292

OPINION OF JUDGE BRADLEY.

It is to be observed that, the amendment, as adopted by both Houses, followed Gallatin's phraseology. The ratifying convention had asked for amendment of the article on the judiciary and that proposed by Virginia may be taken as a type of their requests; it was the substance of the amendment which was rejected, along with Gallatin's. The absence of any immediate and clear precedent for the amendment, indicates that none of the States anticipated any such decision as was given by Wilson and Jay, in Chisholm vs. Georgia. No comment on the amendment is more informing than that by the Supreme Court itself in a decision, given by Justice Bradley nearly a century later.1 The decision by Wilson and Jay, says Bradley, "created such a shock of surprise throughout the country that at the first meeting of Congress thereafter, the Eleventh Amendment to the Constitution was almost unanimously proposed and was in due course adopted by the Legislatures of the States. This

official notice of ratification by Virginia, Kentucky, Maryland, Connecticut, North Carolina and South Carolina, with no record of the action by other States.

See Documentary History of the Constitution, II, pp. 392-407. See also Journals of House and Senate, 3rd Cong., 2nd Sess.; 4th Cong.; 5th Cong.

On the 24th of February, 1797, Congress passed a joint resolution requesting the President to ascertain what States had ratified the Eleventh Amendment (Annals, 1796-1797, 2284). On the 12th of October, President Adams wrote to Pickering, Secretary of State:

"There is a law, or resolve, requesting the President to write to the governors of the States for information whether they have adopted the amendment to the Constitution relative to the suability of States. I know not but you may have executed this resolution; if not, I beg you would write without loss of time, lest a noise should be made at the opening of the next session, and we should be charged with neglect of duty."

Life and Works of John Adams, VIII, 552.

1 Hans vs. Louisiana, 134 U. S. 1. (1889).

THE COURT OVERRULED.

293

amendment, expressing the will of the ultimate sovereignty of the whole country, superior to all legislatures and courts, actually reversed the decision of the Supreme Court. It did not in terms prohibit suits by individuals against the States but declared that the Constitution should not be construed to import any power to authorize the bringing of such suits. The Court itself so understood the effect of the amendment, for, after its adoption, Attorney-General Lee submitted this question to the Court,1 "whether the amendment did, or did not, supersede all suits against any one of the United States by citizens of another State?" Tilghman and Rawle argued in the negative, contending that the jurisdiction of the court was unimpaired in relation to all suits instituted previously to the adoption of the amendment. But on the succeeding day, the court delivered a unanimous opinion, "that the amendment being constitutionally adopted, there could not be exercised any jurisdiction, in any case, past or future, in which a State was sued by the citizens of another State, or by the citizens or subjects of any foreign State." Thus it may be said the Constitution was corrected, the Supreme Court overruled and brought into line with public opinion, and the ancient right of petition to the sovereign instead of a compulsory process was sustained as the proper remedy.

Whatever opinions may now be held of the basis of Iredell's opinion, that distinguished jurist, whom Washington had elevated to the bench after reading his speeches in the ratifying convention of North Carolina in support of the Constitution, holds the unique place in our history of rendering an opinion, and that a dissenting one, which speedily became the constitutional basis of the Democratic 1 Hollingsworth vs. Virginia, 3 Dall. 378. 2 Hans vs. Louisiana, 134 U. S., p. 1,

294

A MIXED GOVERNMENT.

party, and also was one of the principal causes leading to the adoption of an amendment to the constitution. If Hamilton and Marshall be accepted as expositors of the Constitution, Iredell's opinion expressed the original intention of its framers.

The debates in the Federal Convention show the difficulties which were encountered in determining the method of choosing the President.1 Here the Convention forsook State precedents, rejected the methods of earlier republics and, at last, after much revision of its first plan, adopted one resting entirely on political theory. The method followed by Maryland in choosing State senators by a body of special electors may have suggested the electoral college for choosing a President, but direct evidence that Maryland gave the precedent is slight and the two methods have little in common. The difficulty was to choose a national officer by federal methods. Had the new government been wholly federal, in its origin, scope and operation, an election by the State legislatures, as in case of Senators, was the proper method. Had the government been wholly national, the proper procedure was by a popular election. But being a mixed government, partly national and partly federal, the election of the executive was made in conformity with the fusion, and thus became a compromise. That the compromise gave general satisfaction is evident from the discussions and opinions of the ratifying period. "The mode of appointment of the Chief Magistrate of the United States," writes Hamilton in the Federalist, "is almost the only part of the system, of any consequence, which has escaped without severe censure, or which has received the slightest mark of approbation from its opponents." 2 Even Richard

1 See Vol. I, ante, pp. 324, 350, 364, 369, 446, 448, 452, 462, 463, 468, 546, 547, 563, 564, 570.

2 No. LXVIII.

OLD METHOD OF CHOOSING ELECTORS.

295

Henry Lee, the most zealous and irreconcilable opponent of the Constitution, after pronouncing the Vice-President "not a very important, if not an unnecessary part of the system,―he may be a part of the Senate at one period, and act as the supreme executive magistrate at another," added, "The election of this officer, as well as of the President of the United States seems to be properly secured.” 1

The Constitution provided that the electors should meet in their respective States and vote by ballot for two persons, of whom one, at least, should not be an inhabitant of the same State with themselves. They made out a list of all persons voted for, and of the number of votes for each, and sent this, sealed and certified, to the capital, directed to the President of the Senate. In the presence of both Houses, this officer opened all the certificates and the votes were then counted. The person having the greatest number of votes was thereby President, if the number was a majority of the whole number of electors. If more than one person had a majority, and an equal number of votes, the House of Representatives should immediately, by ballot, choose one of them for President. If no person had a majority, then, from the five highest on the list, the House, in like manner, should choose the President; but in choosing him, the votes should be taken by States, the representation from each State having one vote. A quorum for this purpose should consist of a member, or members, from two-thirds of the States, and a majority of all the States was necessary for a choice. In every case, after the choice of President, the person having the greatest number of votes of the electors should be the Vice-President. If there remained two or more with

1 Letters of a Federal Farmer, III.

2 Art. II, 1: 3.

296

NO NOMINATIONS.

equal votes, the Senate should by ballot choose the VicePresident from them.

Here was no intimation of any nomination of candidates, either for President or Vice-President. The issue of an election was ever uncertain. There was no designation of the electoral vote, for either office. The end was reached by events almost accidental. Whatever the reasons that finally led the Convention to adopt this procedure, it may be assumed that the prospective power of party organization and of political alliances and schemes, did not weigh with the members as factors likely to deflect the electoral choice from fit characters for the two offices. It is not strange that Lee, and other opponents of the Constitution, pronounced the Vice-President a superfluous officer. The Convention imposed great confidence in the stability of the presidential electors. No hint of collusion among them, or of bargain and corruption is suggested in the debates. The choice of the Chief Magistrate was to be a federal act. Each State should appoint its electors. A choice by the people, though advocated by Wilson, was never seriously considered by the Convention. The electors acted for the States and were to give the people a President and a Vice-President. In case two persons received, each, a majority and the same number of votes, the House, voting by States, should elect the President, and if there remained two with equal votes, the Senate, a federal body, should elect the Vice-President. Thus, whether the electors, or the House chose the President, the act was a federal act. When an election proceeded in, what may be termed, the usual way, the Vice-President was chosen, as it were, by remainder, or ex officio: as he might have been President, and the person, made President, might have become Vice-President, by the change of a few votes. When the choice of President