Chapter 32

represent. d. A peculiar Connecticut system. e. The suggestion of the Connecticut delegates. f. The effect of the compromise.

3. The Senate:--

a. The number of senators. b. The method of electing senators. c. The voting of senators. d. The term of service. e. The maintenance of a continuous existence. f. A comparison with the House in respect to nearness to the people. g. Qualifications for membership.

4. Elections for senators and representatives:--

a. Times, places, and manner of holding elections. b. The power of Congress over state regulations. c. Electoral districts. d. The temptation to unfairness in laying out electoral districts. e. Illustrations of unfair divisions. f. "Gerrymandering." g. Representatives at large. h. The advantage of the district system. i. The British system and its advantage.

5. The assembling of Congress:--

a. The time of assembling. b. The interval between a member's election and the beginning of his service. c. The disadvantage of this long interval.

6. What is the duty of each house in respect (1) to its membership, (2) its rules, (3) its records, and (4) its adjournment.

7. Give an account (1) of the pay of a congressman, (2) of his freedom from arrest, (3) of his responsibility for words spoken in debate, and (4) of his right to hold other office.

8. Tell (1) who preside in Congress, (2) how the name _speaker_ originated, (3) what the speaker's duties are, and (4) what his power in the government is.

9. Impeachment of public officers:--

a. Old English usage. b. The conduct of an impeachment trial in England. c. The conduct of an impeachment trial in the United States. d. The penalty in case of conviction.

10. The provisions of the Constitution for legislation:--

a. Bills for raising revenue. b. How a bill becomes a law. c. The president's veto power. d. Passage of a bill over the president's veto. e. The "pocket veto." f. The veto power in England. g. The value of the veto power.

Section 3. _The Federal Executive._

[Sidenote: The title of "President."] In signing or vetoing bills passed by Congress the president shares in legislation, and is virtually a third house. In his other capacities he is the chief executive officer of the Federal Union; and inasmuch as he appoints the other great executive officers, he is really the head of the executive department, not--like the governor of a state--a mere member of it. His title of "President" is probably an inheritance from the presidents of the Continental Congress. In Franklin's plan of union, in 1754, the head of the executive department was called "Governor General," but that title had an unpleasant sound to American ears. Our great-grandfathers liked "president" better, somewhat as the Romans, in the eighth century of their city, preferred "imperator" to "rex." Then, as it served to distinguish widely between the head of the Union and the heads of the states, it soon fell into disuse in the state governments, and thus "president" has come to be a much grander title than "governor," just as "emperor" has come to be a grander title than "king." [11]

[Footnote 11: See above p. 163.]

[Sidenote: The electoral college.] There was no question which perplexed the Federal Convention more than the question as to the best method of electing the president. There was a general distrust of popular election for an office so exalted. At one time the Convention decided to have the president elected by Congress, but there was a grave objection to this; it would be likely to destroy his independence, and make him the tool of Congress. Finally the device of an electoral college was adopted. Each state is entitled to a number of electors equal to the number of its representatives in Congress, _plus_ two, the number of its senators. Thus to-day Delaware, with 1 representative, has 3 electors; Missouri, with 14 representatives, has 16 electors; New York, with 34 representatives, has 36 electors. No federal senator or representative, or any person holding civil office under the United States, can serve as an elector. Each state may appoint or choose its electors in such manner as it sees fit; at first they were more often than otherwise chosen by the legislatures, now they are always elected by the people. The day of election must be the same in all the states.

By an act of Congress passed in 1792 it is required to be within 34 days preceding the first Wednesday in December. A subsequent act in 1845 appointed the Tuesday following the first Monday in November as election day.

By the act of 1792 the electors chosen in each state are required to assemble on the first Wednesday in December at some place in the state which is designated by the legislature. Before this date the governor of the state must cause a certified list of the names of the electors to be made out in triplicate and delivered to the electors. Having met together they vote for president and vice-president, make out a sealed certificate of their vote in triplicate, and attach to each copy a copy of the certified list of their names. One copy must be delivered by a messenger to the president of the Senate at the federal capital before the first Wednesday in January; the second is sent to the same officer through the mail; the third is to be deposited with the federal judge of the district in which the electors meet. If by the first Wednesday in January the certificate has not been received at the federal capital, the secretary of state is to send a messenger to the district judge and obtain the copy deposited with him. The interval of a month was allowed to get the returns in, for those were not the days of railroad and telegraph. The messengers were allowed twenty-five cents a mile, and were subject to a fine of a thousand dollars for neglect of duty. On the second Wednesday in February, Congress is required to be in session, and the votes received are counted and the result declared.[12]

[Footnote 12: See note on p. 278.]

[Sidenote: The twelfth amendment (1804).] At first the electoral votes did not state whether the candidates named in them were candidates for the presidency or for the vice-presidency. Each elector simply wrote down two names, only one of which could be the name of a citizen of his own state. In the official count the candidate who had the largest number of votes, provided they were a majority of the whole number, was declared president, and the candidate who had the next to the largest number was declared vice-president. The natural result of this was seen in the first contested election in 1796, which made Adams president, and his antagonist vice-president. In the next election in 1800 it gave to Jefferson and his colleague Burr exactly the same number of votes. In such a case the House of Representatives must elect, and such intrigues followed for the purpose of defeating Jefferson that the country was brought to the verge of civil war. It thus became necessary to change the method. By the twelfth amendment to the constitution, declared in force in 1804, the present method was adopted. The electors make separate ballots for president and for vice-president. In the official count the votes for president are first inspected. If no candidate has a majority, then the House of Representatives must immediately choose the president from the three names highest on the list. In this choice the house votes by states, each state having one vote; a quorum for this purpose must consist of at least one member from two thirds of the states, and a majority of all the states is necessary for a choice. Then if no candidate for the vice-presidency has a majority, the Senate makes its choice from the two names highest on the list; a quorum for the purpose consists of two thirds of the whole number of senators, and a majority of the whole number is necessary to a choice. Since this amendment was made there has been one instance of an election of the president by the House of Representatives,--that of John Quincy Adams in 1825; and there has been one instance of an election of the vice-president by the Senate,--that of Richard Mentor Johnson in 1837.

[Sidenote: The electoral commission (1877).] One serious difficulty was not yet foreseen and provided for--that of deciding between two conflicting returns sent in by two hostile sets of electors in the same state, each list being certified by one of two rival governors claiming authority in the same state. Such a case occurred in 1877, when Florida, Louisiana, and South Carolina were the scene of struggles between rival governments. Ballots for Tilden and ballots for Hayes were sent in at the same time from these states, and in the absence of any recognized means of determining which ballots to count, the two parties in Congress submitted the result to arbitration. An "electoral commission" was created for the occasion, composed of five senators, five representatives, and five judges of the supreme court; and this body decided what votes were to be counted. It was a clumsy expedient, but infinitely preferable to civil war. The question of conflicting returns has at length been set at rest by the act of 1887, which provides that no electoral votes can be rejected in counting except by the concurrent action of the two houses of Congress.

[Sidenote: Presidential succession.] The devolution of the presidential office in case of the president's death has also been made the subject of legislative change and amendment. The office of vice-president was created chiefly for the purpose of meeting such an emergency. Upon the accession of the vice-president to the presidency, the Senate would proceed to elect its own president _pro tempore_. An act of 1791 provided that in case of the death, resignation or disability of both president and vice-president, the succession should devolve first upon the president _pro tempore_ of the Senate and then upon the speaker of the House of Representatives, until the disability should be removed or a new election be held. But supposing a newly elected president to die and be succeeded by the vice-president before the assembling of the newly elected Congress; then there would be no president _pro tempore_ of the Senate and no speaker of the House of Representatives, and thus the death of one person might cause the presidency to lapse. Moreover the presiding officers of the two houses of Congress might be members of the party defeated in the last presidential election; indeed, this is often the case. Sound policy and fair dealing require that a victorious party shall not be turned out because of the death of the president and vice-president. Accordingly an act of 1886 provided that in such an event the succession should devolve upon the members of the cabinet in the following order: secretary of state, secretary of the treasury, secretary of war, attorney-general, postmaster-general, secretary of the navy, secretary of the interior. This would seem to be ample provision against a lapse.

[Sidenote: Original purpose of the electoral college not fulfilled.] To return to the electoral college: it was devised as a safeguard against popular excitement. It was supposed that the electors in their December meeting would calmly discuss the merits of the ablest men in the country and make an intelligent selection for the presidency. The electors were to use their own judgment, and it was not necessary that all the electors chosen in one state should vote for the same candidate. The people on election day were not supposed to be voting for a president but for presidential electors. This theory was never realized. The two elections of Washington, in 1788 and 1792, were unanimous. In the second contested election, that of 1800, the electors simply registered the result of the popular vote, and it has been so ever since. Immediately after the popular election, a whole month before the meeting of the electoral college, we know who is to be the next president. There is no law to prevent an elector from voting for a different pair of candidates from those at the head of the party ticket, but the custom has become as binding as a statute. The elector is chosen to vote for specified candidates, and he must do so.

[Sidenote: Electors formerly chosen in many states by districts; now usually on a general ticket.] On the other hand, it was not until long after 1800 that all the electoral votes of the same state were necessarily given to the same pair of candidates. It was customary in many states to choose the electors by districts. A state entitled to ten electors would choose eight of them in its eight congressional districts, and there were various ways of choosing the other two. In some of the districts one party would have a majority, in others the other, and so the electoral vote of the state would be divided between two pairs of candidates. After 1830 it became customary to choose the electors upon a general ticket, and thus the electoral vote became solid in each state.[13]

[Footnote 13: In 1860 the vote of New Jersey was divided between Lincoln and Douglas, but that was because the names of three of the seven Douglas electors were upon two different tickets, and thus got a majority of votes while the other four fell short. In 1892 the state of Michigan chose its electors by districts.]

[Sidenote: Minority presidents.] [Sidenote: Advantages of the electoral system.] This system, of course, increases the chances of electing presidents who have received a minority of the popular vote. A candidate may carry one state by an immense majority and thus gain 6 or 8 electoral votes; he may come within a few hundred of carrying another state and thus lose 36 electoral votes. Or a small third party may divert some thousands of votes from the principal candidate without affecting the electoral vote of the state. Since Washington's second term we have had twenty-three contested elections,[14] and in nine of these the elected president has failed to receive a majority of the popular vote; Adams in 1824 (elected by the House of Representatives), Polk in 1844, Taylor in 1848, Buchanan in 1856, Lincoln in 1860, Hayes in 1876, Garfield in 1880, Cleveland in 1884, Harrison in 1888. This has suggested more or less vague speculation as to the advisableness of changing the method of electing the president. It has been suggested that it would be well to abolish the electoral college, and resort to a direct popular vote, without reference to state lines. Such a method would be open to one serious objection. In a closely contested election on the present method the result may remain doubtful for three or four days, while a narrow majority of a few hundred votes in some great state is being ascertained by careful counting. It was so in 1884. This period of doubt is sure to be a period of intense and dangerous excitement. In an election without reference to states, the result would more often be doubtful, and it would be sometimes necessary to count every vote in every little out-of-the-way corner of the country before the question could be settled. The occasions for dispute would be multiplied a hundred fold, with most demoralizing effect. Our present method is doubtless clumsy, but the solidity of the electoral colleges is a safeguard, and as all parties understand the system it is in the long run as fair for one as for another.

[Footnote 14: All have been contested, except Monroe's re-election in 1820, when there was no opposing candidate.]

[Sidenote: Nomination of candidates by congressional caucus (1800-24).] The Constitution says nothing about the method of nominating candidates for the presidency, neither has it been made the subject of legislation. It has been determined by convenience. It was not necessary to nominate Washington, and the candidacies of Adams and Jefferson were also matters of general understanding. In 1800 the Republican and Federalist members of Congress respectively held secret meetings or caucuses, chiefly for the purpose of agreeing upon candidates for the vice-presidency and making some plans for the canvass. It became customary to nominate candidates in such congressional caucuses, but there was much hostile comment upon the system as undemocratic. Sometimes the "favourite son" of a state was nominated by the legislature, but as the means of travel improved, the nominating convention came to be preferred. In 1824 there were four candidates for the presidency,--Adams, Jackson, Clay, and Crawford. Adams was nominated by the legislatures of most of the New England states; Clay by the legislature of Kentucky, followed by the legislatures of Missouri, Ohio, Illinois, and Louisiana; Crawford by the legislature of Virginia; and Jackson by a mass convention of the people of Blount County in Tennessee, followed by local conventions in many other states. The congressional caucus met and nominated Crawford, but this endorsement did not help him,[15] and this method was no longer tried. In 1832 for the first time the candidates were all nominated in national conventions.

[Footnote 15: Stanwood, _History of Presidential Elections_, pp. 80-83.]

[Sidenote: Nomination conventions.] [Sidenote: The "primary."] These conventions, as fully developed, are representative bodies chosen for the specific purpose of nominating candidates and making those declarations of principle and policy known as "platforms." Each state is allowed twice as many delegates as it has electoral votes. The delegates are chosen by local conventions in their several states, viz., two for each congressional district by the party convention of that district, and four for the whole state (called delegates-at-large) by the state convention. As each convention is composed of delegates from primaries, it is the composition of the primaries which determines that of the local conventions, and it is the composition of the local conventions which determines that of the national.[16] The "primary" is the smallest nominating convention. It stands in somewhat the same relation to the national convention as the relation of a township or ward to the whole United States. A primary is a little caucus of all the voters of one party who live within the bounds of the township or ward. It differs in composition from the town-meeting in that all its members belong to one party. It has two duties: one is to nominate candidates for the local offices of the township or ward; the other is to choose delegates to the county or district convention. The primary, as its name indicates, is a primary and not a representative assembly. The party voters in a township or ward are usually not too numerous to meet together, and all ought to attend such meetings, though in practice too many people stay away. By the representative system, through various grades of convention, the wishes and character of these countless little primaries are at length expressed in the wishes and character of the national party convention, and candidates for the presidency and vice-presidency are nominated.

[Footnote 16: Bryce, _American Commonwealth_, vol. ii. p. 145; see also p. 52.]

[Sidenote: Qualifications for the presidency.] The qualifications for the two offices are of course the same. Foreign-born citizens are not eligible, though this restriction did not include such as were citizens of the United States at the time when the Constitution was adopted. The candidate must have reached the age of thirty-five, and must have been fourteen years a resident of the United States.

[Sidenote: The term of office] The president's term of office is four years. The Constitution says nothing about his re-election, and there is no written law to prevent his being re-elected a dozen times. But Washington, after serving two terms, refused to accept the office a third time. Jefferson in 1808 was "earnestly besought by many and influential bodies of citizens to become a candidate for a third term;" [17] and had he consented there is scarcely a doubt that he would have been elected. His refusal established a custom which has never been infringed, though there were persons in 1876 and again in 1880 who wished to secure a third term for Grant.

[Footnote 17: Morse's _Jefferson_, p. 318.]

[Sidenote: Powers and duties of the President] The president is commander-in-chief of the military and naval forces of the United States, and of the militia of the several states when actually engaged in the service of the United States; and he has the royal prerogative of granting reprieves and pardons for offences against the United States, except in cases of impeachment.[18]

[Footnote 18: See above, p. 221.]

He can make treaties with foreign powers, but they must be confirmed by a two thirds vote of the Senate. He appoints ministers to foreign countries, consuls, and the greater federal officers, such as the heads of executive departments and judges of the Supreme Court, and all these appointments are subject to confirmation by the Senate. He also appoints a vast number of inferior officers, such as postmasters and revenue collectors, without the participation of the Senate. When vacancies occur during the recess of the Senate, he may fill them by granting commissions to expire at the end of the next session. He commissions all federal officers. He receives foreign ministers. He may summon either or both houses of Congress to an extra session, and if the two houses disagree with regard to the time of adjournment, he may adjourn them to such time as he thinks best, but of course not beyond the day fixed for the beginning of the next regular session.

[Sidenote: The President's message.] The president must from time to time make a report to Congress on the state of affairs in the country and suggest such a line of policy or such special measures as may seem good to him. This report has taken the form of an annual written message. Washington and Adams began their administrations by addressing Congress in a speech, to which Congress replied; but it suited the opposite party to discover in this an imitation of the British practice of opening Parliament with a speech from the sovereign. It was accordingly stigmatized as "monarchical," and Jefferson (though without formally alleging any such reason) set the example, which has been followed ever since, of addressing Congress in a written message.[19] Besides this annual message, the president may at any time send in a special message relating to matters which in his opinion require immediate attention.

[Footnote 19: Jefferson, moreover, was a powerful writer and a poor speaker.]

The effectiveness of a president's message depends of course on the character of the president and the general features of the political situation. That separation between the executive and legislative departments, which is one of the most distinctive features of civil government in the United States, tends to prevent the development of leadership. An English prime minister's policy, so long as he remains in office, must be that of the House of Commons; power and responsibility are concentrated. An able president may virtually direct the policy of his party in Congress, but he often has a majority against him in one house and sometimes in both at once. Thus in dividing power we divide and weaken responsibility. To this point I have already alluded as illustrated in our state governments.[20]

[Footnote 20: The English method, however, would probably not work well in this country, and might prove to be a source of great and complicated dangers. See above, p. 169.]

[Sidenote: Executive departments] [Sidenote: The cabinet] The Constitution made no specific provisions for the creation of executive departments, but left the matter to Congress. At the beginning of Washington's administration three secretaryships were created,--those of state, treasury, and war; and an attorney-general was appointed. Afterward the department of the navy was separated from that of war, the postmaster-general was made a member of the administration, and as lately as 1849 the department of the interior was organized. The heads of these departments are the president's advisers, but they have as a body no recognized legal existence or authority. They hold their meetings in a room at the president's executive mansion, the White House, but no record is kept of their proceedings and the president is not bound to heed their advice. This body has always been called the "Cabinet," after the English usage. It is like the English cabinet in being composed of heads of executive departments and in being, as a body, unknown to the law; in other respects the difference is very great. The English cabinet is the executive committee of the House of Commons, and exercises a guiding and directing influence upon legislation. The position of the president is not at all like that of the prime minister; it is more like that of the English sovereign, though the latter has not nearly so much power as the president; and the American cabinet in some respects resembles the English privy council, though it cannot make ordinances.

[Sidenote: The secretary of state.] The secretary of state ranks first among our cabinet officers. He is often called our prime minister or "premier," but there could not be a more absurd use of language. In order to make an American personage corresponding to the English prime minister we must first go to the House of Representatives, take its committee of ways and means and its committee on appropriations, and unite them into one committee of finance; then we must take the chairman of this committee, give him the power of dissolving the House and ordering a new election, and make him master of all the executive departments, while at the same time we strip from the president all real control over the administration. This exalted finance-chairman would be much like the First Lord of the Treasury, commonly called the prime minister. This illustration shows how wide the divergence has become between our system and that of Great Britain.

Our secretary of state is our minister of foreign affairs, and is the only officer who is authorized to communicate with other governments in the name of the president. He is at the head of the diplomatic and consular service, issuing the instructions to our ministers abroad, and he takes a leading part in the negotiation of treaties. To these ministerial duties he adds some that are more characteristic of his title of secretary. He keeps the national archives, and superintends the publication of laws, treaties, and proclamations; and he is the keeper of the great seal of the United States.

[Sidenote: Diplomatic and consular service.] Our foreign relations are cared for in foreign countries by two distinct classes of officials: ministers and consuls. The former represent the United States government in a diplomatic capacity; the latter have nothing to do with diplomacy or politics, but look after our commercial interests in foreign countries. Consuls exercise a protective care over seamen, and perform various duties for Americans abroad. They can take testimony and administer estates. In some non-Christian countries, such as China, Japan, and Turkey, they have jurisdiction over criminal cases in which Americans are concerned. Formerly our ministers abroad were of only three grades: (1) "envoys extraordinary and ministers plenipotentiary;" (2) "ministers resident;" (3) _chargés d'affaires_. The first two are accredited by the president to the head of government of the countries to which they are sent; the third are accredited by the secretary of state to the minister of foreign affairs in the countries to which they are sent. We still retain these grades, which correspond to the lower grades of the diplomatic service in European countries. Until lately we had no highest grade answering to that of "ambassador," perhaps because when our diplomatic service was organized the United States did not yet rank among first-rate powers, and could not expect to receive ambassadors. Great powers, like France and Germany, send ambassadors to each other, and envoys to inferior powers, like Denmark or Greece or Guatemala. When we send envoys to the great powers, we rank ourselves along with inferior powers; and diplomatic etiquette as a rule obliges the great powers to send to us the same grade of minister that we send to them. There were found to be some practical inconveniences about this, so that in 1892 the highest grade was adopted and our ministers to Great Britain and France were made ambassadors.

[Sidenote: The secretary of the treasury.] The cabinet officer second in rank and in some respects first in importance is the secretary of the treasury. He conducts the financial business of the government, superintends the collection of revenue, and gives warrants for the payment of moneys from the treasury. He also superintends the coinage, the national banks, the custom-houses, the coast-survey and lighthouse system, the marine hospitals, and life-saving service.[21] He sends reports to Congress, and suggests such measures as seem good to him. Since the Civil War his most weighty business has been the management of the national debt. He is aided by two assistant secretaries, six auditors, a register, a comptroller, a solicitor, a director of the mint, commissioner of internal revenue, chiefs of the bureau of statistics and bureau of engraving and printing, etc. The business of the treasury department is enormous, and no part of our government has been more faithfully administered. Since 1789 the treasury has disbursed more than seven billions of dollars without one serious defalcation. No man directly interested in trade or commerce can be appointed secretary of the treasury, and the department has almost always been managed by "men of small incomes bred either to politics or the legal profession." [22]

[Footnote 21: Many of these details concerning the executive departments are admirably summarized, and with more fullness than comports with the design of the present work, in Thorpe's _Government of the People of the United States_, pp. 183-193.]

[Footnote 22: Schouler, _Hist. of the U.S._, vol. i. p. 95.]

[Sidenote: War and navy.] The war and navy departments need no special description here. The former is divided into ten and the latter into eight bureaus. The naval department, among many duties, has charge of the naval observatory at Washington and publishes the nautical almanac.

[Sidenote: Interior.] The department of the interior conducts a vast and various business, as is shown by the designations of its eight bureaus, which deal with public lands, Indian affairs, pensions, patents, education (chiefly in the way of gathering statistics and reporting upon school affairs), agriculture, public documents, and the census. In 1889 the bureau of agriculture was organized as a separate department. The weather bureau forms a branch of the department of agriculture.

[Sidenote: Postmaster-general and attorney-general.] The departments of the postmaster-general and attorney-general need no special description. The latter was organized in 1870 into the department of justice. The attorney-general is the president's legal adviser, and represents the United States in all law-suits to which the United States is a party. He is aided by a solicitor-general and other subordinate offices.

QUESTIONS ON THE TEXT.

1. Speak (1) of the president's share in legislation; (2) of his relation to the executive department, and (3) of the origin of his title.

2. The electoral college:--

a. The method of electing the president a perplexing question. b. The constitution of the electoral college, with illustrations. c. Qualifications for serving as an elector. d. The method of choosing electors. e. The time of choosing electors. f. When and where the electors vote. g. The number and disposition of the certificates of their h. The declaration of the result.

3. What was the method of voting in the electoral college before 1804? Illustrate the working of this method in 1796 and 1800.

4. The amendment of 1804:--

a. The ballots of the electors. b. The duty of the House if no candidate for the presidency receives a majority of the electoral votes.