election to much trouble. On one side, it was contended that the president of the senate had, under them, complete control of the returns, and practically could declare anybody he pleased elected. On the other, it was contended (and this view in the end was sustained) that Congress had complete control.

The cause of this scantiness of provision is probably not difficult to arrive at. The reason why Congress was not made a canvassing board by the framers of the government was that it was not expected to canvass. Looking forward to the operation of the electoral system they had introduced, they naturally expected the voting in the electoral colleges to be a finality. A number of the most eminent and competent men in the various States were to come together and ballot for a president. After they had balloted, there could be nothing remaining to do but to "count" the votes; if any one had a majority, he became president. The States selected their own electors, and it was hardly conceivable in advance that Congress should have anything to do afterwards but to ascertain what the States had done. It may be observed, too, that any plan looking to a canvass of the returns by Congress laid its advocates open to a suspicion of desiring to throw the election into the hands of Congress under the pretense of leaving it to the States. And it must be confessed that this is a real danger. The election of 1876 was decided not by the States, nor, as is frequently incorrectly said, by the electoral commission. It was decided by the two houses of Congress. The count was really an elaborate canvass of the returns, in which Congress had agreed beforehand to be governed by certain definite rules. The decisions of the commission were binding on the two houses, only because Congress had seen fit to make them so; it might, had it pleased, have decided the Florida case or the Louisiana case by the flight of birds or an examination of the entrails of beasts, just as well as by referring it to the commission. If having, under the constitution, solely the right to count

the votes gave Congress authority to delegate the determination of the particular votes to be counted to a commission, it certainly gave Congress authority to arrive at the result in any way it pleased.

This magnification of the office of Congress from that of counting to that of canvassing is a curious and instructive instance of the way in which some one part of any government always tends to absorb power, no matter how carefully the danger may be guarded against.

But the magnification has now taken place. The duty of counting has been enlarged into the duty of canvassing, and it is to the last degree important that the new function of Congress should not be left in its present unsettled condition. The country could ill afford to go through another presidential campaign and canvass like that of 1876, and so long as party divisions remain what they are now the danger cannot be said to be a remote one. The electoral system may be beyond the reach of amendment, but this is not true of the count.

The count of the electoral votes has been for years the subject of discussion in Congress. At the close of the war, eleven States were practically out of the Union, and only gradually returned. As they slowly came back, it grew evident that they would bring with them a Pandora's box of intrigue and faction, and we believe it is to one of these seceded States that we are indebted for the remarkable invention, "double returns." In the congressional count, or in the canvass into which the count has grown, these returns had begun to play a part before the election of 1876. It is a curious proof, too, of the rapidity with which any assumption of authority extends itself that in the discussions which have taken place on the subject Congress has shown a very decided dispo sition to take complete jurisdiction over single as well as double returns. There is a much more plausible ground in the latter case for the exercise of authority than in the former. If two sets of returns are sent from a State to the president of the senate, both showing a formal

compliance with the law in all respects, it would seem to be the necessary duty of Congress to determine which one of the two sets contains the constitutional "votes" which it is to proceed to count. The principle is easily extended to the case of single returns. By the XIIth Amendment, already quoted, the electors are directed to perform certain specified acts. They must "meet in their respective States;" vote "by ballot; ' name in "distinct ballots" the persons voted for as president and vice-president; make "distinct lists" of all persons voted for for both offices, and the number of votes for each. By the revised statutes the electors are required to make out triplicate returns of their voting, to deposit one in the archives of the State, and to send one by mail and one by messenger to Washington, certifying their contents on the outside of the packages. It is possible, as suggested above, that some of these formalities, in the case of States in which there is only one set of returns, may not have been complied with; and the question at once arises whether votes tainted with such informalities are constitutional votes which can be counted. It is but one step further to ask whether, in the case of single returns which are formally regular, but behind which there are charges of fraud, or corruption, or intimidation, the votes can be counted. Suppose, for instance, that in the election of 1876, in Louisiana, republican electors had, after meeting, been prevented from getting their certificates to Washington; there would in that case have been only one set of returns in the hands of the vicepresident, and those democratic. But can it be imagined for a moment that this would have made any difference? It would without doubt have been charged by the republicans that the republican electors had been prevented from getting their returns in by violence, or some other illegal way, and that the certificates ought to be considered as having been sent. There is, in fact, no differ ence in principle between "single" and "double" returns, the latter only presenting a glaring instance of irregularity VOL. XLII.NO. 253.

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or illegality, which in the former may be quite as serious, though not so obvious. For example, suppose the case of double returns in which one set is concocted by a knot of politicians for the mere sake of making trouble, a knot of politicians without any popular vote behind them, or any justification for their action. They might easily, in a State tormented by internal dissensions, like Louisiana, do this in any presidential election, and it would of course be impossible to know which of the two sets contained the votes to be counted without an examination into facts not disclosed on their face. On the other hand, single returns might be sent in based on nothing at all (for instance, if no election had really taken place within the State), whose validity might be as questionable as any conceivable sort of double returns. Moreover, behind these questions there is another of equal importance: whether the titles and acts of the electors are to be gone into by Congress at all, or whether the States are to determine questions of this sort. It appears to be the popular notion that this was settled in favor of the latter view by the electoral tribunal in 1876, - a notion probably derived from its frequent refusal to examine evidence "aliunde the returns." But apart from the fact that the decisions of the commission are not binding on any one, there is no such principle to be extracted from its published opinions.

Each case was decided separately and independently, and the principles which governed the exclusion or inclusion of evidence are nowhere stated.

So far as the count is concerned we are exactly where we were in 1876, and unless some machinery is adopted by Congress we shall in 1880 again find as our only guide the simple constitutional provision that the votes are to be opened and counted. The matter has been referred to committees of the present Congress, and just before the adjournment in June Mr. Edmunds, of Vermont, from the select senate committee, reported an elaborately drawn bill. One of the great difficulties experienced in 1876 was the want of time between the

appointment of electors (in November) and their meeting (in December) for a compromise or settlement of differences as to the result in the State itself. Accordingly, Mr. Edmunds's bill fixes the first Tuesday of October as the day for the popular election, thus gaining a month for this purpose. Another very serious difficulty which arose in 1876 was the frequent election to the electoral colleges of federal office holders, in plain violation of the constitutional provision (art. ii., sec. i.), "No senator, or representative, or person holding an office of trust or profit under the United States, shall be appointed an elector." This is inserted in a statutory form in the committee's bill. The electors are next directed to meet and cast their votes on the second Monday of the following January. The most important provision of the bill, however, is that permitting each State to provide by laws (which must be enacted in advance) for "the trial and determination of any controversies concerning the appointment of electors before the time fixed for the meeting of the electors in any manner it shall deem expedient;" the determination by the State in this way to be "conclusive evidence" of the lawful title of the electors, and to " govern in the counting of the electoral votes" by Congress. This provision would of course remove many difficulties. The trial of the title to elective offices, judicially or otherwise, is a process familiar and common in all the States. There is no reason, in the nature of things, why it should not be applied to presidential electors. The other sections of the proposed act closely follow the electoral compromise of 1876. Congress is to be in joint session on the second Monday in February following every meeting of the electors, the president of the senate presiding, and he is to count the votes by tellers. Objections to the counting of any votes may be made by members, in writing, duly authenticated. They are to be submitted to each house separately, and in the case of single returns no vote is to be rejected except by an affirmative decision of both houses. In

the case of double returns, the decision of the state tribunals of adjudication, erected as provided in the bill, are to govern; and in case of a conflict between state tribunals, only those electoral votes are to be received which are decided by a concurrent vote of both houses to have the support of the lawful and regular tribunals. If the State has made no determination, then also a concurrent vote is required to make any counting possible. In the case of double returns, when the State has failed to adjudicate the question through its local tribunals, the bill would practically prevent any counting at all; and this could hardly be considered a hardship, as the case would really amount to a failure on the part of the State to appoint electors.

If any legislation is to be passed by Congress, it is hard to see how this bill can be improved upon. It does not dispose in advance of all possible questions; but it disposes of all those which have, been suggested by experience, and would effectually prevent any tum or confusion.

Nevertheless we confess to feeling ve skeptical as to the chances of any su measure. Senator Thurman has given notice that he desires to debate Senator Edmunds's measure, and this of itself shows that weighty opposition may be expected. There are many obstacles in the way of any legislation. Politicians who expect to take part in the campaign of 1880 feel that it may be more convenient for them to be governed by circumstances as they arise in the count of that year than to bind themselves in advance by statutory enactment. Counting votes is felt by shrewd politicians to be anxious work, the object of which is certain definite practical advantages rather than the advancement of the cause of justice and fair dealing. The important point in the count is not to settle beforehand what ought to be done with single or double returns, but to count the returns, whether single or double, when they come in, in such a way as to give the election to the party candidate. Besides this, to bind themselves in advance, in the case of an authority so vague and

general as that of counting votes, is to surrender arbitrary power, which is to expect more than it is ordinarily fair to expect of Congress. Moreover, it is not too much to say that each side, in considering any such measure as Mr. Edmunds's, is very suspicious of the other; and as the campaign draws near this suspicion increases in geometrical ratio, as is only natural. For this reason it would probably be easier to pass a measure to take effect twenty years hence, than one to come into play at the time of the next

count.

The next Congress meets in December of next year, with a presidential campaign only six months away; and therefore it is almost certain that a measure, if it is to pass at all, must be passed by the present Congress, between December and March. If there is to be opposition to Mr. Edmunds's measure, it is unlikely to pass; and in that case, with the count as with the electoral system itself, we shall enter what promises to be the bitter campaign of 1880 just as we entered that of 1876.

Edgar Fawcett.

II.

WITH all our pleasant social intercourse, our industrial powers were not idle, and if in any way one could add a little to the treasury it was cheerfully contributed. All who had skill in any kind of fancy work made it useful, and every effort was used to enable us to continue our life at Brook Farm; and we murmured at no retrenchment that was

thought necessary. Baked pork and beans were to us a Sunday luxury, and to hard workers they were not injurious; but an English baronet, not young, and more daintily nurtured, once dined with us on a Sunday, and the consequences were sad to him, for he died of apoplexy that same night. He had placed a man with us in whom he was interested, I do not know from what cause. Perhaps he had been his servant, but a nearer connection was whispered among us; at any rate he was better educated than most of his class at that time in England, and was a close observer and not an unwise thinker. His quaint remarks were very amusing, and there was no peculiarity of person or mind that escaped his observation. One lady, who was tall and very thin and remarkably erect, he always addressed as "your perpendicular majesty," and she good-naturedly answered to the title. He amused us much by his shrewd sayings, which often contained more wisdom than words of more pretension. He was a favorite with all, and particularly with the children on the place, for he had always a kind and merry word for them.

One evening, when we were still in the dining-room, after our tea, I was startled by the appearance at the door of what, for a moment, I really thought must be a ghost, so unearthly seemed the vision; and with dilated eyes and blanched cheeks I turned to Mr. R-, wondering if it were visible to him. His amused smile reassured me, and he whis

pered, "It is Horace Greeley." My mind was very much relieved, and I became able to study the singular apparition before me. His hair was so light that it was almost white; he wore a white hat; his face was entirely colorless, even the eyes not adding much to save it from its ghostly hue. His coat was a very light drab, almost white, and his nether garments the same. I so long protested that his shoes matched the rest of his dress that I cannot now clearly remember whether they were really black or not. It is impossible for me to describe the effect he produced upon me, and it was not until I became acquainted with his gentle and pleasing manner that I could entirely overcome this first impression. I remember his reading to us, when we were all assembled in the parlor at the Aerie, some paper upon which he was desirous of receiving the criticism of our literary world. I am sorry to say the remembrance of its subject has passed from me, but I have an indistinct idea that it was something in reference to our own enterprise. The modesty of his bearing, the deference with which he listened to the remarks made, impressed me strongly. He was not then a politician, but earnest in his ideas of progress; perhaps not always as practical as common-sense persons would advise, but true and unselfish.

We had many other pleasant visitors whose agreeable conversation amused us for the few hours they stayed, but who left no mark on our minds, and we could think of them only as society callers, for whom we would get up a card receiver if it were not certain they would always find somebody at home. This summer an amusing though rather annoying incident happened. The house I lived in, the Cottage, had been built without a cellar, and it was thought it would be more healthy and less damp if one could be dug under it; so one of our members undertook to have it done. The necessary