territory, for health or for pleasure, or a commorancy there for a single day, would amount to a disqualification." "

VACANCY IN OFFICE OF PRESIDENT.

62. 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 office, the same devolves upon the Vice-President. If both these should die, or be incapacitated from discharging the duties of the office, as above, then, by a statutory provision, the office devolves upon certain members of the cabinet, succeeding each other in a prescribed order.

The constitution gives to congress the power by law to "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." In pursuance of this power, it was at first provided that, in the case supposed, the president of the senate, or, if there were none, then the speaker of the house of representatives for the time being, should act as President. But this law was repealed by an act passed in 18867 wherein it is provided that in default of both a President and VicePresident capable of acting, the heads of departments shall succeed them in the following order: The secretary of state; the secretary of the treasury; the secretary of war; the attorney-general; the postmaster-general; the secretary of the navy; the secretary of the interior. This act settles a question of considerable importance which was left open under the former law. It declares that its terms shall apply only to such among the above named officers as are eligible to the office of President under the constitution and not under impeachment at the time. If the Vice-President becomes acting President, he will hold the office until the expiration of the term for which the President was elected. And so also, it would appear, will a member of the cabinet, succeeding under the terms of the law mentioned above, except in the case where the cause of his succession

is a temporary disability of the President, in which event he is only to hold the office until the disability is removed. In view of the possibility of the President desiring to resign his office, a case contemplated by the constitution, it was very important that the method of effecting the resignation should be pointed out, and that there should be some authoritative declaration of the proof of such resignation to be required. This desideratum was met by an early act of congress providing that the resignation shall be made by some instrument in writing, declaring the same, subscribed by the party, and delivered into the office of the secretary of state.3

COMPENSATION OF PRESIDENT.

63. The constitution provides that 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 within that period receive any other emolument from the United States or any of them.

The object of this provision is of course to put the President beyond either the fear or favor of congress, by depriving that body of the power to coerce him into submission to its wishes by cutting off his stipend, or to bribe his compliance by an increase of salary. The salary of the President was at first fixed at $25,000 per annum, and so continued until it was increased to $50,000 by the act of March 3, 1873. As this statute was enacted on the last day of the first term of President Grant, who entered upon his second term on the next following day, it is regarded as having established a precedent to the effect that an increase of salary made after the re-election of a President may govern his compensation during the second term.

Act March 1, 1792, c. 8, § 11 (Rev. St. U. S. § 151).

3

OATH OF OFFICE OF PRESIDENT.

64. The constitution requires that the President, before he enters on the execution of his office, 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."

This official oath is usually taken by the President-elect in front of the Capitol at Washington, in the presence of both houses of congress. It is commonly administered by the chief justice of the supreme court, but this is a matter of precedent only, and any person having authority to administer such an oath could legally per form the office. As to the Vice-President, his official oath is not expressly provided for in the constitution, but it falls within the provision of the last clause of the sixth article, which requires that "all executive and judicial officers both of the United States and of the several states, shall be bound by oath or affirmation to support this constitution." And if he succeeds to the presidency, he then takes the oath of office prescribed for the President.

With general reference to the oath taken by officers to support the constitution, it may be said that (except as it regards the officer's personal obedience to the constitution) it is to be taken as a political oath. It means that the officer will maintain the supremacy and inviolability of the constitution against disruption by domestic intrigue or foreign aggression.

INDEPENDENCE OF THE EXECUTIVE.

65. In the exercise of his constitutional powers and functions, the President is an independent, co-ordinate branch of the government, not subject to the direction or control of either congress or the courts.

The constitution makes the President of the United States the repository of all the executive power of the nation, thus constituting him a separate department of the government, not inferior to the

9

others, but co-ordinate with them, and independent of them. His acts and determinations, within the sphere of his constitutional powers, cannot be controlled, questioned, or overruled by the legis lative or judicial departments. He is invested with political discretion, and in the exercise thereof he is responsible to no other person or department of the government. He also has such other incidental privileges and immunities as are necessary to enable him to exercise his powers and discharge his duties without interference or hindrance. "In the exercise of his political powers he is to use his own discretion, and is accountable only to his country and to his own conscience. His decision in relation to these powers is subject to no control, and his discretion, when exercised, is conclusive." The exercise by the President of his executive powers can neither be commanded nor restrained by the ordinary process of the courts. Nor can the discharge of his executive duties be thus compelled, or in any wise interfered with. Thus in the case of State of Mississippi v. Johnson,1o it was held that a writ of injunction cannot be issued to restrain the President from carrying into execution an act of congress, on the allegation that the act is unconstitutional. Nor can the writ of mandamus be issued to compel the President to perform an act which lies within his political discretion." And since the grant of executive powers to the President necessarily implies that he shall be enabled to exercise them without any obstruction or hindrance, it follows that he cannot be liable to arrest, imprisonment, or detention, while he is in the discharge of the duties of his office, and for this purpose his person must be deemed, in civil cases at least, to possess an official inviolability. It is doubtful whether he could be compelled to appear in court in obedience to the writ of subpoena. Such a writ was served on President Jefferson on the trial of Aaron Burr, but he refused to obey it, and the matter was never pressed to a decision.

12

The exemption of the President from being controlled or interfered with by the process of the courts extends also to the heads of departments and other high executive officers, in so far as re

2 Story, Const. § 1569.

10 4 Wall. 475. See, also, Georgia v. Stanton, 6 Wall. 50.

11 Marbury v. Madison, 1 Cranch, 137.

12 2 Story, Const. § 1569.

lates to matters in which they are invested with discretion, or political matters, though not in relation to duties which are merely ministerial, or which do not involve the exercise of any discretion, and where the rights of private parties are concerned.13 Reference has already been made to this topic, in the first and fifth chapters, in connection with the rule of personal and political responsibility and the independence of the executive department.

VETO POWER OF PRESIDENT.

66. The president has constitutional authority to negative any act or joint resolution of congress, by returning the same with his disapproval.

67. The veto power is subject to two restrictions:

(a) It must be exercised within ten days.

(b) A veto may be overruled by the concurrent vote of two-thirds of both houses of congress.

The constitution provides that every bill passed by the two houses of congress, and also every order, resolution, and vote to which the concurrence of both houses is necessary (except on a question of adjournment) shall, before it becomes a law, be presented to the President. If he approves it, he shall sign it; but if not, he shall return it, with his objections, to the house in which it originated. When a bill is thus returned with a veto message, the house receiving it shall enter the President's objections at large on its journal and proceed to reconsider the bill. The bill may then be passed over the President's veto, by a vote of two-thirds of both houses, the vote being taken by yeas and nays and the names of those voting for and against the measure being entered on the journals. If any bill shall not be returned by the President within ten days (Sundays excepted) after it shall have been presented to him, it shall become a law in like manner as if he had signed it, unless congress, by their adjournment, prevent its return, in which case it shall not become a law.

This power vested in the President is not executive in its nature. but essentially legislative. It makes him, in effect, a branch of congress, though only to a limited and qualified extent. It operates

18 Kendall v. U. S., 12 Pet. 527; Marbury v. Madison, 1 Cranch, 137. BL.CONST.L.-7