article of the Constitution; and if any such votes were given, what ought to be done with them; and whether any and what provision ought to be made for securing the faithful observance, in future, of that section of the Constitution.

The members of this committee on the part of the Senate were Felix Grundy, Henry Clay, and Silas Wright; on the part of the House, Francis Thomas, Churchilll C. Cambreleng, John Reed, Henry W. Connor, and Francis S. Lyon, the latter of whom, I was informed in Mobile a few days since, is the only survivor, now living in Alabama at a great age, and deeply interested in this discussion. Mr. Grundy submitted a report of the committee on February 4, from which I desire to read the following quotation:

That the short period at which they were appointed, before the day on which the votes for President and Vice-President of the United States have to be counted, has prevented them from investigating the facts submitted to their examination as fully as might have been done had more time been allowed. The correspondence which has taken place between the chairman of the committee and the heads of the different departments of the executive branch of the government accompanies this report, from which it appears . that in two cases persons of the same names with the individuals who were appointed and voted as electors in the State of North Carolina held the office of deputy-postmaster under the General Government.

I suggest, in passing, that the course taken by this committee of the most eminent men of that generation indicates that I am right in the suggestion that the duty was then considered, as we now claim it should be, as imposed on the Federal power to take testimony so as to ascer tain the facts and by Federal agencies enforce the prohibition for the protection not merely of the State in which the disqualified elector has voted, but of the States in which the disqualified elector has not voted for the election of President and Vice-President, and thus that it concerns all the States, and relates to the deepest and most vital interests of all the States. The disqualification cannot therefore be permitted to be evaded in one State without a blow struck at every other State.

I will continue reading the report:

It also appears that in New Hampshire there is one case; in Connecticut there is one case; in North Carolina there is one case in which, from the report of the Postmaster-General, it is probable that at the time of the appointment of electors in these States respectively the electors or persons of the same name were deputy postmasters. The committee have not ascertained whether the electors are the same individuals who held or are presumed to have held the office of deputy postmasters at the time when the appointment of electors was made; and this is the less to be regretted, as it is confidently believed that no change in the result of the election of either the President or Vice-President would be effected by the ascertainment of the fact in either way, as five or six votes only would, in any event, be abstracted from the whole number, for the committee cannot adopt the opinion entertained by some, that a single illegal vote would vitiate the whole electoral vote of the college of electors in which it was given, particularly in cases where the vote of the whole college has been given for the same persons.

From this sentence it appears that at that time, forty years ago, the question in debate was whether the single illegal vote vitiated more than the vote itself, and the committee were of opinion that it did not.

The committee are of opinion that the second section of the second article of the Constitution, which declares that "no Senator or Representative, or person holding an office of trust or profit under the United States, shall be appointed an elector," ought to be carried, in its whole spirit, into rigid execution, in order to prevent officers of the General Government from bringing their official power to influence the elections of President and Vice-President of the United States. This provision of the Constitution, it is believed, excludes and disqualifies deputy postmasters from the appointment of electors; and the disqualification relates to the time of the appointment, and that a resignation of the office of deputy postmaster after his appointment as elector would not entitle him to vote as elector under the Constitution.

I submit that when it appears that two such minds as those of Henry Clay and Silas Wright, statesmen of such opposite political education and modes of thought, concur in a statement with reference to the reasons and meaning of the Constitution, it comes to us with a weight and with an authority that is not to be gainsaid. Fortunately or unfortunately, however, our American habit of not bridging chasms until we reach them prevented any action by Congress such as Mr. Clay suggested; and accordingly the question re-presents itself to-day without any further elucidation by legislation than it had then.

Mr. Commissioner EDMUNDS. What did the committee say ought to be done, Mr. Hoadly, if anything?

Mr. HOADLY. Only this, "that the article ought to be carried in its whole spirit into rigid execution;" but, inasmuch as the disquali fication, if admitted in its whole spirit and carried into rigid execution, did not change the result of that election, as Martin Van Buren was elected President, and the election of Vice-President went to the Senate, they reported no steps as necessary to be taken, and no steps were taken.

Mr. Commissioner EDMUNDS. Have you read the conclusion of the report?

Mr. HOADLY. I cannot answer the question. I think I have read the conclusion of the report, but unfortunately copying not from the Congressional Globe but from an excerpt which, working in great haste, I had to use for my own convenience, I cannot answer the question. Mr. Commissioner EDMUNDS. I had the impression that the committee had added something else.

Mr. Commissioner BRADLEY. What is the date of the report?
Mr. HOADLY. February 4, 1837.

If we are right in our proposition with regard to the facts, Humphreys held the office at the time when he cast his vote. The only two questions, therefore, which present themselves for debate are, first, did he hold at the time an office of profit or trust; secondly, as to the effect of the holding, provided the fact has been shown. As the questions thus present themselves, we are not concerned to consider the authorities decided in cases of resignation after the election, except so far as they indicate the views of courts with regard to the effect of the disqualifying facts. In Rex vs. Monday (Cowper, page 536,) Sergeant Buller, afterward Mr. Justice Buller, states the rule thus, arguendo :

Two requisites are necessary to make a good election: first, a capacity in the electors; second, a capacity in the elected; and unless both concur the election is a nullity. With respect to the capacity of the electors, their right is this: They cannot say there shall be no election, but they are to elect. Therefore, though they may vote to prefer one to fill an office, they can not say that such a one shall not be preferred, or by merely saying, "We dissent to every one proposed," prevent any election at all. Their right consists in an affirmative, not a negative declaration. Consequently there is no effectual means of voting against one man but by voting for another; and even then, if such other person be unqualified and the elector has notice of his incapacity, his vote will be thrown away.

Such is the well-settled English rule, as affirmed by a multitude of cases since.

Lord Chief Justice Wilmot, in the same volume, note to page 393, in the case of Harrison vs. Evans, discussing the statute of 13 Charles II, which enacted that no person should be elected into any corporationoffice who had not received the sacrament within a twelvemonth preceding his election, and in default of doing so the election and choice should be void, said:

The provision is not only addressed to the elected and a provision upon them, but a

provision laid down upon the electors if they have notice. The legislature has commanded them not to choose a non-conformist, because he ought not to be trusted. Consequently, with respect to any legal effect of operation, it is as if there had been no election.

So in a multitude of cases in England since, as I said, which need not be here more particularly referred to, but with a reference to which your honors will be furnished in my brief. The same doctrine is applied in many American cases also, and it is respectfully submitted that there is no case to the contrary. American cases have differed widely upon the question whether the non-eligibility of the candidate receiving the largest vote has the effect to elect the next highest competing candidate; but no American case, it is respectfully submitted, treats the election of one who at the time was non-qualified and who attempted to act as other than an absolutely null appointment. To this effect is the case of Searcy vs. Grow, 15 California, 118, which was a contest for the office of sheriff of Siskiyou County, where Grow was returned as having been elected and was found to be the holder of an office of profit and trust under the constitution of California, to which a disqualification was attached by the constitution, and who had resigned after the election and before induction into the shrievalty, but was holding the disqualify. ing office at the time of the election. Mr. Justice Baldwin (Cope, J., and Field, C. J., concurring) said:

The people in this case were clothed with this power of choice. Their selection of a candidate gave him all the claim to the office which he has. His title to the office comes from their designation of him as sheriff. But they could not designate or choose a man not eligible-that is, not capable of being selected. They might select any man they chose, subject only to this exception: that the man they selected was capable of taking what they had the power to give. We do not see how the fact that he became capable of taking office after they had exercised their power can avail the appellant. If he was not eligible at the time the votes were cast for him, the election failed.

Of course your honors will see the pertinency of this quotation to other questions that may arise in other cases, and I am compelled to read portions of the opinion which do not refer to the particular case in hand, in order to use intelligently those portions that do:

If he was not eligible at the time the votes were cast for him, the election failed. We do not see how it can be assumed that by the act of the candidate the votes which, when cast, were ineffectual because not given for a qualified candidate, became effectual to elect him to office.

So in the case of the State of Nevada on the relation of Nourse vs. Clarke, (3 Nevada, 566,) which, it is true, may be treated as obiter dic tum, because it was found there that the resignation had been effectually made before the election, the court discussed this question with this result: "That a person holding the office of United States district attorney on the day of election was incapable of being chosen to the office of attorney general of the State, because of a provision in the State constitution to the effect that no Federal office-holder' shall be eligible to any civil office of profit under this State.' 'Which word eligible,' says this learned court, means both capable of being legally chosen and capable of legally holding.""

6

The word here is "appointed;" that no person holding an office shall be appointed an elector. Who appoints? The State appoints; not the voters of the State; not the legislature of the State; not the governor of the State; but the State appoints. The State appoints from among qualified persons; or, which is the same thing, the State appoints, but may not appoint a disqualified person. Now the State does appoint a disqualified person, and the disqualification is one contained in the same constitutional provision as a qualification, limitation, restriction of the

same constitutional clause which gives the right to appoint, a part of the same sentence attached to the grant of power. The appointment refers to the act of the State, the act of the State on the day which Congress has named as the day upon which only the choice of elector can be made. On that day the State shall appoint, but shall not appoint a person not legally qualified to hold the office.

In Commonwealth vs. Cluly (56 Pennsylvania State Reports, 270) the election went back to the people. In the Indiana cases the next highest competing candidate was declared elected-going beyond the rule we ask to be applied to the Florida electoral college. In Searcy vs. Grow, I suppose the result of the contest was to unseat the disqualified person without seating the next highest competing candidate. In all the cases which are commented upon in the decision of Gulick vs. New, in 14 Indiana, 93, and by the various authorities and text-writers on this subject, no one, I submit, will be found which favors the idea that the election of one constitutionally disqualified can by any possibility result, if it do not elect the next highest candidate, in anything else than a failure to elect; and Congress by its legislation on the subject has indicated its purpose in the same direction. Thus the one hundred and thirty-third section of the Revised Statutes provides for a case of vacancy occurring when the college of electors shall meet to cast their votes. Section 134 provides for a case where the State shall fail to elect; that, where the State shall fail to elect on the day provided, the electors may be appointed on a subsequent day in such manner as the legislature of such State may direct. These provisions of law, which have been in force since the act of January 23, 1845, in that statute were attached, and not separated as in the Revised Statutes and thrown into two separate sections; these two provisions of law, which were then attached to each other, indicate the meaning of the law-makers of this generation and the last to furnish a remedy in case of the election of one disqualified under the Constitution.

If it be shown that the State of Florida has acted under the one hundred and thirty-fourth section of the Revised Statutes, then the vote of Florida is not diminished by reason of the fact that on the 7th of November one of the persons voted for was disqualified.

SEC. 134. Whenever any State has held an election for the purpose of choosing electors, and has failed to make a choice on the day prescribed by law, the electors may be appointed on a subsequent day in such a manner as the legislature of such State may direct.

If it were true, as ruled in Furman vs. Clute, 50 New York Reports; in Commonwealth vs. Cluly, 56 Pennsylvania State Reports; in Searcy vs. Grow, in 15 California Reports; if it were true, as ruled in all the American cases, which have held that the next highest competing candidate was not elected, that the case was one of non-election, and rendered necessary a new election, then I respectfully submit that the one hundred and thirty-fourth section of the Revised Statutes provided for the State of Florida a remedy for the mischief to which she was found on the 7th of November to have been subjected. She could have provided by law, as I shall presently show to your honors was done in the State of Rhode Island, to meet the exact contingency. It is not the case of an absolute non-election, or one where there has been no attempt to hold an election, to which this section refers. This provision of law operates whenever any State has held an election for the purpose of choosing electors and has failed to make a choice on the day prescribed by law. Then the electors may be appointed on a subsequent day in such manner as the legislature of such State may direct. If every elector in every State in the United States were disqualified,

would it not be true that there was an election held and a failure to make choice? If every elector in the State of Florida was disqualified, would it not be true that there was an election held, but without choice? If, in the State of Pennsylvania, in the case of Cluly, the people had again to elect; if, in New York, in Furman vs. Clute, the people had again to elect; if, in California, in the case of Searcy vs. Grow, the people had again to elect, then it would follow that, if all the four electors of the State of Florida were disqualified, it would be clearly a case of failure to make choice, and the people would have to elect again, provided the legislature confided to the people, under section 134, the function of electing for the second time and did not exercise it themselves, as was done in Rhode Island. Omne majus continet in se

minus.

If it be a failure to make choice where a single disqualified candidate runs against another officer, if it be a failure to make choice so that he can be ousted and a new election is required to be held, and if there be a provision of statute law of the United States contemplating the emergency and providing a remedy, and if the power of appointment be with the State, and if the opportunity of remedy be with the State, then I submit that it must be shown that the State has taken advantage of this provision of the Revised Statutes, section 134, or the single vote is lost.

The question came directly before the judges of the supreme court of Rhode Island, in the case of George H. Corliss, who held the office of member of the Centennial Commission under the United States on the day of the presidential election. The governor, under the authority of the statutes, submitted to the judges of the supreme court of that State five questions: First, whether the office of centennial commissioner was an office of trust and profit, which they answered, by a majority of voices, it was, such as disqualified the holder for the office of elector of President and Vice-President. Secondly, whether the candidate who received a plurality of votes created a vacancy by declining the office. Thirdly, whether the disqualification was removed by the resignation of the said office of trust or profit. Fourthly, whether the disqualification resulted in the election of the candidate next highest in number of votes, or in failure to elect. Fifthly, if by reason of the disqualification of the candidate who received the plurality of the votes given there was no election, could the general assembly in grand committee elect an elector?

The judges answered the first question, as I said, by a majority of voices, that it was a disqualifying fact, this office of commissioner of the United States Centennial Commission, and, by all their voices agreeing, answered that "such candidate who received a plurality declining the office did not create a vacancy; that the disqualification was not removed by the resignation of the office, but that the disqualification did not result in the election of the candidate next in vote, but did result in a failure to elect, and that there was no election, so that the general assembly in grand committee might elect, and the general assembly in grand committee did elect."

The opinion is signed by all the judges, Thomas Durfee, W. S. Burges, E. R. Potter, Charles Matteson, and Stiness. It was a question submitted under the constitution and laws of that State. I read it at this time in order that I may if possible satisfy the Commission that the construction which I place on section 134 of the Revised Statutes is the correct construction.

In answer to the fourth question, which was this, "If not, does the