416 



INABILITY OR DISABILITY. 



this question of inability in a better position 

 than the Constitution has left it. The degree 

 of proof to satisfy the public mind can not be 

 previously defined. Every citizen of the re- 

 public constitutes a part of the law-making 

 power. Hence the respect of all for the law, 

 and their readiness at all times to uphold and 

 defend it. They take notice of public matters 

 affecting the government of the country, of 

 who is President, of his death or inability, and 

 of the accession of anotherjto the duties of Pres- 

 ident. When this accession follows the noto- 

 rious and unquestioned inability of the Presi- 

 dent, they will be as ready to uphold the Vice- 

 President in the discharge of the duties of the 

 presidential office as if he had been elected to 

 it. Any Vice-President who should assume 

 those duties in a doubtful case, when the exi- 

 gency did not unmistakably require it, would 

 be treated as a usurper by all patriotic citi- 

 zens. Peaceful successions to the presidency, 

 under our system of government, must always 

 depend on a sound public opinion, supported 

 by the good sense and the intelligence of the 

 people ; and there it may be safest to leave 

 them." 



Judge T. M. Cooley, of the University of 

 Michigan, a well-known writer on constitu- 

 tional law, took a somewhat different view of 

 the subject. He agreed that the inability should 

 not be of a doubtful or transitory character, 

 but such as made it imperatively necessary 

 that some one should act in place of the Presi- 

 dent. He had no doubt that it might be of 

 limited duration, and that in such case the 

 action of the substitute should cease when 

 the necessity for it was at an end; but he 

 was of opinion that there should be some 

 authoritative tribunal to determine when the 

 necessity existed and when it ceased to exist. 

 In his opinion, Congress was the proper tri- 

 bunal to decide upon this question, and one 

 that had sufficient power under the Consti- 

 tution to provide for any such emergency. 

 This it could do by dealing with a particular 

 case when it arose and called for action, or by 

 a general law applying to all cases. After dis- 

 cussing the question of the general authority of 

 Congress over the subject, he concluded: "It 

 may be added that, while Congress could pro- 

 vide for such cases by general law, it could 

 have no less power to provide by special law, 

 and that almost inevitably every case would be 

 peculiar and require to be dealt with specially. 

 We conclude, therefore, that an inability, in 

 the constitutional sense, is one that not only 

 exists presently, but, in the opinion of Con- 

 gress, is of such a nature and probable contin- 

 uance that it causes or threatens inconvenience 

 to public affairs. It is possible for a case to 

 arise so plain, and so unmistakably determined 

 in the public judgment, that public opinion, 

 with unanimous concurrence, would summon 

 the Vice-President to act. But, though this 

 would make him acting President de facto, he 

 would become acting President de jure only 



after solemn recognition in some form by Con- 

 gress." 



General B. F. Butler agreed with the writers 

 already mentioned in the opinion that presi- 

 dential inability might be other than perma- 

 nent in its character, and that in such case the 

 duties of the office devolved upon the Vice- 

 President only during its continuance ; but he 

 took the ground that it was for the Vice-Pivs- 

 ident himself to determine when the exigency 

 existed. He thought the Constitution was suf- 

 ficiently explicit and its meaning sufficiently 

 plain, and believed that there was neither au- 

 thority nor necessity for legislation on the sub- 

 ject. He said : "It may be taken as axiomatic 

 that when the Constitution imposes a duty on 

 any officer, to be done by him, he must be the 

 sole judge when and how to do that duty, sub- 

 ject only to his responsibility to the people, and 

 to the risk of impeachment if he act improperly 

 or corruptly. As we have seen, the Constitu- 

 tion devolves, in a certain case, the discharge 

 of the duties of the President upon the Vice- 

 President. He alone must judge, under the 

 grave responsibility of his position, when his 

 duties begin, as he must determine how and in 

 what manner he will execute them." In an- 

 swer to the objection that the Vice-President 

 might be tempted to seize upon the power of 

 the executive office without sufficient warrant, 

 Mr. Butler said : " The fear of danger implied 

 in this proposition arises from another error 

 into which some who have discussed the ques- 

 tion have fallen, and that is that the Vice- 

 President can not discharge the duties of the 

 presidential office without becoming President, 

 for which proposition there certainly is no 

 constitutional authority." After discussing 

 the constitutional provisions applicable to the 

 case, he continued : " This interpretation ought 

 to allay the fears of all good people as to the 

 temptation of a Vice-President, in a doubtful 

 case, to insist upon the discharge of the duties 

 of the President. A case can hardly be imag- 

 ined of inability which would not be tempo- 

 rary, and the Vice-President would have no 

 temptation to thrust himself into the discharge 

 of the duties of the office of President, wherein 

 he could do nothing by possibility that would 

 be permanent, and without surety that his 

 powers to discharge those duties would last a 

 single day. He might nominate a few officers, 

 but if he had thrust himself into the discharge 

 of the presidential duties wrongfully, the Sen- 

 ate would never confirm his nominations. He 

 might approve laws, but the Houses of Con- 

 gress will never send any acts to a Vice-Pres- 

 ident for approval who should decide the ques- 

 tion of the inability of the President in a man- 

 ner to shock the sense of the people." 



Professor Theodore W. D wight, of the Co- 

 lumbia Law School, in New York city, took 

 quite a different view of the subject from that of 

 any of these writers. He maintained that " in- 

 ability" and "disability" are equivalent ex- 

 pressions, having a technical meaning in consti- 



