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out some very efficient check, would be more than a match for the other departments. But the senate, by a term of service three times as long as that of the representatives, and half as long again as that of the president, by the necessity of their concurrence in the acts of the one, and by the supervision they exercise over the most importants acts of the other, are thereby enabled to constitute precisely the check which both require.

LECTURE VII.

EXECUTIVE DEPARTMENT. (a)

§ 38. Unity and Duration of the Office. In this lecture I shall give an account of the executive department of the federal and

(a) The history of the proceedings of the convention, with respect to this department, is not a little remarkable. The first resolution was, that a national executive be instituted, on which all were agreed. Mad. Pap. 764. It was next resolved, 5 to 4, that the term be seven years—id. 767. A proposition to elect by electors, chosen by the people in districts, was negatived by a vote of 2 to 8, and election by Congress was carried by a vote of 8 to 2-id. 770. A proposition by Dr. Franklin, that there should be no compensation, did not pass to a vote-id. 770-6. A proposition that the executive be removable by Congress, at the request of a majority of the States, was negatived, 1 to 10; that he should be ineligible a second time, carried 7 to 2; and that he should be removable by impeachment, carried unanimously-id. 779. A proposition that the executive should consist of a single person, was carried, 7 to 3-id. 783. The propositions for an absolute veto, and for a power to suspend laws, were each unanimously negatived, and the present qualified veto agreed to, 8 to 2-id. 790, 791. A proposition to associate the judiciary with the executive, in the exercise of the veto power, was negatived, 3 to 8-id. 809-12. A proposition that the State executives should elect, was negatived unanimously-id. 830. A proposi tion that the people should elect, was negatived, 1 to 9; another, that the election should be by electors appointed by the State legislatures, was negatived, 2 to 8; and election by Congress unanimously affirmed-id. 1124. Ineligibility a second time was stricken out, 6 to 4-id. 1125. Tenure during good behavior, was negatived, 4 to 6, and seven years affirmed by the same vote-id. 1129. Election by electors appointed by the State legislatures, was carried 8 to 2-id. 1150. A term of six years was adopted, 9 to 1-id. 1152. A specific appointment of electors, in the first instance, was carried, 3 to 7 — id. 1153. To be removable by impeachment, was carried, 8 to 2; and to receive a fixed compensation from the national treasury, 9 to 1id. 1160. Á proposition that the judiciary should be associated in the exercise of the veto power, was again negatived, 3 to 4, and the present qualified veto affirmed unanimously-id. 1161-71. Election by Congress was again reinstated, 7 to 4-id. 118890. Terms of eight, eleven, fifteen, and twenty years, were silently negatived, as was a proposition to elect by electors selected from Congress by lot; and a proposition that no person should serve for more than six in any twelve years, was negatived, 5 to 6 id. 1191-1207. A term of seven years, and ineligibility a second time, were reinstated, 7 to 8-id. 1210. In this shape, the provisions, relating to the executive, appear in the first draft of a constitution, reported Aug. 6-id. 1236, 1237. A proposition by Mr. Madison, to associate the judiciary in the exercise of the veto power, was again negatived, 3 to 8-id 1333. The qualified veto was again affirmed, with a substitution of three-fourths, instead of two-thirds, 6 to 4-id. 1337. A proposition for a privy council, to consist of the president of the senate, speaker of the house, chief justice, and the hoads of departments, did not pass to a vote-id. 1398. A proposition to elect by the people, was negatived, 2 to 9 —id. 1418. A proposition

State governments. The organization of this department was attended with more difficulty and contrariety of opinion, than any other part of our system. The general maxim is, that the exercise of delegated power should always require the concurrence of more minds than one. Yet a calm and thorough discussion, both of abstract principles and the lessons of history, suggested a departure from this maxim in constructing the executive department. The regular functions of this department, being chiefly ministerial, do not require the exercise of deliberation and discretion, to the same extent as those of the other departments. On the contrary, they require a promptness, decision, and energy of action, which could seldom result from the concurrence of several minds; and can only be found in perfection, when flowing from a single mind. It was accordingly resolved to vest the executive power primarily in a single person; and this is a principle of all the American constitutions. Accordingly, by the federal constitution," the executive power is vested in a president of the United States of America; and by the constitution of Ohio, "the supreme executive power of this State shall be vested in the governor." This word "supreme" inserted in the latter, is implied in the former; since there are many subordinate executive officers, to be described hereafter. But a single executive head is a monarchical feature, and was not assented to without much misgiving. In the federal convention, there was a considerable party in favor of a plural executive; and when this proposition failed, an effort was made to procure an executive council, whose assent should be required to all executive measures. There is manifestly the same objection to this as to a plural executive; at least the same in kind, if not in degree. Yet such a council exists in several of the States. (a) But the proposition failed in the federal convention, and was not made in Ohio. Accordingly the president, with a few extraordinary exceptions, and our governor, in all cases, may discharge the duties assigned them, without the perplexity, delay, or

that the election should be by joint ballot of Congress, was carried, 7 to 4-id. 1419. A proposition that each State should have one vote, was negatived, 5 to 6, and that the election should be by electors, chosen by the people in each State, was negatived, 5 to 6 -id. 1420, 1421. On the 31st of August, the whole subject was referred to a committee of one from each State, who, on the 4th of September, reported substantially the scheme adopted, including for the first time the idea of a vice-president-id. 1486. This scheme was debated during five days-id. 1488-1528. A proposition to reinstate the former scheme, was negatived, 2 to 8-id. 1498. A term of four years was adopted, 10 to 1-id. 1508. Election by electors chosen by the people was carried 9 to 2id. 1508. Election by the house of representatives, in case of failure by the electors, was carried, 7 to 3-id. 1511. The proposition that the vice-president should be president of the senate, was carried, 8 to 2-id. 1518. The proposition for an executive council, to consist of six persons, appointed by Congress, was negatived, 3 to 8-id. 1524. The qualified veto of two-thirds, instead of three-fourths, was reinstated, 6 to 4 -id. 1564. And thus, within five days of the close of the convention, after so many changes, the executive scheme was at last completed. For a general view of this department, see the 13th lecture of Kent, the 36th and 37th chapters of Story's third book, and 1 Black. Com., chapters from 3d to 8th inclusive.

(a) But such a council has no control over the approving or vetoing bills by the executive.

hinderance, which would result from the necessity of consulting with other persons.

And the unity of the executive being thus settled, the next question was, as to the duration of the office. Some of the most distinguished members of the federal convention were in favor of its continuing during good behavior. But republican jealousy treated this proposition with little favor. It was then actually resolved that the term should be seven years, but it was afterwards reduced to four, which is intermediate between that of the representatives and senators. This term was considered long enough to give stability to the executive administration, and opportunity to complete important measures of policy, and yet not so long as to make accountability too remote. When the term of seven years was contemplated, the president was to be ineligible a second time. And it has become a question of grave importance, whether the public welfare does not require a similar provision now, in order to prevent the first term from being taken up with schemes to secure a re-election. This question was indeed discussed in connection with the term of four years, but experience has since imparted new light; and probably the result of such a discussion now would be different. As to the term of the State executives, there is great diversity. It varies from one to four years. it is two years.

Here

§ 39. Election of President and Vice-President. The next question was as to the mode of election. It was at first resolved in the federal convention, that the president should be chosen by Congress. But this resolution was reconsidered, because it was thought that the sense of the people could not be sufficiently expressed in such a choice, and also that there would be too much room for cabal and intrigue. Should the choice, then, be made by the State legislatures? Or by the people directly? Or by electors chosen for that express purpose? After much discussion, the latter method was agreed upon, and there is scarcely any part of the federal scheme more deserving of admiration. It avoids the tumult and disorder which might result from an election directly by the people, and yet gives the people, in their choice of electors, an opportunity to express their views upon this single point, without reference to other matters; which would not be the case if the choice were made either by the federal or State legislatures. (a) The number of electors for each State, is the aggregate of its federal senators and representatives, and thus the compromise between the large and small States is carried out, by giving them the same representation in the electoral colleges as in Congress. No qualification is prescribed, except that of not being a member of Congress, nor holding any federal office, which exception was necessary to

(a) The caucus system of party nominations has rendered this part of the system inoperative, as the electors of each party are pledged to vote for the party nominee. A vote for the party electoral ticket is therefore a vote for the caucus nominee, and a vote for any other persons as electors is simply useless.

secure the electors against improper influences. For reasons already sufficiently apparent, the mode of choosing electors is left. to the determination of each State, and of course there is some diversity, as by the legislature, by the people in districts, and by general ticket. Congress has power to determine the day on which the electors shall be chosen, and the day on which they shall give their votes; and the latter is required to be the same in all the States, in order to prevent intrigue and corruption. By the act of 1792, Congress fixed the day for giving the electoral votes, on the first Wednesday in December, and required the electors to be chosen within thirty-four days preceding, but did not specify the exact day. The States, therefore, have been allowed to select different days. In Ohio, it is the fifth Friday preceding the day specified. (a) Thus far, the provisions of the constitution remain as they were originally. But the subsequent proceedings have been considerably modified by the twelfth amendment, which was made in 1804. I shall first describe the present regulations, and then explain the points wherein they differ from the former.

On the day appointed, the electors meet in their respective States, and vote by distinct ballots, for president and vice-president, one of whom shall not be an inhabitant of the same State with themselves. A list of the votes, duly authenticated, and addressed to the president of the senate, is transmitted to the seat of government, in the manner pointed out by the act of 1792. The votes are opened and counted in the presence of both houses of Congress. A majority of all the electoral votes is necessary to a choice, both of president and vice-president. It therefore became necessary to provide for the very probable contingency of a want of a majority. In this event, the election of president devolves upon the house of representatives, voting by States, and that of vice-president, upon the senate, voting individually. In each case, two-thirds are required for a quorum, and a majority of the whole for a choice. The house must select from the three highest candidates on the list, and the senate from the two highest. If the house fail to elect a president before the ensuing fourth of March, the vice-president is to act as president. Such is the substance of the twelfth amendment.

The original method differed in these particulars. First, the electors voted for two candidates in one ballot, without specifying the office for which each was intended. Secondly, the highest of all the candidates, if he had a majority, was president; and the next highest, vice-president. Thirdly, if two candidates had a majority and were equal, the house chose between them; but if no candidate had a majority, the house chose from the five highest. Fourthly, there could be no vice-president until the president was

(a) By the act of Congress of Jan. 23, 1845, c. 1, a uniform time for holding elections for electors of presidents and vice-presidents in all the States was prescribed. The day fixed was the Tuesday next after the first Monday in the month of November of the year in which they are to be appointed.

chosen; and the senate only had the choice, when the two next candidates had an equal number of votes. Fifthly, there was no provision made in case of failure to elect a president before the fourth of March; and of course, so far as the executive is concerned, there must have been an interregnum. This calamity had well nigh happened in 1801, when the contest was between Jefferson and Burr. The house balloted thirty-six times, and it is believed that nothing but the fear of such a crisis unprovided for, occasioned a final choice. This bitter contest is supposed to have caused the twelfth amendment. It will be observed that the present method greatly diminishes the dignity of the second office, since it is no longer placed in competition with the first. Whether this is compensated by other advantages, is a matter of opinion. There is still a case unprovided for, and that is, the failure to elect either a president or vice-president within the period prescribed. By the act of 1792, Congress has indeed provided for a new election in this event; but there is some doubt whether Congress has constitutional power to make such a provision. Another difficulty may arise in case of doubt about the authenticity of the electoral returns; and still another, in case two out of the four highest candidates for president should have an equal number of votes. These contingencies, though by no means improbable, have not as yet been provided for. (a)

If now we turn to the mode of electing the State executives, we find almost an entire contrast. In some few instances the governor is elected by the legislature, but generally directly by the people. In Ohio, the time, place, and manner are the same as for members of the legislature. The returns are made to the president of the senate, and counted in the presence of both houses. A plurality only is required for a choice, and in case of a tie, the choice is made by a majority of both houses on joint ballot. Contested elections are decided in like manner. If a case can be supposed, in which the assembly would fail ultimately to make the election devolving on them, that case is unprovided for.

The original scheme of the convention did not embrace such an officer as the vice-president. (b) But in the course of their deliberations, two reasons suggested themselves for creating this office. The first was, to provide a presiding officer for the senate, without depriving any State of its equal vote, by taking him from that body. The second was, to provide a suitable person to supply

(a) The public attention was more forcibly called to the difficulty in case of question as to the authenticity of electoral returns at the last election than ever before. There were disputes as to some of them; but no trouble arose, as they would not have affected the result. The mode of passing on the question provided at present, each house acting separately, is highly unsatisfactory. The whole matter calls loudly for some change. It is stated that the senate committee on privileges and elections will report in favor of an amendment doing away with the electoral college, giving each congressional district one vote, and two votes to the State at large, and providing that a plurality shall elect.

(b) This was first proposed near the close of the convention. Mad. Pap. 1486,

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