§ 2. It was then decided, by eight States to two, that the electors should be appointed by the legislatures of the several States. After this, the plan of electing the President by Congress was restored by a vote of seven States against four. Subsequently it was again changed to the mode of electing by electors, by a vote of nine States against two. Leaving it to the legislature to direct as to the manner of appointing electors was carried by a vote of ten States against one.

§ 3. The election of the electors of President and Vice-President, by uniform practice, is now confided to the people of the several States. Thus the sense of the people operates in the choice of the Chief Magistrate with much more certainty than it would were the choice of electors confided to a pre-existing body. The immediate election of the President and Vice-President is committed to men chosen for that specific purpose. ed by their fellow-citizens from the general mass will be most likely to possess the information and discernment requisite to so complicated an investigation. We have seen in Chap. VII., Part II., of this work, that no senator, representative, or other person holding a place of trust or profit under the United States, can be an elector of President and Vice-President.

A small number of persons select

§ 4. The number of electors corresponds with the number of senators and representatives to which the States are respectively entitled in Congress. Thus each State has about the same influence in the election of President and Vice-President that it has in the national councils.

2. PROCEEDINGS OF ELECTORS.

1st. They shall meet in their respective States.

2d. They shall vote by ballot for President and Vice-Pres

ident of the United States, at least one of whom shall

not be an inhabitant of the same State with themselves.

3d. They shall name in their ballots,

1st. The person voted for as President; and,
2d. The person voted for as Vice-President.

1 Federalist, No. 68.

4th. They shall make distinct lists of all persons voted for, 1st. As President;

2d. As Vice-President; and the number of votes for each.

5th. The electors shall sign and certify the lists.

6th. They shall transmit the lists sealed to the seat of government of the United States.

7th. The lists shall be directed to the President of the Senate. 94.

§ 5. This matter of the meeting of the electors in their respective States is a mere matter of form. No discussion of the merits of the candidates for President and Vice-President takes place; and, indeed, none is expected. The electors are chosen wholly with reference to particular persons who have been put in nomination at a convention called for that purpose; and the electors are pledged to vote for these nominees, and are in no sense at liberty to vote otherwise. The object of appointing electors was, by the authors of the Constitution, to give opportunity for deliberation, and for cautiously analyzing the characters of candidates for these high trusts; but this object has been wholly defeated by the practices of the political parties arrayed against each other.

§ 6. Hence the meeting of the electors, as before stated, is a mere matter of form. Nothing is left to the electors but to cast their votes according to previous pledges; and any exercise of an independent judgment would be treated as political usurpation, dishonorable to the individual, and a fraud on his constituents.1

§ 7. Congress, it will be remembered, has the power to determine when the States shall choose the electors, and to appoint the day on which they shall give their votes; which day must be the same throughout the United States. March 1, 1792, the year of Gen. Washington's second election, Congress passed an act on this subject, declaring that the electors shall be appointed within thirty-four days preceding the first Wednesday in December of each year when electors were to be appointed. This act did not specify the day on which they should be appointed. It specified the day, however, for

1 Story on Const., § 1,463.

the electors to give their votes; which is the first Wednesday in December next after their election.

§ 8. But Jan. 23, 1845, Congress passed another act, amendatory of the first, fixing the day on which electors should be elected throughout the United States. That day is the Tuesday next after the first Monday in the month of November of the year in which they are chosen. The day on which the electors are to give their votes was not changed by this amendment, but remains the first Wednesday of December next after their election.

§ 9. By this act, each State may provide by law for filling vacancies, if any occur, when the electors meet to give their electoral votes. The States may each provide by law also for appointing electors afterwards, if an election of electors on the day prescribed by Congress results in a failure to elect one or more of the electors.

§ 10. By this act of March 1, 1792, the electors of each State are to meet at such place as the legislature thereof may designate, and give their votes by ballot for President and Vice-President. They are then to make and sign three certificates of all the votes by them given, and they are to seal them up. They are to certify on each certificate that a list of the votes of their States respectively for President and Vice-President is contained therein.

They shall appoint a person to take charge of and deliver one of the same certificates to the President of the Senate at the seat of government before the first Wednesday of January then next ensuing.

Another of the certificates is to be forwarded forthwith by mail to the President of the Senate at the seat of government.

The third certificate is to be delivered to the judge of the district court in which the electors assemble.

3.- PROCEEDINGS IN CONGRESS.

1st. The President of the Senate shall open all the certificates in the presence of both houses of Congress.

2d. The votes shall then be counted.

3d. The person having the greatest number of votes for

President shall be [declared elected] President, if

such number be a majority of the whole number of electors appointed. 94.

§11. It will be observed, that although the lists of persons voted for as President and Vice-President are directed to the President of the Senate, yet he must open them in the presence of both houses. This gives dignity and insures fairness in the proceeding. The votes are counted by tellers appointed for that purpose by the House and the Senate. The proceeding takes place in the House of Representatives the second Wednesday of February.

not receive a Usually there nomination by

$12. No person can be declared elected who does majority of the whole number of electors appointed. are but two candidates in the field, each placed in the political party with whose principles he is identified; but it has sometimes happened that three or more were placed in nomination. In such cases, it might be quite likely that no candidate would receive a full majority of all the electoral votes. Such was the case

Four can

in 1825, at the election for the tenth Presidential term. didates were in the field, neither of whom received a majority of all the electoral votes: so there was a failure to elect a President by the people. The Constitution has made provision for such cases by referring the election to the House of Representatives as a last

resort.

4.- HOUSE OF REPRESENTATIVES.

1st. If no person have such majority, then the House of Rep resentatives shall choose immediately the President. 2d. He shall be chosen from the persons having the highest numbers, not exceeding three, on the list of persons voted for as President.

3d. The election in such cases shall be by ballot.

4th. The vote shall be taken by States.

5th. The representation from each State shall have one vote. 6th. A quorum for this purpose shall consist of a member or members from two-thirds of the States.

7th. A majority of all the States shall be necessary to a choice. 94.

$13. When the people fail to elect a President through their electors, it would seem proper that the choice should devolve on the House of Representatives. This seems to be the most appropriate

body, as the members of which it is constituted are chosen by the popular voice, and are the more immediate representatives of the people. But, when the election takes place in the house, the selec tion must be made from the persons already voted for by electoral The house is not at liberty to take up a new candidate, and their selection must be confined to those receiving the highest numbers, not exceeding three, on the list of persons voted for as President. This provision is made for the purpose of excluding from the list all such persons as receive but a small number of the electoral votes.

vote.

§14. The vote must be taken by ballot and by States; each State having but one vote. The mode of voting by States, if the choice should fall to the House of Representatives, was but a just compensation to the smaller States for their loss in the primary election. When the people vote for the President, it is manifest that the large States enjoy a decided advantage over the small States; and thus their interests may be neglected or sacrificed. To compensate them for this, in the eventual election by the House of Representatives, a corresponding advantage is given to the small States. It was, in fact, a compromise.1

There is no injustice in this; and, if the people do not elect a President, there is a greater chance of electing one in this mode than there would be by a mere representative vote according to numbers, as the same divisions would probably exist in the popular branch as in their respective States.2

It may be remarked here that this was the mode of passing laws under the Confederation.

§15. But the house can not proceed to the election of a President unless at least two-thirds of the States are represented on the floor. A majority can transact the ordinary business of legislation; but the election of a Chief Magistrate of the nation was regarded by the authors of the Constitution as a matter of such grave interest to the country, that they did not hesitate to insert this provision with unanimity. A majority of all the States is necessary to a choice, not a majority of the States present by representation; that is, not a majority of the quorum, but a majority of all the States.

1 2 Elliot's Debates, 364.

2 Rawle on Const., chap. v. p. 54.