IX. In Virginia the ballot of both houses was taken in CHAP. each house respectively, and the boxes examined jointly by a committee of each house. In Massachusetts 1787. Sept. the whole work was done by the senators and repre- 6. sentatives assembled in one room. On this point, therefore, and on this point only, there was need of a special regulation; and, accordingly, the constitution enjoined the counting of the votes in the presence of the senate and house of representatives after the manner of Massachusetts." The language 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 CHAP. action. No power whatever over the counting of the IX. votes is devolved on the house of representatives or on 1787. the senate; whatever is granted is granted to the two Sept. 6. 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 arrival at the election of a president can be surveyed. The convention at first reluctantly conferred that office on the national legislature; and to prevent the possi bility 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 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 popula tion of the states, and should meet at the seat of gov ernment. 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 govern ment. 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 certifi cates of the votes to a branch of the general legis IX. Sept. lature at the seat of government; and then it re- CHAP. stored to the two houses in presence of each other the same office of counting the collected certificates 1787. which they would have performed had the whole duty 6. of choosing the president remained with them. 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.' 1 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 kind ness of Miss Sarah Nicholas Ran- The question as voted upon in The person CHAP. IX. The almost certain election of the vice-president was secured by declaring the candidate having the 1787. 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. Sept. 6. 7. 1 "Such an officer as vice-president," said Williamson, "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 who counted the first votes for On any pretence of a right in Edmunds, 20 Nov., 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. Gilpin, 1517; Elliot, 522. IX. the president still engaged the untiring efforts of the CHAP. convention, it proceeded in the ascertainment of his powers. His style was declared to be "the President 1787. Sept. of the United States of America;" the clause that his 7. 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 preroga tive to convene them, or to convene the senate alone. Wilson was most apprehensive that the legislature, Aug. by swallowing up all the other powers, would lead to a dissolution of the government; no adequate selfdefensive 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." 15. 10. At the instance of Williamson and Randolph, the Sept. convention at first required three fourths of each house to overrule his dissent to a bill, or a joint resolution; but a two thirds vote was now held sufficient after the plan for choosing the president by electors was definitely settled.* 1 Gilpin, 1836, 1337; Elliot, 430. 2 Gilpin, 1335; Elliot, 429." 4 * Gilpin, 1337, 1338; Elliot, 431. Gilpin, 1564, 1565; Elliot, 538. |