of North Carolina, who was ably seconded by 
 his colleague, William Gaston, afterwards a judge of the 
 State Supreme Court. The Pickens amendment was 
 twofold : it provided for the election of members of the 
 House in districts, and required electors of President and 
 Vice-President also to be voted for in districts. Resolu- 
 tions of the Legislature of North Carolina advocating 
 such an amendment were also presented. Pickens de- 
 scribed to the House of Representatives the unhappy 
 condition of affairs in North Carolina, when, just prior to 
 the election of 1812, she abandoned the district system 
 and decided to vest the choice of electors in the State 
 Legislature. This change caused more agitation than 
 had been witnessed since the Government commenced ; 
 the district system was, therefore, immediately re-estab- 
 lished by the Legislature and "a resolution passed by a 
 unanimous vote in both branches recommending the 
 principle of the amendment now proposed, extending it 
 also to Representatives." Pickens acutely perceived that 
 the establishment of the district system would be the 
 death-knell of sectional parties. Gaston strongly urged 
 the amendment because it would insure the minority in 
 a State "against the intolerance of the majority." He 
 drew a striking picture of the electoral system as designed 
 by the convention of 1787 and as prostituted by caucus 
 nominations: 
 
 ** It was contemplated that the people from each State 
 
 should select from among the wisest and most virtuous of their 
 
 neighbors the persons best qualified to vote for a President. 
 
 The original primary act was to be theirs — spontaneously 
 
 theirs. . . . The electors thus chosen, thus free from all 
 
 irregular impulse, convening in each State on the same day, 
 
 and under circumstances most favorable to deliberation, were 
 
 to vote for a President, and immediately afterwards to mingle 
 19 
 
290 The Electoral System 
 
 with their fellow-citizens, from whom they had been called 
 forth but for that special purpose. Every practicable obstacle 
 was supposed to be thrown in the way of ' cabal, intrigue, and 
 corruption.' Thus beauteous smiled the theory. . . . How 
 hideous the deformity of the practice. The final step made in 
 the election is by those whose interference the Constitution 
 prohibits. The members of the two Houses of Congress meet 
 in caucus, or convention, and there ballot for a President or 
 Vice-President of the United States. The result of their 
 election is published through the Union in the name of a 
 recommendation. This modest recommendation then comes 
 before the members of the respective State Legislatures. Where 
 the appointment ultimately rests with them, no trouble what- 
 ever is given to the people. The whole business is disposed 
 of without the least inconvenience to them." 
 
 But the large States were potent enough to defeat the 
 resolution. 
 
 Pickens renewed his efforts in December, 18 16. Eras- 
 tus Root, of New York, declared his approval of the 
 selection of Representatives in districts, but opposed the 
 election of electors in that manner. Jabez D. Hammond, 
 the historian of New York, who was also a member of 
 the House, ably supported the principle of the Pickens 
 amendment. Hammond, thus condemned the existing 
 method: "The power of the States to choose or direct 
 the manner of choosing electors for the presidency is a 
 rotten, a gangrenous part of our Constitution, which, if 
 not removed, will infect and poison the body politic." 
 
 The chief opposing argument was the danger of "gerry- 
 mandering," and of the loss of power by the large States. 
 The resolution was divided before the vote was taken. 
 A favorable vote was obtained upon the proposition for 
 the election of members of the House in districts, but the 
 suggestion to elect electors in districts encountered suc- 
 cessful hostility, and the House ultimately laid the reso- 
 lutions upon the table. 
 
The Appointment of Electors 291 
 
 On December 5, 1823, George McDuffie, of South 
 Carolina, one of the ablest Representatives that State 
 has ever had in the House, moved the appointment of a 
 select committee to formulate an amendment providing 
 for a uniform method of electing members to the House 
 of Representatives and of choosing electors for President 
 and Vice - President, the election of these last - named 
 officers in no event to devolve upon the House of Repre- 
 sentatives. The report of the committee, together with 
 the resolutions of amendment proposed by it, was pre- 
 sented to the House on December 22, 1823. The report 
 advocated the division of the States into districts, by act 
 of Congress, for the election both of Representatives and 
 electors. Although the discussion of this report might 
 properly find a place in the succeeding chapter, it may 
 be introduced into the present chapter, for no abler in- 
 dictment of "the existing system, if system that may be 
 called which is without system," has ever been presented 
 in Congress; nor has any discussion elicited more conclu- 
 sive proof of the injustice of the general-ticket method. 
 
 " Pre-existing bodies sufficiently small and permanent to be 
 exposed to the tampering arts of intrigue and corruption ought 
 to have no agency in the election of a President of the United 
 States, upon any ground short of absolute necessity. State 
 Legislatures are bodies of this description, and there is no 
 pretence of a necessity for interposing them between the peo- 
 ple and the electoral college." 
 
 Indeed, in proportion as the number of such intermediate 
 agencies is increased, the chances are multiplied that the 
 ''will of the people" (a phrase much in vogue at the time) 
 will be defeated in the choice of a chief magistrate. 
 Nothing, said the report, would arouse the people to in- 
 telligent action so much as direct participation in the 
 election of the chief magistrate. The people 
 
 ** have been so long accustomed to have no practical agency 
 
292 The Electoral System 
 
 in the election of a President that the idea is not uncommon 
 that they have nothing to do with it. As the inevitable ten- 
 dency of this state of popular indifference is to increase the 
 power and influence of political managers and unprincipled 
 combinations, it is of the last importance that it should be 
 corrected if possible." 
 
 The committee then inquired whether "the people should 
 vote by a general ticket or by districts." It was the in- 
 tention of the fathers that the President should be the 
 choice of the people and not of the States. It is true, 
 they contemplated an infusion of the Federal principle 
 into the election in the proportion of the Senators to the 
 Representatives in Congress ; but to extend that principle 
 to the whole body of the electors would be nothing less 
 than sacrificing the rights, the interests, and the power 
 of the people to the false and imaginary idol of State 
 consolidation. 
 
 "It can be demonstrated that the system of voting by a 
 general ticket would render this fundamental principle of our 
 Government the sport of accidental combinations. Six of the 
 States, for example, if they give a unanimous vote, can elect 
 the President. But, if they vote by a general ticket, the can- 
 didate who obtains a bare majority of the popular vote receives 
 the unanimous electoral vote of the State. So that, assuming 
 the population of the United States to be eight millions, a little 
 more than two millions of the people might elect the President." 
 
 The report touches the vicious principle of the general 
 ticket in such telling phrases as these : 
 
 " Let us suppose that there are two States, one containing 
 nine hundred thousand people, and entitled to thirty electoral 
 votes, and the other containing eight hundred thousand peo- 
 ple and entitled to twenty-six electoral votes. Let us further 
 suppose that there are two candidates for the presidency, of 
 whom one is supported by five hundred thousand people of the 
 
The Appointment of Electors 293 
 
 first supposed State, and the other by the remaining four hun- 
 dred thousand, and the entire eight hundred thousand of the 
 other State. Under these circumstances, the candidate who 
 obtains the support of only five hundred thousand of the peo- 
 ple would receive thirty electoral votes, while twelve hundred 
 thousand people could give the opposing candidate only 
 twenty-six! According to this system of false equations, a 
 large minority of the people is precisely equal to no minority 
 at all. By thus entirely excluding the State minorities from 
 the calculation in making up the general aggregate the people 
 are literally immolated by hundreds of thousands at the shrine 
 of an artificial and delusive system, which, by making a ma- 
 jority equal to the whole vote in each State, gives a minority 
 an equal chance for the ascendency in the Union. ' ' 
 
 The true principle prevails in all other popular elections 
 throughout the United States. In the election of the 
 governor of a State by the people, for example, a candi- 
 date does not count the unanimous vote of every county 
 w^here he happens to obtain a majority, but the respec- 
 tive majorities of the several candidates are added to 
 their respective minorities, and the aggregates thus pro- 
 duced are taken as the true expression of the popular 
 will. In eloquent language the committee concluded 
 that it was under the most solemn obligation to reject a 
 plan "which would array States against States in ambi- 
 tious conflict for the mastery, and equally sacrifice the 
 inalienable rights of the people and the general harmony 
 of the Union." To the general-ticket system the com- 
 mittee deemed there was one unanswerable objection. 
 *'It is a practical proposition, conclusively established by 
 the experience of all the States where the experiment has 
 been made, that this system tends by inevitable necessity 
 to transfer into the hands of a few the power of control- 
 ling the entire suffrage of the State." With the spirit of 
 prevision which just and acute analysis of evil symptoms 
 either in the body politic or the human mechanism often 
 
294 The Electoral System 
 
 awakens, and which seems akin to prophecy, the com- 
 mittee asseverated that if the plan of voting by general 
 ticket were established, 
 
 " a central power would spring up in every State, consisting 
 of the ruling politicians of the day, who would be bound to 
 the people by no tie of regular responsibility, and be, in every 
 respect, more liable to cabal, intrigue, and corruption than 
 the Legislature itself. And when we reflect that the entire 
 electoral vote of a State, upon which the presidential election 
 itself might turn, would frequently depend upon the integrity 
 of a few men, perhaps of a single individual, it is difficult to 
 conceive a state of things in which there would be stronger in- 
 ducements or greater facilities for intrigue and corruption." 
 
 By dividing the State into districts, the report argued 
 that all these evils would be avoided. Perceiving also the 
 preponderance given to the small States in the selection 
 of a President through the House, the committee pro- 
 posed that this method of choice be abolished, and that 
 a second meeting of the electors should be held in case 
 of a tie vote to decide between the highest candidates. 
 Thus mutual concessions were asked both from large 
 and small States. 
 
 As nothing came from the debate in 1823, considera- 
 tion of the report of the select committee was resumed 
 in the House on February 15, 1826. The chairman, ad- 
 dressing the House at great length, reiterated the various 
 reasons for the adoption of the district system, so admi- 
 rably set out in the report. The discussion continued 
 daily until a vote was reached upon the resolution, as 
 divided, on April i, 1826. The convictions and prefer- 
 ences of a large number of members were expressed dur- 
 ing the debate. Some of the strongest men in the 
 House, including Edward Livingston, of Louisiana — 
 author of the civil and the criminal code of that State 
 and the draftsman of Jackson's famous nullification 
 
The Appointment of Electors 295 
 
 proclamation, and brother of New York's first chancellor, 
 Robert R. Livingston — and Michael Hoffman, of New 
 York, advocated the passage of the resolutions, while the 
 opposition was ably represented by Storrs, of New York, 
 Archer and Stevenson, of Virginia, Edward Everett, of 
 Massachusetts, and others. Livingston went so far as to 
 advocate the abolition of all electors. Polk, who repre- 
 sented Tennessee, commended and supported him, and 
 Hoffman asserted that his constituents wished a direct 
 vote by the people. James Buchanan, also destined to 
 be a President, sat in the House as a member for Penn- 
 sylvania, but did not speak upon the amendment. Storrs 
 assailed the proposed amendment as at variance with the 
 theory of the "compact" between the States. **It was 
 a system of consolidation, and the large States should 
 oppose being broken into fragments." Everett, in his 
 hostility to any change, took the untenable position that 
 the power to amend, which was reserved in the Constitu- 
 tion, was to be exercised only by making amendments 
 which were consistent with the leading provisions of the 
 Constitution. If the great war amendments be tested 
 by Everett's theory, they were an invalid exercise of 
 the amending power, for they were opposed to one of the 
 essential compromises of the Constitution. Yet the 
 speaker plainly intimated that the Constitution was de- 
 fective in the very particulars in which amendment was 
 then sought: "I say boldly — if it requires boldness to 
 make the avowal — that I regard it in this most essential 
 feature an imperfect system of government." Everett 
 sophistically argued that the general-ticket and the dis- 
 trict system amounted to the same thing : 
 
 " On the general-ticket system, supposing it to be uniformly 
 adopted throughout the United States, the unrepresented mi- 
 norities would be balanced by each other, or, in other words, 
 the minority whose voice is not heard in one State on one side 
 
296 The Electoral System 
 
 of the question would be balanced by the minority whose 
 voice is not heard in another State on another side of the 
 question. On the district system the same result would take 
 place. The minority represented in the electoral colleges on 
 one side of the question in one State would be balanced, and 
 being balanced would be neutralized, by the minority repre- 
 sented in another State on the other side of the question, and 
 therefore in their practical operation there would be very little 
 to choose between the two systems. ' * 
 
 While it is true that under the district system the voice 
 of the minority in the district would be annihilated, the 
 argument served only to show that, gross as were the in- 
 justices of the general-ticket system, the district system 
 would not be an ideal substitute. The Constitution, said 
 Everett, was based upon compromises, and the contract 
 into which the States had entered should be sacredly 
 fulfilled, but there should be a protest against any such 
 inferences as were drawn by the honorable mover of the 
 resolutions. "I will protest against popularity, as well 
 as votes being increased by the ratio of three fifths of the 
 slaves." He had no serious fear of geographical parties. 
 Party of all kinds in excess was fatal, and if the general- 
 ticket system tended to throw the power of the State into 
 the hands of political intriguers, like consequences would 
 result from the district system. As a friend of the ad- 
 ministration he opposed the abolition of the substitute 
 election in the House of Representatives. 
 
 No discussion of the electoral system in Congress has 
 ever been conducted with more fulness or eloquence or 
 more vigor and brilliancy of argument. When the report 
 came up for final consideration, McDuffie called for a 
 division of the question into two branches. The vote 
 was first taken on the proposition that for the purpose of 
 electing the President and Vice-President the Constitu- 
 tion ought to be amended in such a manner as to prevent 
 the election of these ofificers from devolving upon Con- 
 
The Appointment of Electors 297 
 
 gress. The vote upon this proposition was favorable, 
 being 138 yeas to 52 nays; and among those voting for it 
 was Buchanan. Among those voting in the negative 
 may be noted Daniel Webster, who, singularly enough, 
 never spoke upon any phase of the subject during the 
 lengthy debate. Upon the second proposition, that a 
 uniform system of voting by districts ought to be estab- 
 lished, each State to have as many districts as it had 
 Senators and Representatives, and each district to have 
 one vote, the vote was 90 in its favor to 102 against it. 
 Webster voted for it,* while Everett and Buchanan voted 
 against it. The failure of this advocacy of the district 
 system is due to complex causes. The large States were 
 unwilling to adopt a system that would divide their >-^V 
 strength unless the smaller States would consent to abol- ' ^ 
 ish the provision for the House election. Van Buren, in 
 the Senate, had advocated a compromise of this nature. 
 It was assumed in advance of the campaign of 1824 that 
 the election of the following year would take place in the 
 House. The apprehension that an election in the House 
 would be frequent seems to have been widespread. Sec- 
 tional feeling also played a part in defeating the McDuf^e 
 plan. In the midst of the talk about election by the 
 people, there arose in some quarters criticism of that pro- 
 vision of the Constitution which based apportionment in 
 the South not only upon freemen, but three fifths of all 
 other persons. Much that was distasteful both to the 
 North and South was uttered regarding slavery and the 
 representation which the South derived from its slave 
 population. The rapid increase in slave population was 
 
 ' Webster's silent approval of the district system is much dwelt upon by 
 its eulogists. Webster's approval of the Van Buren bill of 1824, which 
 proposed to confer upon the two Houses concurrently the authority to 
 reject the vote of a State, was often urged in the debates of 1876 as a 
 cogent argument in favor of the power of Congress to count the electoral 
 vote. But, so far as I know, there is no speech of Webster's in the records 
 in support of his opinion. 
 
298 The Electoral System 
 
 sufficiently alarming to the North, in the augmenta- 
 tion of power it gave the slave States in the House of 
 Representatives, and many were reluctant to make a 
 change that might enhance its influence in the choice of 
 Presidents. In 1800, the black population, upon the 
 admission of Polk in the debate of 1826, furnished eight- 
 een Representatives, and in 1820, but a fraction short of 
 twenty Representatives, from the slave States. It was 
 estimated that at the next census the blacks would furnish 
 one third of the representation from those States. In 
 the light of these facts it is not remarkable that Everett, 
 who always professed his readiness to carry out fairly the 
 compromises of the Constitution, declared himself un- 
 willing to go farther and increase the number of these 
 compromises by a constitutional amendment. The ad- 
 vocacy of the district plan by men like McDuffie, from the 
 Southern States, only served to aggravate the fears of the 
 North. The vote against the district system came also 
 from the partisans of the administration. The passions 
 aroused in the different factions in the canvass of 1824 
 had not subsided before this question was projected into 
 the arena of the House. McDuffie, who was criticised 
 for his sweeping attacks upon Adams and Clay, "the 
 President and his prime minister," who were "using 
 every effort to prevent the adoption of this proposition 
 to take the election from the House and give it to the 
 people," rescued his motives from aspersion by declaring 
 that he had introduced his motion in the House more 
 than two years earlier, "at a time when nothing short of 
 the gift of second sight could have foreseen the political 
 combinations and events that have since taken place." 
 The amendment was not defeated on its merits. A num- 
 ber of State Legislatures had declared in favor of it, and 
 Hoffman, in answering his colleague Storrs, truthfully 
 said that the great majority of the people of New York, 
 as their opinion could be gathered by debates, news- 
 
The Appointment of Electors 299 
 
 papers, speeches, and private conversation, demanded a 
 uniform district system. 
 
 In 1824 the electors were chosen by popular vote, by 
 districts and by general ticket, in all the States except- 
 ing Delaware, Georgia, Louisiana, New York, South 
 Carolina, and Vermont, where they were still chosen by 
 the Legislature. On March 13, 1825, the Legislature of 
 New York established the district system, but not until 
 it had first polled the sentiment of the people by formally 
 submitting the question to them. The answer was so 
 unequivocal as to dispel all doubt of the popular desire 
 for an election by districts. The act provided for the 
 appointment of one of the thirty-four presidential electors 
 in each district by the voters, and authorized the electoral 
 college not only to supply vacancies in its body, but also 
 to appoint two additional electors corresponding with the 
 two Senators from the State in the Senate of the United 
 States. This law, upon the recommendation of Van 
 Buren, then governor, was superseded in 1829 by the law 
 establishing the general-ticket system. In 1828, Dela- 
 ware and South CaroUna alone adhered to the legislative 
 system. After 1832 electors were chosen by general 
 ticket in all the States excepting South Carolina, where 
 the Legislature chose them up to and including i860. 
 The legislative mode of choice was adopted by Florida in 
 1868, and by Colorado in 1876, as prescribed by Section 
 19 of the schedule to the constitution of the State, which 
 was admitted into the Union August i, 1876. 
 
 The abandonment of the district system became inevi- 
 table as the few States which had employed it began to 
 realize the disadvantages they suffered in comparison 
 with the States that had adopted the general-ticket sys- 
 tem. Since the vote of the State, when cast in solido, 
 swung the whole of its electoral strength in favor of the 
 candidate of one party or the other, every other State in 
 which that party was ordinarily dominant would naturally 
 
300 The Electoral System 
 
 follow such example and thereby enhance the influence 
 and importance of its leaders in party matters, and add 
 to the prestige of the State itself. States under the con- 
 trol of the opposition could not afford to give their poli- 
 tical adversaries such odds as would result from the 
 division of their electoral vote by the continuance of the 
 district system, while their enemies were casting their 
 electoral votes en bloc. Divide et impera was a maxim 
 of no application to such contests. Hence the rapid 
 adoption of the general-ticket system, which amounts in 
 reality to a poll of States,' and in which the voice of the 
 \/ minority is suppressed. One unhappy consequence is 
 the creation in every State of a class of political leaders, 
 often persons occupying no official place, whose influ- 
 ence in achieving party successes has made them potent 
 in party councils and party appointments. 
 
 It has been argued by eminent statesmen, among 
 whom is to be counted George F. Edmunds, that the 
 district system of voting for electors is against the spirit, 
 if not the letter, of the Constitution, which intended the 
 appointment of electors to be the act of a State, as a 
 political integer, and not of districts or subdivisions of 
 the State. It was upon this assumption that a bill to elect 
 by districts was defeated in the New York Legislature in 
 1799. The highest judicial tribunal of the nation,'' in 
 1892, by unanimous vote, held such a mode of appoint- 
 ment to be entirely in conformity with the organic law. 
 That case reviewed the validity of a statute of Michigan, 
 passed May i, 1891, providing for the election of an elec- 
 tor of President and Vice-President in each congressional 
 district of the State and two electors at large, one to be 
 elected in the eastern district and the other in the west- 
 ern district of the State. The court, in upholding the 
 
 * •' The present mode of choosing the President is, though not generally 
 so called, an election by States." — Morton in Senate, 1873. 
 ^McPherson vs. Blacker, 146 U. S., i. 
 
The Appointment of Electors 301 
 
 constitutionality of a district system, made the following 
 interesting observations : 
 
 " It is insisted that it was not competent for the Legislature 
 to direct this manner of appointment because the State is to 
 appoint as a body politic and corporate, and so must act as a 
 unit, and cannot delegate the authority to subdivisions created 
 for the purpose; and it is argued that the appointment of elec- 
 tors by districts is not an appointment by the State, because 
 all its citizens otherwise qualified are not permitted to vote for 
 all the presidential electors. ... If the Legislature possesses 
 plenary authority to direct the manner of appointment, and 
 might itself exercise the appointing power . . . it is diffi- 
 cult to perceive why, if the Legislature prescribes as a method 
 of appointment choice by vote, it must necessarily be by 
 general ticket and not by districts." 
 
 Although, said the court, the Constitution declares 
 
 ". . . the people of the several States shall choose the mem- 
 bers of Congress (language which induced the State of New 
 York to insert a salvo as to the power to divide into districts 
 in its resolutions of ratification), the State Legislatures, prior 
 to 1842, in prescribing the times, places, and manner of hold- 
 ing elections for Representatives, had usually apportioned the 
 State into districts and assigned to each a Representative; and 
 by Act of Congress of June 25, 1842 (carried forward as 
 § 23 of the Revised Statutes), it was provided that where a 
 State was entitled to more than one Representative the election 
 should be by districts. It has never been doubted that Rep- 
 resentatives in Congress thus chosen represented the entire 
 people of the State acting in their sovereign capacity." 
 
 The court reviewed the history of the proceedings of 
 the convention of 1787: 
 
 ** The journal of the convention discloses that propositions 
 
302 The Electoral System 
 
 that the President should be elected by ' the citizens of the 
 United States,' or by the * people, ' or 'by electors to be 
 chosen by the people of the several States,' instead of by the 
 Congress, were voted down (Jour. Con. 286, 288; i Elliot, 
 Deb. 208, 262), as was the proposition that the President 
 should be * chosen by electors appointed for that purpose by 
 the Legislatures of the States,' though at one time adopted. 
 (Jour. Con. 190; i Elliot, Deb. 208, 211, 217.) And a motion 
 to postpone the consideration of the choice * by the national 
 legislature,' in order to take up a resolution providing for 
 electors to be elected by the qualified voters in districts, was 
 negatived in committee of the whole. (Jour. Con. 92; i 
 Elliot, Deb. 156.) Gerry proposed that the choice should be 
 made by the State executives ; Hamilton, that the election be 
 by electors chosen by electors chosen by the people; James 
 Wilson and Gouverneur Morris were strongly in favor of 
 popular vote; Ellsworth and Luther Martin preferred the 
 choice by electors elected by the Legislatures ; and Roger Sher- 
 man, appointment by Congress. The final result seems to 
 have reconciled contrariety of views by leaving it to the State 
 Legislatures to appoint directly by joint ballot or concurrent 
 separate action, or through popular election by districts or by 
 general ticket, or as otherwise might be directed. . . . 
 The district system was largely considered the most equitable, 
 and Madison wrote that it was that system which was contem- 
 plated by the framers of the Constitution, although it was soon 
 seen that its adoption by some States might place them at a 
 disadvantage by a division of their strength, and that a uni- 
 form rule was preferable." * 
 
 ^ The late President Harrison is to be numbered among the oppo- 
 nents of the district system. In his message to Congress, December, 1891, 
 he advocated an amendment to the Constitution to prevent such districting 
 of a State as had recently occurred in Michigan. The message read : 
 "All the States have, acting freely and separately, determined that the 
 choice of electors by general ticket is the vi^isest and safest method ; and it 
 would seem that there could be no objection to a constitutional amendment 
 making that method permanent." This overlooks the causes virhich pro- 
 duced the general-ticket system, and ignores all its defects. 
 
The Appointment of Electors 303 
 
 TABLE SHOWING METHODS OF APPOINTING ELECTORS IN DIF- 
 FERENT STATES AT DIFFERENT DATES 
 
 State. 
 
 Appointments 
 by Legislature, 
 
 By Districts. 
 
 By General 
 Ticket. 
 
 Delaware 
 
 1788-1828 
 1800 
 
 I 788-1 804 
 1812 
 I788-180O 
 1808-1824 
 1788-1820 
 1800, 1808 
 1816 
 
 I 788-1 864 
 
 1788 
 
 1800 
 
 I792-1824 
 
 1812 
 
 I 792-1 796 
 
 I 792-1 800 
 
 1808, i8t6 
 
 1824 
 
 I 792-1 796 
 
 1824 
 
 1816, 1820 
 
 1788-1796, 1812 
 
 1820 
 
 1796-1832 
 
 I 788-1 796 
 
 1808-1816 
 
 1828 
 
 1792-1808 
 
 1804 
 1812 
 
 1800-1824 
 I 824-1 828 
 
 1824, 1828 
 
 1820, 1824 
 
 1820-1828 
 1824 
 
 1832- 
 
 
 1788-1796 
 I 804-1 8 12 
 1824- 
 1808, 1816- 
 
 New Jersey. , 
 
 
 1804 ; 1828- 
 
 Connecticut 
 
 1824- 
 
 Massachusetts 
 
 1804, 1824- 
 
 Maryland 
 
 1788-1792 ; 
 
 1836- 
 
 1868- 
 
 South Carolina 
 
 New Hampshire 
 
 Virginia 
 
 1792, 1796 
 1804- 
 1800- I 804 
 1824- 
 1832- 
 
 
 North Carolina 
 
 Rhode Island 
 
 i8i6- 
 1800- 
 
 Vermont 
 
 1824- 
 
 Kentucky 
 
 1828-* * 
 
 Tennessee 
 
 1832- 
 
 Ohio 
 
 1804- 
 1828- 
 
 
 Indiana 
 
 1832- 
 1824- 
 1828- 
 
 
 Illinois 
 
 
 1824- 
 1832- 
 
 Maine 
 
 Missouri 
 
 1824- 
 
 
 
 The original States are named in the order in which they ratified the 
 Constitution, the others in the order of their admission to the Union. 
 
 One evil result of the general-ticket system ' is its 
 destruction of all incentive to the development of an 
 
 '"One great objection to the present electoral system Is that it abso- 
 lutely circumscribes the power and the rights of the individual voter. He 
 cannot now vote for the man of his choice for President, but must vote for 
 electors. There may be two sets of electors representing two different 
 parties before the people, but he may not be in favor of either, and would 
 
304 The Electoral System 
 
 opposition party organization in States in which one of 
 the two great parties is constantly predominant. The 
 district system or an apportionment system would prob- 
 ably have led to the formation of an antagonistic party 
 and to active political work in districts which seemed to 
 be auspicious fields of operation. In many of the South- 
 ern States in the decades preceding the Civil War there 
 was no Whig or Republican organization, because such 
 an organization had no chance of success in the State at 
 large. The educational influence of discussion in district 
 centres was altogether sacrificed and a potent factor 
 against the tyranny of a majority party utterly lost. In 
 a government by discussion (to borrow a phrase from the 
 late Walter Bagehot) social and political development is 
 seriously retarded ; the injury which a community thus 
 persistently dominated by one party sustains is almost 
 incalculable. The baneful consequences of the general- 
 ticket system were witnessed in less degree, during the 
 free silver campaigns, in communities where the advo- 
 
 prefer to cast his vote for a third"; yet he has no power to do it. It would 
 be impossible for him alone in the State in which he lives to put candidates 
 for electors in the field who would vote for the man of his choice. That 
 can only be done by an organized party, which may have no considerable 
 vote in the State in which he lives, though it may be strong in other States. 
 As an illustration : In 1856, thousands of men in the Southern States were 
 absolutely deprived of the right of voting for President and Vice-President, 
 because no electoral tickets for Fremont and Dayton had there been put in 
 the field. 
 
 " In effect, the electoral system absolutely deprives the voter of his power 
 to vote for men of his choice for President and Vice-President unless there 
 are enough of his way of thinking in the same State to meet in convention 
 and nominate electors to represent their views. Such a system can scarcely 
 be called free or republican. No system deserves that name which does 
 not enable the individual voter to cast his vote for the men of his choice, 
 whether anybody else in the same State votes for them or not. The elec- 
 toral system makes the convention or caucus indispensable in all cases and 
 everywhere, for the individual voter cannot give effect to his vote, or give 
 to it moral or political significance, unless there are others who will act in 
 concert, that is, in convention, with him in the nomination of candidates 
 for electors." — Morton, from speech in Senate, 1873. 
 
Evils of the General Ticket System 305 
 
 cates of the gold standard, however numerous, had no 
 chance of exerting a direct influence upon the choice of 
 presidential electors, because they were out-voted by the 
 friends of silver. A system of voting that would permit 
 the expression of minority views, and hence give a more 
 faithful picture of opinion through a State, would have 
 more promptly checked unsound tendencies in finance. 
 Government by majority was never intended to nullify 
 minority sentiment ; the general-ticket system not only 
 renders such sentiment inactive, but tends altogether to 
 repress it. 
 
 In States in which opposing party organizations flourish 
 and where each is alternately successful, what have been 
 styled the "close" States, the temptation to fraud re- 
 ceives powerful accession under the general-ticket system. 
 Almost every critic of the electoral system has commented 
 upon this obvious danger. A fraudulent ballot cast at a 
 presidential election in New York, said an able writer,* 
 in 1873, 
 
 "affects thirty-five electors, or nearly one fifth of the whole 
 number requisite to the choice of a President. In Rhode 
 Island such a ballot affects only three electors, or less than 
 one sixtieth of a majority of the whole electoral college. Here 
 is a direct bounty on the concentration of fraudulent efforts of 
 all kinds in the large States, whereby not only a vicious influ- 
 ence of fearful intensity is thrown into the scale of a national 
 election, but all the local elements of corruption, ever suffi- 
 ciently formidable in our most populous States, are powerfully 
 reinforced "; 
 
 whereas "under the district system, on the other hand, a 
 fraud upon the ballot box can affect but one elector, 
 unless two electors at large should be chosen in each 
 State, in which case but three electors at the most could 
 be affected by a given fraud." 
 
 It is hard to conceive of a system more easily adapted 
 
 » Richard H. Dana, Jr., in 117 A^. ^. A". 
 
3o6 The Electoral System 
 
 than the general-ticket system to the successful perpetra- 
 tion of fraud or offering more seductive inducements to 
 its commission. The closer the State, the more bitter is 
 the struggle for party supremacy; the keener the com- 
 petition for success, the more insidious is the allurement 
 to fraud and the easier its accomplishment, because it is 
 necessary to purchase only a few voters in a particular 
 section carefully chosen as the most promising field of 
 nefarious operations. Thus the system framed by the 
 convention of 1787, as now operated under the general- 
 ticket plan, is doubly vulnerable to the attacks of fraud 
 and corruption. Electors may be bribed. Certainly the 
 electoral system offers leonine temptation to bribery, and 
 the general-ticket plan renders defeat of the popular will 
 by the fraudulent purchase of voters in a close State a 
 simple and easy achievement for astute and dishonest 
 politicians. 
 
 The densely populated States, upon the general-ticket 
 system, constantly tend to nullify the vote of the smaller 
 commonwealths. It has several times happened in the 
 history of the nation that the State of New York has been 
 the determining factor in a presidential campaign — the 
 "pivotal" State; in fact, with the exception of the cam- 
 paigns of 1868 and 1876, no election since 1856 has gone 
 in favor of a party that has not carried New York. The 
 tendency which has been so marked for two generations, 
 and is increasingly evident, towards the concentration 
 of people in large municipalities, will make such States 
 even more influential in the future, their big electoral 
 vote more and more decisive, the temptation to fraud 
 more seductive, and the profit from its successful perpe- 
 tration more certain. The smaller States in self-defence 
 should co-operate to bring about the adoption of a 
 juster system. If their influence is to be preserved, 
 their remonstrance against the present method should be 
 emphatic. New York to-day wields thirty-nine electoral 
 
Evils of the General Ticket System 307 
 
 votes, which is the equivalent of thirteen of the small- 
 est States, and if, under the system at present in vogue, 
 a transferred vote of five to six hundred will place it 
 in the Democratic or the Republican column, — and no 
 greater change would have taken the State from Cleve- 
 land and given it to Blaine in 1884, — the incentive to 
 prostitution and abuse of the suffrage could not be ren- 
 dered stronger; and even in an ideal community, where 
 the purity of the ballot-box is untarnished, the vote of the 
 big State, like that of the large stockholder, counts rather 
 in a geometrical than an arithmetical progression. A 
 plurality or majority in one section may, it is true, at 
 times be counteracted by one in another section, and thus 
 the net result be a rude approximation to fairness, taking 
 the country as a. whole ; but this theory of averages may 
 not work constantly, and the steady suppression of 
 minority conviction in a State is an undisputed evil. 
 
 The extent to which, under the general-ticket system, 
 the populous States become decisive factors in a presiden- 
 tial election, and the minority is silenced, may easily be 
 illustrated by examples selected since the rise of the 
 national-convention system. This also coincides with 
 the general adoption of the general-ticket system. In 
 1832 Jackson's popular vote was 687,502, his electoral 
 vote 219 out of a total of 288. Clay's popular vote was 
 530,189, while his electoral vote was only 49. In other 
 words, Jackson had seventy-six per cent, of the electoral 
 vote and only fifty-five per cent, of the total popular 
 vote. Jackson carried New Jersey with its eight electoral 
 votes. While the result would have been unaffected had 
 the State gone to Clay, Jackson's vote was 23,856; Clay's 
 23>393; i^ other words, the eight electoral votes of New 
 Jersey were swung by the narrow margin of 232 voters. 
 
 In 1836 the popular vote for Van Buren was 762,698, 
 his electoral vote 170 (including three from Michigan, 
 counted in the alternative) out of a total of 294. William 
 
3o8 The Electoral System 
 
 Henry Harrison had a popular vote of 549,567, but only 
 73 electoral votes. Van Buren had fifty-seven and seven 
 tenths per cent, of the electoral vote, fifty-two and nine 
 tenths per cent, of the popular vote. • Van Buren carried 
 Connecticut, with its eight electoral votes, by a plurality 
 of 542 out of a total vote of about 38,000. In 1840 
 General Harrison had a popular vote of 1,275,016, with 
 234 electoral votes out of a total of 294; while Van Buren 
 had a popular vote of 1,128,702, and an electoral vote 
 of 60. Thus, while Harrison, taking Birney's vote of 
 7069 into consideration, had only a little over fifty per 
 cent, of the popular vote, he had more than seventy-nine 
 per cent, of the electoral vote. 
 
 In Maine, which had ten electoral votes, Harrison had 
 a popular vote of 46,612, Van Buren of 46,201 ; in Penn- 
 sylvania, which had thirty electoral votes, Harrison had 
 144,021, while Van Buren had 143,672. In Michigan, 
 which had three electoral votes, Harrison had 22,933, 
 Van Buren 21,131. Thus forty-three ballots in the elec- 
 toral college were controlled by less than thirteen hundred 
 votes. Conditions in 1844 were extraordinary, for Birney 
 and the Conscience Whigs defeated Clay. Polk's popu- 
 lar vote was 1,337,243, his electoral vote 170 out of 275 ; 
 Clay's popular vote was 1,299,068, his electoral vote 105. 
 Polk had less than fifty per cent, of the popular vote and 
 about sixty-two per cent, of the electoral vote. Birney 
 polled in the State of New York 15,812 votes, all or 
 nearly all drawn from the ranks of the Whigs. Clay's 
 vote in New York was 232,482, Polk's 237,588. The 
 Conscience Whig defection gave the State to Polk ; with- 
 out it, his electoral vote would have been 134, and 
 Clay's, with it, would have been 141. Birney's vote the 
 country over in 1840 was 7069, in 1844, 62,300,' and, as 
 
 ' Blaine gives Birney's vote in 1844 as 58^879. Authorities differ regard- 
 ing some of the figures, but the differences are too slight to vitiate or even 
 affect my argument. 
 
Evils of the General Ticket System 309 
 
 Blaine says, "was very largely at the expense of the 
 Whig party, and its specific injury to Mr. Clay is almost 
 a matter of demonstration." Had the district or the 
 apportionment system been in vogue in New York, Clay, 
 even with the Birney vote against him, would probably 
 have received a majority of the electoral ballots of the 
 State. 
 
 Taylor's total popular vote throughout the country in 
 1848 was 1,360,099, the vote for Cass was 1,220,544, for 
 Van Buren 291,263. Taylor had less than forty-eight 
 per cent, of the total vote. Taylor had 163 votes in the 
 electoral colleges, Cass 127, the total electoral vote being 
 290, Taylor's percentage of the electoral vote being fifty- 
 six and four tenths per cent. Van Buren had ten per 
 cent, of the popular vote, but not a single electoral vote ; 
 yet three of his supporters were elected to the House of 
 Representatives. 
 
 Pierce received from the people a total of 1,601,474 
 votes, Scott 1,386,580, Hale 156,147; Scott, while re- 
 ceiving only one sixth as many electoral votes as Pierce, 
 received five sixths as many votes at the polls. Adding 
 the vote of Hale, it will be observed that out of a total 
 exceeding three millions, Pierce's absolute majority was 
 but 58,747. Pierce received 254 electoral votes out of a 
 total of 296, Scott having only 42 ; in other words, Pierce 
 had eighty-five per cent, of the electoral vote, but only 
 fifty-one of the popular vote. Although Scott carried 
 only four States, with an aggregate electoral strength of 
 42 votes, his popular vote was only 215,000 behind 
 Pierce. 
 
 In 1856 Buchanan received at the popular election 
 1,838,169, Fremont 1,341,264, and Fillmore 874,534 
 votes. The total vote in the electoral colleges was 296, 
 of which Buchanan received 174, Fremont 114, Fillmore 
 8 ; Buchanan had forty-five per cent, of the popular vote 
 and fifty-nine per cent, of the electoral vote ; and Fill- 
 
3IO The Electoral System 
 
 more, who had twenty-five per cent, of the popular vote, 
 had only three per cent, of the electoral vote. Fourteen 
 of his supporters were elected to Congress, which shows 
 to what extent under the existing system the vote for 
 him was nullified. 
 
 The results in i860 are astonishing. Douglas, the 
 champion of "popular sovereignty," or ** squatter sover- 
 eignty," as it has been indiscriminately termed, carried 
 only two States, yet his popular vote reached the enor- 
 mous figure of 1,376,000, only about 500,000 behind 
 Lincoln, who carried all the Northern States except the 
 two that supported Douglas. Lincoln's popular vote 
 was 1,866,452, that of Douglas was 1,376,957, of Brecken- 
 ridge 845,763, of John Bell 589,581. There were 303 
 votes in the electoral colleges, distributed as follows : To 
 Lincoln, 180; Douglas, 12; Breckenridge, 72; Bell, 39. 
 Douglas, with a popular vote much larger than that of 
 Breckenridge, had only one sixth of the latter's vote in 
 the electoral colleges, and, while he had two and a half 
 times as many votes as Bell, had less than one third of 
 Bell's electoral vote. Lincoln had forty per cent, of the 
 popular vote and fifty-nine per cent, of the electoral vote. 
 While he had only a minority of the popular vote in 
 New Jersey he had four out of its seven electors. 
 
 "In proportion to the popular vote Lincoln should have had 
 121 electors; Douglas, 89; Breckenridge, 55; Bell, 38. If 
 there had been a slight diversion of votes from Mr. Lincoln in 
 certain States, the election would have been sent to the House 
 of Representatives, which body must have been confined in 
 its choice to the three candidates highest in electoral vote, and 
 Douglas would have been excluded, although second highest 
 in popular vote." ^ 
 
 A frightful crisis might have been precipitated if all the 
 four candidates had obtained an equal electoral vote. 
 
 ^ Senator Charles R. Buckalew, of Pa. 124 N. A. R., 163, 164. 
 
Evils of the General Ticket System 311 
 
 The duty of electing would have devolved upon the 
 House, and yet the House could not have proceeded to 
 exercise its constitutional function, unless one of the can- 
 didates had withdrawn from the contest. Such a case 
 was, plainly, never contemplated by the framers of the 
 Constitution. The same utter prostration of government 
 might have occurred had Breckenridge and Bell had an 
 equal number of electoral votes, and both Lincoln and 
 Douglas failed of a majority. There would then have 
 been four candidates morally entitled to be voted for in 
 the House, but that body would have been palsied from 
 lack of constitutional power to vote for more than the 
 three highest on the list. 
 
 In 1864, when the nation was battling for the right to 
 live, Lincoln received 2,216,067 of the suffrages of his 
 fellow-countrymen, while McClellan received 1,808,725. 
 The total electoral vote, including the vote from the un- 
 reconstructed States, was 314, of which Lincoln had 212 
 and McClellan only 21.' Of the popular vote Lincoln 
 had fifty-five per cent., and of the electoral vote cast, 
 ninety-one per cent. In 1868 the popular vote for Grant 
 was 3,012,833, for Seymour 2,703,249; nevertheless, 
 Grant had 214 electoral votes and Seymour only 80. 
 The total was 317, with 23 votes not counted from 
 Southern States. Grant had fifty-two per cent, of the 
 popular vote and seventy-three per cent, of the electoral 
 vote. In 1872 Grant received a popular vote of 3,597,- 
 132, and had 286 electoral votes; Greeley had a popular 
 vote of 2,834,125, but, as his death occurred before the 
 assembling of the electoral colleges, none of the electors 
 voted for him, except three in the Georgia college. 
 Grant's percentage of the popular vote was fifty-five; of 
 the electoral vote eighty-four. 
 
 Senator Morton, in the Senate, on December 11, 1876, 
 
 ' One of Nevada's three electors died before the popular election ; hence 
 the state cast only two electoral votes. 
 
312 The Electoral System 
 
 after presenting a tabulation showing the disparity be- 
 tween the percentage of the popular vote and of the 
 electoral vote for the successful candidate at the elections 
 occurring between 1844 and 1872, read from a compila- 
 tion as follows: 
 
 '* To illustrate the operation of the district system, we will 
 consider the comparative results of the election for President 
 and for members of Congress, in the four States of Pennsyl- 
 vania, Ohio, Indiana, and Illinois, from i860 to 1872. 
 
 " These States voted solidly for Mr. Lincoln in i860, casting 
 seventy-four electoral votes. At the same election they re- 
 turned sixty-six members of Congress, of whom twenty-four 
 were Democrats. 
 
 "In 1864 the same States cast seventy-six electoral votes 
 for Mr. Lincoln again, and elected the same year sixty-eight 
 members of Congress, of whom sixteen were Democrats. 
 
 " In 1868 the same States threw seventy-six electoral votes 
 solidly for General Grant and elected sixty-eight members of 
 Congress, of whom twenty-two were Democrats. 
 
 "In 1872 the same States voted solidly, giving eighty-five 
 electoral votes to General Grant, and elected seventy-seven 
 members of Congress, of whom twenty-five were Democrats. 
 
 " In these four States the Democratic strength, as compared 
 with the Republican, has been about nine to ten, but under 
 the operation of the general- ticket system they have been 
 wholly unrepresented in the electoral colleges; but in the 
 House of Representatives under the district system, they have 
 had an average of nearly one third of the members. 
 
 " Take the State of New York alone for the same period. 
 In i860 New York cast her thirty-five electoral votes solidly 
 for Mr. Lincoln. At the same time she elected thirty-three 
 members of Congress, of whom nine were Democrats. 
 
 " In 1864 she again cast her thirty-three electoral votes 
 solidly for Mr. Lincoln, and at the same time elected thirty 
 one members of Congress, of whom eleven were Democrats. 
 In 1868 she cast her thirty-three electoral votes solidly for Mr. 
 Seymour. The State was carried for Mr. Seymour by his 
 
Evils of the General Ticket System 313 
 
 overwhelming majority in the city of New York, about the 
 character of which grave charges were made, but of which the 
 committee expresses no opinion; but the rest of the State, un- 
 affected in their districts by this large majority in the city, re- 
 turned eighteen out of the thirty-one members of Congress 
 who were opposed to Mr. Seymour, thus showing conclusively 
 how the voice of the people of New York outside of the city 
 had been stifled in the presidential election by the city ma- 
 jority, operating through the general-ticket system. In 1872 
 New York cast her thirty-five electoral votes solidly for Gen- 
 eral Grant, at the same time electing thirty-three members of 
 Congress, of whom nine were Democrats." * 
 
 The disputed election of 1876 shows some interesting 
 results. The popular vote for Hayes was smaller than 
 for Tilden, whether the Republican or the Democratic 
 count be accepted. The total Republican count was as 
 follows: Tilden, 4,285,992; Hayes, 4,033,768; Peter 
 Cooper (Greenback), 81,737; Green Clay Smith (Prohibi- 
 tionist), 9522. The Democratic count gave Tilden 
 4,300,590; Hayes 4,036,298. The Republican count in 
 Florida gave Tilden 22,927, Hayes 23,849; the Demo- 
 cratic count showed Tilden 24,434, Hayes 24,340. It is 
 clear from either canvass that the State's four electoral 
 votes were controlled by a very few voters. In Louisiana 
 the differences between the Hayes and the Tilden votes 
 were much larger, whichever figures be taken, Democratic 
 or Republican. In Oregon the vote for the Hayes electors 
 averaged 15,206, for the Tilden electors 14,149, and the 
 probability would seem to be that had the election taken 
 place in districts, Tilden would have had at least one 
 district. In South Carolina the Hayes vote was 91,870, 
 the Tilden vote 90,896, or a difference of 974, showing 
 that a change of 488 votes would have given the State 
 
 ' This quotation also appears in the last article written by Morton on the 
 electoral system, which was published in the North American Review, 
 July, 1877. 
 
3H The Electoral System 
 
 undeniably to Tilden. California's six electoral votes 
 were carried by a plurality for Hayes of 1854 votes out 
 of a total of 154,834. Connecticut's six votes went to 
 Tilden, although the total vote was close, Tilden having 
 61,934 and Hayes 59,034. 
 
 In 1880 Garfield's popular vote was 4,454,416, Han- 
 cock's 4,444,952. Garfield had about forty-nine per 
 cent, of the total popular vote, but fifty-eight per cent, 
 of the electoral vote, having 214 out of a total of 369 in 
 the electoral colleges. Both the leading candidates ran 
 remarkably close in California, Garfield having 80,348 
 and Hancock 80,426, and in Oregon, where Garfield had 
 20,619 and Hancock 19,948. Garfield's vote in New 
 York State was 555,544, Hancock's 534,511. While 
 Garfield carried the State by over 21,000 plurality, the 
 whole electoral contest hinged upon New York, for the 
 votes of the State, if subtracted from the Garfield list 
 and added to the Hancock list, would have elected the 
 latter. Garfield's plurality represented less than two per 
 cent, of the State's total vote. The vote in California 
 was exceedingly close, Hancock leading Garfield by only 
 78 votes in the entire State. But in the congressional 
 election of the same year the Republicans and the Demo- 
 crats each secured two Congressmen in California, and in 
 New York, where Garfield exceeded Hancock by about 
 21,000 votes, the Democrats that year obtained fourteen 
 Congressmen and the Republicans nineteen. 
 
 Another forcible illustration, not only of the weight of 
 the vote of the State of New York as an electoral fact, 
 but of the injustice of the general-ticket system, is 
 furnished by the election of 1884.' The popular vote for 
 Cleveland was 4,874,986, for Blaine 4,851,981; yet, de- 
 spite the closeness of the popular figures, Cleveland had 
 219 electoral votes and Blaine 182, out of a total of 401. 
 
 1 It must be understopd that this is a criticism of electoral methods, and 
 not an expression of regret at the outcome of the election. 
 
Evils of the General Ticket System 3^5 
 
 The ratio of Cleveland's popular vote is less than fifty 
 per cent. ; of his electoral vote fifty-five per cent. New- 
 York State gave Cleveland 563,154, and Blaine 562,005. 
 The difference in their votes was 1149. Had 575 citizens 
 who voted for the Cleveland electors voted instead for 
 the Blaine electors, the whole electoral weight of New 
 York (thirty-six votes) would have oscillated to the Re- 
 publican side. Each one of the electoral votes of the 
 State was controlled by sixteen voters ! 
 
 In 1888 a presidential candidate having a minority 
 vote was again successful. Of the popular vote Harrison 
 received 5,439,853, Cleveland 5,540,329; yet Harrison 
 had 233 votes in the electoral college and Cleveland only 
 168, out of a total of 401. Thus Harrison had about 
 forty-eight per cent, of the aggregate popular vote, but 
 fifty-eight per cent, of the electoral vote. The vote in 
 Indiana was close, but not decisive. Harrison had 
 263,361, Cleveland 261,013. The Republican vote for 
 Congressmen in that State that year was 265,365, the 
 Democratic 259,987, — a difference of 5378 in the Repub- 
 lican favor. Upon a vote closely approximating that 
 cast by the same party for presidential electors, the 
 Democrats elected ten Congressmen and the Republicans 
 three. In 1892, Cleveland and Harrison were again the 
 candidates of the two great parties, Cleveland receiving 
 a popular vote of 5,556,543 and Harrison 5,175,582, 
 Weaver, the candidate of the Populists, receiving 1,040,- 
 886. Cleveland's percentage of the vote polled by all 
 the candidates is forty-eight. In the electoral college 
 there were 417 votes, 277 for Cleveland, 145 for Harri- 
 son, Weaver 22, Cleveland's percentage of these being 
 sixty-six. In 1896, the year of the free-silver campaign, 
 McKinley's popular vote was 7,111,607, Bryan's 6,509,- 
 052. McKinley's plurality over Bryan was 602,555, and 
 his majority over all the candidates opposed to him was 
 106,874. In the electoral colleges, out of a total of 447, 
 
3i6 The Electoral System 
 
 McKinley received 271, Bryan 176. Thus McKinley had 
 nearly sixty-one per cent, of the electoral vote, and a 
 little over fifty per cent, of the popular vote. The free- 
 silver episode seriously affected the vote of California. 
 McKinley received 146,688, Bryan 144,766; yet with this 
 strikingly close vote eight electoral ballots were cast for 
 McKinley and one for Bryan ! In Kentucky, McKinley's 
 vote also slightly preponderated over Bryan's, McKinley 
 receiving 218,171, Bryan 217,890; yet McKinley had 
 twelve of the electoral votes of the State and Bryan one ! 
 It is hardly imaginable that with a similar division of the 
 popular vote in California and Kentucky, under the dis- 
 trict system or the apportionment system, the electoral 
 votes would not have been very differently apportioned. 
 In 1900 McKinley's popular vote was 7,206,677, Bryan's 
 6,374,397, McKinley again having a majority over all his 
 opponents, for the total vote was 13,970,240. The num- 
 ber of votes in the electoral college was the same as in 
 1896, but of these McKinley, in 1900, had 292, Bryan 
 155. McKinley, with a little over fifty per cent, of the 
 popular vote, had over sixty-five per cent, of the electoral 
 vote.' The only comparatively close vote was in Idaho, 
 Kentucky, and Utah ; in Idaho the McKinley vote was 
 27,198, the Bryan vote 29,646, giving the Democratic 
 candidate the three electoral votes of the State. In Ken- 
 tucky, where party strength had been remarkably equal 
 in 1896, the Republican vote was 227,128, the Democratic 
 235,103, showing a slight shifting of sentiment in favor 
 of Democratic doctrines since 1896, but all of Ken- 
 tucky's thirteen electoral votes being polled in the 
 
 ^ At the election of 1900, a recent writer says, " in Boston about 6300 
 voters voted for one presidential elector, because they did not understand 
 how to manipulate the ballot. ... In New York city, 1088 citizens 
 lost their vote on presidential electors by failing to mark their ballots cor- 
 rectly."—" Prest. Votes— A Study of," 16 Pol. Sci. Q., 63. 
 
 Under the general-ticket system such errors might decide the vote of a 
 State, and determine the result of an election. 
 
Evils of the General Ticket System Z17 
 
 Democratic column. In Utah the Republican plurality 
 was 2,133, the McKinley vote being 47»i39» the Bryan 
 vote 45,006. 
 
 In 1904 the popular vote reached the enormous total 
 of 13,528,979, the total of the vote for President Roose- 
 velt being 7,624,489, for Parker 5,082,754. President 
 Roosevelt's wonderful popularity is shown in his great 
 plurality over Judge Parker of 2,541,635. His majority 
 over all his opponents was 1,729,809. His percentage of 
 the total popular vote was fifty -six ; of the electoral vote 
 seventy. The only State where the vote was remarkably 
 close was Maryland, where Parker had 109,446, Roose- 
 velt 109,497. Twenty-six popular votes would have 
 metamorphosed the electoral vote of that State, but the 
 change would not have affected the general result. Al- 
 though such an extraordinary popular tribute to and 
 expression of confidence in a presidential candidate is 
 unparalleled in our history, excepting in Washington's 
 case, the electoral vote so far outruns the popular as to 
 confirm the conclusions herein reached. Had the elec- 
 toral corresponded with the popular vote, Roosevelt's 
 vote in the electoral colleges would have been 268 instead 
 of 336.' 
 
 John Quincy Adams, the presidential candidate elected 
 in the House of Representatives in 1825, was a minority 
 candidate ; a fact that gave rise to numerous efforts, both 
 on the part of his successor in that office and of Benton, 
 Gilmer, and others, to bring about an amendment of the 
 Federal Constitution providing for the election in districts 
 and abolishing the alternative election in the House of 
 
 ' Roosevelt's astonishing success is tempered by the fact that, while he 
 received about 418,000 more votes than were cast for McKinley in 1900, 
 there was an enormous loss in the Democratic vote, only explicable upon 
 the theory that numerous Democrats failed to exercise the electoral fran- 
 chise. The total vote of the country was 442,000 less in 1904 than in 1900. 
 The percentage of voters to population, which was i to 5 in 1896, fell to i 
 to 5^ in 1900, and then dropped to i to 6^ in 1 904. 
 
3i8 The Electoral System 
 
 Representatives. Since that day there have been seven 
 Presidents elected by a minority of the whole people, — 
 Polk, Taylor, Buchanan, Lincoln, Hayes, Garfield, and 
 Benjamin Harrison. Polk's vote was 24,000 less than 
 that of his adversaries combined. Owing to the heavy 
 vote polled by Van Buren, the candidate of the Free 
 Soilers in 1848, Taylor had 15 1,000 votes less than all the 
 other candidates. Buchanan, in 1856, fell short of all his 
 opponents by 377,000. Lincoln's vote in i860 was 354,- 
 000 less than the combined vote of Breckenridge, Douglas, 
 and Bell. Hayes was in a popular minority, in 1876, of 
 nearly 250,000, Garfield in like minority of 308,000 in 
 1880, and Harrison, in 1888, fell short of his opponents 
 by nearly 500,000. A minority President is as constitu- 
 tionally President as an executive receiving a majority of 
 the popular vote. The country has long been accus- 
 tomed in State and local elections to a choice of officials 
 by a plurality vote. But there was an adumbration of 
 truth in the criticisms of Benton, Jackson, and Dicker- 
 son upon the artificial electoral system under which 
 Presidents having a majority of the electoral vote but a 
 minority of the popular vote were chosen. To a minor- 
 ity President selected upon the apportionment plan there 
 can, I think, be no valid objection. 
 
 Three times has a candidate having a smaller popular 
 vote than his leading rival been successful in attaining 
 the presidency. John Quincy Adams was such a minor- 
 ity candidate in 1824, and Hayes was such in 1876. In 
 1888 Benjamin Harrison carried twenty States and had 
 233 electoral votes, although Cleveland had the votes of 
 100,000 more of his fellow-citizens than had Harrison. 
 
 One of the most anomalous cases is the vote for Doug- 
 las in i860. Douglas carried only New Jersey and Mis- 
 souri, yet his vote was over 500,000 more than that of 
 Breckenridge, who carried the solid South, and was 
 hardly 500,000 less than Lincoln's, who carried seventeen 
 
Evils of the General Ticket System 319 
 
 States, with i8o electoral votes. Evidently the Douglas 
 leaven had permeated the entire North. Bell won in the 
 three border States, Virginia, Kentucky, and Tennessee. 
 The Lincoln-Douglas vote divided the North, but had 
 little or no significance in the South. Viewed as an ex- 
 pression of the conflict of Northern sentiment as to the 
 proper method of dealing with the question of slavery 
 extension it shows that, among 3,200,000 Northern 
 voters, the division of opinion was in the proportion of 
 about fl^ against extension into the new Territories, to 
 J^ in favor of permitting the Territories to decide the 
 question for themselves when they should become States. 
 
 The policy of Lincoln and the war Congresses is com- 
 monly supposed to have been triumphantly vindicated in 
 1864, for Lincoln had 212 electoral votes, from twenty- 
 three States, while McClellan got only 21 electoral votes, 
 from three States. The popular vote for Lincoln in 
 1864 was 2,216,067, and the vote for McClellan, upon a 
 platform which declared the war a failure, was 1,808,725, 
 a difference of 408,342 in a total vote of a little over 
 4,000,000. Even in the midst of a civil war for the 
 perpetuation of the Union, if the vote be an index of 
 convictions, Union sentiment was only slightly prepon- 
 derant, for about forty-five per cent, of Northern voters 
 seem to have been ready to agree to a permanent separa- 
 tion of the States. 
 
 In 1848 Taylor and Cass each carried the same number 
 of States, but, as pointed out above, New York was 
 given to Taylor by Van Buren's presence in the field. 
 Once since then have the States been evenly divided be- 
 tween the candidates of the two great parties. This was 
 in 1880, when Garfield and Hancock each got nineteen 
 States; but Garfield's nineteen carried much greater 
 weight in the electoral college. Had Hancock succeeded 
 in wresting New York from the Garfield column he would 
 have become Hayes's successor in the presidential office. 
 
320 The Electoral System 
 
 In the election of 1880 the popular vote for the two can- 
 didates most nearly approximated equality. 
 
 Third tickets have never played much of a role in 
 politics except during the struggles over slavery exten- 
 sion. The vote for Birney in 1844 defeated Clay, as 
 Seward argued to Whig audiences that it would surely 
 do. Seward called third-party voting "guerilla war- 
 fare," and such it has usually proved, but it was most 
 effective "guerilla warfare" in 1844. The vote for Fill- 
 more in 1856 seemed to augur the formation of a new 
 party. The American party symbolized an attempt to 
 construct an organization which should ignore the slavery 
 question, — the burning question of the day, — and it met 
 the fate of all inopportune compromises. It was not 
 possible to ignore this question or to build a party upon 
 the narrow creed of excluding foreigners from office. In 
 the State elections of 1857 the party suffered a complete 
 rout, great numbers of its members going over to the 
 Republicans, and all that was vital of it was soon con- 
 fined to the border States, where obviously the disposi- 
 tion to silence regarding slavery was most marked. The 
 Constitutional Union party of i860 was its legitimate suc- 
 cessor, but with the issues of the Civil War the extinction 
 of the latter party was rapid and entire. 
 
 After the Civil War and the settlement of the slavery 
 question, no third organization polled any substantial 
 vote until 1892, when the People's party, out of a total 
 vote of 12,154,517, polled 1,122,045, or nearly ten per 
 cent. As a national organization, the Prohibitionists 
 might almost as well disband, for their vote is too slight 
 to warrant the belief that their creed will ever figure in 
 national politics. The vote of the Socialistic party in 
 1904, which is much smaller than the Populistic vote of 
 1892, and represents an even smaller percentage of the 
 total vote, indicates no probable ascendency of its prin- 
 ciples, unless that party eventually fuses with one or the 
 
Evils of the General Ticket System 321 
 
 other of the two leading organizations. The most im- 
 pressive fact is the numerical resemblance between the 
 votes of the two great parties. The natural effects of this 
 close approximation are not fully felt, because under the 
 general-ticket system the electoral result is widely dif- 
 ferent. Before the projection of the slavery question into 
 the arena of national politics — when parties were forming 
 upon the issue of arresting its extension into new Ter- 
 ritories — the divergence between the total vote for each 
 of the leading candidates was slight, denoting how evenly 
 party lines may be drawn. During the Civil War and the 
 reconstruction period there was a marked increase in the 
 Republican majority, owing to the intensity of political 
 excitement, but this increase would have disappeared if a 
 vote had been given to the Southern States, which, upon 
 one theory, were in the Union all the while they were 
 battling to destroy it. With the restoration of these 
 States to their old places the same close approximation of 
 rival votes has reasserted itself. The only extraordinary 
 departure from the normal is the vote of 1904, due in 
 great degree to the ascendency which the President's 
 personality has gained over the popular mind. 
 
 One inference from these election figures which sharply 
 obtrudes itself is that the two great political organiza- 
 tions have a powerful hold upon the convictions of our 
 fellow-citizens, and that those who hope to bring about 
 a new alignment must reckon with agencies to compare in 
 potency only with the forces of nature. The lines of 
 cleavage have been established for more than a century. 
 Crystallization has taken place about the two opposite 
 poles of strict construction and liberal construction of the 
 Constitution, and nothing less than a political convulsion 
 able to shake the whole fabric to its centre would release 
 the atoms from the control by which party traditions and 
 associations hold them. The two chief party organiza- 
 tions have somehow shot their roots down into the very 
 
322 The Electoral System 
 
 hearts of the citizens of this country. They are not 
 parasitic, and it is futile to think of seriously changing 
 these basic adjustments, without the lapse of a great 
 period of time, except through some political cataclysm. 
 The outlook in the near future for some third-party 
 organization which shall displace one of the two great 
 parties of the present day is unpromising indeed. In 
 politics men are as conservative as in religion, perhaps 
 more so. By education, traditions, associations, they 
 are so inseparably wedded to party, that not even when 
 the nation is in an agony for its existence will they, in 
 any great degree, ignore party attachments. But the 
 salvation of the country lies in this conservatism. If 
 great masses of voters could suddenly forget party affilia- 
 tions, be detached from old connections and become the 
 sport of all sorts of political forces, — demagogic, social- 
 istic, aristocratic, or other, — the outlook for free govern- 
 ment would be sombre indeed. 
 
 So great is the strength of party attachment, the roots 
 of party sentiment run so deep, that it would be foolish 
 to propose any amendment that should fail to take ac- 
 count of them. Government by discussion is best and 
 most efficiently conducted along party lines, whether 
 parties should be permanent or only temporary, as M. 
 Ostrogorski believes. Party government is an indispen- 
 sable factor of our institutional political progress. One 
 cardinal fault in propositions to amend the electoral sys- 
 tem is in the defective philosophy that has sought to 
 abolish parties. The Constitution need not in terms 
 recognize them any more than it recognizes their conven- 
 tions or their machinery, but no amendment can ever be 
 passed which might forbid or even hamper their activity 
 or impede the natural institutional development of the 
 .American people. 
 
 This study of the methods that have been employed 
 hy the State Legislatures in the appointment of electors 
 
Evils of the General Ticket System 323 
 
 shows the eminent desirability of a uniform system. The 
 evils of the general-ticket system become more and more 
 potent and alarming. Although they were graphically 
 depicted in 1826, in the report of Benton's committee to 
 the Senate and of McDuffie's committee to the House, it 
 was not possible then to appreciate the mighty force 
 wielded by a great State in crushing the opposition of a 
 dozen smaller commonwealths. Dickerson, of New Jer- 
 sey, in 1824, thought it a dangerous portent that in an 
 election by electors six great States might control the 
 election and completely nullify the power or influence of 
 eighteen others; to-day one great State exercises far 
 more influence, for its decision may involve the destinies 
 of all forty-five. The general-ticket system is at present 
 universal, but the control over the method of appoint- 
 ment which the present Constitution gives to the States 
 may result in future diversity. It cannot be foreseen 
 what powerful impulsions may hereafter arise to cause 
 some State Legislature to disfranchise the people and 
 revest itself with the power of appointment or confer it 
 upon some small coterie, "the directors of a bank," or 
 some other board or body which shall thus speak the 
 voice of the State. Uniformity can be permanently as- 
 sured only by an amendment to the national Constitu- 
 tion. A constitutional provision fixing territorial units 
 for electoral votes or apportioning the electoral vote of a 
 State in the ratio of its popular vote among the different 
 candidates would have prevented many of the numerous 
 factional and party struggles so common in earlier history, 
 the aim of which was so to control electors by skilfully 
 timed changes in the mode of appointment as to subserve 
 the interests of individuals and organizations. Time has 
 also shown the force of some of the objections urged 
 against the district system. The device of the "gerry- 
 mander," as Senator Edmunds, and only a few years 
 ago, said, is being more and more employed, both in 
 
324 
 
 The Electoral System 
 
 respect of congressional representation and in the election 
 of State Legislatures/ While the district system, prop- 
 erly safeguarded, would insure minorities some degree 
 of representation, lessen fraudulent voting, and aid in 
 awakening opposing parties within a commonwealth, no 
 system yet suggested would achieve these ends so com- 
 pletely as would the apportionment system. 
 
 ' " Perils of our National Elections," 12 Forum, 691. The article gives 
 a picture of the redistricting of Alabama, February 13, 1891. 
 
CHAPTER XII 
 
 AMENDMENTS OFFERED IN CONGRESS RELATIVE TO THE 
 ELECTORAL SYSTEM 
 
 THE first twelve amendments to the Federal Constitu- 
 tion were added within fifteen years after it went 
 into operation. No changes have since been made and 
 no additions effected excepting those which were the 
 outcome of the Civil War. The demand for amendment 
 was strong in the first quarter of the last century, but 
 either the conservative spirit was too potent or there was 
 a lack of agreement as to the form which the change 
 should assume. No less than one hundred and fifteen 
 amendments, according to McMaster, were proposed in 
 either House of Congress in the decade between i8io 
 and 1820. The ruling ideas underlying these amend- 
 ments, says that historian, included the choice of Repre- 
 sentatives and presidential electors in districts, shorter 
 terms for Senators, the appropriation of public moneys 
 for the building of roads and canals, the bestowal upon 
 Congress and the States of concurrent powers to train the 
 militia, the withdrawal of the President's right of veto — 
 many of these propositions, as he says, representing but 
 the passing notions of the hour. The length of the term 
 of the executive, the manner of choosing him, his eligi- 
 bility to frequent re-election, were, says the same writer, 
 the causes of seventy-five propositions to amend the Con- 
 stitution between 1820 and 1830. "A single term, a 
 direct popular vote, and the exclusion of members of 
 Congress from offices within the gift of the President 
 
 325 
 
326 The Electoral System 
 
 were the popular political ideas." Allusion has already- 
 been made to the amendment offered by Pickens, of North 
 Carolina, in 1813 and in 18 16. Benton labored intermit- 
 tently for twenty years to abolish the electoral system 
 and to secure a choice of President and Vice-President in 
 congressional districts. During the years immediately- 
 prior to 1824 many of the States by legislative resolution 
 expressed their disapproval of the existing method of 
 electing the President and Vice-President. Inasmuch as 
 political conditions indicated that there would be several 
 presidential candidates, no one of whom might obtain a 
 majority of the electoral vote, and that the election 
 might therefore devolve upon the House of Repre- 
 sentatives, a number of amendments were proposed in 
 the Senate and the House in 1823, but none received 
 the constitutional vote requisite for its submission to the 
 Legislatures of the various States. The authors of these 
 amendments were men enjoying a high reputation as 
 statesmen and deeply impressed with the evils of the 
 existing method and the importance of substituting a 
 better system. 
 
 Benton's first effort was made December 11, 1823, when 
 he introduced in the Senate a resolution for an amend- 
 ment abolishing the electoral office and providing for a 
 direct vote by the people. His plan contemplated that 
 each State should be divided into electoral districts, the 
 voters to vote ' * in their own proper persons' ' for President 
 and Vice-President; the person receiving the greatest 
 number of votes for President or Vice-President for any 
 district was to count one vote for such ofifice respectively ; 
 the returning ofHcers were to decide in case of a tie in any 
 district, and if no candidate was found to have a majority 
 of all the electoral votes, the House of Representatives 
 was to choose the President and the Senate the Vice- 
 President. In his Thirty Years' View he quotes freely 
 from a speech delivered by himself in the Senate on Feb- 
 
Amendments Offered in Congress 327 
 
 ruary 3, 1824, in support of his proposition. He advo- 
 cated the establishment of a uniform system throughout 
 all the States. The district system would give to every 
 portion of the Union its due share in the choice of the 
 chief magistrate; the people of each district would be 
 governed by its own majority, and not by a majority 
 existing in some other part of the State ; it would intro- 
 duce a plan agreeable to the interests of the different 
 sections of a commonwealth in which ideas might prevail 
 different from those predominant in other sections, and 
 a plan agreeable to the intention of the Constitution, 
 which was "to give to each mass of persons entitled to 
 one elector the power of giving an electoral vote to any 
 candidate they preferred." He explained how both the 
 general-ticket system and a legislative ballot violated the 
 rights of minorities, because "a majority of one in either 
 case carries the vote of the whole State." Objection to 
 a direct vote of the people had a weight in 1787 to which 
 it was not entitled in 1824. The danger of tumults and 
 violence, which so alarmed the fathers, was purely fanci- 
 ful. Intermediate electors were the favorite institution 
 of aristocratic republics and elective monarchies, whereas 
 "a direct vote by the people is the peculiar and favorite 
 institution of democratic republics." Time and experi- 
 ence, the only infallible tests of good or bad institutions, 
 had, he declared, shown that 
 
 " the continuance of the electoral system will be both useless 
 and dangerous to the liberties of the people and that * the only 
 effectual mode of preserving our Government from the corrup- 
 tions which have undermined the liberty of so many nations is 
 to confide the election of our chief magistrate to those who 
 are farthest removed from the influence of his patronage,' * 
 that is to say, to the whole body of American citizens." 
 
 ' Report of a committee of the House of Representatives upon Mr. Mc- 
 Duffie's proposition. 
 
328 The Electoral System 
 
 On December i6, 1823, Mahlon Dickerson, of New- 
 Jersey, and on December 29th of the same year Martin 
 Van Buren, of New York, introduced separate amend- 
 ments in the Senate, each of which required that electors 
 should be chosen in districts. Dickerson proposed in the 
 case of a tie vote to leave the choice of President to the 
 two Houses in joint session, thus reviving an idea which 
 had found supporters since it was first broached by 
 Nicholas and Gallatin in 1800. The Van Buren amend- 
 ment proposed, in the first instance, that if there were no 
 majority choice by the electors, instead of immediately 
 referring the election to the House the electors should at 
 once be reconvened by executive proclamation to choose 
 between the candidates having an equal number of votes, 
 and; if they failed to choose, the final choice in case of 
 another tie was to be made, as at present, by the House 
 of Representatives. 
 
 On December 22, 1823, almost concurrently with the 
 presentation of these amendments to the Senate, George 
 McDuffie, of South Carolina, chairman of a select com- 
 mittee on the subject, proposed an amendment in the 
 House of Representatives providing for the choice of 
 electors in districts to be fixed by the State Legislatures 
 or, in case of their failure to act, by Congress. His plan 
 required the president of the Senate by proclamation to 
 reconvene electors to make choice between the leading 
 candidates in case of a tie, but if this should not result 
 in an election the two Houses of Congress, voting indi- 
 vidually and not as States, were to choose the President. 
 If no choice was made on the first ballot the lowest can- 
 didate on the list was to be dropped at each successive 
 ballot until only two remained. If finally there were a 
 tie, the candidate having the highest vote at the first 
 meeting of the electors, or if there were none such, then 
 at the second meeting of electors, was to be chosen Presi- 
 dent. If the reconvened electors failed to choose, the 
 
Amendments Offered in Congress 329 
 
 two Houses were to continue balloting until a President 
 should be chosen. The Vice-President was to be chosen 
 by the same means by the Senate in case of a tie. Mc- 
 Duffie's plan provided for opening and counting the votes 
 as at present. It was debated but never acted upon. 
 McDuffie, as has been told, in December, 1825, offered 
 for consideration two resolutions, which were referred to 
 a committee of the whole on the state of the Union. 
 These resolutions were that, for the purpose of electing 
 the President and Vice-President, the Constitution should 
 be so amended that a uniform system of voting by dis- 
 tricts should be established in all the States ; and that a 
 further amendment should be made to prevent the elec- 
 tion of these officers from devolving upon the respective 
 Houses of Congress. The fate of these resolutions has 
 already been recounted. 
 
 The amendments proposed in the winter of 1823-24 
 were not of fortuitous origin, but sprang from a sentiment 
 that the constitutional method would not work satisfac- 
 torily in the election of 1824. As early as February 14th 
 of that year a caucus assembled in the chamber of the 
 old House of Representatives and nominated William H. 
 Crawford to the office of President and Albert Gallatin 
 to that of Vice-President. In the preceding summer 
 George Hay had submitted to Madison, the veteran 
 member of the convention of 1787, a form of amendment 
 of which some account may be gleaned from Madison's 
 reply to that gentleman August 23, 1823. To those 
 whose veneration for the Constitution is almost fetichis- 
 tic, the opening sentences of Madison's letter may be 
 commended as convincing proof that the convention in 
 its provisions touching the electoral system was not 
 ** inspired." Madison wrote : 
 
 "The difficulty of finding an unexceptionable process for 
 appointing the executive organ of a government such as that of 
 
330 The Electoral System 
 
 the United States was deeply felt by the convention; and as 
 the final arrangement of it took place in the latter stage of the 
 session, it was not exempt from a degree of the hurrying influ- 
 ence produced by fatigue and impatience in all such bodies, 
 though the degree was much less than usually prevails in 
 them." 
 
 Of the plan submitted to him by Hay, Madison said : 
 
 ** But with all possible abatements, the present rule of vot- 
 ing for President by the House of Representatives is so great 
 a departure from the republican principle of numerical 
 equality, and even from the Federal rule, which qualifies the 
 numerical by a State equality, and is so pregnant, also, with a 
 mischievous tendency in practice, that an amendment to the 
 Constitution on this point is justly called for by all its con- 
 siderate and best friends. 
 
 ** I agree entirely with you in thinking that the election of 
 presidential electors by districts is an amendment very proper 
 to be brought forward at the same time with that relating to 
 the eventual choice of President by the House of Representa- 
 tives. The district mode was mostly, if not exclusively, in 
 view when the Constitution was framed and adopted; and was 
 exchanged for the general ticket and the legislative election as 
 the only expedient for baffling the policy of the States which 
 had set the example. A constitutional establishment of that 
 mode will doubtless aid in reconciling the smaller States to the 
 other change, which they well regard as a concession on their 
 part. And it may not be without a value in another impor- 
 tant respect. The States, when voting for President by gen- 
 eral ticket, or by their Legislatures, are a string of beads; when 
 they make their elections by districts, some of these differmg 
 in sentiment from others, and sympathizing with that of dis- 
 tricts in other States, they are so knit together as to break the 
 force of those geographical and other noxious parties which 
 might render the repulsive too strong for the cohesive tenden- 
 cies within the political system. 
 
 '* It may be worthy of consideration, whether, in requiring 
 
Amendments Offered in Congress 331 
 
 elections by districts, a discretion might not be conveniently 
 left with the States to allot two members to a single district. 
 It would manifestly be an important proviso that no new ar- 
 rangement of districts should be made witnin a certain period 
 previous to an ensuing election of President. 
 
 ** Of the different remedies you propose for the failure of 
 a majority of electoral votes for any one candidate, I like best 
 that which refers the final choice to a joint vote of the two 
 Houses of Congress, restricted to the two highest names on 
 the electoral lists." 
 
 Madison's letter then proceeded to outline his own 
 ideas : 
 
 "Having thus made the remarks to which your communica- 
 tion led, with a frankness which, I am sure, you will not dis- 
 approve, whatever errors you may find in them, I will sketch 
 for your consideration a substitute which has occurred to 
 myself for the faulty part of the Constitution in question: 
 
 " ' The electors to be chosen in districts, not more than two 
 in any one district, and the arrangement of the districts not 
 
 to be alterable within the period of previous to the 
 
 election of President. Each elector to give two votes, one 
 naming his first choice, the other his second choice. If there 
 be a majority of all the votes on the first list for the same per- 
 son, he of course to be President; if not, and there be a ma- 
 jority (which may well happen) on the other list for the same 
 person, he then to be the final choice ; if there be no such ma- 
 jority on either list, then a choice to be made by joint ballot 
 of the two Houses of Congress from the two names having the 
 greatest number of votes on the two lists taken together. ' Such 
 a process would avoid the inconvenience of a second resort to 
 the electors, and furnish a double chance of avoiding an 
 eventual resort to Congress. The same process might be 
 observed in electing the Vice-President." 
 
 These quotations plainly reveal Madison's dissatisfaction 
 with the method prescribed by the Constitution for an 
 
332 The Electoral System 
 
 election by the House of Representatives, his decided 
 preference for the district system, and his conviction that 
 its employment had been commanded by the spirit, 
 though not the letter, of the Constitution. 
 
 In a letter written to McDuffie on January 3, 1824, 
 while the McDuffie amendment was before the House, 
 Madison reiterated the views set forth in his letter to 
 Hay; and a few days later, in a note to Jefferson, he 
 said: 
 
 ** If electoral districts and an eventual decision by joint 
 ballot of both Houses could be estabHshed, it would, I think, 
 be a real improvement; and, as the smaller States would ap- 
 prove the one, and the larger the other, a spirit of compromise 
 might adopt both." 
 
 The presidential election of 1824 put an end to the 
 practice of caucus nominations, but it did not terminate 
 the efforts for the abolition of the electoral system. 
 Benton, in his Thirty Years' View, says that the resolu- 
 tions presented in the Senate in December, 1823, were 
 referred to a select committee of five, but as no definite 
 action was taken the attempt was resumed in the session 
 of 1825-26. The number of the committee, fixed at 
 five in 1824, was raised to nine at the suggestion of Van 
 Buren. The committee was appointed by Calhoun, then 
 Vice-President, and, says Benton, was carefully selected 
 both geographically, as coming from different sections 
 of the Union, and personally and politically, as being 
 friendly to the object and known to the country. The 
 committee consisted of Benton, as chairman, Macon, 
 Van Buren, Hugh L. White, of Tennessee, Findlay, of 
 Pennsylvania, Dickerson, of New Jersey, Holmes, of 
 Maine, Hayne, of South Carolina, and Colonel Richard 
 M. Johnson, of Kentucky. 
 
 The committee of five, early in 1824, reported an 
 
Amendments Offered in Congress 333 
 
 amendment substantially like the Benton proposition of 
 December, 1823. Van Buren was not at that time in 
 favor of the Benton plan. Division into districts would 
 tend "to reduce greatty the present weight of the large 
 States in the general scale" by "preventing them from 
 bringing their consolidated strength to bear upon the 
 presidential question." The Missouri plan asked no 
 concession from the smaller States. Enlarging upon the 
 great disadvantage the more populous States suffered 
 from the equality of representation in the Senate, he 
 asked 
 
 " whether it was reasonable to expect the large States would 
 ever assent to the proposition of the gentleman from Missouri 
 reducing their political weight in the confederacy, without any 
 concession of any kind on the part of the other States. He 
 thought not." 
 
 It was his judgment that if the States were to be dis- 
 tricted, the ultimate choice of President should be placed 
 elsewhere than in the House, and decided upon more 
 equitable principles. The debate in the Senate became 
 very animated on March 18, 1824, when Rufus King, of 
 New York, who had been a member of the convention 
 of 1787, declared the time inauspicious for a sober and im- 
 partial examination of the various amendments, "in view 
 of the excitement throughout the country respecting the 
 next pre,sidential election." King then launched into a 
 bitter arraignment of the caucus system, denominating it 
 a "great central power" at the seat of government, 
 "neither deputed from nor appointed by any established 
 rule among the States, but proceeding from a self-created 
 body unknown to the Constitution," which assumed the 
 right to nominate the President. He criticised members 
 of Congress for devoting more of their time during a 
 presidential year to plans for the election of their candi- 
 date than to the legitimate business of Congress. The 
 
334 The Electoral System 
 
 course of events during the winter had led near observers 
 "to suspect a connection" between this "formidable cen- 
 tral power" and "the Legislatures of Georgia, North 
 Carolina, Virginia, and New York, and, perhaps, of other 
 States." He preferred to adhere to the existing Consti- 
 tution in the hope that "means might be devised to sup- 
 press this power which is now oppressing the Constitution 
 by controlling and superseding its wise and well-con- 
 sidered provisions." The debate, which continued 
 through three days, became alternately a- vindication of 
 and attack upon the caucus system, in which the merits 
 or demerits of the various amendments were forgotten. 
 As Eaton, of Tennessee, said, "the Senate has spent 
 two days in debating whether it is proper for members of 
 Congress to go into caucus." Despite the protest of Van 
 Buren, Macon, and others, a motion to postpone in- 
 definitely all consideration of the proposed amendments 
 was carried by a vote of 30 to 13, Macon, Benton, 
 Dickerson, and Van Buren being conspicuous among the 
 negatives. 
 
 Benton, from the select committee, on January 19, 
 1826, made a report which elaborately set forth the 
 grounds upon which the proposed amendment was sup- 
 ported. The proposed amendfnent dispensed with elec- 
 tors, created electoral districts in which a direct vote of 
 the people was to be taken, and obviated "all excuse for 
 caucuses and conventions to concentrate public opinion, 
 by proposing a second election between the two highest 
 in the event of no one receiving a majority of the whole 
 number of district votes in the first election." When 
 the subject came before the Senate, on May 8, 1826, 
 Benton stated that its consideration had been postponed 
 upon request until the same subject had been discussed 
 in the other branch of the legislature, for it was deemed 
 inadvisable to carry on a dual debate at the same time. 
 Such had been the issue of the discussion in the House 
 
 t 
 
 1 
 
Amendments Offered in Congress 335 
 
 that it was not deemed wise to take any further step to 
 obtain a definitive vote at the existing session. Benton 
 declared that when the resolution was first introduced in 
 1823 discussion was opposed as premature, as a presidential 
 election was soon to be held. Upon its reintroduction, 
 the occasion was again said to be inopportune, as it was 
 too soon after the election and, accordingly, might have 
 a bearing on the events of that election, and furthermore 
 be considered personally offensive. It was impossible to 
 find a time which should be free from objection, but 
 Benton solemnly pledged himself to continue the effort 
 until a decisive vote should be reached, and, if it were 
 not reached, to transfer his exertions "to the theatre of 
 the people themselves, and urge the call of a national 
 convention." Van Buren observed that, while the ad- 
 vanced stage of the session furnished sufficient reason for 
 postponement, there were other reasons. The result in 
 the House was well known to the Senate. Nothing 
 could be done at that session in the upper chamber, but 
 he would unite with the chairman to press the matter to 
 a favorable conclusion early in the following session, not- 
 withstanding the decision by the House. Upon no point 
 were the people more thoroughly united than upon the 
 "propriety, not to say indispensable necessity, of taking 
 the election of President from the House of Representa- 
 tives." In support of this conviction he could appeal to 
 the recent vote in the House. But the small States 
 would never consent to give up their power without an 
 equivalent. The equivalent with which they should be 
 satisfied was "the breaking up of the consolidated strength 
 of the large States by the establishment of the district 
 system." After remarks by other members of the select 
 committee, the resolution, on Benton's motion, was 
 tabled. 
 
 The amendment reported by the select committee of 
 nine is so important that it is reproduced in full : 
 
33^ The Electoral System 
 
 ** That hereafter the President and Vice-President of the 
 United States shall be chosen by the people of the respective 
 States, in the manner following: Each State shall be divided 
 by the Legislature thereof into districts, equal in number to 
 the whole number of Senators and Representatives to which 
 such State may be entitled in the Congress of the United 
 States; the said districts to be composed of contiguous terri- 
 tory, and to contain, as nearly as may be, an equal number of 
 persons entitled to be represented under the Constitution, and 
 to be laid off, for the first time, immediately after the ratifica- 
 tion of this amendment, and afterwards at the session of the 
 Legislature next ensuing the apportionment of Representatives 
 by the Congress of the United States ; or oftener, if deemed 
 necessary by the Legislature of the State ; but no alteration 
 after the first, or after each decennial formation of districts, 
 shall take effect at the next ensuing election after such altera- 
 tion is made. That, on the first Thursday, and succeeding 
 Friday, in the month of August of the year one thousand 
 eight hundred and twenty-eight, and on the same days in every 
 fourth year thereafter, the citizens of each State, who possess 
 the qualifications requisite for electors of the most numerous 
 branch of the State Legislature, shall meet within their respec- 
 tive districts, and vote for a President and Vice-President of 
 the United States, one of whom, at least, shall not be an in- 
 habitant of the same State with himself; and the person re- 
 ceiving the greatest number of votes for President, and the 
 one receiving the greatest number of votes for Vice-President 
 in each district shall be holden to have received one vote; 
 which fact shall be immediately certified to the governor of 
 the State, to each of the Senators in Congress from such State, 
 and to the president of the Senate. The right of affixing the 
 places in the districts at which the elections shall be held, the 
 manner of holding the same, and of canvassing the votes, and 
 certifying the returns, is reserved, exclusively, to the Legisla- 
 tures of the States. The Congress of the United States shall 
 be in session on the second Monday of October, in the year 
 one thousand eight hundred and twenty-eight, and on the same 
 day in every fourth year thereafter; and the president of the 
 
 { 
 
Amendments Offered in Congress 337 
 
 Senate, in the presence of the Senate and House of Repre- 
 sentatives, shall open all the certificates, and the votes shall 
 then be counted. The person having the greatest number of 
 votes for President shall be President, if such number be equal 
 to a majority of the whole number of votes given; but if no 
 person have such majority, then a second election shall be 
 held, on the first Thursday and succeeding Friday in the 
 month of December, then next ensuing, between the persons 
 having the two highest numbers, for the office of President: 
 which second election shall be conducted, the result certified, 
 and the votes counted, in the same manner as in the first; and 
 the person having the greatest number of votes for President 
 shall be the President. But, if two or more persons shall have 
 received the greatest and an equal number of votes, at the sec- 
 ond election, the House of Representatives shall choose one of 
 them for President, as is now prescribed by the Constitution. 
 The person having the greatest number of votes for Vice- 
 President, at the first election, shall be the Vice-President, if 
 such number be equal to a majority of the whole number of 
 votes given, and, if no person have such majority, then a sec- 
 ond election shall take place, between the persons having the 
 two highest numbers, on the same day that the second election 
 is held for President, and the person having the highest num- 
 ber of votes for Vice-President shall be the Vice-President. 
 But if two or more persons shall have received the greatest 
 number of votes in the second election, then the Senate shall 
 choose one of them for Vice-President, as is now provided in 
 the Constitution. But, when a second election shall be neces- 
 sary in the case of Vice-President, and not necessary in the 
 case of President, then the Senate shall choose a Vice-Presi- 
 dent, from the persons having the two highest numbers in the 
 first election, as is now prescribed in the Constitution." 
 
 The prominent features of the plan as described by 
 Benton were: " i, the abolition of electors and the direct 
 vote of the people ; 2, a second election between the tWo 
 highest on each list, when no one has a majority of the 
 whole; 3, uniformity in the mode of election." To 
 
33^ The Electoral System 
 
 provide for a possible contingency, a tie vote at the second 
 election, which Benton thought "too improbable ever to 
 occur," and to avert the necessity of a third popular 
 election, a resort to the House of Representatives was 
 provided. The plan was unanimously recommended by 
 the whole committee, but it did not receive the requisite 
 support of two-thirds of the Senate. Benton appreciated 
 the difficulty of carrying a project for an amendment 
 through Congress unless it had what he termed "the 
 powerful impulsion of the people" to urge it through 
 the Houses. 
 
 ** Select bodies are not the places for popular reforms. 
 These reforms are for the benefit of the people, and should 
 begin with the people ; and the Constitution itself, sensible of 
 that necessity in this very case, has very wisely made provision 
 for the popular initiative of constitutional amendments." 
 
 So optimistic was the great Missourian that he continued 
 his efforts for twenty years. 
 
 *' There should be no despair on account of the failures 
 already suffered. No great reform is carried suddenly. It re- 
 quires years of persevering exertion to produce the unanimity 
 of opinion which is necessary to a great popular reformation; 
 but because it is difficult, it is not impossible." 
 
 This amendment, had it been ratified, would have left 
 no pretext for caucuses or conventions; it was too radical 
 and was not in consonance with the evolution of party 
 government. It naturally failed to provide for the prob- 
 lems in counting votes which were soon to begin to vex 
 leaders in Congress. Jackson, in his first message to 
 Congress, lent the proposition all his support. "The 
 mode may be so regulated," he argued, "as to preserve 
 to each State its relative weight in the election ; and a 
 failure in the first attempt may be provided for, by con- 
 
Amendments Offered in Congress 339 
 
 fining the second to a choice between the two highest 
 candidates." He also favored limiting the service of the 
 chief magistrate to a single term of either four or six 
 years. The consideration of the proposition was urged 
 upon Congress by the President in all his subsequent 
 annual messages. But years of continuous recommenda- 
 tion were futile of result, for three reasons, said Benton : 
 
 ** I. The conservative spirit of many, who are unwilling 
 under any circumstances to touch an existing institution. 
 2. The enemies of popular elections, who deem it unsafe to 
 lodge the high power of the presidential election directly in the 
 hands of the people. 3. The intriguers, who wish to manage 
 these elections for their own benefit, and have no means of 
 doing it except through the agency of intermediate bodies," 
 
 (the most potent of which he styled "conventions," with 
 all the evils of the caucus system and others peculiar to 
 themselves). These objections are as operative to-day as 
 they were eighty years ago. In December, 1834, Jack- 
 son, in his annual message, again recurred to the topic 
 and expressed his conviction that the best interests of the 
 country would be promoted by the adoption of some 
 plan for a dual vote by the people ; and he renewed the 
 recommendation in his final message in December, 1836. 
 Jackson's interest in the subject stimulated George R. 
 Gilmer, of Georgia, to move a resolution in the House. 
 Gilmer was made chairman of a special committee, which 
 reported an amendment with the features embodied in 
 the project of the Senate committee of nine, in 1826- 
 27. It combined the direct choice by the people and 
 the second popular election, in a case of a tie, of the 
 Benton amendment, with a provision that, in case of the 
 death of the successful candidate at the second popular 
 election, the Vice-President then in office should be Presi- 
 dent. In case of a tie at the second popular election, 
 the President was to be chosen by the House and the 
 
340 The Electoral System 
 
 Vice-President by the Senate. But this proposition was 
 never acted upon. 
 
 Benton urged the reform upon the Senate in Decem- 
 ber, 1833, in a speech denouncing the general-ticket 
 system as unfriendly to the rights of the people; "it 
 enables the majority to impress the votes of the minority, 
 and that ought to condemn it in a country of equal 
 rights." Tyler, of Virginia, in turn, attacked the dis- 
 trict system, arguing that it would efface "all the bound- 
 ary lines of the States," and succeeded in tabling Benton's 
 resolution. While the great Virginians of 1 800 deprecated 
 the general-ticket system, their successors in Congress, 
 Archer and Stevenson, in 1826, and Tyler, in 1833, were 
 its staunch defenders. A similar amendment was offered 
 in the Senate in 1837 by Allen, of Ohio, and was referred 
 to a committee of the ablest men who have ever sat in 
 that body. The members of this committee were Allen, 
 Silas Wright, Calhoun, Buchanan, Webster, Benton, 
 Rives, of Virginia, Crittenden, of Kentucky, and John 
 M. Clayton, of Delaware, but nothing seems ever to have 
 been done. A resolution introduced in the House on 
 December 13, 1836, by McComas, of Virginia, which was 
 referred to a committee, differed from all other resolu- 
 tions in containing a provision as follows : 
 
 ** If no person have such majority, or if the person having 
 the majority of the whole number of votes given shall have 
 died before the counting of the votes, then a second election 
 shall be held on the first Monday and succeeding Tuesday 
 and Wednesday in the month of December next ensuing, 
 which shall be confined to the persons having the two highest 
 numbers of votes at the preceding election. But if two or 
 more persons have the highest or an equal number of votes, 
 then to the persons having the highest number of votes; pro- 
 vided, however, if in the first election there were but two 
 persons voted for, and the person receiving the highest num- 
 ber of votes shall have died before the counting of the votes. 
 
Amendments Offered in Congress 341 
 
 then in the second election the choice shall not be confined 
 to the persons previously voted for; but any person may be 
 voted for who may be otherwise qualified by the Constitution 
 to be President or Vice-President of the United States " 
 
 and so on to a third election, to be held in January. 
 
 In 1844 Benton offered a proposed amendment in the 
 Senate, which was substantially the production of the 
 Senate committee of nine, with the exception that it dis- 
 pensed with an election in the House of Representatives 
 in the event of no choice at the second popular election, 
 and substituted a provision that if two or more persons 
 should have received the greatest and an equal number 
 of votes at the second popular election, then the person 
 who should have received the greatest number of votes 
 in the greatest number of States should be President. 
 Benton supported his plan wnth the same warmth and 
 earnestness he had evinced in 1823 and 1824. The will 
 of the people he declared 
 
 "was liable to be frustrated in the election of their chief 
 officers (and that at no less than three different stages of the 
 canvass) by the intervention of small bodies of men between 
 themselves and the object of their choice. First, at the 
 beginning of the process, in the nomination or selection of can- 
 didates. A Congress caucus formerly, and a national conven- 
 tion now, govern and control that nomination ; and never fail, 
 when they choose, to find pretexts for substituting their own 
 will for that of the people. Then a body of electors, to re- 
 ceive and hold the electoral votes, and who, it cannot be 
 doubted, will be soon expert enough to find reasons for a 
 similar substitution. Then the House of Representatives may 
 come in at the conclusion, to do as they have done heretofore, 
 and set the will of the people at absolute defiance." 
 
 The plan would effectually remedy all these evils and 
 rescue the voters from the tyranny of conventions and 
 electors, — a plan that had been urged by eminent states- 
 
342 The Electoral System 
 
 men of an earlier epoch and had been ** received with 
 great favor by the Senate and the country" at the 
 time it was first reported. He declared that he had 
 never attended a nominating caucus or convention, and 
 never intended to attend one. He had seen the last 
 Congress caucus in 1824, and "never wished to see 
 another, or hear of another; he had seen the national 
 convention of 1844, and never wished to see another." 
 And while he should support the nominations of the last 
 convention, he added with an optimism which interven- 
 ing events have made less intelligible that he "hoped to 
 see such conventions rendered unnecessary before the 
 recurrence of another presidential election." 
 
 When the Benton amendment was first proposed, the 
 caucus system of nominations was nearing extinction, 
 and the convention system was an embryo. But for this 
 fact it would seem extraordinary that such a master of 
 the convention method as Van Buren should advocate a 
 plan of election that would render nominating bodies 
 unnecessary. In the evolution of American politics, the 
 convention soon came to be recognized as an organ of 
 the highest consequence for ascertaining the will of the 
 people, and however imperfect the instrument, there is 
 as yet no evidence of a strong popular desire to abandon 
 it. Inasmuch as constitutional development should pro- 
 ceed on parallel lines with institutional development, it 
 would be a vital mistake to incorporate in the organic 
 law either a positive or negative provision that would 
 hinder the free play of natural political forces. Benton's 
 plan for a dual popular election has been revived but 
 once since his death. During the debates in Congress 
 upon the Civil War amendments, Sumner offered an 
 amendment, of which he said : 
 
 " Such an amendment has not appeared in this discussion, 
 though it is not unknown in this chamber, for distinguished 
 
Amendments Offered in Congress 343 
 
 Senators who once occupied these seats have more than once 
 advocated it — I mean an artiendment providing for the elec- 
 tion of President directly by the people, without the interven- 
 tion of electoral colleges. Such an amendment would give 
 every individual voter, wherever he might be, a positive weight 
 in the election. It would give minorities in distant States an 
 opportunity of being heard in determining who shall be chief 
 magistrate." 
 
 Although the proposition then before the Senate was 
 debated, it never reached a vote, and Sumner's sugges- 
 tion fell with it. Sumner subsequently introduced an 
 amendment to supersede the electoral system, the repre- 
 sentative features of which were as follows: 
 
 The regular presidential election is to be held on the 
 first Monday of April, and the result in each State and 
 Territory is to be certified and forwarded to the seat of 
 government as Congress by law may direct. On the 
 Tuesday next succeeding the third Monday in May the 
 returns shall be opened in joint convention of the two 
 Houses of Congress, and the person having a majority of 
 the votes cast shall be President. If no person have 
 such majority, or the person having it decline the office 
 or die before the counting of the vote, then the presi- 
 dent of the Senate shall so proclaim, and the proceedings 
 shall be officially published, and another election shall be 
 held on the following second Tuesday of October, at 
 which the three persons having the highest number of 
 votes at the preceding April election shall be voted for 
 by the people. These votes shall be counted in Con- 
 gress on the third Tuesday in December following, and 
 the result proclaimed. In case of a vacancy occurring in 
 the office of the President, the members of Congress in 
 joint convention shall proceed to elect by viva voce vote 
 a President to fill such vacancy, each member having one 
 vote, and a majority being requisite for election. The 
 
344 The Electoral System 
 
 President shall not be eligible for re-election; and the 
 office of Vice-President shall be abolished.' 
 
 On January 21, 1875, Morton, addressing the Senate 
 upon the amendment which he had offered in that body 
 in the spring of 1874, said that its purpose was to bring 
 the election home to the people, as well as to avoid the 
 dangers of the existing method. No more important 
 question could be considered by the Senate: 
 
 " In my opinion great dangers impend, owing to the imper- 
 fection of the present system of electing. . . . Trouble has 
 been averted rtierely by a series of happy accidents, but we can- 
 not hope that these happy accidents will continue to occur. 
 . . . The present plan originated in a profound distrust of the 
 people. It placed the appointment of electors absolutely under 
 the control of State Legislatures. The States could not by their 
 constitutions control or in any manner change the appointment 
 of electors. The power of a Legislature to appoint electors is 
 not conferred by the State constitution, but is conferred by the 
 Constitution of the United States, so that it is not in the power 
 of a State constitution to take from the Legislature the power 
 to appoint electors in any way that that Legislature may see 
 proper. The Legislature may repeal any day the law by which 
 electors are elected by the people, and may direct them to be 
 elected by joint ballot of the two houses; or may authorize 
 the governor of the State or its Supreme Court to appoint 
 them." 
 
 One difficulty of the electoral system was that Congress 
 
 ^ For a fuller account of this amendment, see an article in 117 North 
 Amer. Review (October, 1873), by R. H. Dana, Jr. Mr. Dana seems to 
 favor some such plan as is advocated in this book, " of dividing the presi- 
 dential vote of a State according to the popular division manifested at the 
 polls," which "might be accomplished through the principle of minority 
 representation. The footings of the votes of the two parties on election 
 day would show what proportion of the presidential votes of the State each 
 party would be entitled to." 
 
Amendments Offered in Congress 345 
 
 has no power to determine whether an election has been 
 properly held or not : ^ 
 
 " No contested election of electors can be determined by 
 the Congress of the United States, because the Constitution 
 has placed that election absolutely and entirely with the States. 
 If they make no provision for cases of contested election, 
 Congress cannot do it. All its power is to fix the time when 
 the electors shall be chosen by the States and to determine the 
 day when they shall come together as electors to cast their 
 votes, which shall be the same day in all the States. The 
 States have failed to make provision for contesting the elec- 
 tion of electors. Though the election may be distinguished 
 by fraud, notorious fraud, by violence, by tumult, yet there is 
 no method for contesting it; no State has passed a law for that 
 purpose ; . . . there is no time for a contest, even if the 
 States were disposed to enact such a law. Congress, in 1792, 
 in effect prohibited any contest either by the State or by 
 Congress. Electors cannot be called together again after they 
 have voted. They vote by ballot under the Constitution; the 
 vote is sealed, and sent to the president of the Senate, and is 
 not opened until it is counted in the presence of the two 
 Houses. ... It seems never to have occurred to the 
 members of the convention that there could be two sets of 
 electors or that there would be fraud or corruption or any 
 reason why votes of electors should be set aside." 
 
 He argued also that the theory of the electoral college 
 had utterly failed : 
 
 " It has turned out in practice that the electors are pledged 
 in advance to vote for a particular candidate, ... a 
 pledge that has never been violated, and the violation of which 
 would bring upon the offending party all the indignation that 
 society could invent. . . . Therefore the theory is a total 
 failure. . . . The reasons for the electoral college have 
 
 ' Morton consistently held to these views in his opinions as a member of 
 the Electoral Commission of 1877. 
 
346 The Electoral System 
 
 gone. Why not let the people vote themselves for the presi- 
 dential candidates, instead of voting for electors who are 
 pledged to do the same thing ? ' N 
 
 In instancing some of the dangers and difficulties of 
 the system, he said that, by law, w^hen electors have died 
 since their election or failed to attend, the others may 
 fill their vacancies : 
 
 " In the case of Texas at the last election (1872), when the 
 electors met to vote, four were absent, just one-half the whole 
 number. The other four supplied the vacancies by election. 
 Suppose there should be five in favor of one candidate, and 
 five in favor of another, and one elector dies ? Then one 
 five will have the majority over the other, and they can fill the 
 vacancy and they can thus secure a majority in the electoral 
 college." 
 
 While Morton argued for the district system, he was 
 obliged to concede its limitations : 
 
 ** By the election by districts you do not bring the vote ab- 
 solutely home to the people, as you would by a vote as one 
 community, but you come as near to it as possible. . . . 
 These districts may be gerrymandered, as they are for Con- 
 gress. That has been done. It is an evil. You cannot correct 
 it altogether." 
 
 Under the general-ticket system **no man can vote unless 
 he has a party in the State large enough to hold a con- 
 vention and put an electoral ticket in the field." Sup- 
 pose, he continued, the election of 1872 had depended 
 upon the vote of Louisiana or Arkansas or Texas? 
 
 * * Would we not in all probability have been involved in 
 revolution ? ... It was a matter of congratulation to 
 both Democrats and Republicans that Grant's majority was 
 so large as to make the vote of Louisiana or Arkansas and of 
 Texas unimportant. Dispense with the requirement of a ma- 
 jority and adopt the plurality system, and avoid an election by 
 
Amendments Offered in Congress 347 
 
 the House altogether. The plurality rule is adopted by all the 
 States except three in the election of State officers, . . . 
 and by all in regard to the election of members of Congress. 
 . . . It has worked well in the States and no State now 
 proposes to go back from the plurality to the majority system." 
 
 To an election of the President by the House of Repre- 
 sentatives Morton had long been an opponent, nor did 
 he omit opportunity to show how unjust such a form of 
 election was. Under the existing apportionment, each 
 State having one vote, forty-five members out of a total 
 of two hundred and ninety-two in the House could elect 
 the chief executive. He alluded to the election of 1825 
 and asked whether the Government could stand the 
 strain of another election in the House. Referring to 
 that part of the amendment providing a tribunal for the 
 decision of contested elections, Morton said that it had 
 been "a subject of grave consideration in the commit- 
 tee." Some were in favor of constituting the Supreme 
 Court the tribunal, others wished to clothe the circuit 
 courts, or the district courts, of the United States with 
 adequate powers; others thought that a special tribunal 
 should be created by Congress. "It was then thought 
 better to place the whole matter in the decision of Con- 
 gress. ... If we should put any special tribunal 
 into the Constitution it might not work well and it 
 might be difficult to change it." Thurman insisted that 
 there should be provision for a tribunal in the fundamen- 
 tal law, so that every party should be compelled to obey 
 its behests. 
 
 In conclusion, Morton said : 
 
 " For more than seventy years attempts have been made at 
 different times to change the Constitution so as to avoid some 
 of these dangers. Amendments have passed the Senate and 
 the House four times by a two-thirds majority to avoid some 
 
348 The Electoral System 
 
 of these evils, and yet finally failed. . . . The remedy 
 proposed is not new, it is almost as old as the Constitution. 
 Seventy years ago some of the ablest men in the Senate of the 
 United States foresaw these dangers." 
 
 After discussion of the proposed amendment by Thur- 
 man, Edmunds, Conkling, Anthony, and others, imme- 
 diate interest in its passage seems to have subsided, 
 perhaps for the reason that Morton succeeded in pressing 
 his bill to regulate the electoral count to a favorable 
 vote, which was reached in the Senate on February 25, 
 1875. 
 
 Morton reintroduced his amendment in the Senate on 
 December 4, 1876, but, in view of the excitement of the 
 time and the urgency of securing some temporary method 
 of counting the electoral vote upon which the discordant 
 Houses might agree, it failed to elicit much attention; 
 and the early introduction of the Electoral Commission 
 bill rendered debate upon it impracticable. As soon as 
 the presidential succession dispute was decided, he again 
 undertook the advocacy of his remedy. In the North 
 American Review in May, 1877, he declared: "Experi- 
 ence, as well as reason, now suggests that the rubbish of 
 the electoral college be brushed away entirely," and in a 
 later article in the same Review,^ published in July, 1877, 
 he repeated the arguments from his various speeches in 
 the Senate. His death in the prime of life, in Novem- 
 ber, 1877, from a disease the inroads of which his iron 
 will had resisted for years, deprived the cause of presi- 
 dential electoral reform of its most assiduous and con- 
 vincing exponent. 
 
 The full text of the Morton amendment is as follows : 
 " Resolved^ by the Senate and House of Representatives of 
 the United States of America, in Congress assembled (two 
 thirds of each House concurring therein), That the following 
 ^\2t,N. A. R., 68. 
 
Amendments Offered in Congress 349 
 
 article is hereby proposed as an amendment to the Constitu- 
 tion of the United States, and when ratified by the Legislatures 
 of three fourths of the several States, shall be valid, to all 
 intents and purposes, as a part of the Constitution, to wit: 
 
 "article 
 
 " I. The President and Vice-President shall be elected by 
 the direct vote of the people in the manner following: Each 
 State shall be divided into districts, equal in number to the 
 number of Representatives to which the State may be entitled 
 in the Congress, to be composed of contiguous territory, and 
 to be as nearly equal in population as may be; and the person 
 having the highest number of votes in each district for Presi- 
 dent shall receive the vote of that district, which shall count 
 one presidential vote. 
 
 ** II. The person having the highest number of votes for 
 President in a State shall receive two presidential votes from 
 the State at large. 
 
 " III. The person having the highest number of presiden- 
 tial votes in the United States shall be President. 
 
 " IV. If two persons have the same number of votes in any 
 State, it being the highest number, they shall receive each one 
 presidential vote from the State at large; and if more than 
 two persons shall have each the same number of votes in any 
 State, it being the highest number, no presidential vote shall 
 be counted from the State at large. If more persons than one 
 shall have the same number of votes, it being the highest 
 number in any district, no presidential vote shall be counted 
 from that district. 
 
 " V. The foregoing provisions shall apply to the election of 
 Vice-President. 
 
 " VI. The Congress shall have power to provide for holding 
 and conducting the elections of President and Vice-President, 
 and to establish tribunals for the decision of such elections as 
 may be contested. 
 
 " VII. The States may be divided into districts by the 
 Legislatures thereof, but the Congress may at any time by law 
 make or alter the same." 
 
350 The Electoral System 
 
 This amendment is defective in several respects. The 
 word ''people," which appears only in the preamble to 
 the Constitution, is inexact. The vote is not by the 
 people, but by citizens upon whom the privilege of 
 suffrage is conferred. It would have been wiser to define 
 the qualifications of citizens entitled to vote directly for 
 the President and Vice-President. Waiving for the pres- 
 ent the question whether the district system should be 
 adopted, I think the provision as to districts inadequate. 
 The Benton amendment is, in this particular, better, in 
 limiting the possibilities of "gerrymandering." This 
 differs again from Madison's plan to forbid alteration of 
 the districts within a definite period previous to the elec- 
 tion of President. The partial disfranchisement of a 
 great commonwealth might happen under the Morton 
 scheme should more than two candidates have the highest 
 and an equal number of the presidential votes of a State, 
 as the State has only two presidential votes at large and 
 cannot divide these two among more than two candi- 
 dates. This puts a penalty upon intelligent suffrage, — 
 for a close State is likely to be an intelligent one, — and 
 unjustly limits its voting ratio. Nor does the amend- 
 ment contain any clause providing what shall happen in 
 the event of the death or disability of the President- 
 elect. The sixth clause is uncertainly phrased: "The 
 Congress shall have the power to provide for holding 
 and conducting elections, and to establish tribunals for 
 the decision of such elections as may be contested." 
 The power to provide for holding and conducting elec- 
 tions may be broadly or narrowly construed, but it is 
 questionable whether this power includes the ascertain- 
 ment of results, and in this respect the present Consti- 
 tution is wofully deficient. Nor does such ascertainment 
 devolve upon the tribunals which Congress is empowered 
 to create, for these are merely for the decision of con- 
 tested elections. In some particulars the Benton amend- 
 
Amendments Offered in Congress 351 
 
 ment is more specific, for Benton required the result of 
 the vote in the State to be certified to the State governor, 
 its two Senators, and the president of the Senate. The 
 conduct of elections, including the canvass and the cer- 
 tification of the votes, should either be explicitly lodged 
 in the State or in Congress. Benton proposed to reserve 
 it to the State. His amendment is superior in prescrib- 
 ing the qualifications of the persons exercising the right 
 to vote for President. The chief criticism upon both 
 proposals is that they fail to provide definite and precise 
 means for the ascertainment of the State canvass and for 
 a final determination of all questions arising upon the 
 electoral count. 
 
 An amendment embodying some of the principles of 
 the Hare plan for minority representation was formulated 
 by Levi S. Maish, of Pennsylvania, and offered by him in 
 the House, and by Senator Charles R. Buckalew, of that 
 State, in the Senate, in February, 1877. This propo- 
 sition was elaborately discussed by Buckalew in an article 
 in the North Americaji Review.^ The main features of the 
 Maish plan are as follows : 
 
 ** The citizens of each State who shall be qualified to vote 
 for Representatives in Congress shall cast their votes for can- 
 didates for President and Vice-President by ballot; and 
 proper returns of the votes so cast shall be made, under seal, 
 within ten days, to the secretary of State or other officer law- 
 fully performing the duties of such secretary in the govern- 
 ment of the State, by whom the said returns shall be publicly 
 opened in the presence of the chief executive magistrate of the 
 State, and of the chief justice or judge of the highest court 
 thereof; and the said secretary, chief magistrate, and judge 
 shall assign to each candidate voted for, by a sufficient num- 
 ber of citizens, a proportionate part of the electoral votes to 
 which the State shall be entitled, in manner following, that is 
 to say: they shall divide the whole number of votes returned 
 1 124 N. A. R., 163. 
 
352 The Electoral System 
 
 by the whole number of the State's electoral vote, and the re- 
 sulting quotient shall be the electoral ratio for the State, and 
 shall assign to candidates voted for one electoral vote for each 
 ratio of popular votes received by them respectively, and, if 
 necessary, additional electoral votes for successive largest 
 fractions of a ratio shall be assigned to candidates voted for, 
 until the whole number of the electoral votes of the State shall 
 be distributed; and the said officers shall thereupon make up 
 and certify at least three general returns, comprising the popu- 
 lar vote by counties, parishes, or other principal divisions of 
 the State, and their apportionment of electoral votes as afore- 
 said, and shall transmit two thereof, under seal, to the seat of 
 government of the United States, one directed to the president 
 of the Senate and one to the Speaker of the House of Repre- 
 sentatives, and a third unsealed return shall be forthwith filed 
 by the said secretary in his office, be recorded therein, and be 
 at all times open to inspection." 
 
 This amendment, Buckalew explained, would have these 
 important results: 
 
 " I. It will very greatly reduce, in fact, almost extinguish, 
 the chance of a disputed election, by causing the electoral vote 
 of the State to be very nearly a reflex of the popular vote, by 
 confining the effect of fraud and other sinister influences 
 within narrow limits, and by withdrawing the compact, undi- 
 vided power of any one State from the contest. Giving a just 
 allotment of electoral votes to candidates, not greatly too many 
 or too few, it conforms to the popular sense of justice and tends 
 to allay passion and prevent controversy. It excludes the 
 temptation to falsify or manipulate election returns, by which 
 the whole vote of the state may be wielded in the interest of a 
 party. Under it there would be no rival electoral colleges, or 
 double returns of electoral votes, and pivotal States, inviting 
 to profuse money expenditure, to fraud and to false returns, 
 would no longer be known as a conspicuous feature of presi- 
 dential contests. 
 
 "2. It will render almost impossible the election of a mi- 
 
Amendments Offered in Congress 353 
 
 nority candidate in a contest between two, and will in many- 
 cases prevent a plurality candidate from receiving an unjust 
 electoral vote, and often from being improperly returned to 
 the House of Representatives as one of the three persons from 
 whom a choice is to be made, in cases where the power of 
 choice shall devolve upon that house. It will secure justice 
 by insuring a fair representation of the people, and applying 
 the majority rule to the electoral instead of the popular vote; 
 in other words, all the people will be represented by electoral 
 votes, and the majority principle will be properly applied when 
 the general returns of those electoral votes shall be subjected 
 to computation. Popular disfranchisement within a State will 
 be swept away, while the supporters of no candidate will con- 
 trol more than their due share of electoral power. 
 
 "3. It will very greatly discourage and prevent unfairness 
 and fraud in elections, by excluding the motives which pro- 
 duce them. In this respect its superiority to other plans of 
 amendment is conspicuous and unquestionable. Assuming a 
 ratio of thirty thousand for an electoral vote, a fraudulent vote 
 of ten thousand would mean one third of an electoral vote, — 
 in other words, would mean nothing as to results, — instead of 
 meaning, as it now does in many cases, the balance of power 
 in a State, and the control of its whole electoral vote! In a 
 State like New York or Pennsylvania, a fraudulent vote of 
 even thirty or forty thousand would affect but one electoral 
 vote out of thirty or forty cast by the State, instead of trans- 
 ferring all those thirty or forty votes from one candidate to 
 another. Speaking within bounds, the effect of any common 
 fraud in presidential elections would become inappreciable, 
 and the motive for committing such fraud would be wholly 
 removed. Could there be a more complete device for purify- 
 ing and improving elections than this, or one more impera- 
 tively demanded by the necessities of the times ? District 
 voting for electors would not extirpate this evil of corrupt 
 elections, for the balance of power vote in each district would 
 be the object of money expenditure and evil influence as we 
 already have them in congressional districts. Ten thousand 
 
 foul votes in a State might control half a dozen or more 
 23 
 
354 The Electoral System 
 
 districts, while they would be entirely lost when counted in 
 the aggregate or total vote of the State." 
 
 The disputed count of 1877 emphasized so sharply the 
 defects in the present system that a number of amend- 
 ments were proposed in the special session of Congress 
 which commenced on October 15, 1877, and in the next 
 succeeding regular session. Nearly all these amendments 
 aimed to dispense with presidential electors, and two of 
 them, following the Maish plan, proposed to apportion 
 the presidential votes of each State among the respective 
 candidates according to the ratio of the popular vote for 
 each. Representative Springer, of Illinois, one of the 
 ablest advocates in the House of the Electoral Commis- 
 sion bill of 1877 and a staunch believer in the doctrine 
 that the Houses in joint meeting were clothed with the 
 power to count the electoral votes, offered an amendment 
 in the House on October 29, 1877, which extended the 
 presidential term to six years, and deprived the President 
 of immediate re-eligibility. This plan, if carried into effect, 
 would have abridged the influence of the small States, 
 for it provided that States having but one Representative 
 in the House should have but one presidential vote, 
 and that States entitled to only two such Representatives 
 should have three votes. The governor, the secretary of 
 State, and the chief justice of the highest appellate court 
 in each State were to be the State canvassers, but their 
 powers were to be ministerial only. The Senate and the 
 House of Representatives were to meet in joint convention 
 in the hall of the House on the third Monday of January 
 succeeding each presidential election; the president of 
 the Senate was to preside, unless he was the recipient of 
 a majority of the presidential votes of any State, in which 
 event the Speaker of the House was to assume that office, 
 and if he, for like reason, was disqualified, the "joint 
 convention" was to choose a presiding ofificer; and the 
 
Amendments Offered in Congress 355 
 
 "joint convention" was made **the judge of the election, 
 returns, and qualifications of the persons who shall be 
 President and Vice-President." Obviously the small 
 States would never make the sacrifice of prestige this 
 amendment would require. But the chief defect in the 
 Springer proposition is that it overturns the theory of 
 the Constitution, by vesting the "joint convention" with 
 powers similar to those which the two Houses now enjoy 
 as to the election of their own members. That the "joint 
 meeting" possessed such authority was cogently urged in 
 the Louisiana case before the Electoral Commission, but 
 Mr. Justice Bradley trenchantly exposed the utter weak- 
 ness of the claim. 
 
 Riddle, of Tennessee, proposed an amendment having 
 some of the features of the amendments offered in 1823. 
 There was to be a direct election by the people and a 
 majority was required for a choice. If a majority were 
 not obtained, a second election was to be held within 
 two months after the first election, when the choice was 
 to be narrowed to the two highest names upon the list. 
 If no choice was then effected owing to a tie between 
 the rival candidates at the second election, the two 
 Houses of Congress in joint convention, each member 
 having one vote, were to elect. 
 
 An amendment of interest was reported in May, 1878, 
 by Representative Southard, of Ohio, from a committee 
 of the House on the state of the law upon the subject 
 of the electoral count. Two reports were presented 
 by this committee to the House. The majority report 
 contains a draft of a proposed amendment embodying 
 the principle of the Maish plan. The report declares 
 that not only have the reasons failed which were origi- 
 nally urged in favor of the electoral system, but that 
 
 " difficulties have arisen, unforeseen and unprovided for, 
 which have put us in great peril more than once. . . . The 
 
35^ The Electoral System 
 
 Government has no unquestioned remedy for a failure to ap- 
 point electors, nor for their failure to act, nor for fraud in 
 the election, and there is no mode for contesting elections; if 
 the electors are chosen on a wrong day, if they vote on the 
 wrong day, if their certificate is defective, if their vote be 
 cast before the State is in the Union, if there are conflicting 
 certificates from the same State, if the persons voted for were 
 not citizens, if the electors were officers of the Government, if 
 a certificate contains too many electoral votes, for none of 
 these cases has any competent provision been made by law. 
 The congressional records are full of angry debate on all these 
 questions. The difficulty began in 1805 upon the vote of 
 Massachusetts; it occurred again in 181 7 upon the vote of 
 Indiana, in 1821 upon the vote of Missouri, in 1829 upon the 
 votes of Virginia and several other States, in 1837 upon the 
 vote of Michigan, in 1857 upon the vote of Wisconsin, in 
 1865 upon the vote of Nevada, in 1869 upon the vote of 
 Georgia, in 1873 upon the votes of Georgia, Mississippi, Texas, 
 Arkansas, and Louisiana, in 1877 upon the votes of Louisiana, 
 Florida, South Carolina, and Oregon." ^ 
 
 The report starts with the theory of the independence 
 and equality in relation to their ow^n exclusive affairs of 
 all the States in the Union. While it accepts the com- 
 promise between small and large States upon which the 
 Government was organized, it refutes the notion that a 
 vote by a State en bloc is essential to the maintenance of 
 statehood. It truthfully says: 
 
 ** It was not intended by the framers of the Constitution, 
 nor does that instrument require — no matter whether the 
 electors be appointed by the Legislature, people, or otherwise — 
 that the State, as an entity, should cast the electoral vote in 
 solido for a particular candidate. The electors, when ap- 
 pointed, were to be perfectly free each to exercise his judg- 
 
 ^ The act of February 3, 1887, which was passed nine years after the date 
 of this report, prescribes, as I have heretofore shown, no renfiedy for any 
 of these difficulties. 
 
Amendments Offered in Congress 357 
 
 ment and discretion in casting his vote. Under such circum- 
 stances, it would be unreasonable to infer that the electors 
 would be unanimous in their choice. The reverse was in- 
 tended and expected, and in this freedom of action the merit 
 of the system was supposed to rest." 
 
 The adoption of the general-ticket system, like the idea 
 of the balance of power in Europe, had its origin in self- 
 preservation, for its use by one or more of the larger 
 States was a coercive influence upon all the others, unless 
 they wished to sacrifice their representative weight. No 
 one deplored its spread more than Madison, and while 
 Madison, upon the theory of "retributive justice," reluc- 
 tantly urged the Legislature of Virginia in 1800 to adopt 
 the general-ticket system, John Nicholas, in the House 
 of Representatives in March of the same year, offered his 
 proposed amendment making the district system com- 
 pulsory. As the report says, "the result of the election 
 is under the control of the large cities, such as New York 
 and Philadelphia and Chicago, the very places where 
 fraud is most easily perpetrated, where the temptations 
 to it most abound." 
 
 The minority report is filled with vague alarm at the 
 so-called centralizing tendency of the majority view; but 
 the alarm is groundless, for it is as nearly susceptible of 
 demonstration as any political fact can be, that the plan 
 of apportionment of the electoral votes of a State among 
 the voters of that State as first proposed by Maish, advo- 
 cated by Buckalew, and favored by the majority report 
 of the House committee, most completely guarantees 
 the absolute independence and integrity of the State. 
 The fallacious notion of the minority, a fallacy repeatedly 
 urged, and as often exposed, in Congress, is that a ma- 
 jority of the voters of a commonwealth represent the 
 State. The minority say : 
 
 " The right to speak by a majority, when its fundamental 
 
35^ The Electoral System 
 
 laws permit, is a right inherent in every republic. This plan 
 takes away from these republics, the States, this right to speak 
 by their majorities^ and confers upon the United States the right 
 to say by a majority of the whole who shall be President and 
 Vice-President." 
 
 If the right to speak by a majority is inherent in repub- 
 lican government, that right has been steadily infringed 
 since the Union was formed, both in national and State 
 elections, for there have been minority Presidents, minor- 
 ity governors, minority Senators and Representatives. 
 The contention of the minority report would render 
 "majority government" a despotism. It as effectively 
 disfranchises the minority voter as if he had no ballot, 
 thus politically "keeps the word of promise to the ear, 
 but breaks it to the hope." It utterly misapprehends 
 the scope and intent of the proposed amendment in its 
 assumption that the amendment "confers upon the 
 United States the right to say by a majority of the whole 
 who shall be President and Vice-President." As will 
 hereafter be argued, the apportionment system would 
 give a higher significance to the State and be its most 
 enduring bulwark against encroachment by central 
 authority. 
 
 The majority report wisely decided that to the district 
 plan, however distinct an advance it was over the general- 
 ticket plan, there are insuperable objections: 
 
 \f ** First, the districts are not now, and could not well be 
 
 made, permanent geographical divisions, like the States, but 
 would be subject to constant changes by the worst species of 
 gerrymandering. Secondly, there would always be a number 
 of doubtful districts to be contended for by partisan strife. 
 These evils — and they are evils of greatest magnitude — will 
 necessarily be eliminated by the plan proposed. The advan- 
 tages of the plan are many. It would enable every voter to 
 vote for the man of his choice with an absolute certainty that 
 
Amendments Offered in Congress 359 
 
 he and those who voted with him would receive their proper 
 proportion of the electoral vote. ' ' 
 
 The committee further pointed out that under its plan 
 "any fraud capable of being accomplished would affect 
 ordinarily only the smallest fraction of a vote ; it would 
 not be worth while to attempt a fraud for such insignifi- 
 cant results." In proof of this the committee says: 
 
 * ' The ratio of the popular vote to an electoral vote at the 
 last presidential election [1876] ranged in the different States 
 from six thousand up to twenty-nine thousand. To secure a 
 single additional electoral vote, a party would be compelled to 
 increase its popular vote to the extent of such ratio in any 
 State ; a less increase would give a proportionate fraction of 
 an electoral vote. So great a change of popular vote being 
 required to effect so slight a result in the electoral vote, it 
 needs no argument to demonstrate that the temptation to fraud 
 is almost wholly taken away, and its discovery made certain, 
 if attempted." 
 
 The proposed amendment of the committee is as fol- 
 lows: 
 
 * * Resolved by the Senate and House of Representatives of the 
 United States of Af?ierica in Congress assembled {two thirds of 
 each House concurring therein)^ That the following be proposed 
 as an amendment to the Constitution of the United States; 
 which, when ratified by three fourths of the Legislatures of 
 the several States, shall be valid, to all intents and purposes, 
 as part of the said Constitution, to wit : 
 
 * 'article XVI. 
 
 '* The President and Vice-President of the United States 
 shall be chosen by the people of the several States ; the electors 
 in each State shall have the qualifications requisite for electors 
 of the most numerous branch of the State Legislature; they 
 shall vote by ballot for President and Vice-President on the 
 
36o ' The Electoral System 
 
 day provided by law, which day shall be fixed by Congress, 
 and be the same throughout the United States. 
 
 " Each State shall be entitled to a number of electoral votes 
 equal to the number of Senators and Representatives to which 
 the State may be entitled in the Congress. 
 
 * * The electoral votes, and fraction thereof, of each person 
 voted for as President in any State, shall be ascertained by 
 multiplying his entire popular vote therein by the whole num- 
 ber of the electoral votes of the State, and dividing the product 
 by the aggregate popular vote of the State for all persons 
 voted for as President; and the quotient shall be the number 
 of electoral votes and fraction thereof to which such person 
 shall be entitled, using for such fraction three decimals and 
 no more. 
 
 ' * The foregoing provisions shall apply to the election of 
 Vice-President; but no person constitutionally ineligible to 
 the office of President shall be eligible to that of Vice-President 
 of the United States. 
 
 '* Within ten days after any presidential election, the return- 
 ing officers of elections in each State, in accordance with the 
 laws thereof, shall make proper returns in duplicate of the 
 votes cast for President and Vice-President, and shall transmit 
 the same, under seal, to the secretary of State, or other officer 
 lawfully performing the duties of such secretary, one of them 
 by mail and the other by special messenger, and the said re- 
 turns shall be publicly opened by said secretary or other officer 
 in the presence of the chief executive magistrate of the State 
 and the State auditor or comptroller; but if either of said 
 officers fail to act, the attorney-general of the State shall act in 
 his stead; and said officers by and before whom said returns 
 are opened shall ascertain the popular vote and forthwith make 
 apportionment of the electoral vote as hereinbefore provided; 
 and shall thereupon make three distinct lists of all persons 
 voted for as President and Vice-President, comprising the 
 popular vote by counties, parishes, or other principal divisions 
 of the State, and their apportionment aforesaid, which lists 
 they shall sign and certify, and shall transmit two of them, 
 sealed, to the seat of government of the United States, one 
 
Amendments Offered in Congress 361 
 
 directed to the president of the Senate, the other to the 
 Speaker of the House of Representatives; the third list shall 
 be filed and recorded in the office of the said secretary of 
 State. Said apportionment shall be made on a day fixed by 
 Congress, and be the same throughout the United States. 
 
 '* If there shall be a contest in any State as to the election 
 of President or Vice-President, the same may be passed upon 
 by its highest judicial tribunal, in accordance with its laws; 
 the decision thereof shall be by it certified and transmitted, 
 sealed, to the seat of government of the United States, directed 
 to the president of the Senate. The president of the Senate 
 shall, in the presence of both Houses of Congress, assembled 
 for that purpose in the hall of the House of Representatives, 
 open all the certificates; the electoral votes shall then be 
 counted by the two Houses, as certified, unless rejected by 
 both Houses; but if there be a certificate of decision by the 
 highest judicial tribunal of any State upon a contested election 
 therein, the electoral votes of such State shall be counted in 
 accordance with such decision, unless the same be overruled 
 by both Houses; but if there be no such certificate of decision, 
 the contested votes from any State shall not be counted unless 
 both Houses concur therein. If there be more than one cer- 
 tificate of electoral votes from any State, and no such judicial 
 decision as aforesaid, or if there be more than one such de- 
 cision from any State, in either case that certificate of electoral 
 votes which shall be held by both Houses to be made by the 
 rightful authority, and that judicial decision which shall be 
 held in like manner to be made by the rightful tribunal, shall 
 be conclusive, and the votes be counted accordingly, unless 
 rejected by both Houses. 
 
 " The person having the highest number of electoral votes 
 for President shall be the President; but if two or more persons 
 have an equal and the highest number of such votes, then 
 from such persons the House of Representatives shall choose 
 immediately 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 con- 
 sist of a member or members from two thirds of the States, 
 
362 
 
 The Electoral System 
 
 and a majority of all the States shall be necessary to a choice. 
 And if the House of Representatives shall not choose a Presi- 
 dent, whenever the right of choice shall devolve upon them, 
 before the 4th day of March next following, then the Vice- 
 President shall act as President, as in the case of the death or 
 other constitutional disability of the President. 
 
 '* The person having the highest number of electoral votes 
 as Vice-President shall be Vice-President; but if two or more 
 persons have an equal and the highest number of such votes, 
 then from such persons 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." 
 
 The amendment proposed by the Southard commit- 
 tee, although admirable in principle, is disfigured by- 
 two extremely undesirable features. It maintains, with 
 slight changes, the substitute election which the pres- 
 ent Constitution requires to be held in the House in 
 case of the failure of the electors to agree upon a Presi- 
 dent, and in the Senate in case of their failure to agree 
 upon a Vice-President. By giving Congress the power 
 to count, the amendment would imbed in the Constitu- 
 tion a doctrine at war with the fundamental notion of dis- 
 tinct governmental departments. The disfranchisement 
 of a State by Congress would become possible if this 
 amendment were to be made part of the organic law, for 
 the difficulty of finding an "ultimate arbiter" between 
 the two Houses inheres in every form of congressional 
 count, whether the count be in accordance with the Mor- 
 ton bill, the act of 1887, or this proposed amendment. 
 All idea of congressional control over the count should 
 be discarded. Southard's plan, on the contrary, would 
 exalt this vicious notion into a constitutional principle. 
 
 In a recent article,' Mr. John G. Carlisle has argued 
 for an amendment containing the substantive features of 
 
 ' " The Remedy," 24 Forum, 657. 
 
Amendments Offered in Congress 3^3 
 
 the plans proposed by Maish and Southard. After 
 dwelling upon the dangers of the present electoral sys- 
 tem, Mr. Carlisle, in urging its abolition, says that the 
 people, that is, the electors having the qualifications 
 requisite for electors of the most numerous branch of the 
 State Legislature, should vote direct for President and 
 Vice-President. Each State should be given a number 
 of votes, electoral or presidential, equal to the number 
 of its Senators and Representatives in Congress, and in 
 ascertaining the result of the election each person voted 
 for should be entitled to have counted in his favor a 
 number of the presidential or electoral votes of each 
 State corresponding to the proportion of the popular 
 vote received by him in each State. 
 
 " The people of each State would continue to vote as they 
 now vote, independently of the people of all the other States, 
 and the effect of their votes upon the result of the election 
 would not depend in the least degree upon the action of the 
 people elsewhere. Voters in the several States would not be- 
 come voters of the United States, but would remain voters of 
 their respective States." 
 
 Under this plan, he argues, it will be just as important 
 to secure a large vote in one State as in another, but "the 
 demoralizing contests for the control of doubtful or 
 'pivotal' States will not occur." 
 
 No plan has ever been suggested which would so cer- 
 tainly secure minority expression or preclude the possibil- 
 ity of fraud in a presidential election. That it can be so 
 employed as to insure a true and correct count, without 
 conferring canvassing power upon Congress, it will be my 
 aim to show. 
 
CHAPTER XIII 
 
 A SUGGESTED REMEDY 
 
 THE theory of the electoral franchise, as exercised in 
 the United States, is that every voter is a voting 
 unit, of equal force with every other voter. Equality 
 consists not alone in the privilege of enjoying the elective 
 franchise, but in the efficiency of the vote. The voting 
 power of the several units being equal, the only differ- 
 ence lies in aggregates. If the total of the units for one 
 ticket exceed the total for another, the vote for the de- 
 feated candidate is ineffective in respect of the immediate 
 end sought. This, however, is but another phase of the 
 law that the stronger force or combination of forces is 
 controlling. Subject to the possibility that in the im- 
 mediate election, — not in its prospective potency, — the 
 ballot may prove to be inefficacious, every voting unit 
 should be the equivalent of every other and play the same 
 part as its fellows in the creation of an ultimate aggre- 
 gate. Whatever force there may be in the idea that 
 voting power should be so correlated with education or 
 intelligence as to give the superior intelligence more in- 
 fluence in the exercise of the ballot, that idea has not yet 
 pervaded the American mind, and is at present unprac- 
 tical ; for if political philosophy inculcate any lesson, it 
 is that electoral methods are not to be reasoned out in 
 the closet, but are to be evolved from political experi- 
 ence. Cumulative voting, except in so far as the system 
 hereafter to be explained helps to advance it, is equally 
 
 364 
 
A Suggested Remedy 365 
 
 out of the question. In every gubernatorial or State 
 canvass, where, as is common throughout the country, 
 each citizen deposits his ballot directly for the candidate 
 for the particular office, each vote tends directly and 
 equally towards a particular end, — the creation of a suc- 
 cessful aggregate — and sustains no loss of energy by the 
 interposition of some intermediate office or college. In 
 every voting area smaller than the State, the same prin- 
 ciple holds good ; the individual vote is no less effective, 
 and results are determined according as one aggregate 
 exceeds another. The only instance in the use of the 
 ballot in the United States in which the vote is shorn of 
 its full significance, as a vote, from the moment of its 
 deposit, or, in other words, becomes subject to some in- 
 fluence that may render it absolutely futile and lead to 
 its elimination from the final count, arises under the 
 presidential electoral system. The voting area under the 
 general-ticket system is the State ; if the State were par- 
 celled into districts, the voting area would be a district 
 and that area be expanded to embrace the entire country^ 
 supposing all State lines effaced. Whenever a presiden t 
 tial election is held, the real aim is, and has been ever 
 since^the initiation of the Government, not the election 
 of electors, but the election of the President ; and in every 
 State, at every presidential election, owing to the inter- 
 vention of the electoral college, the voter for electors un- 
 successful in that State has never yet deposited a ballot 
 that had the slightest influence in the ultimate aggregate 
 or count. This result is not commonly appreciated; 
 certainly not by those who affirm that the electoral sys- 
 tem, even if obsolete and archaic, is unimportant. Were 
 all electoral mechanism discarded, yet the general-ticket 
 system maintained, the same reduction in the efficiency 
 of each voting unit would continue, and even if the dis- 
 trict system were adopted, impairment of the voting 
 power of all voters for an unsuccessful candidate would 
 
3^6 The Electoral System 
 
 result, although in diminished ratio. The voting unit 
 would rise to its maximum of efficiency if each voter 
 should contribute directly to the electoral result in a 
 State in the ratio which his vote bears to the total num- 
 ber of voting units in that State. 
 Ny^ The general-ticket system stands condemned for many 
 reasons, already given, and the artificial district division is 
 open to the criticism that it would give the ballot of every 
 citizen who votes for a defeated candidate less weight, in 
 itself, than the corresponding ballot of a citizen who votes 
 for the successful one. The introduction of any arbitrary 
 thing between the vote and the result deprives the vote 
 of its force, whether the arbitrary obstruction be an 
 elector or an artificial area, such as a district. A State 
 is not an artificial area, but a living entity, under our sys- 
 tem of government, and the relative electoral weight of 
 the several States must be preserved unless the system of 
 the Constitution is to be radically altered. That a State 
 with a population only a fraction of the population of an 
 ordinary congressional district should wield equal or 
 greater power in the election of a President may be un- 
 just in theory, but the compromise was a necessary con- 
 cession to the smaller States ; and unless the States are to 
 form a different sort of union, this electoral inequality 
 will continue. The statistics of presidential elections 
 reveal the fact that this inequality tends towards a mini- 
 mum, because the vote of one small State for a Repub- 
 lican candidate, for example, is frequently neutralized by 
 that of another little commonwealth for the Democratic 
 candidate. fBut, as it has to be postulated that State 
 ' lines are to remain, and that each State is to retain that 
 fraction of its influence in the choice of a President to 
 which its representation in the Senate and in the House 
 entitles it, the only method whereby all the voting units 
 within that State can be placed upon a par of efficiency is 
 by the allotment to every candidate of that proportion j 
 
A Suggested Remedy 367 
 
 of the presidential vote of the State to which the ratio of 
 the vote for him to the entire vote of the State for all 
 candidates entitles him. Upon this plan and upon this ^ 
 
 plan only is each voter within the State placed in that H-^^l!:^'^ 
 situation of equality with every other voter to which the 
 privilege of the suffrage gives him a right. It is true 
 that a voter for a candidate who gains no electoral vote 
 in the State suffers a loss of voting equality, but in a 
 presidential election this is not a fault of consequence, 
 because the tendency has always been to the existence 
 of two formidable political organizations, and if a party 
 cannot muster a sufficient number of voting units in a 
 State to enable it to control at least one electoral or 
 presidential unit, the impairment to the individual vote 
 is not serious. If three or four parties exist, each having 
 considerable or comparatively equal strength, this system 
 will insure to each of them its full electoral significance. 
 
 The change has other advantages than its manifest 
 justice to each individual voter. While the district sys- 
 tem would be an improvement upon the general-ticket 
 system, in lessening the temptation to fraud and securing 
 a partial representation of minorities and in bringing the 
 executive and the Lower House of Congress into har- 
 mony, its liability to the "gerrymander" would greatly 
 impair its usefulness. As a matter of fact no plan has 
 yet been devised that can prevent the reapportionment 
 of districts to suit the needs of partisanship or eradicate 
 the instinct of the politician to use all means not for- 
 bidden by statute to secure an election triumph. The 
 greatest of statesmen have not been exempt from the 
 temptation to achieve party success by illicit methods. 
 
 Although the district system does not present such 
 inducement to fraud as the general-ticket system, fraud 
 is still possible. Nor does the district system give 
 adequate opportunity for the expression of minority 
 sentiment. It may easily happen that the vote of a few 
 
368 The Electoral System 
 
 districts in a State or in different States would be deci- 
 sive of an election, for certain districts may be corrupted 
 and those districts decide the election. The politician 
 displays a certain narrow form of acumen, and politi- 
 cal leaders would be swift to locate and control doubtful 
 districts. Returns could be held back from such dis- 
 tricts until results elsewhere were known, and such re- 
 turns then be manipulated to suit the exigencies of party. 
 Nothing of this kind is possible under the system here 
 advocated; this system gives every voter opportunity 
 not only to vote, but to participate in the actual result 
 of the election. 
 
 The vital difficulty under the present system is with 
 the electoral count. The required improvement is two- 
 fold: first, the abolition of the electoral office, and, 
 secondly, the adoption of a system which reduces the 
 ultimate count at the seat of government to a simple 
 mathematical computation ; in other words, to what the 
 fathers of the Constitution intended the electoral count 
 should be. 
 
 Under the general-ticket system, even without elec- 
 tors, returns substantially similar to those now made by 
 the electoral colleges would be transmitted from the 
 States to the Government. Under the district system 
 there would be similar returns, every separate set of 
 which would be subjected to scrutiny. While returns 
 must be made to Washington under any system, the 
 final count should never be anything more than an 
 enumeration of electoral or presidential votes, the only 
 possibility of difficulty arising where there are two con- 
 flicting State governments, a contingency that has to be 
 faced. 
 
 The canvass in every State would take place as it does 
 at present in electing a governor, and experience shows 
 that there has rarely if ever been a controversy in any 
 commonwealth, except during the reconstruction era, 
 
A Suggested Remedy 369 
 
 over the election of any State official. The canvass 
 should be conducted under the auspices of the ultimate 
 State canvassing board precisely as in the election of a 
 governor or other State official. When the total vote 
 for President or Vice-President shall have been counted 
 and canvassed by the requisite State authorities, it will 
 be the duty of those authorities to allot to each can^lH^ate 
 his quota of the presidential votes, this to be ascertained 
 by apportioning to him presidential votes in the ratio 
 between the total popular vote for him and the aggregate 
 popular vote for all candidates. This plan would have 
 the effect of stimulating party activity in salutary direc- 
 tions. Unable longer to rely upon tricks or subterfuges, 
 bribery of voters, falsification of votes or certificates, 
 unable to count upon the strict party loyalty of certain 
 sections, or the apathy of others, or to measure indepen- 
 dence or hostile sentiment in any, parties would be forced 
 to the consideration of essentials. Candidates of higher ^ ': \ 
 character would be sought, and campaigns be conducted 
 for specific principles. Intelligence and independence 
 would secure more effective expression, and there would 
 thus be achieved one great aim of those who believe in a 
 cumulative educated vote, — that is, the bringing of higher 
 voting qualities into a position of commanding influence 
 in a campaign. The ordinary party voter is in a condi- 
 tion of stable equilibrium, and his vote can be predeter- 
 mined. It is the independent voter who decides elections, 
 and under the proposed system this kind of citizen fulfils 
 his function best. The educative influence upon the 
 whole mass of citizenship of such a method of voting for 
 the President can hardly be exaggeratedy 
 / All impediments placed between the voter and the re- 
 sult, whether an electoral college or an arbitrary division 
 of a State, tend to diminish the voting power of the indi- 
 . vidual voter. The proposed method not only overcomes 
 \ that evil, but operates to equalize the ballots of all voters,^ 
 
370 The Electoral System 
 
 even in view of the final result. Everj^ citizen who shall 
 go to the polls to vote for either President or Vice-Presi- 
 dent will be possessed of the consciousness that his ballot 
 is no longer in danger of becoming a cipher, when the 
 vote of his State comes to be counted, but is sure to 
 enter as a dynamic unit into the ultimate choice of his 
 Stat^ and can be neither nullified nor impaired. (Even 
 if it do not enter into the larger or the smaller ratio of 
 the electoral strength of the State in quantity sufficient 
 to gain a single presidential vote, it is no longer in dan- 
 ger of absolute annihilation, and its decimal strength, 
 added to the presidential units cast for the same candi- 
 dates in other States, may co-operate towards an ultimate 
 triumph) (Under the present system of voting, whether 
 for electors, State officers, members of Congress, or other 
 officials, when the canvass comes to be made, every citi- 
 zen who has not voted for the winning side perceives 
 that, so far as immediate results are concerned, he might 
 as well not have voted. Under the proposed method 
 this can never happen in the ascertainment of the will of 
 the State, for each party is to receive its due share of the 
 State's presidential votes.y No other system so com- 
 pletely preserves the equality of the States. A new 
 dignity is thus imparted to the State; it is an integer, 
 separate from its sisters, in the election of President ; and 
 every citizen of the State knows that the subtraction of 
 his vote would make a difference in the result, and that 
 the voice of the State, as ultimately proclaimed, is the 
 direct sum of all the individual voices throughout the 
 commonwealth. A new and higher theory of the State ' 
 
 ' The true conception of the State is not that it consists of a majority or 
 a plurality of the people at any time in control of its administrative and 
 legislative departments. The State is the abstract of all the people who 
 compose it, although it usually acts through agents elected by only a por- 
 tion of its citizens. A State is as much a federation as is a republic of 
 States. Under the contrary doctrine all governmental functions should be 
 absorbed in a central authority. The preamble of almost every State con- 
 
A Suggested Remedy 371 
 
 rises into conception, while there is also recognized a 
 dominating will of the central authority, the expression 
 
 stitution recites that the instrument is the work of the people of the State ; 
 the people ratify a constitution before it becomes effective, and, in every 
 State, the people may amend it through conventions to which they elect 
 delegates. The Legislature of any State has the constitutional power to 
 declare that the choice of presidential electors should be determined in such 
 a manner as is herein proposed. 
 
 That a State is not a majority of the people, but the entire people, was 
 well shown in the celebrated case of Texas vs. White, 7 Wallace R., 700, 
 721, where Chief Justice Chase, after stating the various significations 
 attached to the word, — of a people or community of individuals united 
 more or less closely in political relations, inhabiting the same country ; of 
 the country or territory itself ; of the government under which the people 
 live ; and of the combined idea of people, territory, and government, says : 
 "In all these senses the primary conception is that of a people or com- 
 munity. The people, in whatever territory dwelling, either temporarily or 
 permanently, and whether organized under a regular government, or united 
 by looser and less definite relations, constitute the State. ... A State, 
 in the ordinary sense of the Constitution, is a political community of free 
 citizens, occupying a territory of defined boundaries, and organized under a 
 government sanctioned by a written constitution, and established by the 
 consent of the governed. . . . 
 
 " And there are instances in which the principal sense of the word seems 
 to be that primary one to which we have adverted, of a people or a political 
 community, as distinguished from a government. 
 
 " In this latter sense the word seems to be used in the clause which pro- 
 vides that the United States shall guarantee to every State in the Union a 
 republican form of government, and shall protect each of them against 
 invasion." 
 
 And in McPherson vs. Blacker, Chief Justice Fuller, speaking for the 
 highest tribunal of the nation, in answer to a like criticism against the' 
 adoption of the district system in Michigan, said : " The act of appointment 
 is none the less the act of the State in its entirety because arrived at by dis- 
 tricts, for the act is the act of political agencies duly authorized to speak 
 for the State, and the combined result is the expression of the view of the 
 State, a result reached by direction of the Legislature, to whom the whole 
 subject is committed." 
 
 The majority report of the Southard committee is therefore sound in its 
 declaration: " The State and the people who compose it are virtually one 
 and the same. . . . For all the purposes of domestic government, the 
 people, theoretically and practically, constitute the State, although in a 
 technical, legal sense, the organized body politic is recognized as such." 
 
\ 
 
 372 The Electoral System 
 
 of the resolve of a majority or plurality of all the States 
 composing this imperial republic. Those who, like Sen- 
 ator Edmunds, object to the district system as oblitera- 
 tive of State lines must recognize that the proposed 
 substitute for the present system preserves the State 
 as an entity. Never has a State, in the sense of the 
 citizenship of which it is composed, been adequately 
 represented in a presidential election. When electors 
 were appointed by the Legislature, there was a suppres- 
 sion of a large section of citizenship, the minority party, 
 whose ballots were more than counterbalanced in the 
 Legislature by the ballots of their opponents. Under 
 the district system, which was never in uniform operation 
 throughout all the States, there was the equally despotic 
 control of the majority in the district, and the district 
 was itself an arbitrary subdivision of the State. Under 
 the.._general-ticket system vast masses of citizens have in 
 effect been disfranchised even by their inferiors in num- 
 bers. To all such injustice there will be an end and the 
 ballot will gain a new meaning and importance upon the 
 adoption of the proposed method. 
 
 Inasmuch as the State should control its own count, 
 and is to fulfil the same function as under the present 
 Constitution, although much more perfectly, the State 
 should, as at present, decide upon the qualifications of 
 its voters. There is no occasion for any departure from 
 the plan of the original Constitution, no reason for draw- 
 ing under the jurisdiction of the general Government 
 questions touching the qualifications for suffrage of citi- 
 zens who vote for President. The lines of demarcation 
 between State and Federal authority should be drawn 
 with the strictest precision. Were the existing system 
 otherwise flawless, the limitations could be plainly made. 
 The appointment of electors and the deposit of their 
 votes are absolutely under State control, but from the 
 moment when the returns are transmitted to Washing- 
 
A Suggested Remedy 373 
 
 ton the subject passes under exclusive central control. 
 Equally sharp distinctions are attainable under the pro- 
 posed system. It would make the simplest change in 
 the present Constitution, although a radical one. While 
 it fully preserves the meaning and intent of that instru- 
 ment, in all other respects save in regard to electors, 
 whose office it abolishes, it is based, like all other pro- 
 visions of the organic law, upon prior experience. It 
 provides for a true arithmetical count and a declaration 
 that shall be final and irreversible, for the title to the 
 office of the President must never remain in suspense 
 for an instant. 
 
 How, it may be asked, is the evil of multiple returns 
 to be averted? None such can ever come, unless there 
 should be rival State governments in the same com- 
 monwealth, as when both Kellogg and McEnery claimed 
 the governorship of Louisiana. The danger in the pres- 
 ent system from the caprice of voters is also avoided. 
 Should some sectional or socialistic feeling prevail in a 
 number of States, it might, with slight aid from more 
 rational sections, control the presidency ; whereas, while 
 a plurality candidate is a possibility under the proposed 
 system, the successful candidate is far more likely to 
 reflect the actual sentiment of his party. Had such a 
 system been in existence prior to the Civil War every 
 Southern citizen whose affinities lay with the Republican 
 party would have found opportunity to express his senti- 
 ment at the polls effectively and without danger of ostra- 
 cism, since his ballot was secret. "The South would have 
 been taught to respect the strength of its minorities, and 
 have been enlightened as to the intensity of antagonistic 
 feeling in other States where similar ideas were in a 
 minority. In result the course of events might easily 
 have been modified. 
 
 It is an elementary proposition of mathematics that 
 there is far more probability of an equality within the 
 
374 The Electoral System 
 
 State in the division of electoral votes than in the division 
 of the popular vote of the State. The nearest approxi- 
 mation in the. history of the nation to equality of the 
 popular vote for candidates for the presidency occurred 
 in Maryland in 1832, when Clay's popular vote exceeded 
 Jackson's vote by four. It may be that there never was 
 this close approximation, for the vote for Wirt may have 
 been included in the returns for Clay. Inspection of 
 election statistics shows a number of fairly close approxi- 
 mations, but no instance of equality in the popular vote 
 of a State for different candidates, through an entire cen- 
 tury. Hence the likelihood of an equal division of the 
 total popular vote of a State among two or more candi- 
 dates is very remote. The probability of an even division 
 of the electoral vote occurring at the same time with an 
 even division of the total popular vote either of a State 
 or of the nation is much more remote; hence the danger 
 of tie votes is reduced to a minimum. Wherever the 
 number of presidential votes throughout the country is 
 an odd number the danger of an equality of division is, 
 perhaps, less than when that number is an even number. 
 If two or more candidates having the highest number 
 of presidential votes throughout the country should have 
 also an equal number of such votes (which might as easily 
 happen under the proposed as under the existing system), 
 the presidency is to be allotted to the candidate who has 
 the largest popular vote throughout the entire country. 
 There could be no difficulty in making a selection under 
 this plan. Every certificate sent from a State to Wash- 
 ington would contain, first, the total popular vote of the 
 State, second, the number of popular votes for each can- 
 didate, and, third, the apportionment of the State's 
 presidential vote among such candidates, assigning to 
 each a fraction of a per cent., however small the fraction 
 may be, provided it be not less than the equivalent of 
 three or four decimals. Wherever two or more candidates 
 
A Suggested Remedy 375 
 
 have the highest number and the same number of presi- 
 dential votes, and also, as is improbable, an equal popu- 
 lar vote, the popular vote for each must also be certified. 
 Inasmuch as every new State will have been recognized 
 as a State before the popular election, there is no need 
 of providing, by constitutional amendment, a definition 
 of a State. Heretofore the difficulty in determining 
 whether a community had a right to be considered a 
 State has arisen from the fact that, at the time of the 
 popular election, the community was a Territory, but 
 had become a State when the electors convened to make 
 their choice for President and Vice-President or when the 
 electoral count took place. This dual election occasioned 
 the controversy. The abolition of the dual election 
 simplifies the question. Unless a community is a State, 
 recognized by Congress and the executive department on 
 the day when the people vote, her citizens are to have no 
 voice in the selection of a President or Vice-President. 
 
 All contests must be settled within the State, for they 
 are exclusively matters of State concern. Here, again, 
 the independence of the State is conserved. Under the 
 present Constitution, contests may be matters partly of 
 State and partly of national interest. The State appoints 
 the electors; the electors convene within the State and 
 vote. Controversies over their appointment, i. e,, as ta 
 the number of votes for them, should be settled by the 
 States themselves. The title of the elector, his eligibil- 
 ity to the office, may be, and, I think, properly is, a mat- 
 ter of national interest, although the divergent opinions 
 of statesmen indicate that such questions may legitimately 
 come before either a State or a Federal tribunal. 
 
 Under the suggested system the national Govern- 
 ment would be concerned with nothing beyond the 
 proper certification and transmission of the returns, until 
 they are opened in the joint meeting of the Houses. 
 If an ineligible candidate should be voted for, which is 
 
37^ The Electoral System 
 
 extremely improbable, it would be the duty of the State 
 canvassing officials to report the fact, together with the 
 number of popular votes for such candidate and the ratio 
 of the electoral votes affected ; and these votes should be 
 discarded in the final count. But there is as little like- 
 lihood that any party will nominate an ineligible candi- 
 date as that the popular election will not be held on the 
 appointed day. The abolition of the electoral college 
 would permit of a longer period (if that should be decided 
 upon as desirable) for the adjustment of controversies 
 within the State. It would be sufficient if they were all 
 determined before the second Wednesday of February, 
 which allows an interval of more than three months after 
 the election to ascertain how the people of the State 
 have voted. The probability that any contest would 
 arise in a State is reduced to the lowest possible minimum, 
 because the temptation to fraud, bribery, and false cer- 
 tificates of all sorts is greatly reduced. A close district, 
 under the district system, might be contested by one 
 party or the other. The temptation to party managers 
 to make the fight in close or doubtful districts is pecul- 
 iarly seductive. In fact, as Edmunds says, the district 
 system would increase the possibility of disputes over 
 returns, by making the number of returns as large as the 
 number of districts. A close State might occasion con- 
 troversy when the total vote of the State was to be swung 
 to one party or the other under the general-ticket system. 
 Inasmuch as under the proposed system every vote in 
 the State is to count, and as the presidential votes of the 
 States are to be divided in the ratio of the respective 
 records of the popular vote, there could be no incentive 
 to controversy, unless (something extremely unlikely) 
 two or more candidates should have such a closely ap- 
 proximating popular vote as to imply that there had been 
 corruption or bribery. 
 
 Congress should make complete and ample provision 
 
A Suggested Remedy 377 
 
 for the certification of the vote of each State and the ap- 
 portionment of electoral votes among the candidates. 
 The liability to mathematical error in all matters to be 
 certified by the State authorities is so slight that it may 
 be disregarded. It should be made the duty of the State 
 officials to authenticate returns by appropriate certifi- 
 cates, and a serious penalty should be imposed upon dis- 
 obedience or neglect. 
 
 Bearing in mind the various questions that have arisen 
 in the history of the electoral count, I venture, in the 
 light of the different suggestions that have been made 
 and of the foregoing explanation, to propose an amend- 
 ment, as follows : 
 
 ARTICLE XVI 
 
 Resolved, by the Senate and House of Representatives 
 of the United States of America in Congress assembled 
 (two-thirds of each House concurring therein), that the 
 following article is hereby proposed as an amendment to 
 the Constitution of the United States and when ratified 
 by the Legislatures of three-fourths of the several States 
 shall be valid to all intents and purposes as a part of the 
 Constitution, to wit : 
 
 I. That hereafter the President and the Vice-President 
 of the United States shall be chosen directly by the elec- 
 tors of the respective States having the qualifications by 
 the laws thereof requisite for the electors of the most 
 numerous branch of the State Legislature, and in the 
 manner following: Each State shall be entitled to a num- 
 ber of votes in the election of the President and also of 
 the Vice-President equal in number to the whole number 
 of Senators and Representatives to which the State may 
 be entitled in the Congress of the United States, which 
 votes shall be called presidential votes and vice-presiden- 
 tial votes, as the case may be. Such election shall be 
 
37^ The Electoral System 
 
 held upon a day to be designated by Congress and shall 
 be the same day throughout all the States. 
 
 2. The presidential votes to which each State shall be 
 entitled shall be apportioned among the persons receiving 
 the votes for President of the duly qualified electors of 
 the State in proportion to the number of votes such per- 
 sons shall respectively receive in such State, to be ascer- 
 tained by dividing the total number of votes cast by the 
 qualified electors of such State voting for each of such 
 persons, by the total number of votes cast by all the 
 qualified electors of the State voting for all such persons, 
 and allotting to each of such persons such proportion. or 
 fraction or decimal portion of the presidential votes of 
 the State as is represented by the ratio of the total num- 
 ber of votes cast for him by all the qualified electors of 
 the State to the total number of votes cast by all the 
 qualified electors of the State voting for all such persons. 
 
 3. The person receiving the highest number of presi- 
 dential votes, including, if such there be, decimal parts 
 of presidential votes, in all the States, shall be President, 
 and shall be declared to be such in the manner hereinafter 
 provided. 
 
 4. If two or more of such persons shall receive the 
 highest and an equal number of presidential votes, in- 
 cluding decimal parts of presidential votes in all the 
 States, that one shall be President who shall have re- 
 ceived the largest number of votes, in the aggregate, of 
 all the qualified electors for President in all the States. 
 If two or more such persons shall receive the highest and 
 an equal number of presidential votes, including decimal 
 parts of presidential votes in all the States, and shall also 
 have an equal number of votes in the aggregate of all the 
 qualified electors for President in all the States, that one 
 of such persons shall be President who shall have received 
 the largest number of votes of the qualified electors in the 
 greatest number of States. 
 
A Suggested Remedy 379 
 
 5. The total number of votes cast by the qualified 
 electors of each State for each such person at each presi- 
 dential election shall be ascertained and determined as 
 soon as practicable by the canvassing authorities of the 
 State duly constituted by the laws thereof as the canvass- 
 ing board or officers of such State, and certified to be 
 such by the chief executive of the State. And by such 
 dates as Congress shall prescribe lists of such returns 
 shall be made by such canvassing authorities in triplicate, 
 all of which sets shall be duly signed and certified by 
 them, and one shall be transmitted to the president of 
 the Senate; the second to the speaker of the House of 
 Representatives; and the third shall be filed in the office 
 of the Secretary of State of the United States; but all 
 such lists of returns shall state: (i) The aggregate num- 
 ber of votes for all such persons cast by the duly qualified 
 electors at such election ; (2) the total number of votes 
 for each such person cast by such duly qualified electors ; 
 (3) the number of presidential votes of the State, includ- 
 ing decimal parts of such votes, apportioned to each such 
 person, according to the principle of apportionment de- 
 clared in this article. All such returns shall be duly 
 certified under the great seal of the State and by the 
 chief executive thereof. 
 
 6. The president of the Senate shall, except as herein- 
 after provided, open one set of all such certificates and shall 
 count the presidential votes returned therein in the pres- 
 ence of the Senate and the House of Representatives with 
 the aid of two tellers to be appointed by each House. The 
 person having the greatest number of presidential votes, 
 including decimal parts of such votes, in all the States, 
 shall thereupon be declared the President of the United 
 States; and if two or more persons have the highest 
 number and an equal number of presidential votes, in- 
 cluding decimal parts of such votes, in all the States, 
 that one shall be declared the President of the United 
 
3 
 
 So The Electoral System 
 
 States who shall according to such returns have received 
 the largest number of votes in the aggregate cast by the 
 qualified electors for President in all the States. If two 
 or more such persons shall receive the highest and an 
 equal number of presidential votes, including decimal 
 parts of such votes, and shall have also an equal number 
 of votes in the aggregate of all the qualified electors who 
 shall have voted for President in all the States, that one 
 of such persons shall be declared President who shall have 
 received the largest number of votes of the qualified 
 electors in the greatest number of States. If the presi- 
 dent of the Senate shall be one of the persons voted 
 for, the Speaker of the House shall preside and shall 
 declare the result, unless the Speaker shall be one of the 
 persons voted for, in which event the two Houses in 
 joint meeting voting per capita shall select the presiding 
 officer. 
 
 7. All controversies or contests over the votes cast 
 in any State by the qualified electors of such State for 
 any person eligible to be President shall be determined 
 according to the laws of that State by the tribunals 
 thereof; and all such controversies or contests shall be 
 finally determined before the date which shall be desig- 
 nated by Congress when the certificates shall be opened 
 as prescribed in section 6 of this article. If any de- 
 cision by the highest tribunal of said State having juris- 
 diction under the laws thereof, upon any controversy or 
 contest affecting the returns, shall have been rendered 
 after the transmission of the lists of returns, a copy of 
 such decision exemplified or authenticated in such man- 
 ner as the Congress shall prescribe, if transmitted as said 
 lists of returns are required to be transmitted, and before 
 the final count prescribed in section 6 of this article, 
 shall govern in such final count. 
 
 8. The foregoing provisions shall also apply to the 
 election of Vice-President, but no qualified elector shall 
 
A Suggested Remedy 381 
 
 vote for persons for President and Vice-President who 
 shall both be inhabitants of the same State with himself, 
 or his vote shall be null and void. And every vote by 
 such elector for a person ineligible by the Constitution to 
 the office of President or Vice-President shall be null 
 and void. 
 
 9. The Congress shall have power to enact such 
 legislation as may be necessary and proper for carrying 
 into effect each and all of the provisions of sections 5, 
 6, 7, and 8, respectively, of this article, and may pre- 
 scribe appropriate penalties for the violation of said 
 provisions or any of them. 
 
 10. In case of the death or inability of a President- 
 elect, or his renunciation of the office of President, the 
 Vice-President-elect shall become President, and the 
 Congress may by law provide for the case of the death, 
 or inability of both the President-elect and the Vice- 
 President-elect, and the renunciation by both of their re- 
 spective offices, and shall declare what officer shall then 
 act as President, and such officer shall act accordingly until 
 the disability be removed or a President shall be elected. 
 The Congress shall also have power to prescribe what 
 shall constitute inability of the President or of the Vice- 
 President, President-elect or of the Vice-President-elect, 
 and in what manner and by whom such inability shall be 
 determined. 
 
 Section i determines what voters may ballot for Presi- 
 dent and Vice-President, and it uses, in describing these 
 voters or electors, the language employed in subdivision 
 I, of section 2 of Article I., which provides who shall 
 have the right to vote for Representatives. Section 2 
 is in accordance with the theory which has been advo- 
 cated in this chapter that each voter should be an actual 
 factor in the ascertainment of the division of the presi- 
 dential votes to which his State is entitled. Section 3 
 needs no explanation. The purpose of section 4 is to 
 
382 The Electoral System 
 
 settle all possible controversy or dispute in case of a tie. 
 There might readily arise a tie in the present electoral 
 colleges, and two or more candidates might easily 'have 
 the same number of presidential votes even if the colleges 
 should be abolished. But, as has heretofore been ob- 
 served, it is highly improbable that any two candidates 
 having the highest and an equal number of presidential 
 votes would have an exactly equal number of votes of the 
 electors in all the States. If such an improbable con- 
 tingency should arise, the section assures the election of 
 some one of the candidates, by providing that that one 
 shall be President who is the choice of the larger number 
 of States in addition. The provision in section 4 giv- 
 ing the presidency, in case of a tie in presidential votes, 
 to that one of the two candidates who has the largest 
 popular vote in all the States, is of value also in tending 
 to secure the fullest party vote in every State. Since the 
 election may turn upon the size of the vote, each party 
 will aim to bring out its full strength. The solution of 
 a tie vote is thus made instrumental in obtaining votes. 
 The purpose of section 5 is to solve the difficulties which 
 have arisen regarding the count and canvass of electoral 
 returns. I have already stated that under the proposed 
 system the possibility of disputes will be reduced to a 
 minimum. The summation of the votes cast for differ- 
 ent candidates by the electors in the different States can 
 readily be made, and only when the number of votes for 
 two or more candidates closely approximates is there any 
 likelihood of dispute or question. But such disputes 
 cannot be prearranged, as might readily happen with 
 small districts or voting areas, and all incentive to dis- 
 pute is removed. In order to avoid the possibility of 
 multiple returns, provision is made that the canvass in 
 each State shall be made by definitely designated canvass- 
 ing officials, and unless there be two co-existing State 
 governments in a commonwealth there cannot be more 
 
A Suggested Remedy 383 
 
 than one such canvassing body at any one time ; and to 
 authenticate the returns of this body as the canvassing 
 authority, the certificate of the executive of the State is 
 required. The details which are to be inserted in the 
 returns are absolutely necessary to a correct enumeration 
 or count at Washington, and they contain nothing more 
 than may be essential. If the successfulness of the pro- 
 posed method be tested by the disputes which arose in the 
 case of the conflicting returns from Florida, Louisiana, 
 South Carolina, and Oregon, in 1877, it will be found, I 
 think, that the possibility of dual returns is obviated. In 
 the Florida case the three sets of certificates transmitted 
 from that State were all differently authenticated. The 
 first, which contained the return of the Hayes electors, 
 was authenticated by Governor Stearns, who was the chief 
 magistrate of that commonwealth at the time of the popu- 
 lar election. The second and the third were authenticat- 
 ed by Governor Drew, who took office on January i, 1877. 
 These last two sets of certificates were in effect one, both 
 having been sent to maintain the claim that the Tilden 
 electors had been elected. In the Louisiana case there 
 were also three sets of certificates, the first and the third 
 asserting the title of the Hayes electors, and the second 
 that of the Tilden electors, the first and third having been 
 authenticated by the governor of the State in office at the 
 time of the popular election, and the second by Mc- 
 Enery, who claimed to have been the governor at such 
 time. The first of the two Oregon certificates was not 
 authenticated by Governor Grover, the chief executive at 
 the date of the popular election, but by the secretary of 
 state, who claimed to be the sole State canvassing officer 
 and whose title to that position was upheld by a majority 
 of the commission. The second return was, in fact, 
 authenticated by Grover, but was not predicated upon 
 the action of the State canvassing authority. In the 
 case of South Carolina, Governor Chamberlain attached 
 
3^4 The Electoral System 
 
 his certificate to the lists transmitted by the Hayes elec- 
 tors, whereas the second certificate had no such authentica- 
 tion. So long, therefore, as separate State governments 
 are not asserted to exist in any community, there can be 
 but one set of State canvassing officials recognized by the 
 laws of that State at any particular date. There is but 
 one date possible, the date of the return. No provision 
 is made in the proposed amendment for the case of dual 
 State governments, for several reasons: First, that it 
 does not comport with the dignity of an amendment to the 
 Constitution that it shall recognize the possibility of such 
 an anomalous condition of affairs in any State as a con- 
 flict between separate governments; second, because of 
 the extreme unlikelihood of the recurrence of such con- 
 ditions as prevailed in 1877; and third, because, under 
 the proposed plan, the incentive to conflicting returns by 
 separate State executives is removed and the possibility 
 of such conflict eliminated. Inasmuch as all returns are 
 to be certified under the seal of the State by its chief 
 executive, the Government is furnished with the high- 
 est possible authentication of the jurisdiction of the 
 State canvassing board. In the event of a contest or 
 controversy which shall modify or alter the returns as 
 originally transmitted by the State canvassing authority 
 under executive authentication, it is equally necessary 
 that the final judgment of any State tribunal recanvass- 
 ing these returns should be authenticated, but that is a 
 detail for congressional legislation. It is difficult to per- 
 ceive how any controversy as to the returns can be carried 
 to the general seat of government, except in the sole 
 contingency of the existence of rival State organizations. 
 If a State should be in such a condition of anarchy there 
 might well be a provision (which has been omitted) that 
 the returns from that State should be altogether dis- 
 carded. The disfranchisement of the State would thus 
 be the consequence of its own acts and would not result 
 
A Suggested Remedy 3^5 
 
 from the arbitrary decision of the two Houses of Con- 
 gress, or of either of them. 
 
 The provisions of section 6 are designed to reduce 
 the count at Washington to the simple task of enumera- 
 tion, — which is in accordance with the theory of the 
 founders of the Constitution, — and the declaration of the 
 result. Tellers are to be appointed by each House to 
 aid the president of the Senate, who might find the duty 
 of making the enumeration too burdensome, and the pro- 
 vision for tellers gives each House that kind of surveil- 
 lance over the ceremony which the original Constitution 
 probably intended that the Houses should exercise. To 
 avoid the danger — which under the proposed system 
 seems almost infinitesimal — that the president of the 
 Senate, if a candidate for the place of chief executive, 
 might be swerved by unworthy motives from the correct 
 performance of his simple duties, provision is made for 
 the substitution of the Speaker of the House or, should 
 the Speaker of the House be disqualified for like reasons, 
 for the appointment by the two Houses in joint session 
 of a temporary presiding officer. As was well said by 
 several of the majority members of the electoral tribunal 
 of 1877, there must come a time when disputes over the 
 presidential succession shall terminate, and the final de- 
 termination must be reached before the 4th of March. 
 Hence the count at Washington is declared to be a final- 
 ity, and the impressive ceremony of a declaration or 
 announcement is required; and in order to remove all 
 possible question, the amendment proposes in section 
 7 that controversies or contests shall be settled by the 
 States themselves. This is plainly in accordance with 
 the theory of the present Constitution and was certainly 
 the doctrine of the majority of the Electoral Commission 
 of 1877, 'f riot of all its members. 
 
 To avoid such a question as arose in Arkansas in 1873, 
 — whether a State has a great seal, — the Congress might 
 
386 The Electoral System 
 
 prescribe that every State shall have a seal for the pur- 
 pose of authenticating its returns, and might require the 
 deposit of a facsimile or an appropriate description of 
 the seal in the office of the Secretary of State at Wash- 
 ington. The States are to make their choice of Presi- 
 dent and Vice-President with absolute freedom from 
 interference by the general Government, while Congress 
 is authorized to compel by legislation a proper and un- 
 questionable certification of results. 
 
 In order that there may be no question whether the 
 constitutional prohibition in section 8 is self-executing, 
 the section provides that a ballot cast by a qualified elec- 
 tor for a President and a Vice-President, both of whom 
 shall be inhabitants of the same State with himself, or a 
 ballot cast for a candidate disqualified by the Constitu- 
 tion because of lack of age or of citizenship, shall be null 
 and void ; and, in view of the discrimination between the 
 powers that belong exclusively to the State and those 
 properly vested in Congress, section 9 gives Congress 
 power to enact the necessary legislation for carrying into 
 effect the provisions of those sections, and those only, 
 with whose operation the central authority is concerned. 
 Thus the amendment preserves the separate and exclusive 
 sphere of State action from encroachment by the general 
 Government, and gives to each qualified voter of the 
 State that measure of electoral influence to which under 
 any fair system of suffrage he is entitled. The useless 1 
 and dangerous office of presidential electors disappears,] 
 with all of the numerous controversies over their appoint- 
 ment, their title, disqualifications, the existence of vacan- 
 cies, the right to fill vacancies, etc. The abolition of the 
 electoral colleges of itself wonderfully tends to a clear 
 and sharp demarcation between State and governmental 
 functions in the choice of President. There is nothing 
 revolutionary in these suggestions; they all harmonize 
 with the fundamental theory of the Constitution, and aim 
 
A Suggested Remedy 387 
 
 simply to insure that certainty in a presidential election 
 which is of the highest importance in the interest of 
 order and tranquiUity. 
 
 The substitute election in the House, which has been 
 the bane of our politics, is abolished. The new system, 
 it is true, permits of the election of a minority President, 
 but so would all amendments that have ever been pro- 
 posed. The objection of the States represented in the 
 convention of 1787 to the choice of the chief magistrate 
 by less than a majority of all the appointed electors, or 
 less than a majority of the States in the House, was 
 founded in fears that experience has shown to be ground- 
 less. As was said by the Senate committee of 1874, to 
 whose report frequent allusion has been made: "The 
 President elected by a plurality of all the votes in a fair 
 election would carry with him the whole moral power of 
 the office and be regarded by the nation as completely 
 the President morally and legally as if he had received a 
 majority of all the votes." The objections which apply 
 to the election of a minority President in the electoral 
 colleges or in the House of Representatives have no 
 significance where the choice is made directly by the 
 people, who have become familiar in their respective 
 States with the plurality method of electing State officers, 
 members of Congress, members of the State Legislature, 
 and city, county, and town officials. Nothing can be 
 added to the admirable argument of the Senate commit- 
 tee upon this point : 
 
 "Where the plurality system is adopted, and the people 
 vote directly for candidates and not for electors or intervening 
 agents, every man casts his vote with a knowledge that the 
 candidate who receives the most votes will be declared elected. 
 There can be no inducement, therefore, to scatter the vote 
 with a view of throwing the election into the House, as there 
 may be under the present system ; and every voter will have 
 
388 The Electoral System 
 
 strong inducement to give his vote for the best man, knowing 
 that the result of the election is to be final. 
 
 ' ' In the States where the election of governor and other 
 State officers by the direct vote of the people is conducted on 
 the plurality system, it happens in a majority of cases that the 
 officers elected actually get a majority of all the votes cast, but 
 where they do not receive a clear majority it nearly always 
 happens that their vote approaches very closely to a majority, 
 and is generally a fair expression of the wishes of the people ; 
 and we have never known a case of the election of governor 
 or other important State officers who had not received one- 
 third of the votes, as was the case with Mr. Adams, in 1825, 
 who was made President through the machinery of the election 
 in the House. 
 
 "Whatever objection may exist to the plurality system, 
 where the people vote directly for candidates for President 
 and Vice-President, must prevail with tenfold force under the 
 electoral system, for under the electoral system it is quite 
 possible, and even probable, that the man may have the ma- 
 jority of electoral votes who is largely in the minority in the 
 popular vote. Under the plurality rule no man can be elected 
 who has not received more votes than any other candidate; 
 but under the present system a man may be chosen President 
 who receives the smallest number of votes, by means of the 
 electoral college or throwing the election into the House. 
 
 " It may be further remarked, that while there can be no 
 election of President under the present system except by a 
 majority of all the electoral votes, yet the electoral colleges 
 themselves in the several States are, and have been from the 
 first, chosen upon the plurality system, and are not in any case 
 required to have a majority of all the votes cast in the State." 
 
 Section 10 differs from the article of amendment in the 
 joint resolution offered in the Senate in 1898 by Senator 
 Hoar from the judiciarj^ committee of that body. The 
 amendment of the judiciary committee was a modification 
 of the amendment suggested by Mr. Paine, of Maine, and 
 read as follows: 
 
A Suggested Remedy 3^9 
 
 ** In all cases not provided for by Article II, clause 5, of the 
 Constitution, where there is no person entitled to discharge the 
 duties of the office of the President, the same shall devolve upon 
 the Vice-President. The Congress may by law provide for the 
 case where there is no person entitled to hold the office of Presi- 
 dent or Vice-President declaring what officer shall then act 
 as President, and such officer shall act accordingly until the 
 disability shall be removed, or a President shall be elected." 
 
 The resolution passed the Senate by a two-thirds vote 
 and was referred to the House committee on the judici- 
 ary, but never reported from that committee. On 
 December 4, 1901, Senator Hoar again introduced the 
 resolution, which passed the Senate and was sent to the 
 House of Representatives, where, on February i, 1902, 
 it was referred to the House committee, but never 
 afterwards heard of. The resolution as twice passed 
 by the Senate did not escape criticism in that body. 
 Rawlins, of Utah, queried as to the scope of the word 
 ** entitled." Might not that word, he asked, involve the 
 question whether the person claiming to be elected Presi- 
 dent was an alien-born person, or whether the person 
 claiming to hold the office was lawfully elected thereto? 
 If so, the amendment was too broad in its scope. Hoar, 
 in defending the committee's resolution, admitted that 
 the use of the word "entitled" had been much discussed 
 in the committee. While the word was not altogether 
 satisfactory, the consensus of opinion favored it as the 
 best that could be found. The joint resolution intro- 
 duced by the Senator from Maine and prepared by his 
 constituent was, said Hoar, intended to meet the case of 
 the death of the President-elect after the meeting of the 
 electoral colleges and before inauguration ; but there was 
 "no provision in it for the case of a failure to elect either 
 or both the President and Vice-President." Such a fail- 
 ure had very nearly happened in the case of the great 
 contest between Burr and Jefferson and might very well 
 
390 The Electoral System 
 
 be expected to occur again. The word "entitled" has a 
 wider significance than the judiciary committee intended. 
 But inasmuch as the amendment to the Constitution sug- 
 gested in this chapter abolishes the House election, and 
 is designed to obviate the possibility of a failure to elect, 
 it is unnecessary in section lo to cover the wide field 
 which the Senate amendment proposed to include. It is 
 sufficient to provide for the contingency of the death of 
 the President-elect or the Vice-President-elect, or of both. 
 Thus the troublesome question raised by Rawlins respect- 
 ing the Senate joint resolution of 1898 is eliminated be- 
 cause the need for such an amendment is dispensed with. 
 Section 10 follows closely the language of the present 
 Constitution in respect to the death of the President and 
 the Vice-President, broadening that provision to embrace 
 the case of the President-elect and the Vice-President- 
 elect. It remains for Congress to define inability by 
 adequate legislation, and to provide for the effectual exe- 
 cution of the proposed amendment in other particulars, 
 by a comprehensive statute framed in the light of ex- 
 perience. 
 
 To try to restore the electoral scheme of the fathers 
 would be a chimerical undertaking. To attempt the 
 creation of any plan in conflict with the plain trend of 
 institutional development would be equally unwise. 
 Nothing in the suggested amendment is at variance with 
 the fundamental principles of the Constitution, save that 
 it would abolish the useless and dangerous electoral sys- 
 tem. The States are to be maintained in all their in- 
 tegrity. No concession is demanded from smaller 
 commonwealths, against which some concession from the 
 more populous States should be offset, but the rights of 
 all the States, small and large, under the organic law are 
 preserved inviolate. While the electoral representation 
 of each State is to remain intact, the individual voter in 
 each State is given his due share of influence. Voting is 
 
A Suggested Remedy 391 
 
 made direct; unnecessary, obsolete, and perilous ma- 
 chinery is discarded, and the final electoral count at 
 Washington is so simplified that it becomes a mere com- 
 putation to be followed by a declaration of an unimpeach- 
 able result. Under such a plan it would be easy to obey 
 the constitutional dictate, "the votes shall then be 
 counted." The States would gain in dignity, citizenship 
 would be exalted, political convictions would find freer 
 expression, geographical and sectional differences would 
 vanish, and minority sentiment obtain its due share of 
 influence. The proposed system would tend to emanci- 
 pate the voter from the thraldom of party, promote in- 
 dependence, and open avenues for direct nominations by 
 the people. Under such a system it would become pos- 
 sible for the voter to enjoy a vital and not a merely 
 nominal power in the selection of candidates. 
 
 The caucus and convention have usually left the voter 
 merely a barren choice between candidates. No other 
 method that has been proposed would give each citizen 
 so much influence over the personnel of the men to be 
 nominated, because none other gives so much weight to 
 the individual ballot. There are but two cardinal facts 
 for the independent voter to remember when he comes to 
 the polls, — not to vote for two candidates both of whom 
 come from the same State as himself, and not to vote for a 
 candidate disqualified for the office under the Constitution. 
 
 The purpose of the foregoing discussion has been to 
 explain the perils to the nation's peace and well-being 
 that grow out of the electoral system. Few persons who 
 have any just appreciation of the constitutional plan fail 
 to condemn it as useless, yet a large number of those who 
 concede it to be obsolete paradoxically regard it as harm- 
 less. Their criticism of such an historical study is likely 
 to be that theoretical arguments against the present sys- 
 tem are of little value in comparison with the many prac- 
 tical evidences of the failure of voters to comprehend the 
 
392 The Electoral System 
 
 electoral ballot ; but this is to lose sight of the main 
 intent, — that the system should be abolished, because it 
 has been and is in itself a source of positive danger. The 
 history of the operation of the electoral machinery shows 
 that this vicarious method of choosing a President is be- 
 set by difficulties and perils, which, numerous as experi- 
 ence has shown them to be, have not exhausted their 
 malign possibilities. Those who regard the electoral col- 
 leges as merely useless, and who would not lay profane 
 hands upon the sacred ark of the Constitution, need to 
 have the lesson emphasized that the system is fraught 
 with dangers and that it is the one vulnerable feature of 
 the organic law. At the outset is the liability to error in 
 the selection of electors. Names of persons constitution- 
 ally disqualified to hold the office have been placed upon 
 the electoral ballot ; errors often creep into the printing 
 of the names, and with the wide diffusion of the Austra- 
 lian-ballot system voters are found to be inept in marking 
 the candidates of their choice. As Morton once said : 
 "While nobody would mistake the names of Grant or 
 Greeley, changes in the names on the long list of electors 
 may occur from errors in printing or fraud sufficient to 
 reverse the vote of a State. ' * The liability to error would 
 be reduced to a minimum if the voter were to vote direct 
 for Cleveland or Harrison, Parker or Roosevelt. Igno- 
 rant voters have often erased from the ballot the names of 
 electors offensive or unknown to them, thereby uncon- 
 sciously impairing, if not vitiating, their vote. (^A system 
 which allows so large a margin of erroneous votes stands 
 condemned by the possibility that the election may turn 
 upori the ignorance of voters, and not upon the popular 
 will.'/ The expense of canvassing is increased by count- 
 
 ^ The New York Evening Fos^, in an editorial on "The Useless Elec- 
 toral College," recently said: "Under the extraordinary ballot law [of 
 Florida], the names of these twenty electoral candidates were printed in a 
 close column one below the other, with no line or space to separate the 
 parties ; and no name, emblem, or other indication to show by which party 
 
A Suggested Remedy 393 
 
 ing a large list of electoral candidates: and when the 
 returns have been completed, there arises the possibility 
 of contest over disqualified electors. The law of 1887, 
 by enlarging the interval between the date of the popu- 
 lar election and of the assembling of the electoral colleges, 
 — with the beneficent purpose of allowing adequate time 
 for the determination of bona fide controversies, — incites 
 to the creation of spurious contests, by furnishing a gen- 
 erous measure of time for partisan animosity or disap- 
 pointed ambition to conjure up false issues. Neither 
 State nor congressional legislation has yet determined 
 whether the prohibition of the Federal Constitution 
 against electors disqualified by its provisions is self- 
 executing, or whether a de facto elector, appointed in 
 disobedience of the nation's organic law, becomes, by 
 the fact of his election by the people in ignorance of his 
 ineligibility, an elector de jure. Controversies over elec- 
 tors will never be causelessly initiated, for the American 
 mind is eminently practical, but should the nation's vote 
 hereafter hinge upon the question of the eligibility of 
 electors, it cannot be predicted whether the State prima- 
 rily concerned will try the question of title, or whether 
 the trial will be completed before the day fixed for the 
 meeting of the electors, or the question be reopened in 
 the joint meeting of the two Houses, as would seem to 
 be authorized by the Act of 1887; nor can it be predicted 
 
 each candidate was nominated. The Democrat had to mark the first five ; 
 the Republican, numbers six to ten inclusive ; the Populist, numbers eleven 
 to fifteen inclusive, and so on. Naturally, a very large number of voters 
 were muddled, and, in fact, 900 Democrats out of 27,046 ; 1650 Republi- 
 cans out of 8314 ; 689 Populists out of 1605, and 1086 Socialists out of 
 2337, failed to mark all the electors of their parties. ... In Mary- 
 land, where a square for voting all electors at once on the ballot is similar 
 to and immediately above that for the first elector, 2504 Republicans made 
 the mistake of voting for elector number one only, and that margin was 
 wide enough for seven Democratic electors to come in, although it is indis- 
 putable that more Marylanders tried to vote for Mr. Roosevelt than for 
 Mr. Parker." 
 
394 The Electoral System 
 
 upon what principles a contest would be settled. The 
 subject of filling vacancies in the electoral colleges sug- 
 gests many perturbing inquiries. If an appointment 
 were void ab initio, would a vacancy exist? If an elec- 
 tor should die on or before the date of the popular elec- 
 tion, would a vacancy be created that an electoral college 
 might fill? The statutes of the States differ in their 
 phraseology as to the filling of vacancies, and may be 
 variously construed. No tribunal, State or Federal, 
 exists to solve any of the numerous perplexing questions, 
 and if another disputed election should occur either Con- 
 gress would arbitrarily settle the dispute by a species of 
 ex post facto legislation, or the two Houses would be 
 deadlocked in a hopeless antagonism of opinion. The 
 danger of fraud, corruption, or abuse of trust on the part 
 of an elector will be perennial, for evidence of past good 
 faith ensures no immunity for the future. As the num- 
 ber of States increases, the expense of convoking elec- 
 toral colleges grows more burdensome, and the chance 
 remains that a disaster such as befell Wisconsin in 1857 
 may be repeated. One catastrophe might sweep away 
 all the members of an electoral college, leaving no one to 
 supply their place. Furthermore, the temptation to 
 create new States for partisan purposes, so potent of late 
 years, would cease under the proposed system. Again, 
 rival electoral certificates might reach the national capi- 
 tal, and while there would remain the possibility of dis- 
 cordant claims regarding the vote of a State, the chances 
 of conflict would be greatly diminished. The whole 
 subject of the electoral count at Washington is involved 
 in difficulties, and although momentous consequences 
 may depend upon the settlement, all questions must be 
 determined without debate. 
 
 Other defects exist in the provisions of the Constitu- 
 tion touching the election of President, and the necessity 
 for the removal of these defects reinforces the argument 
 
A Suggested Remedy 395 
 
 for amendment. Apart from the question of the power 
 of Congress to concentrate in itself by disfranchising 
 States the final right to choose a President ; aside from 
 the enigma that has perplexed the statesmen of every 
 epoch — how to provide an umpire when the two Houses 
 disagree as to the reception of the vote of a State, — a 
 question of the highest import arises at the threshold of 
 the electoral structure. Has the Federal Constitution, 
 in prescribing that each State may appoint electors in 
 such manner as the Legislature of the State may direct, 
 so exalted the law-making body of the State above the 
 State and its people that the Legislature may defy the 
 injunctions of the State constitution and appoint electors 
 in any manner it may please? The Legislature of any 
 State in the Union may at any time, said Morton, take 
 away from the people of that State the privilege of voting 
 for presidential electors, and no provision of the State 
 constitution can successfully prevent it from doing so. 
 Morton's colleagues upon the Senate committee that 
 reported the proposed constitutional amendment of 1874 
 evidently agreed with him, for the view of the com- 
 mittee was that 
 
 ** the appointment of electors ... is conferred upon the 
 Legislatures of the States by the Constitution of the United 
 States, and cannot be taken from them or modified by their 
 State constitutions any more than can their power to elect 
 Senators of the United States, and that under the Constitution 
 as it now stands it is in the power of any legislature to repeal 
 all laws providing for the election of electors by the people, 
 and take such election into their own hands. It may be said 
 this is not likely to be done; but the answer is, that it may be, 
 and that it has been done; and who can, tell what may be the 
 future exigencies of parties and politicians, or what they may 
 not do." 
 
 To be chosen by the electors a candidate must have a 
 majority of the electors who have been appointed, and if 
 
39^ The Electoral System 
 
 no one has such majority, the House is immediately to 
 proceed to the election, but is to vote by States. What 
 body is to decide who are the duly appointed electors or 
 whether a candidate has the suffrages of a majority of 
 such electors? Again, what authority is to determine 
 when the moment has arrived for the exercise *of the 
 constitutional obligation reposed in the House to make 
 the choice of the chief executive? The "reticence " of 
 the Constitution is not only perplexing, but perilous as 
 well. In the light of its Delphic brevity, it is not re- 
 markable that entire control over the electoral count for 
 President has been claimed for the House alone, on the 
 ground that, unless it have this power, it can never 
 decide when its function of President-maker is to be- 
 gin. The outgoing not the incoming House makes the 
 choice. The choice is by States. The injustice of this 
 method of choice has frequently been exposed and the 
 method has found few defenders. It enables States 
 representing a minority of the population to choose, and 
 the selection is entrusted to a House that may be in the 
 control of a party defeated in the preceding election. As 
 two-thirds of the States are needed for a quorum, a revo- 
 lutionary body could defeat any election. Only once 
 since the passage of the Twelfth Amendment has the 
 election devolved upon the House and if the testimony of 
 historians and statesmen is to be credited, no one wishes 
 to see an occasion arise for invoking this method again. 
 Twice in the history of the country have there been 
 prominent candidates threatening so to divide the elec- 
 toral vote as to prevent any one of them from having a 
 majority. This actually happened in 1824, and might 
 easily have occurred in i860. It is a mathematical pos- 
 sibility, and not a remote probability, that four candi- 
 dates should have an equal share of the electoral votes, 
 or that there might be a tie between the third and 
 fourth, and no candidate have a majority of the votes. 
 
A Suggested Remedy 397 
 
 If such an exigency should arise under the existing Con- 
 stitution, no easy solution would be attainable ; apparently 
 there could be no election whatsoever, for the Constitu- 
 tion would permit the House to vote for only three 
 candidates, although all four would morally be equally 
 entitled to ballots in the House. If the last two should 
 both be treated as within the category of the highest 
 three, who could be voted for if three or four candidates 
 had the same number of votes? Should those having the 
 same number of votes be treated as one in effect in order 
 that two other candidates might be permitted to enter 
 the contest? Would the Vice- President-elect, in such a 
 case, become President? But if more than two candi- 
 dates for the office of Vice-President should have the 
 same number of electoral votes, the Senate would be 
 paralyzed, and could not constitutionally proceed with its 
 elective functions. 
 
 If the President-elect should die or become mentally 
 impaired before assuming office, the question would at 
 once arise whether the Constitution provides for such a 
 contingency, and the doubt expressed as to the meaning 
 of "inability," and how inability itself is to be deter- 
 mined, offers some idea of the divergences of view that 
 would arise in such a case. My own opinion is that an 
 amendment is necessary to cover this contingency. 
 
 If the electoral system should be abolished, how is the 
 presidential election to be held — shall State independence 
 be so far surrendered as to permit the people of the nation 
 to vote en masse for the chief executive? Such a change 
 would be revolutionary. The inquiry whether it would 
 be desirable is rendered unnecessary by the simple fact 
 that the requisite number of States would never con- 
 sent. It is useless to think of securing the approval, 
 by three-fourths of the States, of an amendment which 
 would deprive them of their present influence as inde- 
 pendent entities in the Federal republic. Twelve States 
 
 1/ 
 
39^ The Electoral System 
 
 could defeat the proposition; hence it should be dis- 
 missed as illusory. Chancellor Kent, in opposing the 
 extension of the suffrage in the New York constitutional 
 convention of 1821, eloquently said that if the enlarge- 
 ment were made the privilege could never be recalled, 
 for "there is no retrograde march in the rear of democ- 
 racy." So, likewise, the power at present reserved to 
 the States by the Constitution will never be voluntarily 
 surrendered. The small States will never consent to im- 
 molation or agree upon any self-denying ordinance. 
 
 The only other modes of election that preserve the 
 rights of the States are the general-ticket system, the dis- 
 trict system, and the apportionment plan, with an assign- 
 ment to each State of the same quota of electoral influence 
 as it now enjoys through its electoral college. I have 
 heretofore traced the rise, and pointed out the defects, 
 disadvantages, and gross injustice of the general-ticket 
 system of appointing electors, — a system that ever since 
 its adoption has been condemned by statesmen of the 
 rank of McDufifie, Benton, Van Buren, Morton, by nu- 
 merous writers upon constitutional law, and by no one 
 more convincingly than by Madison. Its effect has been 
 to stifle the voice of minorities, to dev^^p a class of per- 
 nicious leaders in the different States, to create what have 
 come to be known as "doubtful" States, to reduce the 
 election merely to a contest in such States, and to aggra- 
 vate the tendency to the commission of frauds of all sorts 
 upon the ballot-box, with resulting debauchment of the 
 electorate and debasement of the exalted privilege of 
 suffrage. So long as the States control the appointment 
 of presidential electors, which they will continue to do 
 until the Constitution shall be amended, uniformity in 
 the method of appointment is not assured of perpetua- 
 tion, for political exigencies may bring about a change in 
 any State at any time, and the constitution of a State, in 
 the judgment of some of our ablest public men, cannot 
 
A Suggested Remedy 399 
 
 interpose a bar. One recent infraction of the prevalent 
 general-ticket system occurred a few years ago in Michi- 
 gan. If it be asked whether a recurrence to the district 
 system will redeem presidential elections from the dangers 
 by which they are environed under the general-ticket sys- 
 tem, the answer is unsatisfactory. Despite the manifest 
 improvement of a uniform district system upon the exist- 
 ing plan — the fairer opportunity it gives for the utterance 
 of the electoral sentiment of the State, and the great 
 obstacles it places in the way of successful frauds upon 
 the suffrage by making the purchase of voters resident in 
 different districts essential to their consummation — the 
 fact remains that the district is an arbitrary unit in the 
 choice of President, and that human ingenuity has yet 
 devised no plan to circumvent partisan change and re- 
 arrangement of districts at the caprice of the party in 
 power. An objection, not altogether untenable, made 
 some years ago to the district system by Senator Ed- 
 munds, in a criticism upon the report of the Morton com- 
 mittee upon the constitutional amendment proposed by 
 that committee in 1874, is that it would in effect make 
 the choice of the executive purely national. Such a 
 choice would become "the act of the people in their in- 
 dividual character as citizens of the United States, with 
 substantially the same force as if no State lines existed. 
 If the districts were formed without regard to State lines 
 the plan would be essentially the same." The full force 
 of this assertion is impaired by the fact that each State 
 would add its two electoral votes to the strength of the 
 candidate who carried the majority of its districts. But 
 no such objection can fairly be made to the system herein 
 advocated, for under that system the voters, in every 
 sense, remain voters in their respective States, and the 
 choice is still determined within State lines. 
 
 The plans of Benton, Morton, and Maish, which may 
 be treated as types, have been subjected to analysis, and 
 
400 The Electoral System 
 
 their defects have been exposed. The district system, 
 commended by the fact that it was favored in the con- 
 vention of 1787 and supported later by Jefferson and 
 Madison, although greatly diminishing the incentive to 
 corruption and bribery of voters, still fails of the ideal 
 through its susceptibility to gerrymandering. It would 
 have the great advantage of bringing the executive and 
 the lower House of Congress into complete political 
 accord, and the establishment of this rapprochement 
 would be a decided political gain. An executive out 
 of sympathy with the House and the Senate can accom- 
 plish Httle, whereas if affinity exists between him and the 
 popular chamber, the Senate is not likely to prove an 
 obstacle to needed legislation. On the other hand, the 
 apportionment or proportional plan would give every 
 voter his due weight as an electoral factor, and by elimi- 
 nating the possibility of successful frauds would take 
 away the temptation to their commission. The plan has 
 been so modified as to insure the certainty of an elec- 
 tion and the finality of the count. Nor does it seriously 
 derange the harmony between the President and the 
 House which the district method would assure and which 
 is so eminently desirable for efficient legislative and ad- 
 ministrative procedure. 
 
 No amendment will be complete which neglects to pro- 
 vide an effectual method for the settlement of all disputes 
 arising upon the electoral count. No statesman who has 
 ever given adequate thought to this subject has failed to 
 express his conviction that the present mandate of the 
 Constitution, "and the votes shall then be counted," is 
 an enigma pregnant with evil possibilities. When the 
 Morton electoral bill of 1873 was debated in the Senate, 
 — and that debate was exhaustive, — even its staunchest 
 champions admitted its imperfections; and the Act of 
 1887, which is generally similar in its tenor, but fuller 
 of detail, could not escape like criticism. Its strongest 
 
A Suggested Remedy 401 
 
 advocates conceded that it was far from realizing the 
 ideal. It supplies no ultimate arbiter where the two 
 Houses disagree, and undermines the independence of the 
 executive department by placing the election eventually 
 in Congress. Almost every writer who has treated of the 
 electoral system, from the time of Kent onwards, has re- 
 garded the defective provisions touching the electoral 
 count as the danger-spot in an otherwise almost perfect 
 Constitution. There is not another clause of the organic 
 law that has been so repeatedly discussed, or that has 
 so obstinately refused to yield up its actual meaning 
 to profound analysis. Senator Morgan, of Alabama, in 
 October, 1881, uttered the abiding conviction of every 
 thoughtful student of the Constitution, when he declared 
 that, although for a century the people and Congress had 
 been considering how they could best provide for "a free 
 ballot and a fair count" of the votes of the electors for 
 President and Vice-President, "not one hair's-breadth of 
 actual progress has been made toward a solution of the 
 real difficulties to be met." ' The subject, he added, "has 
 been discussed until it would overtax the most subtle 
 mind to conceive of any phase of any question connected 
 with the matter that has not been considered." And his 
 conclusion well expresses the reasoning that induced a 
 majority of the Senate in March, 1876, foreseeing the 
 trouble that arose during the following winter, to agree 
 to the Morton bill, and that subsequently impelled both 
 Houses, with the startling experience of the disputed 
 election fresh in memory, to agree to the imperfect solu- 
 tion that has become the law of 1887, — that "any adjust- 
 ment of the difficulties which grow out of our imperfect 
 constitutional provisions on this subject, if generally 
 accepted as being fair, would be better than to leave it 
 without any sort of regulation." "It should," Morgan 
 admonished, "be enough to say to a wise people that all 
 
 ' " Some Dangerous Questions," 133 N. A. J^., 324. 
 
402 The Electoral System 
 
 questions are open and dangerous that relate to the 
 counting of the votes of electors. They are as numerous 
 as it is possible for the ambition, the cupidity, the fraud, 
 and the skill of wicked men to invent." Dawes, of Mas- 
 sachusetts, who, as a member of the Senate in the spring 
 of 1876, voted reluctantly for the Morton Electoral Count 
 bill, after announcing his conviction that the only effec- 
 tive remedy lay in a constitutional amendment, in a sub- 
 sequent magazine article used these impressive words : ' 
 
 "It is the height of folly to shut our eyes to this danger 
 And it is useless to seek in argument a satisfactory answer to 
 these questions. The public mind will always divide upon 
 them. The only safe solution of the problem is their removal 
 by a constitutional amendment that shall make plain and sim- 
 ple every step in the process, both State and national, and 
 shall also require or create a tribunal in each State competent 
 to settle finally any possible controversy over the appointment 
 of electors or their action till the record of what they do 
 reaches some national official." 
 
 Every attempt to solve the problem should be predi- 
 cated upon the teaching of history. Politics, as Burke 
 very philosophically said, ought to be adjusted, not to 
 human reasoning, but to human nature. Human nature 
 in the United States has for more than a century been 
 shaping our political institutions, and the trend of their 
 development must be accepted as indisputable political 
 facts in the framing of any amendment. At the very 
 outset the separate independent life of the States must 
 be recognized, and all notion of a vote by the united citi- 
 zenship of the country regardless of State lines be dis- 
 missed. The inequalities of representation between large 
 and small States are conceded, but must also be accepted. 
 The spirit of compromise which swayed the proceedings 
 of the convention of 1787 must animate twentieth-century 
 
 1 " How Shall the President be Elected '" 140 N. A. R., 97. 
 
 ! 
 
A Suggested Remedy 403 
 
 deliberations. Whether parliamentary government or 
 presidential government, to use Walter Bagehot's famous 
 contrast, be ideally the better, whether an executive 
 elected and removable by Congress would secure more 
 efficient political results, — unless the present sentiment 
 of the American people is a reversion from the ideas of 
 the framers of the Constitution, there must be adherence 
 to their conception of the wisdom of the severance of ex- 
 ecutive, legislative, and judicial functions. The develop- 
 ment of American institutions has been along this theory, 
 and it is not possible in a short space of time to revolu- 
 tionize the ideas of a whole people. Hence the amend- 
 ment should maintain the separateness of the three great 
 departments of government, and preclude the possibility 
 of any invasion by Congress of the executive department, 
 in the choice of the executive head of the nation. The 
 electoral system has taught the peril of complicated 
 machinery in politics; the change should therefore be in 
 the direction of simplicity. As democracy early revolted 
 against the tyranny of autocratic electors and has com- 
 pletely subjugated them to its purposes, the election 
 should be direct for President and Vice-President. Every 
 citizen should be privileged to cast his ballot directly for 
 the candidate of his choice. The practical sense of the 
 American people will never tolerate in any amendment 
 the interposition of any further electoral medium between 
 themselves and the manifestation of their will. Inas- 
 much as the Constitution intended that the States should 
 have sole control over the appointment of electors, pro- 
 vided ineligible electors were not appointed, and that the 
 election should be held on the appropriate day, and in- 
 asmuch as the whole tenor of our political history evinces 
 the desire of the people of the States to act in their capac- 
 ity of citizens of States in voting at presidential elections, 
 State control should continue absolute. This the pro- 
 posed amendment assures. The essential nature of our 
 
404 The Electoral System 
 
 complex government is to suffer no manner of change. 
 The people qualified by the laws of the States to vote 
 for presidential electors should vote for President direct, 
 and their qualifications to exercise the elective fran- 
 chise should not be subjected to authority of Congress, 
 except in so far as such authority may have been com- 
 mitted to the national legislature by any of the recent 
 amendments to the national Constitution. The count 
 and the canvass of the vote must remain the exclusive 
 duty of the State. The majority of the Electoral Com- 
 mission of 1877 were in accord with the essential theory 
 of the Government when they pronounced that, once the 
 final State canvassing authority had spoken, its deter- 
 mination was beyond impeachment or even challenge by 
 any department of the central Government. And the 
 only duty that will devolve upon that Government should 
 be the simple, impressive act of enumeration of plain re- 
 turns, crowned by an act the most important of all for 
 the peace and security of the nation, the declaration of 
 the result, — a declaration which, once made, may never 
 be controverted except by successful revolution. 
 
 Such an amendment I have aimed to draft. It makes 
 but the slightest departure from the theory of the exist- 
 ing Constitution. It redeems the count from intricacy 
 and rescues it from the domination of Congress. That 
 it very much reduces the likelihood of double returns has 
 heretofore been shown, and, as I have said, if a State 
 should be guilty of the folly of transmitting more than 
 one return, her disfranchisement, if that consequence 
 had to follow, would be the result of her own act and 
 not of the arbitrary action of Congress. Criticism of the 
 constitutional system has usually been quadrennial. 
 Public attention has not been vividly attracted to the 
 defects which have been noted in earlier chapters. These 
 should be rectified before another presidential election. 
 Nothing but failure to appreciate the weakness of the 
 
A Suggested Remedy 405 
 
 Constitution, an irrational veneration for its letter, or an 
 undue spirit of conservatism, forbids a prompt and effec- 
 tive remedy. 
 
 In discussing the English constitution, Professor Dicey 
 eulogizes the complete flexibility of an unwritten organic 
 law like that of Great Britain. The constitutions of most 
 of the States of the Union, open to amendment through 
 the agency of a general convention or upon legislative 
 initiative, with subsequent ratification by the people, 
 approximate closely to the mobility that distinguishes an 
 unwritten constitution. Much has been written of late 
 regarding rigid constitutions, but there is no less viability 
 in the Federal Constitution, although the faculty of re- 
 vision has become almost lost by disuse. As early as 
 1823 Jefferson declared that the States had become so 
 numerous that there was little likelihood of procuring 
 amendment.' As the States increase in number, the 
 tendency towards rigidity grows stronger, and the ability 
 to amend decreases. Beyond the first ten amendments, 
 which may almost be treated as part of the original text, 
 only two amendments have been peacefully effected to 
 the Constitution : the eleventh, which declared that no 
 State should be subject to suit by a citizen of another 
 State or of a foreign State, and the twelfth, the urgent 
 need of which was demonstrated by the presidential elec- 
 tion of 1 801. The three succeeding amendments were 
 only possible as the outcome of a civil war in which the 
 integrity of the nation hung in the balance. The longer 
 the task of amendment is postponed, the more difficult 
 it will be found to accomplish it. Distrust of underlying 
 
 ^ Washington, in his correspondence, more than once admitted that the 
 Constitution was not " free from imperfections," although there were " as 
 few radical defects in it as could well be expected, considering the hetero- 
 geneous mass of which the convention was composed, and the diversity 
 of interests that are to be attended to." It was his reliance upon the 
 power to make future amendments which induced him to urge acceptance 
 of the convention's work. 
 
4o6 The Electoral System 
 
 social forces may repel many from making any change, 
 lest the temptation to untimely alteration prove over- 
 whelming. But the fear of uncertain evil should not 
 deter a wise and practical people from effecting redress 
 for the positive ills of the electoral system ; for the 
 timidity involves the confession that the genius for 
 constructive government, which was one of the noblest 
 characteristics of our forefathers, has departed from the 
 American people. Great as was the work of the conven- 
 tion of 1787, the wisdom with which its members were 
 endowed was self-confessedly mundane. They used the 
 provision for amendment effectively, and doubtless ex- 
 pected that it would be employed when needed by their 
 successors. Prudence dictates that long-established 
 governments should not be changed for light or transient 
 causes, but when the evils of a system are plain and the 
 dangers of its continuance demonstrable by actual expe- 
 rience, a remedy is demanded. Public sentiment, as 
 Burke well observed, should be the sole source of altera- 
 tion in law, and a wise conservatism waits until that sen- 
 timent speaks in imperative tones. But if any truth is 
 revealed in our political history and proclaimed in the 
 opinions of numerous statesmen and patriots, it is that 
 the electoral system, adopted by the fathers with much 
 misgiving and after profound differences of opinion, has 
 never fulfilled the original design of its creators. If dis- 
 aster shall ever overtake the republic, it will probably 
 come from our neglect of the solemn and oft-repeated 
 admonitions regarding the difficulties and dangers con- 
 nected with the electoral count. When the voice of 
 experience is so impressive in its warnings, to heed it 
 becomes a sacred duty. Nor can reliance be placed upon 
 judicial interpretation to render the process of amend- 
 ment unnecessary. Although other provisions of the 
 Constitution grow in stature and significance under con- 
 struction by the courts, the clauses relating to the election 
 
A Suggested Remedy 407 
 
 of President and Vice-President constitute exceptions to 
 the rule, for they can rarely become the subject of judi- 
 cial exegesis. There has been but one decision of the 
 Supreme Court upon the presidential electoral system in 
 one hundred years. 
 
 As to the method of initiating an amendment, a word 
 may be added in conclusion. Proposed amendments 
 have usually been presented in Congress as the outcome 
 of resolutions in some State Legislature, or of the views 
 of some individual member of the Senate or House. 
 Ordinarily these proposals have occasioned little discus- 
 sion. Upon a subject of such importance, the sugges- 
 tion of President Harrison, in his message to Congress 
 in 1 891, might be made the basis of action. In advocat- 
 ing the establishment of the general-ticket system upon 
 a constitutional foundation, he favored the appointment 
 of a commission, non-partisan in its membership, ** to be 
 charged with the duty of inquiring into the whole sub- 
 ject of the law of elections as related to the choice of 
 officers of the national Government, with a view to 
 securing to every elector a free and unmolested exercise 
 of the suffrage, and as near an approach to an equality of 
 value in each ballot cast as is obtainable." An amend- 
 ment originating in a commission of such a nature would 
 probably elicit wide discussion. President Harrison sug- 
 gested the appointment of a commission by the Supreme 
 Court, but there seems no valid reason why the executive 
 should not name it. The commission should then re- 
 port to Congress. Many amendments to State con- 
 stitutions, notably to the constitution of New York, have 
 had their genesis in similar commissions. 
 
I 
 
INDEX 
 
 Abbott, Josiah G., M. C. Mass. 
 Appointed member of elec- 
 toral commission by H. of R., 
 135; opinion in Florida case, 
 150, 151 ; in Louisiana case, 
 176; in Oregon case, 199; in 
 South Carolina case, 206 
 
 Act of Congress, March i, 1792, 
 4, 29; January 23, 1845, 31, 74; 
 January 30, 1877 (electoral 
 commission law), 9, 10; Feb- 
 ruary 3, 1887 (governing elec- 
 toral count), 214; Int. 3, 6, 9 
 
 Adams, Charles Francis, Seward 
 to, 12 
 
 Adams, John, Int. 4; three 
 Democratic electors voted 
 for, 1796, 18; electoral vote 
 for, 1793, 33; 1797, 33', pre- 
 sides at joint meeting of the 
 two houses, February, 1797, 
 34; electoral vote for, 1801, 
 34; other references, 252 
 
 Adams, John Quincy, electoral 
 vote for, 1825, 46; vote for in 
 House, 46, 47; coalition with 
 Clay, 48, 260 ; criticism of, by 
 McDuffie, 298; remarks in 
 Senate, 1803, in debate of 
 resolution proposing twelfth 
 amendment to Constitution, 
 275 ; a minority candidate, 317, 
 318 
 
 Allen, William (O.), 340 
 
 Alternative Counts, 43, 48, 53, 
 81, 226 
 
 Amendments to the Constitu- 
 tion, first ten amendments, 
 405 ; eleventh, twelfth, 405 ; 
 war amendments, 325, 405 
 
 Amendments to the Constitution 
 (proposed, relative to electoral 
 system), to Article XII, in 
 
 1876, 109; by Pickens, 326; 
 Benton, 326, 334, 340; Dicker- 
 son, 328 ; Van Buren, 328 ; Mc- 
 Duffie, 328; McComas, 340; 
 Sumner, 342, 343; Morton, 
 344-48; Maish-Buckalew, 351- 
 4; Springer, 354, 355; Riddle, 
 355; Southard, 355-62; J. G. 
 Carlisle, 362, 363 
 
 Amendment, proposed by author, 
 analysis and explanation of, 
 364; stated, 377-81 
 
 American Party, 320 
 
 Anthony, Henry Bowne, Senator 
 from R. I., 348 
 
 Archer, William S., on electoral 
 votes of Missouri, 1821, 45 ; on 
 McDuf f ie's amendment, 295 ; 
 defender of general-ticket sys- 
 tem, 295, 340 
 
 Arkansas, electoral vote of, 
 1873, 86, 87, 88, 346, 385 
 
 Arnold, Benedict, an electoral, 
 may come, 253 
 
 Arthur, Chester A. (N. Y.), In- 
 galls' view, that he was Presi- 
 dent under the Constitution 
 from moment of Garfield's 
 shooting, 263 
 
 B 
 
 Bagehot, Walter, government by 
 discussion, 304 ; on presidential 
 government and parliamentary 
 government, 403 
 
 Baker, John H. (Ind.). Opposes 
 Electoral Commission bill, 131 
 
 Baldwin, Abraham, Delegate to 
 Convention of 1787, from 
 Georgia; remarks in Senate. 
 1800, in opposing Ross' motion 
 for committee to draft elec- 
 toral count bill 64, 65 ; votes 
 against bill, 68 
 
 409 
 
4IO 
 
 Index 
 
 Bancroft, George, Quotations 
 from Hist, of U. S., 14, 27 n. 
 
 Barbour, John S. (Va.), 44 
 
 Bayard, James A. (Senator from 
 Delaware, 1800), remarks in 
 House, on bill of 1800, 71, 80 
 
 Bayard, Thomas F. (Senator 
 from Delaware), remarks in 
 Senate on twenty-second joint 
 rule, 95 ; on Morton bill, 92, 
 95, 100; offers amendment, 
 100; vote on bill, loi ; advo- 
 cates Electoral Commission 
 bill of 1877, 123; appointed by 
 Senate member of commis- 
 sion, 135 ; opinion, in Florida 
 case, 149, 150; in Louisiana 
 case, 174, 175, 182; in Oregon 
 case, 198, 199; in South Caro- 
 lina case, 206, 208; other ref- 
 erences, 24.S 
 
 Bell, John (Tenn,), popular and 
 electoral vote for, i860, 310; 
 successful in border States, 
 319, 320 
 
 Benjamin, Judah P. (La.), re- 
 marks in Senate, during dis- 
 cussions over electoral count, 
 1857, 55, 246 
 
 Benton, Thomas H. (Senator 
 from Missouri), Int. 8; electors 
 pledged from beginning, 18, 
 note I ; on general ticket sys- 
 tem, 19, 20; reference to, 106; 
 electors useless, and may be 
 dangerous, 250; proposes 
 amendment to Constitution, 
 259, 317, 326, 334, 335; text of 
 amendment, 336; features of 
 plan, 337, 338; urges amend- 
 ment December, 1833, 340; on 
 resolutions for amendment of- 
 fered in Senate, 1823-4, 332, 
 334 ; other references, 340, 341, 
 342, 398, 399 
 
 Bill of 1800. See Electoral 
 Count, Bill of 1800 
 
 Birney, James G.. 308, 309, 320 
 
 Black, Jeremiah S., from his ar- 
 ticle, " The Electoral Conspir- 
 acy," on speech of Roscoe 
 Conkling on Electoral Com- 
 mission bill of 1877, 117;, of 
 counsel before commission, 
 142, 211 
 
 Blaine, James G., opposed Elec- 
 toral Commission bill, 125 ; 
 analysis of vote in Congress 
 on bill, 133 n. ; opinion re- 
 garding electoral commission, 
 182 ; popular and electoral 
 vote for, in 1884, 5, 307 ; refer- 
 ences to, 308 n., 309, 314, 315 ; 
 difficulty that would have 
 been caused by his death, had 
 he been candidate for Presi- 
 dency in 1892, and succeeded, 
 280 
 
 Bland, Richard P. (Mo.), on 
 Electoral Commission bill, 132 
 
 Boutwell, George P., a Senator 
 from Mass., did not vote on 
 Morton bill, loi 
 
 Bradley, Joseph P. (Associate 
 Justice of U. S. Supreme 
 Court), appointed member of 
 electoral commission of 1877, 
 135 ; opinion in Florida case, 
 148, 155-157, 160; in Louisiana 
 case, 177, 179-181 ; in Oregon 
 case, 197; in South Carolina 
 case, 204, 205 ; note as to, 212 
 n. ; electors, party puppets, 
 250 ; views as to power to 
 count, 355 
 
 Brearley, David (N. J.), Dele- 
 gate to Convention of 1787, 
 128 
 
 Breckenridge, John C, a Senator 
 from Kentucky, electoral vote 
 for, 1857, 52 ; presides at elec- 
 toral count, 1861, 75 ; popular 
 and electoral vote for i860, 
 310, 318 
 
 Brown, John (a Senator from 
 Kentucky) ; remarks in Senate, 
 in 1800, 64 
 
 Bryce, James, on general ticket 
 system, 10; on choice of Presi- 
 dent by people, 17 ; by Con- 
 gress, 17; views regarding 
 electors, in his "Holy Roman 
 Empire," 251 
 
 Bryan, WilHam J. (Neb.), pop- 
 ular and electoral votes for. 
 315, 316 
 
 Buchanan, James (Pa.), M. C. 
 1826; popular and electoral 
 vote for, 52, 309, 310; other 
 references, 295, 297; a minor- 
 
Index 
 
 411 
 
 ity President, 318; other ref- 
 erences, 340 
 
 Buckalew, Charles R., a Senator 
 from Pennsylvania, proposes 
 amendment to Constitution, 
 351 ; views on, 352-4, 357 
 
 Burgess, John W., Prof., views 
 of, on Law of February 3, 
 1887, 227; claims that Con- 
 gress in joint meeting has 
 power to count the electoral 
 vote, 218 n, ; clauses of act 
 " confused almost unintelli- 
 gible," 238 n., 241 n. 
 
 Burke, Edmund, 402, 406 
 
 Burr, Aaron, electoral vote for, 
 1801, 34, 35, 36; Coolev, on 
 vote for, 1801, 24; vote for in 
 House of Representatives, 36 ; 
 presides at count of electoral 
 votes, 1805, 38, 39 
 
 Butler, Benjamin F., on Ed- 
 munds' resolution for alterna- 
 tive count, Georgia's vote, 
 1869, 81; remarks in joint ses- 
 sion for electoral count, 1869, 
 82, 83 ; in House of Represen- 
 tatives, during recess, 84: af- 
 ter conclusion of count, 84; 
 views on electoral commission, 
 212 n. ; on presidential inabil- 
 ity, 276 
 
 Butler, Andrew P. (Senator 
 from S. C), remarks during 
 electoral count of 1857, 52 
 
 Calhoun, John C (S. C), elec- 
 toral vote for, as Vice-presi- 
 dent, 1825, 47; appoints com- 
 mittee of Senate, 332 
 
 Campbell, John A. (La.), argu- 
 ment as counsel in Louisiana 
 case before electoral commis- 
 sion, 170, 171, 172, 177, 209, 210 
 
 Carlisle, John G., criticism of 
 act of February 3, 1887, 241 n., 
 243 n. ; dangerous defects in 
 electoral system, 241, 243 n. ; on 
 limitation, in Constitution, of 
 choice for President, in House 
 of Representatives, to highest 
 three names, on lists of elec- 
 
 toral votes, 273, 274; on desi- 
 rability of amending Constitu- 
 tion by establishing " appor- 
 tionment plan," 362, 363 
 
 Carpenter, Matthew H. (Wise), 
 votes in Senate against Mor- 
 ton bill, 92; appears as counsel 
 before electoral commission, 
 142, 167, 168, 208 
 
 Carroll, Daniel (Md.), Delegate 
 to Convention of 1787, favors 
 choice of President by people, 
 13 
 
 Cass, Lewis (Senator from 
 Mich.), remarks during elec- 
 toral count, 1857, 52; popular 
 and electoral vote for, 1848, 
 309 ; other references, 319 
 
 Chamberlain, Daniel H. (Gov- 
 ernor of South Carolina, 1876- 
 77), 202, 383 
 
 Chandler, Zachary (Mich.), 
 (Thairman of National Repub- 
 lican Committee, 1876-77, 107 
 
 Christiancy, Isaac P. (Senator 
 from Mich.), remarks in Sen- 
 ate on Morton bill, 98 
 
 Church, Sanford E. (Chief Judge 
 N. Y. Court of Appeals), 
 views of, as to power of Con- 
 gress to go behind returns, 150 
 
 Clay, Henry, Speaker of House 
 of Representatives, 1817, 40; 
 resolution as to counting Mis- 
 souri's votes, 1821, 43, 44; can- 
 didate for presidency, 1825, 
 46, 47, 48; electoral and popu- 
 lar vote for, 47; unjust charge 
 of bargain with J. Q. Adams, 
 48; on ineligible electors, 49, 
 50, 245 ; references to, 218, 
 245, 256, 260, 298; popular and 
 electoral vote for, 1832, 307; 
 1844, 308, 309; close vote in 
 Maryland, in 1832, for Jackson 
 and Clay, 374 
 
 Clayton, John M. (Del.), 340 
 
 Cleveland, Grover (N. Y.), New 
 York vote for, in 1884, 3I4: 
 popular and electoral vote for, 
 314. 315; further reference to, 
 392 
 
 Clifford. Nathan (Associate Jus- 
 tice U. S. Supreme Court), 
 appointed a member of elec- 
 
412 
 
 Index 
 
 toral commission of 1877, 135 ; 
 opinion, in Florida case, 157, 
 158; no opinion in Louisiana 
 or Oregon case, 181 
 
 Clinton, DeWitt (N. Y.), 282, 
 288 
 
 Clinton, George (N. Y.), parti- 
 sans of, in Assembly, 1789, 20 
 
 Colfax, Schuyler (Ind.), on 
 Wade's action as presiding of- 
 ficer during electoral count, 
 1869, 84 
 
 Collamer, Jacob (a Senator from 
 Vermont), remarks in Senate, 
 on electoral count, 1857, 55 
 
 Compromise of 1820, 114 
 
 Conkling, Roscoe, Int. 10; on 
 Van Buren bill of 1824, 73; 
 on electoral vote of Georgia, 
 1873, 88; on effect of Morton 
 bill, loi ; votes for its re-con- 
 sideration, 103; votes against 
 Morton bill, 92, loi ; advocates 
 Electoral Commission bill, 117- 
 23; Hoar's eulogy of, 117, also 
 348. 
 
 Conscience Whigs, defeated 
 Clay, 1844, 308 
 
 Constitution of the U. S., its in- 
 creasing rigidity, 405 
 
 Cooley, Thomas M. (Mich.), on 
 failure of original electoral 
 plan, 24 ; on canvassing boards, 
 137; on presidential inability, 
 276 
 
 Cooper, Henry (Senator from 
 Tenn.), amendment to Morton 
 bill, 97 
 
 Cooper, Peter (N. Y.), popular 
 vote for, 313 
 
 Cowan, Edgar (Senator from 
 Penn.), remarks in Senate, on 
 twenty-second joint rule, 78, 
 79; asserts that it gives either 
 house power to disfranchise 
 a State, 78, 79; as to votes of 
 Louisiana and Tennessee, in 
 
 -1865, 79 
 
 Crawford, William H. (Ga.), 
 
 '^* candidate for Presidency, 
 1825, 46; electoral and popular 
 vote for, 1825, 47; vote in 
 House of Representatives for, 
 47; contest between friends 
 of, and People's party, N. Y., 
 
 282; nominated for President, 
 1824, 329 
 
 Crittenden, John J. (a Senator 
 from Kentucky), remarks dur- 
 ing electoral count of 1857, 52, 
 53 ; reference to, 121, 340 
 
 Cronin, E. A. (Oregon), refer- 
 ences to, 187, 188, 189, 190, 
 192, 194, 195, 197, 201 
 
 Curtis, George Ticknor, on six- 
 teenth amendment to Constitu- 
 tion, 259; Constitution does 
 not embrace vacancy caused by 
 death or inability of President- 
 elect, etc., 271, n. 
 
 Dana, Richard H., Jr., on scru- 
 pulous fidelity of electors to 
 implied obligation, 252, 253 ; on 
 fraudulent ballots and general 
 ticket system, 305; as to abol- 
 ishing electoral system, 344, n. 
 
 Davis, David (Associate Justice 
 U. S. Supreme Court), elected 
 U. S. Senator from Illinois, 
 135 ; Ingalls on, 220 
 
 Davis, Matthew L., informality 
 in (Georgia's vote, 1801, 35 
 
 Dawes, George L. (a Senator 
 from Mass.), on electoral com- 
 mission law. Int. 7 ; remarks 
 in Senate on Morton bill, 99; 
 advocates amendment to Con- 
 stitution, 249, 402 
 
 Dayton, William L. (N. J.), elec- 
 toral vote for, 1857, 51, 52; 
 further reference at, 304 
 
 Dayton, Jonathan (N. J.), dele- 
 gate to Convention of 1787; 
 vote in Senate for bill of 1800, 
 70 
 
 Dexter, Samuel (a Senator from 
 Mass.), remarks in Senate, 
 1800, on Ross' motion, 64 
 
 Dibble, Samuel (S. C), on Elec- 
 toral Count bill of 1887, 229 
 
 Dickerson, Mahlon (a Senator 
 from N. J.), offers amend- 
 ment to U. S. Constitution, 
 1823, 328; fear of large States 
 in presidential elections, 2^2 1 
 other references, 332, 334 
 
Index 
 
 413 
 
 Dicey^ Albert V., on the English 
 Constitution, 405 
 
 Dickinson, John (Del.), delegate 
 to Convention of 1787, favors 
 popular vote for President, 13 
 
 District system of choosing elect- 
 ors, Int. 11; Hildreth on, 19; 
 views of members of Conven- 
 tion of 1787, 281 ; Virginia 
 
 ' adopted in 1788, 283; Massa- 
 chusetts adopted, 1792, 284; 
 North Carolina, 1792, 284; 
 States electing by, 1796, 285; 
 Virginia abandoned, 1800, 
 286; Hamilton and Clinton 
 favored, in New York, 288; 
 amendment to establish, of- 
 fered in Congress, 1813, 289; 
 remarks of Pickens, 289; 
 Gaston, 289; Pickens renews 
 effort, December, 1816, 290; 
 remark by Erastus Root, 290; 
 by Jabez D. Hammond, 290; 
 McDuffie's proposed amend- 
 ment, 1823, 291, 292, 293 ; dis- 
 cussion in House of Repre- 
 sentatives, 1826, 294-6; vote 
 on, 299 ; New York established 
 district system, 1825, 299; law 
 repealed, 1829, 299; reasons 
 for abandonment of district 
 system, 299, 300; method not 
 unconstitutional, 300; Michi- 
 gan adopted, 1891, 300; Mc- 
 Pherson v. Blacker, 300-02 ; 
 President Harrison opposed 
 to district system, 302, n. ; 
 Madison's views, 302 ; report 
 of select committee on, to Sen- 
 ate, January, 1826, 334; re- 
 marks on, 334, 335; Morton 
 advocated establishment of, by 
 constitutional amendment, 344- 
 9 ; danger of gerrymander, 323, 
 346 ; district system imperfect, 
 324; does not give minority 
 sentiment complete expression, 
 324, 372 : possibility of corrup- 
 tion of districts, 372 ; oblitera- 
 tion of state lines, 372 ; close 
 districts might be contested, 
 376; would bring executive 
 and lower house into political 
 accord, 400 
 
 Douglas, Stephen A. (111.), ref- 
 erence to, 121; popular and 
 electoral vote for, i860, 310; 
 divided northern vote with 
 Lincoln, 310; also 318 
 
 Duane, William, charges made in 
 the Aurora, 63 
 
 Drew, George F. (Governor of 
 Florida, 1877), 139, 140, 143 
 
 Dwight, Theodore W., on presi- 
 dential inability, 277 
 
 Eaton, William W. (Conn.), de- 
 clares the House alone has 
 power to count electoral vote, 
 217 and note; criticises act of 
 1887, 229 
 
 Edmunds, George F. (a Senator 
 from Vermont), remarks in 
 Senate, January, 1877, 27; ex- 
 plains origin of twenty-second 
 joint rule, 77; offers resolu- 
 tion in Senate, for alternative 
 count of Georgia's vote^ 1869, 
 81 ; objections during count, 
 82; remarks, 831 amendment 
 to Morton bill, 91; votes 
 against Morton bill, 92, 100; 
 votes to reconsider, 103 ; on 
 bill of 1800, 105 ; on gravity of 
 danger, 1877, 108, 109; ap- 
 pointed on Senate committee 
 to report bill as to electoral 
 count, 109-110; presents report 
 to Senate, 1 10-14; elected 
 member of Electoral Commis- 
 sion, 134; remarks, Louisiana 
 case, 168, 177, 195 ; reports an 
 electoral count bill to Senate, 
 1878, 215; again, in 1885, 217; 
 argues district system uncon* 
 stitutional, 300; on gerryman- 
 dering, 323 ; would increase 
 possibility of disputes, 376; 
 district system would make 
 choice of President purely na- 
 tional, 399 
 
 Eldridge, Charles A. (Wis.), on 
 twenty-second joint rule, 85 
 
 Electoral College, when words 
 were first used in debates in 
 Congress and in legislation, 
 74, n. 
 
414 
 
 Index 
 
 Electoral Commission Bill, of 
 1877, deadlock between Senate 
 and House on power to count, 
 107, 108; debate in Senate, iio- 
 26; Edmunds opens, 1 10-14; 
 Morton opposes bill, 114, 115; 
 remarks by Frelinghuysen, 
 115; Sherman opposes, 116; 
 Conkling advocates, 117-23; 
 opinions on Conkling's speech, 
 122-3; Thurman supports, 123; 
 Morrill, 123; Morton replies, 
 124; Blaine opposes, 125; 
 Whyte favors, 125, 126; vote 
 in Senate on, 126; debate in 
 House, 126; McCrary opens, 
 126; discussion of bill by Hun- 
 ton, 127; Hoar, 127; Hale op- 
 poses, 127, 128; Hewitt and 
 Springer favor^ 128 ; Garfield 
 opposes, 129-31 ; also Mills, 
 131 ; Lamar answers Mills, 
 131 ; Baker and Watterson 
 favor, 131, 132; vote on bill in 
 House, 133 ; bill a compromise, 
 134; views on, 133, 134; be- 
 comes law, 134; commissioners 
 appointed, 134, 135 ; Sherman's 
 "element of blind chance," 135 
 
 Electoral Commission Law 
 (see Act of Congress, January 
 30, 1877), 135 
 
 Electoral Count, Bill of 1800. 
 The germ of later provisions 
 for counting, 62 ; originated in 
 U. S. Senate, 63; history of, 
 and discussion in Senate, 63, 
 64, 65, 66, 67 ; provisions of, 
 68, 69, 70, 71 ; vote upon, in 
 Senate, 68; changes in House, 
 70, 71 ; bill returned to Senate, 
 and Senate amendment, 71 ; 
 House refuses to accept, 71 ; 
 bill lost, 72; Jefferson on 
 failure of Federalists to pass, 
 72; Gallatin's proposed amend- 
 ment in House, 72 ; Jefferson 
 and Nicholson on, 120; see 
 also 128 
 
 Electoral Count, Bill of 1824, 73, 
 74, 121, 128; bill introduced 
 in Senate by Morton, January 
 26, 1875, 91 ; remarks on, 91, 
 92; revived in Senate, March, 
 1876, 92; provisions of, 93-5; 
 
 attempts to amend so as to 
 provide an ultimate arbiter be- 
 tween the houses, when they 
 disagree on returns, 96-100; 
 bill passed, loi ; how the bill 
 would have operated had it 
 been law in 1877, loi, 102; mo- 
 tion for reconsideration of bill. 
 passed, 103; but bill not fur- 
 ther voted upon, 103 
 
 Electoral Count, Act of Feb- 
 ruary 3, 1887. Efforts to en- 
 act electoral count law, after 
 1877, 215; Edmunds reports 
 bill, 1878, 215; bill reported, 
 1882, 215; Pugh of Alabama, 
 on, 215; Garland, of Arkan- 
 sas, opposes bill, 216; amend- 
 ments suggested in House, 
 216, 217; Edmunds again in- 
 troduces measure in Senate, 
 December 8, 1885, 217; Hoar 
 advocates, 217 ; Sherman op- 
 poses, 218, 219; Ingalls' caustic 
 remarks in opposing, 220, 221 ; 
 insists upon necessity of con- 
 stitutional amendment, 221 ; 
 Evarts upon the power to 
 count, 222; upon the numerous 
 difficulties of the system, 222 ; 
 Wilson, of Iowa, opposing bill, 
 insists upon necessity of con- 
 stitutional amendment 224 ; 
 provisions of act of February 
 3, 1887, 230, 231, 232, 233, 234, 
 242 ; its provisions critically 
 reviewed, 229-43 ; single re- 
 turns, 235-6; multiple returns, 
 236-40; J. G. Carlisle on act, 
 241 n., 243 n. ; defects in act, 
 243-4, 245; of doubtful consti- 
 tutionality, 246; no more pos- 
 sible to draft satisfactory law 
 in 1887 than in 1876, 248; fail- 
 ure to provide a " common ar- 
 biter " when the houses dis- 
 agree, 248; necessity of con- 
 stitutional amendment, 249 ; 
 further criticism, 254 
 
 Electoral Counts, 1789, 28, 29; 
 1793, 32, 33; 1797, 33, 34; 1801, 
 35, 36; 1805, 38; 1809, 39; 1813, 
 40; 1817, 40, 41; 1821, 42-6; 
 1825, 46, 47; 1837, 48-50; 1857, 
 51-7; 1861, 75; 1865, 75-9; 
 
Index 
 
 415 
 
 1869, 80-5; 1873, 86-9; 1877, 
 
 105-213 ; 1881, 225 n. ; 1885, 225, 
 226 n. 
 
 Electoral System, purpose of 
 framers of the Constitution, i ; 
 metamorphosis of, 2; dangers 
 of not commonly understood, 
 7; the Federalist on, 15; 
 McKnight on, 58, 59; 
 should be abolished, 250; its 
 origin obscure, 251 ; fail- 
 ure in purpose, 252 ; scru- 
 pulous fidelity of electors to 
 a merely tacit obligation, 252- 
 3 ; possible future breaches of 
 trust, 253 ; elector an abortive 
 organism, 253 ; why continue 
 the system, 254 ; usurpation by 
 Congress of power to count, 
 255 ; veto by one house on the 
 other under act of 1887, 255 ; 
 other difficulties of the sys- 
 tem, 259-62 ; right of House to 
 proceed to election of Presi- 
 dent, when, 262; election by 
 outgoing House, 262; consti- 
 tutional defects in connection 
 with system, 262-80 ; Madison's 
 plan for amendment of, 329; 
 election may turn on ignorance 
 of voters, 392 ; summary of 
 criticisms of, 390-8 
 
 Electors, eligibility of, discussed, 
 49. 50, 147, 148, 149, 153, 160, 
 168, 170, 179, 180, 181, 182, 184, 
 186, 190-201, 209, 243-5, 256 
 
 Ellsworth, Oliver (Conn.), in 
 Convention of 1787, favored 
 election of electors by legis- 
 latures, 302 
 
 Evarts, WilHam M. (N. Y.), Re- 
 publican counsel before elect- 
 oral commission, 142. 147, 170, 
 185, 186, 209; views in Senate, 
 1886-1887, on power to count, 
 222 ; proposes amendment to 
 bill of 1887, 223, 224, 261, 262; 
 casus omissus in Constitution, 
 262; "periodicity" in election 
 of president and vice-presi- 
 dent, 264 
 
 Everett, Edward, on general 
 ticket plan. 10 ; on district sys- 
 tem, rernarks in House of Rep- 
 resentatives, 1826, 295, 297; 
 
 unwilling to increase compro- 
 mises of Constitution, 298; 
 general ticket and district 
 system amount to the same 
 thing, 295 
 
 Federalist, remarks of Hamilton, 
 in, on method of choosing 
 President, 15 
 
 Ferry, Thomas W. (a Senator 
 from Mich.), president pro 
 tern, of Senate during electoral 
 count, 1877, 107, 126 
 
 Field, Stephen J. (Associate Jus- 
 tice U. S. Supreme Court), 
 member of electoral commis- 
 sion, 135 ; opinion of, in Flor- 
 ida case, 151; no opinion in 
 Louisiana case, 177; in Ore- 
 gon case, 199, 200, 201 ; on in- 
 eligible electors, 245 
 
 Fillmore, Millard (N. Y.), pop- 
 ular and electoral vote for, 309 
 
 Findlay, William (Pa.), 332 
 
 Florida, case of, before electoral 
 commission, 136-61 ; present 
 extraordinary ballot law, 392 
 
 Floyd, John B. (Va.), remarks 
 in joint meeting to count elect- 
 oral vote, 1821, 44; remarks in 
 House, in recess, 45 ; in joint 
 meeting, 45 
 
 Franklin, Benjamin, favors popu- 
 lar election of President in 
 Convention of 1787, 13 
 
 Frelinghuysen, Frederick T. (a 
 Senator from N. J.), remarks 
 in Senate, on Morton bill, 97; 
 offers amendment to bill, 98; 
 favors electoral commission 
 bill, 115; appointed member of 
 electoral commission, 134; 
 opinion of, in Florida case, 
 150, 160; in Louisiana case, 
 174, 182; in Oregon case, 194; 
 in South Carolina case, 204, 
 205, 206 
 
 Fremont, John C, electoral vote 
 for, 1856, 52, 309; popular 
 vote for, 309; no electoral tick- 
 et for in South, in 1856, 304 
 
 Frye, William P., on election in 
 Louisiana, 1873, 163, 174; of- 
 
4i6 
 
 Index 
 
 fers in Senate resolution for 
 amendment to Constitution, 
 December, 1897, 279 
 Fuller, Melville W. (Chief Jus- 
 tice U. S. Supreme Court), 
 on Madison and the district 
 system, 281 
 
 Gallatin, Albert, offers in House 
 of Representatives amendment 
 to bill of 1800, 72, 92, 328; 
 nominated for vice-president, 
 1824, 329 
 
 Garfield, James A., remarks in 
 House of Representatives, 
 1869, 85; opposes electoral 
 commission bill, 129, 130; ap- 
 pointed member of electoral 
 commission, 135 ; opinion of, in 
 Florida case, 150, 160; in 
 Louisiana case, 176, 182; no 
 opinion in Oregon case, 195 ; 
 count of electoral vote, 1881, 
 225, n. ; disabled from acting 
 as President, 263 ; illness of, 
 while President, 276; popular 
 and electoral vote for, 1880, 
 313; minority President, 318, 
 319 
 
 Garland, Augustus H. (Ark.), 
 remarks in Senate on electoral 
 count bill, 1878, 216; 1882, 216, 
 
 247 
 
 Gaston, William (N. C), re- 
 marks in House, 1813, on dis- 
 trict system, and general ticket 
 system, 289, 290 
 
 General ticket system (of choos- 
 ing electors), Int. 10; Hil- 
 dreth, 19; Virginia adopts, 19; 
 Massachusetts adopts, 19; dis- 
 advantages of, as stated in re- 
 port of McDuffie committee 
 to House, 1823, 291-3; discus- 
 sion, in House, 1826, 294-298; 
 reasons for adoption of gen- 
 eral ticket system, 299, 300; it 
 suppresses minority sentiment, 
 303, 304; is conducive to 
 frauds, 305, 306 ; danger of 
 fraud in close States, 306; 
 small States should oppose 
 system, 306 ; extent to which 
 large States dominate under 
 
 general ticket system, 307; 
 electoral and popular vote in 
 different campaigns, 307-17; 
 unfairness illustrated m Penn- 
 sylvania, Ohio, Indiana, Il- 
 linois, 1860-1872, 312; district 
 system, an improvement on, 
 324 ; apportionment system 
 even better, with electoral 
 office abolished, 324, Madison 
 on general ticket system, 330 
 
 Georgia, status of, 1865, 81 •; 
 electoral vote of, 1869, 82, 83; 
 1873, 87, 261 ; 1881, 225 n. 
 
 Gerry, Elbridge (Mass.), on pop- 
 ular election of President, 14; 
 votes for Adams, 1796, 18; on 
 mode of choosing electors, 302 
 
 Gilmer, George R. (Ga.), offers 
 resolution, in House, to amend 
 Constitution, 106, 317 
 
 Government Party, 322 
 
 Granger, Francis (N. Y.), elect- 
 oral vote for, as vice-president, 
 1837, 50 n. 
 
 Grant, Ulysses S., approves reso- 
 lution as to count of electoral 
 vote, 1877, 109; electoral com- 
 mission bill, 134 ; 266 ; popular 
 and electoral vote, for, 311; 
 further reference to, 392 
 
 Greeley, Horace (N. Y.), death 
 of, before vote in electoral col- 
 leges, 1873, 87; three Georgia 
 votes for, 88, 261, 265, 266; 
 popular and electoral vote for, 
 311, 312; further reference to, 
 392 
 
 Green, Ashbel (N. Y.), counsel 
 for Democrats before electoral 
 Commission, 142 
 
 Grover, LaFayette (Governor of 
 Oregon), references to, 198, 
 240 
 
 Grundy, Felix, ineligible elect- 
 ors, 49 ; reply to question as to 
 Michigan's vote, 1837, 50 ; 
 other references, 245, 256 
 
 H 
 
 Hale, John P. (a Senator from 
 N. H.), remarks in Senate, on 
 Wisconsin vote, 1857, 53 ; pop- 
 ular vote for, 1852, 309 
 
Index 
 
 417 
 
 Hale, Eugene (Me.), opposed 
 electoral commission bill, 127; 
 believed president of Senate 
 had power to count, 127, 128 
 
 Hamilton, Alexander (N. Y.), 
 excellence of electoral system, 
 15; his patriotism, 24; urges 
 Governor Jay to convoke New 
 York legislature, 1800, 34; ex- 
 tols method of choosing Pres- 
 ident, 36 ; advocates constitu- 
 tional amendment establishing 
 district system, 288; as to 
 mode of choosing electors, 302 
 
 Hammond, Jabez D. (N. Y.), 
 290 
 
 Hancock, Winfield S., electoral 
 count, 1881, 226 n. ; popular 
 and electoral vote for, 314, 319 
 
 Harper, Robert G. (Md.), re- 
 marks in House on bill of 1800, 
 71, 80 
 
 Harrison, Benjamin (Ind..). on 
 general ticket plan, 11, 302; 
 popular and electoral vote for, 
 315; a minority President, 318 
 
 Harrison, William Henry, death 
 of, during presidential term, 
 270; popular and electoral 
 vote for, 1836, 307; 1840, 308 
 
 Hay, George, letter to, from 
 Madison, regarding haste of 
 Convention of 1787 to close its 
 sessions, 329 
 
 Hayes, Rutherford B., twenty- 
 second joint rule would have 
 defeated, so Morton bill, loi ; 
 Chandler's claim, 107 ; effect of 
 death of, before inauguration, 
 267, 269 ; popular and electoral 
 vote for, 313 ; a minority Presi- 
 dent, 318 ; further reference to, 
 392, 407 
 
 Hayne, Robert Y. (S. C), 332 
 
 Hendricks, Thomas A. (Ind.). 
 death of, 270 
 
 Hewitt, Abram S. (N. Y.), fa- 
 vors electoral commission bill, 
 in House of Representatives, 
 128 
 
 Hildreth, Richard (historian), 
 T9, 286, 287 
 
 Hitchcock, Henry, Flexibility of 
 State constitutions, Int. 8 
 
 Hoadley, George, of democratic 
 counsel before electoral com- 
 mission, 142 
 
 Hoar, George F. (Mass.), ob- 
 jects to count of three of 
 Georgia's electoral votes, 1873, 
 87; on Conkling's support of 
 electoral commission bill, 117; 
 favors electoral commission 
 bill, in House of Representa- 
 tives, 127; appointed member 
 of electoral commission from 
 House, 135; opinion of, in 
 Florida case, 150, 160; report 
 of Wheeler, Frye and, on 
 Louisiana, to House, in 1873, 
 163, 174; on Louisiana case, 
 176; introduces an electoral 
 count bill, in Senate, 1882, 215 ; 
 advocates bill of 1887, 217, 
 218; on its imperfections, 248, 
 249; on presidential succes- 
 sion, if President-elect should 
 die, 269, 270; defects in 
 amendment proposed in Sen- 
 ate, in 1898, 388, 389 
 
 Hobart, Garret A. (N. J.), death 
 of, 270 
 
 Hoffman, Michael (N. Y.), fa- 
 vors in House of Representa- 
 tives district system and direct 
 vote for President, 295, 298 
 
 Holmes, John (Me.), 332 
 
 House of Representatives, when 
 to elect President, 261 ; elec- 
 tion by outgoing House, 262; 
 can vote for only three candi- 
 dates, 273-5 
 
 Howe, Timothy O. (a Senator 
 from La.), argument in Loui- 
 siana case, 1877, 164, 165 
 
 Huger, Daniel (S. C), un- 
 reasoning attachment to Con- 
 stitution, 25 
 
 Hunton, Eppa (Va.), advocates 
 electoral commission bill in 
 House of Representatives, 
 127; appointed member of 
 commission, 135 ; opinion of, in 
 Florida case, 150; in Louisiana 
 case, 175, 182 ; in Oregon case, 
 log; in South Carolina case, 
 206 
 
 Hurd, Frank H. (O.), Demo- 
 
4i8 
 
 Index 
 
 cratic counsel in South Caro- 
 lina case before electoral com- 
 mission, 203 
 Hurlbut, Stephen A., 203 
 
 I 
 
 Inability, Presidential, 276-7 
 Indiana, Int., 4; adopts a con- 
 stitution, 40; objection to 
 electoral vote from, in 1817, 
 40, 41 
 Ingalls, John J. (a Senator from 
 Kansas), criticises electoral 
 commission law, 7; on modes 
 of electing President proposed 
 in Convention of 1787, 14; op- 
 poses electoral commission bill 
 in Senate, 1886, 220, 221 ; de- 
 clares legislative remedies fu- 
 tile, 221 ; on electors, 250, 251 ; 
 further remarks in debate, 
 1886, 262, 263, 269, 270 
 
 Jackson, Andrew, candidate for 
 presidency, 1825, 46; electoral 
 vote for 1825, 47; vote in 
 House of Representatives, 
 1825, 47; most popular candi- 
 date, 47; urges amendment to 
 Constitution, in inaugural 
 messages, 106, 339; reference 
 to, 260; vote for in Maryland, 
 in 1832, as compared with vote 
 for Clay, 307, 374; popular 
 and electoral vote for, in 
 1832, 307 
 
 Jay, John (Governor of N. Y.), 
 refuses to convene New York 
 legislature, 1800, to enact law 
 for election of presidential 
 electors in districts, 34, 282 ; 
 has one electoral vote, 1801, 
 274 
 
 Jefferson, Thomas (Va.), elect- 
 oral vote for, 1797, 18, 33; 
 on Vermont's electoral vote, 
 I797> 34. ^- 'j Samuel Miles 
 votes for, 35, n. ; electoral vote 
 for 1 801, 24. 35, 36; vote for 
 
 in House of Representatives, 
 36; writes Edward Livingston 
 about Ross' bill of 1800, 71 ; 
 letter to Madison, 63, 72 ; on 
 bill of 1800, as quoted by 
 Conkling, 120 ; advises Vir- 
 ginia to adopt general ticket 
 system, 1800, 286 and note ; on 
 electoral vote of Massachu- 
 setts, in 1804, 287, 288 and 
 note ; on difficulty of amend- 
 ing the Constitution, 405 
 
 Jenks, George A., one of counsel 
 for Tilden electors, argument 
 in Louisiana case, 167 
 
 Johnson, Andrew (Tenn.), veto 
 of joint resolution, 1869, 81 ; 
 attempted impeachment of, 264 
 
 Johnson, Richard M, (Ky.), 
 electoral vote for, as vice- 
 president, 1837, 50, n. ; chosen 
 by Senate, 50, n. ; other refer- 
 ences, 332 
 
 Johnston, Alexander (histo- 
 rian), growth of claim of con- 
 gressional power to count 
 electoral votes, 59, 60; elect- 
 oral system only feature of 
 the Constitution, not a natural 
 growth, 251, 252 
 
 Johnston, John W. (Senator 
 from Va.), offers amendment 
 to Morton bill, 97; remarks, 
 98,99 
 
 Joint Rule, Twenty-second, S, 6, 
 78, 95, 107, 130 
 
 Jones, Charles W, (Fla.), on 
 Morton bill, 99 
 
 Jones, George W. (Tenn.), teller, 
 1857, 51 ; letter to, from Mr. 
 Justice Strong, 212 
 
 Kellogg, William Pitt (Governor 
 of Louisiana), 165, 373 
 
 Kent, James (N. Y.), Int. 10; 
 Dangers in connection with 
 choice of President, 15 ; views 
 as to power of president of 
 Senate to count electoral votes, 
 27, n. ; letter from, quoted in 
 House of Representatives, 
 1857, 56 ; peril foreseen by, 57 ; 
 
Index 
 
 419 
 
 references to, in debates, 98, 
 119, 127, 132, 401; opposed ex- 
 tension of suffrage in New 
 York, 182 1, 398 
 
 Kentucky, vote of one elector 
 missing, 1809, 40 
 
 Kernan, Francis (a Senator 
 from N. Y.), remarks in Sen- 
 ate on Morton bill, 97; ap- 
 pointed member of electoral 
 commission, in place of A. G. 
 Thurman, 206 
 
 King, Rufus (a Senator from 
 N. Y.), on caucus system, 333 
 
 Knott, Proctor L., opposes elect- 
 oral commission bill, in House 
 of Representatives, 132 
 
 I^mar, Lucius Q. C. (Miss.), 
 supports electoral commission 
 bill in House of Representa- 
 tives, 131 
 
 Langdon, John (Delegate to 
 Convention of 1787, Senator 
 from N. H.), president of 
 Senate, and opens and counts 
 electoral votes, 1789, 29; votes 
 against bill of 1800, 68; Mor- 
 ton refers to, 124 
 
 Lapham, E. G. (N. Y.), disap- 
 proves of electoral commis- 
 sion bill, 132 
 
 Lawrence, William (O.). op- 
 poses electoral commission 
 bill, 133; argument (Louisiana 
 case) as counsel for Hayes 
 electors, that state legislature, 
 in appointing electors, mav 
 disregard state constitution, 
 204 
 
 Letcher, John (Va.), objects to' 
 Wisconsin vote, 1857, 51, 52 
 
 Lincoln, Abraham (111.), reluc- 
 tantly signs joint resolution, 
 1865, for counting electoral 
 vote, 76, 77; death of, 268; 
 scheme to assassinate, 1861, 
 270; a minority President, 318, 
 319; popular and electoral 
 vote for, i860, 310, 311; 1864, 
 311; in certain States, 312 
 
 Liyermore, Samuel (N. H.), ob- 
 jects to count of Missouri's 
 
 votes, 1821, 44; remarks in 
 Senate, 1800, on Ross' motion, 
 64 
 
 Livingston, Edward (La.), fa- 
 vors district system for choice 
 of electors, 294; and abolition 
 of electors, 295 
 
 Livingston, Robert R. (N. Y.), 
 295 
 
 Logan, John A. (a Senator from 
 111.), succeeded by Justice Da- 
 vid Davis, 13s 
 
 Louisiana, case of, before elect- 
 oral commission, 162 
 
 M 
 
 Macon, Nathaniel (a Senator 
 from N. C), opposes Van 
 Buren bill of 1824 as uncon- 
 stitutional, 73 ; other refer- 
 ences to, 332, 334 
 
 Madison, James (Va.), letter of 
 Jefferson to, 63, 72 ; on district 
 system, 281 ; election of, 1812, 
 282; introduces bill for gen- 
 eral ticket system, in Virginia 
 house of delegates, 1800, 286; 
 on district system of electing 
 presidential electors, letter to 
 George Hay, 329-31 ; to Jeffer- 
 son, 332; to McDuffie, 332; 
 other references, 357, 398, 400 
 
 Maish, Levi S. (Pa.), proposed 
 amendment to Constitution, 
 351, 354, 357, 363, 309, 400 
 
 Mallory, Robert (Ky.), 54 
 
 Marshall, Humphrey (a Senator 
 from Ky.), proposes amend- 
 ment to Constitution in Sen- 
 ate, January, 1798, 25, 69, 70 
 
 Marshall, Humphrey (Ky.), re- 
 marks, in House of Represen- 
 tatives, on electoral count, 
 1857, 55 
 
 Marshall, John (Va.), chairman 
 of committee. House of Rep- 
 resentatives, on bill of 1800, 
 70; doubts as to bill, 70; his 
 " dexterous manoeuvre," 71 ; 
 necessity for concurrent ac- 
 tion to reject a State's vote, 
 80 ; other references, 248 
 
 Martin, Luther (Md.), in Con- 
 vention of 1787, favored elec- 
 
420 
 
 Index 
 
 tion of electors by legisla- 
 tures, 302 
 
 Maryland, vote of, in House of 
 Representatives, for President, 
 1801, Z7 
 
 Mason, George (Va.), views in 
 Convention, 1787, on mode of 
 choice of President, 14 
 
 Mason, James M. (a Senator 
 from Va.), presides during 
 electoral count of 1857, 51, 52, 
 53 and note, 121 
 
 Massachusetts, abandonment in, 
 of district system, 19; petition 
 from citizens of, 1809, 39 
 
 Matthews, Stanley (O.), Repub- 
 lican counsel before electoral 
 commission, 142; on quaint 
 saying of Selden, 257 
 
 Maxey, Samuel B. (a Senator 
 from Texas), remarks in Sen- 
 ate on Morton bill, 99 
 
 McClellan, George B. (General), 
 references to, 76, 311, 319 
 
 McComas, William (Va.), pro- 
 poses amendment to Constitu- 
 tion, 340 
 
 McCrary, George W. (la.), 
 initiates discussion, in House 
 of Representatives, of electoral 
 commission bill, 126 
 
 McDonald, J. E. (Ind.), argu- 
 ment in Louisiana case, 1877, 
 164, 166 
 
 McDuffie, George (S. C), pro- 
 poses Constitutional amend- 
 ment, 259, 328, 329; motion in 
 House of Representatives for 
 select committee, 1823, 291 ; 
 report favoring district system, 
 291, 294; speech on, 1826, 294, 
 296; criticism of Adams and 
 Clay, 298; letter of Madison 
 to, 332, also 398 
 
 McEnery, John (La.), 165, 166, 
 
 373 
 McKinley, William (O.), death 
 
 of, 270; popular and electoral 
 
 votes for, 315, 316 
 McKnight, David A., quotations 
 
 from his Electoral System of 
 
 the United States, 58, 59, 66 
 McMaster, John B. (historian), 
 
 325 
 
 McPherson v. Blacker, 146 U. S., 
 I, citations from, 300, 371, n. 
 
 Merrick, Richard T., Democratic 
 counsel before electoral com- 
 mission, 142; argument, Ore- 
 gon case, 185, 191-93, 195, 198 
 
 Merrimon, Augustus S. (Senator 
 from N. C), remarks, in Sen- 
 ate, on Morton bill, 92 ; tries 
 to amend, 99; amendment re- 
 jected, 100 
 
 Michigan, vote of, counted in 
 the alternative, 1837, 48 ; act of 
 May I, 1891, establishing dis- 
 trict system, 300 
 
 Miller, Samuel F. (Associate 
 Justice U. S. Supreme Court), 
 member of electoral commis- 
 sion, 135; opinion of, in Flo- 
 rida case, 153, 154, 156, 160; 
 remarks, in Louisiana case, 
 169, 177; opinion of, in Oregon 
 case, 196; as to eligibility of 
 electors, 210, 244 
 
 Mills, Roger Q. (Tex.), opposes 
 electoral com.mission bill, 131 
 
 Minority Presidents, number 
 of, 317, 318 
 
 Missouri, Int., 4; constitution of, 
 42 ; admission to Union, 42 ; 
 controversy over electoral 
 votes, 1 82 1, 42-46 
 
 Monroe, James (Va.), electoral 
 count, 1817, 41, 43, 44 
 
 Morgan, John T. (Senator from 
 Alabama), on count of elect- 
 oral vote, 1881 and 1885, 225 
 n., 226 n. ; failure, for a centu- 
 ry, to solve electoral-count 
 difficulties, 401 
 
 Morrill, Justin S. (Vt), on 
 Morton bill, lOi ; on electoral 
 commission bill, 123, 124 
 
 Morris, Gouverneur, advocates 
 choice of president by people 
 in convention of 1787, 13, 302 
 
 Morton, Oliver P. (a Senator 
 from Ind.), Int., 8, 10; on in- 
 justice of House election of 
 President, 23 n. ; on rejection of 
 Arkansas' electoral vote, 1873, 
 88; resolution, in senate, 1873, 
 89; speech on electoral system, 
 89; iniquity of twenty-second 
 
Index 
 
 421 
 
 joint rule, 89, 90; favors elec- 
 tion of president by people, 90 ; 
 introduces bill in Senate to 
 regulate electoral count, 91 ; 
 remarks on, during debates, 
 96, 97, 100, 103; on committee 
 of Senate (1877) to report bill, 
 109; opposes electoral commis- 
 sion bill, no, III, 114, 115, 117, 
 118, 124, 125; on Conkling's 
 speech, 117; appointed member 
 of electoral commission, 134; 
 opinion of, in Florida case, 
 149, 150, 160; in Louisiana 
 case, 172, 181 ; in Oregon case, 
 I93» 195 ; in South Carolina 
 case, 204, 20s, 206; eligibility 
 of electors, 206 ; Morton bill, 
 imperfect, 248; on interme- 
 diate electoral bodies, 251 ; on 
 disparity between popular and 
 electoral votes, 311-12; offers 
 amendment to Constitution, in 
 Senate, 259, 344; remarks on, 
 344-46; quotation from speech 
 in Senate, 1873, 300, 303; on 
 election of president by House 
 of representatives, 347; rein- 
 troduces amendment Dec. 1876, 
 348; views in North American 
 Rcviezv, May and July 1877, 
 348; his death, 348; his work 
 for presidential electoral re- 
 form, 348; text of his amend- 
 ment, 348-49; criticism of, 
 350 ; compared with Madison's 
 plan and Benton's plan, 350, 
 392, 39^5^398, 399, 400, 401 
 Morton Bill, to regulate electoral 
 count, introduced in senate, 
 91 ; debates of, 91 ; bill passed, 
 1875, 92; text of bill, 93-95; 
 amendments offered, 91, 99, 
 100; bill passed, 1876, loi ; 
 vote on, loi ; motion to recon- 
 sider passed, 103 ; effect of, in 
 election of 1876-77, had it be- 
 come law, loi, 102; imper- 
 fections admitted by its sup- 
 porters, 96, 97, 98, 99, 103 ; re- 
 consideration, but no further 
 vote, 103; Conkling on, 121, 
 122; other references to, 128, 
 247-249, 254, 401 
 
 N 
 
 Newcomb, Prof. Simon, Views 
 of, on electoral system, 278 
 
 New York (City), Election, 
 spring of 1800, 34 
 
 New York (State), great weight 
 of its electoral vote, 306, 314 
 
 Nicholas, John (Va.), 328; 
 proposed amendment to con- 
 stitution to establish district 
 system, 357 
 
 Nicholas, Wilson Carey (Va.), 
 twelfth amendment, 274 
 
 North Carolina, took no part in 
 presidential election, 1789, 21, 
 284 
 
 O'Conor, Charles (N. Y.), 
 Democratic counsel in Florida 
 case, before electoral commis-. 
 sion, 138, 142, 145, 166 
 
 Oregon, Case of, before electoral 
 commission, 184 
 
 Ostrogorski's, Democracy and 
 Political Parties, 260; on 
 temporary parties, 322 
 
 Paine, Albert W. (Me.), on fail- 
 ure of constitution to provide 
 for contingency of death of 
 president-elect, 279; his pro- 
 posed amendment modified in 
 senate, 388, 389 
 
 Parker, Alton B. (N. Y.), popu- 
 lar and electoral vote for, 317, 
 392, 393 
 
 Parties, strength of attachment 
 to, in U. S., 322 
 
 Payne, Henry B. (O.), appointed 
 member of electoral commis- 
 sion, 135,. 177, 195 
 
 Pennsylvania, importance of vote 
 of, 1800, 63 
 
 Pickens, Israel (N, C), offers 
 resolution in House of Re- 
 presentatives to amend consti- 
 tution to establish district sys- 
 tem, 289, 290, 326 
 
422 
 
 Index 
 
 Pierce, Franklin (N. H.), pop- 
 ular and electoral vote for, 309 
 
 Pinckney, Charles Cotesworth (a 
 Senator from S. C). on mode 
 of electing President, 13; 
 electoral vote for, 1801, 35; 
 attacks in Senate, 1800, Ross' 
 bill for counting electoral 
 votes, 66-68 ; votes against bill, 
 68; on act of 1792, 68; pithy 
 criticism on the bill of 1800, ap- 
 plied to act of 1887, 249 
 
 Pinckney, Thomas, electoral vote 
 for, 1797, 33 
 
 Pinkney, William (Md.), 81, n. 
 
 Polk, James K. (Tenn.), favors 
 abolition of electors, 1826, 
 295 ; on slaves and represen- 
 tation, 298; popular and 
 electoral vote for, 1844, 3o8; 
 minority President, 318. 
 
 Potter, Orlando B. (N. Y.), ob- 
 jects to Mississippi's vote, 
 1873, 87 
 
 President (and Vice-President), 
 death of, in office, 263 
 
 President-elect, death or inabili- 
 ty of. 265 ; no provision for, in 
 constitution, 273 
 
 Presidential Succession Law, 264 
 
 Prohibition Party, 320 
 
 Pugh, George E. (a Senator 
 from O.), views as to electoral 
 count, 1857, 54 
 
 Pugh, James L. (Senator from 
 Ala.), 215 
 
 Purcell, William, elector re- 
 quired to vote by ballot, 253 
 
 R 
 
 Randolph, John (of Roanoke, 
 Va.), 39; on count of Missou- 
 ri's votes, 1821, 44, 45, 46; 
 soundness of view, 60, 92 
 
 Ransom, Matthew W. (N. C), 
 one of Senate committee to re- 
 port electoral count bill, 109 
 
 Remedy, a suggested, 364 
 
 Rawlins, Joseph L. (U.), criti- 
 cism of Frye amendment, 1898, 
 389 
 
 Representation, Proportional (or 
 Apportionment System), 11 
 n. ; 258, 324, 344, 358, 400 
 
 Resolution, Congress of Con- 
 federation, as to counting elect- 
 oral votes, 1789, 26 
 
 Rhode Island, took no part in 
 presidential election, 1789, 21 
 
 Rives, William C. (Va.), 340 
 
 Roosevelt, Theodore (N. Y,), 
 popular and electoral vote for, 
 317, 392, 393 
 
 Root, Erastus (N. Y.), on dis- 
 trict system, 290 
 
 Ross, James R. (a Senator from 
 Pa.), offers resolution in 
 Senate, January, 1800, 63 ; re- 
 mark, 64 ; reference to, 287. 
 
 Saulsbury, Eli (Del,), remarks 
 in Senate on Morton bill, 92 
 
 Scott, Winfield S., popular and 
 electoral vote for 1852, 309 
 
 Seward, William H. (N. Y.), int. 
 12; remarks in Senate during 
 electoral count of 1857, 53, 55 ; 
 attempted assassination 268 ; 
 third party voting, "guerilla 
 warfare," 320 
 
 Seymour, Horatio (N. Y.), pop- 
 ular and electoral vote for, 311, 
 313 
 
 Shellabarger, Samuel (O.), on 
 Wade's action during electoral 
 count, 1869, 84; on power to 
 count, and twenty-second rule, 
 84, 85, 127 ; republican counsel 
 before electoral commission, 
 142; arguments, 147, 148, 169 
 
 Sherman, John (a Senator from 
 O.), remarks during electoral 
 count, 1869, 83, ; on disfran- 
 chisement of Arkansas, 1873, 
 88; on disputes of electoral 
 votes, 105 ; opposes electoral 
 commission bill, 116; opposes 
 in 1886 bill to regulate count, 
 218-220, 223 ; criticises clauses 
 in bill giving Congress power 
 to reject the vote of a State, 
 in some cases where there is 
 
Index 
 
 423 
 
 one return, 235; and where 
 there are double returns, 238 
 
 Sherman, Roger (Conn.), in 
 Convention of 1787 favored 
 election of electors by Con- 
 gress, 13, 302 
 
 Sieyes, Abbe, 251 
 
 Smith, Green Clay, popular vote 
 lor, 313 
 
 Smith, Samuel (Md.), moves to 
 insert number "three" in 
 twelfth amendment, 274 
 
 Smith, William L. (S. C), pro- 
 poses amendment to Constitu- 
 tion in House, 25 ; remarks on, 
 
 25 
 Southard, Milton L. (O.), pro- 
 poses amendment to Constitu- 
 tion, May, 1878, 355; report 
 of committee of House of 
 Representatives on, 355-7 J 
 minority report, 357-8 ; text of 
 amendment, 359-62; its excel- 
 lent features, its defects, 362, 
 
 363 
 
 South Carolina, Case of, before 
 electoral commission, 202-13 
 
 Springer, William M. (111.), ar- 
 gues for electoral commission 
 bill, 128; proposes amendment 
 to Constitution, 354; defects 
 of plan, 355 
 
 Stanwood, Edward, 80 
 
 States, equal division of, in 
 electoral colleges, between 
 Taylor and Cass, 319; Gar- 
 field and Hancock, 319; power 
 of large states, 323 ; their fail- 
 ure to make provision for con- 
 tests of election of electors, 345 
 
 Stearns, Marcellus L. (Governor 
 of Florida), references to, 138, 
 143, 146, 149 
 
 Stevens, Thaddeus (Pa.), re- 
 ported twenty-second joint 
 rule to House, 121 
 
 Stevenson, John W. (a Senator 
 from Ky.), remarks in Senate 
 on Morton bill, 98, 99 
 
 Stevenson, Andrew (Va.), de- 
 fender of general ticket sys- 
 tem, 295, 340 
 
 Storrs, Henry R. (N. Y.), on 
 power of appointment of elect- 
 
 ors, 21 ; declares Convention 
 of 1787 inspired, 25 ; opposed 
 to district system, 295, 298 
 
 Story, Joseph, Int. 10; theory of 
 electoral college, 17; danger 
 in House method of choice of 
 President, 24 n. ; on twelfth 
 amendment, 2i7i 38; remarks 
 of, in Massachusetts constitu- 
 tional convention, 1820, 204, 
 252 ; on resignation of presi- 
 dential office, 263 
 
 Stoughton, Edwin W., extract 
 from article " Electoral Con- 
 spiracy Bubble Exploded," 135, 
 n. ; counsel for Republicans 
 before electoral commission, 
 142; answers Judge Black in 
 North American Review, 211 
 
 Strong, William (Associate Jus- 
 tice of Supreme Court), mem- 
 ber of electoral commission, 
 135 ; opinion of, in Florida 
 case, 152, 159, 160; colloquy 
 with ex-Justice Campbell, in 
 Louisiana case, 170, 177; opin- 
 ion of, in Oregon case, 195, 
 196; further references, 210, 
 212 n. 
 
 Stuart, Charles E. (a Senator 
 from Mich.), remarks in Sen- 
 ate during discussion over 
 electoral count, 1857, 55 ; men- 
 tioned, 127 
 
 Sumner, Charles (Mass.), 
 amendment to Constitution of- 
 fered by, in Senate, 259, 343 
 
 Taylor, John W. (N. Y.), ob- 
 jects to Indiana's votes, 1817, 
 40 
 
 Taylor, Zachary, death of, 270; 
 popular and electoral vote for, 
 1848, 309; a minority Presi- 
 dent, 318, 319 
 
 Tazewell, William (Va.), 46 
 
 Texas, objection to electoral 
 vote of, in 1873, 346 
 
 Texas v. White, 7 Wallace 700, 
 citation from, 371 n. 
 
 Thomas, Francis, on ineligible 
 electors, 1837, 50 
 
424 
 
 Index 
 
 Thompson, John B. (Ky.), re- 
 marks during electoral count, 
 1857, 53, 55; mentioned, 127 
 
 Thurman, Allen G. (a Senator 
 from 0.)j remarks in Senate 
 during debate of Morton bill, 
 91, 92, 96, 98, 102 n. ; votes for 
 bill, loi ; moves its reconsid- 
 eration, 103; supports electoral 
 commission bill, 123; member 
 of electoral commission, 135; 
 opinion of, in Florida case, 150, 
 151 ; opinion of, in Louisiana 
 case, 173, 182; opinion of, 
 in Oregon case, 201 ; resigns 
 from electoral commission, 206; 
 on Morton's proposed amend- 
 ment to Constitution, 347, 348; 
 on ineligible electors, 245 
 
 Tilden, Samuel J. (N. Y.), Int., 
 7; joint rule would have 
 elected, 102; probably Morton 
 bill also, loi, 102; popular and 
 electoral vote for, 107, 313 
 
 Tompkins, Daniel D. (N. Y.), 
 electoral vote for, as vice- 
 president, 43, 44 
 
 Toombs, Robert (Senator from 
 Ga.), remarks during electoral 
 count of 1857, 52 
 
 Townsend, Martin I. (N. Y.), 
 opposes electoral commission 
 bill, 132 
 
 Trumbull, Lyman (111.), author 
 of twenty-second joint rule, 
 'JT, replies in Senate to 
 Cowan's objection to rule, 78, 
 79; criticises Edmunds' reso- 
 lution (1869), 81; objects to 
 votes of Mississippi, 1873, 87; 
 argument, Louisiana case, 168; 
 on presidential inability, 276 
 
 Twenty-second Joint Rule, origin 
 of, 'jy ; repeal of, 95, 107 ; 
 criticisms of, 95, 120, 121, 130 
 
 Tyler, John (Va.), opposes dis- 
 trict system, 340 
 
 Van Buren, Martin (N. Y.), 
 electoral vote for, 1837, 48, 49 ; 
 bill of 1824, to regulate elect- 
 
 oral count, '7^, 123-124; as 
 governor of N. Y., recom- 
 mends establishment of gener- 
 al-ticket system, 299; popular 
 and electoral vote for, 1836, 
 1840, 1844, 1848, 307-309; pro- 
 poses amendment to Constitu- 
 tion, 259, 328; remarks in Sen- 
 ate, 333-35; effect of Van 
 Buren vote, 1848, 319, also 398 
 
 Varnum, Joseph B. (Mass.), 40 
 
 Vermont, electoral vote of, 1796, 
 2>Zi 34; electoral vote, 1801 ; 
 vote in House, 1801, zi 
 
 Von Hoist, Dr. H., Int., 2; if the 
 presidential candidate of the 
 victorious party should die be- 
 fore the meeting of the elect- 
 oral colleges, 265 n. 
 
 Vote, Popular, of two great par- 
 ties, 307-317; remarkable close- 
 ness, 321; inferences from, 
 321, 322; never has been the 
 same for two candidates, 374 
 
 W 
 
 Wade, Benjamin F. (O.), pre- 
 sides at electoral count, 1869, 
 82-85 
 
 Washburn, Israel, Jr. (Me.), re- 
 marks in House of representa- 
 tives on electoral count, 1857, 
 53, 56 
 
 Washington, George (Va.), 
 unanimously reelected Presi- 
 dent, ZZ ; allusion to his death 
 by C. C. Pinckney, in Senate, 
 on bill of 1800, 68; reference, 
 252 ; Constitution not " free 
 from imperfections," 405 n. 
 
 Watterson, Henry (Ky.), sup- 
 ports electoral commission bill, 
 132 
 
 Watts, John W. (Oregon), as to 
 his eligibility as elector (Ore- 
 gon), 1877, 186, 190, 191, 193, 
 196, 199 
 
 Weaver, Joseph B., popular vote 
 for, 315 
 
 Webster, Daniel, Chairman, judi- 
 ciary committee of house of 
 
Index 
 
 425 
 
 representatives, 1824, 73; re- 
 ports Van Buren bill of 1824, 
 ^^•, other references, 248, 340; 
 votes against amending Con- 
 stitution by taking election of 
 president from house, 297 ; and 
 in favor of amendment estab- 
 lishing district system, 297 ; no 
 speech of Webster's on elect- 
 oral system, 297 
 Wheeler, William A,, report by, 
 to house of representatives 
 with Hoar and Frye, regard- 
 ing Louisiana's vote, 1873, 163, 
 174; other references, 267 
 White, Hugh L. (Tenn.), 332 
 Whyte, William Pinckney (a 
 Senator from Md.), opposes 
 Edmunds' resolution, 1869, 81 ; 
 on twenty-second joint rule, 
 95; on Morton bill, 98, 99; 
 favors electoral commission 
 bill, 125, 126 
 
 Wilson, Henry (Mass.), death 
 of, while vice-president, 270 
 
 Wilson, James (Senator from 
 Iowa), Congress has not the 
 power to count the electoral 
 votes, 224 
 
 Wilson, James (Pa.), favors 
 popular choice of President in 
 convention of 1787, 13, 302 
 
 Windom, William (a Senator 
 from Minn.), votes against 
 Morton bill, 92 
 
 Wirt, William (Md.), vote for, 
 in Maryland, in 1832, 374 
 
 Wisconsin, Int., 4; discussion 
 over electoral vote of, 1857, 51- 
 53 ; further remarks on, 57, 394 
 
 Withers, Robert E. (a Senator 
 from Va.), remarks on Mor- 
 ton bill, 96, 99 
 
 Wright, Silas, ineligible electors, 
 49, 245, 256; other references, 
 340 
 
X 
 
V'- i^ ::,3K5£!!S 
 
 T^STJ 
 
 HOME USE 
 
 CIRCULATION DEPARTMENT 
 
 MAIN LIBRARY 
 
 This book is due on the last date stamped below. 
 1 -month loans may be renewed by calling 642-3405. 
 6-month loans may be recharged by bringing books 
 
 to Circulation Desk. 
 Renewals and recharges may be made 4 days prior 
 
 to due date. 
 
 ALL BOOKS ARE SUBJECT TO RECALL 7 DAYS 
 
 AFTER DATE CHECKED OUT. 
 
 < i^RLIBRARY LOAN 
 
 ^D 
 
 [/ 
 
 I 
 
 UtC k;6 \i^'•{^ 
 
 UNIV. OF CALiF., BERK. 
 
 REC. CIR. JAIU015 
 
 FEB 1- ^0 DEC 131990 
 IN S T ACKS 
 
 AUtii^ I 
 
 
 REC. CIR. AUG 15*78 
 
 AUTO DISC OCl lb ' 90 
 
 LD21 — A-40m-5,'74 
 (R8191L) 
 
 General Library 
 
 University of California 
 
 Berkeley 
 
U.C. BERKELEY LIBRARIES 
 
 THE UNIVERSITY OF CALIFORNIA UBRARY