CHAPTER XXXVI.
EXECUTIVE DEPARTMENT--ORGANIZATION OF.
§ 1404. IN the progress of our examination of the constitution, we are now arrived at the second article, which contains an enumeration of the organization and powers of the executive department. What is the best constitution for the executive department, and what are the powers, with which it should be entrusted, are problems among the most important, and probably the most difficult to be satisfactorily solved, of all, which are involved in the theory of free governments.1 No man, who has ever studied the subject with profound attention, has risen from the labour without an increased and almost overwhelming sense of its intricate relations, and perplexing doubts. No man, who has ever deeply read the human history, and especially the history of republics, but has been struck with the consciousness, how little has been hitherto done to establish a safe depositary of power in any hands; and how often in the hands of one, or a few, or many, of an hereditary monarch, or an elective chief, the executive power has brought ruin upon the state, or sunk under the oppressive burthen of its own imbecility. Perhaps our own history, hitherto, does not establish, that we have wholly escaped all the dangers; and that here is not to be found, as has been the case in other nations, the vulnerable part of the republic.
§ 1405. It appears, that the subject underwent a very elaborate discussion in the convention, with much
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diversity of opinion; and various propositions were submitted of the most opposite character. The Federalist has remarked, that there is hardly any part of the system, the arrangement of which could have been attended with greater difficulty; and none, which has been inveighed against with less candor, of criticised with less judgment.1
§ 1406. The first clause of the first section of the second article is as follows: "The executive power shall be vested in a President of the United States of America. He shall hold his office during the term of four years; and together with the Vice-President, chosen for the same term, be chosen as follows."
§ 1407. Under the confederation there was no national executive. The whole powers of the national government were vested in a congress, consisting of a single body; and that body was authorized to appoint a committee of the states, composed of one delegate from every state, to sit in the recess, and to delegate to them such of their own powers, not requiring the consent of nine states, as nine states should consent to.2 This want of a national executive was deemed a fatal defect in the confederation.
§ 1408. In the convention, there does not seem to have been any objection to the establishment of a national executive. But upon the question, whether it should consist of a single person, the affirmative w. as carried by a vote of seven states against three.3 The term of service was at first fixed at seven years, by a vote of five states against four, one being divided. The term was afterwards altered to four years, upon the report of a
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committee, and adopted by the vote of ten states against one.1
§ 1409. In considering this clause, three practical questions are naturally suggested: First, whether there should be a distinct executive department; secondly, whether it should be composed of more than one person; and, thirdly, what should be the duration of office.
§ 1410. Upon the first question, little need be said. All America have at length concurred in the propriety of establishing a distinct executive department. The principle is embraced in every state constitution; and it seems now to be assumed among us, as a fundamental maxim of government, that the legislative, executive, and judicial departments ought to be separate, and the powers of one ought not to be exercised by either of the others. The same maxim is found recognised in express terms in many of our state constitutions. It is hardly necessary to repeat, that where all these powers are united in the same hands, there is a real despotism, to the extent of their coercive exercise. Where, on the other hand, they exist together, and yet depend for their exercise upon the mere authority of recommendation, (as they did under the confederation,2) they become at once imbecile and arbitrary, subservient to popular clamour, and incapable of steady action. The harshness of the measures in relation to paper money, and the timidity and vacillation in relation to military affairs, are examples not easily to be forgotten.
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§ 1411. Taking it, then, for granted, that there ought to be an executive department, the next consideration is, how it ought to be organized. It may be stated in general terms, that that organization is best, which will at once secure energy in the executive, and safety to the people. The notion, however, is not uncommon, and occasionally finds ingenious advocates, that a vigorous executive is inconsistent with the genius of a republican government.1 It is difficult to find any sufficient grounds, on which to rest this notion; and those, which are usually stated, belong principally to that class of minds, which readily indulge in the belief of the general perfection, as well as perfectibility, of human nature, and deem the least possible quantity of power, with which government can subsist, to be the best. To those, who look abroad into the world, and attentively read the history of other nations, ancient and modern, far different lessons are taught with a severe truth and force. Those lessons instruct them, that energy in the executive is a leading character in the definition of a good government.2 It is essential to the protection of the community against foreign attacks.
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It is not less essential to the steady administration of the laws, to the protection of property against those irregular and high-handed combinations, which sometimes interrupt the ordinary course of justice, and to the security of liberty against the enterprises and assaults of ambition, of faction, and of anarchy.1 Every man the least conversant with Roman history knows, how often that republic was obliged to take refuge in the absolute power of a single man, under the formidable name of a dictator, as well against the intrigues of ambitious individuals, aspiring to tyranny, and the seditions of whole classes of the community, threatening the existence of the government, as against foreign enemies, menacing the destruction and conquest of the state.2 A feeble executive implies a feeble execution of the government. A feeble execution is but another phrase for a bad execution; and a government ill executed, whatever may be its theory, must, in practice, be a bad government.3
§ 1412. The ingredients, which constitute energy in the executive, are unity, duration, an adequate provision for its support, and competent powers. The ingredients, which constitute safety in a republican form of government, are a due dependence on the people, and a due responsibility to the people.4
§ 1413. The most distinguished statesmen have uniformly maintained the doctrine, that there ought to be a single executive, and a numerous legislature. They have considered energy, as the most necessary qualification of the power, and this as best attained by
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reposing the power in a single hand. At the same time, they have considered with equal propriety, that a numerous legislature was best adapted to the duties of legislation, and best calculated to conciliate the confidence of the people, and to secure. their privileges and interests.1 Montesquieu has said, that. "the executive power ought to be in the hands of a monarch, because this branch of government, having need of despatch, is better administered by one, than by many. On the other hand, whatever depends on the legislative power is oftentimes. better regulated by many, than by a single person. But if there were no monarch, and the executive. power should be committed to a certain number of persons, selected from the legislative body, there would be an end to liberty; by reason, that the two powers. would be united, as the same persons would sometimes possess, and would always be able to possess, a share in both."2 De Lolme, in addition to other advantages, considers the unity o{ the executive as important in a free government, because it is thus more easily restrained.3 "In those states," says he, "where the execution of the laws is entrusted to several different hands, and to each with different titles and prerogatives, such division, and such changeableness of measures, which must be the consequence of it, constantly hide the true cause of the evils of the state. Sometimes military tribunes, and at others consuls bear an absolute sway. Sometimes patricians usurp every thing; and at other times those, who are called nobles. Sometimes the people. are oppressed by de-
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cemvirs; and at others by dictators. Tyranny in such states does not always beat down the fences, that are set around it; but it leaps over them. When men think it confined to one place, it starts up again in another. It mocks the efforts of the people, not because it is invincible, but because it is unknown. But the indivisibility of the public power in England has constantly kept the views and efforts of the people directed to one and the same object."1 He adds, in another place, "we must observe a difference between the legislative and executive powers. The latter may be confined, and even is the more easily so, when undivided. The legislature on the contrary, in order to its being restrained, should absolutely be divided."2
§ 1414. That unity is conducive to energy will scarcely be disputed. Decision, activity, secrecy, and despatch will generally characterise the proceedings of one man in a much more eminent degree, than the proceedings of a greater number; and in proportion, as the number is increased, these qualities will be diminished.3
§ 1415. This unity may be destroyed in two ways; first, by vesting the power in two or more magistrates of equal dignity; secondly, by vesting it ostensibly in one man, subject, however, in whole or in part to the control and advice of a council. Of the first, the two consuls of Rome may serve, as an example in ancient times; and in modern times, the brief and hasty
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history or the three consuls off France, during its shortlived republic.1 Of the latter, several states in the Union furnish examples, as some of the colonies did before the revolution. Both these methods or destroying the unity of the executive have had their advocates. They are both liable to similar, if not to equal objections,2
§ 1416. The experience of other nations, so far as it goes, coincides with what theory would point out. The Roman history records may instances of mischiefs to the republic from dissensions between the consuls, and between the military tribunes, who were at times substituted instead of the consuls. Those dissensions would have been even more striking, as well as more frequent, if it had not been for the peculiar circumstances of that republic, which often induced the consuls to divide the administration of the government between them. And as the consuls were generally chosen from the Patrician order, which was engaged in perpetual struggles with the Plebeians for the preservation of the privileges and dignities of their own order; there was an external pressure, which compelled them to act together for mutual support and defence.3
§ 1417. But independent of any of the lights derived from history, it is obvious, that a division of the executive power between two or more persons must always tend to produce dissensions, and fluctuating councils. Whenever two or more persons are engaged
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in any common enterprise, or pursuit, there is always danger of difference of opinion. If it be a public trust, or office, in which they are clothed with equal dignity and authority, there are peculiar dangers arising from personal emulation, or personal animosity; from superior talents on one side, encountering strong jealousies on the other; from pride of opinion on one side, and weak devotion to popular prejudices on the other; from the vanity of being the author of a plan, or resentment from some imagined slight by the approval of that of another. From these, and other causes of the like nature, the most bitter rivalries and dissensions often spring. Whenever these happen, they lessen the respectability, weaken the authority, and distract the plans and operations of those, whom they divide. The wisest measures are those often defeated, or delayed, even in the most critical moments. And what constitutes even a greater evil, the community often becomes split up into rival factions, adhering to the different persons, who compose the magistracy; and temporary animosities become thus the foundation of permanent calamities to the state.1 Indeed, the ruinous effects of rival factions in free states, struggling for power, has been the constant theme of reproach by the admirers of monarchy, and of regret by the lovers of republics. The Guelphs and the Ghibelins, the white and the black factions, have been immortalized in the history of the Italian states; and they are but an epitome of the same unvarying scenes in all other republics.2
§ 1418. From the very nature of a free government, inconveniences resulting from a division of power must
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be submitted to, in the formation of the legislature. But it is unwise, as well as unnecessary, in the constitution of the executive. In the legislature promptitude of decision is not of great importance. It is more often an evil, than a benefit. Differences of opinion in that department may, indeed, sometimes retard salutary measures; but they often lead to more circumspection and deliberation, and to more perfection and accuracy in the laws. A resolution, once passed by a legislative body, becomes a law; and opposition to it is either illegal or impolitic. Before it becomes a law, opposition may diminish the mischiefs, or increase the good of the measure. But no favourable circumstances palliate, or atone for the disadvantages of dissension in the executive department. The evils are here pure and unmixed. They embarrass and weaken every plan, to which they relate, from the first step to the final conclusion. They constantly counteract the most important ingredients in the executive character, vigour, expedition, and certainty of operation. In peace, distraction of the executive councils is sufficiently alarming and mischievous. But in war, it prostrates all energy, and all security. It brings triumph to the enemy, and disgrace to the country.1
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§ 1419. Objections of a like nature apply, though in some respects with diminished force, to the scheme of an executive council, whose constitutional concurrence is rendered indispensable. An artful cabal in that council would be able to distract and enervate the whole public councils. And even without such a cabal, the mere diversity of views and opinions would almost always mark the exercise of the executive authority with a spirit of habitual feebleness and dilatoriness, or a degrading inconsistency.1 But an objection, in a republican government quite as weighty, is, that such a participation in the executive power has a direct tendency to conceal faults, and destroy responsibility. Responsibility is of two kinds, to censure, and to punishment. The first is the more important of the two, especially in an elective government. Men in public trust will more often act in such a manner, as to render them unworthy of public favour, than to render themselves liable to legal punishment. But the multiplication of voices in the business of the executive renders it difficult to fix responsibility of either kind; for it is perpetually shifted from one to. another. It often becomes impossible amidst mutual accusations to determine, upon whom the blame ought to rest.2 A sense of mutual impropriety sometimes induces the parties to resort to plausible pretexts to disguise their misconduct; or a dread of public responsibility to cover up,
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under the lead of some popular demagogue, their own faults and vacillations. -- Thus, a council often becomes the means, either of shifting off all effective responsibility from the chief magistrate, or of intrigues and oppositions, which destroy his power, and supplant his influence. The constant excuse, for want of decision and public spirit on his part, will be, that he has been overruled by his council; and on theirs, that he would not listen to sound advice, or resisted a cordial co-operation. In regard to the ordinary operations of government, the general result is to introduce a system of bargaining and management into the executive councils; and an equally mischievous system of corruption and intrigue in the choice and appointment of counsellors. Offices are bestowed on unworthy persons to gratify a leading member, or mutual concessions are made to cool opposition, and disarm enmity. It is but too true, that in those states, where executive councils exist, the chief magistrate either sinks into comparative insignificance, or sustains his power by arrangements, neither honourable to himself, nor salutary to the people. He is sometimes compelled to follow, when he ought to lead; and he is sometimes censured for acts, over which he has no control, and for appointments to office, which have been wrung from him by a sort of political necessity.1
§ 1420. The proper conclusion to be drawn from these considerations is, that .plurality in the executive deprives the people of the two greatest securities for the faithful exercise of delegated power. First, it removes the just restraints of public opinion; and, secondly, it diminishes the means, as well as the power, of fixing responsibility for bad measures upon the real authors.2
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§ 1421. The case of the king of Great Britain is adduced, as a proof the other way; but it is a case wholly inapplicable to the circumstances of our republic. In Great Britain there is an hereditary magistrate; and it is a settled maxim in that government, that he can do no wrong; the true meaning of which is, that, for the sake of the public peace, he shall not be accountable for his administration of public affairs, and his person shall be sacred. In that kingdom it is, therefore, wise, that he should have a constitutional council, at once to advise him in regard to measures, and to become responsible for those measures. In no other way could any responsibility be brought home to the executive department. Still the king is not bound by the advice of his council. He is the absolute master of his own conduct; and the only alternative left to the ministry is, to compel him to follow their advice, or to resign the administration of the government. In the American republic the case is wholly different. The executive magistrate is chosen by, and made responsible to, the people; and, therefore, it is most fit, that he should have the exclusive management of the affairs, for which he is thus made responsible. In short, the reason for a council in Great Britain is the very reason for rejecting it in America. The object, in such case, is to secure executive energy and responsibility. In Great Britain it is secured by a council. In America it would be defeated by one.1
§ 1422. The idea of a council to the executive, which has prevailed to so great an extent in the state constitutions, has, without doubt, been derived from that
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maxim of republican jealousy, which considers power as safer in the hands of a number of men, than of a single man. It is a misapplication of a known rule, that in the multitude of counsel there is safety. If it were even admitted, that the maxim is justly applicable to the executive magistracy, there are disadvantages on the other side, which greatly overbalance it. But in truth, all multiplication of the executive is rather dangerous, than friendly to liberty; and it is more sale to have a single object for the jealousy and watchfulness of the people, than many.1 It is in the highest degree probable, that the peculiar situation, in which the American states were placed antecedently to the revolution, with colonial governors placed over them by the crown, and irresponsible to themselves, gave a sanction to the opinion of the value of an executive council, and of the dangers of a single magistrate, wholly disproportionate to its importance, and inconsistent with the permanent safety and dignity of an elective republic.2
§ 1423. Upon the question, whether the executive should be composed of a single person, we have already seen, that there was, at first, a division of opinion in the convention, which framed the constitution, seven stales voting in the affirmative, and three in the negative; ultimately, however, the vote was unanimous in its favour.3 But the project of an executive council was not so easily dismissed. It was renewed at different periods in various forms; and seems to have been finally, though
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indirectly, disposed of by the vote of eight states against three.1 The reasoning, which led to this conclusion, is understood to have been that, which has been already stated, and which is most elaborately expounded in the Federalist.2
§ 1424. The question as to the unity of the executive being disposed of, the next consideration is, as to the proper duration of his term of office. It has been already mentioned, that duration in office constitutes an essential requisite to the energy of the executive department. This has relation to two objects; first, the personal firmness of the chief magistrate in the employment of his constitutional powers; and, secondly, the stability of the system of administration, which may have been adopted under his auspices. With regard to the first, it is evident, that the longer the duration in office, the greater will be the probability of obtaining so important an advantage. A man will naturally be interested in whatever he possesses, in proportion to the firmness or precariousness of the tenure, by which he holds it. He will be less attached to what he holds by a momentary, or uncertain title, than to what he enjoys by a title durable, or certain; and of course he will be willing to risk more for the one, than for the other. This remark is not less applicable to political privilege, or honour, or trust, than to any article of ordinary property. A chief magistrate, acting under the consciousness, that in a very short time he must lay down office, will be apt to feel himself too little interested in it to hazard any material censure or perplexity, from an independent exercise of his powers, or from those ill hu-
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mours, which are apt at times to prevail in all governments. If the case should be, that he should, notwithstanding, be re-eligible, his wishes, if he should have any for office, would combine with his fears to debase his fortitude, or weaken his integrity, or enhance his irresolution.1
§ 1425. There are some, perhaps, who may be inclined to regard a servile pliancy of the executive to a prevalent faction, or opinion in the community, or in the legislature, as its best recommendation. But such notions betray a very imperfect knowledge of the true ends and objects of government. While republican principles demand, that the deliberate sense of the community should govern the conduct of those, who administer their affairs, it cannot escape observation, that transient impulses and sudden excitements, caused by artful and designing men, often lead the people astray, and require their rulers not to yield up their permanent interests to any delusions of this sort. It is a just observation, that the people commonly intend the public good. But no one, but a deceiver, will pretend, that they do not often err, as to the best means of promoting it. Indeed, beset, .as they are, by the wiles of sycophants, the snares of the ambitious and the avaricious, and the artifices of those, who possess their confidence more, than they deserve, or seek to possess it by artful appeals to their prejudices the wonder rather is, that their errors are not more numerous and more mischievous. It is the duty of their rulers to resist such bad designs at all hazards; and it has not unfrequently happened, that by such resistance they have saved the people from fatal mistakes, and, in their moments of cooler reflection, obtained their gratitude and
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their reverence.1 But how can resistance be expected, where the tenure of office is so short, as to make it ineffectual and insecure?
§ 1426. The same considerations apply with increased force to the legislature. If the executive department were to be subservient to the wishes of the legislature, at all times and under all circumstances, the whole objects of a partition of the powers of government would be defeated. To what purpose would it be to separate the executive and judiciary from the legislature, if both are to be so constituted, as to be at the absolute devotion of the latter? It is one thing to be subordinate to the laws; and quite a different thing to be dependent upon the legislative body. The first comports with, the last violates, the fundamental principles of good government; and, in fact, whatever may be the form of the constitution, the last unites all power in the same hands. The tendency of the legislative authority to absorb every other has been already insisted on at large in the preceding part of these Commentaries, and need not here be further illustrated. In governments purely republican it has been seen, that this tendency is almost irresistible. The representatives of the people are but too apt to imagine, that they are the people themselves; and they betray strong symptoms of impatience and even disgust at the least resistance from any other quarter. They seem to think the exercise of its proper rights by the executive, or the judiciary, to be a breach of their privileges, and an impeachment of their wisdom.2 If, therefore, the executive is
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to constitute an effective, independent branch of the government, it is indispensable to give it some permanence of duration in office, and some motive for a firm exercise of its powers.
§ 1427. The other ground, that of stability in the system of administration, is still more strikingly connected with duration in office. Few men will be found willing to commit themselves to a course of policy, whose wisdom may be perfectly clear to themselves, if they cannot be permitted to complete, what they have begun. Of what consequence will it be to form the best plans of executive administration, if they are perpetually passing into new hands, before they are matured, or may be defeated at the moment, when their reasonableness and their value cannot be understood, or realized by the public? One of the truest rewards to patriots and statesmen is the consciousness, that the objections raised against their measures will disappear upon a fair trial; and that the gratitude and affection the people will follow their labours, long after they have ceased to be actors upon the public scenes. But who will plant, when he can never reap? Who will sacrifice his present ease, and reputation, and popularity, and encounter obloquy and persecution, for systems, which he can neither mould so, as to ensure success, nor direct so, as to justify the experiment?
§ 1428. The natural result of a change of the head of the government will be a change in the course of administration, as well as a change in the subordinate persons, who are to act as ministers to the executive. A successor in office will feel little sympathy with the plans of his predecessor. To undo what has been
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done by the latter will be supposed to give proofs of his own capacity; and will recommend him to all those, who were adversaries of the past administration; and perhaps will constitute the main grounds of elevating him to office. Personal pride: party principles, and an ambition for public distinction will thus naturally prompt to an abandonment of old schemes, and combine with that love of novelty so congenial to all free states, to make every new administration the founders of new systems of government.1
§ 1429. What should be the proper duration of office is matter of more doubt and speculation. On the one hand, it may be said, that the shorter the period of office, the more security there will be against any dangerous abuse of power. The longer the period, the less will responsibility be felt, and the more personal ambition will be indulged. On the other hand, the considerations above stated prove, that a very short period is, practically speaking, equivalent to a surrender of the executive power, as a check in government, or subjects it to an intolerable vacillation and imbecility. In the convention itself much diversity of opinion existed on this subject. It was at one time proposed, that the executive should be chosen during good behaviour. But this proposition received little favour, and seems to have been abandoned without much effort.2
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§ 1430. Another proposition was (as has been seen) to choose the executive for seven years, which at first passed by a bare majority;1 but being coupled with a clause, "to be chosen by the national legislature," it was approved by the vote of eight states against two.2 Another clause, "to be ineligible a second time," was added by the vote of eight states against one, one being divided.3 In this form the clause stood in the first draft of the constitution, though some intermediate efforts were made to vary it.4 But it was ultimately altered upon the report of a committee so, as to change the mode of election, the term of office, and the re-eligibility, to their present form, by the vote of ten states against one.5
§ 1431. It is most probable, that these three propositions had a mutual influence upon the final vote. Those, who wished a choice to be made by the people, rather than by the national legislature, would naturally incline to a shorter period of office, than seven years. Those, who were in favour of seven years, might be willing to consent to the clause against re-eligibility, when they would resist it, if the period of office were reduced to four years.6 And those, who favoured the latter, might more readily yield the prohibitory clause, than increase the duration of office. All this, however, is but conjecture; and the most, that can be gathered
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from the final result, is, that opinions, strongly maintained at the beginning of the discussion, were yielded up in a spirit of compromise, or abandoned upon the weight of argument.1
§ 1432. It is observable, that the period actually fixed is intermediate between the term of office of the senate, and that of the house of representatives. In the course of one presidential term, the house is, or may be, twice recomposed; and two-thirds of the senate changed, or re-elected. So far, as executive influence can be presumed to operate upon either branch of the legislature unfavourably to the rights of the people, the latter possess, in their elective franchise, ample means of redress. On the other hand, so far, as uniformity and stability in the administration of executive duties are desirable, they are in some measure secured by the more permanent tenure of office of the senate, which will check too hasty a departure from the old system, by a change of the executive, or representative branch of the government.2
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§ 1433. Whether tile period of four years will answer all the purposes, for which the executive department is established, so as to give it at once energy and safety, and to preserve a due balance in the administration of the government, is a problem, which can be solved only by experience. That it will contribute far more, than a shorter period, towards these objects, and thus have a material influence upon the spirit and character of the government, may be safely affirmed.1 Between the commencement and termination of the period of office, there will be a considerable interval, at once to justify some independence of opinion and action, and some reasonable belief, that the propriety of the measures adopted during the administration may be seen, and felt by the community at large. The executive need not be intimidated in his course by the dread of an immediate loss of public confidence, without the power of regaining it before a new election; and he may, with some confidence, look forward to that esteem and respect. of his fellow-citizens, which public services usually obtain, when they are faithfully and firmly pursued with an honest devotion to the public good. If he should be re-elected, he will still more extensively possess the means of carrying into effect a wise and beneficent system of policy, foreign as well as domestic. And if he should be compelled to retire, he cannot but have the consciousness, that measures, long enough pursued to be found useful, will be persevered in; or, if abandoned, the contrast will reflect
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new honour upon the past administration of the government, and perhaps reinstate him in office. At all events, the period is not long enough to justify any alarms for the pubic safety.1 The danger is not, that such a limited executive will become an absolute dictator; but, that he may be overwhelmed by the combined operations of popular influence and legislative power. It may be reasonably doubted, from the limited duration of this office, whether, in point of independence and firmness, he will not be found unequal to the task, which the constitution assigns him; and if such a doubt may be indulged, that alone will be decisive against any just .jealousy of his encroachments.2 Even in England, where an hereditary monarch with vast prerogatives and patronage exists, it has been found, that the house of commons, from their immediate sympathy with the people, and their possession of the purse-strings of the nation, have been able effectually to check all his usurpations, and to diminish his influence. Nay, from small beginnings they have risen to be the great power in the state, counterpoising not only the authority of the crown, but the rank and wealth of the nobility; and gaining so solid an accession of influence, that they rather lead, than follow, the great measures of the administration.3
§ 1434. In comparing the duration of office of the president with that of the state executives, additional reasons will present themselves in favour of the former. At the time of the adoption of the constitution, the executive was chosen annually in some of the states; in others, biennially; and in others, triennially. In some
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of the states, Which have been subsequently admitted into the Union, the executive is chosen annually;in others, biennially; in others, triennially; and in others, quadriennially. So that there is a great diversity of opinion exhibited on the subject, not only in the early, but in the later state constitutions in the Union.1 Now, it may be affirmed, that if, considering the nature of executive duties in the state governments, a period of office of two, or three, or even four years, has not been found either dangerous or inconvenient, there are very strong reasons, why the duration of office of the president of the United States should be at least equal to the longest of these periods. The nature of the duties to be performed by the president, both at home and abroad, are so various and complicated, as not only to require great talents, and great wisdom to perform them in any manner suitable to their importance and difficulty; but also long experience in office to acquire, what may be deemed the habits of administration, and a steadiness, as well as comprehensiveness, of view of all the bearings of measures. The executive duties in the states are few, and confined to a narrow range. Those of the president embrace all the ordinary and extraordinary arrangements of peace and war, of diplomacy and negotiation, of finance, of naval and military operations, and of the execution of the laws through almost infinite ramifications of details, and in places at vast distances from each other.2 He is compelled constantly to take into view the whole circuit of the Union; and to master many of the local interests and other circumstances, which may require new adaptations of measures to meet
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CH. XXXVI.] EXECUTIVE--DURATION IN OFFICE. 301
the public exigences. Considerable time must necessarily elapse before the requisite knowledge for the proper discharge of all the functions of his office can be obtained; and, after it is obtained, time must be allowed to enable him to act upon that knowledge so, as to give vigour and healthiness to the operations of the government. A short term of office would scarcely suffice, either for suitable knowledge, or suitable action. And to say the least, four years employed in the executive functions of the Union would not enable any man to become more familiar with them, than half that period with those of a single state.1 In short, the same general considerations, which require and justify a prolongation of the period of service of the members of the national legislature beyond that of the members of the state legislatures, apply with full force to the executive department. There have, nevertheless, at different periods of the government, been found able and ingenious minds, who have contended for an annual election of the president, or some shorter period, than four years.2 § 1435. Hitherto our experience has demonstrated, that the period has not been found practically so long, as to create danger to the people, or so short, as to take away a reasonable independence and energy from the executive. Still it cannot be disguised, that sufficient
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time has scarcely yet elapsed to enable us to pronounce a decisive opinion upon the subject; since the executive has generally acted witha majority of the nation; and in critical times has been sustained by the force of that majority in strong measures, and in times of more tranquillity, by the general moderation of the policy of his administration.
§ 1436. Another question, connected with the duration of office of the president, was much agitated in the convention, and has often since been a topic of serious discussion; and that is, whether he should be re-eligible to office. In support of the opinion, that the president ought to be ineligible after one period of office, it was urged, that the return of public officers into the mass of the common people, where they would feel the tone, which they had given to the administration of the laws, was the best security the public could have for their good behaviour. It would operate as a check upon the restlessness of ambition, and at the same time promote the independence of the executive. It would prevent him from a cringing subserviency to procure a re-election; or to a resort to corrupt intrigues for the maintenance of his power.1 And it was even added by some, whose imaginations were continually haunted by terrors of all sorts from the existence of any powers in the national government, that the re-eligibility of the executive would furnish an inducement to foreign governments to interfere in our elections, and would thus inflict upon us all the evils, which had desolated, and betrayed Poland.2
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§ 1437. In opposition to these suggestions it was stated, that one ill effect of the exclusion would be a diminution of the inducements to good behaviour. There are few men, who would not feel much less zeal in the discharge of a duty, when they were conscious, that the advantage of the station, with which it is connected, must be relinquished at a determinate period, than when they were permitted to entertain a hope of obtaining by their merit a continuance of it. A desire of reward is one of the strongest incentives of human conduct; and the best security for the fidelity of mankind is to make interest coincide with duty. Even the love of fame, the ruling passion of the noblest minds, will scarcely prompt a man to undertake extensive and arduous enterprises, requiring considerable time to mature and perfect, if they may be taken from his management before their accomplishment, or be liable to failure in the hands of a successor. The most, under such circumstances, which can be expected of the generality of mankind, is the negative merit of not doing harm, instead of the positive merit of doing good.1 Another ill effect of the exclusion would be the temptation to sordid views, to peculation, to the corrupt gratification of favourites, and in some instances to usurpation. A selfish or avaricious executive might, under such circumstances, be disposed to make the most he could for himself, and his friends, and partisans, during his brief continuance in office, and to introduce a system of official patronage and emoluments, at war with the public interests, but well adapted to his own. If he were vain and ambitious, as well as avaricious and selfish, the transient possession of his honours would
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depress the former passions, and give new impulses to the latter. He would dread the loss or gain more, than the loss of fame; since the power must drop from his hands too soon to ensure any substantial addition to his reputation.1 On the other hand, his very ambition, as well as his avarice, might tempt him to usurpation; since the chance or impeachment would scarcely be worthy of thought; and the present power or serving friends might easily surround him with advocates for every stretch of authority, which would flatter his vanity, or administer to their necessities.
§ 1438. Another ill effect of the exclusion would be depriving the community of the advantage or the experience, gained by an able chief magistrate in the exercise of office. Experience is the parent of wisdom. And it would seem almost absurd to say, that it ought systematically to be excluded from the executive office. It would be equivalent to banishing merit from the public councils, because it had been tried. What could be more strange, than to declare, at the moment, when wisdom was acquired, that the possessor of it should no longer be enabled to use it for the very purposes, for which it was acquired?2
§ 1439. Another ill effect o.f the exclusion would be, that it might banish men from the station in certain emergencies, in which their services might be eminently useful, and indeed almost indispensable lot the safety of their country. There is no nation, which has not at some period or other in its history felt an absolute necessity of the services of particular men in particular stations; and perhaps it is not too much to say, as vital to the preservation or its political exist-
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CH. XXXVI.] EXECUTIVE--RE-ELIGIBILITY. 305
ence. In a time of war, or other pressing calamity, the very confidence of a nation in the tried integrity and ability of a single man may of itself ensure a triumph. Is it wise to substitute in such cases inexperience. for experience, and to set afloat public opinion, and change the settled course of administration?1 One should suppose, that it would be sufficient to possess the right to change a bad magistrate, without making the singular merit of a good one the very ground of excluding him from office.
§ 1440. Another ground against the exclusion was founded upon our own experience under the state governments of the utility and safety of the re-eligibility of the executive. In some of the states the executive is re-eligible; in others he is not. But no person has been able to point out any circumstance in the administration of the state governments unfavourable to a re-election of the chief magistrate, where the right has constitutionally existed. If there had been any practical evil, it must have been seen and felt. And the common practice of continuing the executive in office in some of these states, and of displacing in others, demonstrates, that the people are not sensible of any abuse, and use their power with a firm and unembarrassed freedom at the elections.
§ 1441. It was added, that the advantages proposed by the exclusion, (1.) greater independence in the executive, (2.) greater security to the people, were not well founded. The former could not be attained in any moderate degree, unless the exclusion was made perpetual. And, if it were, there might be many motives to induce the executive to sacrifice his indepen-
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306 CONSTITUTION OF THE U. STATES. [BOOK III.
dence to friends, to partisans, to selfish objects, and private gain, to the fear of enemies, and the desire to stand well with majorities. As to the latter supposed advantage, the exclusion would operate no check upon a man of irregular ambition, or corrupt principles, and against such men alone could the exclusion be important. In truth, such men would easily find means to cover up their usurpations and dishonesty under fair pretensions, and mean subserviency to popular prejudices. They would easily delude the people into a belief, that their acts were constitutional, because they were in harmony with the public wishes, or held out some specious, but false projects for the public good.
§ 1449. Most of this reasoning would apply, though with diminished force, to the exclusion for a limited period, or until after the lapse of an intermediate election to the office. And it would have equally diminished advantages, with respect both to personal independence, and public security. In short, the exclusion, whether. perpetual or temporary, would have nearly the same effects; and these effects would be generally pernicious, rather than salutary.1 Re-eligibility naturally connects itself to a certain extent with duration of office. The latter is necessary to give the officer himself the inclination and the resolution to act his part well, and the community time and leisure to observe the tendency of his measures, and thence to form an experimental estimate of his merits. The former is necessary to enable the people, when they see reason to approve of his conduct, to continue him in the station, in order to prolong the utility of his virtues and
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CH. XXXVI.] EXECUTIVE--RE-ELIGIBILITY. 307
talents, and to secure to the government the advantage of permanence in a wise system of administration.1
§ 1443. Stiff it must be confessed, that where the duration is for a considerable length of time, the right of re-election becomes less important, and perhaps less safe to the public. A president chosen for ten years might be made ineligible with far less impropriety, than one chosen for four years. And a president chosen for twenty years ought not to be again eligible, upon the plain ground, that by such a term of office his responsibility would be greatly diminished, and his means of influence and patronage immensely increased, so as to check in a great measure the just expression of public opinion, and the free exercise of the elective franchise. Whether an intermediate period, say of eight years, or of seven years, as proposed in the convention, might not be beneficially combined with subsequent ineligibility, is a point, upon which great statesmen have not been agreed; and must be left to the wisdom of future legislators to weigh anti decide.2 The
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* See also 2 Jefferson's Corresp. 291, 439, 440, 443.
308 CONSTITUTION OF THE U. STATES. [BOOK III.
inconvenience of such frequently recurring elections of the chief magistrate, by generating factions, combining intrigues, and agitating the public mind, seems not hitherto to have attracted as much attention, as it deserves. One of two evils may possibly occur from this source; either a constant state of excitement, which will prevent the fair operation of the measures of an administration; or a growing indifference to the election, both on the part of candidates and the people, which will surrender it practically into the hands of the selfish, the office-seekers, and the unprincipled devotees of power. It has been justly remarked by Mr. Chancellor Kent, that the election of a supreme executive magistrate for a whole nation affects so many interests, addresses itself so strongly to popular passions, and holds out such powerful temptations to ambition, that it necessarily becomes a strong trial to public virtue, and even hazardous to the public tranquillity.1
§ 1444. The remaining part of the clause respects the Vice-President. If such an officer was to be created, it is plain, that the duration of his office should be co-extensive with that of the president. Indeed, as we shall immediately see, the scheme of the government necessarily embraced it; for when it was decided, that two persons were to be voted for, as president, it was decided, that he, who had the greatest number of
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CH. XXXVI.] EXECUTIVE--VICE-PRESIDENT. 309
votes of the electors, after the person chosen as president, should be vice-president. The principal question, therefore, was, whether such an officer ought to be created. It has been already stated, that the original scheme of the government did not provide for such an officer. By that scheme, the president was to be chosen by the national legislature.1 When afterwards an election by electors, chosen directly or indirectly by the people, was proposed by a select committee, the choice of a vice-president constituted a part of the .proposition; and it was finally adopted by the vote of ten states against one.2
§ 1445. The appointment of a vice-president was objected to, as unnecessary and dangerous. As president of the senate, he would be entrusted with a power to control the proceedings of that body; and as he must come from some one of the states, that state would have a double vote in the body. Besides, it was said, that if the president should die, or be removed, the vice-president might,' by his influence, prevent the election of a president. But, at all events, he was a superfluous officer, having few duties to perform, and those might properly devolve upon some other established officer of the government.3
§ 1446. The reasons in favour of the appointment were, in part, founded upon the same ground as the objections. It was seen, that a presiding officer must be chosen for the senate, where all the states were equally represented, and where an extreme jealousy might naturally be presumed to exist of the preponder-
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310 CONSTITUTION OF THE U. STATES. [BOOK III.
ating influence of any one state. If a member of the senate were appointed, either the state would be deprived of one vote, or would enjoy a double vote in case of an equality of votes, or there Would be a tie, and no decision. Each of these alternatives was equally undesirable, and might lay the foundation of great practical inconveniences. An officer, therefore, chosen by the whole Union, would be a more suitable person to preside, and give a casting vote, since he would be more free, than any member of the senate, from local attachments, and local interests; and being the representative of the Union; would naturally be induced to consult the interests of all the states.1 Having only a casting vote, his influence could only operate exactly, when most beneficial; that is, to procure a decision. A still more important consideration is the necessity of providing some suitable person to perform the executive functions, when the president is unable to perform them, or is removed from office. Every reason, which recommends the mode of election of the president, prescribed by the constitution, with a view either to dignity, independence, or personal qualifications for office, applies with equal force to the appointment of his substitute. He is to perform the same duties, and to possess the same rights; and it seems, if not indispensable, at least peculiarly proper, that the choice of the person, who should succeed to the executive functions, should belong to the people at large, rather than to a select body chosen for another purpose. If (as was suggested) the president of the senate, chosen by that body, might have been designated, as the constitutional substitute; it is
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CH. XXXVI.] EXECUTIVE--CHOICE OF PRESIDENT. 311
by no means certain, that he would either possess, so high qualifications, or enjoy so much public confidence, or feel so much responsibility for his conduct, as a vicepresident selected directly by and from the people. The president of the senate would generally be selected from other motives, and with reference to other qualifications, than what ordinarily belonged to the executive department. His political opinions might be in marked contrast with those of a majority of the nation; and while he might possess a just influence in the senate, as a presiding officer, he might be deemed wholly unfit for the various duties of the chief executive magistrate. In addition to these considerations, there was no novelty in the appointment of such an officer for similar purposes in some of the state governments;1 and it therefore came recommended by experience, as a safe and useful arrangement, to guard the people against the inconveniences of an interregnum in the government, or a devolution of power upon an officer, who was not their choice, and might not possess their confidence.
§ 1447. The next clause embraces the mode of election of the President and Vice-President; and although it has been repealed by an amendment of the constitution, (as will be hereafter shown,) yet it still deserves consideration, as a part of the original scheme, and more especially, as very grave doubts have been entertained, whether the substitute is not inferior in wisdom and convenience.
§ 1448. The clause is as follows: "Each state shall appoint in such manner, as the legislature thereof may direct, a number of electors, equal to the
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312 CONSTITUTION OF THE U. STATES. [BOOK III.
whole number of senators and representatives, to which the state may be entitled in the congress. But no senator, or representative, or person holding an office of trust or profit under the United States, shall be appointed an elector."
"The electors shall meet in their respective states, and vote by ballot for two persons, of whom one at least shall not be an inhabitant of the same state with themselves. And they shall make a list of all the persons voted for, and of the number of votes for each, which list they shall sign and certify, and transmit, sealed, to the seat of tim government of the United States, directed to the president of the senate. The president of the senate shall, in the presence of the senate and house of representatives, open all the certificates, and the votes shall then be counted. The person having the greatest number of votes shall be the president, if such number be a majority of the whole number of electors appointed; and if there be more than one, who have such majority and have an equal number of votes, then the house of representatives shall immediately choose by ballot one of them for president; and if no person have a majority, then from the five highest on the list the said house shall in like manner choose 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. In every case, after the choice of the president, the person having the greatest number of votes of tim electors shall be the vice-president. But if there should remain two or more, who have equal votes,
the senate shall choose from them by ballot the vicepresident."
§ 1449. It has been already remarked, that originally in the convention the choice of the president was, by a vote of eight states against two, given to the national legislature.1 This mode of appointment, however, does not seem to have been satisfactory; for a short time afterwards, upon a reconsideration of the subject, it was voted, by six states against three, one being divided, that the president should be chosen by electors appointed for that purpose; and by eight states against two, that the electors should be chosen by the legislatures of the states.2 Upon a subsequent discussion, by the vote of seven states against four, the choice was restored to the national legislature.3 Towards the close of the convention the subject was referred to a committee, who reported a scheme, in many respects, as it now stands. The clause, as to the mode of choice by electors, was carried, by the vote of nine states against two; that respecting the time, and place, and manner of voting of the electors, by ten states against one; that respecting the choice by the house of representatives, in case no choice was made by the people, by ten states against one.4
§ 1450. One motive, which induced a change of the choice of the president from the national legislature, unquestionably was, to have the sense of the people
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314 CONSTITUTION OF THE U. STATES. [BOOK III.
operate in the choice of the person, to whom so important a trust was confided. This would be accomplished much more perfectly by committing the right of choice to persons, selected for that sole. purpose at the particular conjuncture, instead of persons, selected for the general purposes of legislation.1 Another motive was, to escape from those intrigues and cabals, which would be promoted in the legislative body by artful and designing men, long before the period of the choice, with a view to accomplish their own selfish purposes.2 The very circumstance, that the body entrusted with the power, was chosen long before the presidential election, and for other general functions, would facilitate every plan to corrupt, or manage them. It would be in the power of an ambitious candidate, by holding out the rewards of office, or other sources of patronage and honour, silently; but irresistibly to influence a majority of votes; and, thus, by his own bold and unprincipled conduct, to secure a choice, to the exclusion of the highest, and purest, and most enlightened men in the country. Besides; the very circumstance of the possession of the elective power would mingle itself with all the ordinary measures of legislation. Compromises and bargains would be made, and laws passed, to gratify particular members, or conciliate particular interests; and thus a disastrous influence would be shed over the whole policy of the government. The president would, in fact, become the mere tool of the dominant party in congress; and would, before he occupied the seat, be bound down to an entire subserviency to their views.3 No measure would be adopted, which
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CH. XXXVI.] EXECUTIVE--CHOICE OF PRESIDENT. 315
was not, in some degree, connected with the presidential election; and no presidential election made, but what would depend upon artificial combinations, and a degrading favouritism.1 There would be ample room for the same course of intrigues, which has made memorable the choice of a king in the Polish diet, of a chief in the Venetian senate, and of a pope in the sacred college of the Vatican.
§ 1451. Assuming that the choice ought not to be confided to the national legislature, there remained various other modes, by which it might be effected; by the people directly; by the state legislatures; or by electors, chosen by the one, or the other. The latter mode was deemed most advisable; and the reasoning, by which it was supported, was to the following effect. The immediate election should be made by men, the most capable of analyzing the qualities adapted to the station, and acting under circumstances favourable to deliberation, and to a judicious combination of all the inducements, which ought to govern their choice. A small number of persons, selected by their fellow citizens from the general mass for this special object, would be most likely to possess the information, and discernment, and independence, essential for the proper discharge of the duty.2 It is also highly important to afford as little opportunity, as possible, to tumult and disorder. These evils are not unlikely to occur in the election of a chief magistrate directly by the people, considering the strong excitements and interests, which such an occasion may naturally be presumed to produce. The choice of a number of persons, to
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316 CONSTITUTION OF THE U. STATES. [BOOK III.
form an intermediate body of electors, would be far less apt to convulse the community with any extraordinary or violent movements, than the choice of one, who was himself the final object of the public wishes. And as the electors chosen in each state are to assemble, and vote in the state, in which they are chosen, this detached and divided situation would expose them much less to heats and ferments, which might be communicated from them to the people, than if they were all convened at one time in one place.1 The same circumstances would naturally lessen the dangers of cabal, intrigue, and corruption, especially, if congress should, as they undoubtedly would, prescribe the same day for the choice of the electors, and for giving their votes throughout the United States. The scheme, indeed, presents every reasonable guard against these fatal evils to republican governments. The appointment of the president is not made to depend upon any pre-existing body of men, who might be tampered with beforehand to prostitute their votes; but is delegated to persons chosen by the immediate act of the people, for that sole and temporary purpose. All those persons, who, from their situation, might be suspected of-too great a devotion to the president in office, such as senators, and representatives, and other persons holding offices of trust or profit under the United States, are excluded from eligibility to the trust. Thus, without corrupting the body of the people, the immediate agents in the election may be fairly presumed to enter upon their duty free from any sinister bias. Their transitory existence, and dispersed situation would present formidable obstacles to any corrupt combinations; and
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CH. XXXVI.] EXECUTIVE--CHOICE OF PRESIDENT. 317
time, as well as means, would be wanting to accomplish, by bribery or intrigue of any considerable number, a betrayal of their duty.1 The president, too, who should be thus appointed, would be far more independent, than if chosen by a legislative body, to whom he might be expected to make correspondent sacrifices, to gratify their wishes, or reward their services.2 And on the other hand, being chosen by the voice of the people, his .gratitude would take the natural direction, and sedulously guard their rights.3
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318 CONSTITUTION OF THE U. STATES. [BOOK III.
§ 1452. The other parts of the scheme are no less entitled to commendation. The number of electors is equal to the number of senators and representatives of each state; thus giving to each state as virtual a representation in the electoral colleges, as that, which it enjoys in congress. The votes, when given, are to be transmitted to the seat of the national government, and there opened and counted in the presence of both houses. The person, having a majority of the whole number of votes, is to be president. But, if no one of the candidates has such a majority, then the house of representatives, the popular branch of the government, is to elect from the five highest on the list the person, whom they may deem best qualified for the office, each state having one vote in the choice. The person, who has the next highest number of votes after the choice of president, is to be vice-president. But, if two or more shall have equal votes, the senate are to choose the vice-president. Thus, the ultimate functions are to be shared alternately by the senate and representatives in the organization of the executive department.1
§ 1453. "This process of election," adds the Federalist, with a somewhat elevated tone of satisfaction, "affords a moral certainty, that the office of president will seldom fall to the lot of a man, who is not in an eminent degree endowed with the requisite qualifica-
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CH. XXXVI.] EXECUTIVE--CHOICE OF PRESIDENT. 319
tions. Talents for low intrigue, and the little arts of popularity, may alone suffice to elevate a man to the first honours of a single state. But it will require other talents, and a different kind of merit to establish him in the esteem, and confidence of the whole Union, or of so considerable a portion of it, as will be necessary to make him a successful candidate for the distinguished office of president of the United States. It will not be too strong to say, that there will be a constant probability of seeing the station filled by characters preeminent for ability and virtue. And this will be thought no inconsiderable recommendation of the constitution by those, who are able to estimate the share, which the executive in every government must necessarily have in its good or ill administration."1
§ 1454. The mode of election of the president thus provided for has not wholly escaped censure, though the objections have been less numerous, than those brought against many other parts of the constitution, touching that department of the government.2
§ 1455. One objection was, that he is not chosen directly by the people, so as to secure a proper dependence upon them. And in support of this objection it has been urged, that he will in fact owe his appointment to the state governments; for it will become the policy of the states, which cannot directly elect a president, to prevent his election by the people, and thus to throw the choice into the house of representatives, where it will be decided by the votes of states.3 Again, it was urged, that, this very mode of choice by states in the house of representatives is most unjust
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320 CONSTITUTION OF THE U. STATES. [BOOK III.
and unequal. Why, it has been said, should Delaware, with her single representative, possess the same vote with Virginia, with ten times that number?1 Besides; this mode of choice by the house of representatives will give rise to the worst intrigues; and if ever the arts of corruption shall prevail in the choice of a president, they will prevail by first throwing the choice into the house of representatives, and then assailing the virtue, and independence of members holding the state vote, by all those motives of honour and reward, which can so easily be applied by a bold and ambitious candidate.2
§ 1456. The answer to these objections has been already in a great measure anticipated in the preceding pages. But it was added, that the devolution of the choice upon the house of representatives was inevitable, if there should be no choice by the people; and it could not be denied, that it was a more appropriate body for this purpose, than the senate, seeing, that the latter were chosen by the state legislatures, and the former by the people. Besides; the connexion of the senate with the executive department might naturally produce a strong influence in favour of the existing executive, in opposition to any rival candidate.3 The mode of voting by states, if the choice came to the house of representatives, was but a just compensation to the smaller states for their loss in the primary election. When the people vote for the president, it is manifest, that the large states enjoy a decided advantage over the small states; and thus their interests may be neglected or sacrificed. To compensate them for this in the eventual election by the house of represen-
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CH. XXXVI.] EXECUTIVE--CHOICE OF PRESIDENT. 321
tatives, a correspondent advantage is given to the small states. It was in fact a compromise.1 There is no injustice in this; and if the people do not elect a president, there is a greater chance of electing one in this mode, than there would be by a mere representative vote according to numbers; as the same divisions would probably exist in the popular branch, as in their respective states.2
§ 1457. It has been observed with much point, that in no respect have the enlarged and liberal views of the framers of the constitution, and the expectations of the public, when it was adopted, been so completely frustrated, as in the practical operation of the system, so far as relates to the independence of the electors in the electoral colleges.3 It is notorious, that the electors are now chosen wholly with reference to particular candidates, and are silently pledged to vote for them. Nay, upon some occasions the electors publicly pledge themselves to vote for a particular person; and thus, in effect, the whole foundation of the system, so elaborately constructed, is subverted.4 The candidates for the presidency are selected and announced in each state long before the election; and an ardent canvass is maintained in the newspapers, in party meetings, and in the state legislatures, to secure votes for the favourite candidate, and to defeat his opponents. Nay, the state legislatures often become the nominating body, acting in their official capacities, and recommending by solemn resolves their own candidate to the other states.5 So, that nothing is left to the electors after their choice,
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322 CONSTITUTION OF THE U. STATES. [BOOK III.
but to register votes, which are already pledged; and an exercise of an independent judgment would be treated, as a political usurpation, dishonourable to the individual, and a fraud upon his constituents.
§ 1458. The principal difficulty, which has been felt in the mode of election, is the constant tendency, from the number of candidates, to bring the choice into the house of representatives. This has already occurred twice in the progress of the government; and in the future there is every probability of a far more frequent occurrence. This was early foreseen; and, even in one of the state conventions, a most distinguished statesman, and one of the framers of the constitution, admitted, that it would probably be found impracticable to elect a president by the immediate suffrages of the people; and that in so large a country many persons would probably be voted for, and that the lowest of the five highest on the list might not have an inconsiderable number of votes.1 It cannot escape the discernment of any attentive observer, that if the house of representatives is often to choose a president, the choice will, or at least may, be influenced by many motives, independent of his merits and qualifications. There is danger, that intrigue and cabal may mix in the rivalries and strife.2 And the discords, if not the corruptions, generated by the occasion, will probably long outlive the immediate choice, and scatter their pestilential influences over all the great interests of the country. One fearful crisis was passed in the choice
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of Mr. Jefferson over his competitor, Mr. Burr, in 1801, which threatened a dissolution of the government, and put the issue upon the tried patriotism of one or two individuals, who yielded from a sense of duty their preference of the candidate, generally supported by their friends.2
§ 1459. Struck with these difficulties, it has been a favourite opinion of many distinguished statesmen, especially of late years, that the choice ought to be directly by the people in representative districts, a measure, which, it has been supposed, would at once facilitate a choice by the people in the first instance, and interpose an insuperable barrier to any general corruption or intrigue in the election. Hitherto this plan has not possessed extensive public favour. Its merits are proper for discussion elsewhere, and do not belong to these Commentaries.
§ 1460. The issue of the contest of 1801 gave rise
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* Debates On the Judiciary, printed by Whitney & Co. Albany, 1802, p. 416, 419.
324 CONSTITUTION OF THE U. STATES. [BOOK III.
to an amendment of the constitution in several respects, materially changing the mode of election of president. In the first place it provides, that the ballots of the electors shall be separately given for president and vicepresident, instead of one ballot for two persons, as president; that the vice-president (like the president) shall he chosen by a majority of the whole number of electors appointed; that the number of candidates, out of whom the selection of president is to be made by the house of representatives, shall be three, instead of five; that the senate shall choose the vice-president from the two highest numbers on the list; and that, if no choice is made of president before the fourth of March following, the vice-president shall act as president.
§ 1461. The amendment was proposed in October, 1803, and was ratified before September, 1804,1 and is in the following terms.
"The electors shall meet in their respective states, and vote by ballot for president and vice-president, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as president, and in distinct ballots the person voted for as vice-president; and they shall make distinct lists of all persons voted. for as president, and of all persons voted for as vicepresident, and of the number of votes for each; which lists they shall sign and certify, and transmit sealed to the seat of government of the United States; directed to the president of the senate; -- the president of the senate shall, in the presence of the senate and house of representatives, open all the certificates,
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CH. XXXVI.] EXECUTIVE--CHOICE OF PRESIDENT. 325
and the votes shall then be counted; the person having the greatest number of votes for president shall be the president, if such number be a majority of the whole number of electors appointed; and if no person have such majority, then from the persons having the highest numbers, 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 twothirds of the states, and a majority of all the states shall be necessary to a choice. And 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 vicepresident shall act as president, as in the case of the death or other constitutional disability of the president."
"The person, having the greatest number of votes as vice-president, shall be the vice-president, if such number be a majority o! the whole number of electors appointed; and if no person have a majority, 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 shall be necessary to a choice."
"But no person, constitutionally ineligible to the office of president, shall be eligible to that of vicepresident of the United States."
§ 1462. This amendment has alternately been the subject of praise and blame, and experience alone can
decide, whether the changes proposed by it are in all respects for the better, or the worse.1 In some respects it is a substantial improvement. In the first place, under the original mode, 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 a choice of the vice-president, immediately on ascertaining the returns of the votes.2 In the next place, under the original mode, if no choice should be made of a president by the house of representatives until after the expiration of the term of the preceding officer, there would be no person to perform the functions of the office, and an interregnum would ensue, and a total suspension of the powers of government.3 By the amendment, the new vice-president would in such case act as president. By the original mode, the senate are to elect the vice-president by ballot; by the amendment, the mode of choice is left open, so that it may be viva voce. Whether this be an improvement, or not, may be doubted.
§ 1463. On the other hand, the amendment has certainly greatly diminished the dignity and importance of the office of vice-president. Though the duties remain the same, he is no longer a competitor for the presidency, and selected, as possessing equal merit, talents, and qualifications, with the other candidate. As every state was originally compelled to vote for two candidates (one of whom did not belong to the state)
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CH. XXXVI.] EXECUTIVE--CHOICE OF PRESIDENT. 327
for the same office, a choice was fairly given to all other states to select between them; thus excluding the absolute predominance of any local interest, or local partiality.
§ 1464. In the original plan, as well as in the amendment, no provision is made for the discussion or decision of any questions, which may arise, as to the regularity and authenticity of the returns of the electoral votes, or the right of the persons, who gave the votes, or the manner, or circumstances, in which they ought to be counted. It seems to have been taken for granted, that no question could ever arise on the subject; and that nothing more was necessary, than to open the certificates, which were produced, in the presence of both houses, and to count the names and numbers, as returned. Yet it is easily to be conceived, that very delicate and interesting inquiries may occur, fit to be debated and decided by some deliberative body.1 In fact, a question did occur upon the counting of the votes for the presidency in 1821 upon the re-election of Mr. Monroe, whether the votes of the state of Missouri could be counted; but as the count would make no difference in the choice, and the declaration was made of his re-election, the senate immediately withdrew; and the jurisdiction, as well as the course of proceeding in a case of real controversy, was left in a most embarrassing situation.
§ 1465. Another defect in the constitution is, that no provision was originally, or is now made, for a case, where there is an equality of votes by the electors for more persons, than the constitutional number, from which the house of representatives is to make the election. The language of the original text is, that
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328 CONSTITUTION OF THE U. STATES. [BOOK III.
the house shall elect "from the five highest on the list." Suppose there were six candidates, three of whom had an equal number; who are to be preferred? The amendment is, that the house shall elect "from the persons having the highest numbers, not exceeding three." Suppose there should be four candidates, two of whom should have an equality of votes; who are to be preferred? Such a case is quite within the range of probability; and may hereafter occasion very serious dissensions. One object in lessening the number of the persons to be balloted for from five to three, doubtless was, to take away the chance of any person few votes from being chosen president having very against the general sense of the nation.1 Yet it is obvious now, that a person having but a very small number of electoral votes, might, under the present plan, be chosen president, if the other votes were divided between two eminent rival candidates; the friends of each of whom might prefer any other to such rival candidate. Nay, their very hostility to each other might combine them in a common struggle to throw the final choice upon the third candidate, whom they might hope to control, or fear to disoblige.
§ 1466. It is observable, that the language of the constitution is, that "each state shall appoint in such manner, as the legislature thereof may direct," the number of electors, to which the state is entitled. Under this authority the appointment of electors has been variously provided for by the state legislatures. In some states the legislature have directly chosen the electors by themselves; in others they have been chosen by the people by a general ticket throughout the whole state; and in others by the people in electoral
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CH. XXXVI.] EXECUTIVE--TIME OF ELECTING. 329
districts, fixed by the legislature, a certain number of electors being apportioned to each district.1 No question has ever arisen, as to the constitutionality of either mode, except that of a direct choice by the legislature. But this, though often doubted by able and ingenious minds,2 has been firmly established in practice, ever since the adoption of the constitution, and does not now seem to admit of controversy, even if a suitable tribunal existed to adjudicate upon it.3 At present, in nearly all the states, the electors are chosen either by the people by a general ticket, or by the state. legislature. The choice in districts has been gradually abandoned; and is now persevered in, but by two states.4 The inequality of this mode of choice, unless it should become general throughout the Union, is so obvious, that it is rather matter of surprise, that it should not long since have been wholly abandoned. In case of any party divisions in a state, it may neutralize its whole vote, while all the other states give an unbroken electoral vote. On this account, and for the sake of uniformity, it has been thought desirable by many statesmen to have the constitution amended so, as to provide for an uniform mode of choice by the people.
§ 1467. The remaining part of the clause, which precludes any senator, representative, or person holding an office of trust or profit under the United States, from being an elector, has been already alluded to, and. requires little comment. The object is, to prevent persons holding public stations under the government of the United States, from any direct influence in the
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330 CONSTITUTION OF THE U. STATES. [BOOK III.
choice of a president. In respect to persons holding office, it is reasonable to suppose, that their partialities would all be in favour of the re-election of the actual incumbent, and they might have strong inducements to exert their official influence in the electoral college. In respect to senators and representatives, there is this additional reason for excluding them; that they would be already committed by their vote in the electoral college; and thus, if there should be no election by the people, they could not bring to the final vote either the impartiality, or the independence, which the theory of the constitution contemplates.
§ 1468. The next clause is, "The congress may "determine the time of choosing the electors, and the day, on which they shall give their votes, which day shall be the same throughout the United States."
§ 1469. The propriety of this power would seem to be almost self-evident. Every reason of public policy and convenience seems in favour of a fixed time of giving the electoral votes, and that it should be the same throughout the Union. Such a measure is calculated to repress political intrigues and speculations, by rendering a combination among the electoral colleges, as to their votes, if not utterly impracticable, at least very difficult; and thus secures the people against those ready expedients, which corruption never fails to employ to accomplish its designs.1 The arts of ambition are thus in some degree checked, and the independence of the electors against external influence in some degree secured. This power, however, did not escape objection in the general, or the state conventions, though the objection was not extensively insisted on.2
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CH. XXXVI.] EXECUTIVE--QUALIFICATIONS. 331
§ 1470. In pursuance of the authority given by this clause, congress, in 1792, passed an act declaring, that the electors shall be appointed in each state within thirty-four days, preceding the first Wednesday in December in ever; fourth year, succeeding the last election of president, according to the apportionment of representatives and senators then existing, The electors chosen are required to meet and give their votes on the said first Wednesday of December, at such place in each state, as shall be directed by the legislature thereof. They are then to make and sign three certificates of all the votes by them given, and to seal up the same, certifying on each, that a list of the votes of such state for president and vice-president is contained therein, and shall appoint a person to take charge of, and deliver, one of the same certificates to the president of the senate at the seat of government, before the first Wednesday of January then next ensuing, another of the certificates is robe forwarded forthwith by the post-office to the president of the senate at the seat of government, and the third is to be delivered to the judge of the district, in which the electors assembled.1 Other auxiliary provisions are made by the same act for the due transmission and preservation of the electoral votes, and authenticating the appointment of the electors. The president's term of office is also declared to commence on the fourth day of March next succeeding the day, on which the votes of the electors shall be given.2
§ 1471. The next clause respects the qualifications of the president of the United States. "No person, except a natural born citizen, or a citizen of the United States at the time of the adoption of this constitution, shaft be eligible to the office of president.
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332 CONSTITUTION OF THE U. STATES. [BOOK III.
Neither shall any person be eligible to that office, who shall not have attained to the age of thirty-five years, and been fourteen years a resident within the United States."
§ 1472. Considering the nature of the duties, the extent of the information, and the solid wisdom and experience required in the executive department, no one can reasonably doubt the propriety of some qualification of age. That, which has been selected, is the middle age of life, by which period the character and talents of individuals are generally known, and fully developed; and opportunities have usually been afforded for public service, and for experience in the public councils. The faculties of the mind, if they have not then attained to their highest maturity, are in full vigour, and hastening towards their ripest state. The judgment, acting upon large materials, has, by that time, attained a solid cast; and the principles, which form the character, and the integrity, which gives lustre to the virtues of life, must then, if ever, have acquired public confidence and approbation.1
§ 1473. It is indispensable, too, that the president should be a natural born citizen of the United States; or a citizen at the adoption of the constitution, and for fourteen years before his election. This permission of a naturalized citizen to become president is an exception from the great fundamental policy of all governments, to exclude foreign influence from their executive councils and duties. It was doubtless introduced (for it has now become by lapse of time merely nominal, and will soon become wholly extinct) out of respect to those distinguished revolutionary patriots, who were born in a foreign land, and yet had entitled themselves
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CH. XXXVI.] EXECUTIVE--VICE-PRESIDENT. 333
to high honours in their adopted country.1 A positive exclusion of them from the office would have been unjust to their merits, and painful to their sensibilities. But the general propriety of the exclusion of foreigners, in common cases, will scarcely be doubted by any sound statesman. It cuts off all chances for ambitious foreigners, who might otherwise be intriguing for the office; and interposes a barrier against those corrupt interferences of foreign governments in executive elections, which have inflicted the most serious evils upon the elective monarchies of Europe. Germany, Poland, and even the pontificate of Rome, are sad, but instructive examples of the enduring mischiefs arising from this source.2 A residence of fourteen years in the United States is also made an indispensable requisite for every candidate; so, that the people may have a full opportunity to know his character and merits, and that he may have mingled in the duties, and felt the interests, and understood the principles, and nourished the attachments, belonging to every citizen in a republican government.3 By "residence," in the constitution, is to be understood, not an absolute inhabitancy within the United States during the whole period; but such an inhabitancy, as includes a permanent domicil in the United States. No one has supposed, that a temporary absence abroad on public business, and especially on an embassy to a foreign nation, would interrupt the residence of a citizen, so as to disqualify him for office.4 If the word were to be construed with such strictness, then a mere journey through any foreign
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334 CONSTITUTION OF THE U. STATES. [BOOK III.
adjacent territory for health, or for pleasure, or a commorancy there for a single day, would amount to a disqualification. Under such a construction a military or civil officer, who should have been in Canada during the late war on public business, would have lost his eligibility. The true sense of residence in the constitution is fixed domicil, or being out of the United States, and settled abroad for the purpose of general inhabitancy, animo manendi, and not for a mere temporary and fugitive purpose, in transitu.
§ 1474. The next clause is, "In case of the removal of the president from office, or his death, resignation, or inability to discharge the duties of the said office, the same shall devolve on the vice-president. And the congress may by law provide for the case of removal, death, resignation, or inability of the president and vice-president, declaring what officer shall then act as president; and such officer shall act accordingly, until the disability be removed, or a president shall be elected."
§ 1475. The original scheme of the constitution did not embrace (as has been already stated) the appointment of any vice-president, and in case of the death, resignation, or disability of the president, the president of the senate was to perform the duties of his office.1 The appointment of. a vice-president was carried by a vote of ten states to one.2 Congress, in pursuance of the power here given, have provided, that in case of the removal, death, resignation, or inability of the president and vice-president, the president of the senate pro tempore, and in case there shall be no president, then the speaker of the house of representatives for the
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CH. XXXVI.] EXECUTIVE--VACANCY OF OFFICE. 335
time being shall act as president, until the disability be removed, or a president shall be elected.1
§ 1476. No provision seems to be made, or at least directly made, for the case of the non-election of any president and vice-president at the period prescribed by the constitution. The case of a vacancy by removal, death, or resignation, is expressly provided for; but not of a vacancy by the expiration of the official term of office. A learned commentator has thought, that such a case is not likely to happen, until the people of the United States shall be weary of the constitution and government, and shall adopt this method of putting a period to both, a mode of dissolution, which seems, from its peaceable character, to recommend itself to his mind, as fit for such a crisis.2 But no absolute dissolution of the government would constitutionally take place by such a non-election. The only effect would be, a suspension of the powers of the executive part of the government, and incidentally of the legislative powers, until a new election to the presidency should take place at the next constitutional period, an evil of very great magnitude, but not equal to a positive extinguishment of the constitution. But the event of a non-election may arise, without any intention on the part of the people to dissolve the government. Suppose there should
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336 CONSTITUTION OF THE U. STATES. [BOOK III.
be three candidates for the presidency, and two for the vice-presidency, each of whom should receive, as nearly as possible, the same number of votes; which party, under such circumstances, is bound to yield up its own preference? May not each feel equally and conscientiously the duty to support to the end of the contest its own favorite candidate in the house of representatives? Take another case. Suppose two persons should receive a majority of all the votes for the presidency, and both die before the time of taking office, or even before the votes are ascertained by congress. There is nothing incredible in the supposition, that such an event may occur. It is not nearly as improbable, as the occurrence of the death of three persons, who had held the office of president, on the anniversary of our independence, and two of these in the same year. In each of these' cases there would be a vacancy in the office of president and vice-president by mere efflux of time; and it may admit of doubt, whether the language of the constitution reaches them. If the vice-president should succeed to the office of president, he will continue in it until the regular expiration of the period, for which the president was chosen; for there is no provision for the choice of a new president, except at the regular period, when there is a vice-president in office; and none for the choice of a vice-president, except when a president also is to be chosen.1
§ 1477. Congress, however, have undertaken to provide for every case of a vacancy both of the offices of president and vice-president; and have declared, that. in such an event there shall immediately be a new election made in the manner prescribed by the act.2
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CH. XXXVI.] EXECUTIVE--COMPENSATION. 337
How far such an exercise of power is constitutional has never yet been solemnly presented for decision. The point was hinted at in some of the debates, when the constitution was adopted; and it was then thought to be susceptible of some doubt.1 Every sincere friend of the constitution will naturally feel desirous of upholding the power, as far as he constitutionally may.2 But it would be more satisfactory, to provide for the case by some suitable amendment, which should clear away every doubt, and thus prevent a crisis dangerous to our future peace, if not to the existence of the government.
§ 1478. What shall be the proper proof of the resignation of the president, or vice-president, or of their refusal to accept the office, is left open by the constitution. But congress, with great wisdom and forecast, have provided, that it shall be by some instrument in writing, declaring the same, subscribed by the party, and delivered into the office of the secretary of state.3
§ 1479. The next clause is, "The president shall, at stated times, receive for his services a compensation, which shall neither be increased, nor diminished during the period, for which he shall have been elected, and he shall not receive within that period any other emolument from the United States, or any of them."
§ 1480. It is obvious, that without due attention to the proper support of the president, the separation
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338 CONSTITUTION OF THE U. STATES. [BOOK III.
of the executive from the legislative department would be merely nominal and nugatory. The legislature, with a discretionary power over his salary and emolument, would soon render him obsequious to their will. A control over a man's living is in most cases a control over his actions. To act upon any other view of the subject would be to disregard the voice of experience, and the operation of the invariable principles, which regulate human conduct. There are, indeed, men, who could neither be distressed, nor won into a sacrifice of their duty. But this stern virtue is the growth of few soils; and it will be found, that the general lesson of human life is, that men obey their interests; that they may be driven by poverty into base compliances, or tempted by largesses to a desertion of duty.1 Nor have there been wanting examples in our own country of the intimidation, or seduction of the executive by the terrors, or allurements of the pecuniary arrangements of the legislative body.2 The wisdom of this clause can scarcely be too highly commended. The legislature, on the appointment of a president, is once for all to declare, what shall be the compensation for his services during the time, for which he shall have been elected. This done, they will have no power to alter it, either by increase or diminution, till a new period of service by a new election commences. They can neither weaken his fortitude by operating upon his necessities, nor corrupt his integrity by appealing to his avarice. Neither the Union, nor any of its members, will be at liberty to give, nor will he be at liberty to receive, any other emolument. He can, of course, have
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CH. XXXVI.] EXECUTIVE--OATH. 339
no pecuniary inducement to renounce, or desert, the independence intended for him by the constitution.1 The salary of the first president was fixed by congress at the sum of twenty-five thousand dollars per annum, and of the vice-president, at five thousand dollars.2 And to prevent any difficulty, as to future presidents, congress, by a permanent act, a few years afterwards established the same compensation for all future presidents and vice-presidents.3 So that, unless some great changes should intervene, the independence of the executive is permanently secured by an adequate maintenance; and it can scarcely be diminished, unless some future executive shall basely betray his duty to his successor.
§ 1481. The next clause is, "Before he enters on the execution of his office, he shall take the following oath or affirmation: I do solemnly swear, (or affirm,) that I will faithfully execute the office of President of the United States, and will, to the best of my ability, preserve, protect, and defend the constitution of the United States."
§ 1489. There is little need of commentary upon this clause. No man can well doubt the propriety of placing a president of the United States under the most solemn obligations to preserve, protect, and defend the constitution. It is a suitable pledge of his fidelity and responsibility to his country; and creates upon his conscience a deep sense of duty, by an appeal at once in the presence of God and man to the most sacred and solemn sanctions, which can operate upon the human mind.4
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