51 tutional provisions are found. But unless the constitution so provides, it is not within the lawful power of the other departments of the government to thus propound questions to the courts and require answers to them. A statute authorizing either house of the legislature to do this is unconstitutional, for the reason that it imposes on the courts duties which are not judicial in their nature.3 The President of the United States does not possess any authority to require the opinion of the supreme court on questions propounded to them. "In giving such opinions (where authorized by the constitution) the justices do not act as a court, but as the constitutional advisers of the other departments of the government, and it has never been considered essential that the questions proposed should be such as might come before them in their judicial capacity." 53 But it is held that questions relating to the desirability or policy of proposed legislation cannot be thus propounded to the court. 5+ "It is well understood, and has often been declared by this court, that an opinion formed and expressed under such circumstances cannot be considered in any sense as binding or conclusive on the rights of parties, but is regarded as being open to reconsideration and revision; yet it necessarily presupposes that the subject to which it relates has been judicially examined and considered, and an opinion formed thereon." 55 A finding of law and fact made by the Court of Claims, at the request of the head of a department, with the consent of the claimant, and transmitted to such department, but which is not obligatory on the department, is not a judg ment. The function of the court in such a case is ancillary and advisory only, and hence its decision is not appealable.5" 51 In re Application of Senate, 10 Minn. 78 (Gil. 56). 52 2 Story, Const. § 1571. 53 Opinion of the Justices, 126 Mass. 557. 54 In re Senate Bill 65, 12 Colo. 466, 21 Pac. 478. 55 Green v. Com., 12 Allen (Mass.) 155. 56 In re Sanborn, 148 U. S. 222, 13 Sup. Ct. 577. 54 CHAPTER VI. THE FEDERAL EXECUTIVE. 57. The President. 58. The Vice-President. 59-60. Election of President and Vice-President. 61. Qualifications of President. 62. Vacancy in Office of President. 63. Compensation of President. 64. Oath of Office of President. 65. Independence of the Executive. 66-67. Veto Power of President. 68. Military Powers of President. 69-72. The Cabinet. 73. Pardoning Power. 74-75. The Treaty-Making Power. 78. Presidential Messages. 79. Convening and Adjourning Congress. 80. Diplomatic Relations. 81. Execution of the Laws. 82-84. Impeachment. THE PRESIDENT. 57. The executive power of the United States is vested in a President of the United States, who holds his office during a term of four years. THE VICE-PRESIDENT. 58. The Vice-President of the United States is elected at the same time with the President and holds his office for the same term. He acts as president of the senate, and succeeds to the presidency in case of the removal of the President from office, or of his death, resignation, or disability. ELECTION OF PRESIDENT AND VICE-PRESIDENT. 59. The President and Vice-President are chosen by an electoral college, the members of which are appointed or elected in the several states, each state being entitled to a representation therein equal to the whole number of its senators and representatives in congress. 60. If no candidate for the presidency receives a majority of the votes cast by the electoral college, the President is to be elected by the house of representatives In a similar contingency, the Vice-President is chosen by the senate. The method of electing the President and Vice-President is prescribed by the twelfth amendment to the constitution, together with such parts of the first section of the second article as have not been superseded by that amendment. The presidential electors, chosen as therein directed, constitute what is commonly called the "electoral college." It will be observed that 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. In pursuance of this power, the day for casting the votes was at first fixed on the first Wednesday of December in every fourth year. But by the statute now in force (Act Jan. 23, 1845), the electors are to be chosen on the Tuesday next after the first Monday of November. But the manner of choosing the electors is left entirely to the individual states. The state legislatures have exclusive power to direct the manner in which the presidential electors shall be appointed. Such appointment may be made by the legislature directly, or by popular vote in districts, or by a general ticket, as the legislature may direct. At the present day, the last mentioned method is almost universally in vogue. The constitution does not prescribe the qualifications of a presidential elector, except in a negative way. No person is eligible to this office who is a "senator or representative, or who holds an office of trust or profit under the United States." And by the third section of the fourteenth amend 1 McPherson v. Blacker, 146 U. S. 1, 13 Sup. Ct. 3. ment, no person is eligible who has violated an oath previously taken to support the constitution of the United States, by engaging in insurrection or rebellion against the same, or giving aid or comfort to the enemies thereof, unless his disability has been removed by congress. A disqualification for the office of presidential elector, caused by the holding of an office, cannot be removed by the resignation of that office after the choosing of the elector but before he comes to cast his vote for President. The courts of a state have jurisdiction of an indictment for illegal voting for presidential electors. But The electors are required to make lists of the votes which they cast, and sign and certify the same, and transmit them sealed to the president of the senate. It is also provided that this officer, in the presence of both houses of congress, shall open all the certificates. The constitution then provides that the votes shall be counted. it is not prescribed by whom the counting shall be done, nor who shall declare the result. But this is now regulated by statute, the duty being cast upon the president of the senate, who was obviously intended to discharge it. But neither in the original plan nor in the twelfth amendment is any provision made for the determination of questions which may arise as to the regularity or authenticity of the returns or the right or qualification of the electors, or the manner or circumstances in which the votes should be counted. This serious defect in the constitution was made apparent in the memorable contest of 1877. The electoral commission, by which that election was determined, was created only to meet the particular emergency, and was not made applicable to future cases. But since that time, congress has provided regulations for these matters with such care and minuteness of detail that no such dispute is likely ever to recur.* Great importance was attached by the framers of the constitution to the interposition of the electoral college between the pas sions and prejudices of the undiscriminating multitude of voters and the high office of President. But in no single instance have their designs and theories been more completely frustrated by the 2 In re Corliss, 11 R. I. 638. 3 In re Green, 134 U. S. 377, 10 Sup. Ct. 586. ♦ Act Cong. Feb. 3, 1887 (24 Stat. 373); Act Oct. 19, 1888 (25 Stat. 613). practical workings of the system than in this. It is well known that at present the electors have no independent choice of the candidates for whom their votes shall be cast. The candidates are nominated by national conventions of the political parties, and the electors have merely the perfunctory task of registering their votes for the candidate of the party by whom they were chosen. Only in very rare instances do the presidential electors find themselves at liberty to exercise their personal judgment or preference. In general, the electoral college is a mere survival. The house of representatives is to elect the President in case no person has a majority of the electoral votes. In that event, the persons receiving the greatest number of votes (not exceeding three candidates) are to be voted for, the vote is by states, each state having one vote, and a majority of all the states is necessary to elect. In the same contingency, the senate is to choose the Vice-President, voting for the two candidates standing highest on the list. QUALIFICATIONS OF PRESIDENT. 61. The constitution prescribes the qualifications of the President in three particulars. To be eligible to this office he must (a) Be a natural born citizen of the United States; (c) Have been for fourteen years a resident within the Congress would clearly have no power to add to these qualifications, nor to dispense with any requisite laid down in the constitution. "By residence, in the constitution, is to be understood, not an absolute inhabitancy within the United States during the whole period, but such an inhabitancy as includes a permanent domicile in the United States. No one has supposed that a temporary absence abroad on public business, and especially on an embassy to a foreign nation, would interrupt the residence of a citizen so as to disqualify him for office. If the word were to be construed with such strictness, then a mere journey through any foreign adjacent |