time it failed to be brought to a vote in the House. This identical proposition was introduced by a Representative of South Carolina in the House in 1820 and secured a vote of 92 yeas to 54 nays, but this was short of the necessary two-thirds. The amendment never again came so near to success, for if it could have been pushed through the House it would have speedily received the indorsement of the Senate.2

An amendment, the first part of which was similar to that proposed by Senator Dickerson, was reported by the select committee of the House in 1823.3 It differed, however, in many other details. The electors, besides filling vacancies in their number, were to appoint the two electors at large.

4

Over thirty-five years later Mr. Douglas revived the proposition for the choice of electors by districts. Two isolated propositions, introduced in the later "sixties," called up this plan for the last time. The first of these departed in certain features from the early plan in that only the States which were entitled to more than two Representatives were to be divided into districts, and only in such States shall two additional electors be appointed. The second resolution conferred the choice of the two electors at large upon the voters of the State."

40. CHOICE OF ELECTORS BY GENERAL TICKET IN EACH STATE.

The States have by the Constitution the right to choose electors as they prefer, except that Congress may fix the time of the election. As a result, in the early years a great variety of methods were in use, as, in the election of 1824, the electors were chosen in six of the States by the legislature, in others

1 In 1820 and 1822. App., Nos. 489, 506.

2 App., No. 497. Ever afterwards the House refused to consider this amendment. 3 App., No. 524.

4 This method of choosing the two additional electors was employed in Maine and New York in 1828. Stanwood, p. 100; post, par. 40. Other clauses of this amendment made provision for case of no election, and division of the States into districts by Congress, if necessary. Post, pars. 50, 53.

5 App., No. 869(1). The two electors at large to be chosen by the legislature in joint convention.

App., Nos. 1247, 1248. A second election provided for in case no one received a majority of all the votes. If after the third election there is a tie, then it shall be decided by lot.

Delaware. South Carolina, Vermont, New York, Georgia, Louisiana. It has been claimed that the election by the legislature of a State was a usurpation and "a departure from the Constitution." Report of Committee on Election of President, Forty-fifth Congress, second session, H. Rep., Vol. IV, No. 819. McDuffie, in a speech in 1825. For reference, see App. No. 542; but in McPherson v. Blacke (146 U. S., 1.) it was held that the power of the legislature to fix the method was complete. See also In re Green, 134 U. S., 377,

The

by districts, but in the larger number by general ticket. method of election was frequently changed, "according as the needs of the ruling party were best served." As indication of the need of a uniform system to prevent this political jugglery, Mr. Pickens cited, in a speech in 1816, "the disgraceful struggles which cost New York her electoral vote in 1789, and almost deprived Pennsylvania of hers in 1800 and Massachusetts of hers in 1812, and the sudden change of New Jersey on the very eve of an election" as "so many cases in point.”

As the general-ticket system was by the "twenties" in use in the majority of the States, an amendment adopting this practice seemed to be the one most likely to be successful; accordingly, Mr. Hooper of New Hampshire, in order to secure uniformity in the Presidential election, introduced, in 1828, a resolution declaring that the Constitution ought to be so amended that in each State the electors shall be chosen by a general ticket. In the election of that year there was a very general change on the part of those States which had previously chosen electors through their legislatures to the popular system. The old method of choice by the legislature still obtained only in Delaware and South Carolina. In Maine and New York one elector was chosen for each Representative district, and the persons so chosen selected the two additional electors. Special electoral districts existed in Maryland and in Tennessee. The States which had repeatedly tried in vain for several years to secure the adoption of an amendment establishing the district system, especially Massachusetts, New Jersey, and North Carolina, went with the majority and adopted the system of election by general ticket, making eighteen States in all that employed this method. In 1832 all but two States adopted the general-ticket system. South Carolina alone adhered to her old system of legislative appointment, which she

1 Stanwood, p. 84; O'Neil, p. 122. For table of methods used by the States, see The Nation, vol. LII, p. 422; also reprinted in Hinsdale's Am. Govt. (2d ed.), p. 259. Six by district and twelve by the general-ticket system in 1824.

2 Ante, par. 39; MacMaster, IV, 369-371; Stanwood, 15, 38, 39, 49, 60. Other cases, Massachusetts (1804), MacMaster, III, 187; Niles' Register, IX, 349. Massachusetts changed its method of choosing electors in every election between 1796 and 1820. In 1796, by district system; 1800, by legislature on joint ballot; 1804. by general ticket; 1808, by the legislature; 1812, electors chosen in the old common pleas circuits (district system); 1816, by the legislature; 1820, by districts; 1824, by districts, the two electors at large chosen by the voters of the entire State; 1828, by general ticket.

3 App., No. 584.

Ante, par. 37.

This had been suggested in the Constitutional Convention of 1787.

4 Stanwood's Presidential Elections, p. 100.

retained down to the civil war. Maryland used the system of electoral districts for the last time in 1832.2 Thus, after 1832, the method of choosing electors had become nearly uniform throughout the country without the resort to an amendment to the Constitution. With but few exceptions, this system has not been departed from, although a State legislature is competent to establish any method it may choose.*

41. ELECTION OF THE PRESIDENT BY THE PEOPLE AS THE LEGISLATURE OF THE STATES SHALL DIRECT.

The action of the States also took away the reason for another group of amendments providing that the vote for President and Vice-President shall be given in such manner as the legis lature of each State may direct.

South Carolina retained this system because the lower division of the State contained twice as many slaves but less number of free population than the upper. "The lower division was intrenched in the legislature." O'Neil, p. 126, note. See letter of Calhoun defending the practice, November, 1846. Works, VI, p. 255.

2 Stanwood, pp. 110, 118.

3 It is claimed that "the practical effect of the electoral system has been to increase the relative importance of the large States, and the practice of voting by general ticket was introduced by the large States for that purpose, and when introduced all were compelled to follow it." House Report, Vol. IV, No. 819, Forty-fifth Congress, second session. The large States were not the first to adopt the general-ticket system; in 1789 three States adopted it, viz, Pennsylvania, New Hampshire, and Maryland; of these only Pennsyl vania could be reckoned as a large State. The number varied in nearly every election, but by 1816 five States used it, viz, New Jersey, New Hampshire, North Carolina, Rhode Island, and Ohio; of these only North Carolina could be reckoned as a large State, being sixth in population. The great change came in 1824, when twelve States seem to have adopted the system, viz, Fennsylvania, New Jersey, Connecticut, New Hampshire, Virginia, North Carolina, Rhode Island, Ohio, Indiana, Mississippi, Alabama, Missouri-the second, third, fourth, and fifth States in population and eight small ones. In a letter of August 23, 1823, Mr. Madison wrote: "The district mode was mostly, if not exclusively, in view when the Constitution was framed and adopted, and was exchanged for the general ticket and the legislative election as the only expedient for baffling the policy of the particular States which had set the example." Works, Vol. III, pp. 332-333. Governor Carroll, in his message to the legislature of Tennessee, September 19, 1831, recommends the establishment of the general ticket system of choosing electors, in order that the State may have its "full weight in the election for President and Vice-President hereafter." Am. An. Reg., Vol. VII, p. 273 (1831-32). From the above it is clear why the system became general.

4 The following are the only cases of departure from the general-ticket system: The reconstructed State of Florida in 1868 and the newly admitted. State of Colorado in 1876– there being insufficient time to provide for a general election- chose their electors through their legislatures. Stanwood, pp. 268, 328, 372. In 1892 the legislature of Michigan departed from the prevailing system and adopted the district system, one elector being chosen in each Congressional district, and for the choice of the two remaining electors the State was divided into two districts, each of which chose one of the electors at large. The constitutionality of this latter provision was questioned, but sustained by the Supreme Court of the United States in McPherson v. Blacke, 146 U. S., 1. The danger of other States following the example of Michigan led President Harrison in his annual message (December 9, 1891) to recommend that the permanency of the prevailing method should be secured by a constitutional amendment. Cong. Record, pp. 18, 19. This recom. mendation was not productive of results, but the next legislature of Michigan, being of a different political complexion from the legislature which had enacted the obnoxious law, repealed the same. See Bryce, I, p. 43.

The first of these amendments was proposed by Mr. Boon of Indiana, in 1826, and it provided that the vote shall be a direct vote, given as the legislature may prescribe.1 Two others were presented in the House shortly after. One of these, offered by Mr. Hemphill of Pennsylvania, while still retaining the electoral college, provided that the people of the State should appoint, in such manner as the legislature should direct, the electors to which it was entitled,2 thus insuring an election of the electors either by general ticket or by districts, and not by the legislature, as was still the practice in some of the States. The other proposition, that of Mr. Livingston of Louisiana, was more explicit." It stipulated that there should be a direct election by the people, either by district or general ticket, as the legislature of each State should direct; such mode not to be changed for a period of eight years, and in no case to be changed within three years of any Presidential election.*

42. ELECTION OF PRESIDENT AND VICE-PRESIDENT BY A GENERAL DIRECT VOTE.

Several of the amendments just discussed provide at the same time for some different method of electing the President in case there is no choice in the first election. The same object was sought by another group of amendments intended to do away altogether with the machinery of electors. Thirty-seven propositions for the election of President by a general direct vote have been introduced, twelve of which fall in the period embraced by the years 1826 to 1837.6

In the election of 1824, Andrew Jackson, although he had somewhat the largest popular vote,7 lacked an electoral majority, and was then defeated in the House of Representatives by a combination of the Clay and Adams men for Adams. This result caused general dissatisfaction with the prevailing system of election among Jackson's adherents. The fact that he

App., No. 572. Mr. Livingston showed himself ready to further any scheme for the alteration of the existing method of electing President, for in 1824 he introduced one resolution to choose electors by districts (App., No. 537), and in 1826, besides the above, he proposed a general direct vote. App., No. 568. See pars. 39, 42.

*Post, par. 50. To prevent such cases as cited in par. 40.

Post, par. 50.

App., Nos. 550, 554, 562, 568, 570, 572, 578, 583, 592, 628, 654, 669.

For estimate of popular vote, see Stanwood, pp. 87-88, who estimates Adams's voto as one-third of the popular vote. Niles' Register, Vol. XLI, p. 444, claims that "the electoral vote obtained by Adams in 1824 represented a larger number of the people than the higher electoral vote of Jackson."

had polled the largest popular vote, togther with his increasing popularity, suggested a method, the adoption of which would prevent the people's choice from being overruled, namely, a direct vote of the people, State lines being disregarded altogether. Mr. McManus of New York first proposed this change in Congress January 4, 1826. Within the next four years a similar amendment was introduced eight times in the House, two of these proposals coming from the legislatures of Ohio and Missouri. In 1833 Senator Bibb of Kentucky called up the subject again, but the committee to which his resolution was referred reported as a substitute a proposition for the direct election of President by districts.3

Not until 1865 did the proposition again make its appearance. It was the first of a series of twenty-five resolutions of this character. Mr. Ashley and Senators Poland and Sumner were the most active in urging the adoption of this amendment during the early years of the second period of its popularity in Congress. Mr. Sumner advocated this change because the existing system was "artificial, cumbrous, radically defective, and unrepublican," and because, in common with Mr. Ashley, he expected that the proposed method would supersede the caucus or convention system of nominations. There is little reason, however, to suppose that the adoption of this system would do away with the nominating convention. The greater number of these propositions required a majority of the popular vote to secure the election. In case no person received a majority twelve proposed a second election by the people, while four others provided for the final choice by one or both branches of Congress. Several others provided that a plurality of votes only

App., No. 550.

5

2 App., Nos. 554, 558, 562, 568, 578, 592, 601a. For peculiar provision of the Ohio resolution for the choice of electors to act only in case of no person receiving a majority, see post, par. 50; App.. Nos. 578, 592.

App., Nos. 628-630; post, par. 43. For resolutions from the legislature of Indiana a approv ing a change in the method of election presented in 1837, and also suggesting a uniform series of three days for the election in all the States, App., No. 669, see post, par. 52. Some, as No. 554, provided that a plurality of votes should elect.

4 The preamble to the resolution, App., No. 1352, declared: "The caucus or convention, after being the engine for nomination of President, allowing the people little more than to record its will, becomes the personal instrument of the President when elected, giving him a dictatorial power, which he may employ in reducing the people to conformity with his purposes and promoting his reelection, all of which is hostile to good government and of evil example," etc. See also Ashley's speech, App., No. 1227b; Orations and Speeches by J. M. Ashley, pp. 774, and following pages.

5 App., Nos. 1104, 1127b, 1283c, 1352, 1368, 1389, 1464, 1505, 1536, 1626, 1668, 1695; post, par. 50. By joint convention of both Honses of Congress, App., Nos. 1078, 1314; by the House of Representatives, App., Nos. 1354, 1361.