Page images
PDF
EPUB

ries and arsenals; for these are not troops, but merely ministers of the civil law.

§ 280. The power to make treaties, alliances, and confederations had, in another place, been taken from the states; to this prohibition is here superadded that of making compacts and agreements with another state or with a foreign power, without the consent of Congress. It may be asked what compacts and agreements are here meant? As alliances, treaties, &c., had before been mentioned, this clause refers to “private rights of sovereignty; such as questions of boundary, interests in land situated in the territory of each other, and other internal regulations for the mutual comfort and convenience of states bordering on each other.” The compact between Virginia and Kentucky is of this class.

§ 281. No state can control the exercise of any authority under the general government.

§ 282. The state courts cannot annul the judgments, or determine the extent of the jurisdiction, of the courts of the Union.3

§ 283. No state tribunal can interfere with seizures of property made by revenue officers under the laws of the United States.

§ 284. No state can issue a mandamus to an officer of the United States. The official conduct of an officer of the government of the United States can only be controlled by the power that created him.5

§ 285. State Laws, as, for example, statutes of limitation, insolvent laws, &c., have no operation upon the rights or contracts of the United States. 13 Story's Comm. 272. 21 Kent's Comm. 382. 35 Cranch, 115. 4 2 Wheaton, 1. 56 Wheaton, 598. 68 Wheaton, 253.

10

ARTICLE II.

OF THE EXECUTIVE.

§ 286. SECTION 1st. Clause 1st. The Executive power shall be vested in a President of the United States of America. He shall hold his office during a term of four years, and, together with the Vice President, chosen for the same time, be elected as follows:

§ 287. The chief points laid down in ihis clause are, 1st, The unity of the executive; 2d, That he shall be elected; 3d, He shall hold his office for a limited time; and, 4th, That he be styled President.

1st. As to the unity of the executive, common sense, as well as the agreement of the best writers, unite in the opinion, that the office which is entirely ministerial, -and in our government the executive is so,—is better filled by one head than by several. History has in all instances condemned the vesting executive power in the hands of a council, and whenever the experiment has been tried among the states, it has proved disastrous.

2d. The next principle laid down is, that the executive shall be elective; and this is the distinguishing characteristic of our government from that of England, France, and other governments of Europe, where some portion of constitutional liberty is enjoyed. It is not the power possessed by the executive so much as it is the authority whence, and the mode in which, it is derived, that constitutes the difference between these governments and ours. The hereditary and perpetual principles which prevail in all the governments of Europe, for ever destroys all accountability on the part of the executive to the people; hence the English maxim, “The king can do no wrong." He is, by their constitution, placed above inquiry and accountability. In this country, however, there is accountability in all the departments of the government. The executive is elective, and his office of limited duration; so that if he err or offend, he may soon be held amenable at the bar of public opinion.

1 Montesquieu's Spirit of Laws, book II. chap. 6; De Lolme on Constitution of England; 1 Kent's Comm. 253, 255; 3 Story's Comm. 282.

3d. The office is limited. This principle, like that of election, is necessary to give a full and perfect con-. trol of the public opinion over the executive, and make it responsible.

4th. The style of President is very appropriate to the office of one whose duty it is to preside over the administration of public affairs.

Of the Vice-President we shall speak hereafter.

§ 288. Clause 2d. Each state shall appoint, in such a manner as the Legislature thereof may direct, a number of electors equal to the whole number of senators 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.

§ 289. The electors are to be appointed in the manner which the Legislature shall direct. In the different States, different modes of electing the electors have prevailed. In some, the district mode has prevailed, as in the state of Maryland; in others, as in Delaware, they are elected by the Legislature itself; but generally they are elected by general ticket. The first has been found to fritter away the power of the state, and the second seemed to take it away from the people.

The number of electors a state is entitled to, is equal to the whole number of senators and representatives; thus, Ohio has 19 representatives and 2 senators; consequently she is entitled to 21 electors.

No qualification is required of an elector, except he

[ocr errors]

shall not hold an office of profit or trust under the government of the United States.

§ 290. The next clause in the Constitution has been abrogated by an amendment, passed by the constitutional number of States in 1801, which we shall presently recite.

That clause of the Constitution required that the electors should vote for two persons, without designating either of them for President or Vice-President. That the person having the greatest number of votes, if that be a majority of the electors, shall be President; and if there be more than one who has such a majority, and have also an equal number of votes, then the House of Representatives shall immediately choose by ballot one of them to be President; but if no one has the majority, then from the five highest the House shall choose the President. Each state in the House shall have one vote. After the choice of President, the person having the highest number of votes shall be VicePresident, and if two have an equal number of votes, the Senate shall choose between them.

§ 291. As in the mode here pointed out, there was no distinction made between President and Vice-President, it follows that, in party conflicts, where the whole party support one ticket, it must necessarily happen, that unless a vote be dropped, two persons would have an equal number of votes, and consequently the election devolve upon the House of Representatives. This difficulty actually occurred at the election of 1801, at which Jefferson and Burr received the same number of votes. The House of Representatives, being divided by violent party feelings, protracted the election through thirty-six ballotings, and at last made the election only in consequence of the danger of vacating the executive office. The result of that canvass gave rise to an amendment of the Constitution prescribing the present mode of election.

The following is the amendment:

§ 292. 12th Amendment to the Constitution. 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 the 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 the 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 a majority of the whole number of electors appointed: and if no person have such a 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 votes shall be taken by states, the representation 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. 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 case of the death or other constitutional disability of the President.

§ 293. The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such a number be a majority of the whole number

« PreviousContinue »