As the president and vice-president are elected at and for the same time, the right to be chosen to both offices is dependent upon the same conditions (12th amendment). To be eligible, it is necessary to be a native-born citizen of the United States, to be at least thirty-five years of age,

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tempore of the senate, and after him the speaker of the house, takes the office. Whether these, like the vice-president, are to exercise the office of president until the expiration of the presidential term depends upon how near that is. As soon as the dual vacancy occurs, the secretary of state must notify the governor of every state. If this notification is issued less than two months before the first Wednesday in December, and the presidential term ends on the third day of March following, then the president pro tempore of the senate (or the speaker) performs the duties of the executive authority until the inauguration of the new president. If this be not the case, then the notification directs the choice or the appointment of electors. This is to take place thirty-four days before the first Wednesday in December, if at least two months intervene between this date and the proclamation. Otherwise it is to take place thirty-four days prior to the first Wednesday in December of the following year. The election by the electors is to take place on the first Wednesday of December. Neither the constitution nor the laws provide for vacancies occurring by reason of the impossibility of electing either a president or vice-president. If the house of representatives has to elect the president and does not do so before the 4th of March, when the new presidential term begins, then "the vice-president shall act as president" (12th amendment). Even so there is nothing determined as to who should act as president when, according to the act of March 1, 1792, the speaker ought to do so, and the vacancy occurs between the expiration of the legislative period and the organization of the new congress, so that there is no speaker. Hitherto by the death of the president the presidency has four times devolved upon the vice-president: John Tyler in place of W. H. Harrison, April 6, 1841; Millard Fillmore in place of Zachary Taylor, July 9, 1850; Andrew Johnson in place of Abraham Lincoln, April 15, 1865; Chester A. Arthur in place of James A. Garfield, September 20, 1881. A double vacancy has, however, never yet occurred.

2 The exception in favor of those who at the time of the adoption of the constitution were citizens of the United States of course no longer applies.

and to have had a domicile in the United States for at least fourteen years. Art. II., sec. 1, § 4. As to the eligibility of electors, the constitution contains only the negative provision that no senator, representative or official of the United States shall be an elector. Article II., § 1. The election is an indirect one. The constitution provides that every state shall have as many electors as it has senators and representatives in congress, but leaves it wholly to the legislatures to determine how they shall be chosen. Although they are elected at present in all the states by the people, yet so far as the federal constitution is concerned, this is solely a matter of fact. Every state is still authorized to do as South Carolina did for a long time,- have the electors appointed by the legislature. Or they can be chosen in any other manner whatsoever. The time when the election takes place is to be fixed by congress. By act of January 23, 1845, it fixed the first Tuesday after the first Monday in November of every fourth year. This law leaves it to the states to take proper legal measures to fill by substitutes any vacancies at the meeting of the electoral college.

THE MODE OF ELECTION. The legislatures determine for their respective states the place of the election, but it is the duty of congress to fix the time, and it must be the same day for all of the states. By act of March 1, 1792, the election takes place on the first Wednesday in December. The electors must vote on separate ballots for one person for president, and for another as vice-president.2

1 The constitution does not prohibit the selection of the president and vice-president from the same state, but the electors must vote, so far as one of the two offices is concerned, for a person who does not belong to their own state (12th amendment).

2 According to the original scheme of the constitution, each elector simply placed two names on his ballot. Whoever received the greatest number of votes was to be president, and whoever had the next

The electors must prepare separate lists of all persons who receive any votes for either office, must subscribe and certify the lists, and having sealed them must send them, addressed to the president of the senate, to the seat of the federal government. "The president of the senate shall, in the presence of the senate and the house of representatives, open all the certificates and the votes shall then be counted." A majority of the votes of all the electors is necessary to an election. If none of the candidates for the presidency has received such a majority, then the house of representatives must elect one of the three candidates who received the greatest number of votes. In this case the house of representatives votes by states, and each state casts one vote. The ballot holds good if one or more members from two-thirds of the states be present. A majority of all the states is necessary to an election. If no vice-president has been elected, the senate may choose one of the two candidates who received the greatest number of votes. Each senator casts one vote. To make a ballot valid, To make a ballot valid, the presence of two-thirds of the senators is required. For an election the majority of all the senators is necessary.2

It is an undisputed fact that the twelfth amendment, which contains the provisions noted above, has become a mere empty form. The parties nominate their candidates in so-called national conventions, which have no legal ex

highest number was to be vice-president, provided, in each case, that the candidate received a majority of all the votes cast. For the events of the election of 1800-1801, which led to the adoption of the twelfth amendment, see my Constitutional History, I., 168.

1 See my Constitutional History (II., 4) as to the one presidential election (that of J. Q. Adams) which took place under this constitutional provision.

2 Under this constitutional provision, R. M. Johnson was elected in 1837.

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istence whatever, and the members of which are chosen without any legal control whatever. It has long been a subject of constant and loud complaint that not the mass of the people, but only the professional politicians, are represented in these conventions. In the interest of the managers, public opinion is often defied. The electors are mere ornamental figure-heads, without any will of their own. The people take not the least interest as to who are made electors, for the persons designated are held to be in honor bound to vote for the party candidates nominated by the national convention. Since the introduction of these conventions, no elector has ever ventured to act as the constitution intended, in accordance with his own judgment. Not only in regard to the question as to which party shall carry the day, but also as to the persons chosen, the election of electors is the presidential election, and in ordinary conversation it is so called. The assembling and voting of the electoral college on the first Wednesday in December is an empty formality, for the decision was made in the preceding November. The development of actual facts has made the constitution a dead letter on this point. The history of the presidential election of 1876-77 shows that even empty forms may become

1 So, too, in former times, when the candidates were named by the party representatives in congress, the so-called "king caucus."

2 Should accident so shape events that the presidential candidate of the victorious party should die immediately before the meeting of the electoral college, then the United States would again have a president who was, not only in form, but in truth, elected by the electors. The effects that such an accident might produce are incalculable. The most substantial result would probably be the final success of the efforts to bring the constitution again into accord with facts, and to have the president and vice-president elected directly by the people. If Horace Greeley had been, not the defeated, but the victorious, candidate, the constitution by his death in 1872 would have come to its rights.

of great significance. The after effects of the civil war came into play in a manner that threatened to be fatal. In some of the former slave states (Florida, South Carolina and Louisiana), both parties claimed the victory. If the electoral votes of all these states were given to the republicans, their candidate would be elected by a majority of one vote. But to whom did the constitution give the right to decide, if the legality of electoral votes was contested? or if in one state two sets of electors should each claim to be legally chosen? The clause of the constitution already cited offered no such unquestionable solution of the problem that the most different doctrines might not have been advanced from the general standpoint of principle and of party interests. There were no precedents to indicate so precisely any particular path that congress would have been obliged to proceed therein. The position which congress took in regard to the electoral vote of Missouri in 1821, and of Michigan in 1837, had been generally understood hitherto as involving a claim on its part to the right to decide the validity of an electoral vote sent into it; and the twenty-second joint rule, concerning the counting of electoral votes (which was, however, no longer in force in 1876), was also based on this assumption. In 1857 the president of the senate declared, after he had announced the election of Buchanan, that he did not feel authorized to decide whether Wisconsin had voted for Fremont. And in 1873 congress refused to count the electoral vote of Louisiana, on account of fraud in the election. If the majority in both houses had now taken the same position, the minority would probably have been voted down by an appeal to precedent, and the affair would have been settled. But in the house of representatives the democrats, and in the senate the republicans, had a majority. It was therefore