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think it ought to be made a part of the record. It condenses the history of this original act.
Senator GREEN. It is already in the Congressional Record. Senator KNOWLAND. I think it would be well to have it in the record. Senator Ives. Yes; I believe it should be in the record.
Senator FULBRIGHT. It is a very conservative suggestion. It is going back to the way the founding fathers thought this ought to be handled; and as I said, there were a number, about 16 Members, that had participated in the Convention in one way or another, and Washington approved it. So it has pretty good authority and was the law until 1886.
Senator GREEN. Washington changed his mind, if I remember correctly.
Senator FULBRIGHT. I am not one to say nothing should be changed. I merely mention that it isn't anything too radical.
The CHAIRMAN. Are there any further questions? Have you any. thing further that you wish to add, Senator?
Senator FULBRIGHT. I might add further about these other bills. I saw the one the Senator from Rhode Island suggested, Senator Green, about a committee to study the entire question of succession. I certainly think that is a good idea. If this committee doesn't feel that it is necessary to pass any one of these bills, I think that it is of sufficient importance to warrant a study by the committee.
There has been one other idea that I had thought of that there might be made a distinction regarding the way this contingency came about --that is, as between accidental vacancy and a vacancy which might be caused by voluntary action on the part of the Executive.
I don't want to go into that now. It is a thought I just wanted to mention—that if this is taken and considered seriously and pursued, I think that ought to be further considered.
The CHAIRMAN. I guess that is all the witnesses we have this morning.
Senator Ives. Do you want that document in the record, Mr. Chairman?
The CHAIRMAN. Yes. (The following is the document referred to by Senator Fulbright:)
SECTION 9 OF THE PRESIDENTIAL ELECTION AND SUCCESSION ACT OF 1792
On March 1, 1792, President Washington approved "An act relative to the election of a President and Vice President of the United States, and declaring the officer who shall act as President in case of vacancies in the offices both of President and Vice President." Section 9 of this act provided :
"That in case of removal, death, resignation, or inability, both of the Presi. dent and Vice President of the United States, the President of the Senate pro tempore, and in case there shall be no President of the Senate, then the Speaker of the House of Representatives, for the time being, shall act as President of the United States until the disability be removed or a President shall be elected.” 1
Inasmuch as both the legislative and executive sessions of the Senate were held behind closed doors until 1793, the arguments presented in the Senate debates relative to Presidential succession are inaccessible; the Senate suffered only an outline of its proceedings to be reported. The House of Repre. sentatives, on the other hand, permitted its debates to be reported, but only meagerly. A study of the Annals of Congress reveals, consequently, little
11 Stat. 240.
more than the mechanics by which the Succession Act of 1792 was finally passed.?
When the Second Congress first convened, October 24, 1791, the legislators found it imperative to devise quickly some method for the choice of electors for the Presidential campaign of the ensuing year. On November 1, 1791, the Senate appointed John Rutherfurd, Roger Sherman, and Aaron Burr to serve on a committee “to report a bill determining the time of choosing the electors of President and Vice President, and the day in which they shall give their votes, and prescribing the mode of transmitting the votes to the seat of govern
The committee reported a bill on the 15th of November; on the 230 of that month the bill was recommitted and the committee instructed to insert a clause in the bill providing for the administration of the Government in the case of vacancies in the offices of President and Vice President. Five days later the committee reported the amendments, which were agreed to and read, and the bill was ordered to a third reading. On the 30th of the month it was read the third time and passed, with the ninth section precisely the same, save for punctuation, as it appeared in the act of March 1, 1792. As the Senate debates were closed to the public at that time, there is no record as to why the subject of Presidential succession should have been coupled in the same bill with the provisions relative to the choice of electors.
The House received the bill on November 30, 1791 ; on the 1st of December it was read the first time, and on December 22 the House in Committee of the Whole proceeded to consider it. Representative Alexander, White, of Virginia, a Federalist, moved that section 9 be struck out, on the grounds that it was not germane to the main purpose of the bill and that the Speaker "was not a permanent officer, if he could be considered as one in any point of view.” White was convinced that the Speaker "was no more an officer of the Government than every other Member of the House.” Representative Jonathan Sturges, of Connecticut, likewise a Federalist, supported White's contention, adding that he did not believe that the framers of the Constitution endowed either Speaker or President pro tempore with the status of officer
the Government. Sturges also observed that inasmuch as the Speaker possessed the power to decide the amounts of compensation to be accorded the President and Vice President, it would be “evidently improper” for the Speaker ever to have the opportunity to assume the Presidency. Representative Theodore Sedgwick, of Massachusetts, another Federalist, supported the section, asserting that its passage was necessary immediately to settle the question of succession, and that the present Speaker and President pro tempore were as far removed from Executive influence as any persons could possibly be. After the expression of a few more pro and con arguments, none of which varied from those already outlined, the question for striking out the section was negatived.
Immediately after White's motion was defeated, Sturges moved, on December 22, that the words “the President of the Senate pro tempore, and the Speaker of the House of Representatives” be struck out. Representative William B. Giles, of Virginia, an anti-Federalist, supported the motion, declaring that the Constitution contemplated the creation of some permanent officer, and neither Speaker nor President pro tempore could be considered even a temporary officer. Mr. Sedgwick countered with the remark that it was impossible to determine what constituted a permanent officer. He was also surprised to learn that anyone doubted that the leaders of Congress were officers. Representative Elbridge Gerry, anti-Federalist from Massachusetts, agreed with Sedgwick's viewpoint, and read the clause from the Constitution which states that the House is to choose its Speaker "and other officers." Gerry hoped, nevertheless, that the provision for the Speaker of the House be struck out, "in order to avoid blending the legislative and executive branches together.” ?
Representative James Hillhouse, a Federalist from Connecticut, stated that the President pro tempore, rather than any officer appointed by the Executive, should be made eligible to succeed to the highest office. Otherwise, a favorite of
* Frederic A. Ogg and P. Orman Ray, Introduction to American Government (New York. and London, 1942), p. 316; Robert Luce, Legislative Procedure (Boston and New York, 1922), pp. 243–244 ; Annals of Congress, vol. 3, 2d Cong., 1st-2d sess. (Washington, 1849), p. 10.
3 Annals of Congress, vol. 3, 2d Cong., 1st-2d sess., p. 25.
the President, and not the choice of the people, might become President. Such an eventuality would violate "the first principle of a full elective Government. The Senate are appointed by the people, or their Representatives, and hence
filling the vacancy would devolve with the greatest propriety on that body.” Hillhouse apparently had reference to proposals—which were not reported in the sketchy debates—that Cabinet officers replace the Speaker and the President pro tempore as Presidential eligibles. Representative Hugh Williamson, a Federalist from North Carolina, disagree with Hillhouse, and favored Sturges's motion to strike out the Speaker and the President pro tempore. He observed that the broad construction of the word "officer," as advocated by the proponents of section nine, would make it possible for any person in the Nation, whether Government employee or not, to fill Executive vacancies. S
On January 2, 1792, the Committee of the Whole negatived the motion to strike out the congressional leaders. Amendments having been made to the prior clauses of the bill, the entire bill, along with the amendments, was reported to the House. Mr. Williamson then renewed the Sturges motion, which was immediately divided. On the motion to strike out “the President of the Senate pro tempore,” the vote was yeas 24, nays 27. Among those supporting the motion were four Members who had been delegates to the Constitutional Convention: Abraham Baldwin, Thomas Fitzsimons, Hugh Williamson, and James Madison. The nays included the name of but one Member-Nicholas Gilman—who had served in the great Convention.10 The question then being put on striking out the words "and in case there shall be no President of the Senate, then the Speaker of the House of Representatives for the time being," the vote was. yeas 26, nays 25. The bill thereupon was tabled.
On January 6 the bill was recommitted to a committee of the whole House, where, upon its reconsideration on February 9, the ninth section was struck out. A motion was then made to fill the blank with a provision by which the “senior Associate Judge” [Justice] would succeed to the Presidency in the event of Executive vacancies. An amendment to this proposition quickly followed, to the effect that the Secretary of State, rather than any member of the judiciary, should succeed. After a short debate, the details of which were not reported, the Committee rose without taking the question. The next day the House again resolved itself into a committee of the whole House and voted, 32 to 22, to substitute the Secretary of State for the congressional leaders as an eligible for the Presidency. This time Nicholas Gilman sided with his old Constitutional Convention colleagues.
On the 14th of February 1792, the House, again resolved into a Committee of the Whole, resumed consideration of the bill, but did not even allude, according to the Annals, to the question of succession. The next day the bill, incorporating the provision for the succession of the Secretary of State, was read the third time and passed. Several days later the bill, with various amendments, was returned to the Senate. To all of the proposed changes,, save that pertaining to the ninth section, the Senate agreed. Determined to make the President pro tempore of the Senate and the Speaker of the House the only eligibles for Presidential succession in the event of simultaneous vacancies in the two highest executive offices, the Senate, on February 21, sent the bill back to the House. The same day that body, by a vote of 31 yeas to 24 nays, receded from its objectional amendment.14
Whereas the debates do not disclose the motives for the Senate's rejection of the House succession amendment, an extract from the writings of Fisher Ames does. The choleric Mr. Ames, a Federalist Representative from Massachusetts in the Second Congress, confessed in a letter to Thomas Dwight, dated February 23, 1792, that his Federalist brethren in the Senate had blocked the House amendment merely because they feared that Thomas Jefferson, Secretary of State, and the principal object of Federalist jealousy, might possibly slip into the White House by virtue of the indirect route provided by the amendment. Ames gleefully informed his friend that: “The Secretary of State is struck out of the bill for the future Presidency, in case of the two first offices becoming vacant. His
8 Ibid., p. 282. 9 Ibid., p. 302.
10 U. Š. Congress, 74th Cong., 2d sess., S. Doc. No. 232, the Constitution of the United States of America (Washington, 1938), pp. 31–32. 11 Annals of Congress, op. cit., p. 315. 12 Ibid., pp. 401-403. 13 Ibid., pp. 405-406. 14 Ibid., pp. 417–418.
friends seemed to think it important to hold him up as King of the Romans. The firmness of the Senate kept him out.” 10
Among those who voted for complying with the Senate's demand were two Members who had participated in the Constitutional Convention : Mr. Jonathan Dayton, who had previously refrained from voting upon the succession bill, and Mr. Thomas Fitzsimons, who had hitherto voted with Baldwin, Williamson, and Madison. The last three, along with Gilman, voted against the surrender to the Senate,
The act became law on March 1, 1792. It is interesting to note that the revisers of the statutes, in embodying the act of 1792 in their compilation, refer to the presiding officer of the Senate as merely the “President of the Senate”omitting the words “pro tempore." The omission obscured the meaning of the law. As the Vice President is designated by the Constitution “President of the Senate," and as it is only in his absence or when he assumes the Presidency of the United States that the Senate is empowered by the Constitution to elect a President pro tempore for itself, the law, when referring to the latter, should have employed the full Constitutional designation. If the revisers had been interested only in brevity, one wonders why the words “for the time being," which followed "the Speaker of the House of Representatives,” were retained.
That section nine of the Succession Act of 1792, or its peculiar interpretation in the Revised Statutes, remained valid for nearly a century may be attributed more to the fact that no occasion calling for the actuation of its provisions ever arose than to any lack of criticism of the section. Doubts as to its constitutionality, propriety, and efficacy were sounded from the first—in and out of Congress. James Madison, who had voted against the section in the House debates, revealed his views more succinctly in a letter to Edmund Pendleton, dated February 21, 1792. Madison asserted that “the bill certainly errs,” and listed four objections to it:
“1. It may be questioned whether these are officers [President pro tempore and Speaker] in the Constitutional sense. 2. If officers, whether both could be introduced. 3. As they are created by the Constitution, they would probably have been there designated if contemplated for such a service, instead of being left to the Legislative selection. 4. Either they will retain their Legislative stations, and then incompatible functions will be blended; or the incompatibility will supersede those stations, and then those being the substratum of the adventitious functions, these must fail also. The Constitution says, Congress may declare what officers, etc., which seems to make it not an appointment or a translation, but an annexation of one office or trust to another office
It was not until 1856 that the question of revising the act of 1792 was seriously considered. In that year the Senate Committee on the Judiciary reported that the act was entirely constitutional, including the provision for a special election, but pointed out that it was possible for neither congressional officer to be eligible for the Presidency, as each might lack the age and citizenship qualifications. The committee recommended, therefore, that in cases where both these officers were ineligible, the Chief Justice, provided he had not participated in any trial of the President, should succeed. Should this officer prove unqualified, the various Justices of the Supreme Court, according to the dates of their commissions, would be next in line for the Nation's highest honor. Nothing came of the committee's recommendations."
For the next quarter-century the act of 1792 remained unchallenged. In 1881 the fight for revision was resumed, but it was not until after 5 years of heated debate that section 9 (or 146) was invalidated. On January 19, 1886, a new Presidential Succession Act was approved, whereby Cabinet officers, beginning with the Secretary of State, were designated Presidential successors." Arguments similar to those advanced by the proponents of the long-awaited amendment have been summarized by two prominent American political scientists:
"Under it [the act of 1792], the presidency would devolve upon a person who had been sent to the National Capital to be not an executive but a legislator. It ight also bring the Government under the direction of a Chief Executive
16 Seth Ames, ed., Works of Fisher Ames (Boston, 1854), vol. 1, p. 114. 10 Annals of Congress, op. cit., pp. 417–418. 17 Revised Statutes, sec. 146. 18 Letters and Other Writings of James Madison, Fourth President of the United States (Philadelphia, 1865), vol. 1, p. 549.
19 U. s. Congress, 34th Cong., 1st sess., S. Rept. No. 260. 30 3 U. 8. Code, sec. 21.
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 interval 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." 21
Senator HOLLAND. What we are all concerned about seems to be two things. First, under the amendment of section 1 of the Succession Act to provide for an orderly succession that would be as fully representative as possible, and if not regarded as representative, then for machinery through which in an orderly way a representative President or Vice President, or both, could be chosen to fill the vacancy.
The second thing that comes up in connection with the discussion of Senator McMahon's proposed resolution is the matter of having flexibility under which we could have immediate action and succession in the event that everybody that was named under section 1 as now constituted or as amended should through modern catastrophe, which at least is possible, be wiped out by one common calamity.
He suggested one course of action and others have been suggested. I wonder if anybody has thought of the matter of referring the choice in the event of any sudden catastrophe of that kind to a new college or agency, which we might refer to as the College of the Governors.
The governors are selected by the people of the various States and have been recently selected. They certainly can speak with some authority in regard to the point of view of the people whom they do represent.
It would be a small group and would be a flexible group. They are used to working together through the Governors Conference, and they know each other. In the event of a real catastrophe or calamityconsidering only that aspect of the thing now-I just wanted to throw out the suggestion that we might possibly consider availing ourselves of the services of the governors in the event of that.
The CHAIRMAN. A college of governors ?
of that sort because it gives flexibility, speed of action, and pretty close tie-in with the people because they have, of course, been selected recently, each of them, by the people of their respective States.
If you wanted to make it a little more thoroughly representative, you might include with the governors the presiding officers of the two houses of the legislature-or the one house in the case of one State to sit with them.
Certainly in that way you would get a highly representative opinion speaking for the people of each of the 48 States. I have no amendment to suggest. I am just mentioning that.
Senator FULBRIGHT. As opposed to the electoral college, I think they would be more representative. The electors in my State-I don't know about the others—their election is a very perfunctory matter.
Senator HOLLAND. You would have that advantage, and then you would also have the advantage of speed of action, flexibility, small size of group, and the ability of the group to work together because they are finding it necessary to work together very closely.
Senator KNOWLAND. Would you have any objection—just thinking out loud on this thing to have the governors cast votes commensurate with their vote in the electoral college?
21 Ogg and Ray, op. cit., p. 348.