CHAPTER V.

OF THE PRESIDENT'S PARTICIPATION IN THE LEGISLATIVE POWER.

THE president partakes of the legislative power under wise and cautious qualifications, founded, as the whole frame of our government is founded, on their tendency to promote the interests of the people. He does not originate laws or resolutions; he takes no part in the deliberations on them during their progress; he does not act in relation to them indirectly by advice or interference of any sort, until they have passed both houses: it is only when their operations are concluded that his power begins.

A view of his other functions will belong to other parts of this work, but as preparatory to the whole, it is necessary to set forth the manner of his being elected.

To call an individual from private life in order that he may preside over the interests of millions; to invest him with the various dignified functions, and the extensive patronage which appertain to a station so exalted; to secure as completely as possible, the free exercise of the people's rights; to discourage and prevent the artifices of party, and of individual ambition; and to accomplish all this by means of a fixed and practicable system which should neither be misunderstood, perverted nor resisted, was a task of no small difficulty.

Hereditary succession has its advocates among the lovers of peace and regularity; and the turbulent elections of Poland have often been quoted by those who did not distinguish between a military aristocracy and a well ordered republic. But we had among ourselves more appropriate examples in the elections of the governors of states, which an experience, short but satisfactory, pointed out as models that might be carefully consulted.

The immense territory over which this officer was to preside, the population already great, and annually increasing beyond the relative growth of most other countries, the divisions of states, each separate and independent, and the necessity of admitting to some extent the sensations of local identity even in the act of general and consentaneous suffrages, suggested certain combinations of the elective faculty which in a single state would be useless and unwieldy.

To effect these purposes, an excellent theory was adopted. Each state is to appoint in such manner as the legislature may direct, a number of electors equal to the whole number of senators and representatives to which the state may be entitled in congress, and these electors are to choose the President, and Vice President by ballot only.

In thus fixing the proportional number of electors, we perceive a due attention to the preservation of the state character, without impairing the universality of action incident to the election itself.

The people of each state had created their respective legislatures according to the forms of their own constitutions. Those legislatures are to direct in what manner the electors shall be appointed, and there is no restriction upon them in this respect, because it is one of those instances in which it was right to leave a certain free agency to the state.

We have seen that in the appointment of senators, the state acts by the legislature alone. The legislature cannot divest itself of the duty of choosing senators when the occasion requires it. It cannot devolve the choice upon electors or on the people.

But the duties of the senate though dignified and exalted, are not so various as those of the president. Their participation in the executive business is small and at uncertain intervals. The president comes into daily contact with the people, by his daily executive functions, yet it was conceived that he might feel a greater dependence on the people than the public interests would warrant, if his election sprung immediately from them. On the other hand, if his election depended entirely on the legislatures, it would carry the state character beyond its reasonable bearings, and create a sense of dependency on them alone, instead of a relation to the people at large. Under the old confederation, the president was chosen by the members of the congress, and not by the state legislatures who appointed those members.

From these coincidences it was found expedient that he should owe his election, neither directly to the people, nor to the legislatures of states, yet that these legislatures should create a select body, to be drawn. from the people, who in the most independent and unbiassed manner, should elect the president. As the election would thus in effect become in a certain sense, the combined act of the legislatures and of the people, it was further considered that while the latter were thus brought into action, the state character was further to be maintained, and hence two electors were, at all events, to be secured to each state. Thus as an equal representation in the senate was already secured to each state, however small the state might be, a certain degree of respectability and effect was also secured to the smallest state, in the number of electors. This concession to the small states could not, however, be allowed, without allowing it also to the largest, since all are constitutionally equal.

The manner in which these great objects were to be effected is now to be exhibited.

It is directed that the electors shall meet in their respective states. The particular place of meeting is properly to be fixed by the legislature, but it cannot be out of the state; if the legislature should inadvertently or designedly omit to designate the place of meeting, or if any moral or physical cause should render it impossible for the electors to assemble there, nothing appears in the Constitution to prevent them from meeting at a place of their own choice.

The election is to be by ballot, the mode of proceeding best calculated to secure a freedom of choice.

Of the two persons voted for, one at least shall not be an inhabitant of the same state with the electors. The votes being transmitted to the senate were to be opened by its president in the presence of the senate and house of representatives. The person having the greatest number of votes was to be president if such number was a majority of the whole number of electors appointed, and if there was more than one who, had such majority and had an equal number of votes, the house of representatives were immediately to choose by ballot one of them for president. If no person had a majority, the house should in like manner choose the president out of the five highest on the list. The votes of the house were to be taken not individually, but by states, the representatives from each state having one vote. A quorum to consist of a member or members from two-thirds of the states, and a majority of all the states was necessary for a choice.

The mode of proceeding was somewhat different as to the vice president. After the choice of the president, the person having the greatest number of votes was to be vice president. If there remained two or more who had an equal number of votes, the senate and not the house, were to choose from them by ballot the vice president, and as it is not directed that in this respect they shall vote by states, it follows that they vote individually as in ordinary cases.

Such was the original plan of the constitution, but it has been usefully altered by providing that the ballots of the electors shall be separately given for president and vice president, and that the vice president shall be elected, as in the case of the president, by a majority of the whole number of electors appointed.

The number of candidates out of whom the selection is to be made by the house of representatives, is reduced from five to three. The senate in respect to vice president is confined to the two highest in votes.

In regard to the final choice of the president, it was deemed expedient that the house of representatives should vote by states, because there would always be reason to suppose that if the people at large were much divided in opinion, their immediate representatives would be incapable of coming to a decision, and no other mode of removing the difficulty occured than in this manner to refer it to the states. In the senate, where the representation is equal, the same inconvenience was not to be apprehended, and by reducing the ultimate candidates to a smaller number, those who represented states in which the votes had been lost, would be much less influenced, even if such influence existed at all.

Another benefit also resulted from it. By the first mode of proceeding the senate was restrained from acting until the house of representatives had made their selection, which if parties ran high, might be considerably delayed by the amendment, the senate may proceed to choose a vice president immediately on receiving the returns of the votes. If under the old mode, the house of representatives did not choose a president before the fourth day of March next ensuing, the vice president then in office was to act as president. So that although the public confidence might have been wholly withdrawn from him, he would become president in effect whereas on the present plan, if no president is elected by the house of representatives, the vice president who will fill the office, will have the fresh suffrages of the people.

So far therefore as relates to this part of the plan for choosing the president and vice president, the arrangement seems now settled as judiciously as the nature of our constitution will admit, although one difficulty Dot provided for, may possibly some day occur. If more than three of those highest in votes for president, or than two of those voted for as vice president should be equal in number of votes, it is not directed how the selection shall be made. In the original text it is declared, that the votes of the house of representatives and the senate shall be by ballot, and. so it still continues as to the house of representatives, but it is not directed in the amendment, how the votes of the senate shall be given. It is probable, however, that a vote by ballot, would be adopted.

At present, (1824,) the electors are chosen by the people in seventeen out of the twenty-four states, either by a general ticket, or in districts fixed by the legislature. In the remaining seven, the legislature has reserved to itself the power of appointing them. The former mode seems most congenial with the nature of our government, and the popular current now sets so strongly in favour of it, that the practice will probably become general. 1

Vacancies in the office of president are provided for. "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, it shall devolve on the vice president," and congress shall have power to provide for the concurrent vacancies of both.

This power has been executed by authorizing the president pro tempore of the senate to perform those functions. The president pro tempore of the senate is chosen by the senate during the absence of the vice president, or when he executes the office of president, and it has become usual for the vice president to retire from the senate a few days before the close of the session, in order that a president pro tempore may be chosen, to be ready to act on emergencies. If however there should happen to be vacancies in all these three respects, the speaker of the house of representatives is next empowered to assume the office of president, and beyond this no provision has been made.

If the vice president succeeds to the office of president, he continues in it till the expiration of the time for which the president was elected; but if both those offices are vacant, it becomes the duty of the secretary of state to take measures for the election of a president.

The effect of the last amendment has not been adverted to by congress. As the Constitution now stands a vice president cannot be elected till the regular period.

Notification is to be given, as well to the executive of each state as in one at least of the public newspapers printed in each state, that electors of a president shall be appointed or chosen within thirty-four days next preceding the first Wednesday in the ensuing December, unless there shall not be two months between the date of the notification and the first Wednesday in the ensuing December, in which case the election shall be postponed till the ensuing year. But if the term of the office of the president and vice president would have expired on the third of March next following such vacancies, no extra election is necessary, as the regular election will then take place on the same day which the secretary of state is otherwise directed to notify.

For the office of both president and vice president is fixed to commence on the fourth of March in each year, and the regular election takes place on the first Wednesday of the preceding December.

Under these multiplied provisions, no inconvenience can be apprehended. It can scarcely ever happen that there shall be at one and the same time no president, vice president, pro tempore president of the senate, and speaker of the house of representatives.

It must however be acknowledged that in no respect have the enlarged and profound views of those who framed the constitution, nor the expectations of the public when they adopted it, been so completely frustrated as in the practical operation of the system so far as relates to the independence of the electors.

It was supposed that the election of these two high officers would be committed to men not likely to be swayed by party or personal bias, who would act under no combination with others, and be subject neither to intimidation or corruption. It was asserted that the choice of several persons to form an intermediate body of electors, would be much less apt to convulse the community with extraordinary movements, than the choice of one who was himself to be the final object of their wishes. 2

Whether ferments and commotions would accompany a general election by the whole body of the people, and whether such a mode of election could be conveniently practised in reference to the ratio of representatives prescribed in the constitution, is yet to be ascertained; but experience has fully convinced us, that the electors do not assemble in their several states for a free exercise of their own judgments, but for the purpose of electing the particular candidate who happens to be preferred by the predominant political party which has chosen those electors. In some instances the principles on which they are chosen are so far forgotten, that electors publicly pledge themselves to vote for a particular individual, and thus the whole foundation of this elaborate system is destroyed.

Another innovation has also been introduced. Members of congress, entrusted only with the power of ordinary legislation, have frequently formed themselves into a regular body at the seat of government, and undertaken to point out to the people certain persons as proper objects of their choice. Although the mild and plausible garb of recommendation is alone assumed, yet its effect is known and felt to have been often great and sometimes irresistible.

If the Constitution, as originally proposed, had contained a direct provision that the president and vice president should be chosen by a majority of the two houses of congress, it is not probable that this part of it would have been adopted.

That the chief executive magistrate should be the creature of the legislature; that be should view in them the source from which he sprung, and by which he was to be continued, would at once destroy the dignity and independence of his station, and render him no longer what the Constitution intended, an impartial and inflexible administrator of the public interests. To the people alone he would no longer consider himself responsible, but he would be led to respect, and would be fearful to offend, a power higher than the people.

Such principles cannot be found in the Constitution; and it is wholly inconsistent with its spirit and its essence, to effectuate indirectly, that which directly is not avowed or intended. These instances fully prove that the safety of the people greatly depends on a close adherence to the letter and spirit of their excellent Constitution; but it is probable that a late failure will prevent a renewal of the last mentioned attempt. And in reference to the election of 1828, it has not been renewed, but, with a strict adherence to the forms prescribed, the voice of a great majority of the people has decided the choice.

Before we close the subject, it is proper to add that, in one respect, the caution of the Constitution cannot be violated — no senator or representative or person holding an office of trust or profit under the United States can be an elector, and therefore the vote of every such person would be void.


1. There are now (1829) but two states, viz. Delaware and South Carolina in the electors are appointed by the legislature.

2. Fed. No. 8.


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