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a vacancy in the office of president. In presiding over the senate, the vice-president only gives a casting vote in case of a tie, and never joins in their deliberations; because otherwise one of the States would have an advantage over the rest. This is the only duty annexed to the office, until by removal, death, inability, resignation, or failure to elect, the office of president becomes vacant. Then this office devolves on the vice-president, and the senate elect a president pro tempore. If from either of these causes, except a failure to elect, the office of vice-president also becomes vacant, Congress has power to provide what officer shall act as president; and by the act of 1792, Congress has designated first the president pro tempore of the senate, and next the speaker of the house of representatives. No further contingency has been provided for. The arrangement in some of the States is similar to this, in providing a lieutenant-governor, to fill the office of governor if need be. In Ohio, the lieutenant-governor is ex officio president of the senate.

§ 40. Qualifications, Compensation, Oath. The qualifications for president and vice-president are the same. 1. The candidate must be a "natural born citizen," in order to leave no room for foreign influence or interference. An exception, however, was made in favor of "citizens of the United States, at the time of the adoption of the constitution," out of respect to those distinguished patriots from foreign lands, who had taken part in our revolution. 2. He must be at least thirty-five years of age; by which time his judgment is presumed to be matured, and his qualifications known. 3. He must have been "fourteen years a resident within the United States," so that he may be familiar with our established policy, and his countrymen acquainted with him. But "resident" is not here understood to mean that he should not have been absent on public business, or even temporarily absent on a journey. It only means that his permanent domicile must have been in the United States.

Compensation. (a) The compensation of the president is regulated with a view to his independence and integrity. The constitution could not with prudence fix its amount absolutely, because circumstances might require it to be changed. But while it is left to Congress to regulate the amount, the constitution provides, that, being once fixed, it shall neither be increased nor diminished during that presidential term; and that the president shall not, during that period, receive any other emolument from the United States, or from either of the States. He is thus placed above pecuniary influence, operating either upon his hopes or fears. There is no avenue through which to address his venality. He can neither be allured nor intimidated, by pecuniary motives, to swerve from the

(a) When the question of compensating the president first came up in the convention, Dr. Franklin was in favor of his having nothing but his expenses, and presented an elaborate written argument to that effect. Mad. Pap. 770. It was next resolved that he should receive a fixed compensation out of the national treasury. Id. 860, 1160.

line of his duty. By the act of 1789, Congress fixed the salary of the president at twenty-five thousand dollars, and that of the vicepresident at five thousand dollars; and they have not since been altered. (a)

Oath. We have already seen, that all federal and State functionaries are required to take an oath "to support" the federal constitution, the form of which is prescribed by the act of 1789. This provision would include the president. But for some reason not apparent, there is a special oath prescribed for him in the constitution itself, by which he engages "to preserve, protect, and defend" the federal constitution. What difference there is between swearing to support the constitution, and swearing to preserve, protect, and defend it, cannot be readily perceived; and probably none was intended; although some executive parasites have affected to find, in this oath, something to indicate that the constitution intended to make the president its peculiar and paramount guardian. The State constitution requires all State functionaries to take an oath "to support" both constitutions, but provides no special oath for the governor. It also requires "an oath of office," to be taken before entering on duty; that is, an oath that the office shall be faithfully administered.

§ 41. Powers and Duties of the President. I shall consider this subject under several distinct heads.

Military Power. The president is "commander-in-chief of the army and navy of the United States, and of the militia of the several States, when called into the actual service of the United States." The governor is commander-in-chief of the army and navy of the State in time of war only, since they cannot exist in time of peace; and of the militia of the State, when not under the control of the president, by the above provision. The propriety of committing the ultimate command of the armed force of the country or State to a single hand, seems hardly to admit of dispute; and the very nature of the power demonstrates it to be peculiarly an executive power. It is not intended that the president or governor should necessarily take the field in person on all occasions; for this might interfere with other duties; but they are respectively made the sources whence orders are to emanate. Much apprehension was at first entertained, lest this power of the sword might make the executive too strong for a free government. But when we come to consider the power which the legislature exercises with respect to the army, navy, and militia, we shall find that abundant precaution has been taken to prevent the executive from abusing his share of power.

Consulting Power. (b) The president and governor are author

(a) By the act of March 3, 1873, the president's salary was made fifty thousand dollars per annum, and the vice-president's ten thousand per annum, both payable monthly.

(b) See Mad. Pap. 1522-4. Instead of this, an executive council was warmly insisted upon, but negatived by a vote of 3 to 8.

ized to "require the opinion in writing of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices." This provision seems to be a redundancy; for the power in question would result necessarily from the relation established between the chief executive officer, and those who are placed in subordination to him. Some of the State constitutions further authorize the executive to take the opinion of the judges on questions of law. But this seems unnecessary, because there is a special law officer appointed for this among other purposes; and improper because the judges may be afterwards called upon to try the very questions thus prejudged. (a)

Pardoning Power. (b) The president is authorized" to grant reprieves and pardons for offences, except in cases of impeachment." (c) There can be no doubt that the pardoning power ought to exist somewhere; because criminal justice can never be administered so perfectly, that every convict shall deserve to suffer the full and exact sentence which the law pronounces. Where then shall this benign attribute of Government be lodged? If there were no other objection to the legislature, it is not always in session; and the case has but just come from the hands of the judiciary. The executive, therefore, seems to be the only suitable depository. No doubt this power should be exercised with great circumspection, and may be exercised indiscreetly. But the executive is as likely to act judiciously as any other functionary. And should the power be sometimes abused, we have the satisfaction of knowing that the error must be on the side of mercy. In general, the pardoning power may be exercised before conviction as well as after. But the constitution of Ohio expressly confines it to cases after conviction; and perhaps it is well that the case should first be judicially investigated, in order that the exact truth may be known. In England, this power may be exercised in cases of impeachment; but these cases are properly excepted here, because the judgment in such cases is confined to removal from office and future disqualification; and cannot, as in England, involve a criminal punishment. In Ohio, the exercise of this power is guarded by requiring the governor to communicate to the assembly each case of reprieve, commutation, or pardon, with his reasons therefor.

The Treaty-making Power. (d) This, we have seen, is vested in the president, with the concurrence of two-thirds of the senate; and the States are prohibited from making treaties. But enough has already been said upon this topic.

(a) This provision is found only in the constitutions of Maine, New Hampshire, and Massachusetts.

(b) See Mad. Pap. 1433, 1587.

(c) By virtue of this clause, it has been held that the president may commute a sentence of death to imprisonment for life, and the condition of the pardon being accepted by the convict, his perpetual imprisonment is legal. Ex parte Wells, 18 Howard, 307. (d) See ante, § 17.

Appointing Power. (a) The president is empowered "to nominate, and by and with the advice and consent of the senate, appoint ambassadors, other public ministers and consuls, judges of the supreme court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which may be established by law: but Congress may, by law, vest the appointment of such inferior officers as they think proper, in the president alone, in the courts of law, or in the heads of departments." Also, "to fill up all vacancies that may happen during the recess of the senate, by granting commissions which shall expire at the end of their next session." Also, "to commission all the officers of the United States." In these provisions the following points are worthy of notice:

1. The nomination of officers is given to the president, because one person, in his situation, can select better than many. But a negative is given to the senate to protect this dangerous power against abuse. And it rests with Congress to determine whether there shall be any "inferior officers," whose appointment shall not require the consent of the senate. Congress has hitherto authorized "the courts of law" to appoint no officers but their clerk and reporter; (b) but has vested the appointment of a vast number of inferior officers, probably fifty thousand, " in the president alone," and "in the heads of departments;" and the enormous patronage thus placed at the disposal of the executive, without any immediate check against abuse, may be justly regarded as the most serious cause of apprehension existing in our political system. If corruption shall ever destroy the glorious fabric, it will enter through

this avenue.

2. The executive can create no office for the purpose of filling it, because the constitution requires it to be "established by law." And as to the "filling of vacancies," the very term "vacancy implies a pre-existing office to be without an incumbent. Moreover, it must have occurred during" the recess of the senate. And the word "happen" indicates some casualty, as death, resignation, or the like. It would seem, therefore, that the president cannot create a vacancy for the purpose of filling it, any more than an office; but on this point there is a difference of opinion.

3. When the senate have consented to an appointment, it is held to be not so far consummated, but that the president may refuse a commission; for he still has room to change his mind. But when the commission has actually been signed by him, and delivered to his secretary, the appointment is final and complete; and the secretary has no right to withhold the great seal, even by the order of the president, except where the officer is removable at his pleasure. (c)

(a) See Mad. Pap. 1422, 1432, 1519; Marbury r. Madison, 1 Cranch, 137.

(b) The circuit courts may also appoint commissioners to take bail and affidavits in civil causes, and issue certificates for the rendition of fugitives from service. The chief-justice nominates registers in bankrupcy to be confirmed by the district judge. (c) See Marbury v. Madison, 1 Cranch, 137.

4. The power of removal is nowhere expressly given to the president; and yet as none but judicial officers hold their offices during good behavior, this power must reside somewhere. The general opinion has been, that it is necessarily implied in the power of appointment, where the contrary is not expressed. But in 1789, it became a question, whether the consent of the senate was necessary to the removal of those officers whose appointment required their consent. After a very elaborate discussion in Congress, a small majority affirmed the power of removal to be in the president alone, and this construction, though in the opinion of many erroneous, has ever since been adopted in practice. (a)

5. An appointing power similar to that of the president, is conferred upon several of the governors. But the constitution of Ohio only authorizes our governor to fill vacancies during the recess of the assembly, in those offices to which the assembly have the appointment; and to commission officers generally. There is, indeed, a clause authorizing the assembly to confer on the governor the power of appointing officers not otherwise provided for; but with the single exception of notaries public, other provision has always been made. So that, in general terms, our governor may be said to possess no appointing power, and no patronage whatsoever. (b)

Power as to Legislation. We have already considered the veto power (c) of the president, which constitutes his chief agency in legislation; and which our governor does not possess. But both the president and governor are connected with the legislative department by other provisions. They are required, from time to time, to communicate information respecting the general operations

(a) The question whether the president has the power to remove a territorial judge has been raised, but has not been decided. United States v. Guthrie, 17 Howard, 284. On the 2d of March, 1867, Congress passed an act declaring that all persons who had or should be appointed to any civil office, by and with the advice and consent of the senate, should continue to hold such office until his successor was in like manner appointed, except as afterwards provided. Provided, that cabinet officers, during the term of the president by whom they were appointed, and for one month thereafter, should be subject to removal by and with the advice and consent of the senate. The act then proceeds to authorize the president during the recess of the senate, whenever he shall think there is good cause for such action, to suspend an officer until the next meeting of the senate, and appoint some one temporarily to fill the place. But the president must, within twenty days after the next meeting of the senate, report such suspension and the reasons for it to the senate, and, if the senate concur in such suspension, the president may then remove the officer and appoint some one else. If they refuse to concur, the suspended officer is thereby reinstated. The appointment of any person contrary to the provisions of this act is declared to be high misdemeanor. This bill was vetoed by the president, and passed over the veto by Congress, and the violation of it by the president was the basis of several of the articles in the late impeachment.

(b) Under the constitution of 1851, this paragraph is not correct. The governor appoints the trustees of all the State institutions, and fills vacancies among the judges and some State officers. But his patronage is still insignificant. The legis lature cannot under that constitution exercise any appointing power, and, on their undertaking to create a board to make appointments, the members of which board were designated in the act creating it, this was held to create an office and appoint to it, and therefore to be unconstitutional. State v. Kennon, 7 Ohio St. 546.

(c) See ante, § 36.

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