INABILITY OE DISABILITY. 



417 



tutional law, to be determined by the ordinary 

 rules of interpretation. This meaning he held 

 to be a mental incapacity for the discharge of 

 official duties. This must be determined by a 

 proper judicial proceeding upon competent evi- 

 dence. If the fact of inability is established, 

 Professor Dwight holds that the effect must be 

 to devolve the office of President upon the 

 Vice-President, to be exercised by him until 

 the end of the term. The President is as com- 

 pletely displaced as if he had died, or resigned, 

 or been removed from office. His conclusions 

 are summed up as follows : " The ' inability ' of 

 the Constitution is strict intellectual incapacity. 

 This condition of mind must be established by 

 evidence under forms of law, which Congress 

 is competent to prescribe. When such inabili- 

 ty is properly established in the case of the 

 President, his office devolves upon the Vice- 

 President, who thereupon becomes President, 

 retaining the office until the end of the four 

 years' term, unless a constitutional disability 

 occurs in his case." 



Another question that arose as the result of 

 President Garfield's illness related to the order 

 of succession in case of the disability of both 

 President and Vice-President. The Constitu- 

 tion distinctly left it for Congress to provide 

 for such an emergency, and an act was passed, 

 which became law on the 1st of March, 1792, 

 declaring that in such case " the President of 

 the Senate pro tempore, or, if there is none, 

 then the Speaker of the House of Representa- 

 tives for the time being, shall act as President 

 until the disability is removed or a President 

 elected." In the revision of the statutes, the 

 phrase "pro tempore " has been omitted. It 

 has been a general custom in the Senate, before 

 the end of a session, for the Vice-President to 

 retire from the chair, in order that a President 

 pro tempore may be chosen ; but this was not 

 done by Mr. Arthur at the special session 

 which adjourned in May. Hence, no such of- 

 ficer existed during the illness or at the time 

 of the death of General Garfield. As the Forty- 

 sixth Congress expired on the 4th of March, 

 and the first regular session of the Forty-sev- 

 enth did not begin until December, there had 

 been no organization of the House of Repre- 

 sentatives, and there was no Speaker. This 

 state of things naturally brought up the ques- 

 tion of the propriety of the legislation of 1792, 

 which had never before attracted special atten- 

 tion. It was contended that the line of suc- 

 cussion to the Executive chair should not fall 

 to " officers " who might have no existence for 

 months together. Serious objection was also 

 raised to placing the presiding officers of the 

 legislative department of the government in 

 that line. More than that, it was claimed that 

 they were not officers of the government with- 

 in the meaning of the Constitution. When in 

 1798 an attempt was made to impeach Senator 

 Blount, of Tennessee, it was decided that a 

 Senator was not an officer of the United States 

 subject to impeachment. As "all civil officers 

 VOL. xxi. 27 A 



of the United States " are subject to that proc- 

 ess, it has always been understood that this 

 decision established the principle that Sena- 

 tors, and, by parity of reasoning, members of 

 the House of Representatives, are not officers 

 of the United States. If such is the case, it is 

 said, choosing any one of them to preside over 

 the deliberations of the body of which he is a 

 member does not make him such an officer. 

 Hence the argument that the law of 1792 is 

 unconstitutional, as well as inexpedient. It is 

 worthy of note that that law was passed with 

 difficulty and by a close vote, the same objec- 

 tions being made at the time. The rival prop- 

 osition that the Secretary of State be desig- 

 nated as the officer to act as President in case 

 of the disability or removal of both President 

 and Vice-President, is reputed to have been 

 defeated for political reasons, Mr. Jefferson 

 being at that time Secretary of State. 



President Arthur, in his first annual message, 

 called attention to the questions which had 

 arisen in regard to presidential inability or dis- 

 ability, and commended them to the "early 

 and thoughtful consideration " of Congress. 

 The subject was promptly taken up in the 

 Senate, the following resolution being offered 

 by Mr. Beck, of Kentucky, on the second day 

 of the session : 



Whereas, The Constitution of the United States 

 provides that, in case of the removal of the President 

 from office, or of his death, resignation, or inability to 

 discharge the duties of the said office, the same snail 

 devolve on the Vice-President, and that Congress may 

 by law provide for the case of removal, death, resig- 

 nation or inability, both of the President ana Vice- 

 President, declaring what officer shall act then as 

 Presidentj and such officer shall act accordingly until 

 the- disability be removed, or a President shall be 

 elected. And, whereas, it greatly concerns the peace 

 of the country, and perhaps the very existence of the 

 government, that the laws enacted by Congress in 

 pursuance of that provision of the Constitution should 

 be so comprehensive as to provide for every vacancy 

 that can possibly occur in the office of President, and 

 so clear as to admit of no controversy nor any ques- 

 tion of disputed succession to that high office : To 

 the end, therefore, that all doubts or defects which 

 may exist in our present laws on this subject may be 

 remedied and future controversy prevented, be it 



Resolved by the Senate, That the Committee on the 

 Judiciary be instructed to examine into said provi- 

 sions of the Constitution and into the laws passed by 

 Congress to carry them into effect, and inquire whether 

 the provisions of said laws are constitutional, proper, 

 and adequate in all respects to their purpose and end, 

 or whether any further legislation be necessary or 

 proper, and to report thereon by bill or otherwise. 



A resolution of similar import was presented 

 by Mr. Maxey, of Texas, and the following bill 

 was introduced by Mr. Garland, of Arkansas : 



Be it enacted, etc., That section 14*?, Title III, of 

 the Revised Statutes is hereby repealed. 



SECTION 2. In case of the removal, death, resignation, 

 or inability of both the President and Vice-President 

 of the United States, the Secretary of State for the 

 time being, or, if there be no Secretarv of State, then 

 the Secretary of the Treasury for the time being, or, if 

 there bo neither Secretary of State nor Secretary of 

 the Treasury, then the Secretary of War for the time 

 being, shall act as President until the disability bo 

 removed or a President be elected in the manner and 



