INABILITY OR DISABILITY. 



415 



The question has never been authoritative- 

 ly settled whether the Vice-President was in- 

 tended to become President, or only to " act 

 as President," retaining his former title even 

 when an actual vacancy takes place. The first 

 case occurred on the death of Mr. Harrison in 

 1841, when the question arose in Congress 

 whether, in appointing a committee to inform 

 Mr. Tyler of the organization of the two Houses, 

 that officer .should be styled the " President " 

 or the " Vice-President now exercising the of- 

 fice of President." Mr. Wise, of Virginia, 

 stated that " he knew the fact that the present 

 incumbent would claim the position that he 

 was by the Constitution, by election, and by 

 the act of God, President of the United States." 

 Little consideration was given to the question 

 involved, and Congress simply decided to give 

 the title of President to the person exercising 

 the duties of the office, in its communications 

 with him, Mr. Calhoun taking occasion to re- 

 mark that as none of the circumstances existed 

 which might arise in the case of inability, 

 ' there could be no special occasion for dis- 

 cussing the subject." This precedent can hardly 

 be said to have settled any constitutional prin- 

 ciple, or definitely determined that the Vice- 

 President becomes President, when the execu- 

 tive office falls vacant by the death of the 

 incumbent ; but it established the practice of 

 calling him the President, which has since been 

 followed by Congress and by the country. 

 There has never been any case of removal or 

 resignation, and, as already intimated, no ques- 

 tion of the meaning or effect of "inability" 

 had ever arisen previous to the shooting of 

 General Garfield. The question then was, 

 whether a temporary incapacity of the Presi- 

 dent for performing the functions of his office 

 created such an exigency as was contemplated 

 by the Constitution, and whether it would be 

 proper for the Vice-President to assume their 

 performance. If such was the case, what pow- 

 er was to determine what constituted inability 

 and when it existed? By what process was 

 that determination to be made? If constitu- 

 tional inability was established, would the 

 Vice-President then become President, or act 

 as President for the remainder of the term, or 

 would he act only temporarily, while the in- 

 ability continued? If the latter, how was it 

 to be determined that the inability was at an 

 end, and by what process was the Vice-Presi- 

 dent to be called to the performance of execu- 

 tive duties, and again relegated to his former 

 place and functions? None of these questions 

 were explicitly answered by the Constitution, 

 and none of them had ever been dealt with by 

 the national judiciary or Legislature. It was 

 even a question whether Congress had any 

 power to legislate on the subject. It was 

 claimed, on the one hand, that it had no such 

 power, inasmuch as it was not actually con- 

 ferred by the section of the Constitution re- 

 lating to the succession. It was even con- 

 tended by some that the grant of power to act, 



in case of the "inability" of both President 

 and Vice-President, must be taken as indicat- 

 ing that no corresponding power could be ex- 

 ercised in case of the "inability " of the Presi- 

 dent alone, in regard to which no such grant 

 was made. On the other hand, it was main- 

 tained that the general grant of authority to 

 make the laws necessary to execute all powers 

 provided for in the Constitution was sufficient 

 to cover the case. 



As no imperative necessity arose for the 

 exercise of executive duties during President 

 Garfield's illness, and as no action was taken 

 for the determination of the questions raised, 

 it will only be possible to quote some of the 

 more important opinions that were made pub- 

 lic in the course of the discussion. The Hon. 

 R. W. Thompson, of Indiana, gave it as his 

 opinion that in case of mental incompetency 

 the fact could be established by judicial inquiry, 

 and on proper notification the Vice-President 

 would act temporarily or permanently as the 

 occasion might require. In the case of phys- 

 ical inability the President himself would be 

 competent to decide as to the necessity, and 

 could cause the Vice-President to be notified, 

 when it would be his duty to perform such ex- 

 ecutive acts as were called for until the Presi- 

 dent was in a condition to resume the discharge 

 of his duties. The Hon. Thomas A. Hendricks 

 gave it as his opinion that Congress had no 

 power to define presidential disability, but, if 

 the fact were established beyond doubt by 

 force of circumstances, it would be entirely 

 proper for the Cabinet to notify the Vice-Pres- 

 ident, whereupon he would assume the per- 

 formance of executive duties while the inabil- 

 ity of the President continued. The Hon. Ly- 

 man Trumbull, of Illinois, in a carefully pre- 

 pared paper, took the ground that in no case 

 did the Vice-President become President, but 

 in certain defined exigencies he was " to act 

 as President " or u exercise the office of Presi- 

 dent." The practice of conceding the title in 

 case of a vacancy settled no constitutional prin- 

 ciple. In his view no distinction existed be- 

 tween the position of the Vice-President when 

 a vacancy had been caused and when inability 

 existed, and, if in the latter case he became 

 President, then there would be two Presidents. 

 Inability might be temporary, in which case 

 the Vice-President would act only while it 

 lasted. Mr. Trumbull expressed the opinion 

 that there was no tribunal that could deter- 

 mine the question of inability, and no occasion 

 for any. He did not favor any legislation on 

 the subject. It was his belief that the exist- 

 ence of the fact should be byond question and 

 generally admitted as a matter of public noto- 

 riety, as in case of the death of the President, 

 and then there would be no difficulty. The 

 Vice-President would assume the performance 

 of all necessary executive acts without objec- 

 tion, and would cease to do so when the neces- 

 sity ceased to exist. " It is questionable," he 

 said, " whether any law can be framed placing 



