provided that "Congress shall have power to prescribe the manner in which the electors shall be chosen by the people." This amendment, as was said in the debate, would have enabled Congress to prescribe the single district system or any other improved method as seemed best at any given time. This resolution, after being presented several times, was finally passed by the Senate, in connection with the House suffrage amendment. The House refused to concur in the amendment, and the Senate, after receding from this article, failed to give the suffrage amendment the necessary two-thirds. The fifteenth amendment passed later without this article being incorporated in it.2

Twice since, in 1872 and in 1888, a very similar proposition, save that the vote should be given directly, without the intervention of electors, has been presented to Congress, the first time by General Banks, the last by Senator Cockrell,

3

50. ELECTION OF PRESIDENT AND VICE-PRESIDENT IN CASE OF NO CHOICE AT THE FIRST ELECTION.

The greater number of the proposed amendments relating to the method of the election of President and Vice-President made provision for the method to be followed in case of no choice at the first election. The variety of the expedients proposed to effect an ultimate choice is only exceeded by the methods suggested for the primary election of the chief execu tive officers. Previous to the early "twenties" no amendment appears proposing any change in the clause of the twelfth amendment, which provides that in case of no choice for President or Vice-President by the electors the election of the former shall be made by the House of Representatives, and of the latter by the Senate."

4

App., Nos. 1287, 1308. See post, par. 131.

2 This amendment was first proposed as an additional article to the Senate suffrage amendment, later withdrawn and presented as a separate amendment, finally passed by the Senate as an additional article of the House suffrage amendment, and reconsidered as recorded above.

3.App., Nos. 1356, 1715. Mr. Banks's proposition provided that the President and VicePresident should be "chosen by the electors qualified to vote in the election of Representatives to Congress," "in such manner and under such regulations as Congress may by law direct;" Mr. Cockrell's, for a direct vote "in such manner as Congress shall provide by law."

4 Except Hillhouse's proposition of the choice of President by lot. Ante, par. 47. The twelfth amendment reduced the number of names submitted to the House from five to three. Compare art. 2, sec. 1, cl. 3, with the twelfth amendment. The Federalists had opposed this change made by the twelfth amendment as reducing the influence of the small States. Ante, par. 38, p. 79, note 4.

In 1823, as if in expectation of trouble in the next election, several amendments to alter this provision were introduced. The failure of the electors to choose a President in 1824, and the subsequent choice of Adams by the House, called forth a large number of resolutions proposing a variety of methods to diminish the probability of the election devolving upon the House of Representatives, some even stipulating that in no case should the choice be left to the House.' Naturally the friends of Jackson were the most zealous in urging this proposition, and with some success, for in 1825 the House, after a six weeks' debate, agreed to a resolution to take away from the two Houses the power of participating in eventual elections,3 but their committee were unable to agree upon "any specific plan," and were discharged.1

2

Although Congress was unable to agree upon any substitute for this provision of the Constitution, various expedients have been devised by individual members. These for convenience of treatment are classified into eleven groups, beginning with those proposing the least change, and proceeding to the most radical.

(1) The majority of the amendments in regard to the election of President and Vice-President did not propose to deprive Congress of the contingent power to elect, but some have suggested changes in the method and procedure of the

As the resolutions from the legislatures of the following States: Tennessee, App., No. 581a (1827); Alabama, No. 583 (1828); Georgia, No. 600 (1830); Maine, No. 658a (1836); legislature of Vermont nonconcurred. Am. An. Reg., p. 322. Ohio, No. 655a (1836).

2 See Sumner's Andrew Jackson, p. 106, for description of their hostility to President Adams. For Adams's views as to the propriety of election devolving upon the House, see his Memoirs, Vol. VII, pp. 301-303. For Jackson's position, see ante, par. 43. Van Buren said, "There was no point on which the people of the United States were more perfectly united than upon the propriety, not to say indisputable necessity, of taking the election of President from the House of Representatives." Quoted by O'Neil, p. 253. Madison wrote, in 1823: "An amendment of the Constitution on this point is justly called for by all its considerate and best friends." Works, Vol II, p. 333.

3 By a vote of 138 to 52. (This amendment was called for by the legislature of Georgia in 1826. App., No. 577a. In 1836 the legislatures of Ohio and Maine recommended this restriction. App. Nos, 655a, 658a.) At the same time a declaratory resolution in favor of the district system of election of President directly was defeated. Ante, par. 43.

4 This failure showed that however generally it was agreed that the election ought not to devolve upon Congress, it was impossible to secure a sufficient number to agree upon any other plan. An article in Niles' Register referring to the action of the House, as above, said that the Southern States were opposed to "a further extension of the popular principle," while the greater States would not allow "a further extension of the Federal principle." "The large States will not give up one jot or tittle of the power that they have as to first choice of a President; nor will the small States abate their influence when the vote is to be taken by States." "We despair of a change *** because of the three parties to the question, to wit, the large States whether holding slaves or not, the nonslave-holding States and the slave-holding States, and the small States." Vol. Xxx, p. 233.

respective Houses in the event of the election devolving upon it. One such, introduced in 1825, provided in case no one received one-third of the whole number of votes given by the electors, the House should choose the President under such rules as they might agree upon. Another, like that advocated by Mr. Phelps of Connecticut, in 1826, proposed raising the number of candidates again to five, as originally provided in the Constitution, when the election fell to the House. If no person received a majority after the second ballot, from the two having the highest number of votes the Speaker should choose one by lot. Several, like the amendment reported by the Senate Select Committee on Elections in 1824, stipulated, in place of the vote being taken by States, that each Representative should have one vote, and after the first ballot a plurality should elect."

Mr. Vallandigham's proposition, by which the country was divided into sections, provided in case the election devolved upon the House, the concurrence of a majority of States of each section should be necessary for a choice.1

(2) Another variation would have continued to give to Congress the duty of making a choice if there was no election, but a choice by joint ballot. Senator Dickerson repeatedly intro-/ duced an amendment which provided that in case no person received a majority of the votes of the electoral college, then from the highest number not exceeding three on the list of those voted for as President, the Senate and House in joint meeting should immediately, by ballot, choose the President. A majority of the votes of all members present should be necessary to a choice on the first ballot, after which a plurality of votes should elect.5 In the amendments introduced by Mr. Underwood of Kentucky, in 1838 and 1842, proposing the nomination of candidates by the State legislatures, and the election by a direct popular vote, provision was made, in case no person received a majority, for a joint convention of both Houses of Congress to elect the President or Vice-President by a viva voce vote from among those nominated for the office, a majority of votes present to decide." A similar method of deciding

Ante, par. 39. Madison, in 1823, wrote that of "the different remedies proposed" he liked the joint vote of the two Houses best. Works, III, 334.

6 App., Nos. 679, 724. Ante, par. 46.

the election, in case no person received a majority of the votes given directly for President and Vice-President, has been frequently suggested, especially in recent years. In most instances a majority vote of the joint convention was to decide, but some required a two-thirds vote.1

3

(3) A favorite device for avoiding recourse to Congress was the suggestion of a second election by the original electors. January 10, 1823, Senator John Taylor of Virginia proposed such an amendment, but the electors should vote for one of the two as President who should have received the greatest number of electoral votes at the first election. In case of a tie at the second election, then it should be the duty of the House of Representatives to choose one of them as President. This amendment was later modified in a new draft, which provided that instead of an election by the House, that both Houses of Congress in joint convention should select the President. In the amendments introduced at this same session of Congress by Mr. McDuffie of South Carolina and by Senators Hayne and Van Buren, a similar provision was made for a second meeting of the electors in case of no choice at the first elections. In Mr. McDuffie's resolution there was a peculiar provision that made it possible for two Presidents to be elected. It provided that the Senate and House in joint meeting should canvass the vote cast by the electors at their second meeting, and if no one had received a majority the joint meeting, each member having one vote, should choose a President. "If there be two or more persons, each of whom have the highest number of electoral votes given at the second meeting, each one of them shall be chosen. If there be only one person having the highest number of electoral votes, less than a majority, one of the persons who has one of the two highest number of votes shall be chosen." Mr. Dromgoole of Virginia in subsequent years (1838 and 1845) twice presented an amendment similar to that introduced by Senator Taylor.5

(4) Two amendments presented in the same session of Congress, in 1826, made provision for a second choice of electoral; colleges, the persons so chosen should, from the persons having the two highest number of votes at the first election, choose

1 As App., Nos. 743, 1078, 1314, 1439, 1441, 1569, 1624, 1640, 1735.

2 App., No. 517.

3 App., Nos. 524, 527, 532.

4 App., No. 524, ante, par. 34.

App., Nos. 682, 743.

one, but the vote should be taken by States, each State having one vote.!

(5) In 1824 Mr. Livingston of Lousiana proposed an amendment for the election of President by a direct vote given in districts. This amendment provided that the citizens, at the same time they gave their vote for President and Vice President, should also vote for an elector. In case no person was the choice of a majority of the whole number of districts, then the electors should assemble in their respective States and cast their votes for one of the two persons receiving the greatest number of district votes. In case of a tie, the one of the two who had the greatest number of votes of the electoral districts should be President.2 In 1827, upon the instruction of the legislature of Ohio, and again in 1829, Mr. Wright of Ohio presented an amendment of a somewhat similar kind. It differed in that his resolution contemplated an election by a majority of the popular vote of the country, but the voters at the same time they voted directly for President and VicePresident were also to cast their ballots for electors equal to the number of Senators and Representatives to which their State was entitled. In case of no person receiving a majority, the electors having the greatest number of votes should choose the President and Vice-President from the two persons having the greatest number of the direct votes. In case of no election ↓ the choice should devolve on Congress.3

(6) Another proposition was for a popular election to follow the meeting of the electoral colleges, if there was no choice. The citizens of each State were to vote directly for one of the two highest candidates at the first election. The votes were to be taken by States, each State having one vote. This was presented by Mr. Hemphill of Pennsylvania, in 1826, and a somewhat similar plan was proposed in the following year.5

(7) Still another modification of the system of double election is included in an amendment introduced in 1826 by James Buchanan, then a member of the House. It provided that in case no election should be made by the electors, the States should choose the President from the two highest on the list, in such

App., Nos. 556, 574.

2 App., No. 537.

App., Nos. 598, 592.

4 App., No. 561. In case of a tie the choice to be made as the present provisions of the Constitution direct.

5 App., No. 580.