ment, no person is eligible who has violated an oath previously taken to support the constitution of the United States, by engaging in insurrection or rebellion against the same, or giving aid or comfort to the enemies thereof, unless his disability has been removed by congress. A disqualification for the office of presidential elector, caused by the holding of an office, cannot be removed by the resignation of that office after the choosing of the elector but before he comes to cast his vote for President. The courts of a state have jurisdiction of an indictment for illegal voting for presidential electors.❜

The electors are required to make lists of the votes which they cast, and sign and certify the same, and transmit them sealed to the president of the senate. It is also provided that this officer, in the presence of both houses of congress, shall open all the certificates. The constitution then provides that the votes shall be counted. But it is not prescribed by whom the counting shall be done, nor who shall declare the result. But this is now regulated by statute, the duty being cast upon the president of the senate, who was obviously intended to discharge it. But neither in the original plan nor in the twelfth amendment is any provision made for the determination of questions which may arise as to the regularity or authenticity of the returns or the right or qualification of the electors, or the manner or circumstances in which the votes should be counted. This serious defect in the constitution was made apparent in the memorable contest of 1877. The electoral commission, by which that election was determined, was created only to meet the particular emergency, and was not made applicable to future cases. But since that time, congress has provided regulations for these matters with such care and minuteness of detail that no such dispute is likely ever to recur.*

Great importance was attached by the framers of the constitution to the interposition of the electoral college between the pas sions and prejudices of the undiscriminating multitude of voters and the high office of President. But in no single instance have their designs and theories been more completely frustrated by the

2 In re Corliss, 11 R. I. 638.

In re Green, 134 U. S. 377, 10 Sup. Ct. 586.

Act Cong. Feb. 3, 1887 (24 Stat. 373); Act Oct. 19, 1888 (25 Stat. 613).

practical workings of the system than in this. It is well known that at present the electors have no independent choice of the candidates for whom their votes shall be cast. The candidates are nominated by national conventions of the political parties, and the electors have merely the perfunctory task of registering their votes for the candidate of the party by whom they were chosen. Only in very rare instances do the presidential electors find themselves at liberty to exercise their personal judgment or preference. In general, the electoral college is a mere survival.

The house of representatives is to elect the President in case no person has a majority of the electoral votes. In that event, the persons receiving the greatest number of votes (not exceeding three candidates) are to be voted for, the vote is by states, each state having one vote, and a majority of all the states is necessary to elect. In the same contingency, the senate is to choose the Vice-President, voting for the two candidates standing highest on the list.

QUALIFICATIONS OF PRESIDENT.

61. The constitution prescribes the qualifications of the President in three particulars. To be eligible to this office he must

(a) Be a natural born citizen of the United States;
(b) Have attained the age of thirty-five years;

(c) Have been for fourteen years a resident within the
United States.

Congress would clearly have no power to add to these qualifications, nor to dispense with any requisite laid down in the consti tution. "By residence, in the constitution, is to be understood, not an absolute inhabitancy within the United States during the whole period, but such an inhabitancy as includes a permanent domicile in the United States. No one has supposed that a temporary absence abroad on public business, and especially on an embassy to a foreign nation, would interrupt the residence of a citizen so as to disqualify him for office. If the word were to be construed with such strictness, then a mere journey through any foreign adjacent

territory, for health or for pleasure, or a commorancy there for a single day, would amount to a disqualification."

VACANCY IN OFFICE OF PRESIDENT.

62. In case of the removal of the President from office, or of his death, resignation, or inability to discharge the powers and duties of the office, the same devolves upon the Vice-President. If both these should die, or be incapacitated from discharging the duties of the office, as above, then, by a statutory provision, the office devolves upon certain members of the cabinet, succeeding each other in a prescribed order.

The constitution gives to congress the power by law to "provide for the case of removal, death, resignation, or inability both of the President and Vice-President, declaring what officer shall then act as President, and such officer shall act accordingly until the disability be removed or a President shall be elected." In pursuance of this power, it was at first provided that, in the case supposed, the president of the senate, or, if there were none, then the speaker of the house of representatives for the time being, should act as President. But this law was repealed by an act passed in 1886' wherein it is provided that in default of both a President and VicePresident capable of acting, the heads of departments shall succeed them in the following order: The secretary of state; the secretary of the treasury; the secretary of war; the attorney-general; the postmaster-general; the secretary of the navy; the secretary of the interior. This act settles a question of considerable importance which was left open under the former law. It declares that its terms shall apply only to such among the above named officers as are eligible to the office of President under the constitution and not under impeachment at the time. If the Vice-President becomes acting President, he will hold the office until the expiration of the term for which the President was elected. And so also, it would appear, will a member of the cabinet, succeeding under the terms of the law mentioned above, except in the case where the cause of his succession Rev. St. U. S. §§ 146-150. 7 24 Stat. 1.

2 Story, Const. § 1479.

is a temporary disability of the President, in which event he is only to hold the office until the disability is removed. In view of the possibility of the President desiring to resign his office, a case contemplated by the constitution, it was very important that the method of effecting the resignation should be pointed out, and that there should be some authoritative declaration of the proof of such resignation to be required. This desideratum was met by an early act of congress providing that the resignation shall be made by some instrument in writing, declaring the same, subscribed by the party, and delivered into the office of the secretary of state.

COMPENSATION OF PRESIDENT.

63. The constitution provides that the President shall, at stated times, receive for his services a compensation, which shall neither be increased nor diminished during the period for which he shall have been elected, and he shall not within that period receive any other emolument from the United States or any of them.

The object of this provision is of course to put the President beyond either the fear or favor of congress, by depriving that body of the power to coerce him into submission to its wishes by cutting off his stipend, or to bribe his compliance by an increase of salary. The salary of the President was at first fixed at $25,000 per annum, and so continued until it was increased to $50,000 by the act of March 3, 1873. As this statute was enacted on the last day of the first term of President Grant, who entered upon his second term on the next following day, it is regarded as having established a precedent to the effect that an increase of salary made after the re-election of a President may govern his compensation during the second term.

Act March 1, 1792, c. 8, § 11 (Rev. St. U. S. § 151).

OATH OF OFFICE OF PRESIDENT.

64. The constitution requires that the President, before he enters on the execution of his office, shall take the following oath or affirmation: "I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability preserve, protect, and defend the constitution of the United States."

This official oath is usually taken by the President-elect in front of the Capitol at Washington, in the presence of both houses of congress. It is commonly administered by the chief justice of the supreme court, but this is a matter of precedent only, and any person having authority to administer such an oath could legally perform the office. As to the Vice-President, his official oath is not expressly provided for in the constitution, but it falls within the provision of the last clause of the sixth article, which requires that "all executive and judicial officers both of the United States and of the several states, shall be bound by oath or affirmation to support this constitution." And if he succeeds to the presidency, he then takes the oath of office prescribed for the President.

With general reference to the oath taken by officers to support the constitution, it may be said that (except as it regards the officer's personal obedience to the constitution) it is to be taken as a political oath. It means that the officer will maintain the supremacy and inviolability of the constitution against disruption by domestic intrigue or foreign aggression.

INDEPENDENCE OF THE EXECUTIVE.

65. In the exercise of his constitutional powers and functions, the President is an independent, co-ordinate branch of the government, not subject to the direction or control of either congress or the courts.

The constitution makes the President of the United States the repository of all the executive power of the nation, thus constituting him a separate department of the government, not inferior to the