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chosen for the same term, be elected in the following manner, viz:" (Here fol lows the "electoral system” provisions and the choice of one out of five by the Senate, in the event there was no majority in the Electoral College).
“ Section 3. "The Vice President shall be ex officio President of the Senate, except when they sit to try the impeachment of the President; in which case the Chief Justice shall preside, and excepting also when he shall exercise the powers and duties of President; in which case, and in case of his absence, the Senate shall choose a president pro tempore.
There followed a debate on the manner of choosing a President and Vice President, but nothing concerning the “succession.”
On Friday, September 7-again quoting from Madison's notes:
Mr. Randolph moved to insert, in the first section of the Report (having to do with electors) made yesterday, the following:
"The Legislature may declare by law what officer of the United States shall act as President, in case of the death, resignation or disability of the President and Vice President; and such officer shall act accordingly, until the time of electing a President shall arrive."
Mr. Madison observed that this, as worded, would prevent a supply of the vacancy by an intermediate election of the President, and moved to substitute "until such disability be removed, or a President shall be elected".
Mr. Gouverneur Morris seconded the motion, which was agreed to.
It seemed to be an objection to the provision, with some that, according to the process established for choosing the Executive, there would be difficulty in effecting it at other than the fixed period ; with others, that the Legislature was restrained in the temporary appointment to “officers” of the United States. They wished to be at liberty to appoint others as such.
With regard to their feeling that there would be difficulty in effecting it at other than the fixed period, I think that is the reason right now that mechanically it would be unwise to have special elections. You would have to go out and change the primary laws of 48 States. You would have the confusion if a President died immediately after he was installed and you had to have a special election; or, if you go along to within a year from the end of his term, you would have the same confusion. So they were raising the same points then that we raise now.
On the motion of Mr. Randolph, as amended, it passed in the affimative, ave–6; no—4; divided-1.
On the same day the Convention took up the third section : "The Vice President shall be ex officio President of the Senate."
There was discussion as to whether the Vice President should also be President of the Senate. Mr. Gerry opposed having any Vice President. Mr. Morris pointed out that if there were no Vice President, the President of the Senate would be temporary successor, which would amount to the same thing.
On the question, shall the Vice President be ex officio President of the Senate, the vote was: aye-8; no-2; absent-1.
On September 12, the draft for the Constitution, submitted by Dr. Johnson, provided for a 4-year term for President and Vice President, and that:
the Congress may by law provide for the case of removal, death, resignation or inability of both the President and the Vice President, declaring what officer shall then act as President: and such officer shall act accordingly, until the disability be removed, or the period for choosing another President arrive. (Article II, Section 1.)
On September 15, when article II, section 1 was discussed the words "or the period for choosing another President arrive" were changed
to “or a President shall be elected,” conformably to a vote of the 7th of September
Those were excerpts from Mr. Madison's notes on the preliminary debates.
Now we come to the act of 1792, enacted in the Second Congress, which provides that the Vice President pro tempore-President pro tempore of the Senate-was the first in order of succession and the Speaker of the House, second, and that is the way we continued for a hundred years. There had been some discussion of making Cabinet members the first successors, beginning with the Secretary of State who at that time was Thomas Jefferson. However, this move was blocked by Alexander Hamilton, then Secretary of the Treasury, who was bitterly opposed to Jefferson and his policies. Hamilton's recommendations prevailed and the act of 1792 which was in effect for almost a century, placed the President pro tempore of the Senate as first in line of succession followed by the Speaker and the Cabinet members in their rank.
Throughout the years, and especially during the times when a Vice President was called upon to take over the duties of the Presidency, bills were introduced in the Congress to provide for amendment or revisions of the act of 1792, but it was not until 1886 that a new succession law was enacted. This act, now in effect, provides for succession by the Secretary of State, Secretary of the Treasury and the other members of the Cabinet in the order of their rank.
Many of the questions which arose during the recent debate in the House and which will probably be injected into any Senate debate which may follow, were thoroughly discussed in the Congress in 1856, which I told you about a few moments ago, and in 1885 and 1886, when
, the present act was enacted. The discussion in the Senate at that time is too lengthy to be inserted in this memorandum, but excerpts and quotations from that debate may help to clarify the questions which are arising in connection with present proposals to change the line of succession to the Presidency.
On December 15, 1885–Forty-ninth Congress, first session—the bill, S. 471, to provide for the performance of the duties of the office of President in case of the removal, death, resignation, or inability both of the President and Vice President, came up. Consideration was put over, but Senator Hoar gave “briefly” the purpose of the bill, from which discussion the following is abstracted:
The bill provides for two changes in the existing law. First, it substitutes for the President pro tempore of the Senate and the Speaker of the House as the officers upon whom the duties of President and Vice President, the members of the Cabinet in the order of their official seniority—the order in which the various departments were created, except that the head of the Department of Justice, which is the last Department created by law, is continued in his old place as Attorney General, ranking the heads of the Departments created since the original establishment of the Cabinet. That is the first change proposed in the existing law.
Second, the bill as reported from the committee provides that the officer who shall be called upon to act as President in the case of a vacancy in the office of President and Vice President or in case of inability, shall continue so to act during the term for which the
President and Vice President had been elected, and abrogate the provisions of law providing for an election in the interval.
Continuing with Senator Hoar's discussion: Certainly the present arrangement, which devolves the office of the President of the United States in any contingency upon the President of the Senate (pro tempore) or Speaker of the House, is a most awkward and inconvenient
It was adopted originally in opposition to the opinion of Mr. Madison and in opposition to the opinion of the first House of Representatives, of which he was the leader. It was adopted as the result of a continuance of the old controversy in the convention which framed the Constitution of the United States, of the struggle for the equality of the small States in the Government as against the claim that the powers of the Government should be wielded by the people of the different States in proportion to their population. The scale was turned, however, in favor of the adoption of the existing principle by the jealousy entertained toward Mr. Jefferson by the leading Federalists of the first Administration; and undoubtedly but for the apprehension of the growing public influence of Thomas Jefferson and of the political opinions of which he was the representative, the provision would have been made in the First Congress (the Act of 1792 was passed in the Second Congress) that the Secretary of State should succeed to the executive function in case of a vacancy.
The present arrangement is bad, (now he is talking about the Act of 1792—I want to give you both sides of the question) first because during a large portion of the term there is no officer in being who can succeed. That was the case during the whole of the last vacation after the expiration of the last Congress.
I would like to say there that that is true and would be true under my
bill if it were not for the fact that since 1901 we have elected the President pro tempore to serve at the pleasure of the Senate. He is a continuing officer. So there would be no vacation period in which we would not have an officer who would succeed to the Presidency, and has not been since 1901. So the argument made hereby Senator Hoar would not apply now. I checked that with Mr. Watkins, the Parliamentarian, this morning, and he verifies my statement in that regard.
Senator GREEN. Would that apply to the Speaker of the House?
Senator WHERRY. He says that the Speaker of the House is elected continuously for the term of the Congress in which he is elected.
Senator GREEN. What happens when the Congress adjourns?
difference. Senator KNOWLAND. When the Congress ends, he is through?
Senator WHERRY. Yes. You might have a situation where, before the next term of Congress, no Speaker having been elected, in the House of Representatives they would have no one to qualify during that interim period. In that case the President pro tempore would be eligible. There would be only one time when you would have a President pro tempore ineligible, and that would be in a situation such as existed with Senator McKellar, when he was President pro tempore and his 6-year term expired. You might run into that again, but that is the only time in the period of our existence that that thing has happened. You see then we didn't have a Vice President, and Senator McKellar was elected President pro tempore and his 6-year term expired and he couldn't preside as President pro tempore because that ended with his senatorial term. But that is the only case I know of, Senator Green, and that has happened only once in the history of the United States. It is interesting, but that is true.
Of course under my bill if the President pro tempore did not qualify, then the Cabinet members hold over until they are reappointed. The
custom is to resign, but they hold over until the President appoints a new Cabinet. So the succession would be complete under this bill.
Senator Hoar continued :
It is inconvenient, also, because it would be almost impossible for the President of the Senate (pro tempore) to continue to perform the functions of his office, which is the principal office, to which the Presidency of the United States is made a mere adjunct or appendix in the contingency which is provided for by law.
Now this part of the debate hinges upon the fact that under the act of 1792 tħe President pro tempore did not resign and neither did the Speaker. I don't agree with that; I think that they cannot hold two offices and that they have got to resign.
Senator Hoar went on to say:
Nothing can be conceived more awkward, more repugnant to our sense of propriety, than for the President of the United States to sit in the chair of the Senate and preside over and listen to discussions in regard to his own nominations, voting upon them himself as an equal in the Senate, and presiding over and listening to the severe criticism of Executive policy which in times of high party antagonism must always be heard in this Chamber, and ought to be always heard in this Chamber.
There followed a discussion on the advisability of the President pro tempore of the Senate or the Speaker presiding both as President of the United States and as Speaker or President of the Senate; lists the Presidents pro tempore of the Senate and the Speakers of the House, as well as the Secretaries of State; and the point was made that the latter are much better known and more outstanding men. There was also a discussion of the advisability of repealing the Revised Statutes relating to holding of special elections, other than at a 4-year interval, calling attention to the difficulty that would result from having elections in "off" years.
The immediate occasion for this bill, which has given it its prominence in public estimation, although it has passed the Senate once or twice when there was no such contingency—the immediate occasion of this bill is the impression upon the public mind of the grave and serious necessity for casting new safeguards about the life of the President of the United States. It is clear, as I said just now in another connection, that the security against the attempts on the life of the President by any political criminal in a time of great public excitement, when persons are maddened and crazed as the feeble mind of Guiteau was by a political quarrel, or a person who persuades himself that he is performing the part of a Brutus by ridding the country of a tyrant, who is sand—will be much greater under this bill than under existing law. But if the principal adviser, the principal leader and exponent of the policies and principles of the party that elected the existing President is to succeed to the office, and so in turn his other Cabinet advisers, that motive is entirely gone. And it is not a man, it is under the theory of our Constitution a principle of political conduct for which the people of the United States declare when they elect a President and Vice President; and that is continued in the provisions of this bill.
The bill went over until the next day, when general discussion was had. There is a history of the legislation, including a history of their
a reasons which produced the act of 1792, the first Act on Succession, which was superseded by the act of 1886, then under discussion. Senator Maxey's speech goes into the reasons behind the law of 1792– namely, Hamilton's dislike for Jefferson, then Secretary of State. Point is also made by Senator Maxey that neither the President pro tempore of the Senate, nor the Speaker of the House of Representatives, is an "officer” of the United States. And usually they refer to the Blount case to prove that point.
In the Blount case; there was a Senator Blount elected from the State of Tennessee, impeached by the House and tried by the Senate, and the impeachment proceedings were not concurred in because the Senate felt that they should not take jurisdiction, that the Senator was not an officer of the Federal Government. I believe that is a correct statement of the facts.
The CHAIRMAN. May I interject there? It went also on another point and that was that in the section of the Constitution that provided for impeachment it designated specifically that the President, the Vice President or “civil" officers were subject to impeachment; whereas another section of the Constitution provided that each House shall make its own rules and may punish its members. And by counsel for Senator Blount it was very forcibly presented that that was the reason, not that he wasn't an officer, but that he wasn't a civil officer and that he shouldn't have been tried under the impeachment provisions as a civil officer when there was another provision of the Constitution by which each House could punish their own Members.
Senator GREEN. What was the distinction? If he was not a civil officer, what kind of an officer was he?
The CHAIRMAN. He was an officer of the legislature, he was an officer of the Government.
Senator GREEN. What is the distinction between that and a civil officer? I am asking for information only.
The CHAIRMAN. Why should they say “civil” officers if they meant all officers, and why should they in another section of the Constitution provide for each House punishing their Members, if they wanted them impeached?
Senator GREEN. Unless "civil” officer was to distinguish it from a military officer.
The CHAIRMAN. It might have been that, or else it might have been to distinguish from a legislative officer.
Senator WHERRY. That point is raised later on in my remarks. I was only giving the quotation on the point raised by Mr. Maxey. I am glad you brought it up because it clarifies what I expect to state later.
The CHAIRMAN. I just wanted you to know that in the case counsel for Blount raised that question and, I think, very forcibly presented it. It didn't hinge on the assertion or claim that he wasn't an officer, but that he wasn't included in the group that could be impeached but was included within the provision of the Constitution that Members of both Houses could remove their own Members.
Senator WHERRY (continuing). Senator Maxey also discussed the question of the meaning of the language "or a President shall be elected," and concludes that it was the intent of the framers of the Constitution to have 4-year elections and not byelections.
Senator Beck received permission to insert in the record a paper by Mr. Murphy (the Reporter of the Senate) compiled in 1881, after the assassination of President Garfield, which gives the history of the controversy in the Constitutional Convention and also a story of what happened in the Second Congress, when the act of March 1, 1792, was passed. This act was title III, Revised Statutes, sections 146, 147, 148, and 149.