of electors appointed; and if no person have a majority, then from the two highest numbers on the list the Senate shall choose the Vice-President: a quorum for that purpose shall consist of two-thirds of the whole number of senators, and a majority of the whole num ber shall be necessary to a choice.

§ 294. But no person constitutionally ineligible to the office of President, shall be eligible to that of VicePresident of the United States.

295. By this arrangement, the competitors for the vice-presidency were no longer candidates likewise for the presidency; different persons are to be distinctly voted for as candidates for each office. This is said to diminish the dignity of the office of Vice-President, but it seems to be absolutely necessary, to destroy the very confusion of persons and offices which occurred before.

The Senate are at liberty now to choose the VicePresident, immediately after counting the votes, which before they could not have done without a choice of President. This is certainly an improvement.

§ 296. The mode of choosing the President does not yet seem to be perfect. A discussion might arise, on opening the certificates, as to the competency of the electors, the authority of the votes, &c., for which the Constitution has made no provision.1

An instance of defect is put in the case in which an equality of votes should be given for more persons than the number from which the choice is to be made.2

§ 297. 3d clause. The Congress may determine the time of choosing the electors, and the day on which they shall give their votes; which day shall be the same throughout the United States.

The reason of this clause is obvious. Were the time of giving the votes different in different states, there would be the greatest possible room for intrigue among 13 Story's Comm. 327.

& Idem.

the electors, and as their body is small, some of them might be influenced by undue means.

The power of determining the time of choosing the electors is also given to Congress. They have not, however, so exercised it as to appoint the same time. In 1792, they enacted that the states should choose their electors within 34 days of the first Wednesday in December. The consequence is, that within that time the elections are still made at different periods. It would seem that, to prevent all possibility of improper influence over the people, the elections should all have been held on the same day. As it is, those which are held last must be more or less influenced by those which are held first, upon the principle of a common desire in human nature to be on the strong side.

§ 298. 4th clause. No person, except a natural born citizen, or a citizen of the United States at the time of the adoption of the Constitution, shall be eligible to the office of President; neither shall any person be eligible to that office who shall not have attained to the age of thirty-five years, and been fourteen years a resident within the United States.

That the chief executive officer should be a citizen of the United States, and a native, is unquestionable. The age of thirty-fivc is young enough. The Presidents elected have all been more than that; most of them between sixty and seventy. Indeed, there will always be enough of the fire of human passions infused into the executive by partizans, without the aid of the warmth and ambition of youth.

§ 299. By residence in the United States is not meant an absolute inhabitancy in the United States during the whole period, but such an inhabitancy as constitutes a permanent domicil. Any other construction would take away the citizenship of any public officer resident abroad in pursuance of his duty.

§ 300. 5th clause. In case of the removal of the

President from office, or of his death, resignation or inability to discharge the powers and duties of said office, the same shall devolve on the Vice-President; and the Congress may by law 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.

Congress, on this head have provided, that in case of the removal, death, or resignation, or inability of the President and Vice-President, the President pro. tem. of the Senate, and in case there shall be no such President of the Senate, then the Speaker of the House of Representatives for the time being, shall act as President, until the disability be removed or the vacancy filled.

§ 301. The case of a vacancy in the offices of President and Vice-President, by reason of non election at the proper period, is not provided for in the Constitution. Congress have declared that in case of such an event, there shall immediately be held a new election. Whether this be constitutional or not is unsettled.

§ 302. 6th clause. 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 receive within that period any other emolument from the United States, or any of them.

The object of this provision is plain enough; it would not be proper to allow either the general or state governments an opportunity, by increasing or diminishing the salary of the executive to play upon its wants or its avarice. Congress have permanently fixed the salary of the President at twenty-five thousand dollars, and that of the Vice-President at five thousand dollars.

§ 303. 7th clause. Before he enter on the execution

of his office, he 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.

The solemnities of an oath seem to be proper and necessary to all responsible offices, and peculiarly so to that great and sacred one, the chief magistracy of a great republic.

§ 304. SECTION 2D. Clause 1st. The President shall be commander in chief of the army and navy of the United States, and of the militia of the several states, when called into the actual service of the United States; he may require the opinion in writing of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices; and he shall have power to grant reprieves and pardons for offences against the United States, except in cases of impeachment.

The power to command the army and navy, militia, and entire military armament, flows necessarily from the nature1 of an executive. It is made the duty of the executive to enforce the laws, preserve order, and repel invasions, duties which could not be performed without the command of requisite force.

§ 305. The power of the President to delegate his authority to another officer was disputed during the last war. The exception, however, seems untenable, from the reason that, if no one but the President in person can command them, then the President can only control one detachment in one place, a result evidently contrary to the intention of the Constitution. During the

administration of Washington, the governor of Virginia commanded several detachments from different states under the appointment of the President, without dispute. 28 Mass. Rep. 548.

11 Kent's Comm. 264.

35 Marshall's Washington, 580.

The power to require opinions in writing from the heads which of departments is the mere expression of a power was necessarily incident to the organization of the executive.

§306. The power to grant reprieves and pardons is one which requires to be, and is exercised. It has been supposed by some that a perfect criminal code requires no such power; but there is no perfect criminal code. There is no such administration of human justice, that, after the conviction of the prisoner, it shall always be improper and unjust to pardon him. The only proper depository of such a power is the executive. The Judiciary cannot pardon without first supposing itself wrong in its own decisions; nor can the Legislature without relaxing the law. He, however, whose only duty it is to execute the laws, which others have made and adjudged, may very consistently be allowed to exercise a discretion in punishment.

§ 307. 2d clause. He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two-thirds of the senators present concur: and he shall nominate, and by and with the consent and advice of the Senate, shall appoint ambassadors, other public ministers, and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law; but the Congress may, by law, vest the appointment of such inferior officers as they think proper, in the President alone, in the courts of law, or in the heads of departments.

Some very important political questions have arisen out of this provision, and agitated the minds of eminent statesmen, as well as the councils of the country.

§ 308. In the year 1796, a treaty was made' by Mr Jay with Great Britain, containing some stipulations very offensive to the House of Representatives. The 15 Marshall's Life of Washington, 650.