legitimate aspect of the business. The newcomers were not immigrants, in that they had to make no change in sovereign allegiance, but were settlers or colonists, expanding the realm of their sovereign.

The English Kings reigned under the monarchical principle, which, at the time of the Separation of the Colonies from Great Britain, had developed into a hereditary right of the eldest son, the Crown Prince, to succeed to the throne. In a much closer way than many might admit, the title of king may be compared to the Constitutional powers of the office of President of the United States.

In the early Middle Ages, beginning with the Fifth Century, the monarchical principle among the Germanic peoples meant that the kin-right of families made the members eligible for election as king. Once elected, the king had a divine right to rule. He had the divine sanction by his birth and the peoples' sanction by election. Much, much later this hereditary right to be among those elegible for election to kingship became a hereditary right of a son to succeed. But this did not increase the powers of the king. For the king was under the law.

The purpose of this brief inquiry is to show that the Chief Executives, in our earliest heritage, more than fifteen centuries ago, were beneath the Law. What follows is from a magnificent work of Professor Fritz Kern, "Kingship and Law In the Middle Ages." This work was translated from the German by Professor S. B. Chrimes, of the University of Glasgow, who also contributed an Introduction.

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Professor Chimes says, "We are encouraged to believe that the origins and foundations of our (English) Constitution were as peculiar to England as its later developments, which is not the case" (p. xiii).

The fuller view, which unfolds the relation of the powers of Germanic kings in the Middle Ages with those of our President in the Twentieth Century, is stated thus, by Professor Kern:

"A. The rights of the monarchy were derived not only from the king's independent, hereditary and divinely endowed title, but also from an act of the community-from kin-right and consecration on the one hand, and from popular election on the other.

"B. The monarch is above the community, but the law is above the monarch. In the language of the Germanic peoples, this means that, although the promulgation and enforcement of the law belongs to the king, the declaration of what the law is belongs to the community * * *

"C. If the theoretical limits of autocracy are clearly defined in this way, it is none the less true that the sovereignty of the people is excluded. The people participate in the appointment of the king, but the monarch's power is not simply a mandate conferred on him by the community. The people share in making the law, which is above the king *** whilst from the standpoint of Germanic law, the people lack the essential constituent of sovereign power to enforce the law *** Neither the rule of a monarch whose powers were limited by law, nor the active legislative cooperation of the community * was regarded as 'sovereign' in the modern sense. Sovereignty, if it existed at all, ruled over both king and community."

The law which the Germanic kings promulgated and enforced existed long before they came to power, for "* * * medieval law must be 'old' law and must be 'good' law *** If law were not old and good law, it was not law at all, even though it were formally enacted by the State." Today, we would call such a law "unconstitutional."

But to go on with the medieval thought: "The fundamental idea remains the same: the old law is the true law. According to medieval ideas, therefore, the enactment of new law is not possible at all; and all legislation and legal reform is conceived of as the restoration of the good old law which has been violated." * * * Right and law are restored as they had been in the good old days of King Eric (in Sweden), of Edward the Confessor (in Anglo-Norman England), of Charles the Great (among the French and Germans, or of some mythical law-giver.)

There were three degrees of popular participation in the medieval monarchies of the Germanic peoples: "The first is tacit consent, here the king acts formally alone, and so 'absolutely' in form but not in substance. The second degree is advice and consent; the third the judicial verdict."

"Kingship and Law," by Fritz Kern, professor in the University of Bonn. (Oxford, England: Basil Blackwell).

With us, the President acts "formally and alone" in executing the powers of his office; he acts with the “advice and consent" of the Senate in making appointments and in ratifying treaties. But our independent courts render the judicial verdict. All of these are functions of the delegated sovereign powers of the Constitution.

During the Sixteenth Century, Roman Law was "received" in the Germanic countries of continental Europe as the basic law of the land and gave strength to the doctrine of Divine Right of Kings and of "absolutism." Now that the kings have departed, these political ideas are the basis of the totalitarian state. Roman Law was not "received" in England. English lawyers and judges were able to withstand the invasion and keep their kings under the law.

The "old and good law" above is with us today as the "common law," unwritten but vital. It was brought to England by the Anglo-Saxons and brought to North America by English colonists, where it became the basis of the Constitution of the United States. With us, the functions of declaring the law and enforcing the law have been divided-as to objects-between the States and the Federal Government; and in each they have been sub-divided with appropriate powers among the Executive, Legislative and Judicial functions of declaring the law.

Although we have separated the Executive and Legislative powers (functions), they are closely related; for the President shares the Legislative Power to the extent of one-sixth of the Senators and one-sixth of the Representatives, when he disapproves an act of Congress. In fact, for a harmonious relationship, the Executive and the Legislative Powers should have the same political roots, the same base, the same constituency, as was intended when the Founding Fathers, in order to separate the Executive and Legislative Powers at the source, removed the election of the President from a joint session of the Senate and House of Representatives and lodged it in a body of Electors that was the exact counterpart of a joint session of the Congress.

My discussion of law and the ancient powers of the king to declare and enforce it is merely to show that these functions of sovereignty are naturally divisible and ought to be separated as we have separated them. And, also, to show that they are closely related and should derive their power of exercise, election to office, in exactly the same manner. This requires a closer relationship between the election of the President, through Presidential Electors, and the election of the whole Congress.

United States Senators are elected statewide, two in each State; the "Senatorial" Electors are and should be elected in exactly the same way. As for the 435 Electors, which correspond to the 435 members of the House of Representatives, they should be elected in Congressional Districts, or constituencies. This minor change from the present practice of statewide, en bloc election, would bring about the ideal way of electing the President of the United States.

If the "Representative" Electors are to continue to be elected statewide, as they now are, we should bring the elective basis of the Congress into alignment with that of the White House and elect all of each State's Representatives atlarge, or statewide, as Senators are elected. For here balance is essential to the ideal, because of the formal separation of two distinctly separate but intimately related functions in the declaration of the law.

The powers of the many established elective offices under the United States and the States have long been fixed. But, overwhelmingly, the persons who fill these offices come to them through the mill of politics, which is as it should be. For, politics is the noblest calling of mankind, even though many active participants do not quite measure up to the standard:

"To gain power, to keep it, and to govern-these are the special business of a politician, just as it is a working bee's business to make honeycomb and honey. But we are entitled to ask-how did he gain power? how did he keep it? what did he do with it when he had it? And the answers to these questions are always mixed up with morals." 5

Our party system is one of legally organized parties in the States and under state law. While our so-called national parties are lawful, they are extra-legal, in that they are not provided for by Federal law. National party conventions are but the coming together, under rules of their own making, of delegates from the legally constituted state parties. The State delegations, chosen in the States

Frederick Scott Oliver, "The Endless Adventure" (London: Macmillan and Co., Ltd., 1931), pp. 31-32.

in a variety of ways, are based numerically on the representation of the States in Congress, with bonuses for party achievement, and penalties for singular failure to achieve, in the most recent election.

The power of these state delegations in the conventions are not very closely related to the numbers of delegates involved, but to the political conditions in the respective States. The thing to be done is to nominate candidates for President who can be elected. Nothing is more natural than that the convention delegates from the large, doubtful and pivotal States should have the decisive voice as to the candidate most likely to carry those States. And, remember that there is doubt that any candidate other than their choice can carry a State, a State so necessary to party success that defeat is certain if it is lost. Such a State is the pivot on which turns the election of the President of the United States.

My own State of New York is such a State in the Republican scheme of things. No Republican President has been elected without its electoral vote. Of its importance in the national conventions of both parties, the late Charles D. Hilles, who served as a New York member of the Republican National Committee for twenty years, and who moved in the inner-circle of the party leadership for even more years, could speak with authority based on experience. Mr. Hilles has said:

"New York's power in political conventions, and therefore over the White House, comes not from the size of its delegations in the party National Conventions, which are roughly ten per cent in both instances. New York's power comes from the fact that its delegations represent 47 (now 45) electoral votes, or nearly twenty per cent of the total number needed to elect a President. It is this little understood fact that accounts for the almost invariable selection of Presidential nominees from New York or some other large state in sympathy with New York's political attitudes. But New York decides even that." [Emphasis supplied].

A proposed Constitutional Amendment to require that Electors of the President and Vice President be elected in the same manner as their counterparts in the Congress (Senators and Representatives) is pending in the Congress. Senator Karl Mundt of South Dakota is sponsoring it in the Senate and I am sponsoring it in the House. Its effect, if adopted, will be to divide each State's weight in selecting the President on exactly the same political basis as it is now divided in the selection of the members of Congress. Again, the political base of the Executive Power would be the same as the political base of the Legislative Power.

A secondary effect, but equally important, would be on the conduct of party nominating conventions. No longer would there be large, doubtful and pivotal States. All states would be equal with respect to their two "Senatorial" Electors; and the "Representative" Electors would be divisible among the parties according to their strength in the Congressional Districts.

Not only does the Mundt-Coudert Amendment provide an ideal method of selecting the President, it restores political balance between the White House and the Congress; and it is both simple and practical. There is no novel idea or principle in it that might unbalance our Constitutional system. It is electoral reform in the best sense, a mere rearrangement of familiar things.

(The following is an excerpt from "Political Parties and Opinions, 1788-1930," found in Atlas of the Historical Geography of the United States, by Charles O. Paullin (1932):)

PRESIDENTIAL ELECTIONS, 1788-1928

[Plates 102-111]

In constructing a series of political maps it is self-evident that the materials upon which they are based should be as uniform as possible. This rule was observed in constructing the maps of this series, but unfortunately for some of the maps, chiefly the early ones, the materials are of considerable diversity. Uniformity in the vote illustrated is prevented by differences in the method of choosing electors, by the loss or the inaccesibility of some of the early returns, and by variations in the vote that is published (see below).

The maps of this series are of three classes: (1) maps showing the electoral vote for l'resident, 1789-1796; (2) maps showing the vote at Presidential and other elections, 1800-1816; and (3) maps showing the vote at Presidential elections, 1820-1928.

Character of Available Election Returns

For the first three elections 1788-1789, 1792, and 1796, the political statistics still in existence are too few and scattering to admit of the construction of maps based upon the vote of the people and of the legislatures for electors. The maps for these three elections are therefore based upon the vote of the Presidential electors. With a few exceptions in connection with the election of 1796 (see pp. 92-93, below) the vote that is mapped is by states.

For the five elections covering the years 1800-1816, owing to the loss or inaccessibility of some of the returns for Presidential elections, the returns of other elections were used to fill the gaps. The maps for these years are therefore based only in part, though chiefly, upon the vote at Presidential elections. With a few exceptions the vote that is mapped is the popular vote, by counties. The exceptions comprise a few cases in which the vote for Presidential electors of one or both houses of some of the state legislatures was used.

The maps covering the years 1820-1928 are based entirely upon the vote at Presidential elections. With a few exceptions they are based upon the popular vote, by counties. The exceptions comprise a few cases for the earlier part of the period in which the vote of one or both houses of the state legislatures was used.

A larger use of the votes of legislatures for electors was prevented by the lack of records giving the vote of each member of the legislature. New York is the only state for which such a vote was found. In several other states it was sometimes possible to ascertain the vote of the members by computation and comparison. According to the New York practice, the election of electors began with the nomination by each house of as many persons as there were electors to be appointed. The two houses then met in joint session and compared nominations. Those persons nominated by both houses were declared to be chosen electors. In case of a disagreement deficiencies were supplied by means of a joint ballot of the two houses (New York Statutes, Apr. 12 1792, Ch. 72; N. Y. Constitution of 1777, Section 30). For New York, during the years 1800-1824, the vote mapped is the first vote of the assembly nominating electors. By reason of the small number of counties in Delaware and of their political consistency the vote of the members of the legislature of the state could generally be ascertained. The vote of the legislatures when unanimous presented no difficulty.

The published statistics for Presidential elections, except in some recent state publications, do no give the vote for all the electors. They rarely state what vote they give. Comparisons show that as a rule they give the vote for the leading elector on each ticket-that is, the elector who received the mo votes in the state. Sometimes they give the vote for the first elector, who generally is the leading elector; sometimes the average vote for all the electors; and some times the vote for the leading elector in each county. The vote for electors at large is more likely to be given than that for other electors.

All the several kinds of votes found in the election statistics were used. As a rule no selection was possible. In recent years, however, when the vote for all the electors is occasionally given, close contests were sometimes decided by averaging the vote. Fortunately, the political complexion of a county was rarely changed by using one vote rather than another. It was the same whether derived

from the vote for the leading elector, the vote for the first elector, or the average vote.

When more than one return for the same election was accessible comparisons were often made with a view to correcting typographical or other errors. Occasionally, in the case of Texas and a few other states, when returns for a county were lacking, its habitual way of voting or the politics of the surrounding area was permitted to determine its political complexion, and the county was mapped accordingly. In general, however, counties for which there were no returns have been left blank. Returns for some of the minor parties, such as the Prohibition party, were sometimes less complete than was desirable; but is it believed that all cases in which minor parties carried a county have been discovered. Several of the minor parties have never carried a county.

Choice of Electors

In the early Presidential elections no uniform method of choosing electors was followed either in the several states or in any one state (with an exception or two). The three most usual methods were: (1) election by the legislature, (2) election by the people in districts, and (3) election by the people on a general ticket. Occasionally two of these methods were combined, as may be seen from the table below. By 1836 all the states except South Carolina, in which the election was by the legislature until the Civil War, had adopted the method that now prevails, that of a popular election on a general ticket. Since that year, with the exception given above, there have been but three instances of an election other than by general ticket. These are Florida in 1868 and Colorado in 1876, in which the elections were by the legislature; and Michigan in 1892, in which the election was by the people in districts, with the exception of two electors who were chosen at large. When the election is by districts the state is divided into electoral districts. Occasionally the electoral and Congressional districts of a state are identical, as was the case in New York in 1828. States in which the election was by general ticket were sometimes divided into districts, with a view to securing a geographical distribution of electors.

Table I, which gives the method of choosing electors during the years 1788-1836, has been compiled chiefly from state statutes and contemporary newspapers. Geographical Units Used in Constructing the Maps

With a few exceptions the geographical unit employed in constructing the maps for 1789-1796 was the state and in the maps for 1800-1928, the county (or parish, in Louisiana). In mapping the electoral vote for Maryland, Virginia, and North Carolina for 1796 the electoral district was used; and occasionally in mapping the popular vote for the years 1800-1828, when county returns were missing, the electoral or Congressional district was the unit employed. Occasionally the combined vote of some two or three counties, when it was impossible to separate their vote, was mapped.

The county is as a rule the best unit for political purposes. It is common to all the states (except Louisiana, in which the parish corresponds to the county in other states) and is the unit for which election statistics are usually recorded. In New England, however, the town is the more important political unit, but it cannot be shown on maps of small scale. Cities are often more important political units than the counties in which they are situated, but with two exceptions it was not feasible nor desirable to treat them separately from counties. The two exceptions are Baltimore after 1854 and St. Louis after 1876. As these two cities since those years have constituted urban areas distinct from the counties bearing the same names they have been treated separately from their corresponding counties. Boston was treated as a part of Suffolk County; New York, of New York County; Brooklyn, of Kings County: Philadelphia, of Philadelphia County; Baltimore, of Baltimore County for 1800-1852; Chicago, of Cook County; St. Louis, of St. Louis County for 1820-1876; and San Francisco, of San Francisco County. The Virginia cities that form distinct political divisions have been treated as a part of the counties to which they naturally belong.