the senate and house of representatives after the manner of Massachusetts.* The language of this clause of the constitution is a concise, clear, and imperative command: "The votes shall then be counted." The convention is left with no one but itself to interpret its duties and prescribe its rules of action. No power whatever over the counting of the votes is devolved on the house of representatives or on the senate; whatever is granted is granted to the two houses "in the presence of" each other; representing the states and the people according to the compromise adopted for the electoral colleges. And now the whole line of march to the mode of the election of the president can be surveyed. The convention at first reluctantly conferred that office on the national legislature; and to prevent the possibility of failure by a negative of one house on the other, to the legislature voting in joint ballot. To escape from danger of cabal and corruption, it next transferred full and final power of choice to an electoral college * Constitution of VIRGINIA, of 1776. B. P. Poore's edition, 1910, 1911. A governor, or chief magistrate, shall be chosen annually by joint ballot of both houses (to be taken in each house respectively) deposited in the conference room; the boxes examined jointly by a committee of each house, and the numbers severally reported to them that the appointments may be entered (which shall be the mode of taking the joint ballot of both houses, in all cases). . . . ... A privy council, or council of state, consisting of eight members, shall be chosen by joint ballot of both houses of assembly. The delegates for Virginia to the continental congress shall be chosen annually, or superseded in the mean time, by joint ballot of both houses of assembly. The two houses of assembly shall, by joint ballot, appoint judges of the supreme court of appeals, and general court, judges in chancery, judges of admiralty, secretary, and the attorney-general, to be commissioned by the governor, and continue in office during good behavior. Constitution of MASSACHUSETTS, of 1780. B. P. Poore's edition, 967, 969. Ch. II., Art. II. Nine councillors shall be annually chosen from among the persons returned for councillors and senators, on the last Wednesday in May, by the joint ballot of the senators and representatives assembled in one room. Ch. II., Art. I. The secretary, treasurer, and receiver-general, and the commissary-general, notaries public, and naval officers, shall be chosen annually, by joint ballot of the senators and representatives, in one room. Ch. IV. The delegates of this commonwealth to the congress of the United States shall, some time in the month of June, annually, be elected by the joint ballot of the senate and house of representatives assembled together in one room. that should be the exact counterpart of the joint convention of the two houses in the representation of the states as units, as well as the population of the states, and should meet at the seat of government. Then, fearing that so large a number of men would not travel to the seat of government for that single purpose, or might be hindered on the way, they most reluctantly went back to the choice of the president by the two houses in joint convention. At this moment the thought arose that the electors might cast their votes in their own several states, and transmit the certificates of their ballots to the seat of government. Accordingly, the work of electing a president was divided; the convention removed the act of voting from the joint session of the two houses to electoral colleges in the several states, the act of voting to be followed by the transmission of authenticated certificates of the votes to a branch of the general legislature at the seat of government; and then it restored to the two houses in presence of each other the same office of counting the collected certificates which they would have performed had the choice remained with the two houses of the legislature. Should no one have a majority, the eventual election of the president, to satisfy the rising jealousy of the prerogatives of the senate, was assigned to the house of representatives, and, to please the small states, to the representatives voting by states. And the house of representatives was in the clearest language ordered "immediately" to choose by ballot one of two, when their vote was equal, one of five where no person had a majority. In this way a collision between the two houses, by a negative vote of one on the other, was completely guarded against in every stage of the procedure.* * When, thirteen years later, this clause came up for consideration, Madison and Baldwin, two surviving members of the grand committee to whom the federal convention had referred everything relating to the choice of the president, left on record their interpretation of the clause. For the opinion of Madison, see Madison to Jefferson, 4 April 1800, in writings of Madison, ii., 158, where the name "Nicholson's" is erroneously printed for "Nicholas's," as appears from a comparison which has been made of the printed letter with the original. The opinion of Baldwin is found in "Counting Electoral Votes," page 19. Baldwin gives his vote with Langdon and Pinckney, both of whom had been members of the federal convention, for the right of the joint convention to count the votes. By the kindness of Miss Sarah Nicholas Randolph, granddaughter of Governor Wilson Cary Nicholas of Virginia, and great-granddaughter of Thomas Jefferson, I have been al The almost certain election of the vice-president was secured by declaring the candidate having the most votes to be duly elected. In the extremely improbable case, that two persons. should lead all the candidates with an exactly equal number of votes, the election was to devolve on the senate. * "Such an officer as vice-president," said Williamson on the seventh, "is not wanted." To make an excuse for his existence, the convention decreed that he should be president of the senate. "That," said Mason, "is an encroachment on the senate's rights; and, moreover, it mixes too much the legislative and the executive." It was seen that the vice-president brings to the chair of the senate the dignity of one of the two highest officers in the land chosen by the whole country; and yet that he can have no real influence in a body upon which he is imposed by an extraneous vote. That the vice-president should, in the event of a vacancy, act as president, prevents the need of a new election before the end of the regular term; but an immediate appeal to the people might give a later and truer expression of its wishes. While the method to be adopted for the election of the president still engaged the untiring efforts of the convention, it proceeded in the ascertainment of his powers. His style was lowed to take from the holograph of Jefferson a copy of his paper on this subject, written by him for the use of W. C. Nicholas when senator from Virginia in congress in 1800. The question as voted upon in congress in 1800 was decided not by any bearing on the selection of Jefferson or Burr for the presidency, for the party opposed to Jefferson had a majority in each branch, but on the unwillingness of the senate to give to the house of representatives superior weight in the decision of elections. Jefferson, iv., 322. The vice-president was never charged with the power to count the votes. The person who counted the first votes for president and vicepresident was no vice-president, but a senator elected by the senate as its presiding officer for that act under a special authority conferred by the constitution for that one occasion when the constitution was to be set in motion. On any pretence of a right in the vice-president to count the votes, compare the words spoken in the senate by Senator Conkling, 23 and 24 January 1877, and Senator Edmunds, 20 November 1877. The laws of historical criticism require the historian to study the words of the state constitutions from which the article in the United States constitution is taken, and the practice of the state legislatures of that day under the original articles in the state constitutions; and these must decide on the right interpretation of the language employed in the constitution of the United States. *Gilpin, 1517; Elliot, 522. declared to be "the President of the United States of America;" the clause that his title should be "His Excellency" was still suffered to linger in the draft. He was to be the minister to carry out the will of the legislature, and see that the laws are executed. It was made his duty to give information of the state of the union; and to recommend necessary and expedient measures. He could not prorogue the two branches of the legislature nor either of them; nor appeal to the people by dissolving them. They alone had the power to adjourn; but on extraordinary occasions to him belonged the prerogative to convene them, or to convene the senate alone. Wilson was most apprehensive that the legislature, by swallowing up all the other powers, would lead to a dissolution of the government, no adequate self-defensive power having been granted either to the executive or judicial department.* To strengthen the president and raise a strong barrier against rash legislation, Gouverneur Morris would have granted the president a qualified veto on the repeal of a law, an absolute veto on every act of legislation.+ In June the convention had agreed that the veto of the president on an act of congress could be overruled by two thirds of each house; on the fifteenth of August, at the instance of Williamson, it was agreed that the veto of the president could be overruled only by three fourths of each branch of congress, and on the next day the same rule was applied to every order, resolution, or vote to which the concurrence of the two houses might be necessary, except it were a question of adjournment.‡ Sherman, on the twenty-fifth of August, had proposed that pardons should require the consent of the senate; but no state except his own was willing thus to restrict the clemency of the president.# All agreed that he should be commander-in-chief of the army and the navy; but, on the twenty-seventh of August, at Sherman's instance, he was to command the militia only when it should be called into the actual service of the United States. The men who made the constitution had taken to heart the *Gilpin, 1336, 1837; Elliot, 430. Gilpin, 1334; Elliot, 429. Gilpin, 1337, 1338; Elliot, 431. #Gilpin, 1433; Elliot, 480. . lesson that the three great powers-legislative, judicial, and executive-should be lodged in different hands. "Executing the laws and appointing officers not appertaining to and appointed by the legislature," Wilson had said, so early as the first of June," are strictly executive powers."* Yet it seemed needful to keep watch over the president, and Gerry and Sherman had favored the appointment of an executive council. Charles Pinckney wished the president to consult the heads of the principal departments.# "A superfluous proposition," said Hamilton, "for the president will at any rate have that right." Mercer, on the fourteenth of August, suggested "a council composed of members of both houses of the legislature to stand between the aristocracy and the executive." But the thought did not take root. The convention was anxious to reconcile a discreet watchfulness over the executive with his independence. In August Ellsworth had recommended a council to be composed of the president of the senate, the chief justice, and the ministers, or secretaries as Gouverneur Morris named them, of the foreign, the interior, war, treasury, and navy departments, " to advise, but not conclude the president." A Gerry pronounced the nomination of the chief justice particularly exceptionable. ◊ Dickinson urged that the great appointments of the heads of departments should be made by the legislature, in which case they might properly be consulted by the executive. The elaborate plan of a council of state which Gouverneur Morris proposed on the twentieth differed from that of Ellsworth mainly in its exclusion of the president of the senate. The persistent convention next consulted its committee of detail, which on the twenty-second reported: that "the privy council of the president of the United States shall consist of the president of the senate, the speaker of the house of representatives, the chief justice of the supreme court, and the principal officer in each of five departments as they shall from time to time be established; their duty shall be to advise him in * Gilpin, 763; Elliot, 141. Gilpin, 782; Elliot, 150. A Gilpin, 1318; Elliot, 421. Gilpin, 1358, 1359; Elliot, 442. |