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BOOK II.

OF THE EXECUTIVE POWER.

In whom vested-term of office of president and vice-president

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ART. 104. The executive power shall be vested in a president of the United States of America : he shall hold his office during the term of four years; and, together with the vice-president, chosen for the same term, be elected as herein after prescribed(1)—and such term shall, in all cases, com. mence on the fourth day of March next succeeding the day on which the votes of the electors shall have been given.(2)

CHAPTER 1.

OF THE PRESIDENT AND VICE-PRESIDENT.

Electors how appointed—who ex- president

122, 123 cluded 105 President's oath of office

124 Time of election how determined 106 He commands the army, navy and Manner of election of president 107 militia—may require opinion of

of vice-president 108 executive officers—may grant Who ineligible as vice-president 109 pardons

125 Electors when to be chosen-num- May make treatiesappoint certain ber of 110 officers

126 when to vote-certificates of May fill vacancies in office-when 127 electors

111 Term of service of certain officers 128 lists of-annexed to votes 112 He may increase penalty of bond in Secretary of state to send for votes, certain cases

129 when

113 Commissions of revenue officers, Certificates to be opened and votes where made out and recorded 130 counted, when

114 He may recommend measures to Lists to be delivered to secretary of congress-convene and adjourn state, when

115 congress, when-receive embasCompensation to bearer of votes

sadors, &c.—superintend execu. penalty on, for neglect of duty 116 tion of the laws-commission offiQualifications of president 117

131 Vice-president exercises the office He may remove public offices, of president-when

118 when-cost of removal to be reOffice how filled when no vice

ported to congress

132 president

119 May fit out an exploring expedition 133 Election in such case

120 Appoint agent to receive the bequest Refusal of office of president and of J. Smithson

ib. vice-president, how made 121 Duty of such agent-bequest how Compensation of president and vice- applied-appropriation, for 134

cers

Art. 105. Each state shall appoint,' in such manner as the legislature thereof may direct, a number of electors, equal to the whole number of sena. tors and representatives to which the state may be entitled in the congress : but no senator or representative, or person holding an office of trust or profit under the United States, shall be appointed an elector.(3)

(1) Con. Art. 2. sec. 1.
(2) Act 1st March, 1792, sec. 12.

(3) Con. Art. 2. sec. 1.

106. 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. (1)

107. The 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; they shall name in their ballots the person voted for as president, and in distinct ballots the person voted for as vice-president, and they shall 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; which lists they shall sign and certify, and transmit sealed to the seat of government of the United States, directed to the president of the senate: 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 person having the greatest number of votes for president, shall be the president, if such number be the majority of the whole number of electors appointed ; and if no person have such majority, then from the persons having the highest numbers, not exceeding three, on the list of those voted for as president, the house of representatives shall choose, immediately, by ballot, the president. But in choosing the president, the Fotes shall be taken by states, the representation of each state having one vote: a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. And if the house of representatives shall not choose a president whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the vice-president shall act as president, as in the case of the death, or other constitutional disability of the president.(2)

108. The person having the greatest number of votes, as vice-president, shall be the vice-president, if such number be a majority of the whole number 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 the purpose shall consist of two-thirds of the whole number of senators, and a majority of the whole number shall be necessary to a choice.(2)

109. But no person constitutionally ineligible to the office of president, shall be eligible to that of vice-president of the United States.(2)

110. Except in case of an election of a president and vice-president, prior to the ordinary period, as hereinafter specified, electors shall be appointed in each state, for the election of a president and vice-president of the United States, within thirty-four days preceding the first Wednesday in December, in every fourth year succeeding the last election, which electors shall be equal to the number of senators and representatives, to which the several states may, by law, be entitled, at the time when the president and vicepresident, thus to be chosen, should come into office: and where no appor. tiopment of representatives shall have been made, after any enumeration, at the time of choosing electors, the number of electors shall be according to the existing apportionment of senators and representatives.(3)

111. The electors shall meet and give their votes on the said first Wednesday in December, at such place, in each state, as shall be directed by the legislature thereof: and the electors in each state shall make and sign three certificates of all the votes by them given, each of which certificates shall contain two distinct lists, one of the votes given for president, and the other

(1) Con. Art, 2. sec. 4.

(3) Act 1st March, 1792, sec. 1.- Act (2) Art. 12. Amend. to the Constitu. 26th March, 1804.

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of votes given for vice-president, and shall seal up the same, certifying; on each, that a list of the votes of such state, for president and vice-president, is contained therein; and shall, by writing, under their hands, or under the hands of a majority of them, appoint a person to take charge of, and deliver to the president of the senate, at the seat of government, before the first Wednesday in January next ensuing, one of the said certificates : and the said electors shall forthwith forward, by the post office, to the president of the senate, at the seat of government, one other of the said certificates; and shall forthwith cause the other of the said certificates to be delivered to the judge of that district in which such electors shall assemble.(1)

112. The executive authority of each state, shall cause three lists of the names of the electors of such state to be made and certified, and to be de. livered to the electors on or before the said first Wednesday in December, who shall annex one of the said lists to each of the lists of their votes.(2)

113. If a list of votes from any state shall not have been received at the seat of government, on such first Wednesday in January, then the secretary of state shall send a special messenger to the district judge in whose custody such list shall have been lodged, who shall forthwith transmit the same to the seat of government.(3)

114. Congress shall be in session on the second Wednesday in February, succeeding every meeting of the electors, and the said certificates, or so many of them as shall have been received, shall then be opened, the votes counted, and the persons who shall fill the offices of president and vice-president ascer. tained and declared, agreeably to the constitution.(4)

115. In case there shall be no president of the senate at the seat of gov. ernment, on the arrival of the persons intrusted with the list of the votes of the electors, such persons shall deliver such lists into the office of the secretary of state, to be safely kept and delivered over, as soon as may be, to the president of the senate.(5)

116. The person appointed by the electors to deliver to the president of the senate such list of the votes, shall be allowed on the delivery thereof twenty-five cents for every mile of the estimated distance, by the most usual route, from the place of meeting of the electors to the seat of government of the United States, going and returning (6) And if any person so appointed, shall, after accepting of his appointment, neglect to perform the services required of him (by the act of 1st March, 1792) he shall forfeit the sum of one thousand dollars (7)

117. 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.(8)

118. 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 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 presi. dent, and such officer shall act accordingly, until the disability be removed, or a president shall be elected.(9)

(1) Act March 1, 1792, sec. 2.
(2) Act 1st March, 1792, sec. 3.
(3) Ibid. sec. 4.

Ibid. sec. 5.
Ibid. sec. 6.

(6) Act 11th February, 1825.-Act 1st March, 1792, sec. 7.

(7) Act 1st March, 1792, sec. 8.
(8) Con. Art. 2, sec. 1.

(9) Ibid.

119. In case of a removal, death, resignation, or inability both of the president and vice-president of the United States, the president of the senate pro tempore, and, in case there shall be no president of the senate, the speaker of the house of representatives for the time being, shall act as president of the United States, until the disability be removed, or a president shall be elected.(1)

120. Whenever the offices of president and vice-president shall both be. come vacant, the secretary of state shall forthwith cause a notification to be made to the executive of every state, and published in, at least, one of the newspapers printed in each state, specifying that electors of the president and vice-president of the United States shall be appointed or chosen, in the several states, within thirty-four days preceding the first Wednesday in December Dext ensuing, if there shall be the space of two months between the date of such notification and the said Wednesday. But if there shall not be the space of two months between such date and such Wednesday, and if the term for which the president and vice-president last in office were elected shall not expire on the third day of March next ensuing, he shall specify in the notification that the electors shall be appointed or chosen within thirty-four days preceding the first Wednesday in December in the year next ensuing, within which time the electors shall be appointed or chosen; and they shall meet and give their votes on such Wednesday, and the proceedings and duties of the electors and others shall be pursuant to the directions above prescribed.(2) (See article No. 110, et seq.)

121. The only evidence of a refusal to accept, or of a resignation of, the office of president or vice-president, shall be an instrument in writing, declaring the same, and subscribed by the persons refusing to accept or resign. ing, and delivered into the office of the secretary of state.(3)

122. 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.(4)

123. The compensation of the president shall be at the rate of twenty-five thousand dollars per annum, with the use of the buildings,) furniture, and other effects belonging to the United States : And that of the vice-president, at the rate of five thousand dollars per annum, in full for their respective services, to be paid quarter yearly, at the treasury.(5)*

124. Before the president enters 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.(6)

125. 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 service of the United States : he may require the opinion, in writing, of the

(1) Act of 1st March, 1792, sec. 9.

(2) Ibid. sec. 10.-Act 26th March, 1804.

(3) Act 1st March, 1792, sec. 11.

(4) Con. Art. 2, sec. 1.
(5) Act 18th Feb. 1793.
(6) Con. Art. 2, sect. 1.

• The president is provided by the nation with a house and grounds, prepared for his use al the city of Washington; and upon every new election of a president, It has been usual to appropriate a sum of money for the renewal of furniture for his household.

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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.(1)*

126. He shall have power, by and with the advice and consent of the senate, to make treaties, provided two-thirds of the senators concur; and he shall nominate, and by and with the advice and consent of the senate, shall appoint embassadors, 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.(2)

127. The president shall have power to fill up all vacancies that may happen during the recess of the senate, by granting commissions which shall expire at the end of their next session.(3)

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(1) Con. Art. 2. sec. 2.
(2) Con. Art. 2. sec. 2. cl. 2.

(3) Con. Art. 2. sec. 2. c. 3.

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• He may (it seenas,) during war, accept or propose an armistice, but cannot suspend judicial proceedings on prizes made. A lawful capture vests a right over which he has no control. See letters secretary of state 1812, Wait's state papers, 79, 61, 66.

He may qualify and restrain the commissions of the privateers of the United States by his instructions. The Thomas Gibbons, 8 Cranch, 421.

But he cannot enlarge the powers of commanders of armed vessels by instructions under an act of congress not warranted by such act, and the officer obeying such instructions, is answerable in damages to any one injured by their execution. -Little v. Bareme, 2 Cranch, 170.

† When a commission has been signed by the president, the appointment to office is made : and the commission is complete when the seal of the United States has been affixed to it by the secretary of state.—Marbury v. Madison, 1 Cranch, 162.

Where an officer is removable at the will of the executive, the commission may be arrested at any time, before its delivery; but if he be not so removable, the appointment made under the signature of the president is not revocable, and cannot be annulled. It confers legal rights which cannot be resumed.-Ibid.

# The foregoing words, “all vacancies that may happen during the recess of the senate," mean vacancies occurring from death, resignation, promotion, or removal. The word “happer,” relates to some casualty not provided for by law. If the senate be in session when offices are created by law, which were not before filled, and nominations be not made to them by the president, he cannot appoint after the adjournment of the senate, such vacancy not happening during its recess. Where there has not been an incumbent of an office, the president has no power to appoint during the recess of senate, unless specially authorized by law.-Report of committee of senate, 25th April, 1822. Act 2d March, 1799, regulating duties on imports, sec. 17. Act 1st May, 1810, fixing compensation to public ministers, sec. 2.

Congress may fix the rules for promotions and appointments; and in the reduc. tion of the army and navy determine from whom such promotions and appointments shall be made. Every promotion is new appointment, to be confirmed by the senate.—Report of committee of senate, 25th April, 1822. Act 2d March, 1821,

The president may, at his discretion, remove from office all executive officers.5 Marshal's Washington, 196, &c. Debates of the first congress. See Commth. v. Bussier, 5 Sergt. & Rawle, 451.

The removal may be either express or implied; that is, by notification from the proper authority that the officer is removed, or by the appointment of another person to the office. But in either case the removal is not completely effected until notice be actually received by the person removed.-Bowerbank v. Morris, Wallacc, 119.

sec. 12.

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