ART. II.-Memoir of Chief Justice Taney. By Samuel Tyler, LL. D. Baltimore: John Murphy & Co.

(Concluded from our last.)

Another reform for which we are indebted to General Jackson, is the convention system,' by which the election of President is taken from the hands where the Constitution placed it. He professed to wish it transferred to the people, but in fact he transferred it to the office-holders and the office-seekers. In the Convention which framed the Constitution, when the struggle as to the form of government had been ended by the rejection of the proposition to make it 'national,' the next subject which occupied its attention was the relative weight which the large and small States should have in the new confederation. The Legislative Department was adjusted, though not without much difficulty. The bi-cameral form being adopted, numbers were allowed to predominate in one house, which satisfied the large States, and the small were compensated by being secured by equality of representation in the other. As to the Judicial Department, the matter was easily settled after that of the Executive had been arranged. As to the latter, the difficulty was great, and at one time caused serious apprehensions that it could not be surmounted, in which event no Constitution could have been formed. Had it been provided that the vote for President should be by States, Rhode Island and Delaware, with but four hundred thousand population, would have double the power in a Presidential election of New York, with four millions. For the purpose of illustration, we will suppose these three States only to have been in the Convention, and the government, of course, to have been intended for them alone. To this proposition New York would naturally have said, and with apparent reason, 'I have ten times your population, and ten times your wealth; ten times your risk in war, and ten times your burden in peace; I should, therefore, have ten times your weight in the government proposed

to be formed. In the legislative department I have compromised this reasonable claim, and yielded to each of you perfect equality in one house, only securing to myself my just influence in the other. The President and Senate are to be vested with the power to appoint all officers of our common government, and to make treaties. You have unjust weight in the Senate. It is but fair that my influence should preponderate in the executive department.'

We may imagine the small States to have answered: All this looks fair and plausible. Your premises, however, are wrong, and your conclusions necessarily so, though logically deduced. We have already decided not to consolidate the States, but only to make our union more perfect. It is to be a union of States. It is we, therefore, who have yielded our just claims in allowing numbers to prevail in one House, not you in recognizing our equality in the other. Having conceded this, we are willing to apply the same principle in organizing the Executive, but we can go no further. It is true that we have in the Senate an equal voice with you in passing laws, but the Executive, in the appointment of officers and the formation of treaties, alone can take the initiative, we having power only as to ratification or rejection. He is to receive ambassadors, and the peace or prosperity of the country may depend upon his intercourse with the representatives of foreign States. He is to be commander of our army and navy, and to exercise all executive functions. We claim an equal voice in the appointment of the agency which is to perform these important trusts.'

At this point the Convention for a time came to a dead lock. Wise and patriotic counsels at last prevailed, and another compromise was made, the substance of which was that the large States should nominate in the Electoral College and the small elect in the House of Representatives. That was the effect, though stated in another form. Each State was to have as many votes in the Electoral College as she had Senators and Representatives. These electors were to be 'appointed by the State,' not elected, in such manner as the Legislature should 'direct.' It will be seen, therefore, that

the election of President was one with which the people were to have no immediate concern whatever. It was removed as far as possible from them, even farther than the choice of Senators. The Legislatures might each make provision for the 'appointment' of electors for President, but they could not vote directly for that officer as they did for Senators. However appointed, the electors were to vote by ballot, so that each might exercise his individual judgment without responsibility, save to God and his own conscience. The voting was to take place in each State on the same day, to prevent caballing or intrigue. Under these circumstances, it was supposed by the Fathers' that an election would seldom, if ever, take place in the Electoral College; failing there, it was to go into the House, where each State was to have one vote-but the States were restricted in choice to the five who had received the highest votes in the College. The number named shows that it was the opinion of the Convention, that an election by the College was highly improbable. Electors unpledged to any one; appointed, in such manner as each Legislature should direct,' for their integrity and intelligence; voting, each upon his own judgment, for the man he thought best qualified; all voting on the same day in their different States, and each voting by ballot, so that his vote could not be known. Hence they were not likely to unite on any one man, unless there should be in the country a greater dearth of talent than could reasonably be expected. It will thus be seen that it was anticipated that the vote in the College would practically amount only to a nomination of five eminent men, from whom the President was to be chosen in the House. In the College numbers were to have great weight, but not their full weight. Even in this nominating body much was yielded to that equality which exists between sovereigns, however unequal in power. Delaware, at present, with but one hundred thousand inhabitants, has three votes in the College, whereas New York, with four millions, has but thirty-five. If numbers alone counted, New York would have one hundred and twenty votes to balance the three of Delaware. In the event of the election failing in the College, as it was sup

posed it would do, numbers were utterly ignored and repudiated. Each State, whatever her population, had one vote, and one only. Such was the compromise between the States when they came to form the Union, and without which no Union could have been formed. Is this compromise unjust, and, therefore, to be done away with, and set aside per fas aut per nefas? Who has a right to pronounce upon its justice or its injustice? The States which formed the Union made it, and, if they see fit, can unmake it. Till it is annulled no President can be constitutionally elected except in the manner prescribed, and any subterfuge, by which that manner is evaded, is not less revolutionary and subversive of the Constitution, because it can be practised with impunity. But it is said to be anti-Democratic, because it ignores the power of majorities to rule. By what process of reasoning is the conclusion reached that the States intended to establish a Democracy when they ratified the Constitution? If by Democracy the right of the majority to rule be meant, we answer that every act of the Convention, and every article, section, and clause of the Constitution, repels the idea. In no provision is this more manifest than in the one under consideration. In every part and parcel of it the fact is apparent, and plainly to be seen, that the officer who was to exercise the executive powers of the Government then about to be formed, was to be the President of States. He was to be called President of the United States.' There is no room for quibbling here about the phrase 'people of the United States,' as has been absurdly done where these words occur in the preamble to the Constitution. The machinery by which he is to be elected is to be provided by the States through their Legislatures respectively. If impeached, he is to be tried by the Representatives of the States in the Senate of the United States, the members of which are elected by the Legislatures of the States. Between him and the people there is no connection whatsoever. He is neither elected by them, nor is he responsible to them. He is essentially the officer and representative of the States as States. He may be elected by States representing a small minority of the people, and dismissed from office by States, through their

representatives in the Senate, against the wishes of a large majority of the people. Being Commander-in-Chief of the Army and Navy, and having the exclusive right to nominate all the officers of both; having exclusive control of the management of the foreign relations of the States, having the exclusive right to negotiate treaties, to be submitted to the Senate for ratification, and to nominate ambassadors to represent the States at foreign courts, and officers to exercise the judicial power, it was thought best that he should be as far removed from the influence of popular passion and prejudice and party bias as possible. Hence, he was to know the people, be known by them, and be responsible to them, only through their organized governments-State and Federal.

Not thus thought General Jackson, as will appear from his message, advising an amendment to the Constitution: To the people belongs,' says he, 'the right of electing their Chief Magistrate; it was never designed that their choice should in any case be defeated, either by the introduction of electoral colleges or by the agency confided under certain contingencies to the House of Representatives. Experience proves that in proportion as agents to execute the will of the people are multiplied there is danger of their wishes being frustrated. Some may be unfaithful-all are liable to err. So far, therefore, as the people can with convenience speak it, it is safer for them to express their own will.' The number of aspirants to the Presidency, and the diversity of the interests which may influence their claims, leave little reason to expect a choice in the first instance, and in that event the election must devolve on the House of Representatives, where it is obvious the will of the people may not be always ascertained, or if ascertained, may not be regarded. From the mode of voting by States, the choice is to be made by twenty-four votes, and it may often occur that one of these may be controlled by an individual Representative. Honors and offices are at the disposal of the successful candidate. Repeated balloting may make it appear that a single individual holds the cast in his hand. May he not be tempted to name his reward? But even without corruption-supposing the probity of the Re