The American Commonwealth. Viscount James Bryce

who have received the largest number of electoral votes. In the House the vote is taken by states, a majority of all the states (i.e., at present of twenty-five states out of forty-eight) being necessary for a choice. As all the members of the House from a state have but one collective vote, it follows that if they are equally divided among themselves, the vote of that state is lost. Supposing this to be the case in half the total number of states, or supposing the states so to scatter their votes that no candidate receives an absolute majority, then no president is chosen, and the vice-president (supposing one to have been chosen) becomes president.

      Only twice has the election gone to the House. In 1800, when the rule still prevailed that the candidate with the largest number of votes became president, and the candidate who came second vice-president, Jefferson and Aaron Burr received the same number. The Jeffersonian electors meant to make him president, but as they had also all voted for Burr, there was a tie. After a long struggle the House chose Jefferson. Feeling ran high, and had Jefferson been kept out by the votes of the Federalist party, who hated him more than Burr, his partisans might possibly have taken up arms.¹⁰ In 1824 Andrew Jackson had 99 electoral votes, and his three competitors (J. Q. Adams, Crawford, and Clay) 162 votes between them. The House chose J. Q. Adams by a vote of thirteen states against seven for Jackson and four for Crawford.¹¹ In this mode of choice, the popular will may be still less recognized than it is by the method of voting through presidential electors, for if the twenty-five smaller states were through their representatives in the House to vote for candidate A, and the twenty-three larger states for candidate B, A would be seated, though the population of the former set of states is, of course, very much below that of the latter.

      The Constitution seems, though its language is not explicit, to have intended to leave the counting of the votes to the president of the Senate (the vice-president of the United States); and in early days this officer superintended the count, and decided questions as to the admissibility of doubtful votes. However, Congress has in virtue of its right to be present at the counting assumed the further right of determining all questions which arise regarding the validity of electoral votes, and has, it need hardly be said, determined them on each occasion from party motives. This would be all very well were a decision by Congress always certain of attainment. But it often happens that one party has a majority in the Senate, another party in the House, and then, as the two houses vote separately and each differently from the other, a deadlock results. I must pass by the minute and often tedious controversies which have arisen on these matters. But one case deserves special mention, for it illustrates an ingrained and formidable weakness of the present electoral system.

      In 1876, Mr. Hayes was the Republican candidate for the presidency, Mr. Tilden the Democratic. The former carried his list of electors in seventeen states, whose aggregate electors numbered 163, and the latter carried his list also in 17 states, whose aggregate electors numbered 184. (As the total number of electors was then 369, 184 was within one of being a half of that number.) Four states remained out of the total thirty-eight, and in each of these four two sets of persons had been chosen by popular vote, each set claiming, on grounds too complicated to be here explained, to be the duly chosen electors from those states respectively.¹² The electoral votes of these four states amounted to twenty-two, so that if in any one of them the Democratic set of electors had been found to have been duly chosen, the Democrats would have secured a majority of electoral votes, whereas even if in all of them Republican electors had been chosen, the Republican electors would have had a majority of one only. In such circumstances the only course for the Republican leaders, as good party men, was to claim all these doubtful states. This they promptly did—party loyalty is the last virtue that deserts politicians—and the Democrats did the like.

      Meanwhile the electors met and voted in their respective states. In the four disputed states the two sets of electors met, voted, and sent up to Washington, from each of these four, double returns of the electoral votes. The result of the election evidently depended on the question which set of returns should be admitted as being the true and legal returns from the four states respectively. The excitement over the whole Union was intense, and the prospect of a peaceful settlement remote, for the Constitution appeared to provide no means of determining the legal questions involved. Congress, as remarked above, had in some previous instances assumed jurisdiction, but seeing that the Republicans had a majority in the Senate, and the Democrats in the House of Representatives, it was clear that the majority in one House would vote for admitting the Republican returns, the majority in the other for admitting the Democratic. Negotiations between the leaders at last arranged a method of escape. A statute was passed creating an electoral commission of five senators, five members of the House of Representatives, and five justices of the Supreme Court, who were to determine all questions as to the admissibility of electoral votes from states sending up double returns.¹³ Everything now turned on the composition of the electoral commission, a body such as had never before been created. The Senate appointed three Republicans and two Democrats. The House of Representatives appointed three Democrats and two Republicans. So far there was an exact balance. The statute had indicated four of the justices who were to sit, two Republicans and two Democrats, and had left these four to choose a fifth. This fifth was the odd man whose casting vote would turn the scale. The four justices chose a Republican justice, and this choice practically settled the result, for every vote given by the members of the commission was a strict party vote.¹⁴ They were nearly all lawyers, and had all taken an oath of impartiality. The legal questions were so difficult, and for the most part so novel, that it was possible for a sound lawyer and honest man to take in each case either the view for which the Republicans or that for which the Democrats contended. Still it is interesting to observe that the legal judgment of every commissioner happened to coincide with his party proclivities.¹⁵ All the points in dispute were settled by a vote of eight to seven in favour of the returns transmitted by the Republican electors in the four disputed states, and Mr. Hayes was accordingly declared duly elected by a majority of 185 electoral votes against 184. The decision may have been right as matter of law—it is still debated by lawyers—and there had been so much force and fraud on both sides in Florida, Louisiana, and South Carolina, that no one can say on which side substantial justice lay. Mr. Tilden deserves the credit of having induced his friends both to agree to a compromise slightly to his own disadvantage, and to accept peaceably, though with long and loud complaints, a result which baffled their hopes. I tell the story here because it points to a grave danger in the presidential system. The stake played for is so high that the temptation to fraud is immense; and as the ballots given for the electors by the people are received and counted by state authorities under state laws, an unscrupulous state faction has opportunities for fraud at its command. In 1887 Congress, having had the subject pressed on its attention by successive presidents, took steps to provide against a recurrence of the danger described. It passed a statute enacting that tribunals appointed in and by each state shall determine what electoral votes from the state are legal votes; and that if the state has appointed no such tribunal, the two houses of Congress shall determine which votes (in case of double returns) are legal. If the houses differ the vote of the state is lost. It is, of course, possible under this plan that the state tribunal may decide unfairly; but the main thing is to secure some decision. Unfairness is better than uncertainty.

      A president is removable during his term of office only by means of impeachment, a procedure familiar on both sides of the Atlantic in 1787, when the famous trial of Warren Hastings was still lingering on at Westminster. Impeachment, which had played no small part in the development of English liberties, was deemed by the Americans of those days a valuable element in their new Constitution, for it enabled Congress to depose, and the fear of it might be expected to restrain, a treasonably ambitious president. In obedience to state precedents,¹⁶ it is by the House of Representatives that the president is impeached, and by the Senate, sitting as a law court, with the chief justice of the Supreme Court, the highest legal official of the country, as presiding officer, that he is tried. A two-thirds vote is necessary to conviction, the effect of which is simply to remove him from and disqualify him for office, leaving him “liable to indictment, trial, judgment, and punishment, according to law” (Constitution, art. I, § 3, art. II, § 4). The impeachable offences are “treason, bribery, or other high crimes and misdemeanours,” an expression which some have held to cover only indictable offences, while others extend it to include acts done in violation of official