are to choose immediately, though the Constitution holds their choice to be valid, if made before the fourth day of March following. And in the cases of the elections in 1801 and 1825, as no choice was made, the House of Representatives retired and voted, and the Senate were admitted to be present as spectators. The person having the greatest number of votes of the electors for President, is President, if such number be a majority of the whole number of electors appointed; but if no person have such a majority, then, from the persons having the highest number, not exceeding three, on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote. A quorum for this purpose shall consist of a member or members from two thirds of the states, and a majority of all the states shall be necessary to a choice. If the House of Representatives shall not choose a President, whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in the case of the death or other constitutional disability of the President. (b)

The person having the greatest number of votes as Vice-President, is Vice-President, if such number be a majority of the whole number of electors appointed; and if no person have a majority,

(b) Amendments to the Constitution, art. 12.

previously appointed by the Senate and House respectively, who were to read the same. If there was only one return or purported return from a state, the President was to call for objections, if any. If any objections were made in the form prescribed, they were to be submitted to the houses of Congress separately, and no return was to be rejected without the concurrence of both houses. If more than one return from a state had been received, they were to be opened and read as in case of a single return, and objections in writing to each return received; and then the question of which was the correct and legal return was to be referred to a commission composed of five representatives to be chosen

by the House of Representatives, five senators to be chosen by the Senate, and five judges of the United States Supreme Court, four of whom were designated, and power conferred upon them to choose the fifth. 19 Stat. at Large, 227. More than one purported return had been received from each of the three states mentioned above, and these were all referred to the commission. The commission decided, by a vote of eight to seven, that they could not go behind the regular returns, and the votes of those states were accordingly counted for the Republicans. Since that time efforts have been made to provide a more satisfactory mode of counting the votes, but as yet without

success.

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then from the two highest numbers on the list the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two thirds of the whole number of senators, and a majority of the whole number is necessary to a choice; and no person constitutionally ineligible to the office of Presi- * 278 dent shall be eligible to that of Vice-President of the United States. (a) The Constitution does not specifically prescribe when or where the Senate is to choose a Vice-President, if no choice be made by the electors; and, I presume, the Senate may elect by themselves, at any time before the fourth day of March following.

The President and Vice-President are equally to be chosen for the same term of four years; (b) and it is provided by law, (c) that the term shall, in all cases, commence on the fourth day of March next succeeding the day on which the votes of the electors shall have been given.

In case of the removal of the President from office, or of his death, resignation, or inability to discharge the powers and duties of the office, the same devolve on the Vice-President; and except in cases in which the President is enabled to reassume the office, the Vice-President acts as President during the remainder of the term for which the President was elected. Congress are authorized to provide by law for the case of removal, death, resignation, or inability, both of the President and Vice-President, declaring what officer should then act as President; and the officer so designated is to act until the disability be removed, or a President shall be elected, and who is in that case to be elected on the first Wednesday of the ensuing December, if time will admit of it, and if not, then on the same day in the ensuing year. (d) In pursuance of this constitutional provision, the act of Congress of March 1, 1792, sec. 9, declared, that in case of a vacancy in the office, both of President and Vice-President, the President of the Senate pro tempore, and in case there should be no President of the Senate, then the Speaker of the House of Representatives for the time being, should act as President until the vacancy was supplied. The evidence of a refusal to accept, or of a resignation of the office of President and Vice-President is declared,

(a) Amendments to the Constitution, art. 12. (b) Constitution, art. 2, sec. 1. (c) Act of Congress, March 1, 1792. (d) Constitution, art. 2, sec. 1; act of Congress, March 1, 1792.

by the same act of Congress, sec. 11, to be a declaration in writing, filed in the office of the Secretary of State. And if the office should, by the course of events, devolve on the Speaker, after the Congress for which the last Speaker was chosen had

expired, and before the next meeting of Congress, it might *279 be a question who is to serve, * and whether the Speaker of the House of Representatives, then extinct, could be deemed the person intended.

The mode of electing the President appears to be well calculated to secure a discreet choice, and to avoid all those evils which the partisans of monarchy have described, and the experience of other nations and past ages have too clearly shown to be the consequence of popular elections. Had the choice of President been referred at once, and directly, to the people at large, as one single community, there might have been reason to apprehend, and such no doubt was the sense of the convention, that it would have produced too violent a contest, and have been trying the experiment on too extended a scale for the public virtue, tranquillity, and happiness. Had we imitated the practice of most of the southern states, in respect to their state executives, and referred the choice of the President to Congress, this would have rendered him too dependent upon the immediate authors of his elevation to comport with the requisite energy of his own department; and it would have laid him under temptation to indulge in improper intrigue, or to form a dangerous coalition with the legislative body, in order to secure his continuance in office. All elections by the representative body are peculiarly liable to produce combinations for sinister purposes. The Constitution has avoided all these objections, by confiding the power of election to a small number of select individuals in each state, chosen only a few days before the election, and solely for that

purpose. This would seem, prima facie, to be as wise a 280 provision as the wisdom of man could have devised, to

avoid all opportunity for foreign or domestic intrigue. These electors assemble in separate and distantly detached bodies, and they are constituted in a manner best calculated to preserve them free from all inducements to disorder, bias, or corruption. There is no other mode of appointing the chief magistrate, under all the circumstances peculiar to our political condition, which appears to unite in itself so many unalloyed advantages. It

must not be pronounced to be a perfect scheme of election, for it has not been sufficiently tried. The election of 1801 threatened the tranquillity of the Union; and the difficulty that occurred in that case, in producing a constitutional choice, led to the amendment of the Constitution on this very subject; but whether the amendment be for the better or for the worse may be well doubted, and remains yet to be settled by the lights of experience. The Constitution says, that each state is to appoint electors in such a manner as the legislature may direct; and in some of the states the electors have been chosen by the legislature itself, in the mode prescribed by law. But it is to be presumed that there would be less opportunity for dangerous coalitions and combinations for party, or ambitious or selfish purposes, if the choice of electors was referred to the people at large; and this seems now to be the sense and expression of public opinion and the general practice.

4. Duration of Office. The President, thus elected, holds his office for the term of four years, (a) a period, perhaps, reasonably long for the purpose of making him feel firm and independent in the discharge of his trust, and to give stability and some degree of maturity to his system of administration. It is certainly short enough to place him under a due sense of dependence on the public approbation. The President is re-eligible for successive terms, but in practice he has never consented to be a candidate for a third election, and this usage has indirectly established, by the force of public opinion, a salutary limitation to his capacity of continuance in office.

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5. Support. The support of the President is secured by a provision in the Constitution, which declares, (a) 281 that he shall, at stated times, receive for his services a compensation that shall neither be increased nor diminished. during the period for which he shall have been elected; and that he shall not receive, within that time, any other emolument from the United States, or any of them. This provision is intended to preserve the due independence and energy of the executive department. It would be in vain to declare that the different departments of government should be kept separate and、 distinct, while the legislature possessed a discretionary control (a) Constitution, art. 2, sec. 1. (a) Art. 2, sec. 1.

This

over the salaries of the executive and judicial officers. would be to disregard the voice of experience and the operation of invariable principles of human conduct. A control over a man's living is, in most cases, a control over his actions. The Constitution of Virginia considered it as a fundamental axiom of government, that the three great and primary departments should be kept separate and distinct, so that neither of them exercised the powers properly belonging to the other. But without taking any precautions to preserve this principle in practice, it made the governor dependent on the legislature for his annual existence and his annual support. The result was, as Mr. Jefferson has told us, (b) that during the whole session of the legislature, the direction of the executive was habitual and familiar. The Constitution of Massachusetts discovered more wisdom, and it set the first example in this country, of a constitutional provision for the support of the executive magistrate, by declaring that the governor should have a salary of a fixed and permanent value, amply sufficient, and established by standing laws. Those state constitutions which have been made or amended since the establishment of the Constitution of the United States have generally followed the example which it has happily set them, in this and

in many other instances; and we may consider it as one of * 282 the most signal blessings bestowed on * this country, that we have such a wise fabric of government as the Constitution of the United States constantly before our eyes, not only for our national protection and obedience, but for our local imitation and example.

6. Powers. Having thus considered the manner in which the President is constituted, it only remains for us to review the powers with which he is invested.

He is commander-in-chief of the army and navy of the United States, and of the militia of the several states, when called into the service of the Union. (a) The command and application of the public force to execute law, maintain peace, and resist foreign invasion, are powers so obviously of an executive nature, and require the exercise of qualities so characteristical of this department, that they have always been exclusively appropriated to it, in every well-organized government upon earth, (b) In no (b) Notes on Virginia, 127. (a) Art. 2, sec. 2.

(b) Mr. Duer, in his Treatise on Insurance, i. 356, intimates that, in time of war,