Henry Livingston

Letters from the Federal Farmer to the Republican: #12
Country Journal and Poughkeepsie Advertiser

Richard Henry Lee?,
Melancthon Smith?

[Portrait of Melancthon Smith]

January 12, 1788.

Dear sir,

On carefully examining the parts of the proposed system, respecting the elections of senators, and especially of the representatives, they appear to me to be both ambiguous and very defective. I shall endeavour to pursue a course of reasoning, which shall fairly lead to establishing the impartiality and security of elections, and then to point out an amendment in this respect.

It is well observed by Montesquieu, that in republican governments, the forms of elections are fundamental; and that it is an essential part of the social compact, to ascertain by whom, to whom, when, and in what manner suffrages are to be given.

Wherever we find the regulation of elections have not been carefully fixed by the constitution, or the principles of them, we constantly see the legislatures new modifying its own form, and changing the spirit of the government to answer partial purposes.

By the proposed plan it is fixed, that the qualifications of the electors of the federal representatives shall be the same as those of the electors of state representatives; though these vary some in the several states the electors are fixed and designated.

The qualifications of the representatives are also fixed and designated, and no person under 25 years of age, not an inhabitant of the state, and not having been seven years a citizen of the United States, can be elected; the clear inference is, that all persons 25 years of age, and upwards, inhabitants of the state, and having been, at any period or periods, seven years citizens of the United States, may be elected representatives. They have a right to be elected by the constitution, and the electors have a right to chuse them. This is fixing the federal representation, as to the elected, on a very broad basis: it can be no objection to the elected, that they are Christians, Pagans, Mahometans, or Jews; that they are of any colour, rich or poor, convict or not: Hence many men may be elected, who cannot be electors. Gentlemen who have commented so largely upon the wisdom of the constitution, for excluding from being elected young men under a certain age, would have done well to have recollected, that it positively makes pagans, convicts, &c. eligible. The people make the constitution; they exclude a few persons, by certain descriptions, from being elected, and all not thus excluded are clearly admitted. Now a man 25 years old, an inhabitant of the state, and having been a citizen of the the states seven years, though afterwards convicted, may be elected, because not within any of the excluding clauses, the same of a beggar, an absentee, &c.

The right of the electors, and eligibility of the elected being fixed by the people, they cannot be narrowed by the state legislatures, or congress: it is established, that a man being (among other qualifications) an inhabitant of the state, shall be eligible. Now it would be narrowing the right of the people to confine them in their choice to a man, an inhabitant of a particular county or district in the state. Hence it follows, that neither the state legislatures or congress can establish district elections; that is, divide the state into districts, and confine the electors of each district to the choice of a man resident in it. If the electors could be thus limited in one respect, they might in another be confined to chuse a man of a particular religion, of certain property, &c. and thereby half of the persons made eligible by the constitution be excluded. All laws, therefore, for regulating elections must be made on the broad basis of the constitution.

Next, we may observe, that representatives are to be chosen by the people of the state. What is a choice by the people of the state? If each given district in it choose one, will that be a choice within the meaning of the constitution? Must the choice be by plurality of votes, or a majority? In connection with these questions, we must take the 4th sect. art. 1. where it is said the state legislatures shall prescribe the times, places, and manner of holding elections; but congress may make or alter such regulations. By this clause, I suppose, the electors of different towns and districts in the state may be assembled in different places, to give their votes; but when so assembled, by another clause they cannot, by congress or the state legislatures, be restrained from giving their votes for any man an inhabitant of the state, and qualified as to age, and having been a citizen the time required. But I see nothing in the constitution by which to decide, whether the choice shall be by a plurality or a majority of votes: this, in my mind, is by far the most important question in the business of elections. When we say a representative shall be chosen by the people, it seems to imply that he shall be chosen by a majority of them; but states which use the same phraseology in this respect, practice both ways. I believe a majority of the states, chuse by pluralities, and, I think it probable, that the federal house of representatives will decide that a choice of its members by pluralities is constitutional. A man who has the most votes is chosen in Great-Britain. It is this, among other things, that gives every man fair play in the game of influence and corruption. I believe that not much stress was laid upon the objection that congress may assemble the electors at some out of the way place. However, the advocates seem to think they obtain a victory of no small glory and importance, when they can shew, with some degree of colour, that the evils is rather a possibility than a probability.

When I observed that the elections were not secured on proper principles, I had an idea of far more probable and extensive evils, secret mischiefs, and not so glaring transgressions, the exclusions of proper district elections, and of the choice by a majority.

It is easy to perceive that there is an essential difference between elections by pluralities and by majorities, between choosing a man in a small or limited district, and choosing a number of men promiscuously by the people of a large state; and while we are almost secure of judicious unbiassed elections by majorities in such districts, we have no security against deceptions, influence and corruption in states or large districts in electing by pluralities. When a choice is made by a plurality of votes, it is often made by a very small part of the electors, who attend and give their votes, when by a majority, never by so few as one half of them. The partialities and improprieties attending the former mode may be illustrated by a case that lately happened in one of the middle states. — Several representatives were to be chosen by a large number of inhabitants compactly settled, among whom there were four or five thousand voters. Previous to the time of election a number of lists of candidates were published, to divide and distract the voters in general — about half a dozen men of some influence, who had a favourite list to carry, met several times, fixed their list, and agreed to hand it about among all who could probably be induced to adopt it, and to circulate the other lists among their opponents, to divide them. The poll was opened, and several hundred electors, suspecting nothing, attended and put in their votes; the list of the half dozen was carried, and men were found to be chosen, some of whom were very disagreeable to a large majority of the electors: though several hundred electors voted, men on that list were chosen who had only 45, 43, 44, &c. votes each; they had a plurality, that is, more than any other persons: the votes generally were scattered, and those who made even a feeble combination succeeded in placing highest upon the list several very unthought of and very unpopular men. This evil never could have happened in a town where all the voters meet in one place, and consider no man as elected unless he have a majority, or more than half of all the votes; clear it is, that the men on whom thus but a small part of the votes are bestowed, cannot possess the confidence of the people, or have any considerable degree of influence over them.

But as partial, as liable to secret influence, and corruption as the choice by pluralities may be, I think, we cannot avoid it, without essentially increasing the federal representation, and adopting the principles of district elections. There is but one case in which the choice by the majority is practicable, and that is, where districts are formed of such moderate extent that the electors in each can conveniently meet in one place, and at one time, and proceed to the choice of a representative; when, if no man have a majority, or more than half of all the votes the first time, the voters may examine the characters of those brought forward, accommodate, and proceed to repeat their votes till some one shall have that majority. This, I believe, cannot be a case under the constitution proposed in its present form. To explain my ideas, take Massachusetts, for instance, she is entitled to eight representatives, she has 370,000 inhabitants, about 46,000 to one representative; if the elections be so held that the electors throughout the state meet in their several towns or places, and each elector puts in his vote for eight representatives, the votes of the electors will ninety-nine times in a hundred, be so scattered that on collecting the votes from the several towns or places, no men will be found, each of whom have a majority of the votes, and therefore the election will not be made. On the other hand, there may be such a combination of votes, that in thus attempting to chuse eight representatives, the electors may chuse even fifteen. Suppose 10,000 voters to attend and give their votes, each voter will give eight votes, one for each of eight representatives; in the whole 80,000 votes will be given — eight men, each having 5001 votes, in the whole 40,008 will have each a majority, and be chosen — 39,092 votes will be bestowed on other men, and if they all be bestowed on seven men, they may have each a considerable majority, and also be chosen. This indeed is a very rare combination; but the bestowing all the votes pretty equally upon nine, ten, or eleven men, and chusing them all, is an event too probable not to be guarded against.

If Massachusetts be divided into eight districts, each having about 46,000 inhabitants, and each district directed to chuse one representative, it will be found totally impracticable for the electors of it to meet in one place; and, when they meet in several towns and places in the district, they will vote for different men, and nineteen times in twenty, so scatter their votes, that no one man will have a majority of the whole and be chosen: we must, therefore, take the man who has the most votes, whether he has three quarters, one quarter, or one tenth part of the whole; the inconveniencies of scattering votes will be increased, as men not of the district, as well as those that are in it, may be voted for.

I might add many other observations to evince the superiority and solid advantages of proper district elections, and a choice by a majority, and to prove, that many evils attend the contrary practice: these evils we must encounter as the constitution now stands.

I see no way to fix elections on a proper footing, and to render tolerably equal and secure the federal representation, but by increasing the representation, so as to have one representative for each district in which the electors may conveniently meet in one place, and at one time, and chuse by a majority. Perhaps this might be effected pretty generally, by fixing one representative for each twelve thousand inhabitants; dividing, or fixing the principles for dividing the states into proper districts; and directing the electors of each district to the choice, by a majority, of some men having a permanent interest and residence in it. I speak of a representation tolerably equal, &c. because I am still of opinion, that it is impracticable in this extensive country to have a federal representation sufficiently democratic, or substantially drawn from the body of the people: the principles just mentioned may be the best practical ones we can expect to establish. By thus increasing the representation, we not only make it more democratical and secure, strengthen the confidence of the people in it, and thereby render it more nervous and energetic; but it will also enable the people essentially to change, for the better, the principles and forms of elections. To provide for the people's wandering throughout the state for a representative, may sometimes enable them to elect a more brilliant or an abler man, than by confining them to districts, but generally this latitude will be used to pernicious purposes, especially connected with the choice by plurality; when a man in the remote part of the state, perhaps, obnoxious at home, but ambitious and intriguing, may be chosen to represent the people in another part of the state far distant, and by a small part of them, or by a faction, or by a combination of some particular description of men among them. This has been long the case in Great-Britain, it is the case in several of the states, nor do I think that such pernicious practices will be merely possible in our federal concerns, but highly probable. By establishing district elections, we exclude none of the best men from being elected; and we fix what, in my mind, is of far more importance than brilliant talents, I mean a sameness, as to residence and interests, between the representative and his constituents; and by the election by a majority, he is sure to be the man, the choice of more than half of them.

Though it is impossible to put elections on a proper footing as the constitution stands, yet I think regulations respecting them may be introduced of considerable service: it is not only, therefore, important to enquire how they may be made, but also what body has the controuling power over them. An intelligent, free and unbiassed choice of representatives by the people is of the last importance: we must then carefully guard against all combinations, secret arts, and influence to the contrary. Various expedients have been adopted in different countries and states to effect genuine elections; as the constitution now stands, I confess, I do not discover any better than those adopted in Connecticut, in the choice of counsellers, before mentioned.

The federal representatives are to be chosen every second year (an odd mode of expression). In all the states, except South-Carolina, the people, the same electors, meet twice in that time to elect state representatives. For instance, let the electors in Massachusetts, when they meet to chuse state representatives, put in their votes for eight federal representatives, the number that state may chuse, (merely for distinction sake, we may call these the votes of nomination), and return a list of the men voted for, in the several towns and places, to the legislature, or some proper body; let this list be immediately examined and published, and some proper number, say 15 or 20, who shall have the most votes upon the list, be sent out to the people; and when the electors shall meet the next year to chuse state representatives, let them put in their votes for the eight federal representatives, confining their votes to the proper number so sent out; and let the eight highest of those thus voted for in the two votes (which we may call, by way of distinction, votes of election), be the federal representatives: thus a choice may be made by the people, once in two years, without much trouble and expence, and, I believe, with some degree of security. As soon as the votes of nomination shall be collected and made known, the people will know who are voted for, and who are candidates for their votes the succeeding year; the electors will have near a year to enquire into their characters and politics, and also into any undue means, if any were taken, to bring any of them forward; and such as they find to be the best men, and agreeable to the people, they may vote for in giving the votes of election. By these means the men chosen will ultimately always have a majority, or near a majority, of the votes of the electors, who shall attend and give their votes. The mode itself will lead to the discovery of truth and of political characters, and to prevent private combinations, by rendering them in a great measure of no effect. As the choice is to be made by the people, all combinations and checks must be confined to their votes. No supplying the want of a majority by the legislatures, as in Massachusetts in the choice of senators, &c. can be admitted: the people generally judge right when informed, and, in giving their votes the second time, they may always correct their former errors.

I think we are all sufficiently acquainted with the progress of elections to see, that the regulations, as to times, places, and the manner merely of holding elections, may, under the constitution, easily be made useful or injurious. It is important then to enquire, who has the power to make regulations, and who ought to have it. By the constitution, the state legislatures shall prescribe the times, places, and manner of holding elections, but congress may make or alter such regulations. Power in congress merely to alter those regulations, made by the states, could answer no valuable purposes; the states might make, and congress alter them ad infinitum: and when the state should cease to make, or should annihilate its regulations, congress would have nothing to alter. But the states shall make regulations, and congress may make such regulations as the clause stands: the true construction is, that when congress shall see fit to regulate the times, places, and manner of holding elections, congress may do it, and state regulations, on this head, must cease: for if state regulations could exist, after congress should make a system of regulations, there would, or might, be two incompatible systems of regulations relative to the same subject.

It has been often urged, that congress ought to have power to make these regulations, otherwise the state legislatures, by neglecting to make provision for elections, or by making improper regulations, may destroy the general government. It is very improbable that any state legislature will adopt measures to destroy the representation of its own constituents in congress, especially when the state must, represented in congress or not, pay its proportion of the expence of keeping up the government, and even of the representatives of the other states, and be subject to their laws. Should the state legislatures be disposed to be negligent, or to combine to break up congress, they have a very simple way to do it, as the constitution now stands — they have only to neglect to chuse senators, or to appoint the electors of the president, and vice-president: there is no remedy provided against these last evils: nor is it to be presumed, that if a sufficient number of state legislatures to break up congress, should, by neglect or otherwise, attempt to do it, that the people, who yearly elect those legislatures, would elect under the regulations of congress. These and many other reasons must evince, that it was not merely to prevent an annihilation of the federal government that congress has power to regulate elections.

It has been urged also, that the state legislatures chuse the federal senators, one branch, and may injure the people, who chuse the other, by improper regulations; that therefore congress, in which the people will immediately have one, the representative branch, ought to have power to interfere in behalf of the people, and rectify such improper regulations. The advocates have said much about the opponents dwelling upon possibilities: but to suppose the people will find it necessary to appeal to congress to restrain the oppressions of the state legislatures, is supposing a possibility indeed. Can any man in his senses suppose that the state legislatures, which are so numerous as almost to be the people themselves, all branches of them depending yearly, for the most part, on the elections of the people, will abuse them in regulating federal elections, and make it proper to transfer the power to congress, a body, one branch of which is chosen once in six years by these very legislatures, and the other biennially, and not half so numerous as even the senatorial branches in those legislatures?

Senators are to be chosen by the state legislatures, where there are two branches the appointment must be, I presume, by a concurrent resolution, in passing which, as in passing all other legislative acts, each branch will have a negative; this will give the senatorial branch just as much weight in the appointment as the democratic: the two branches form a legislature only when acting separately, and therefore, whenever the members of the two branches meet, mix and vote individually in one room, for making an election, it is expressly so directed by the constitutions. If the constitution, by fixing the choice to be made by the legislatures, has given each branch an equal vote, as I think it has, it cannot be altered by any regulations.

On the whole, I think, all general principles respecting electors ought to be carefully established by the constitution, as the qualifications of the electors and of elected: the number of the representatives, and the inhabitants of each given district, called on to chuse a man from among themselves by a majority of votes; leaving it to the legislature only so to regulate, from time to time, the extent of the districts so as to keep the representatives proportionate to the number of inhabitants in the several parts of the country; and so far as regulations as to elections cannot be fixed by the constitution, they ought to be left to the state legislatures, they coming far nearest to the people themselves; at most, congress ought to have power to regulate elections only where a state shall neglect to make them.


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