after,' and one of two suggested in 1872 for two years thereafter. Another resolution, more general in its provisions, but doubtless including Senators and Representatives among the class of persons restricted, was proposed in 1822.3 By its provision any person holding any Government office at any time within four years next preceding the Presidential election was ineligible to the Presidency. This same resolution proposed increasing the age qualification from 35 to 45. In 1826 an amendment suggesting this same age qualification was introduced.'

(3) The amendments proposing the disqualification of secessionists were the same as those considered under the head of the Legislative department.5

(4) In the last of the "sixties" and the early "seventies," a movement was set on foot to enable naturalized citizens who had been fourteen years resident in the United States and fulfilled the qualifications as to age to become eligible to the Presidency. Four amendments proposing such a change in the Constitution were introduced during this time."

37. CHOICE OF PRESIDENT AND VICE-PRESIDENT.

No question gave the framers of the Constitution so much trouble as the question of the method of the choice of the Executive. The Convention, after vacillating between several plans, finally fell back upon the system of an indirect election. through an electoral college. This method of choosing the

App., No. 746.

2 App., Nos. 1347, 1351.

3 App., No. 507.

4 App., No. 561.

By Mr. Woodson of Kentucky.

In 1882 an amendment was proposed making Cabinet officers ineligible

to the Presidency. App. No. 1551.

5 Post, par. 128; ante, par. 11.

App., Nos. 1226, 1332, 1337, 1358. One was reported adversely. The motion by Mr. Morgan of Ohio, the framer, to suspend the rules and pass the resolution was rejected in the case of each of the last two of these propositions.

7 Wilson's remark in the Pennsylvania convention, Elliot, II, p. 511; Madison's letter of 1823; ibid., III, p. 332.

Eleven different methods for selecting the Chief Executive were suggested: (1) By the National Legislature, by Ed. Randolph, Elliot's Debates, I, 144; v, 128. (2) By the State executives, Elbridge Gerry; ibid., 1, 167; v, 174. (3) By the Congress constituted as under the Articles of Confederation, William Patterson; ibid., 1, 176; v, 192. (4) By electors to be chosen by the people, Alexander Hamilton; ibid., I, 179; V, 205. (5) By electors to be chosen by the people of the several States, Gouverneur Morris; ibid., 1, 262; V, 473. (6) By electors to be chosen by the people in districts, James Wilson; ibid., 1, 156; v, 143. (7) By electors to be appointed by the State legislatures, Oliver Ellsworth; ibid., I. 211; v, 338. (8) By electors to be taken by lot from the National Legislature, James Wilson; ibid., 1, 217; v, 362. (9) By the National Legislature, each State having one vote, Mr. Dayton, ibid., 1, 262; v, 473. (10) By direct vote of the people, Mr. Carroll; ibid., 1, 283; v, 472; Gouverneur Morris (by citizens); ibid., 1, 208; v, 323. (11) By electors to be chosen for each

President was without doubt suggested by the system of electing Senators under the constitution of Maryland.' In that State "the Senators were selected by a body of electors chosen every five years by the inhabitants of the State for this particular purpose and occasion." The principal considerations which led the members of the convention to favor this system was, on the one hand, their profound distrust of the people and their desire to preserve the relative influence of the States; and, on the other, their fear that if the election should be given to Congress the Executive might become dependent upon the legislative department. Therefore, they determined to place the election in the hands of a small body of men "to be elected on account of their wisdom and character," who, it was expected, being entirely independent in their action of the people and the Congress, would exercise "discretion and discernment" in the choice of men "preeminent for ability and virtue." No feature of the new instrument seems to have been contemplated by the framers with so much satisfaction and to have aroused so little opposition in the ratifying conventions as the article providing for the election of President and VicePresident.5

The system has not worked well in actual use, and no part of the Constitution has caused so much dissatisfaction and hence given rise to so many amendments to effect a change. Although the letter of the instrument remains only slightly amended, in practice its spirit has been completely perverted from what was intended by its framers. The electoral colleges instead of being deliberative bodies are pledged in advance to vote for certain men, and hence have become mere agents, automata. No better idea of the way in which an amendment is practically obtained, when it proves impossible to secure a State in such manner as the legislature thereof may direct. From Committee August 31, 1787. Adopted. Several of the above were adopted, only to be reconsidered and defeated. That for the election by the two Houses of Congress was three times adopted, once unanimously, and as often reconsidered and rejected. See Atlantic Monthly, vol. 42, 543; No. Am. Rev., vol. 140, February, 1885; McKnight, The Electoral System of the United States, pp. 221-224; O'Neil, The American Electoral System, chap. XI.

1 Constitution of Maryland (1776), Articles XIV-XVIII.

2 J. H. Robinson, Original Features in the United States Constitution.

Acad., Vol. 1, p. 229. Stevens, Sources of the Constitution, pp. 153-154, note.

3 McKnight, pp. 30-33.

Annals of Am.

4 Senator Morton's speech, Forty-third Congress, second session, Cong. Record, p. 627.

5 The Federalist," No. 67; also remarks of James Wilson and Chief Justice McKean

in the Pennsylvania convention. Elliot, II. pp. 511, 542.

"Story, II, pp. 298-301.

7 Morton's speech as above. Bryce, 1, pp. 40–44.

constitutional amendment, can be gained than by examining the way this system of election has worked in actual practice. As a recent writer remarks: "The legal processes of constitutional change are so slow and cumbrous that we have been constrained to adopt a serviceable framework of fiction which enables us easily to preserve the forms without laboriously obeying the spirit of the Constitution, which will stretch as the nation grows."

38. CHOICE OF PRESIDENTIAL ELECTORS: THE TWELFTH AMENDMENT.

For the first two elections the system of electing President and Vice-President worked smoothly, but by the time of the third election all was changed. Political parties had come into existence,' and Washington, who insisted upon retiring, was the only man who could command the united support of the entire nation. It at once became evident that a change was desirable, for the election of 1796 proved that by the existing method the will of the party in majority might be defeated by the elevation to the first position of the candidate who had been selected for the second place through the refusal of one elector to carry out the intention of the party. It also might prevent, as it did in this election, the President and the VicePresident from being of the same political party, inasmuch as some of the electors, fearing the result of a tie vote between their party candidates, threw away their votes for the second position, while thereby insuring the election of their candidate for the Presidency they permitted the opposition's candidate to secure the Vice-Presidency.

As early as January 9, 1797, even before the electoral vote was counted, Mr. Smith of South Carolina proposed a resolution declaring that the Constitution ought to be so amended that the Presidential electors be obliged in giving their votes to designate the person for whom they vote for President and Vice-President, respectively. A very similar resolution was introduced in each of the three following years by as many different persons, and the legislatures of Massachusetts and

Woodrow Wilson, Congressional Government, p. 242.

2 Even in 1789 tickets bearing names of electors were placed in the field, but by 1796 pledged lists of electors were common, and in Pennsylvania the beginning of the conven. tion system was in operation. In 1800 Congressional caucuses to nominate candidates and thus forestall the action of the electoral colleges were first held. O'Neil, pp. 35, 46, 70, 3 App., No. 328.

4 App., Nos. 329, 334, 336,

Vermont favored this change. No decisive action was taken— a further trial of the old system was needed to show more fully its dangers. The election of the year 1800 revealed anew the inadequacy of the existing system. The dissatisfaction already felt was greatly intensified by the critical experience of the tie vote in this year. The legislatures of three States, Vermont, New York, and North Carolina, presented resolutions to Congress early in the year 1802, proposing an amendment to the Constitution in this particular.2 In response to the desire of the great body of the people, resolutions providing for this change were immediately presented in both Houses. In the closing days of the session the House passed the amendment by a vote of 47 yeas to 14 nays. The resolution was immediately brought to a vote in the Senate, but lacked one vote of the necessary two-thirds, the vote standing 15 to 8.

At the opening of the next session resolutions to change the method of election were reintroduced, but were postponed until the next Congress. In the fall of 1803 the Vermont legislature renewed their proposal, and Ohio instructed their Representatives to favor the change. A resolution was presented in the House on the first day of the session of the new Congress, to which several amendments were proposed. After taking into consideration the different propositions, the select committee reported a resolution to amend the method of electing the Executive by requiring that the electors should designate which votes they cast for President and which for Vice-President. No change was to be made in the manner of choosing the President in the eventual election, but the chance of its occurrence was lessened. This resolution, after several unsuccessful attempts had been made to amend, passed the House by a vote of 88 to 31. The Senate postponed its consideration, as meanwhile they had under discussion a resolution of their own, which had been introduced by Mr. Clinton of New York. After various amendments to it had been

1 App., Nos. 334a, 334b. Maryland also, during the winter of 1800-1801, passed resolutious proposing an amendment for the establishment of a uniform mode for the choice of electors. App., No. 341a.

2 App., Nos. 342, 344, 348, 351.

3 App., Nos. 345. 352. The House proposition in its original form made provision also for the choice of electors in districts. See post, par. 39.

4App., No. 345.

App., No. 354.

App., Nos. 360, 361.

7 App., No. 356.

The number of candidates sent to the House reduced from five to three. App., No. 359.

accepted, the Clinton resolution passed the Senate by the vote 22 yeas to 10 nays.1

Although all sections of the country, Republican and Federalist alike, had in previous years sought this change,' the amendment now met with the systematic opposition of the Federalists, who seemed determined either to defeat or mutilate it. As soon as the Senate resolution came before the House the Federalists raised the cry of unconstitutionality, on the ground that the resolution had not received the vote of two-thirds of the Senate, but only two-thirds of the Senators present. The Republicans met this objection by appealing to precedent in the case of some of the first ten amendments, showing that two-thirds of the members present fulfilled the constitutional requirement. All their attempts to postpone or to amend were in vain, and even their appeal to State rights was disregarded, for the House, on December 9, 1803, concurred with the Senate by the exact constitutional majority-84 yeas to 42 nays, the vote of the Speaker being required to make the necessary two-thirds majority.5

4

The amendment was sent to the States at a favorable time. The Republicans were in the ascendency and Jefferson, who was a candidate for reelection, was at the height of his popularity. The next Presidential election was approaching, and the legislatures which assembled shortly after the submission of the amendment took prompt action. Ten States shortly ratified, and a proclamation of the Secretary of State, dated September 25, 1804, declared the amendment in force. The legislatures of Massachusetts, Connecticut, and Delaware alone rejected it. "Each of these declared it unwise, impolitic, and unconstitutional."8

App., No. 358.

2 See speech of Gregg of Pennsylvania, who showed that the measure was not a partisan one. Annals, p. 701.

3 Annals of Congress, Eighth Congress, first session, pp. 648-653; post, par. 183.

4 To abolish the Vice-Presidency, ante, par. 34; to prevent the Vice-President acting as President in case of a failure to elect by the House, when the election devolved upon it; to prevent reducing the number of candidates to be sent to the House. They claimed the proposed change violated the spirit and design of the Constitution. O'Neil, p. 252. Only three Representatives from New England voted for it.

See list after App., No. 358. McMaster, III, pp. 186-187.

The New Hampshire legislature passed it, but the governor vetoed it. Post, par. 185. McMaster, III, p. 187. See also O'Neil, p. 95, for sectional address issued to the people of Connecticut, which was in part as follows: "The plan of this amendment is to bury New England in oblivion and put the reins of Government into the hands of Virginia forever. They, the Democrats, have seized on a moment of delirious enthusiasm to make a dangerous inroad on the Constitution and to prostrate the only mound capable of resisting the headlong influence of the great States and preserving the independence and safety of the small ones."