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FORMATION OF THE CONSTITUTION. [Book IV.
that position alone. But in elective, and especially in republican governments, the succession must be devolved on some person already filling some other office; for to designate as a successor to the chief magistrate a person who has no public employment, and no other public position than that of an heir apparent, would be attended with many obvious disadvantages, in such a government.
Fortunately, the peculiar construction of the Senate was found to require a presiding officer who should not be a member of the body itself. As each State was to be represented by two delegates, and as it would be important not to withdraw either of them from active participation in the business of the chamber, a presiding officer was needed who would represent neither of the States. By placing the Vice-President of the United States in this position, he would have a place of dignity and importance, would be at all times conversant with the public interests, and might pass to the chief magistracy, on the occurrence of a vacancy, attended with the public confidence and respect. This arrangement was devised by the grand committee, and was adopted with general consent. It contemplated, also, that the Vice-President, as President of the Senate, should have no vote, unless upon questions on which the Senate should be equally divided; and on account of his relation to this branch of the legislature, the ultimate election of the Vice-President, when the electors had failed to appoint him under the rule prescribed, was retained in the hands of the Senate.
The rule that was to determine when the VicePresident was to succeed to the functions of the chief magistrate, was also embraced in the plan of the grand committee. It was apparent that a vacancy in the principal office might occur by death, by resignation, by the effect of inability to discharge its powers and duties, and by the consequences of an impeachment. When either of these events should occur, it was provided that the office should devolve on the Vice-President. In the case of death or resignation of the President, no uncertainty can arise. In a case of impeachment, a judgment of conviction operates as a removal from office. But the grand committee did not provide, and the Constitution does not contain any provision or direction, for ascertaining the case of an inability to discharge the powers and duties of the office. When such an inability is supposed to have occurred, and is not made known by the President himself, how is it to be ascertained? Is there any department of the government that can, with or without a provision of law, proceed to inquire into the capacity of the President, and to pronounce him unable to discharge his powers and duties? What is meant by the Constitution as inability is a case which does not fall within the power of impeachment, for that is confined to treason, bribery, and other high crimes and misdemeanors. It is the case of a simple incapacity, arising from insanity, or ill health, or, as might possibly occur, from restraint of the person of the President by a public enemy. But in the
former case, how shadowy are the lines which often separate the sound mind or body from the unsound! Society has had one memorable example, in modern times and in constitutional monarchy, of the delicacy and difficulty of such an inquiry; — an instance in which all the appliances of science and all the fixed rules of succession were found scarcely sufficient to prevent the rage of party, and the struggles of personal ambition, from putting the state in jeopardy.1 With us, should such a calamity ever happen, there must be a similar effort to meet it as nearly as possible upon the principles of the Constitution, and consequently there must be a similar strain on the Constitution itself.
In order to make still further provision for the succession, Congress were authorized to declare by law what officer should act as President, in case of the removal, death, resignation, or inability of both the President and the Vice-President, until the disability should be removed, or a new President should be elected.
The mode of choosing the electors was, as we have
1 I allude, of course, to the case of King George III., which had not happened when our Constitution was framed. To ascertain the sanity of a private person is certainly often no less delicate and difficult, than to inquire into the sanity of a person in a high public position. But there is a legal process for determining the capacity of every person to discharge pri
vate duties or to exercise private rights. In the case of the President of the United States, there is no mode provided by the Constitution for ascertaining his inability to discharge his public functions, and no authority seems to have been given to Congress to provide for such an inquiry. Perhaps the authority could not have been given, with safety and propriety.
seen, left to the legislatures of the States. formity, in this respect, was not essential to the success of this plan for the appointment of the executive, and it was important to leave to the people of the States all the freedom of action that would be consistent with the free working of the Constitution. But it was necessary that the time of choosing the electors, and the day on which they were to give their votes, should be prescribed for all the States alike. These particulars were, therefore, placed under the direction of Congress, with the single restriction, that the day of voting in the electoral colleges should be the same throughout the United States. In order to make the electors a distinct and independent body of persons, appointed for the sole function of choosing the President and Vice-President, it was provided further, that no senator or representative, or person holding an office of trust or profit under the United States, shall be appointed an elector.1
The electors were required to meet in their respective States, and to vote by ballot for two persons, one of whom at least should not be an inhabitant of the same State with themselves. Having made a list of all the persons voted for, and of the number of votes given for each, they were to sign and certify it, and to transmit it sealed to the seat of government of the United States, directed to the President of the Senate, who, in the presence of the
1 This clause was inserted, by unanimous consent, on the motion
of Mr. King and Mr. Gerry, September 6. Elliot, V. 515.
Senate and the House of Representatives, was to open all the certificates, and the votes were then to be counted.
Such was the method devised by the framers of the Constitution for filling the executive office. Experience has required some changes to be made in it. It has been found that to require the electors to designate the persons for whom they vote as the President and Vice-President, respectively, has a tendency to secure a choice by the electoral votes, and therefore to prevent the election from being thrown into the House of Representatives; and it has also been deemed expedient, when the election has devolved on the House of Representatives, to confine the choice of the States to the three highest candidates on the list returned by the electors. These changes were made by the twelfth of the amendments to the Constitution, adopted in the year 1804, which also provides that the person having the greatest number of the electoral votes for President shall be deemed to be chosen by the electors, if such number be a majority of the whole number of electors appointed. If a choice is not made by the electors, or by the House of Representatives, before the fourth day of March next following the election, the amendment declares that the Vice-President shall act as President, "as in the case" (provided by the Constitution) "of the death or other constitutional disability of the President."
In the appointment of the Vice-President, the amendment has also introduced some changes. The