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THE TERM AND TENURE OF THE EXECUTIVE

A CONSIDERATION of the executive authority

would not be complete without some treatment of the term and tenure of the monarch or president.

At the end of the eighteenth century, in most of the states of Europe, which were practically all monarchies, the hereditary principle had been adopted. This hereditary principle was, apart from Great Britain, that of succession in the male line by primogeniture. That is, the kingdom was indivisible, only one heir being recognized. That heir was the oldest male in the direct male line, unless that line became extinct, when the succession went to the next oldest male line according to the same principles.

In Great Britain this was modified by the rule that females might inherit in case there were no males, the females in the direct line having the preference over the males in the collateral line.

This solution had the great advantage of certainty and prevented the dynastic wars which had occurred in some cases prior to its adoption. It also made useless all palace intrigues for the appointment of a successor, which usually develop where any option in the appointment of the heir to the throne is given to the reigning prince.

When the first great republic of modern times was established in the United States all ideas as to the term and tenure of the executive which were based on monarchical principles had necessarily to be abandoned. Their abandonment was necessitated by the adoption of the general principle of popular sovereignty which, as has been shown, was made the basis of American republican institutions. The early American state constitutions were not, however, agreed as to the method by which the sovereign people should select the individual to whom the executive power was to be intrusted. Some, like that of New York, provided for a popular election of the governor. Others, like that of Virginia, provided for his election by the legislature. The tendency of most of the subsequent state constitutions has been in the direction of popular election.

The framers of the United States Constitution had a considerable distrust of the people. They did not believe that a wide popular participation in the work of government was desirable. They therefore resolved not to adopt popular election as the method for filling the office of President. They wished also to provide an executive which should be independent of legislative control. They were therefore unwilling to provide for the election of the President by the legislature except as a means of preventing an absolute interregnum.

The attempt was therefore made to provide a separate organ for the election of the President. In this way what came to be known as an electoral college was established. To it was also intrusted the election of a Vice-President. He was to preside over the Senate, and was to replace the President in case of the latter's inability to act. This electoral college was to be repre

sentative of the states united by the Constitution. The Constitution thus provided that: "Each state shall appoint in such manner as the legislature thereof may direct a number of electors, equal to the whole number of Senators and Representatives to which the state may be entitled in Congress; but no Senator or Representative or person holding any office of trust or profit under the United States, shall be appointed an elector." The exclusion from the electoral college of the Senators and Representatives was a necessary consequence of the desire that the President should not be elected by the legislature. But together with the exclusion of all United States officers it had the result of causing the electoral college to be composed of second-rate men. For all leading statesmen and successful politicians were thus disqualified by the Constitution.

The Constitution as later amended provided, further, that these electors shall "meet in their respective states and vote by ballot for President and Vice-President, one of whom at least shall not be an inhabitant of the same state with themselves." The electors are to name in their ballots the persons voted for as President and Vice-President, and make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each. These lists are to be transmitted to the seat of government of the United States, and are to be opened and the votes counted in the presence of both houses of Congress. The person having the greatest number of votes for President, being a majority of the whole number of electors appointed, is declared to be the President. If no person have such majority, then from the persons having the highest numbers of votes not exceeding three

on the list of those voted for as President, the House of Representatives chooses immediately by ballot the President. But in choosing the President the votes are taken by states, the representatives from each state having one vote. A quorum for this purpose is a member or members from two-thirds of the states, and a majority of all the states is necessary for a choice.

Provision is made for the contingency that a majority of the votes of the states is not obtained by giving the Vice-President the Presidency. Congress, further, is authorized to provide by law for the case of the inability of or vacancy in the offices of both President and VicePresident. Such a law has been passed. There is therefore little danger of an interregnum under the American system of electing the President.

This method of electing the President and Vice-President had, however, a fatal defect. It made no provision for a common meeting of the presidential electors. On the contrary, it specifically provided that those of these electors chosen in each state should meet in their respective states and vote by ballot. There were thus at the election of the first President thirteen different bodies which had to take action. Now the presidential electors of each of the forty-seven states must meet simultaneously. This has been provided by act of Congress. These bodies of electors do not therefore have the aid of mutual consultation in reaching their decisions. This defect in the system did not appear at the first election because of the unanimous feeling that Washington should be the first President. Washington was also unanimously re-elected at the expiration of his first term, and at the end of his administration the Vice-President, John Adams, was promoted to

the Presidency, but not by a unanimous vote of the electors.

In 1801, however, a majority vote of the electors was not obtained, and Thomas Jefferson was elected President by the House of Representatives. It became evident that some means would have to be devised to prevent the scattering of the votes of the presidential electors at their separate meetings in the various states. This was done through the nomination of candidates for both President and Vice-President prior to the action of the electors, by the members of Congress belonging to the political parties, a practice which began to develop early in the history of the country. This assumption of power by Congress was undoubtedly facilitated by the fact that the leading men in political life could not, as has been pointed out, be presidential electors.

The action which Congress thus took was contrary to the general theory of the Constitution in that it made the President practically the nominee of Congress. For this reason, as well as because of other reasons, it aroused dissatisfaction. About 1820, therefore, candidates for President and Vice-President began to be nominated by popular conventions. These conventions were composed of delegates supposedly representative of the people. This method of nominating candidates at conventions resulted from the voluntary extra-legal and extra-constitutional action of the political parties.

At the present time the national conventions, as they are called, control the situation. These conventions usually meet in June or July of the year in which a presidential election takes place. The popular election for presidential electors, which is now the rule in all the states, takes place early in November. The time inter