civil office under the United States is morally unfit for and should no longer remain in his position of public trust.

Punishment

It is constitutionally provided that conviction upon impeachment must result in removal from office. To this may be added disqualification to hold and enjoy in the future any office of honor, trust or profit under the United States. When a criminal offense has been committed the party convicted is still "liable and subject to indictment, trial, judgment and punishment according to law." The power of the President to grant reprieves or to pardon does not extend to cases of impeachment.

Effect of dissolution of Congress

Whether or not the dissolution of the House preferring the impeachment operates to terminate the charges made has not been determined, the occasion for the determination not having arisen. Reason and analogy with ordinary criminal proceedings and with English practice would seem to answer the question in the negative.

It is scarcely necessary to say that the proceedings and determinations of the Senate when sitting as court of impeachment are not subject to review in any other court.

CHAPTER XLVIII

THE ELECTION OF THE PRESIDENT AND VICE-PRESIDENT

The Executive Department

The President and Vice-President are the only Federal executive officers for whose selection and functions the Constitution makes direct provision, unless, indeed, one includes the Senate to which is intrusted participation in the executive functions of appointments and approval of treaties. That certain great executive departments should be legislatively established was taken for granted, as shown, for example, in the provision that the President "may require the opinion, in writing, of the principal officers in each of the executive departments, upon any subject relating to the duties of their respective offices;" and that the appointment of inferior officers may be by Congress vested in the "Heads of Departments." From time to time these great executive departments, as well as certain "commissions" and other executive bodies not falling within any one of the "departments," have been created. The description and organization of these bodies does not fall within the scope of a treatise on constitutional law. We shall be concerned, however, with the manner in which all these executive departments are integrated into one great system with the President as its head and the extent of the directive power which the President may exercise over the civil and military service, and which the higher executive officers may exercise over their subordinates.

In the present chapter will be considered the qualifica

tion for the Presidency and Vice-Presidency, and the constitutional provisions governing the selection of persons to fill these offices.

Appointment of presidential electors-Plenary powers of the States

The Constitution provides that "Each State shall appoint, in such manner as the legislature thereof may direct, a number of electors, equal to the whole number of representatives to which the State may be entitled in the Congress; but no senator or representative, or persons holding an office of trust or profit under the United States shall be appointed an elector."

It will be observed that the Constitution gives complete power to the States in the selection of presidential electors. The provision is that each State shall appoint in such manner as the legislature thereof may direct. There is no requirement as to their election by the people.

. As a matter of fact during the early years under the Constitution in many of the States presidential electors were not elected at all, but appointed by the legislatures, and this practice did not wholly disappear until quite recently. South Carolina practiced legislative appointment until 1860, and Colorado appointed in this manner in 1876. At the present time, in all the States, the electors are chosen by popular ballot on a general ticket. It is, however, within the power of the States to provide for their election by districts, and this was done in Michigan in 1892. The constitutionality of this law was questioned in the Supreme Court of the United States, but was upheld by that tribunal in McPherson v. Blacker.1

The States having plenary power over the appointment of electors may make provision by law for the contingency of an elector dying between the date of his appointment

1 146 U. S. 1; 13 Sup. Ct. Rep. 3; 36 L. ed. 869.

and the time for the casting of his vote, or by sickness or accident being prevented from casting his vote.

Original provision of the Constitution as to election of President and Vice-President-Inadequacy of

According to the original provision of the Constitution the electors might vote for two persons without indicating which was their choice for President, and which for VicePresident. The person having the greatest number of votes was to be President, if such number were a majority of the whole number of electors appointed; and if there were more than one person having such majority, and having an equal number of votes, the House of Representatives was authorized by ballot to choose one of them for President. If no person had a majority, the House was to choose the President from the five highest in the list.

When so choosing the House was to vote by States, the representation from each State having one vote. In every case, after the choice of President, the person having the greatest number of votes was to be declared VicePresident; and if there should remain two or more having equal votes, the Senate was to choose them by ballot.

Twelfth Amendment

The inadequacy of the original constitutional provisions for the election of the President and Vice-President early became manifest. John Adams became Vice-President in 1796 though he did not receive half the votes. In 1800 Jefferson and Burr received the same number of votes, and each a majority. There was no question, however, that the electors desired that Jefferson should be President and Burr Vice-President; but, had it not been for the patriotism of Hamilton and a few other Federalists, Burr would have been selected President though he had not been the choice of probably a single elector for that office. This experience was sufficient to lead in 1804 to

the adoption of the Twelfth Amendment in substitution for Clause 3 of § 1, of Art. II.

Counting the votes

With reference to the action of the Houses of Congress, after the selection of electors has been certified to them, the Twelfth Amendment, copying the language of the original provision of the Constitution, declares that "the President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates, and the votes shall then be counted."

The meaning of the last four words has been shrouded in doubt, and this doubt came very near to leading to serious consequences in 1876-1877. No declaration, it is to be observed, is made as to who shall do the counting, and therefore, who shall determine what votes shall be counted in case there is question as to their regularity or correctness. In 1876, as is well known, there were enough votes, the validity of which was contested, to determine the election. Upon the part of the Republicans it was claimed that the Vice-President (a Republican) should do the counting. The Democrats, however, asserted that the two Houses voting separately should perform this duty. As the Democrats were then in control of the lower House, and the Republicans of the Senate, this would have meant a deadlock. The impasse was finally broken, as is well known, by the very doubtful constitutional expedient of a special electoral commission to which all disputed cases should be submitted, the Congress being pledged to be guided by its decisions.

Law of 1887

By a law of February 3, 1887,2 the whole matter of the election of the President is attempted to be regulated.

2 24 Stat. at L. 393. For a valuable criticism of this act see Dougherty, The Electoral System of the United States.