particular candidate, and directly voted for by the people, have become, in fact, the mere passive instruments of the majority of voters in each state, in carrying out their will as expressed at the ballot-box. The electoral college is thus reduced to a mere machine, a mere conduit through which may flow the stream of popular suffrage. We do now, in fact, vote for the President and Vice-President as really as though their names were inscribed upon the papers we deposit. We have thus, in this respect, virtually made to ourselves a new constitution, which exactly resembles the original in form, but is vastly different in substance. This complete change in the manner of electing the President is a remarkable instance of the way in which written laws and constitutions, however carefully guarded, may be made to yield to a change in the popular feelings and wishes; so that, while not a clause is repealed or modified, the effect of the whole is entirely transformed. On the letter of the Constitution there has grown up an unwritten law, not, indeed, enacted by courts, but devised and voluntarily obeyed by those who manage the machinery of popular elections."1

§ 203. I would not return to the ancient theory. I am persuaded that our fathers had not faith enough in the intelligence of the people. I believe that the whole body of voters is less liable to err in the choice of those rulers whose functions are political, than any small and select number of men specially appointed, however pure and patriotic they may be. I believe that our general elections fairly express the popular will, and that the decision is, on the whole, in accordance with the best interests of the nation. We might well, therefore, abandon the idle and useless form of interposing the machinery of an electoral college between the people and their choice, and allow the votes to be cast directly for the persons designated to the offices of President and Vice-President. I have called this form idle and useless; it certainly is so, unless it be purposely retained as a check upon the power of a majority. If it be thought best that a majority of voters in the United States should not necessarily determine the selection of President,

1 See Pomeroy's Introduction to Municipal Law, § 731.

then this expedient of an electoral college is well contrived to thwart the wishes of such majority. But all this is entirely opposed to the tendencies of the age, and to the principles upon which the state governments are organized and administered. There are theorists who have suggested plans by which minorities may be the more efficiently represented; but no one has, as yet, contended that, in a republican form of government, the minority should possibly control.

§ 204. The Senate. - Article I. Section III. provides that "the Senate of the United States shall be composed of two Senators from each state, chosen by the legislature thereof, for six years; and each Senator shall have one vote."

Provision is made for classifying those who are first chosen, so that the terms of office of one third shall expire every second year. "If vacancies happen by resignation or otherwise, during the recess of the legislature of any state, the executive thereof may make temporary appointments, until the next meeting of the legislature, which shall then fill such vacancies."

The same Article, Section IV., declares that, "the times, places, and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the legislature thereof; but the Congress may at any time, by law, make or alter such regulations, except as to the places of choosing Senators."

The body which appoints the Senators is fixed beyond the reach of Congress or state legislation, the legislatures of the respective states. The places of choosing are also fixed, -the place where each legislature, by the local law, is to hold its sessions. The times and manner of holding elections are left to the states, unless Congress should, by a general law, prescribe some common rule. Congress has not availed itself of this power so plainly conferred upon it by the Constitution, and there is some diversity in the manner of choosing Senators among the different states. In some the two houses meet in joint session, and a majority of the whole united body is suf ficient; in others the houses vote separately, and do not meet in joint session until a majority of each has made its selection,

and then if the choice of both branches has fallen upon the same person the election is complete, if not, a resort is had to a joint ballot.

§ 205. The House of Representatives.· The Constitution determines the method of electing members to the lower House in the following manner : Article I. Section II. § 1, "The House of Representatives shall be composed of members chosen every second year by the people of the several states, and the electors in each state shall have the qualifications requisite for electors of the most numerous branch of the state legislature."

The first paragraph of Section IV. of the same Article, cited in § 204, applies to the election of Representatives as well as of Senators.

In this connection may be read Section IV. of Article IV. as follows: "The United States shall guarantee to every state in this Union a republican form of government."

§ 206. As to the times, places, and manner of holding elections of Representatives, the Congress has complete control, so far as positive provisions of the Constitution do not interfere; in the event that Congress does not exercise its authority, the states have a like complete control. Thus Congress may prescribe the day and month for holding the election, and make them the same throughout the country, with the limitation that the election must be once in two years. Congress may also prescribe whether the choice shall be by single districts, or by a general vote in each state; and may, no doubt, divide the states into congressional districts. The national legislature has not, however, exercised the full power conferred upon it, and most of the regulations governing the choice of Representatives have been left to the separate states. Over the qualifications of the electors, Congress has no control further than may be included in the clause by which the United States is to guarantee a republican form of government to each

state.

§ 207. Here we perceive that the general government has no voice in deciding who shall be privileged to vote for Representatives in Congress. The whole subject is controlled by

state laws. The states will, of course, in their own constitutions or statutes, declare which of their inhabitants may take a part in choosing members of the popular branch of their local legislatures, and such persons are entitled also to vote for congressmen in that state.

We are thus met by this peculiarity of the organic law, that it nowhere attempts to define what persons may exercise the right of suffrage, nor does it confer upon the general government any such power. In the only instance where provision is made for a popular election, the states are left to designate the individuals who may unite in electing.

§ 208. This fact is a complete answer to the somewhat common notion that United States citizenship implies the right of voting. Nothing can be further from the truth. Not a vote is cast, from one end of the country to the other, by any person in virtue merely of his being a citizen of the United States. The Constitution recognizes the status of citizenship, and provides for admitting foreigners to that condition; but it does not create any class of voters. What the several states may do in this respect, is a matter entirely for their own consideration. It is true, as a fact, that, by the state laws, the great mass of voters for Representatives in Congress are white male citizens of the United States, who have attained the age of twenty-one; but there is no necessity in the Constitution for this practice. A state may deny to some citizens the right of suffrage entirely, as most do to the free negro, and all do to women and minors; or may deny it to persons of foreign birth for a certain period after naturalization, as does New York. Others still may confer the privilege upon persons who are not citizens of the United States, as do a few of the Western states.

§ 209. It is plain, therefore, that mere citizenship of the United States does not involve the right of suffrage. It is also plain that the United States have no power or authority to interfere with the discretion of the states in determining what class of persons possess the "qualifications" for electors. The state laws may throw open the door as wide as possible, or may place any limitation which is not inconsistent with a re

publican form of government. In some, a property qualification has been demanded from the voter, and this practice was almost universal in the earlier years of our government; in a few, a literary or educational qualification is required. In a small number of commonwealths, free negroes are admitted on an equality with whites; in others, only those who possess a certain amount of property; while in most they are rejected altogether.1

§ 210. Notwithstanding the control over this subject which the Constitution gives to the states is so great, so nearly absolute, it is limited by Art. IV. Sec. IV. which says that the United States shall guarantee to every state a republican form of government., It seems to be evident that a state, under pretence of prescribing qualifications for electors, might place the governmental power in the hands of an oligarchy, and might erect such a political fabric as was in no respect republican in form. Should this be done, Congress might undoubtedly interfere in that particular state, and restore a republican form. But to say that Congress may decide by a general rule what regulations governing the status of electors are consistent with the existence of a republican form of government, and may pass laws imposing those regulations upon the several states, is to ignore and destroy not only the spirit, but the very letter of the organic law. To say that a republican form of government implies universal suffrage, or that it forbids the imposition of qualifications which do not directly affect the voter's capacity to judge properly of his political act of voting, is to violate all the fundamental rules of interpretation, to blot out all history, to declare that even the government of the United States is not republican. The plain common sense view which the people have always taken of these provisions is the correct one. The clause "the electors in each state shall have the qualifications requisite for electors of the most numerous branch of the state legislature" has been uniformly

1 I hardly need say that I am speaking here of those states alone which remained true to the Union, and which have voluntarily acted upon the question of suffrage; I do not include those states which attempted to sesede, and upon which Congress is now imposing universal suffrage.