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nature, and human institutions continue, prejudice and bias in respect of subjects of public concern will exist in every intelligent mind; but the framers of government have done their perfect work when they secure the agents and judges of the State from the direct temptations arising from fear of loss or hope of gain in the performance of their duties. If they still divide in opinion in coincidence with supposed bias, the justness of their decision cannot reasonably be assailed on that account; for the assailant himself may be presumed to have at least as great bias and as much prejudice, and no possible tribunal of review can be imagined, free from the very same infirmity it is called upon to

correct.

The third and last characteristic of the act that need be mentioned, was one of the greatest importance to the justness and fairness of the law, and without which, it is obvious, no act could have passed. It was, the unified Commission being formed whose decision should stand unless overruled by the concurrent vote of both Houses, that the matters in dispute should be decided according to the law as it stood before the passage of the act. No new rule of law, either for the merits or the evidence by which the merits were to be ascertained, was to be created, whereby, perhaps, the citizen elected under the old law would be thrown out, and his adversary put in his place; but the lawful President was to be ascertained by the same law in every respect that existed on the day of the election. It will be seen by reference to the act that its language is specific to this end. The Commission was to inquire what persons and how many were the lawful electors in the States having double returns ; but upon the same rules of law and evidence, and no other, existing, and with the same powers, and no other, possessed by the Houses of Congress in such cases, before the passage of the act. As there was no act of Congress bearing upon the subject, save the single provision requiring the Executives of the States to certify lists of the Electors, and providing for a day of meeting, the Commission was at once remitted to the general powers of the Houses and to the Constitution, for the test and measure of its powers and duties.

It seems quite too obvious to need discussion, that the general powers of the Houses of Congress are those of passing laws upon the subjects enumerated in the Constitution, and that their

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parliamentary powers are of the same character. These powers have no relation to the act of counting the Presidential vote, which the Constitution commands to be done, but to providing by legislation for the performance of that act. If the pre-existing law had not provided for holding a trial and hearing proofs concerning the validity or result of the election, as courts of justice may sometimes do in a proper proceeding, neither the two Houses nor the Commission could lawfully do so, even if such a provision would be constitutional if made. It follows that the whole power of the Commission under the act to disregard the official action of the constituted authorities of a State, and to rectify errors alleged to have been committed by them, must be found, if it existed at all, in the words of the Constitution, that "the votes shall then be counted." If the Constitution had declared in terms that the President of the Senate should count the votes, it is plain that his power of inquiry and review would have been as great; but can it be maintained that the power and duty of counting the votes officially returned involves the right to pass upon the qualifications of the Electors who cast them, or other like questions? For the present purpose, it is a sufficient commentary upon the power claimed by some for the Commission, that the chief fault of the State Boards it was asked to correct was, that they -under the language of the State laws far more ample for such purposes than that of the Constitution. of the United States had done the very same thing the Commission was pressed to do, namely, had gone behind the official returns made to them, and attempted to correct errors found or claimed to exist.

The broad question how far it is competent for the government of the United States, by legislation, to provide for inquiry into the action of States in choosing Presidential Electors is reserved for another part of this article. That no such legislation existed, and that the words of the Constitution as to counting the votes did not themselves authorize such an inquiry, was the opinion of a majority of the Commission, as it is believed to have been the almost universal opinion of the members of the Senate when the subject was under discussion in the years 1873 and 1875.1

1 Senate debates, Jan., 1873, on inquiry into elections in Louisiana and Arkansas. See also debates in Senate on bill to regulate the counting of electoral votes, Feb.,

It is not the purpose of this article either to vindicate the judgment of the majority, or to condemn the opinion of the minority, of the Commission. It has been endeavored to state the exact condition, in its leading features, of the late contest, with a view to bring to the thoughtful attention of the citizens of the United States the present state of our Constitution and laws upon the exciting subject of the election of Chief Magistrate. A great danger and the law that averted it have both passed away; but there remains the imperative duty of providing in advance, so far as clear provisions of the Constitution or a statute can do, for the disposition of similar dangers and disputes in the future. Under whatever system of election of the Executive which may exist, there must be lodged somewhere the power to determine either ministerially, or politically and primâ facie, or judicially and finally, or both, what person has been duly chosen. One system of election may present less difficulties in this respect, and may, in itself, be more just and wise, than another. What is that system? The question is important, but not novel. Wherever civilization and human rights have emancipated themselves from kingcraft, the subject has been considered. Greeks, Romans, Poles, Swiss, and Dutch had already debated and experimented with it when the federal convention that framed our own system came to deal with it. In that convention the matter received the most patient and prolonged attention; and nearly every plausible mode, and some others, were suggested. One was an election by the people by Districts,1-being substantially the same mode proposed by the Committee of Privileges and Elections of the Senate, June 1, 1874. This was rejected by a vote of eight States to two, and again by nine to one.2 Another was an election by the Congress, which was at first agreed to; but, after long consideration, the existing mode was substituted for it by a vote of six States to three, on the provision for Electors, and eight to two, on giving the control of the choice to the legislatures of the States.

It may at present be taken for granted that a single Chief Magistrate is in some way to be chosen for a limited term, to exercise substantially the powers with which he is now invested.

1 Elliot's Debates, vol. v. p. 148.

2 Ib. p. 324.

Ib. p. 338. The 12th Article of the Amendments did not change the Constitution in the respect referred to.

Every man desires property, which, in a general sense, is nothing but accumulated labor; and so long as free industry and intelligence, the fountains of property, continue to preponderate in the country, neither the government of the Commune nor that of a pure Democracy will be brought into practice. This belief is not founded on any distrust of the people, but on a firm faith in their fidelity to the first principles on which good government is founded; namely, equality of rights, and the protection of life, liberty, and property. All human experience has shown that these blessings are not more safe under such governments than under that of an Absolute Monarch.

How, then, most safely for these great objects of our own government shall the Executive be chosen? Only two methods, probably, need be discussed: all others may be set aside as plainly not the best. These two are the plan reported by the Senate Committee before referred to, and the existing system. It may be taken as a political axiom, that no form of republican government that has, like ours (with one sad and anomalous exception, not pertinent to the present question), given a people a century of internal peace, happiness, and prosperity, ought to be changed without the clearest and most urgent reasons. Changes for the sake of experiment, or of following a supposed better theory, particularly in a government so delicately and happily balanced as ours, would be not only unwise, but criminal. One of the greatest and most patriotic of Americans, in writing of the experience of mankind on this subject, said: "If these lessons teach us, on one hand, to admire the improvement made by America on the ancient mode of preparing and establishing regular plans of government, they serve not less, on the other, to admonish us of the hazards and difficulties incident to such experiments, and of the great imprudence of unnecessarily multiplying them."1

The leading and important distinction between the plan proposed and the present system is, that the first puts the election into the hands of a plurality of the people voting by districts equal in number to the Representatives in Congress (the two additional votes in each State for its Senatorial representation need not be particularly referred to), while the existing Constitution places it actually and formally in the power of the 1 1 Madison, Federalist, No. 37.

respective States as political communities, each having a number of votes according to its representation in Congress, a majority of all the Electors appointed being necessary to a choice. All other differences are of incident and detail. This is a change in the structure of the government of great gravity, either for good or ill, and it compels us to look clearly at the present nature and balances of our government, and to what they would be, were the new plan adopted. While it is conceded that in respect of every power granted by the Constitution to the general government, and each of its departments, they are supreme and national, it is evidently true, that in respect of the choice of the citizen who is to wield the vast powers of the Executive Office, the structure of the government is federal, each State in its integral character exercising its own judgment in the selection, and having a weight practically in proportion to its numbers, and in the rare instance of a failure of choice by the Electors, having an absolutely equal voice in the selection. Under the proposed plan the choice of the Executive would be purely national, — as much so, excepting the small fraction of Electoral votes at large in analogy to the present system of two Electors for each State absolutely, as if the States were entirely obliterated. Geographical separations of territory might be made in the same way if there were no States.1 What are the mischiefs 1 The proposed Amendment to the Constitution is the following, as reported by the Senate Committee. Rep. 395, Forty-third Congress, 1st Session.

"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 President 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 Presidential 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.

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