In this mode of choice, the popular will may be still less recognized than it is by the method of voting through presidential electors, for if the twenty smaller States were through their representatives in the House to vote for candidate A, and the eighteen larger States for candidate B, A would be seated, though the population of the twenty smaller States is, of course, very much below that of the eighteen larger.

The Constitution seems, though its language is not explicit, to have intended to leave the counting of the votes to the president of the Senate (the Vice-President of the United States); and in early days this officer superintended the count, and decided questions as to the admissibility of doubtful votes. However, Congress has in virtue of its right to be present at the counting assumed the further right of determining all questions which arise regarding the validity of electoral votes, and has, it need hardly be said, determined them on each occasion from party motives. This would be all very well were a decision by Congress always certain of attainment. But it often happens that one party has a majority in the Senate, another party in the House, and then, as the two Houses vote separately and each differently from the other, a deadlock results. I must pass by the minute and often tedious controversies which have arisen on these matters. But one case deserves special mention, for it illustrates an ingrained and formidable weakness of the present electoral system.

In 1876, Mr. Hayes was the Republican candidate for the presidency, Mr. Tilden the Democratic. The former carried his list of electors in seventeen States, whose aggregate electors numbered 163, and the latter carried his list also in seventeen States, whose aggregate electors numbered 184. Four States remained out of the total thirty-eight, and in each of these four two sets of persons had been chosen by popular vote, each set claiming, on grounds too complicated to be here explained, to be the duly chosen electors from those States respectively.1 The electoral votes of these four States amounted to twenty-two, so that if in any one of them the Democratic set of electors had

In Oregon the question was whether one of the chosen electors was disqualified because he was a post master. In Florida there were complaints of fraud, in South Carolina of intimidation, in Louisiana two rival State governments existed, each claiming the right to certify electoral returns. There had doubtless been a good deal of fraud and some violence in several of the Southern States.

been found to have been duly chosen, the Democrats would have secured a majority of electoral votes (the total number of electors being then 369, so that 184 was within one of being a half of that number) whereas even if in all of them Republican electors had been chosen, the Republican electors would have had a majority of one only. In such circumstances the only course for the Republican leaders, as good party men, was to claim all these doubtful States. This they promptly did,-party loyalty is the last virtue that deserts politicians, and the Democrats did the like.

Meanwhile the electors met and voted in their respective States. In the four disputed States the two sets of electors met, voted, and sent up to Washington, from each of these four, double returns of the electoral votes. The result of the election evidently depended on the question which set of returns should be admitted as being the true and legal returns from the four States respectively. The excitement over the whole Union was intense, and the prospect of a peaceful settlement remote, for the Constitution appeared to provide no means of determining the legal questions involved. Congress, as remarked above, had in some previous instances assumed jurisdiction, but seeing that the Republicans had a majority in the Senate, and the Democrats in the House of Representatives, it was clear that the majority in one House would vote for admitting the Republican returns, the majority in the other for admitting the Democratic. Negotiations between the leaders at last arranged a method of escape. A statute was passed creating an electoral commission of five Senators, five members of the House of Representatives, and five Justices of the Supreme Court, who were to determine all questions as to the admissibility of electoral votes from States sending up double returns. Everything now turned on the composition of the electoral Commission, a body such as had never before been created. The Senate appointed three Republicans and two Democrats. The House of Representatives appointed three Democrats and two Republicans. So far there was an exact balance. The statute had indicated four of the Justices who were to sit, two Republicans and two Democrats,

1 Power was reserved to Congress to set aside by a vote of both Houses the decisions of the Commission, but as the two Houses differed in every case, the Democrats of the House always voting against each determination of the Commission, and the Republicans of the Senate supporting it, this provision made no difference.

and had left these four to choose a fifth. This fifth was the odd man whose casting vote would turn the scale as between the seven Republican members of the Commission and the seven Democrats. The four Justices chose a Republican Justice, and this choice practically settled the result, for every vote given by the members of the Commission was a strict party vote. They were nearly all lawyers, and had all taken an oath of impartiality. The legal questions were so difficult, and for the most part so novel, that it was possible for a sound lawyer and honest man to take in each case either the view for which the Republicans or that for which the Democrats contended. Still it is interesting to observe that the legal judgment of every commissioner happened to coincide with his party proclivities. All the points in dispute were settled by a vote of eight to seven in favour of the returns transmitted by the Republican electors in the four disputed States, and Mr. Hayes was accordingly declared duly elected by a majority of 185 electoral votes against 184. The decision may have been right as matter of law,-it is still debated by lawyers, and there had been so much force and fraud on both sides in Florida, Louisiana, and South Carolina, that no one can say on which side substantial justice lay. Mr. Tilden deserves the credit of having induced his friends both to agree to a compromise slightly to his own disadvantage, and to accept peaceably, though with long and loud complaints, a result which baffled their hopes. I tell the story here because it points to a grave danger in the presidential system. The stake played for is so high that the temptation to fraud is immense; and as the ballots given for the electors by the people are received and counted by State authorities under State laws, an unscrupulous State faction has opportunities for fraud at its command. Ten years passed after the election of 1876, but Congress, although successive Presidents pressed the subject on its attention, did nothing till 1887 to provide against a recurrence of the danger described. It has now enacted a statute which to some extent meets the problem by providing that tribunals appointed in and by each State shall determine what electoral votes from the

1 The Commission decided unanimously that the Democratic set of electors from South Carolina were not duly chosen, but they divided eight to seven as usual on the question of recognizing the Republican electors of that State.

2 The same phenomenon has been observed in committees of the English House of Commons appointed to deal with purely legal questions, or to sit in a virtually judicial capacity.

State are legal votes; and that if the State has appointed no such tribunal, the two Houses of Congress shall determine which votes (in case of double returns) are legal. If the Houses differ the vote of the State is lost. It is, of course, possible under this plan that the State tribunal may decide unfairly; but the main thing is to secure some decision. Unfairness is better than

uncertainty.

A President is removable during his term of office only by means of impeachment, a procedure familiar on both sides of the Atlantic in 1787, when the famous trial of Warren Hastings was still lingering on at Westminster. Impeachment, which had played no small part in the development of English liberties, was deemed by the Americans of those days a valuable element in their new constitution, for it enabled Congress to depose, and the fear of it might be expected to restrain, a treasonably ambitious President. In obedience to State precedents,2 it is by the House of Representatives that the President is impeached, and by the Senate, sitting as a law court, with the chief justice of the Supreme court, the highest legal official of the country, as presiding officer, that he is tried. A two-thirds vote is necessary to conviction, the effect of which is simply to remove him from and disqualify him for office, leaving him "liable to indictment, trial, judgment, and punishment, according to law" (Constitution, Art. i. § 3, Art. ii. § 4). The impeachable offences are "treason, bribery, or other high crimes and misdemeanours," an expression which some have held to cover only indictable offences, while others extend it to include acts done in violation of official duty and against the interests of the nation, such acts, in fact, as were often grounds for the English impeachments of the seventeenth century. As yet, Andrew Johnson is the only President who has been impeached. His foolish and headstrong conduct made his removal desirable, but as it was doubtful whether any single offence justified a conviction, several of the senators politically opposed to him voted for acquittal.3 A two-thirds majority not

1 There are further provisions in the Act which need not be given here.

2 Impeachment was taken, not directly from English usage, but rather from the Constitutions of Virginia (1776), and Massachusetts (1780), which had, no doubt following the example of England, established this remedy against culpable officials.

3 They may have questioned the expediency of turning him out at that moment; or their political prepossessions against him may have been restrained by a doubt whether the evidence was quite sufficient to support a quasi-criminal charge.

having been secured upon any one article (the numbers being thirty-five for conviction, nineteen for acquittal) he was declared acquitted.

In case of the removal of a President by his impeachment, or of his death, resignation, or inability to discharge his duties, the Vice-President steps into his place. The Vice-President is chosen at the same time, by the same electors, and in the same manner as the President. His only functions are to preside in the Senate and to succeed the President. Failing both President and Vice-President it was formerly provided by statute, not by the Constitution, that the presiding officer for the time being of the Senate should succeed to the presidency, and, failing him, the Speaker of the House of Representatives. To this plan there was the obvious objection that it might throw power into the hands of the party opposed to that to which the lately deceased President belonged; and it has therefore been now (by an Act of 1886) enacted that on the death of a President the secretary of state shall succeed, and after him other officers of the administration, in the order of their rank. Four Presidents (Harrison, Taylor, Lincoln, Garfield) have died in office, and been succeeded by Vice-Presidents, and in the first and third of these instances the succeeding Vice-President has reversed the policy of his predecessor, and become involved in a quarrel with the party which elected him, such as has never yet broken out between a man elected to be President and his party. In practice very little pains are bestowed on the election of a Vice-President. The convention which selects the party candidates usually gives the nomination to this post to a man in the second rank, sometimes as a consolation to a disappointed candidate for the presidential nomination, sometimes to a friend of such a disappointed candidate in order to "placate" his faction, sometimes as a compliment to an elderly leader who is personally popular. If the party carries its candidate for President, it also as a matter of course carries its candidate for Vice-President, and thus if the President happens to die, a man of small account may step into the chief magistracy of the nation.