15, 17. And this was the mode adopted by Florida in 1868, (Laws 1868, p. 166,) and by Colorado in 1876, as prescribed by § 19 of the schedule to the constitution of the State, which was admitted into the Union August 1, 1876. Gen. Laws Colorado, 1877, pp. 79, 990.

99

Mr. Justice Story, in considering the subject in his Commentaries on the Constitution, and writing nearly fifty years after the adoption of that instrument, after stating that "in some States the legislatures have directly chosen the electors by themselves; in others, they have been chosen by the people by a general ticket throughout the whole State; and in others, by the people by electoral districts, fixed by the legislature, a certain number of electors being apportioned to each district,' adds: "No question has ever arisen as to the constitutionality of either mode, except that by a direct choice by the legislature. But this, though often doubted by able and ingenious minds, (3 Elliot's Deb. 100, 101,) has been firmly established in practice ever since the adoption of the Constitution, and does not now seem to admit of controversy, even if a suitable tribunal existed to adjudicate upon it." And he remarks that "it has been thought desirable by many statesmen to have the Constitution amended so as to provide for a uniform mode of choice by the people." Story Const. 1st Ed. § 1466.

Such an amendment was urged at the time of the adoption of the Twelfth Amendment, the suggestion being that all electors should be chosen by popular vote, the States to be divided for that purpose into districts. It was brought up again in Congress in December, 1813, but the resolution for submitting the amendment failed to be carried. The amendment was renewed in the House of Representatives in Decem

1 See Stanwood on Presidential Elections, (3d ed.,) and Appleton's Presidential Counts, passim; 2 Lalor's Encyclo. Pol. Science, 68; 4 Hild. Hist. U. S., (Rev. Ed.,) 39, 382, 689; 5 Id. 389, 531; 1 Schouler's Hist. U. S. 72, 334; 2 Id. 184; 3 Id. 313, 439; 2 Adams' Hist. U. S. 201; 4 Id. 285; 6 Id. 409, 413; 9 Id. 139; 1 McMaster's Hist. People U. S. 525; 2 Id. 85, 509; 3 Id. 188, 189, 194, 317; 2 Scharf's Hist. Md. 547; 2 Bradford's Mass. 335; Life of Plumer, 104; 3 Niles' Register, 160; 5 Id. 372; 9 Id. 319, 349; 10 Id. 45, 177, 409; 11 Id. 296.

ber, 1816, and a provision for the division of the States into single districts for the choice of electors received a majority vote, but not two-thirds. Like amendments were offered in the Senate by Messrs. Sanford of New York, Dickerson of New Jersey and Macon of North Carolina. December 11, 1823, Senator Benton introduced an amendment providing that each legislature should divide its State into electoral districts, and that the voters of each district "should vote, in their own proper persons," for President and Vice-President, but it was not acted upon. December 16, and December 24, 1823, amendments were introduced in the Senate by Messrs. Dickerson of New Jersey and Van Buren of New York, requiring the choice of electors to be by districts; but these and others. failed of adoption, although there was favorable action in that direction by the Senate in 1818, 1819 and 1822. December 22, 1823, an amendment was introduced in the House by Mr. McDuffie of South Carolina, providing that electors should be chosen by districts assigned by the legislatures, but action was not taken.1 The subject was again brought forward in 1835, 1844, and subsequently, but need not be further dwelt upon, except that it may be added that, on the 28th of May, 1874, a report was made by Senator Morton, chairman of the Senate Committee on Privileges and Elections, recommending an amendment dividing the States into electoral districts, and that the majority of the popular vote of each district should give the candidate one presidential vote, but this also failed. to obtain action. In this report it was said: "The appointment of these electors is thus placed absolutely and wholly with the legislatures of the several States. They may be chosen by the legislature, or the legislature may provide that they shall be elected by the people of the State at large, or in districts, as are members of Congress, which was the case formerly in many States; and it is, no doubt, competent for the legislature to authorize the governor, or the

11 Benton's Thirty Years View, 37; 5 Bent. Cong. Deb. 110, 677; 7 Id. 472-74, 600; 3 Niles' Reg. 240, 334; 11 Id. 258, 274, 293, 349; Annals Cong., (1812-13,) 847.

Supreme Court of the State, or any other agent of its will, to appoint these electors. This power is conferred upon the legislatures of the States by the Constitution of the United States, and cannot be taken from them or modified by their State constitutions any more than can their power to elect Senators of the United States. Whatever provisions may be made by statute, or by the state constitution, to choose electors by the people, there is no doubt of the right of the legislature to resume the power at any time, for it can neither be taken away nor abdicated." Senate Rep. 1st Sess. 43 Cong. No. 395.

From this review, in which we have been assisted by the laborious research of counsel, and which might have been greatly expanded, it is seen that from the formation of the government until now the practical construction of the clause has conceded plenary power to the state legislatures in the matter of the appointment of electors.

Even in the heated controversy of 1876-1877 the electoral vote of Colorado cast by electors chosen by the legislature passed unchallenged; and our attention has not been drawn to any previous attempt to submit to the courts the determination of the constitutionality of state action.

In short, the appointment and mode of appointment of electors belong exclusively to the States under the Constitution of the United States. They are, as remarked by Mr. Justice Gray in In re Green, 134 U. S. 377, 379, “no more officers or agents of the United States than are the members of the state legislatures when acting as electors of Federal senators, or the people of the States when acting as the electors of representatives in Congress." Congress is empowered to determine the time of choosing the electors and the day on which they are to give their votes, which is required to be the same day throughout the United States, but otherwise the power and jurisdiction of the State is exclusive, with the exception of the provisions as to the number of electors and the ineligibility of certain persons, so framed that Congressional and Federal influence might be excluded.

The question before us is not one of policy but of power, and

while public opinion had gradually brought all the States as matter of fact to the pursuit of a uniform system of popular election by general ticket, that fact does not tend to weaken the force of contemporaneous and long continued previous practice when and as different views of expediency prevailed. The prescription of the written law cannot be overthrown because the States have latterly exercised in a particular way a power which they might have exercised in some other way. The construction to which we have referred has prevailed too long and been too uniform to justify us in interpreting the language of the Constitution as conveying any other meaning than that heretofore ascribed, and it must be treated as decisive.

It is argued that the district mode of choosing electors, while not obnoxious to constitutional objection, if the operation of the electoral system had conformed to its original object and purpose, had become so in view of the practical working of that system. Doubtless it was supposed that the electors would exercise a reasonable independence and fair judgment in the selection of the Chief Executive, but experience soon demonstrated that, whether chosen by the legislatures or by popular suffrage on general ticket or in districts, they were so chosen simply to register the will of the appointing power in respect of a particular candidate. In relation, then, to the independence of the electors the original expectation may be said to have been frustrated. Miller on Const. Law, 149; Rawle on Const. 55; Story Const. § 1473; The Federalist, No. 68. But we can perceive no reason for holding that the power confided to the States by the Constitution has ceased to exist because the operation of the system has not fully realized the hopes of those by whom it was created. Still less can we recognize the doctrine, that because the Constitution has been found in the march of time sufficiently comprehensive to be applicable to conditions not within the minds of its framers, and not arising in their time, it may, therefore, be wrenched from the subjects expressly embraced within it, and amended by judicial decision without action by the designated organs in the mode by which alone amendments can be made.

Nor are we able to discover any conflict between this act and the Fourteenth and Fifteenth Amendments to the Constitution. The Fourteenth Amendment provides:

"SECTION 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

"SECTION 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State."

The first section of the Fifteenth Amendment reads: "The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color or previous condition of servitude."

In The Slaughter-house Cases, 16 Wall. 36, this court held that the first clause of the Fourteenth Amendment was primarily intended to confer citizenship on the negro race; and, secondly, to give definitions of citizenship of the United States, and citizenship of the States, and it recognized the distinction between citizenship of a State and citizenship of the United States by those definitions; that the privileges and immunities of citizens of the States embrace generally those fundamental civil rights for the security and establishment of which organ

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