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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 rą ind particular occasions, are, on the whole, destructive of fra, 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 bas shown itself to possess that perfect equipoise between the opposing tendencies that have wrecked so many other go.'ernments, wh., makes it as well an inspiration for the future, as : venerated muument of past and present safety.
“Hæc et apud seras gentes, populosque nepotum
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.
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, Maich, 1800, and April, 1824. The latter alternative would cover double returns; th , first, of course, could not.
action of State tribunals under State laws, as State courts are generally authorized to do? It did not attempt to do so in forming the Electoral Commission : for it was obvious, as has been already stated, that the existing dispute must be decided upon the state of the law, good or bad, as it stood at the time of the election.
That Congress can and ought to provide for ascertaining what is a vote at the count is clear ; but to provide that, in so doing, the action of the State tribunals in regard to the title of Electors to their offices shall be the subject of review, is quite a different thing. In the first instance, the inquiry would be simple and short and consistent with the Constitution, — the genuineness of the documentary evidence of the appointment and action of the Electors and their personal identity, would usually exhaust the inquiry. In the other view, the extent and magnitude of the investigation would be universal. The Constitution declares that, “ each State shall appoint, in such manner as the legislature thereof may direct,” its Electors, and that “the Electors shall meet in their respective States, and vote," and transmit a list of their votes to the President of the Senate; and it also provides that these votes so transmitted shall “ be counted." It also declares that “the judicial power shall extend to all cases in law and equity arising under this Constitution.” It follows that the legislative power can be exerted upon the subject in respect of the act of the counting commanded by the Constitution only as an administrative, and not as a judicial, ceremony. It is not denied that a constitution, or a law consistent with it, may deposit the full power of judging elections in administrative officers, and that the decision of such officers upon all questions so left to them is final, and conclusive upon the judiciary.
But the pre-eminent question still remains, from whatever side we approach it, — whether the action of the State governments in the choice of Electors is, or ought to be, in any form, a subject of national revision? Who compose the State governments is confessedly a question necessarily within the function of Congress, as such, to determine, for that is a political question ; but to revise the correctness of the manner in which such governments, being ascertained, have performed the duty of choosing a President, is a matter of an entirely different character.
If the States must, under the Constitution, appoint the Elect
ors in such manner as their law-making power shall direct, then they may, and ought to, provide for determining what persons have been appointed ; for, the appointment and its manner reach to the full ascertainment of the officers to be selected. It may, perhaps, be thought, consistently with such a power, that, inasmuch as the judicial power of the United States extends to all cases arising under the Constitution, and inasmuch as the Constitution of the United States alone, and not the State Constitutions, provides for Electors, the national courts can review the regularity of the action of the State authorities upon the same principles that the State courts act upon in similar cases. In such a case, the inquiry in the courts of the United States, if it could be had at all, would be, whether the State law had been followed, just as in many cases of federal judicial jurisdiction they so act, and yet take as the best proof of the State law the judgments of the highest State courts.
If the disputes touching the constitution of the Electoral Colleges in the States could be disposed of in advance of their action, the counting of the electoral votes at the seat of government, by, or in the presence of the two Houses of Congress, would usually be little more than a formal ceremony.
That it would be safer for the peace, order, and justice of the Republic in the long run, to have such disputes settled by honest judicial means in the States in which they may occur, seems to be clear from a study of the nature of the government, and to flow from the principle of State rights before mentioned, on which the Republic is founded. That instances of wrong will occur in such a case is to be expected. Are they not likely to occur much oftener in the exercise of centralized power, and, particularly, by large bodies of men like the Senate and House of Representatives? Even in judging of the elections and qualifications of their own members, such assemblies anywhere cannot be affirmed to exhibit models of justice or jurisprudence.
Assuming, as we must, that the States are willing to do their duty in such cases, may not a practicable means of avoiding future trouble be found without any change of the Constitution ? If the elections for Electors were held on the first of September, and the Electors were to meet and vote on the first of January, each State could, and no doubt would, provide by law for the immediate decision, by its own highest court, of all contests touch