CHAPTER III.

PROPOSED AMENDMENTS AFFECTING THE FORM OF THE

GOVERNMENT: EXECUTIVE.

33. EXECUTIVE DEPARTMENT.

More amendments have been proposed to change the provisions of the Constitution in regard to the executive department than upon any other subject, there being some five hundred amendments that can be classified under this head. Of these, by far the greater portion were relative to the choice and term of the Executive. Of the eighteen amendments that passed one branch of Congress during the one hundred years since the inauguration of the Government, one-half have contained provisions either affecting the method of electing the President or in regard to the duration of the term, and two have been presented to change the date of Inauguration Day.1

34. PLURAL EXECUTIVE: ABOLITION OF THE PRESIDENCY OR VICE-PRESIDENCY.

Two propositions presented at the same time in the trying days just previous to the civil war suggested very radical changes in the Executive office. The first was a resolution introduced by Mr. Jenkins of Virginia, calling for the appointment of a committee to inquire as to what changes are necessary in the form of the government for the self-preservation of the slave States, and suggesting the following for consideration: A dual Executive, the division of the Senate into two bodies, or making a majority of the Senate from the two sections necessary for all action, or the creation of another advisory body,

House 1, 1802, May 1, election of President and Vice-President, App., No. 345; House 2, 1803, October 28, election of President and Vice-President, App., No. 359; Senate 3, 1813, February 17, election of President and Vice-President, App., No. 409; Senate 4, 1819, February 3, election of President and Vice-President, App., No. 485; Senate 5, 1820, January 27, election of President and Vice-President, App., No. 489; Senate 6, 1822, March 11, election of President and Vice-President, App., No. 506; Senate 7, 1824, January 30, President ineligible to third term, App., No. 535; Senate 8, 1826, April 3, President ineligible to third term, App., No. 545; Senate 9, 1869, February 9, election of President and Vice-President, App., No. 1308; Senate 10, 1886, June 18, date for Inauguration Day, App., No. 1676; Senate 11, 1887, December 13, date for Inauguration Day, App., No. 1691; the twelfth amendment declared part of Constitution, September 25, 1804, App., No. 358.

2 Under certain circumstances the McDuffie proposition would have resulted in two Executives. Post par., 50, 3.

a council. The other, presented by Mr. Noell of Missouri, was a resolution authorizing the select committee to take into consideration the propriety of abolishing the Presidency, by amendment to the Constitution, and in its place to establish an executive council of three, the members to be elected by districts composed of contiguous States, and for each member to be armed with the veto power. Once since has a similar proposition been made. This was in 1878, when Mr. Southard of Ohio introduced a resolution proposing an amendment making full provision for the creation of an executive council of three Presidents, for their election and administration of the executive power.3 The members were to be selected respectively from each of the three "prominent sections" of the country, "known one as the Western States, one as the Eastern and Middle States, and the other as the Southern States." The term of office should be six years, but it should be so arranged that one member should retire every two years. A majority vote should decide all questions in regard to the administration of the office. The preamble of the resolution declared as the chief reason for the proposed change that "the people of this country are opposed to monarchy or the 'one man power,' created by the accumulation of regal power in the hands of one person in the control and direction of their public affairs in their present extended and complicated relations and interests."4

The Vice-Presidency, especially since the passage of the twelfth amendment, has proved to be a comparatively unimportant office, and less essential to the successful working of our system of government than a single Executive. It is not surprising, therefore, that there have been seven attempts to abolish the office. The first of these was made by the Federalists at the time of their opposition to the adoption of the twelfth

1 App., No. 795. The New Jersey plan presented in the Convention of 1787, favored a plural Executive chosen and removable by Congress. The desirability of a privy council appointed by Congress was also urged. Elliot, v, 192. See also Mason's proposition, ibid., 522. Dual Executive advocated by Calhoun as essential to the protection of his section of the country. Works, 1, 393–396.

2 App., No. 804. Possibly suggested by the Swiss Federal Council, first established in the constitution of 1848, and retained in the revision of 1874. Hart's Fed. Govt., pp. 65 66. This was reviving a proposition of Williamson's in the Federal Convention for a triple Executive to be chosen from the North, Middle, and South. Elliot, v, 358–359.

To be elected directly by the qualified voters of all the States, but the ratio of the vote of each State was to remain the same as under the existing system. App., No. 1465. 4 Other sections of the proposed amendment provided that no person should be eligible for a second term; for the keeping of a journal of the proceedings of the council, a copy of which should be sent to Congress at the beginning of every regular session; for their compensation, etc.

amendment. Mr. Dana of Connecticut moved to strike out all that portion of the amendment relating to the Vice-Presidency, the object being, as he frankly said, to abolish the office of VicePresdent. The Federalists claimed that if the proposed amendment was adopted it would render the continuance of the office of Vice-President useless, and that true reform required its abolition. The effect of the proposed change upon this office was foreseen by several, but by none more clearly than Roger Griswold. He warned Congress that "the man voted for as Vice-President will be selected without any decisive view to his qualification to administer the Government. The office will generally be carried into the market to be exchanged for the votes of some large States for President, and the only crite rion which will be regarded as a qualification for the office of Vice-President will be the temporary influence of the candidate over the election of his State." Too often subsequent events have justified Griswold's forebodings. Although his views were shared by Randolph and some other Democrats, the dilatory tactics of the Federalists had aroused the Democrats so that they would brook no delay, and the proposition was rejected by a vote of 27 to 85.

3

This proposition was presented for the second time by Senator Hillhouse, also a New England Federalist, in 1808, in connection with his other amendments, changing to a considerable degree the legislative and executive departments. The remaining five were suggested by Andrew Johnson's career. The first of these was introduced by Senator Poland of Vermont, in 1867, and the others in the years immediately following by Messrs. Ashley and Sumner, who maintained that the Vice-Presidency was not only a "superfluous," but also a dangerous office.1

App., No. 358, Annals of Congress, Eighth Congress, first session, pp. 671-682. Dana had questioned the need of a Vice-President, in 1802, at the time the change which was later made by twelfth amendment, was first suggested. Annals Seventh Congress, first session, p. 1290.

2 Annals, Eighth Congress, first session, p. 751. Gouverneur Morris, Senator from New York, wrote a letter to the legislature explaining his vote against the amendment. In it he says: "The Vice-Presidency would hereafter be but a bait to catch State gudgeons." Life of Gouverneur Morris by Jared Sparks, Vol. III. p. 173. Among the propositions suggested by Pickering for the consideration of the Hartford convention was one "to restore the original mode of electing the President and Vice-President to prevent the election of a fool for the latter." Adams, New Eng. Fed., p. 408. See also Niles' Register, Vol. XXIV, p. 411.

App., No. 394. Ante, par. 26, 30; post par. 47, 56, 59, 60.

4 App., Nos. 1205, 1227a, 1283a, 1352, 1369. In 1875 Garfield declared himself in favor of the abolition of this office. Record, p. 757.

35. FILLING OF VACANCIES IN THE OFFICE OF PRESIDENT OR VICE-PRESIDENT: ADDITION OF VICE-PRESIDENTS.

In recent years attention has been called to the fact that during the first century of our history under the Constitution, in addition to the death of four Presidents in office, there has been "over one-fourth of the time when the country has had no Vice-President," and "in the last forty years of the period this office has been vacant nearly one-half of the time." It is not strange, therefore, in view of the frequent vacancies in the office of Vice-President, and the dissatisfaction with the old law in regard to the Presidential succession, that several attempts have been made to provide for this contingency by an amendment to the Constitution. These have been of two kinds, the one providing for the immediate filling of the vacancy by a new election, the other by the creation of additional VicePresidents.

What appears to be the earliest proposition of the first class was suggested by Senator Davis of Kentucky, in 1864, in an amendment in regard to the election of President and VicePresident, which provided that any vacancy in the office should be filled by the Senate from their own number.2 By the terms of the amendments offered by Messrs. Ashley and Sumner on the same subject, vacancies were to be filled by a joint convention of both Houses of Congress, in which each member was to have one vote.3 The same suggestion was renewed by Mr. Cravens at a later period. Other propositions have provided that the colleges of electors should continue in office for the Presidential term, with power, in case of vacancies in both of the executive offices, to reconvene and elect a person to fill the same for the residue of the term.5

The amendments of the second class provided for the election of additional Vice-Presidents. Five such propositions have been introduced, the first by Mr. Hammond of Georgia,

1 House Report No. 2493, Forty-ninth Congress, first session. Twenty-five years eight months and four days; eighteen years five months and five days. Vacancies occasioned first by the death of Vice-Presidents: Clinton (1812), Gerry (1814), King (1853), Wilson (1875), and Hendricks (1885). Second by the succession to the Presidency of the following: Tyler (1841), Fillmore (1850), Johnson (1865), Arthur (1881). Third by the resignation of Calhoun (1832).

2 App., No. 1039d. See post, par. 46.

3 App., Nos. 1104a, 1227d, 1283e, 1352, 1368.

4 App., Nos. 1441, 1538.

5 App., Nos. 1247-1248, 1539. The former only provided for a new election in case there remained more than two years of the unexpired term.

in 1881. This resolution provided for the creation of the offices of First, Second, and Third Vice-Presidents. The incumbents of these offices were to be elected by the same method as is at present employed in the Presidential election, and in the case of a vacancy in the office of President or Vice-President it was to devolve upon the next officer in order of the rank of his office. Two similar resolutions have since been proposed.2

At the time the "Presidential succession bill" was before the Forty-ninth Congress, in 1886, Mr. Dibble of South Carolina proposed to the House a constitutional amendment, creating and defining the office of Second Vice-President. In the absence of the Vice President from the Senate this officer might preside, and in case of a vacancy in the office of Vice-President he should succeed to the same.3 This resolution, slightly amended, was reported from the Committee on Election of President and Vice-President. The report of the committee, which is of considerable interest, claimed that the necessity of an additional officer in the line of succession was apparent from the experience of the past, but it criticised the "Presidential succession act" "as but a makeshift," and particularly objectionable in that it practically enables the President to designate his successor in case of his death or resignation. The resolution was not advanced to a vote, and although introduced in the succeeding Congress, it was not again reported, as the new succession act had met with the general approval of the country.

36. QUALIFICATIONS OF THE EXECUTIVE.

The amendments which have been proposed to the provision of the Constitution prescribing the qualifications necessary for President, for convenience of treatment will be considered in the four following groups: (1) Amendments to make the terms of the Constitution more stringent as regards naturalized citizens. (2) Amendments to make either Senators and Representatives or all officeholders ineligible, incidentally increasing the

1 App., No. 1535.

2 App., No. 1619, 1667.

App., No. 1660.

House Report 2493, Forty-ninth Congress, first session. "When the President appoints his Cabinet he at the same time executes a political will and testament, disposing of his unexpired term in case he cease to be President."

5 App. No. 1706.