In case of failure to count the votes and declare the results by the 4th of March, where the electors have not failed to elect but Congress has failed to declare the result, may the count continue?

Would the Vice President elect succeed to the Presidency should the President elect die before the 4th of March?

Who would be President in case both President elect and Vice President elect should die before March 4? Would it be the Secretary of State?

Congress was authorized only to declare who shall be President in case of death, removal, resignation, or inability of the existing President and Vice President.

Suppose it should happen that more than three persons voted for as President should receive the highest number and an equal number of votes in the Electoral College. Suppose there were six candidates, three of whom had an equal number, who is to be preferred?

And if there should be more than two of the candidates for the Vice Presidency in a similar category, for how many, then, and for which would the Senate vote?

If a candidate for President should die after the election and before January 12 when the electors meet, how should they vote? Such a contingency arose when Horace Greeley, who ran against General Grant, died in 1872. Suppose Grant had also died, what would the electors have done?

Suppose the President elect should die after the Electoral College has met and before Congress counted the vote, should a dead man be declared elected? The count could not be postponed.

None of these exigencies are guarded against, and they are all within the realm of possibility.

The Federal courts have no clear jurisdiction to try a case involving the title to the Presidency. The Fathers plainly never intended that the office of Chief Magistrate should be contested in any court.

"You must keep the election out of the House of Representatives," said one of our early statesmen, "if you wish to keep the Government from civil war, from the danger of having a man not voted for by the people placed over your head."

In the failure of the people to elect a President and a deadlock in Congress, extra constitutional means would be justified for keeping the Executive Department alive, for the right of the Government to maintain itself, or to live, is fundamental and deeper than any written law. Resort, however, to such expedients in time of peace and intense party excitement might be productive of civil war or revolution, and hence the paramount necessity of some adequate provision in the Constitution itself to cover every possible case of failure of Executive authority.

The American people, in the light of present day developments and dangers, should demand that the very best legal minds be devoted patriotically to devising constitutional remedies before another presidential election shall occur. To do otherwise, and wait "for

George to do it," would be wicked and unpardonable negligence. Mr. PAGE. Now, in regard to this pending bill-if you care to have me say anything about that-I do not want to intrude myself

The CHAIRMAN. The bill is under consideration by the committee, and that is what we are discussing.

Mr. PAGE. Mr. Cable was kind enough to show me a copy of the bill before he introduced it, since which time. I will say frankly, I have not read the bill, but I recall its import. I believe I told Mr. Cable at the time that there was a reasonable doubt as to its constitutionality.

The Constitution gives Congress power to declare what officer shall succeed to the presidency or shall act as President in the event of a vacancy in the office of the President and Vice President by reason of one of four things, namely, death, resignation, removal, or inability to discharge the powers and duties of the office. That is as far as the Constitution went in giving Congress power to legislate.

Soon after the adoption of the original Constitution-to be exact, in 1792-Congress, among whose Members were quite a number of gentlemen who had been members of the Constitutional Convention, passed the act of 1792, providing for the succession to the President pro tempore of the Senate, next to the Speaker of the House of Representatives; also provided for the calling of an election immediately or as soon thereafter as possible for the election of a President, what Mr. Madison called an "intermediate election."

In the view of very eminent authorities, that provision itself was unconstitutional, but the question was never decided. The Senate Judiciary Committee went as far as any legal tribunal went in declaring the law, in their judgment, to be constitutional. Nevertheless, that statute was never operative, perhaps fortunately, because in many of the debates that came afterwards it was the view of recognized constitutional lawyes, Mr. Evarts among them, that the President pro tempore of the Senate and the Speaker of the House of Representatives were not "officers" within the meaning of the Constitution; it was the view of Mr. Madison that they were not, and it was his view also that in the event of the succession to the President pro tempore of the Senate that you would have the anomaly of that officer holding three distinct offices-that he could not relinquish his President pro temporeship; that he could not relinquish his senatorship; he was there representing a sovereign State, was sent there by the people of the State, and he could not divest himself of that; and, furthermore, Mr. Madison said that

These two offices of Senator and President pro tempore were the "substratum of the adventitious circumstances" that made him President for the nonce, and that to relinquish these he would also cease to be President.

That same reasoning is applicable to a Cabinet officer, but that is easily remedied, because already you have laws on the statute books that authorize a subordinate official of a department to become acting secretary.

Mr. HULL. Is there any constitutional reason why a man could not occupy those two positions, President pro tempore and President?

Mr. PAGE. There may not be, Mr. Hull, a specific constitutional reason, but there is a very serious reason why the legislative and the executive should not be so amalgamated.

Mr. HULL. There might be a practical reason. But the emergency arising and the man succeeding to the office, is there any constitutional reason why a man could not occupy those two positions?

Mr. PAGE. I do not know that there is. But can you imagine the President of the United States sitting as presiding officer of the Senate and also in his capacity as Senator voting upon something that he as President will have power to veto?

Mr. HULL. Only as an emergency situation; that is all.

Mr. PAGE. This act of 1792 provided, as I said, for an intermediate election. There were grave doubts in the minds of many men as to the power of Congress to provide for an intermediate election.

Mr. HULL. I think that objection might be very valid, because there is a term of office provided in the Constitution.

Mr. PAGE. That is, quadrennially?

Mr. HULL. Quadrennially; and you can not shorten or lengthen, according to the Constitution.

Mr. PAGE. And yet in the Constitutional Convention when Mr. Randolph undertook, if I might use the vernacular, to "cinch" that very proposition and make the officer succeeding to presidency continue for the full four-year period until a regular election-I think those were the words he used-Mr. Madison objected on the ground that it would prevent an intermediate election; and those words of Mr. Randolph were stricken out; and the Constitution as we have it was adopted. So that would seem to imply that the Constitution makers thought that there could be an intermediate election.

And then we find in 1792 Members of the Congress who were members of the Constitutional Convention passing that act providing for an intermediate election, setting up the machineryMr. HULL. I do not get you on that, but I think your conclusion may be correct.

Mr. PAGE. This act of 1792, as I said, stood on the statute books for 94 years inoperatively, until the passage of the act of 1886, known as the "presidential succession act." The presidential succession act, as you know, provided for the succession to the Secretary of State, and then on down through the Cabinet.

The gentleman in charge of that bill in the House answered a question categorically as to whether, in the event of an impasse in Congress the Secretary of State would succeed to the presidency, and his answer was that he would. He did not go ahead and give any reasons, but evidently he reflected the opinion of his committee, which reported the bill-it was a Senate bill-and the courts, if they ever had the matter before them-the Supreme Court, for instance-might take into consideration that statement from an eminent authority, a gentleman in charge of the bill itself, as to the purpose and intent of the bill.

Mr. CABLE. Mr. Page, is there any doubt in your mind that a Cabinet officer, except the Postmaster General, may hold over into the next term without reappointment?

Mr. PAGE. I do not think there is any reasonable doubt about that. It has been done.

The CHAIRMAN. Is it an exception or is it a rule?

Mr. PAGE. It is more of a practice than anything else. It has been done, as I said.

Mr. HULL. Go ahead with your statement.

Mr. PAGE. My own opinion is, after very careful study, that the Secretary of State would not succeed to the Presidency under con

ditions brought about by inability of Congress-the House or the Senate, or both-to elect the President.

Mr. CABLE. Unless there was some additional authority more than we have now?

Mr. PAGE. Yes, sir.

Mr. HULL. Who would succeed? Would the old President carry over?

Mr. PAGE. That is the question, Mr. Hull; and that is one of the very serious phases of this whole matter. The idea of a vacancy in the office

Mr. HULL. The vacuum is inconceivable in that sort of a political situation?

Mr. PAGE. Exactly. The idea of a vacancy in the office of the Executive was abhorrent to the Constitution makers, and they studiously avoided using the word "vacancy." But in the act of 1792 we find that word for the first time. As I said, fortunately that act never became operative. It would, in my judgment, have been a catastrophe if either the President pro tempore or the Speaker of the House had succeeded to the office; it would have led to a train of difficulties and troubles.

I should like to think that legislation would cure the question, and I believe Mr. Cable has come as near drawing up a bill that would remedy the situation as possible, especially in view of the statement of the Member in charge of the succession act on the floor of the House that that act would make the Secretary of State eligible to succeed.

Mr. HULL. What validity has their statement over the statement of the chairman of this committee?

Mr. PAGE. No validity; except that the courts, as you well know, would look for the intent of the Congress, and they would find there a very definite, concrete statement of the Member in charge of the bill that that was one of its purposes, although it did not say so. You see, the succession bill

The CHAIRMAN. Mr. Page, that would be a mere statement of opinion in debate?

Mr. PAGE. In debate.

The CHAIRMAN. It might have been denied by the opposition? Mr. PAGE. Well, I will say, Mr. White, that it was denied. It was denied rather vociferously and at length by Mr. Peters, of Kansas; he took very strong exception to it.

Mr. HULL. The question arises in my mind-I do not believe there is anything to it-but it arises in this way: Would this bill, if passed, put an end to an effort to solve the problem in the way it ought to be solved, perhaps? On the other hand, by constitutional amendment, assuming that your point is well taken, and your point raises the question of the constitutional amendment, does it not, Mr. Page?

Mr. PAGE. I do not like to raise that question. I say there is a reasonable doubt as to whether this would be sufficient.

Mr. HULL. That means it would have to be cured by constitutional amendment if this bill does not cover it. Does a bill like this put a finish to the discussion, or does it simply start it does it furnish a solution which would be available if the situation happened and would be grabbed as a fire escape if the situation happened?

Mr. PAGE. It might serve a temporary purpose, at least. We can not foresee what is in store, and these very things may happen. I hope and pray they may not, but they may happen between now and the 4th of March. Who could tell? That is in the hands of Providence. And so I say it might serve a temporary purpose if it were passed, for instance, at this session of Congress.

Mr. LOZIER. In view of the gravity of the situation sought to be removed by the proposed bill, would it not be a calamity for us to pass a measure of that kind and depend upon it, believing that it would solve the problem, and then when this emergency arose have the courts hold that the act was of no validity and not constitutional? Mr. HULL. Would you be any better off than without passing it? Mr. LozIER. That is the question. Should we not go to the root of the matter, and should not whatever legislation there is be of such a character that there could not be any question as to its constitutionality, and which would imply the solution of this matter by constitutional amendment?

Mr. HULL. That was my question, Mr. Lozier, the one I first asked. Mr. LOZIER. Yes; I understood you.

Mr. HULL. I am asking it for my own enlightenment, and I think it would be worth while to learn whether anyone knows.

Mr. CABLE. Here is the suggestion of Chief Justice White in Wilson v. New (243 U. S. 348):

Although an emergency may not call into life a power which has never lived, nevertheless the emergency may afford a reason for the exertion of a living power already enjoyed.

In other words, if an emergency arises, and there is a law providing for an officer to act as President of the United States, I judge that the Supreme Court would hesitate to declare it unconstitutional, with the result that we might have no President for four years.

Mr. LOZIER. Yes; but might not the adoption of such a law lull the Congress and the country into a sense of security and prevent adopting a real remedy?

Mr. HULL. I think you are absolutely right.

Mr. PAGE. Let us consider, gentlemen, if you please, the alternative: We have not any legislation at the present time; we have not any constitutional provision. This question has been agitated from time to time as to what would happen in the event that both the President and Vice President elect should die, in any one of two or three intervals between now and the 4th of March. The electors do not meet until the 12th of January. What would happen in the event of the death of these two men before that time, after the electors have met and cast the vote for them? Suppose they should die between January 12 and the second Wednesday in February, when the electoral count takes place, which is the last act in the drama? Then, after the electoral count took place, what would happen in event of death between the second Wednesday of February and the 4th day of March? So that you have those contingencies, those possibilities staring you in the face.

The CHAIRMAN. Three situations?

Mr. PAGE. Yes, sir.

The CHAIRMAN. Mr. Page, doubtless it is in your mind-it is in mine, at least-that your first question permits of an answer and