Autobiography of Seventy Years, Vol. 1-2

by George Frisbie Hoar

CHAPTER XIV CONSTITUTIONAL AMENDMENTS AND THE PRESIDENTIAL SUCCESSION BILL

When I entered the Senate, I found one very serious inconvenience and one very great public danger in existing conditions.

The great inconvenience grew out of the fact that by the Constitution the session of Congress must end on the fourth of March every other year. A third of the Senate goes out at the same time, and every fourth year the Presidential term ends. That session of Congress meets, according to our usage, on the first Monday of December. The meeting cannot well come much earlier without preventing the members of the two Houses of Congress from taking part in the political campaign, where they are justly expected by the people to give an account of their stewardship, and to discuss the questions to be considered by the people in the election. So there are but thirteen weeks in which to pass fourteen or fifteen great Appropriation Bills, making it impossible to deal with any other great subject except by unanimous consent. The result is also that the Appropriation Bills are put in the power of a very few men indeed. The House has to submit to the dictation of the Appropriation Committee, and cannot be allowed to debate, or even to have a separate vote on matters which nearly the whole House would like to accomplish, if there were time, but which the Chairman of the Appropriation Committee, who is usually omnipotent with his associates, may happen to dislike. On the other hand, in the Senate, where there is no cloture rule, any single member, or at best, a very few members, can defeat an Appropriation Bill and compel an extra session by exercising their right of uncontrolled debate.

Besides; people from all parts of the country like to attend the inauguration of a new President. The fourth of March is at an inclement season, and is apt to be an inclement day, and it may come on Saturday or Sunday or Monday. So persons who attend may be obliged to be away from home over Sunday, and a great many persons have lost their health or life from exposure in witnessing the inauguration.

I prepared a Constitutional amendment providing that the inauguration should take place on the last Thursday in April. I have reported this to the Senate several times. It has always passed that body with scarcely a dissenting vote, on debate and explanation. If that had been adopted, if the session were to begin in the middle of November, a week after the November elections— which could be accomplished by an act of Congress—instead of thirteen weeks, to which the session is now limited, there would be a session of twenty-three or twenty-four weeks. This would give time for the consideration of such legislation as might be needful. It would probably, also, permit the shortening somewhat of the long session, which not infrequently extends to July or August. But the plan has never found much favor in the House. Speaker Reed, when he was in power, said rather contemptuously, that "Congress sits altogether too long as it is. The less we have of Congress, the better."

The public danger is found in the fact that there is no provision in the Constitution for the case where the President-elect dies before inauguration. The provision is:

"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 said Office, the same shall devolve on the Vice-President, and the Congress may by Law 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 shall be removed, or a President shall be elected."

Strictly construed, it is only in the case of the death, inability, etc., of a President, that a Vice-President can succeed, or in the case of the death, inability, etc., of the President and Vice-President both, that Congress has power to declare on whom the office shall devolve. It must be a President and Vice-President that die; not merely a President and Vice- President-elect. That his is not an imaginary danger is shown by the fact of the well-known scheme to assassinate Lincoln on his way to the seat of the Government, and also by the fact that either the President or the Vice-President has died in office so many times in the recollection of men now living. President Harrison died during his term; President Taylor died during his term; Vice-President King died during Pierce's term; Vice-President Wilson died during Grant's term; President Garfield died during his term; Vice-President Hendricks died during Cleveland's term; Vice-President Hobart died during McKinley's term, and President McKinley during his own second term. So within sixty years eight of these high officials have died in office; five of them within thirty years; four of them within twenty years.

I have also drawn and repeatedly procured the passage through the Senate of an amendment to the Constitution to protect the country against this danger. That also has failed of attention in the House. I suppose it is likely that nothing will be done about the matter until the event shall happen, as is not unlikely, that both President and Vice-President- elect shall become incapacitated between the election and the time for entering upon office.

I was more successful in providing against another situation that might prove quite awkward. In Washington's Administration Congress exercised, as far as it could, the power given by the Constitution to provide against the death or disability of both the President and Vice-President, if it should happen after they had entered upon office, as follows:

"In case of removal, death, resignation or inability of both the President and the Vice-President of the United States, the President of the Senate, or, if there is none, then the Speaker of the House, for the time being, shall act as President, until the disability is removed or a President elected."

There is a tradition that when this awkward arrangement was made, the proposition that the Secretary of State should succeed in the case of such vacancy was defeated by the suggestion that Mr. Jefferson had too much power and consequence already. The arrangement seemed to me clearly objectionable. In the first place the Vice-President, who, it is supposed, has died or become incapable, is the Constitutional President of the Senate. The Senate, under the practice and construction of its power which prevailed down to a very recent period, only elected a President pro tempore when the Vice-President vacated the chair. His office terminated when the Vice-President resumed it, and there was no Constitutional obligation on the Senate to elect a President pro tempore at all. So it was quite uncertain whether there would be a President pro tempore of the Senate at any particular time, especially when the Senate was not in session. There have been two instances where the President of the Senate has refused to vacate the chair, for the reason that he did not desire to have a President pro tempore elected, and thereby have an honor conferred on a member of another party than his own. That happened once in the case of Vice-President Gerry, and again, within my personal knowledge, in the case of Vice-President Arthur. When he succeeded to the Presidency there was no President of the Senate who would have taken his place if he too had happened to be assassinated. So of the Speaker of the House. For a great many years the first session of a newly-elected House of Representatives has begun in December. There is no Speaker from the previous fourth of March until that time. Beside, the Senate, whose members hold office for six years and of whom only one-third goes out every two years, is very apt to have a majority whose political opinions are opposed to those which have prevailed in the last Presidential election. So, if the President and Vice-President both die before taking their seats, the President of the Senate is quite likely to bring into the Executive Office opinions which the people have just rejected in the election.

On the other hand, the Secretary of State is always a member of the party that has prevailed in the last election, and is usually the member of the party, next to the President himself, highest in its confidence. Our Secretaries of State, with rare exceptions, have been among the very ablest public men of the country. Among them have been Timothy Pickering, John Marshall, James Madison, James Monroe, John Quincy Adams, Henry Clay, Martin Van Buren, Edward Livingston, Louis McLane, John Forsyth, Daniel Webster, John C. Calhoun, James Buchanan, John M. Clayton, Edward Everett, Elihu B. Washburne, Hamilton Fish, William M. Evarts, James G. Blaine, Thomas F. Bayard, John Sherman, and John Hay. These men, with scarcely an exception, have been among the very foremost statesmen of their time. Several of them have been Presidents of the United States, and a good many more of them have been prominent candidates for the Presidency. On the other hand, the list of Presidents of the Senate contains few names of any considerable distinction. Another objection to the arrangement was the fact that the President of the Senate and the Speaker of the House might be changed at the will of the body that elected them. So the acting President might be displaced at the will of a political body. There is a good deal of reason, also, for claiming that if Congress declare that the officer shall act as President, he must discharge the duties of his office and the duties of the President at the same time, a burden which would be very hard for one man to support. Accordingly I drew and introduced the existing law, which reads as follows:

"Be it enacted, etc., That in case of removal, death, resignation or inability of both the President and Vice-President of the United States, the Secretary of State, or if there be none, or in case of his removal, death, resignation or inability, then the Secretary of the Treasury, or if there be none, or in the case of his removal, death, resignation or inability, then the Secretary of War, or if there be none, or in case of his removal, death, resignation or inability, then the Attorney-General, or if there be none, or in case of his removal, death, resignation or inability, then the Secretary of the Interior, shall act as President until the disability of the President or Vice-President is removed or a President shall be elected:

"Provided, That whenever the powers and duties of the office of President of the United States shall devolve upon any of the person named herein, if Congress be not then in session, or if it would not meet in accordance with law within twenty days thereafter, it shall be the duty of the person upon whom said powers and duties shall devolve to issue a proclamation convening Congress in extraordinary session, giving twenty days' notice of time of meeting.

"Sec. 2. That the preceding section shall only be held to describe and apply to such officers as shall have been appointed by the advice and consent of the Senate to the offices therein named, and such as are eligible to the office of President under the Constitution, and not under impeachment by the House of Representatives of the United States at the time the powers and duties of the office shall devolve upon them respectively.

"Sec. 3. That sections one hundred and forty-six, one hundred and forty-seven, one hundred and forty-eight, one hundred and forty-nine and one hundred and fifty of the Revised Statutes are hereby repealed. (January 19, 1886)."

There was some objection to it at first. It was resisted very strenuously to the end by Senator Edmunds. But after full discussion it passed the Senate with few dissenting votes.

In the House Mr. Reed, afterward Speaker, appealed without success to the political feeling of his associates, demanding to know if they would rather have Mr. Bayard, who was then Secretary of State, than John Sherman, who then happened to be President of the Senate, for President of the United States. But the House, also, by a large majority, passed the measure.