The act of March 1, 1792, relative to the election of the President and Vice-President also fixed the succession in case of the death, removal, resignation, or disability of these officers. It declared: " In case of removal, death, resignation or disability both of the President and Vice-President of the United States, the President of the Senate pro tempore, and in case there shall be no President of the Senate, then the Speaker of the House of Representatives for the time being shall act as President of the United States until the disability be removed or a President shall be elected."1

These sections of the act of 1792, though open to both constitutional and political objections, remained in force until 1886. These, among others, were the objections to the act. In the first place there is doubt whether the Speaker of the House and the President pro tempore of the Senate are " officers" of the United States and, therefore, qualified to succeed to the Presidency.

1 A following section of this act makes provision for the appointment of electors for the selection of a new President and Vice-President whose terms of office when elected shall be four years commencing with March 4 succeeding the day on which the votes of the electors are given.

Madison made this point and also pointed out that in ease either of these should succeed to the Presidency, they would still remain members of the legislative branch, and that the performance of executive functions would be in conflict with the exercise of their legislative duties.2 Secondly, should both the President and Vice-President die during the interim between one Congress and the convening of the next, there would be no Speaker of the House, and there might not be a President pro tern, of the Senate.

In two instances this possibility has become an evident one. In 1881 before Congress met in the fall, and before a Speaker of the House or a President pro tem, of the Senate had been elected, President Garfield died and was succeeded by Vice-President Arthur. Again in 1883 Vice-President Hendricks died before the convening of Congress and before either a Speaker or President pro tem, of the Senate had been selected. Thus, in either of these cases had President Arthur or President Cleveland died, the office would have been left vacant without anyone designated by law to succeed to it.3

A third political objection to the presidential succession provided for by the act of 1792 was that it made it easily possible for the person succeeding to the presidency to be of a different political party from that to which the President whom he would succeed belonged.4

Still another objection to the act of 1792 was that it provided that a new election of a President and Vice-President should be held and that the persons so elected should hold office for four years. The effect of this would of course be that the presidential elections would no longer occur in the years in which members of the House and one-third of the members of the Senate are selected.

2 Letter to Edward Pendleton, March 25, 1792.

It was probably due to the suspicion of the then Secretary of State, Jefferson, that the Federalists did not provide that that officer shall succeed in the case of the death, disability, or removal of both the President and Vice-President.

3 The usual practice is for the Vice-President to absent himself for a day from the Senate called in extraordinary session after the inauguration of a new President, for action upon the cabinet and other nominations, so that opportunity may be given for the selection of a President pro. tem., but this custom Vice-Presidents Arthur and Hendricks did not follow.

4 Under this law had President Cleveland died he would have been succeeded by a Republican, Senator John Sherman or Senator John J. Ingalls.

Finally, there was room for doubt whether Congress had the constitutional power to provide for an intermediate election in case of the death, disability, or removal of both the President and Vice-President. That the Vice-President should, upon suceeding to the Presidency, serve out the remaining unexpired part of the term of his predecessor has not been questioned, the legislative power of Congress with reference to the Presidential succession being clearly limited to cases in which there is a vacancy in the offices of both President and Vice-President In such cases the Constitution provides that Congress may by law provide for a successor to the President, who " shall act accordingly until the disability is removed, or a President shall be elected." Plainly there is here given no express power to Congress to provide for an intermediate election. On the other hand the words " until a President shall be elected " does not exclude the idea that intermediate elections may be held. At the time of the drafting of the Constitution it was at first moved that the person so selected should act " until the time of electing a President shall arrive," Madison objected to this that it would prevent an intermediate election, and thereupon the present phraseology was adopted.

This would seem to indicate that it was intended that Congress should have the power of ordering an intermediate election. But this is not conclusively established; for the convention struck out from the Constitution the proposal that the United States should have the power to emit bills of credit, and to make them legal tender, as well as the power to grant charters of incorporation, yet the authority to do these acts has been found elsewhere in the Constitution by the courts. So in the present case, the mere removal of an obstacle to the holding of an intermediate election, by striking out the provision that the acting President shall act "until the time of electing a President shall arrive." cannot be held in itself to confer the power in question upon Congress.