CHAP. Qualifications Salary and allowances eral reasons this plan was unsatisfactory. Under its operation, the presidency would devolve upon a person who had been sent to the national capital to be, not an executive, but a legislator. It might also bring the government under the direction of a chief executive belonging to a different party from that to which the president and vice-president had belonged. Still more serious, if both the president and vice-president should die during the interim between the expiration of one Congress and the meeting of the next, there might be no president of the Senate and there certainly would be no speaker of the House. The country went along under this system for almost a hundred years. The death of President Garfield in 1881, some weeks before the newly elected Congress was organized, brought home to the public mind, however, the weakness of the existing law, and in 1886 a Presidential Succession Act was passed withdrawing the officers of the legis lative houses from the succession and providing that, after the vice-president, the heads of the executive departments should succeed, in the order of the establishment of the departments, i.e., the secretary of state, the secretary of the treasury, the secretary of war, etc., with due regard for the constitutional qualifications of age, citizenship, and residence. Never as yet, however, has the succession actually passed beyond the vice-president.1 Three absolute qualifications for the presidency are prescribed by the constitution. The president must be at least thirty-five years of age; he must have been a resident of the United States for at least fourteen years; and he must be a "natural-born" citizen. In order not to exclude foreign-born citizens who had helped bring the new government into being, e.g., Alexander Hamilton and James Wilson, all citizens of the United States at the time of the adoption of the constitution were exempted from the last-mentioned requirement. But with the passing of the generation which saw the new frame of government adopted, the rule debarring the foreign-born came automatically into complete operation. By constitutional provision, the president receives a salary, whose amount can be neither increased nor diminished during the period for which he has been elected. He is forbidden to receive any other emolument, either from the United States or from any No provision whatever is made for the situation that would arise if both the president-elect and the vice-president-elect should die or become incapacitated after the electoral colleges have adjourned, but before the fourth of March. Some extra-constitutional and extra-legal device would have to be adopted. XVII state. But this is construed not to prevent the United States from CHAP. furnishing him a mansion (the White House), a suite of executive offices, and special allowances for vehicles, furniture, repairs, clerkhire, and travel, amounting to from two to three hundred thousand dollars annually. Originally fixed at $25,000 a year, the president's salary was raised in 1871 to $50,000, and in 1909 to $75,000. The vice-president receives $12,000. From the president's position as head of the executive branch Immunities it follows that his person in inviolable. He cannot be arrested for any offence, not even murder; no court has any jurisdiction over him; he cannot be in any way restrained of his liberty. Only by impeachment can he be removed from office; and only after removal does he become amenable to judicial process. Even while impeachment proceedings are in progress, he cannot be arrested, or forced to appear before the tribunal or to give testimony, or deprived of any of his powers as president.1 REFERENCES The Federalist, Nos. LXIX-LXXII. G. Hunt [ed.], The Writings of Madison (New York, 1900-10), III-IV, for A. C. McLaughlin, The Confederation and the Constitution (New York, 1905), J. Bryce, The American Commonwealth (4th ed., New York, 1910), I, Chap. v. J. A. Woodburn, The American Republic and its Government (New York, H. B. Learned, "Some Aspects of the Vice-Presidency," Amer. Polit. Sci. A. J. Beveridge, "The Vice-President; the Fifth Wheel in Our Government," 'J. W. Burgess, Political Science and Constitutional Law, II, 245-246. Direct popular election rejected by the framers of the con stitution Decision in favor of an electoral college The system originally adopted CHAPTER XVIII NOMINATION AND ELECTION OF THE PRESIDENT After the Philadelphia convention completed its labors James Wilson, delegate from Pennsylvania, declared that the most difficult question that the makers of the constitution had faced was the method of electing the president; and the opinion is borne out by the fact that, as has been indicated, more than thirty distinct votes were taken on that subject. Three main plans were considered. One was direct election by the people. Gouverneur Morris and a few other delegates warmly advocated this method, but it won small support, because most members believed that the voters, scattered thinly over what already seemed a large country, would be unable to inform themselves on the qualifications of candidates. The delegates of the small states, furthermore, thought that too great advantage would accrue to the large states. Besides, it was feared that direct popular election would result in the triumph of demagogues, which might, in turn, lead to the establishment of monarchy. Election by Congress was widely favored, especially by those persons who conceived of the president as merely an officer to execute the laws; and this plan was twice adopted, on one occasion unanimously. But the idea grew that there should be a balance of power between Congress and the president such as could hardly exist if the latter was chosen by the former; and late in the deliberations the convention turned its support to a plan for election by the people, not directly, but through the medium of an electoral college. This plan seems to have been borrowed from Maryland, where, under the constitution of 1776, members of the upper branch of the legislature were selected by a body of electors chosen by the people every five years. At all events, it seemed a happy solution; the method of electing the president became, indeed, one of the few features of the new frame of government that did not have to be defended. The system adopted may be outlined as follows: (1) each state was given presidential electors in number equal to its quota of XVIII senators and representatives in Congress; (2) these electors were CHAP. to be chosen in each state in such manner as the legislature should direct; (3) at the prescribed time, the electors in each state should assemble and each should cast a ballot for two persons, of whom at least one should be a resident of a different state; (4) the result of this vote in each state should be certified to the president of the Senate, who, in the presence of the Senate and House of Representatives, should open the certificates; (5) an official count having been made, the person obtaining the greatest number of votes should be declared president, and the person obtaining the next greatest number should be declared vice-president; (6) a tie for the presidency should be decided by the House of Representatives, voting by states (each state delegation having one vote), and for the vice-presidency, by the Senate; (7) if no person received a majority of the total electoral vote, the House, again voting by states, should choose from the five highest on the list. The merit of this plan was deemed to lie chiefly in the independent and expert judg ment which the electors were expected to exercise in choosing the nation's highest executive officers. Every elector was to be a free agent, charged only with making up his mind upon the qualifications of the available men and casting his votes accordingly. In Changes For a short time the scheme worked as its authors intended. 1789, and again in 1792, every elector, indeed, wrote the name of Washington on his ballot. But the second votes were scattered, according to individual preference, among eleven men in the first election and four in the second. In 1796 thirteen men received votes, indicating as yet a good degree of independence on the part of the electors. But in 1800 every elector except one wrote on his ballot the names of either Jefferson and Burr or Adams and Pinckney. The reason was that by this time two distinct political parties had come into the field, and each took steps in advance of the popular election to designate its "candidates" for the presidency and vice-presidency, and also to put before the voters of the several states lists of men who, it was understood, would, if chosen by the people, cast their electoral ballots exclusively for the recognized candidates of the party to which the given electors belonged. The effect was, of course, to defeat the one purpose for which the electoral college existed. Instead of exercising independent judgment, presumably based on superior knowledge, the electors Art. II, § 1. arising from practice now became merely a body to register, in a formal and perfunctory way, the will of the voters who had chosen them. The rise of political parties, entirely unforeseen by the constitution's makers, had wrought a silent revolution in the governmental system within a decade; without the change of a letter in the fundamental law, indirect popular election had become, to all intents and purposes, direct election. The electoral college has lived on to this day. But it has survived only because most people consider that it does no harm-in other words, because it interposes no serious obstacle to the one thing which it was intended to prevent, i.e., direct choice of the president and vice-president by the people. A way was open for this remarkable transformation without changing a word of the constitution. The rise of parties united in support of given candidates brought to light, however, a defect which could be remedied only by a formal amendment. The electors were to vote for "two persons," without indicating which was favored for president and which was supported for vice-president. Accordingly when, in 1800, the Republicans gave their electoral votes exclusively to Jefferson and Burr, a tie resulted-as, indeed, must have been the case every time the electors of the victorious party concentrated their votes unanimously upon the same candidates. Yet this was precisely what the voters, even by 1800, expected the electors to do. The desire, both of the people and of the electors, in the present situation was that Jefferson should be president; very few wanted to see Burr in the office. Yet, on account of the tie, the House of Representatives must decide between the two men, and there was no guarantee that the choice would conform to the Republicans' intention, especially in view of the fact that the votes (one for each state) would in several instances be cast by men of the opposite political faith. Only with great difficulty, indeed, were the Federalists restrained from wreaking vengeance on their opponents by swinging the election to Burr. Jefferson was chosen. But before another election came round the Twelfth Amendment, adopted in 1804, changed the system by providing that the electors should "name in their ballots the person voted for as president, and in distinct ballots the person voted for as vice-president." Thereafter the two offices were dealt with separately, and the major difficulty of 1800 could never reappear, although an election might still be thrown into the House. It remained possible, of course, for the president and vice-president to be members of different parties; and that is still possible. But it |