On this subject Mr. Madison wrote: "The difficulty of finding an unexceptionable process for appointing the Executive organ of a Government such as that of the United States was deeply felt by the Convention; and as the final arrangement of it took place in the latter stage of the session, it was not exempt from a degree of the hurrying influence produced by fatigue and impatience in all such bodies, though the degree was much less than usually prevails in them.

"The part of the arrangement which casts the eventual appointment on the House of Representatives voting by States was, as you presume an accommodation to the anxiety of the smaller States for their sovereign equality, and to the jealousy of the larger towards the cumulative functions of the Senate. The agency of the House of Representatives was thought safer, also, than that of the Senate, on account of the greater number of its members. It might, indeed, happen that the event would turn on one or two States having one or two representatives only; but even in that case the representations of most of the States being numerous, the House would present greater obstacles to corruption than the Senate, with its paucity of members. It may be observed, also, that, although for a certain period the evil of State votes given by one or two individuals would be extended by the introduction of new States, it would be rapidly diminished by growing populations within extensive territories. At the present period the evil is at its maximum. Another census will leave none of the States, existing or in embryo, in the numerical rank of Rhode Island and Delaware; nor is it impossible that the progressive assimilation of local institutions, laws and manners, may overcome the prejudices of those particular States against an incorporation with their neighbors.

"But with all possible abatements, the present rule of voting for President by the House of Representatives is so great a departure from the Republican principle of numerical equality, and even from the Federal rule, which qualifies the numerical by a State equality, and is so pregnant, also, with a mischievous tendency in practice, that an amendment of the Constitution on this point is justly called · for by all its considerate and best friends."

7 Writings of Madison, vol. 3, 332-333.

997

The term "electors" was first used in the Convention by Mr. Hamilton, when he proposed that the Governor-that was Hamilton's term for President-should be elected by "electors chosen by the people." There is some degree of uncertainty concerning the term, and why it was used. A forceful writer has suggested that the framers of the Constitution feared the election of the President by the people and for that reason chose the method of electing him by electors.

The word "elector," says the author, "is one of great historical meaning and interest, on account of the remarkable coincidence of the establishment of electoral colleges in the States, and the existence in past ages of intermediate bodies, called together for the purpose of choosing a chief magistrate. It had been the prevailing custom, sanctioned by time, to devolve this duty upon a small and select body of men. We know that the Polish Diet elected the King of Poland; that the Emperor of Germany was chosen under the Germanic constitution by an electoral college, and that the choosing of the Supreme Pontiff of the Christian world has, from time immemorial, fallen upon a small body of men.

"Hereditary monarchy had no charms for the sturdy heroes and the statesmen of the Revolution, but the same heroes and statesmen, as framers of the Constitution, would not tolerate the idea of allowing the entire population to take a direct part in the election.

"From the pages of history, they had learned that in the ancient republics of Greece and Rome, tumults, riots, and widespread disorder had followed in the train of popular elections. They also feared that the people would not only be unable to discriminate in the character and qualifications of the candidates, but would be influenced and controlled in their choice by powerfully organized societies. A prediction was made by a member of the Federal Convention, that in a direct vote by the people, the Order of the Cincinnati would practically make the choice. This apparent want of confidence in the intelligence of the people was, however, shared by few; for some of the most bitter opponents of a popular election were considered in their own States to be most extreme in advocacy of popular rights.

"The real obstacle was the dread of consolidation, which swayed the minds and biased the opinions of almost all the local politicians, and especially had sunk deeply into the hearts of the people.'s

Another author attributes the origin of the term and its adoption by the Convention to the fact that prior to the adoption of the Constitution several of the States elected. their Governors directly by the people, while the remaining States elected theirs by the general assembly, saying that to avoid either of these methods the Convention adopted the electoral system as a compromise."

Whatever may have been the motive which influenced the Convention to provide for electing the President and Vice-President by electors, the original function of the electoral college was abandoned soon after the establishment of the Government.

Under the original clause of the Constitution each elector voted for two persons, but did not vote for either of them for President or Vice-President, but the person who received the greatest number of votes, if the number was a majority of all the electors appointed, would be President, by virtue of the constitutional provision. If more than one person had a majority of the electoral vote and an equal number of votes, then the House of Representatives immediately chose one of them President by ballot. If no person had a majority of the votes of all the electors, then the House of Representatives chose the President from the five having the highest vote. The vote was by States, each State having one vote. A quorum consisted of a member or members from two-thirds of the States, and a majority of all the States was necessary to a choice. After the President was elected the person having the 8 O'Neil, Electoral System, 3.

9 Johnson in New Princeton Review, September, 1887, 180, 181. "The fact that the election of the President is left to a body of men chosen for the special purpose,' and 'at a particular conjuncture' is the striking characteristic of the system. Two European potentates, the German Emperor and the Pope, were at the time of the Convention elected by small bodies of men, in one case even called 'electors.' Sir Henry Maine thinks that the members of the Convention 'were to a considerable extent guided' by the example of the Holy Roman Empire. The American republican electors,' he goes so far as to say, 'are the German imperial electors, except they are chosen by the several States.'" Stevens, Sources of the Constitution, 153, note.

greatest number of votes was to be the Vice-President. If two or more persons had an equal number of votes, the Senate was to choose a Vice-President from them by ballot. But this was changed by the present amendment.

Under this amendment each elector votes directly by ballot for President and Vice-President. The person who receives the greatest number of votes for President, if such number be a majority of the whole number of electors appointed, is President, but if no person has a majority, then the House of Representatives immediately chooses the President by ballot from the three persons having the highest number of votes for President. In such case, the vote is taken by States as it was under the original provision, and each State has only one vote. A quorum consists of a member or members from two-thirds of the States, and a majority of all the States shall be necessary to a choice.

If the election of a President should devolve upon the House of Representatives as now constituted, it would be governed as follows:

Forty-six States are represented in that body, consequently thirty-one constitute a quorum, but twenty-four being a majority of all the States, that number of representatives can elect the President. If the House of Representatives fails to choose a President before the fourth day of March following, the Vice-President shall act as President.

The person having the greatest number of votes for Vice-President shall be the Vice-President, if his vote is a majority of all the electors appointed; and if no person has such majority then the Senate shall elect the VicePresident from the two highest numbers on the list. A quorum for this purpose shall consist of two-thirds of the whole number of the Senators, and a majority of the whole number shall be necessary to a choice. Under this rule, if the election of a Vice-President is thrown into the Senate as now constituted, the proceedings will be as follows: There are ninety-two members of the Senate; sixtytwo, being two-thirds of that number, would be necessary to constitute a quorum; and forty-seven Senators, being a majority of the whole number, would be necessary to elect. So that if the election of a President should be thrown

into the House of Representatives and that of a Vice-President into the Senate, it would require twice as many votes to elect a Vice-President as a President.

There is much similarity in the two plans, the chief difference being that under the original provision electors did not vote directly for President and Vice-President, while under the amendment they do. Another difference is that should the House of Representatives choose the President, its choice under the old provision must have come from the five candidates receiving the highest number of votes, while under the amendment, it must choose from the three having the highest vote.

The provision in the Constitution that "if there be more than one who have such majority, and have an equal number of votes," is omitted in the amendment.

Under the Constitution the House chose the President, first, when more than one person had a majority of the Electoral College and had an equal number of votes; second, when no person had a majority of the Electoral College.

Under the first of these contingencies the House was limited in its choice to those persons having an equal number of votes.

In the second contingency it was limited to the five highest on the list.

Under the amendment the House elects the President only when no person has a majority of the Electoral College. Jefferson and Burr had an equal number of votes in the Electoral College, consequently the election of the PresiIdent, went to the House of Representatives and that body Iwas limited in its choice to those two.

No special reason seems to have been assigned why the House of Representatives should choose the President from the "five highest on the list" in case the choice of the President was referred to that body. Nor does there seem to be any special reason why the amendment reduced the number from which the selection should be made from five to three. Probably the selection in each instance was largely arbitrary as some number had to be agreed upon. When the Convention selected five as the number it does not appear to have provoked criticism, though reducing it in the amendment to three occasioned some discussion."

10 When the amendment was pending in the Senate Senator John