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 Constitution 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.

3 App., No. 516.

4 App., Nos. 596, 606.

5 App., No. 567.

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 proposi tions 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.

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

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.

5 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.

ever before.

All but fourteen of these stipulated that the

President should be ineligible to reelection.1

One proposition only has been presented which contemplated reducing the length of the term as fixed by the Constitution. This was the amendment presented by Senator Hillhouse, in 1808, in connection with his plan for the choice of President by lot from the retiring Senators. The term was placed at one year. Besides the amendments proposing to increase the term to six years, only two propositions have been made to extend the present period to any other term of years. The first of these, fixing the term at five years, was proposed by Mr. Tucker, in 1831; the other, prolonging the term to eight years, was introduced by Mr. Hudd of Wisconsin, in 1888.3

A large number of the amendments did not propose to change the term of the President as fixed by the Constitution, but to limit the number of times the same person could be chosen President. The amendments on this phase of the subject naturally fall into three groups: First, propositions limiting the same person to two terms; second, propositions restricting the Presi dent from being eligible to a reelection until after the expira tion of a certain number of years; and third, propositions restricting the President to one term only."

(1) The convention which ratified the Constitution in New York proposed an amendment with the first of these objects in view. This same proposition, however, was not advocated in Congress itself until 1823, when Mr. Dickerson presented an amendment for the election of President, in which such a provision appeared. A similar clause was incorporated in the resolution of the Senate Committee on Elections in the next year. Another resolution from this same committee, which was limited to this subject, passed the Senate at this session by the unusually large majority of 36 yeas to 3 nays, but was not reported from the committee in the House." A similar amendment, introduced by Mr. Dickerson, passed the Senate in 1826, but the vote in the House on its commitment showed

As above. See following discussion.

2 App., No. 392. See ante, par. 47.

App., Nos. 605, 1717.

4 The propositions to change the term to six years and render the President forever after ineligible are included in this classification.

that it could not secure the support of two-thirds of that body.' In 1830 Senator Dickerson made another ineffectual attempt to secure the adoption of this amendment, but it was not even brought to a vote in the Senate. Not until 1876 was this same proposition revived. In that year the House, to forestall all attempts on the part of the friends of General Grant to secure for him a third term, passed by the decisive vote of 234 to 18 a resolution which declared, "That in the opinion of this House, the precedent established by Washington and other Presidents of the United States, in retiring from the Presidential office after their second term, has become by universal concurrence a part of our republican system of government, and that any departure from this time honored custom would be unwise, unpatriotic, and fraught with peril to our free institutions."3 A month later it was proposed that this unwritten amendment should be incorporated into the Constitution, but the majority of the House were in favor of an amendment limiting the tenure to one term. This amendment was proposed for the last time in 1880, and was doubtless suggested by the attempt of some of General Grant's friends to secure for him the Republican nomination at the Chicago convention of that year.5 It was argued by some who had been opposed to a third term in 1876, that the interval of four years that had intervened would "not be a breach of the unwritten Constitution."

(2) Had the amendment suggested by two of the ratifying conventions been adopted, the designs of the Grant men in 1880 would have been thwarted by the terms of the Constitution. These amendments provided that no person should be capable of being President for more than eight years in any term of sixteen and fifteen years, respectively."

In the First Congress Mr. Tucker of South Carolina moved to add an amendment to the list to be recommended to the States, making it impossible for any person to be President

'App., No. 545. Dickerson's speech gave a review of the plans before the Constitutional Convention. Interesting to note that Benton voted against it, later with Jackson he favored one term only.

2 App., No. 604.

3 December 15, 1875. Introduced by Mr. Springer; House Journal, pp. 66-67. As early as 1872 the New York Herald had raised the cry against "Cæsarism." See article by McMaster in Forum, November, 1895. For Grant's letter in regard to a third term, see McPherson's Hand Book of Politics for 1876, p. 154.

4 App., No. 1411.

5 App., Nos. 1511, 1515.

Virginia, North Carolina. App., Nos. 38, 91.

In the convention of 1787, Mr. Pinckney had proposed "that no person should be eligi. ble for more than six years in any twelve." Rejected, five States to six. Elliot v, p. 368.

more than eight years in any term of twelve years. It was lost,' and in the Senate a motion to add an amendment similar to that proposed by Virginia was also lost.2

Possibly Washington may have been influenced somewhat by these propositions when, in 1796, he was urged to accept a reelection for a third term.

In 1803 a committee of the Senate reported a resolution that provided "that no person who had been twice successively elected President shall be eligible as President until four years elapse, when he may be eligible to the office for four years, and no longer." But the Senate rejected it by the emphatic vote of 4 to 25.3

From 1826 to 1850 there were seven resolutions presented, four of which were introduced by Mr. Underwood of Kentucky, to prevent any President from being eligible to office for the next ensuing term. Since 1873 this same restriction has been proposed eleven times in connection with a proposition to fix the term at six years."

(3) The simplest and most effective remedy would seem to be the restriction of all Presidents to a single term, a provi sion which the Federal Convention had first unanimously adopted. Over ninety proposed amendments have affirmed that principle. It was presented to Congress first in 1815 as one of the amendments proposed by the Hartford convention, by the member from Massachusetts and Connecticut, upon the instruction of their legislatures. In addition these resolutions provided that the President should not be elected from the same State two terms in succession, thus showing New England's jealousy of Virginia.

This change was not again suggested until after the defeat of Jackson, in 1824. Then this proposition was presented

App., No. 205.

2 App., No. 279.

App., No. 362. No amendment seems to have been called out in opposition to the invitation extended to Jefferson by the legislatures of several States to accept a third term. The legislatures of Georgia, Maryland, New Jersey, North Carolina, Pennsylvania, Vermont, the senate of New York, and the house of delegates of Virginia, requested him to accept a third term. Jefferson, however, declined. See "Reply to Vermont Address." Writings of Jefferson, VIII, 121; also ibid. tv, 565; v, 407. For his criticism of this feature of the Constitution at the time of its adoption, see ibid. II, 317, 330, 355, 586; III, 13. For his opinion in 1813, see ibid., VI, 213.

4 App., Nos. 564, 609, 674, 690, 718, 755, 760.

5 Five of these by Mr. Springer. App., Nos. 1375d, 1395, 1396, 1404, 1439, 1498, 1534, 1569, 1624, 1640, 1735.

This provision fixed the term at seven years. Elliot, 1, pp. 208-209.

App., Nos. 431, 439, 447.

8 See Adams, New Eng. Federalism for J. Q. Adams's comment on this, p. 322.