ELECTORAL COLLEGE. 742 ELECTORAL COMMISSION. tutioii may be undeniiiiicd and amended by the silent iirotess of customary ob.scrvanoe. It is obvious that the Constitution fontcmplates that the electoral college in each .State shall be a deliberative body of men, freely e.xercising an untrammcled choice for the high offices which they are to till. They are not called upon, nor are they expected, to vote as a unit, still less to meet for the sole purpose of registerinjr a result which has already been reached elsewhere and by others. That this remarUable change in the con- ception of the constitutional functions of the electoral college has been l)rouglit about is due to the course of our political development, and particularly to the national convention system of nominating candidates for the Presidency and Vice-Presidency. These conventions are not recognized by the Constitution, nor have their nomination-; any legally binding force. But the electors, subsequently nominated and elected for the sole purpose of giving the vote of the State to a certain paity candidate, are as securely bound to that course of action by custom and honor as they w<<uld be by statute. The people, consequently, elect the President and Vice-Presi- dent by States, and the college is a cumbrous machine for formally conveying to Washington the wishes of the majority. Since 1801 the vote of an elector has been laiown with certainty several weeks before it is cast, and several months before it is oliicially announced. The electoral system has constantly endangered the State, on account of the absence, until recently, of any general law to govern the president of the Senate in his canvass of the votes, and the tendency of Congress to decide every case of doubt or disputed returns arbitrarily as it arose. Nothing was accomplished, however, until 18S7, when a law was passed (approved February 3) to cover the contingency of rival electoral colleges and disputed returns. Under the terms of this act, each State is conceded to have the right of determining all controversies or con- tests regarding the appointment of its own Presi- dential electors; and in ease of any such contest. Congress is to accept the State's settlement of the same as conclusive, and it cannot reject any electoral vote, duly certified, unless both Houses concurrently decide that that vote has been irregularly given. If more than one return from a State is received, only those votes are to be counted which the State itself has indorsed as regular; but if the State has been unable to settle the question, owing to its having two or more rival sets of authorities, or from any other cause, then the two Houses are to decide the dispute. See Constithtiox of the Ukited States; Coxvextion: Phesidext; and the au- thorities there referred to. ELECTORAL COMMISSION. In United States history. the body of men provided for by an act of Congress, approved . January 2!). 1S77. to settle -certain disputed questions in regard to the electoral votes of several States in the Presi- dential election of 187(i. As the counting of the electoral votes in the presence of the two Houses of Congress proceeded according to custom, it had been foimd that there were conflicting cer- tificates from four difTcrent States — Florida, Louisiana. Oregon, and South Carolina; and the two Houses were unable to agree in any case which certificate should be received as genuine. The Senate at the time was controlled by the Republican Party, the House of Ucpresentatives by the Democratic Party, and there was thought to be danger of civil disturbances on account of certain questions likely to arise in the counting of the electoral votes. Under these circum- stances, a majority of each of the two political parties in Congiess agreed to create a commis- sion to be composed of fie Senators chosen by the Senate; five members of the House of Kcpre- sentatives, chosen by that body : and five asso- ciate justices of the Supreme Court, four of whom were designated by the act of Congress, and the fifth of Ahom was to Ik' selected by the four — to which commission should be refcrre<l, for judgment and decision, the question which of two or more conflicting cerlitieates received from any State of the votes cast by the electoral college of such State for President and ' ice- President in the election of IS70 was the certifi- cate provided for in the Constitution of the United States. The judgment of the commission in any matters referred to it, unless set aside by the concurrent action of the Houses of Congress, was to be final. The projiosed law was there- upon enacted, and the Senate appointed three Republicans and two Democrats, and the House of Representatives three Democrats and two Republicans as members of the commission. Of the four associate justices of the Supreme Court who were named in the law. two were understood to be Democrats and two Republicans; and these selected as the fifth associate justice to serve with them upon the commission, IMr. Justice Bradley, a Republican. The commission was constituted as follows: .Justices Cliflford. Strong, Miller, Field, and Bradley ; Senators Edmunds, Morton. Frelinghuysen. Thurman, and Bayard; and Representatives Payne, lluninn, Abbott. <iar- field. and I*>ar. Upon the illness of Senator Thurman. his place was filled by the choice of Senator Kernan. The certificates and accom- panying papers were successively referred to the commission, which proceeded to hear argument upon the questions involved. A notable group of distinguished lawyers participated in the con- duct of the case, William >I. Evarts, Stanley Matthews, E. W. Stoughton. and Samuel Shella- barger representing the Hei)ulilicans. and .Judge J. S. Black, ilatthew H. Carpenter. Charles O'Conor. .J. A. Campbell, Lyman Trumbull. Ash- bel Green. Montgomery Blair, licorsc Hoa<lley, William C. Whitney. R. T. ilcrrick. and A. P. Morse representing the Democrats. The result in the ease of each State was a decision of the commission, by a vote of 8 to 7 — the vote fol- lowing the line of party division in the body — that the certificate of the electoral votes cast for Hayes and Wheeler, the Republican candidates for President and Vice-President, was the cer- tificate which contained the lawful electoral vote of said State, and that the other certificates were illegal and void. The Republican Senate con- curred in this judgment in each case, while the Democratic House of Representatives dissented. The decision of the commission, therefore, ac- cording to the terms of the statute, became irrevocable; the electoral votes were counted accordingly: and Rutherford B. Hayes and yil- liam A. Wheeler were fouiul duly elected, by a majority of one electoral vote, respectively Presi- dent and Vice-President for a term of four years, from March 4. 1877. The controlling question before the commission was whether — an electoral
