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throw the Articles of Confederation overboard, and construct a new
national government. As was said above, our Federal Congress is not
descended from the Continental Congress. Its parentage is to be sought
in the state legislatures. Our federal government was constructed
after the general model of the state governments, with some points
copied from British usages, and some points that were original and
new.
QUESTIONS ON THE TEXT.
1. What are the reasons for reserving the Constitution of the
United States for the concluding chapter?
2. Circumstances that favoured union of the colonies:--
a. The origin of their inhabitants.
b. All the details of their civil government.
c. The ease with which they understood one another.
d. Their common dangers, two in particular.
3. Earlier unions among the colonies:--
a. The New England Confederacy,--its time, purpose, and
duration.
b. The French danger, and plans to meet it.
c. The Albany Congress,--its nature and immediate purpose.
d. The Stamp Act Congress.
4. Committees of correspondence:--
a. The circular letter of Massachusetts in 1768.
b. Town committees of correspondence in Massachusetts in
1772.
c. Colonial committees of correspondence in 1773.
d. The habit established through these committees.
5. The Continental Congress:--
a. The immediate causes that led to it.
b. How it might have been temporary.
c. How it became permanent.
d. Its date, place of meeting, and duration.
e. Why "continental" as distinguished from "provincial?"
f. The nature and extent of its authority.
g. The states represented in it never fully sovereign.
6. Give an account of the "Articles of Confederation."
7. Distinguish between the Continental Congress and the
Federal.
8. The powers of the Continental Congress:--
a. Its homelessness and wandering.
b. Its delegates and their voting power.
c. Its presiding officer.
d. Its management of executive matters.
e. The finance committee and its problems.
f. The raising of money.
g. The compelling of obedience.
9. The Continental Congress not a sovereign body:--
a. The nature of real government.
b. Some functions of sovereignty exercised by the Congress.
c. The situation illogical.
10. Explain the "implied war powers" of the Congress.
11. When was the Congress at the height of its reputation, and
why?
12. Explain the decline in its reputation from 1778 to 1783.
13. The alarming weakness of the union after 1783:--
a. The effect of peace upon the union.
b. Local prejudices.
c. State antagonisms.
d. The gloomy outlook in 1786.
14. The Federal Convention in 1787:--
a. The reluctance to make the change that was felt to be needed.
b. Some facts about the Convention.
c. The character of its delegates.
d. The fundamental weakness of the Continental Congress.
e. The fundamental power of a strong government.
f. The objection to granting the power of taxation to the Continental
Congress.
g. The sort of assembly demanded for exercising the taxing power.
h. The model on which the federal government was built.
Section 2. _The Federal Congress._
[Sidenote: The House of Representatives.]
The federal House of Representatives is descended, through the state
houses of representatives, from the colonial assemblies. It is an
assembly representing the whole population of the country as if it were
all in one great state. It is composed of members chosen every other
year by the people of the states. Persons in any state who are qualified
to vote for state representatives are qualified to vote for federal
representatives. This arrangement left the power of regulating the
suffrage in the hands of the several states, where it still remains,
save for the restriction imposed in 1870 for the protection of the
southern freedmen. A candidate for election to the House of
Representatives must be twenty-five years old, must have been seven
years a citizen of the United States, and must be an inhabitant of the
state in which he is chosen.
[Sidenote: The three fifths compromise.]
As the Federal Congress is a taxing body, representatives and direct
taxes are apportioned among the several states according to the same
rule, that is, according to population. At this point a difficulty
arose in the Convention as to whether slaves should be counted as
population. If they were to be counted, the relative weight of the
slave states in all matters of national legislation would be much
increased. The northern states thought, with reason, that it would
be unduly increased. The difficulty was adjusted by a compromise
according to which five slaves were to be reckoned as three persons.
Since the abolition of slavery this provision has become obsolete, but
until 1860 it was a very important factor in American history.[7]
In the federal House of Representatives the great states of course
have much more weight than the small states. In 1790 the four largest
states had 32 representatives, while the other nine had only 33. The
largest state, Virginia, had 10 representatives to 1 from Delaware.
These disparities have increased. In 1880, out of thirty-eight states
the nine largest had a majority of the house, and the largest state,
New York, had 34 representatives to 1 from Delaware.
[Footnote 7: See my _Critical Period_, pp. 257-262.]
[Sidenote: The Connecticut compromise]
This feature of the House of Representatives caused
the smaller states in the Convention to oppose the whole scheme of
constructing a new government. They were determined that great and
small states should have equal weight in Congress. Their steadfast
opposition threatened to ruin everything, when fortunately a method
of compromise was discovered. It was intended that the national
legislature, in imitation of the state legislatures, should have an
upper house or senate; and at first the advocates of a strong national
government proposed that the senate also should represent population,
thus differing from the lower house only in the way in which we have
seen that it generally differed in the several states. But it happened
that in the state of Connecticut the custom was peculiar. There it
had always been the custom to elect the governor and upper house by a
majority vote of the whole people, while for each township there was
an equality of representation In the lower house. The Connecticut
delegates in the Convention, therefore, being familiar with a
legislature in which the two houses were composed on different
principles, suggested a compromise. Let the House of Representatives,
they said, represent the people, and let the Senate represent the
states; let all the states, great and small, be represented equally
in the federal Senate. Such was the famous "Connecticut Compromise."
Without it the Convention would probably have broken up without
accomplishing anything. When it was adopted, half the work of making
the new government was done, for the small states, having had their
fears thus allayed by the assurance that they were to be equally
represented in the Senate, no longer opposed the work but cooperated
in it most zealously.
[Sidenote: The Senate]
Thus it came to pass that the upper house of our national legislature
is composed of two senators from each state. As they represent the
state, they are chosen by its legislature and not by the people; but
when they have taken their seats in the senate they do not vote
by states, like the delegates in the Continental Congress. On the
contrary each senator has one vote, and the two senators from the same
state may, and often do, vote on opposite sides.
In accordance with the notion that an upper house should be somewhat
less democratic than a lower house, the term of office for senators
was made longer than for representatives. The tendency is to make the
Senate respond more slowly to changes in popular sentiment, and
this is often an advantage. Popular opinion is often very wrong at
particular moments, but with time it is apt to correct its mistakes.
We are usually in more danger of suffering from hasty legislation than
from tardy legislation. Senators are chosen for a term of six years,
and one third of the number of terms expire every second year, so
that, while the whole Senate may be renewed by the lapse of six years,
there is never a "new Senate." The Senate has thus a continuous
existence and a permanent organization; whereas each House of
Representatives expires at the end of its two years' term, and is
succeeded by a "new House," which requires to be organized by electing
its officers, etc., before proceeding to business. A candidate for the
senatorship must have reached the age of thirty, must have been nine
years a citizen of the United States, and must be an inhabitant of the
state which he represents.
The constitution leaves the times, places, and manner of holding
elections for senators and representatives to be prescribed in each
state by its own legislature; but it gives to Congress the power to
alter such regulations, except as to the place of choosing senators.
Here we see a vestige of the original theory according to which the
Senate was to be peculiarly the home of state rights.
[Sidenote: Electoral districts.]
[Sidenote: "Gerrymandering."]
In the composition of the House of Representatives the state
legislatures play a very important part. For the purposes of the
election a state is divided into districts corresponding to the number
of representatives the state is entitled to send to Congress. These
electoral districts are marked out by the legislature, and the division
is apt to be made by the preponderating party with an unfairness that is
at once shameful and ridiculous. The aim, of course, is so to lay out
the districts as to secure in the greatest possible number of them a
majority for the party which conducts the operation. This is done
sometimes by throwing the greatest possible number of hostile voters
into a district which is anyhow certain to be hostile, sometimes by
adding to a district where parties are equally divided some place in
which the majority of friendly voters is sufficient to turn the scale.
There is a district in Mississippi (the so-called Shoe String district)
250 miles long by 30 broad, and another in Pennsylvania resembling a
dumb-bell.... In Missouri a district has been contrived longer, if
measured along its windings, than the state itself, into which as large
a number as possible of the negro voters have been thrown.[8] This
trick is called "gerrymandering," from Elbridge Gerry, of Massachusetts,
who was vice-president of the United States from 1813 to 1817. It seems
to have been first devised in 1788 by the enemies of the Federal
Constitution in Virginia, in order to prevent the election of James
Madison to the first Congress, and fortunately it was unsuccessful.[9]
It was introduced some years afterward into Massachusetts. In 1812,
while Gerry was governor of that state, the Republican legislature
redistributed the districts in such wise that the shapes of the towns
forming a single district in Essex county gave to the district a
somewhat dragon-like contour. This was indicated upon a map of
Massachusetts which Benjamin Russell, an ardent Federalist and editor of
the "Centinel," hung up over the desk in his office. The celebrated
painter, Gilbert Stuart, coming into the office one day and observing
the uncouth figure, added with his pencil a head, wings, and claws, and
exclaimed, "That will do for a salamander!" "Better say a Gerrymander!"
growled the editor; and the outlandish, name, thus duly coined, soon
came into general currency.
[Illustration]
[Footnote 8: Tyler's _Patrick Henry_, p. 313.]
[Footnote 9: _Winsor's Memorial History of Boston_, vol. iii. p. 212;
see also Bryce, _loc. cit_. The word is sometimes incorrectly pronounced
"jerrymander." Mr. Winsor observes that the back line of the creature's
body forms a profile caricature of Gerry's face, with the nose at
Middleton.]
[Sidenote: The election their at large.]
When after an increase in its number of representatives the state has
failed to redistribute its districts, the additional member or members
are voted for upon a general state ticket, and are called
"representatives at large." In Maine, where the census of 1880 had
_reduced_ the number of representatives and there was some delay in the
redistribution, Congress allowed the State in 1882 to elect all its
representatives upon a general ticket. The advantage of the district
system is that the candidates are likely to be better known by
neighbours, but the election at large is perhaps more likely to secure
able men.[10] It is the American custom to nominate only residents of the
district as candidates for the House of Representatives. A citizen of
Albany, for example, would not be nominated for the district in which
Buffalo is situated. In the British practice, on the other hand, if an
eminent man cannot get a nomination in his own county or borough, there
is nothing to prevent his standing for any other county or borough. This
system seems more favourable to the independence of the legislator than
our system. Some of its advantages are obtained by the election at
large.
[Footnote 10: The difference is similar to the difference between the
French _scrutin d'arrondissement_ and _scrutin de liste_.]
[Sidenote: Time of assembling.]
Congress must assemble at least once in every year, and the constitution
appoints the first Monday in December for the time of meeting; but
Congress can, if worth while, enact a law changing the time. The
established custom is to hold the election for representatives upon the
same day as the election for president, the Tuesday after the first
Monday in November. As the period of the new administration does not
begin until the fourth day of the following March, the new House of
Representatives does not assemble until the December following that
date, unless the new president should at some earlier moment summon an
extra session of Congress. It thus happens that ordinarily the
representatives of the nation do not meet for more than a year after
their election; and as their business is at least to give legislative
expression to the popular opinion which elected them, the delay is in
this instance regarded by many persons as inconvenient and injudicious.
Each house is judge of the elections, qualifications, and returns of its
own members; determines its own rules of procedure, and may punish its
members for disorderly behaviour, or by a two thirds vote expel a
member. Absent members may be compelled under penalties to attend. Each
house is required to keep a journal of its proceedings and at proper
intervals to publish it, except such parts as for reasons of public
policy had better be kept secret. At the request of one fifth of the
members present, the yeas and nays must be entered on the journal.
During the session of Congress neither house may, without consent of the
other, adjourn for more than three days, or to any other place than that
in which Congress is sitting.
[Sidenote: Privileges of members.]
Senators and representatives receive a salary fixed by law, and as they
are federal functionaries they are paid from the federal treasury. In
all cases, except treason or felony or breach of the peace, they are
privileged from arrest during their attendance in Congress, as also
while on their way to it and while returning home; "and for any speech
or debate in either house they shall not be questioned in any other
place." These provisions are reminiscences of the evil days when the
king strove to interfere, by fair means or foul, with free speech in
parliament; and they are important enough to be incorporated in the
supreme law of the land. No person can at the same time hold any civil
office under the United States government and be a member of either
house of Congress.
[Sidenote: The Speaker.]
The vice-president is the presiding officer of the Senate, with power
to vote only in case of a tie. The House of Representatives elects its
presiding officer, who is called the Speaker. In the early history of
the House of Commons, its presiding officer was naturally enough its
_spokesman_. He could speak for it in addressing the crown. Henry
of Keighley thus addressed the crown in 1301, and there were other
instances during that century, until in 1376 the title of Speaker was
definitely given to Sir Thomas Hungerford, and from that date the list
is unbroken. The title was given to the presiding officers of the
American colonial assemblies, and thence it passed on to the state and
federal legislatures. The Speaker presides over the debates, puts the
question, and decides points of order. He also appoints the committees
of the House of Representatives, and as the initiatory work in our
legislation is now so largely done by the committees, this makes him
the most powerful officer of the government except the President.
[Sidenote: Impeachment in England]
The provisions for impeachment of public officers are copied from the
custom in England. Since the fourteenth century the House of Commons
has occasionally exercised the power of impeaching the king's
ministers and other high public officers, and although the power was
not used during the sixteenth century it was afterward revived and
conclusively established. In 1701 it was enacted that the royal pardon
could not be pleaded against an impeachment, and this act finally secured
the responsibility of the king's ministers to Parliament. An impeachment
is a kind of accusation or indictment brought against a public officer
by the House of Commons. The court in which the case is tried is the House
of Lords, and the ordinary rules of judicial procedure are followed.
The regular president of the House of Lords is the Lord Chancellor, who
is the highest judicial officer in the kingdom. A simple majority vote
secures conviction, and then it is left for the House of Commons to
say whether judgment shall be pronounced or not.
[Sidenote: Impeachment in the United States.]
In the United States the House of Representatives has the sole
power of impeachment, and the Senate has the sole power to try all
impeachments. When the president of the United States is tried,
the chief-justice must preside. As a precaution against the use of
impeachment for party purposes, a two thirds vote is required for
conviction; and this precaution proved effectual (fortunately, as most
persons now admit) in the famous case of President Johnson in 1868. In
case of conviction the judgment cannot extend further than "to removal
from office, and disqualification to hold and enjoy any office of
honour, trust, or profit under the United States;" but the person
convicted is liable afterward to be tried and punished by the ordinary
process of law.
[Sidenote: Veto power of the president]
The provisions of the Constitution for legislation are admirably
simple. All bills for raising revenue must originate in the lower
house, but the upper house may propose or concur with amendments, as
on other bills. This provision was inherited from Parliament, through
the colonial legislatures. After a bill has passed both houses it must
be sent to the president for approval. If he approves it, he signs
it; if not, he returns it to the house in which it originated, with
a written statement of his objections, and this statement must be
entered in full upon the journal of the house. The bill is then
reconsidered, and if it obtains a two thirds vote, it is sent,
together with the objections, to the other house. If it there
likewise obtains a two thirds vote, it becomes a law, in spite of the
objections. Otherwise it fails. If the president keeps a bill longer
than ten days (Sundays excepted) without signing it, it becomes a law
without his signature; unless Congress adjourns before the expiration
of the ten days, in which case it fails to become a law, just as if
it had been vetoed. This method of vetoing a bill just before the
expiration of a Congress, by keeping it in one's pocket, so to speak,
was dubbed a "pocket veto," and was first employed by President
Jackson in 1829. The president's veto power is a qualified form of
that which formerly belonged to the English sovereign but has now, as
already observed, become practically obsolete. As a means of guarding
the country against unwise legislation, it has proved to be one of the
most valuable features of our Federal Constitution. In bad hands it
cannot do much harm, it can only delay for a short time a needed law.
But when properly used it can save the country from, laws that if once
enacted would sow seeds of disaster very hard to eradicate; and it has
repeatedly done so. A single man will often act intelligently where
a group of men act foolishly, and, as already observed, he is apt to
have a keener sense of responsibility.
QUESTIONS ON THE TEXT.
What is to be said with regard to the following topics?
1. The House of Representatives:--
a. Its relation to the people.
b. The term of service.
c. Qualifications of those who may vote for representatives.
d. Qualifications for membership.
e. The three fifths compromise.
2. The Connecticut Compromise.
a. The powers of the different states in the House.
b. Opposition to the scheme of a new government.
c. What the advocates of a strong government wanted the Senate to
represent.
d. A peculiar Connecticut system.
e. The suggestion of the Connecticut delegates.
f. The effect of the compromise.
3. The Senate:--
a. The number of senators.
b. The method of electing senators.
c. The voting of senators.
d. The term of service.
e. The maintenance of a continuous existence.
f. A comparison with the House in respect to nearness to the people.
g. Qualifications for membership.
4. Elections for senators and representatives:--
a. Times, places, and manner of holding elections.
b. The power of Congress over state regulations.
c. Electoral districts.
d. The temptation to unfairness in laying out electoral districts.
e. Illustrations of unfair divisions.
f. "Gerrymandering."
g. Representatives at large.
h. The advantage of the district system.
i. The British system and its advantage.
5. The assembling of Congress:--
a. The time of assembling.
b. The interval between a member's election and the beginning of his
service.
c. The disadvantage of this long interval.
6. What is the duty of each house in respect (1) to its membership,
(2) its rules, (3) its records, and (4) its adjournment.
7. Give an account (1) of the pay of a congressman, (2) of his freedom
from arrest, (3) of his responsibility for words spoken in debate, and
(4) of his right to hold other office.
8. Tell (1) who preside in Congress, (2) how the name _speaker_
originated, (3) what the speaker's duties are, and (4) what his power
in the government is.
9. Impeachment of public officers:--
a. Old English usage.
b. The conduct of an impeachment trial in England.
c. The conduct of an impeachment trial in the United States.
d. The penalty in case of conviction.
10. The provisions of the Constitution for legislation:--
a. Bills for raising revenue.
b. How a bill becomes a law.
c. The president's veto power.
d. Passage of a bill over the president's veto.
e. The "pocket veto."
f. The veto power in England.
g. The value of the veto power.
Section 3. _The Federal Executive._
[Sidenote: The title of "President."]
In signing or vetoing bills passed by Congress the president shares in
legislation, and is virtually a third house. In his other capacities
he is the chief executive officer of the Federal Union; and inasmuch
as he appoints the other great executive officers, he is really the
head of the executive department, not--like the governor of a state--a
mere member of it. His title of "President" is probably an inheritance
from the presidents of the Continental Congress. In Franklin's plan
of union, in 1754, the head of the executive department was called
"Governor General," but that title had an unpleasant sound to American
ears. Our great-grandfathers liked "president" better, somewhat as the
Romans, in the eighth century of their city, preferred "imperator" to
"rex." Then, as it served to distinguish widely between the head of
the Union and the heads of the states, it soon fell into disuse in the
state governments, and thus "president" has come to be a much grander
title than "governor," just as "emperor" has come to be a grander
title than "king." [11]
[Footnote 11: See above p. 163.]
[Sidenote: The electoral college.]
There was no question which perplexed the Federal Convention more than
the question as to the best method of electing the president. There
was a general distrust of popular election for an office so exalted.
At one time the Convention decided to have the president elected by
Congress, but there was a grave objection to this; it would be likely
to destroy his independence, and make him the tool of Congress.
Finally the device of an electoral college was adopted. Each state
is entitled to a number of electors equal to the number of its
representatives in Congress, _plus_ two, the number of its
senators. Thus to-day Delaware, with 1 representative, has 3 electors;
Missouri, with 14 representatives, has 16 electors; New York, with
34 representatives, has 36 electors. No federal senator or
representative, or any person holding civil office under the United
States, can serve as an elector. Each state may appoint or choose its
electors in such manner as it sees fit; at first they were more often
than otherwise chosen by the legislatures, now they are always elected
by the people. The day of election must be the same in all the states.
By an act of Congress passed in 1792 it is required to be within 34 days
preceding the first Wednesday in December. A subsequent act in 1845
appointed the Tuesday following the first Monday in November as election
day.
By the act of 1792 the electors chosen in each state are required to
assemble on the first Wednesday in December at some place in the state
which is designated by the legislature. Before this date the governor of
the state must cause a certified list of the names of the electors to be
made out in triplicate and delivered to the electors. Having met
together they vote for president and vice-president, make out a sealed
certificate of their vote in triplicate, and attach to each copy a copy
of the certified list of their names. One copy must be delivered by a
messenger to the president of the Senate at the federal capital before
the first Wednesday in January; the second is sent to the same officer
through the mail; the third is to be deposited with the federal judge of
the district in which the electors meet. If by the first Wednesday in
January the certificate has not been received at the federal capital,
the secretary of state is to send a messenger to the district judge and
obtain the copy deposited with him. The interval of a month was allowed
to get the returns in, for those were not the days of railroad and
telegraph. The messengers were allowed twenty-five cents a mile, and
were subject to a fine of a thousand dollars for neglect of duty. On the
second Wednesday in February, Congress is required to be in session, and
the votes received are counted and the result declared.[12]
[Footnote 12: See note on p. 278.]
[Sidenote: The twelfth amendment (1804).]
At first the electoral votes did not state whether the candidates named
in them were candidates for the presidency or for the vice-presidency.
Each elector simply wrote down two names, only one of which could be the
name of a citizen of his own state. In the official count the candidate
who had the largest number of votes, provided they were a majority of
the whole number, was declared president, and the candidate who had the
next to the largest number was declared vice-president. The natural
result of this was seen in the first contested election in 1796, which
made Adams president, and his antagonist vice-president. In the next
election in 1800 it gave to Jefferson and his colleague Burr exactly the
same number of votes. In such a case the House of Representatives must
elect, and such intrigues followed for the purpose of defeating
Jefferson that the country was brought to the verge of civil war. It
thus became necessary to change the method. By the twelfth amendment to
the constitution, declared in force in 1804, the present method was
adopted. The electors make separate ballots for president and for
vice-president. In the official count the votes for president are first
inspected. If no candidate has a majority, then the House of
Representatives must immediately choose the president from the three
names highest on the list. In this choice the house votes by states,
each state having one vote; a quorum for this purpose must consist of at
least one member from two thirds of the states, and a majority of all
the states is necessary for a choice. Then if no candidate for the
vice-presidency has a majority, the Senate makes its choice from the two
names highest on the list; a quorum for the purpose consists of two
thirds of the whole number of senators, and a majority of the whole
number is necessary to a choice. Since this amendment was made there has
been one instance of an election of the president by the House of
Representatives,--that of John Quincy Adams in 1825; and there has been
one instance of an election of the vice-president by the Senate,--that
of Richard Mentor Johnson in 1837.
[Sidenote: The electoral commission (1877).]
One serious difficulty was not yet foreseen and provided for--that of
deciding between two conflicting returns sent in by two hostile sets of
electors in the same state, each list being certified by one of two
rival governors claiming authority in the same state. Such a case
occurred in 1877, when Florida, Louisiana, and South Carolina were the
scene of struggles between rival governments. Ballots for Tilden and
ballots for Hayes were sent in at the same time from these states, and
in the absence of any recognized means of determining which ballots to
count, the two parties in Congress submitted the result to arbitration.
An "electoral commission" was created for the occasion, composed of five
senators, five representatives, and five judges of the supreme court;
and this body decided what votes were to be counted. It was a clumsy
expedient, but infinitely preferable to civil war. The question of
conflicting returns has at length been set at rest by the act of 1887,
which provides that no electoral votes can be rejected in counting
except by the concurrent action of the two houses of Congress.
[Sidenote: Presidential succession.]
The devolution of the presidential office in case of the president's
death has also been made the subject of legislative change and
amendment. The office of vice-president was created chiefly for the
purpose of meeting such an emergency. Upon the accession of the
vice-president to the presidency, the Senate would proceed to elect its
own president _pro tempore_. An act of 1791 provided that in case of the
death, resignation or disability of both president and vice-president,
the succession should devolve first upon the president _pro tempore_ of
the Senate and then upon the speaker of the House of Representatives,
until the disability should be removed or a new election be held. But
supposing a newly elected president to die and be succeeded by the
vice-president before the assembling of the newly elected Congress; then
there would be no president _pro tempore_ of the Senate and no speaker
of the House of Representatives, and thus the death of one person might
cause the presidency to lapse. Moreover the presiding officers of the
two houses of Congress might be members of the party defeated in the
last presidential election; indeed, this is often the case. Sound policy
and fair dealing require that a victorious party shall not be turned out
because of the death of the president and vice-president. Accordingly an
act of 1886 provided that in such an event the succession should devolve
upon the members of the cabinet in the following order: secretary of
state, secretary of the treasury, secretary of war, attorney-general,
postmaster-general, secretary of the navy, secretary of the interior.
This would seem to be ample provision against a lapse.
[Sidenote: Original purpose of the electoral college not fulfilled.]
To return to the electoral college: it was devised as a safeguard
against popular excitement. It was supposed that the electors in their
December meeting would calmly discuss the merits of the ablest men in
the country and make an intelligent selection for the presidency. The
electors were to use their own judgment, and it was not necessary
that all the electors chosen in one state should vote for the same
candidate. The people on election day were not supposed to be voting
for a president but for presidential electors. This theory was never
realized. The two elections of Washington, in 1788 and 1792, were
unanimous. In the second contested election, that of 1800, the
electors simply registered the result of the popular vote, and it has
been so ever since. Immediately after the popular election, a whole
month before the meeting of the electoral college, we know who is to
be the next president. There is no law to prevent an elector from
voting for a different pair of candidates from those at the head of
the party ticket, but the custom has become as binding as a statute.
The elector is chosen to vote for specified candidates, and he must do
so.
[Sidenote: Electors formerly chosen in many states by districts; now
usually on a general ticket.]
On the other hand, it was not until long after 1800 that all the
electoral votes of the same state were necessarily given to the same
pair of candidates. It was customary in many states to choose the
electors by districts. A state entitled to ten electors would choose
eight of them in its eight congressional districts, and there were
various ways of choosing the other two. In some of the districts one
party would have a majority, in others the other, and so the electoral
vote of the state would be divided between two pairs of candidates.
After 1830 it became customary to choose the electors upon a general
ticket, and thus the electoral vote became solid in each state.[13]
[Footnote 13: In 1860 the vote of New Jersey was divided between Lincoln
and Douglas, but that was because the names of three of
the seven Douglas electors were upon two different tickets, and
thus got a majority of votes while the other four fell short. In
1892 the state of Michigan chose its electors by districts.]
[Sidenote: Minority presidents.]
[Sidenote: Advantages of the electoral system.]
This system, of course, increases the chances of electing presidents who
have received a minority of the popular vote. A candidate may carry one
state by an immense majority and thus gain 6 or 8 electoral votes; he
may come within a few hundred of carrying another state and thus lose 36
electoral votes. Or a small third party may divert some thousands of
votes from the principal candidate without affecting the electoral vote
of the state. Since Washington's second term we have had twenty-three
contested elections,[14] and in nine of these the elected president has
failed to receive a majority of the popular vote; Adams in 1824 (elected
by the House of Representatives), Polk in 1844, Taylor in 1848, Buchanan
in 1856, Lincoln in 1860, Hayes in 1876, Garfield in 1880, Cleveland in
1884, Harrison in 1888. This has suggested more or less vague
speculation as to the advisableness of changing the method of electing
the president. It has been suggested that it would be well to abolish
the electoral college, and resort to a direct popular vote, without
reference to state lines. Such a method would be open to one serious
objection. In a closely contested election on the present method the
result may remain doubtful for three or four days, while a narrow
majority of a few hundred votes in some great state is being ascertained
by careful counting. It was so in 1884. This period of doubt is sure to
be a period of intense and dangerous excitement. In an election without
reference to states, the result would more often be doubtful, and it
would be sometimes necessary to count every vote in every little
out-of-the-way corner of the country before the question could be
settled. The occasions for dispute would be multiplied a hundred fold,
with most demoralizing effect. Our present method is doubtless clumsy,
but the solidity of the electoral colleges is a safeguard, and as all
parties understand the system it is in the long run as fair for one as
for another.
[Footnote 14: All have been contested, except Monroe's re-election in
1820, when there was no opposing candidate.]
[Sidenote: Nomination of candidates by congressional caucus
(1800-24).]
The Constitution says nothing about the method of nominating candidates
for the presidency, neither has it been made the subject of legislation.
It has been determined by convenience. It was not necessary to nominate
Washington, and the candidacies of Adams and Jefferson were also matters
of general understanding. In 1800 the Republican and Federalist members
of Congress respectively held secret meetings or caucuses, chiefly for
the purpose of agreeing upon candidates for the vice-presidency and
making some plans for the canvass. It became customary to nominate
candidates in such congressional caucuses, but there was much hostile
comment upon the system as undemocratic. Sometimes the "favourite son"
of a state was nominated by the legislature, but as the means of travel
improved, the nominating convention came to be preferred. In 1824 there
were four candidates for the presidency,--Adams, Jackson, Clay, and
Crawford. Adams was nominated by the legislatures of most of the New
England states; Clay by the legislature of Kentucky, followed by the
legislatures of Missouri, Ohio, Illinois, and Louisiana; Crawford by the
legislature of Virginia; and Jackson by a mass convention of the people
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