certain electoral votes in 1868 and in 1872, led to the renewed introduction of proposed amendments dealing with the question of contested elections.

As early as 1869, Mr. Robertson of South Carolina twice proposed an amendment to give Congress power to establish tribunals for determining all questions as to the validity of the electoral vote of any State.'

2

In 1873 Senator Frelinghuysen advocated leaving the decision of all such disputes to the Supreme Court of the United States. A similar provision was incorporated into the arti cles proposed in 1874-75 by the House Committee on Elections and in the amendment thereto submitted by Mr. Wright.3 The resolutions reported by the Senate Committee on Privileges and Elections in 1874-75, and introduced by Mr. Morton in the following year, were similar to the House resolutions above referred to, save that they empowered Congress to establish tribunals for the decision of such elections as might be contested. Mr. Morton pointed out the danger of the present method of declaring the results of the election, inasmuch as it failed to provide any adequate method for the determination of contested elections, and in addition placed arbitrary power in the hands of the Vice-President. Early in 1876, before the Presidential election, three other amendments on this subject were presented. Two of these made provision in case the two Houses should not agree, when acting as judge of the returns and elections, that the matter of disagreement should be referred to the Supreme Court for final decision. The third, proposed by Senator Edmunds, was reported by the Committee on the Judiciary in an amended form. This resolution contained a

6

1App., Nos. 1315, 1318. No. 1317, introduced by Mr. Bromwell of Illinois proposed to give Congress the power to decide as to the validity of the electoral vote, etc. Ante, par. 53.

2 App., No. 1362.

3 App., Nos. 1386, 1391. These all provided that the returns of the election should be made to the Supreme Court, who should canvass, determine, and publish the results. 4 App., Nos. 1393, 1400. Ante, par. 44.

5 Record, Forty-third Congress, second session, p. 628. Besides party bias, personal interest might prejudice his decision, for the Vice-President may be one of the candidates for office, as has been the case already six times in our history, although in all these cases the duties of the office have been honestly performed. Adams in 1797; Jefferson in 1801; declared a tie; Tompkins in 1821, a candidate for Vice-President; Van Buren in 1837: Johnson in 1841, a candidate for Vice-President; Breckinridge in 1861, a candidate for President. The Senate twice passed the Morton bill in 1875-76 to prevent the rejection of any electoral vote except by consent of both Houses. In case of double returns, those only to count "which the two Houses acting separately shall decide to be the true and valid return." McKnight, p. 275.

App., Nos. 1408, 1420. Proposed again in 1877, App., No. 1443.

7 App., No. 1423.

provision for the return of the electoral votes to the Federal Supreme Court, and further directed that the person having the greatest number of votes for President considered by the court to have been lawfully given and certified, should be Presi dent, if such should be a majority of all votes cast. The court should, in the discharge of these duties, disregard errors of form and be governed by the substantial right of the matter. Action upon this amendment was postponed until the next Congress.

The English system of employing the judges to investigate contested election claims to seats in the House of Commons, and to make recommendation relative to what action shall be taken, doubtless suggested the expedient of referring the matter to the Supreme Court. It is probable that to secure the action of the Supreme Court in such an extrajudicial capacity an amendment to the Constitution would be required, although certain of the judges, contrary to their custom of not rendering extrajudicial opinions,' served on the Electoral Commission for the settlement of the contested election of 1876.

The election of 1876 had taken place when Congress reassembled, and the necessity of devising some means for reaching a decision was now made evident. President Grant, in his annual message, declared that "the attention of Congress can not be too earnestly called to the necessity of throwing some greater safeguard over the method of choosing and declaring the election of President. "Under the present system there seems to be no provided remedy for contesting the election in any one State." 2 To meet the crisis, several resolutions were presented. The Senate at once took the Edmunds amendment into consideration. After it had been amended so as to permit its operating upon the determining of the vote in the last election, if ratified before the 1st of February, 1877, by the necessary number of States, the resolution was brought to a vote December 14, and defeated by the vote of 14 yeas to 31 nays.*

The election of 1876, settled in 1877 by an extraordinary tribunal, suggested permanent tribunals of some kind. In

See Marshall's Life of Washington, Vol. v., p. 441; United States v. Yale Tod, 13 Howard, 52, note; United States v. Ferrara, ibid., 40, note; Gordon v. United States, 2 Wallace, 561; United States v. Jones, 117 U. S., 697. For practice of the judiciary in the States, see Thayer, Cases on Const. Law, Part I, pp. 175-176.

App., No. 1430.

3 App., Nos. 1431, 1436.

4 The electoral bill of 1877, establishing the Electoral Commission, was passed instead. McKnight, pp. 276 et seq.

the fall of 1877 Senator Eaton of Connecticut proposed a means for determining contested elections more in keeping with the views of the champions of State rights. This provided that a tribunal for the decision of all contested issues arising in a Presidential election should be established in each State. The governor of each State, by and with the advice of the senate, at least a year previous to the election, should appoint not less than five persons learned in the law, to whom should be referred, in such manner as the legislature of the State should direct, all such cases of contested election, and it should be their duty to hear and determine every such case and certify the same thirty days before the electors should be called upon to give their votes.

The resolution, first presented by Mr. Springer in 1877 and introduced by him in every Congress since 1882, relating to the election of President, stipulates that the joint convention of the Senate and House shall be the judge of the election, returns, and qualifications. Various other amendments continued to be introduced, some renewing the propositions to refer the decision to the Supreme Court in case the two Houses could not agree,3 others empowering Congress to declare by law by what authority the returns should be canvassed and in contested elections determined, and still others to leave the decision to Congress itself. Resolutions proposing to leave the decision of any contested election to the highest judicial tribunal of the State, and for the counting of the votes in accordance with the decision, have been introduced in every Congress since 1881.6 Two resolutions foreshadowed the provisions of the law of 1887, one of these being reported by the select committee in the House in 1878.7

Nothing, however, was done, although action was urged by the successive Presidents until 1887, when Congress decided that an amendment was not necessary, and passed a statute embodying in some degree the provisions proposed in the amendment of Senator Eaton, already referred to. It provides that tribunals appointed in and by each State shall

App., No. 1453.

2 App., Nos. 1439, 1624, 1640, 1735. This was to be the incoming rather than the outgoing Congress. Ante, par. 15.

3 App., Nos. 1443, 1447.

4 App., Nos. 1464, 1672.

As App., No. 1508, reported by select committee of the House. To be counted as certified unless rejected by both Houses.

"App., Nos. 1537, 1589, 1639, 1697.

App., Nos. 1475, 1493.

:

determine what electoral votes from the State are legal votes; in case the State has not appointed such a tribunal, then the two Houses of Congress, by concurrent vote, shall determine, in case of double returns, which votes are legal.'

By this act a method of counting the electoral vote has finally been devised which promises a prompt and equitable decision of contested elections. Thus Congress, in harmony with its claim of the past quarter of a century, has asserted its right to supply the "casus omissus" of the Constitution without waiting for a formal amendment.

55. EXCLUSION OF ELECTORS FROM APPOINTMENT BY THE PRESIDENT.

In order to guard against the danger of the President's rewarding electors, especially in times of great party excitement, by giving them offices after he took his seat, several proposals have been made to add to the disqualification of Senators and Representatives, forbidding their appointment to office during the time for which they have been elected, or for a longer period. There have been at least nine other resolutions providing that the Constitution should be so amended that neither electors nor members of Congress, in the event of the election of President devolving upon the House, should be appointed to any office within the appointing power of the President during the continuance of that President in office.2 The first of these was presented by Mr. Smyth of Virginia, in 1823, and was the only one that included Presidential electors within its prohibition.3

The appointment of Clay to a Cabinet position by President Adams lent color to the charge of a bargain, and was the occasion that led to the proposal during the period 1826 to 1836 of seven distinct propositions to amend the Consititution as above. General Jackson himself took occasion to recommend such an amendment in his first annual message, in 1829, and again in 1831 he renewed his recommendation.*

The resolution introduced by Mr. Weems in 1826 had this peculiarity that it only proposed to make such members of Congress ineligible to appointment "as shall stand recorded as having voted upon the election."5

1 Statutes of the United States, Forty-ninth Congress, second session, chap. 90, p. 373. 2 App., Nos. 516, 557, 567, 581, 595, 596, 606, 635, 655, 980.

Only one other amendment of this character has been presented. A clause of the amendment presented by Senator Davis of Kentucky, in 1863, proposing a very novel scheme for the choice of President by both Houses of Congress meeting in joint session, provided that no Senator or Representative who should have voted for the candidate elected should be appointed to any office by the President.'

A somewhat analogous proposition related to the judges of the United States who might be called upon to canvass the returns of the election. The Edmunds resolution for the decision of contested-election cases by the Supreme Court stipulated that the justices of the court should be ineligible for election as President or Vice-President. On motion of Mr. Merrimon of North Carolina an additional provision was added to the original amendment, which debarred a judge of the Supreme Court from receiving appointment to any office under the United States Government until "the expiration of four years next after he shall have ceased to be such justice.""

56. TERM OF PRESIDENT AND VICE-PRESIDENT.

Over one hundred and twenty-five amendments have been submitted to change the term of President and fix the period of eligibility. These were brought out chiefly by the fear that the President would use the patronage of his office to secure his reelection. More than fifty of these have been propositions to fix the term at six years. Such an amendment was proposed for the first time by Mr. Hemphill of Pennsylvania, in 1826, as one of the provisions of his resolution for the election of President. This change has been advocated at different periods ever since, within recent years more frequently than

1 App., No. 1423; ante, par. 54.

5

2 The Committee on the Judiciary reported the main resolution, but it was lost. See post, par. 70.

3 In the Federal Convention various proposals were made in regard to the tenure of the Executive, varying from a three years' term to one of "good behavior," Elliot's Deb., v, pp. 142, 143, 327. Twice a seven years' term with restriction upon eligibility for reelection was adopted. Ibid., pp. 149, 369. The report of the committee of eleven of September 4, 1787, fixed the term at four years. This was the first time a four years' term had been proposed. It was evidently a compromise between the party desiring a limited term and the one advocating a life tenure. Ibid., p. 507.

4 See Senator Wade's speech; Globe, Thirty-ninth Congress, first session, pp. 931-932; Sumner's speech; Globe, Forty-second Congress, second session, p. 259.

One term of six years. App., Nos. 588, 591, 595a, 609, 645, 653, 660, 664, 667, 745, 869k, 869m, 874g, 995, 1198, 1204, 1336, 1356, 1369, 1388, 1389, 1402, 1403, 1412, 1412a, 1422, 1446, 1449, 1456, 1465, 1492, 1630, 1633, 1638, 1663, 1670, 1722, 1724. Six-year term, no limit as to eligi bility; App., Nos. 904, 1375, 1395, 1396, 1404, 1412, 1439, 1498, 1534, 1569, 1624, 1640, 1732, 1735.