The CHAIRMAN. There is no direct provision-I might qualify my statement to that extent.

Mr. CABLE. There is no direct mention in the Constitution of such a case. But if the contingency should arise, in my opinion no Federal court would permit the United States to be without an Executive on the ground that the Constitution fails specifically to give that power to Congress.

Those are the two contingencies that I have endeavored to cover in this bill. The probabilities are that they never will happen; but if they should happen, the condition is such that we ought to have a law on the statute books now rather than attempt to pass one in the heat of a condition of that kind, which might have partisan or political influence in framing the law. That is all I care to say at this time, because Mr. Page, the Clerk of the House, whom I believe has given more thought and attention to such conditions in the history of the election of a President than any other man, is with us to-day and has kindly agreed to address the committee on that subject.

The CHAIRMAN. I wish to ask you this question, Mr. Cable: Since the Constitution in the twelfth amendment has directly provided for the presidential succession to the extent that the subject is treated, and since there is not, so far as I know, any important authority which authorizes Congress to legislate in the case such as you have described, though there is distinct authority in another section of the Constitution for legislating in a case of the inability or death of both the President and the Vice President, would it not be well to provide for this emergency covered by your bill in a constitutional amendment?

Mr. CABLE. Well, I do not think it is necessary.

The CHAIRMAN. My question is, Do you not believe it would be better?

Mr. CABLE. NO; I do not agree with you, because I do not know whether a constitutional amendment would go through or not, and my idea

The CHAIRMAN. We are assuming it would go through.

Mr. CABLE. Even assuming it would go through, I do not think it is necessary.

The CHAIRMAN. The Constitution has taken cognizance of the subject?

Mr. CABLE. Yes. It is not Article XII, but it is Article II, section 1, clause 5, which provides:

In case of the removal of the President from office, or of his death, resignation, or inability to discharge the powers and duties of said office, the same shall devolve on the Vice President, etc.

That is the succession provision carried in the present law, that when a President in office dies or is unable to perform the duties, then Congress has authority to provide a succession act, which they have done.

The CHAIRMAN. That law was passed under authority of the Constitution?

Mr. CABLE. Yes. Now, there is another section-clause 18 of section 8, Article I, which provides that Congress has authority

To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the Government of the United States, or in any department or officer thereof.

It is my idea that that section gives Congress authority to cover the condition mentioned in this bill.

The CHAIRMAN. Well, I don't think so, Mr. Cable, for this reason-I am not a lawyer, you understand, Mr. Cable, as you arebut to make all laws which shall be necessary and proper for carrying into xecution the foregoing powers. Those are the powers which, as I understand it, are enumerated?

(

Mr. CABLE. The power to see that we have all three branches of Government functioning at all times.

The CHAIRMAN. That is not enumerated in the powers of the Congress, Mr. Cable, you understand.

Mr. CABLE. The idea of the framers of the Constitution was that this country should never be without a Chief Executive.

The CHAIRMAN. That is a generalization. If that is so, we should amend this Constitution, and that is undoubtedly why the American Bar Association and the very ablest legal authorities in the country have discussed this question with great seriousness.

Mr. CABLE. I do not believe they have discussed this very question; they have discussed the questions raised by the Norris-White amendment.

The CHAIRMAN. Yes.

Mr. CABLE. But not raised by this bill.

The CHAIRMAN. This is the same question in one particular-in the particular that it provides a remedy for the failure to electand I am only addressing my statement to that one feature of your

bill.

The Constitution provides in the twelfth amendment, and I read the paragraph which is covered and extended by the Norris amend

ment:

But in choosing the President the votes shall be taken by States, the Representatives from 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, etc.

Undoubtedly the framers of the Constitution pursued this subject as far as they deemed necessary at the time. The defects of the Constitution, many of them, were clearly seen by the members of the legislature of the different States-the memorials on that subject appear in the Journal of the three sessions of the First Congressand it is an historical fact that 10 amendments were immediately adopted, practically all at one election.

Mr. LOZIER. Practically they had been agreed upon as conditions precedent to the adoption of the Constitution?

The CHAIRMAN. That is right. Mr. Hamilton delivered a very illuminating treatment of that subject in, I think, probably his last contribution to the Federalist.

Now, as to your reference to the powers of Congress: You admit, Mr. Cable, that the words "shall have power * * * to make all laws which shall be necessary and proper for carrying into execution the foregoing powers." I call the attention of members of the committee, especially yourself, Mr. Cable, to the fact that those powers are enumerated.

Mr. CABLE. Mr. Chairman, if I may make a suggestion, I would like to argue this out with the committee after Mr. Page shall have made his statement.

The CHAIRMAN. That will be all right. I just want to call the attention of the committee to this proposition

Mr. CABLE. I have legal authorities in support of this bill that I would like to submit, but I think that since Mr. Page is here it might be well to have his statement.

The CHAIRMAN. The committee will be very glad to have his statement, as it is to have your citations, available to the committee, as we consider them very valuable. Your chairman has examined this subject to the extent of the opportunity he has had. We will hear Mr. Page, and then we can pursue this subject further. If you are ready, proceed, Mr. Page.

Mr. PAGE. Whenever you are, sir.

The CHAIRMAN. We will hear Mr. Page, Clerk of the House of Representatives.

STATEMENT OF HON. WILLIAM TYLER PAGE, CLERK OF THE HOUSE OF REPRESENTATIVES

Mr. PAGE. Mr. Chairman and gentlemen, I appreciate being called before you at the instance of Mr. Cable.

I lay no flattering unction on my soul that I know a great deal on the subject, although I have given it considerable study. I am somewhat at a loss to know just where to begin, because the subject is such a large one and so complex.

Last summer and fall, when the presidential succession was largely in the minds of the people, and when a great many misstatements were being made in the press as to what might happen in the event of a stalemate election, I applied myself rather assiduously to the subject, resulting in the more or less hasty preparation of a statement which I broadcast as an educational proposition and not as a partisan or political one from one of the stations here in the city of Washington. I afterwards had that statement printed, and, as I understand it, it is Mr. Cable's idea that I should appear before the committee and consent to the inclusion of it in the hearings.

Mr. CABLE. I have read that statement, and it is the best treatise I have ever read of the facts and the history of the presidential election; it is a valuable document, and I requested Mr. Page to give his permisison to insert it as a part of the hearing.

Mr. PAGE. Which I gladly do. But I should like to say that this statement was not prepared in any lawyer-like fashion, because I am not a lawyer. But it was prepared to set at rest, as far as might be, a lot of misstatements that were being circulated and repeated in the newspapers during the campaign, which I knew to be erroneous, and this was written with a view to reaching the average man and woman who might listen in. I therefore injected into it some bits of human nature in order to help carry the story.

(The statement referred to is as follows:)

OUR SYSTEM OF ELECTING A PRESIDENT—ITS DANGERS TO THE BEPUBLIC THROWING AN ELECTION INTO CONGRESS

HOW AND WHY.

Address 1 Willam Tyler Page, Clerk of the House of Representatives, broadcast from Washington, D. C.,

This address is prompted by the widespread interest in the forthcoming election, and the possibility, remote as it may seem to some of the failure to elect a President in the usual manner, leaving the decision to the House of Representatives, or to the Senate.

I will undertake in the simplest manner possible to show the intricacies of our electoral system, which is so little understood. Also why it was adopted and how it has worked out. In presenting this matter I will show the defects of the system as time has revealed them, and their dangers to the Republic. I will review briefly the history of the presidential office, its power and importance, and the imperfect provisions of the Constitution and laws respecting the succession. I will point out the possibility, always present, emphasized by current conditions, of the failure to elect a President and its probable consequences for which there is no present legal remedy; and why the system might and ought to be modified, omissions supplied, and defects remedied by constitutional amendment in order to avert trouble in the future.

"The Executive power shall be vested in a President of the United States of America."

These two lines in the Constitution established all Executive power in one person. It placed the President beyond the reach of any other department, except impeachment and conviction by Congress.

The language is stronger than if it had said merely there shall be a President of the United States.

This was a new and untried experiment. The Confederation of States had no single Executive power.

Before the Federal convention in 1787 finally decided on this new and important step deep and profound was the discussion. In giving such great authority to one man the framers were careful to check and limit him. We did not want a king in this country. We did not want to have a man elected to the Presidency for life. We wanted to have a term of office not measured at all by the life of the man who might fill it at any time, but measured by the Constitution. We wanted to have a succession that should come quadrennially. Not the power by an expression of the people's will in the House of Representatives to change the executive offices of the Government, but every four years the people of the United States were to have the opportunity of giving expression through the ballot box and through their electors to their wishes in such form as they might supply a new man to take the new term of office. The object was to give permanency to the tenure of office and to an established policy of Government, not to have it fluctuate continually. Our fathers so ordered that the President for the term of four years should represent the political opinions of the people

and also the sovereign executive powers of the Government. The Constitution prescribed three qualifications for the Presidency:

1. He should be a natural born citizen.

2. At least 35 years of age.

3. And 14 years a resident within the United States.

At first a naturalized citizen at the time of the adoption of the Constitution, if he had resided here 14 years, was eligible, but afterwards none but a native-born citizen could be President.

Having decided on an Executive power what was to be the designation? Numerous designations were suggested, such as "National Executive," "Federal Executive," "Governor," and "President of the United States of America." The latter was adopted.

Later, in Congress, what title to give the President came up. "His Excellency" and "His Highness, the President of the United States of America, and Protector of their Liberties" were both considered and rejected, and it was decided to address the Chief Magistrate simply as the "President" without the addition of title. Should there be more than one Executive?

For what period should the Executive hold office?
Should he be reeligible?

By whom and how should he be elected?

These were disturbing questions. There was diversity of opinion. No less than 10 methods of choosing a President were seriously proposed and debated. A plurality of executives was favored by some and strongly supported, but a motion prevailed that "the Executive should consist of a single person.

The duration of the term was long in settlement.

Propositions were made running from 3, 7, 10, 15, and 20 years, to the indefinite period of "during good behavior." Those who favored a long term coupled with it ineligibility for a second term, Twice the convention voted down "seven years" and once voted it up. Finally, it was decided that "He shall hold his office during the term of four years.'

No provision was made against reelection; but the unwritten law of two terms since Washington declined a third term has been observed and is not likely to be broken.

The Constitution is silent as to when the President's term of office for four years should begin. Why, then, does it begin on March 4, following an election?

The answer is that the time was fixed by the old Continental Congress, a body not mentioned in the Constitution. It came about in this way: The convention which wrote the Constitution left to the old Congress the business of starting the new Government and of fixing the time and place for beginning the "more perfect Union." The ratification of the Constitution by nine States was necessary. This was long delayed, and it was not until September 13, 1788, that the Continental Congress could fix days for the election of a President, for the counting of the vote, and for the term of the President and of Congress to begin.

They fixed the first Wednesday in March next-1789-as the time for commencing the proceedings under the Constitution." Meanwhile the election was to be held and the vote counted. Oddly enough, nothing was said about the meeting of Congress on March 4 nor the beginning of the presidential term on that day. But it so