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that have arisen, or that are likely to arise under the present system? Every thing that can have a semblance of error has been pointed out in the report of the Senate Committee. The first is that the present practice departs from the original theory, which is said to have been, that the Electors were to be free to vote uninfluenced by popular passion, tumult, &c., while they are now in fact absolutely pledged in advance to particular candidates, the choice of particular parties of the people. If this be so, the people do now, indirectly and by States, choose the President, and the desire of the Committee for a more perfectly democratic election is, to a great degree, satisfied without the adoption of new methods. But is the theory of the Constitution correctly stated in this respect? Was it not, rather, that the Electors should have the same freedom and independence that belong to members of State legislatures who may be elected in view of a Senatorial election, and whose characters, and opinions on the subject are known to their constituents in advance; but who, nevertheless, have the legal and moral liberty of adapting their action to events unforeseen at the time of their election, such as the death or insanity of the candidate, &c. No instance is known in which an Elector has betrayed the moral trust thus reposed in him. Under the present system, therefore, we get the will of a majority of the people of each State.

The next objection of the Committee against the present Constitution is that the system is dangerous, because "contingencies may arise which cannot be foreseen, which may lead to civil war and disaster." It is not possible to weigh, and provide against, dangers that cannot be defined; but the difficulties in ascertaining the result of an election under either system will be considered separately. All the residue of "danger," &c., referred to, is found in the chief and controlling point of the Committee, that under the present Constitution the election is "by the States and not by the people," and that a minority candidate may thus be elected. If the latter fact be a defect in the present system (which it cannot be if the fundamental principle of it is

"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 shall be divided into districts by the legislatures thereof, but the Congress may at any time by law make or alter the same."

correct), the new plan is no better, but, rather worse; for the same thing might happen in an election by districts, even if an absolute majority were required in each one of them, as it is not. Vermont, with three districts, might give twenty-five thousand popular majority for one candidate, while New York with thirtythree districts might give only ten thousand popular majority for the opposing candidate; and so of all the other States. But the new plan proposes a plurality vote (in that scheme no other is practicable), and in that case the election of a minority candidate is not merely a casual incident, as under the present system, but is a rule applied with a double force: for it is provided, first, that a plurality in each district shall fix the vote of the district; and, second, that a plurality of the votes of districts shall elect the President.

The real and only question of great intrinsic importance is between the fundamental nature of the Constitution as it is, under which the choice of President is made by the States as such, with weight according to their numbers, and that of the plan of the Committee, under which the choice is to be made by the whole people of the Union as a body, divided into districts for convenience only. Under the one the national Executive is chosen according to the voice of the several States as independent political communities, equal in right, and having a number of votes according to their population. This is the same equality that the States have in the enactment of laws; save that in the latter instance the Senate and House act separately, and are thus a check upon each other. Under the plan of the Committee the election is the act of the people in their individual 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.

With the late amendments to the Constitution securing liberty, the inherent rights of citizenship, and impartial suffrage, as of national right, has not the Constitution gone just far enough in the direction of consolidation and centralization? It has already, by the greatest and most terrible tests known to mankind, shown itself equal to preventing dismemberment, or resistance by States to the national authority; but it has not yet been proved that it will be equal to the preservation of the State

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governments, and the liberties and rights of the people under them, against usurpations that may arise under color of national authority. The steps to the ruin of single Republics have generally been found traced in the pathway of unrestricted and unguarded liberty in the choice of the Chief of the State by the whole people together, in the false confidence and enthusiasm that always affects men just in proportion to the massiveness of their numbers, and in the consequent general accretion of Executive influence and power; until, at last, either by the bold and unscrupulous usurpation of a Cæsar, aided by that sort of popular excitement and tumult that have lately been witnessed in certain parts of this country in connection with the labor question, or the Plebiscitum of a Napoleon, the Republic ceases to exist and a Despotism succeeds.

The autonomy of the States, each acting by itself in the choice of the Chief Magistrate is, perhaps, the best possible check to these dangerous tendencies of unified Republics that human skill can devise; and this is particularly so with our own States, covering the breadth of the continent, some great, some small, each having policies and interests of its own under its own control, and each having a common interest in the government of the Union for the welfare and defence of all.

The necessary and logical consequence of electing the President by the people, as distinguished from an election by the States, is to put the whole administration of elections, from the registration of voters and the appointment of officers of election, to the repression by armed force of any tumult, real or pretended, into the hands of the general government, and so, really, into the hands of the Executive himself, while all this power now rests solely with the States. This consequence is implicitly accepted by the proposed plan of the Senate Committee, which provides for it in distinct terms. The effect of such powers upon civil liberty and fair elections has been, to a certain degree, hitherto seen in some of the States, under circumstances exceptionally in favor of their exercise, and is at the present moment painfully visible to all the world in France. The lessons of experience, as well as the philosophy of government, seem to demonstrate that such methods, however valuable they may be for truth and justice on ra nd particular occasions, are, on the whole, destructive of fre, institutions. Under the present system, errors and

wrongs in favor of one candidate in one State are frequently counterbalanced by similar errors and wrongs in another State in favor of his opponent; and in the same State, where, as in most, the election officers are appointed by municipalities, the wrongs in one county may be neutralized by opposing ones in another. But with national appointments and control there will be no such tempering influences, as the administrative partiality will everywhere tend in one direction. How long, in such a case, the equilibrium of the powers of the government could be maintained would be a question for the gravest solicitude.

The danger of disputes in administering systems of elections is justly an element to be weighed in their choice; but can it not be truly said that the present system is as little liable to them as any that can be devised? At present, the choice of Electors is made by the States in the manner directed by their Legislatures, and, practically, the contests over the final counting would be limited by the number of States. A change to districts voting direct would give a chance for about three hundred contested cases, as against thirty-eight under the existing Constitution. The history of the House of Representatives shows not only that a material fraction of its seats are always contested, but that fraud and other wrongs appear in districts quite as frequently and successfully as in a general election upon one ticket throughout the State. Some of the leading considerations that should bear upon the principles and means adopted for the election of the President of the Republic have now been stated. The principles upon which the Constitution was erected, and the balances and counterbalances framed into it for the protection of the whole people and of the separate States, have borne the poison of extreme party politics and the shock of civil warfare, and are now, near the end of a century, as well grounded and as beneficent as at the beginning. Any scheme that shall take their places, or change their relations, ought to be not merely defensible in theory, but of eminent necessity in fact. The Constitution, in its structural features, can be said to be as nearly perfect as the infirmities of mankind will allow; and, working throug each of the great departments of the government, it has shown itself to possess that perfect equipoise between the opposing tendencies that have wrecked so many other governments, wh. makes it as well an inspiration for the future, as venerated mo..ument of past and present safety.

"Hæc et apud seras gentes, populosque nepotum
Spesque, metusque simul, perituraque vota movebunt.
Attonitique omnes, veluti venientia fata,

Non transmissa legent, et adhuc tibi, Magne, favebunt."

It remains to consider the methods of deciding disputes that will, in the nature of things under any system, arise from time to time in ascertaining and declaring the result of an election. The subject, as related to the mere administrative duty of counting the votes of the Electors in the presence of the two Houses, has already been alluded to, and the conclusion reached, that it is the right and duty of Congress, as the legislative power, to provide by law, for deciding what are Electoral votes, when they are opened by the President of the Senate, and how and by whom they shall be counted and declared. This has been several times attempted with a pretty general concurrence of opinion that the power and duty lay with Congress, either as a power to regulate the performance of the duty of counting, supposed by some to be lodged with the two Houses, or as a plenary power of general legislation. The chief theoretical difficulty in case the Houses act is the fact of their being two, and so liable to be equally divided in opinion. In that case, the point in dispute must be left undecided, unless the law shall have provided for the consequences of that event. Until since the close of the Rebellion, the instance of double returns from a State had never arisen, although questions as to the political character of States had. The measures proposed in 1800 and 1824 for regulating the count of Electoral votes, made no direct provision for that contingency. The measures failed, apparently, from the difficulty of deciding whether a disputed vote from a State should be counted unless both Houses agreed to reject it, or whether it should stand rejected unless both Houses agreed to count it.1

But, under whatever law, and with the most ample provisions for inquiry, the question still appears, How far can Congress, under the Constitution, authorize any federal tribunal, be it the Houses of Congress, a board, or a court, to go in determining the validity of an Electoral vote? Of course, none but valid votes ought to be counted; but can the Federal Government make any inquiry by its own functionaries into the correctness of the 1 See Annals of Congress, Ma.ch, 1800, and April, 1824. The latter alternative would cover double returns; th first, of course, could not.

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