four years. And a President chosen for twenty years ought not to be again eligible, upon the plain ground that by such a term of office his responsibility would be greatly diminished, and his means of influence and patronage greatly increased, so as to check in a great measure the just expression of public opinion, and the free exercise of the elective franchise. Whether an intermediate period, say of eight years, or of seven years, as proposed in the Convention, might not be beneficially combined with subsequent ineligibility, is a point upon which great statesmen have not been agreed, and must be left to the wisdom of future legislators to weigh and decide. The inconvenience of such frequently-recurring elections of the chief magistrate, by generating factions, combining intrigues, and agitating the public mind, seems not hitherto to have attracted as much attention as it deserves. One of two evils may possibly occur from this source; either a constant state of excitement, which will prevent the fair operation of the measures of an Administration; or a growing indifference to the election, both on the part of candidates and the people, which will surrender it practically into the hands of the selfish, the office-seekers, and the unprincipled devotees of power. It has been justly remarked by Mr. Chancellor Kent, that the election of a supreme executive magistrate for a whole nation affects so many interests, addresses itself so strongly to popular passions, and holds out such powerful temptations to ambition that it necessarily becomes a strong trial to public virtue, and even hazardous to the public tranquillity."*

* § 1449.

The mode of election for the President and vice-President, originally adopted, and continued until the amendment of the Constitution in that particular in 1804, was (by art. 2, sect. 1) by electors specially appointed for that purpose by the Legislature of each State (in number equal to the number of the senators and representatives of each State), who were to conduct the election in the manner pointed out in that article. The votes of these "electoral colleges" were directed to be transmitted to the seat of the national Government, to be counted in the presence of both Houses, and the result declared. The person having a majority of the whole number of votes was to be President. But if no one of the candidates had such a majority, then the House of Representatives, the popular branch of the Government, was to elect from the five highest on the list the person whom they might deem best qualified for the office, each State having one vote in the choice.* The person having the next highest number of votes was to be vice-president. If * § 1454.

two or more had equal votes, the Senate was to choose the vice-president.

On this mode of election Mr. Justice Story observes, that the principal difficulty that had been felt on the subject was—

"The constant tendency, from the number of candidates, to bring the choice into the House of Representatives. This has already occurred twice in the progress of the Government, and in the future there is every probability of a far more frequent occurrence. This was early foreseen; and even in one of the State conventions, a most distinguished statesman, and one of the framers of the Constitution, admitted that it would probably be found impracticable to elect a President by the immediate suffrages of the people; and that in so large a country many persons would probably be voted for, and that the lowest of the five highest on the list might not have an inconsiderable number of votes. It cannot escape the discernment of any attentive observer, that if the House of Representatives is often to choose a President, the choice will, or at least may, be, by many motives independent of his merits and qualifications. There is danger that intrigue and cabal may mix with the rivalries and strife. And the discords, if not the corruptions generated by the occasion, will probably long outlive the immediate choice, and scatter their pestilential influences over all the great interests of the country. One fearful crisis was passed in the choice of Mr. Jefferson over his competitor Mr. Burr in 1801, which threatened a dissolution of the Govern

ment, and put the issue upon the tried patriotism of one or two individuals, who yielded from a sense of duty their preference of the candidate generally supported by their friends."*

The issue of this contest of 1801 gave rise to the amendment of the Constitution in 1804, above adverted to

"Materially changing the mode of the election of President. In the first place, it provides that the ballots of

* § 1464. Mr. Justice Story here adds in a note, "Allusion is here especially made to the late Mr. Bayard, who held the vote of Delaware, and who, by his final vote in favour of Mr. Jefferson, decided the election. It was remarked at the time, that in the election of Mr. Jefferson, in 1801 (which was made by the House of Representatives in consequence of none of the candidates having a majority of the whole number of voters), the votes of two or three States were held by persons who soon afterwards received office from him. The circumstance is spoken of in positive terms by Mr. Bayard, in his celebrated speech on the Judiciary in 1802. Mr. Bayard did not make it matter of accusation against Mr. Jefferson, as founded on corrupt bargaining, nor has any such charge been subsequently made. The fact is here stated merely to show how peculiarly delicate the exercise of such functions necessarily is; and how difficult it may be, even for the most exalted and pure Executive, to escape suspicion or reproach, when he is not chosen directly by the people. Similar suggestions will scarcely fail of being made, whenever a distinguished representative obtains office after an election of President, to which he has contributed."

the electors shall be separately given for President and vice-president, instead of one ballot for two persons as President; that the vice-president, like the President, shall be chosen by a majority of the whole number of electors appointed; that the number of candidates out of whom the election of President is to be made by the House of Representatives, shall be three instead of five; that the Senate shall choose the vice-president from the two highest numbers on the list; and that if no choice is made of President before the 4th of March following, the vice-president shall act as president."*

Upon this amendment Mr. Justice Story remarks, that it

66

Has alternately been the subject of praise and blame, and experience alone can decide whether the changes are for the better or the worse."t

And to the same effect are the observations of Mr. Justice Kent in his "Commentaries"

"The election of 1801 threatened the tranquillity of the Union; and the difficulty that occurred in that case in producing a constitutional choice, led to the amendment of the Constitution on this subject; but whether the amendment be for better or for worse, may be well doubted, and remains yet to be settled by the lights of experience." One of the principal reasons which weighed * § 1466.

+ § 1468.

Vol. i. p. 279.