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. 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.

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.*

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. 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.

3 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.

age qualification. (3) Amendments to make secessionists ineligible. (4) Amendments to remove the restrictions against nat- · uralized citizens resident a certain number of years.

(1) The State ratifying convention of New York, not satisfied with the provision of the Constitution which rendered a foreignborn person who was a citizen of the United States at the time of the adoption of this Constitution eligible to the Presidency, proposed that this article be so amended, "That no person, except natural-born citizens, or such as were citizens on or before the 4th day of July, 1776, or such as held commissions under the United States during the war and have at any time since the 4th day of July, 1776, become citizens of one or other of the United States, and who shall be a freeholder, shall be eligible to the places of President, Vice-President, or member of either House of the Congress of the United States.”1 This resolution was not introduced in the First Congress, but in (July) 1798, when the country was excited by the foreign complication, and the alien and sedition acts had just been passed, somewhat similar amendments were proposed in both the Senate and House by members from Massachusetts in response to a resolution passed by the Massachusetts and Connecticut legislatures. The resolution proposed to render ineligible for the Presidency and to disqualify from service in Congress all but native-born citizens, or those resident in the United States at and since the Declaration of Independence. This was a Federalist affront to Gallatin, who had strongly opposed the alien and sedition act. The Massachusetts and Connecticut resolutions further suggested as an alternative amendment, in case the above proposition should not be agreeable, the exclusion from these offices of all persons not naturalized at the passing of the amendment and all such as have not resided fourteen years in the United States previous to their election.*

(2) In addition to the resolution making a Senator or Repre sentative ineligible to any civil office or appointment, treated elsewhere, there were resolutions introduced which stipulated in specific terms that no member of either House should be eligible to the office of President or Vice-President. The one presented in 1846 continued the restriction for four years there

'App., No. 50.

2 App., Nos. 331, 333, 333b.

3 Schouler, Vol. I, p. 401.

4 App., No. 333. Resolution tabled.

6 Ante, par. 11.

after,' and one of two suggested in 1872 for two years thereafter. Another resolution, more general in its provisions, but doubtless including Senators and Representatives among the class of persons restricted, was proposed in 1822.3 By its provision any person holding any Government office at any time within four years next preceding the Presidential election was ineligible to the Presidency. This same resolution proposed increasing the age qualification from 35 to 45. In 1826 an amendment suggesting this same age qualification was introduced.'

(3) The amendments proposing the disqualification of secessionists were the same as those considered under the head of the Legislative department.5

(4) In the last of the "sixties" and the early "seventies," movement was set on foot to enable naturalized citizens who had been fourteen years resident in the United States and fulfilled the qualifications as to age to become eligible to the Presidency. Four amendments proposing such a change in the Constitution were introduced during this time."

37. CHOICE OF PRESIDENT AND VICE-PRESIDENT.

No question gave the framers of the Constitution so much trouble as the question of the method of the choice of the Executive. The Convention, after vacillating between several plans, finally fell back upon the system of an indirect election through an electoral college. This method of choosing the

App., No. 746.

App., Nos. 1347, 1351.

3 App., No. 507.

4 App., No. 561.

8

By Mr. Woodson of Kentucky.

In 1882 an amendment was proposed making Cabinet officers ineligible to the Presidency. App. No. 1551.

Post, par. 128; ante, par. 11.

6 App., Nos. 1226 1332, 1337, 1358. One was reported adversely. The motion by Mr. Morgan of Ohio, the framer, to suspend the rules and pass the resolution was rejected in the case of each of the last two of these propositions.

'Wilson's remark in the Pennsylvania convention, Elliot, II, p. 511; Madison's letter of 1823; ibid., III, p. 332.

Eleven different methods for selecting the Chief Executive were suggested: (1) By the National Legislature, by Ed. Randolph, Elliot's Debates, I, 144; V, 128. (2) By the State executives, Elbridge Gerry; ibid., 1, 167; V, 174. (3) By the Congress constituted as under the Articles of Confederation, William Patterson; ibid., 1, 176; v, 192. (4) By electors to be chosen by the people, Alexander Hamilton; ibid., 1, 179; v, 205. (5) By electors to be chosen by the people of the several States, Gouverneur Morris; ibid., 1, 262; V, 473. (6) By electors to be chosen by the people in districts, James Wilson; ibid., 1, 156; v, 143. (7) By electors to be appointed by the State legislatures, Oliver Ellsworth; ibid., 1, 211; v, 338. (8) By electors to be taken by lot from the National Legislature, James Wilson; ibid., 1, 217; v, 362. (9) By the National Legislature, each State having one vote, Mr. Dayton, ibid., 1, 262; v, 473. (10) By direct vote of the people, Mr. Carroll; ibid., 1, 283; v, 472; Gouverneur Morris (by citizens); ibid., 1, 208; v, 323. (11) By electors to be chosen for each

President was without doubt suggested by the system of electing Senators under the constitution of Maryland. In that State "the Senators were selected by a body of electors chosen every five years by the inhabitants of the State for this particular purpose and occasion." The principal considerations which led the members of the convention to favor this system was, on the one hand, their profound distrust of the people and their desire to preserve the relative influence of the States; and, on the other, their fear that if the election should be given to Congress the Executive might become dependent upon the leg. islative department.3 Therefore, they determined to place the election in the hands of a small body of men "to be elected on account of their wisdom and character," who, it was expected, being entirely independent in their action of the people and the Congress, would exercise "discretion and discernment" in the choice of men "preeminent for ability and virtue." No feature of the new instrument seems to have been contemplated by the framers with so much satisfaction and to have aroused so little opposition in the ratifying conventions as the article providing for the election of President and VicePresident.5

The system has not worked well in actual use, and no part of the Constitution has caused so much dissatisfaction and hence given rise to so many amendments to effect a change." Although the letter of the instrument remains only slightly amended, in practice its spirit has been completely perverted from what was intended by its framers. The electoral colleges instead of being deliberative bodies are pledged in advance to vote for certain men, and hence have become mere agents, automata. No better idea of the way in which an amendment is practically obtained, when it proves impossible to secure a State in such manner as the legislature thereof may direct. From Committee August 31, 1787. Adopted. Several of the above were adopted, only to be reconsidered and defeated. That for the election by the two Houses of Congress was three times adopted, once unanimously, and as often reconsidered and rejected. See Atlantic Monthly, vol. 42, 543; No. Am. Rev., vol. 140, February, 1885; McKnight, The Electoral System of the United States, pp. 221 224; O'Neil, The American Electoral System, chap. XI.

Constitution of Maryland (1776), Articles XIV-XVIII.

2J. H. Robinson, Original Features in the United States Constitution. Acad., Vol. 1, p. 229. Stevens, Sources of the Constitution, pp. 153-154, note.

3 McKnight, pp. 30-33.

Annals of Am.

4 Senator Morton's speech, Forty-third Congress, second session, Cong. Record, p. 627. The Federalist," No. 67; also remarks of James Wilson and Chief Justice McKean

in the Pennsylvania convention. Elliot, II. pp. 511, 542.

6 Story, II, pp. 298-301.

7 Morton's speech as above. Bryce, 1, pp. 40-44.