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difficulty already alluded to as having occurred in 1801, in procuring a constitutional choice from an equality in the electoral votes between two individuals, which threatened the peace, if not the stability of the Union, the Constitution was so amended as to require the electors to name in distinct ballots the persons voted for respectively as President and Vicepresident. They are, then, by this amendment directed to make distinct lists of all voted for as President and Vice-president, and of the number of votes given for each respectively. These lists they are to sign, certify, and transmit sealed to the seat of government of the United States, directed to the President of the Senate, before the first Wednesday in January next ensuing the election. An act of Congress, passed in March, 1792, requires that body to be in session on the second Wednesday in February, when the President of the Senate, in the presence of both houses of Congress, opens the certificates received, and the votes are then counted. The Constitution does not explicitly declare by whom the votes are to be counted, and the result proclaimed; but the practice has been for the President of the Senate to perform those duties, the two houses being present as spectators, to witness the fairness and accuracy of the proceeding, and to be ready to act in case no choice be made by the electors.

The person having the greatest number of votes for President is declared to be elected to that office, if such number be a majority of the whole number of electors appointed; but if no person have such majority, then from the persons having the highest numbers, not exceeding three on the list of those voted for as President, the House of Representatives are immediately, by ballot, to choose the President. But on this occasion the votes are to be taken by states,

the representation from each state having one vote. A quorum for the purpose, of a member or members from two thirds of the states, and a majority of all the states, is necessary to a choice. Although the Constitution directs that, when no person is found to have a majority of the electoral votes, the choice shall be immediately made by the House of Representatives, yet it is not held obligatory upon that house to proceed to the election directly upon the separation of the two houses, but it may proceed to it either at that time and place, or omit it until afterward. This construction was adopted before the amendment of the Constitution, and there can be no question since in regard to its correctness, as the amendment expressly declares the choice of the house to be valid, if made before the fourth of March following the day on which the electoral votes are counted. Accordingly, in 1825, when there was again no choice by the electors, the House of Representatives retired to their own chamber, and on both occasions the Senate were allowed to be present as spectators only of the result.

In case no choice of President be made by the House of Representatives before the time thus limited for their action, it is declared that the Vice-president shall act as President, as in the case of the death or constitutional inability of the President. The amendment in question provides, farther, that the person having the greatest number of votes for that office shall be Vice-president, if such votes be a majority of the whole number of electors appointed; and that if no person have such majority, then from the two highest numbers on the list the Senate shall choose the Vice-president. A quorum for this purpose consists of two thirds of the whole number of senators, and a majority of the whole is necessary to a choice.

But no person constitutionally ineligible as President can be elected Vice-president. The Constitution, as thus amended, does not prescribe specifically when or where the Senate is to choose the Vice-president in case no choice be made by the electors, and no case has occurred to form a precedent; but from analogy to the provision and practice in regard to the President, it is presumed that the Senate may elect one at any time before the ensuing fourth of March With respect to the day to which the secondary elec tion is in both cases limited, it is to be remarked that it was adopted in reference to a law existing previously to the amendment of the Constitution, which had already declared that the term of four years for which the President and Vice-president are elected, should commence on the fourth day of March next succeeding the day on which the votes of the electors are given. The effect of the amendment, therefore, is to render the provisions of the act of Congress, relative to the specific times appointed for the several duties enjoined by the Constitution, in regard to the election of President and Vice-president, as permanent as the original instrument itself.

Although the wisdom and policy of this amendment of the Constitution has been doubted by some of our ablest jurists and statesmen, there are others who consider it an improvement, not only with respect to voting separately for President and Vicepresident, in reducing the number of candidates from which the congressional selection of a President is to be made, from five to three, while the Senate, in their choice of a Vice-president, is confined to the two highest numbers of those voted for by the electors. In another particular, also, the amendment may be considered beneficial. By the former mode of proceeding, the Senate was restrained from acting

until the house had made its selection of a President, which, if parties ran high, might be indefinitely delayed. By the amendment, the Senate may proceed to choose a Vice-president immediately on the declaring of the elect ral votes. Under the original mode, if the House of Representatives, in the event of no choice by the electors, did not choose a President by the fourth of March, the Vice-president then in office was to act as President for the next official term: so that, notwithstanding the public confidence might have been wholly withdrawn from him, he would actually become President for the ensuing four years, when he had been chosen by the electors in reference-not in form, but in fact-to the Vice-presidency, and that, too, for the preceding term; whereas, on the plan now in force, if no President be chosen either by the electors or by the House of Representatives, the Vice-president, then to fill the office of President, will have recently received the suffrages of the electors as well as of the Senate. After all, however, it may well be doubted whether a greater evil has not been introduced by the amendment in the greater facility it affords to party organization, and the selection of mere party leaders, which was the very evil intended to be guarded against by the former regulation.

From a review of these various provisions, the mode of electing the supreme magistrate of the Union appears to be well calculated to secure a discreet choice, and to avoid those evils which the partisans of monarchy have ascribed, and the experience of past ages have shown to belong, to popular elections. It must, nevertheless, be acknowledged, that the large and elevated views of the men who planned the Constitution, and the expectations of those who defended this portion of it, upon the re

fined theoretical reasoning I have adverted to, have not been realized in its practical operation and effects. It was supposed, as I have mentioned, that the election of the President would be committed to men not likely to be swayed by party or personal bias; who would act unfettered by previous commitments, uncontrolled by combinations or discipline, and be subject neither to intimidation nor corruption; and it was thought that the choice of an intermediate body of electors, consisting of several members, would be much less apt to agitate and convulse the community than the election of a single person, who was himself to be the first object of their wishes. Perhaps those views and expectations were founded on too exalted an estimate of human nature; and that, making all due allowances for human frailty and imperfection, they have not been altogether frustrated. Experience, however, has proved that the electors do not, in fact, assemble for a strictly free exercise of their own judgments, but for the purpose of sanctioning the choice of a particular candidate, previously designated by their party leaders. In some instances, the principles on which they are constituted have been so far forgotten, that the individual opinion of the electors has submitted to the dictation of those by whom he was chosen; and in others the electors have even pledged themselves beforehand to vote for a candidate prescribed to them by the managers of their party; and thus the whole foundation of the elaborate theory on which this part of the Constitution was built has been subverted in practice. The essential ends of the Constitution have, nevertheless, been attained; and in a government in which parties must ever exist, that system may be deemed salutary in its operation which results in the election of the most eminent, or even the

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