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person having the greatest number of the electoral votes as Vice-President, if the number is a majority of all the electors appointed, is to be the Vice-President; but if no choice is thus effected, the Senate are to choose the Vice-President from the two highest candidates on the list returned by the electors; but a quorum for this purpose is to consist of two thirds of the whole number of senators, and a majority of the whole number is made necessary to a choice. The amendment further adopts the same qualifications for the office of Vice-President as had been established by the Constitution for the office of President.1
Thus it appears, from an examination of the original Constitution and the amendment, that the most ample provision is made for filling the executive office, in all contingencies but one. If the electors fail to choose according to the rule prescribed for them, the election devolves on the House of Representatives. If that body does not choose a President before the fourth day of March next ensuing, the office devolves on the Vice-President elect, whether he has been chosen by the electors or by the Senate. But if the House of Representatives fail to choose a President, and the Senate make no choice of a VicePresident, or the Vice-President elect dies before the next fourth day of March, the Constitution makes no express provision for filling the office, nor is it easy to discover in it how such a vacancy is to be The Constitution, it is true, confers upon Con
gress authority to provide by law for the case of removal, death, resignation, or inability of both the President and Vice-President, and to declare what officer shall then act as President; and it provides that the officer so designated by a law of Congress shall act accordingly, until the disability be removed, or a President shall be elected. But there is every reason to believe that this provision embraces the case of a vacancy in both offices occasioned by removal, death, resignation, or inability, not of the President and Vice-President elect, but of the President and Vice-President in office. It may be doubted whether the framers of the original Constitution intended to provide for a vacancy in both offices occasioned by the failure of the House of Representatives to elect a President and the death of the Vice-President elect, or a non-election of a Vice-President by the Senate, before the fourth day of March. Their plan was in the first instance studiously framed for the purpose of impressing on the electors the duty of concentrating their votes; and although they saw and provided for the evident necessity of an election of a President by the House of Representatives, when the electoral votes had not produced a choice, they omitted all express provision for a failure of the House to choose a President, apparently for the purpose of making the States in that body feel the importance of the secondary election, and the duty of uniting their votes. This omission was supplied by the amendment, which authorizes the Vice-President elect to act as President, when the House of Repre
sentatives have failed to choose a President, "as in the case of the death or other constitutional disability of the President." This adoption, for the case of a non-election by the House, of the mode of succession previously established by the Constitution, shows that the authority which the Constitution gave to Congress to declare by law what officer shall act as President, in case of a vacancy in both offices, was confined to the removal, death, resignation, or inability of the President and Vice-President in office, and does not refer to the President and Vice-President elect, whose term of office has not commenced.1
1 Congress, however, have not only provided that the President pro tempore of the Senate and the Speaker of the House of Representatives shall successively act as President, in case of the removal, death, resignation, or inability both of the President and Vice-President, until the disability be removed or a President shall be elected, but also that, whenever the offices of President and Vice-President shall both become vacant, a new appointment of electors shall be ordered, and a new election made. The constitutional authority for this latter provision is at least doubtful. (Act of March 1, 1792.) I have discovered no evidence that the framers of the Constitution contemplated an intermediate election of President and Vice-President, excepting an amendment moved by Mr. Madison. The clause which enables Congress to declare what officer
shall act as President, on the death, &c. of both the President and VicePresident, was introduced by Governor Randolph, and terminated thus: "And such officer shall act accordingly, until the time of electing a President shall arrive." Mr. Madison moved to substitute for this the words, "until such disability be removed, or a President shall be elected"; and he has recorded in his Minutes, that he remarked, on moving this amendment, that the phraseology of Governor Randolph "would prevent a supply of the vacancy by an intermediate election." This amendment was adopted. (Elliot, V. 520, 521.) But the difficulty in the way of construing the clause so as to give effect to this suggestion is, that the terms employed by Mr. Madison do not of themselves necessarily import an authority to Congress to order an intermediate election, any more than those used
The committee of detail made no provision respecting the qualifications of the President. But the grand committee, to whom the construction of the office was referred, recommended the qualifications which are to be found in the Constitution; namely, that no person shall be eligible to the office who was not born a citizen of the United States, or was not a citizen at the time of the adoption of the Constitution, and who had not attained the age of thirty-five years, and been fourteen years a resident within the United States. These requirements were adopted with unanimous assent,'
That the executive should receive a stipend, or pecuniary compensation, was a point which had been settled in the earliest stage of the proceedings,
by Governor Randolph. Either of these expressions, when incorporated into the Constitution, would have to be construed with reference to the whole system prescribed by the Constitution for filling the executive branch of the government. Taking all the provisions together, it appears that the executive power is to be vested in a President, who is to hold his office for a term of four years; that Congress shall fix the day on which he is to be chosen by the electors; that, when so chosen, he is to hold the executive power for four years; that if he dies, or is disabled, within that term, and there is no Vice-President to succeed him, Congress shall declare by law what officer shall then act as President, that is, shall hold and
exercise the executive power, and
1 Elliot, V. 462, 507, 521, 522.
notwithstanding the grave authority of Franklin, who was opposed to it. The speech which he delivered on this subject was based upon the maxim, that, in all cases of public service, the less profit, the greater honor. He seems to have been actuated chiefly by the fear that the government would in time be resolved into a monarchy; and he thought this catastrophe would be longer delayed, if the seeds of contention, faction, and tumult were not sown in the system, by making the places of honor places of profit. He maintained this opinion for the case even of a plural executive, which he decidedly advocated; and he instanced the example of Washington, who had led the armies of the Revolution for eight years without receiving the smallest compensation for his services, to prove the practicability of "finding three or four men, in all the United States, with public spirit enough to bear sitting in peaceful council for perhaps an equal term, merely to preside over our civil concerns, and see that our laws are duly executed." His plan was treated with the respect due to his illustrious character, but no one failed to see that it was a "Utopian idea." The example of Washington was, in truth, inapplicable to the question. A patriotic Virginia gentleman, of ample fortune, was called upon, in the day of his country's greatest trial, to take the lead in a desperate struggle for independence. The
1 He anticipated that it would be so regarded. Hamilton, who was in all his views, as unlike
Franklin as any man could be, seconded the motion, out of respect for the mover.