Tyler usurped the presidency unconstitutionally




and such Officer shall act accord-
ingly, until such disability be re-
moved, or a President shall be
elected.

and such officer shall act accord-
ingly, until the disability be re-
moved, or a president shall be
elected.

Attorney General Robert F. Kennedy has analyzed the changes as follows:

When we refer to the provisions before and after the Committee on Style had combined them, it appears that the Committee did several things: consolidated two provisions into one and introduced the words "the same shall devolve on the Vice President"; omitted reference to "absence" as an occasion for operation of the succession rule; used the adverbial clause "until the disability be removed," only once instead of using it to modify each of the preceding clauses separately; substituted "inability" for "disability" in the clause referring to succession beyond the Vice President, possibly as being more comprehensive and covering both absence and temporary disability; and changed the semicolon after "Vice President" to a comma so that the limited beginning, "and such Officer" clause would refer to both the Vice President and officer designated by Congress. Thus the evolution of this clause makes clear that merely the powers and duties devolve on the Vice President, not the office itself. 27



Attorney General Robert F. Kennedy has presented an irrefutable argument in support of this general thesis by looking at the Constitution in its entirety. If the Tyler interpretation is applied to both temporary and permanent inability, certain other sections become inconsistent. For example: 1. Article I, Section 3, Clause 5 says the Senate shall choose a President pro tempore in the absence of the Vice President or "when he shall exercise the Office of President of the United States."
2. The twelfth amendment provides that if, in case of a contested presidential election, the House of Representatives shall not choose a President before Inauguration Day, "then the Vice President shall act as President in the case of the death or other constitutional disability of the President." 31 This wording assumes even greater importance when it is recalled that the twelfth amendment was adopted on September 25, 1804.
3. Section 3 of the twentieth amendment recognizes the distinction between permanent and temporary inability by providing that if, at the time fixed for beginning the term of the President, the President-elect has died, then the Vice President "shall become President." But the amendment further provides that if a President has not been chosen by the time fixed for the beginning of his term, or if the President-elect fails to qualify, then the Vice President-elect shall "act as President until the President qualifies. . . ." 32

The records and history of the Constitutional Convention and consideration of other provisions in the Constitution establish indisputably that it was the intention of the framers for the Vice President to be Acting President in the event of presidential inability. He was not to succeed to the Presidency on the death of the President; he could become President only by being elected to the office.


--

All the members of the Cabinet had been present when the President passed away; Vice President Tyler, however, was at his home in Williamsburg, Virginia. That same night an official message notifying him of the President's death was composed and signed by the Cabinet members, and entrusted to Fletcher Webster, the son and assistant of Secretary of State Daniel Webster. 7 He was on his way before dawn via stagecoach and chartered boat. The boat took him as far as Yorktown; there he transferred to horseback and galloped hell-for-leather the last ten miles to Williamsburg.

His arrival put an end to a happy, boisterous family scene: the Vice President was hunkered down on a gravel walk, shooting marbles with his two sons. In high good humor, he was heckling the youngsters, who were losing to him. That marble game was probably the last time John Tyler enjoyed himself for four years.

There was a few hours' delay while Tyler, who was short of funds, arranged to borrow several hundred dollars; then the two men started back to Washington on the government-chartered boat. While young Webster slept, the Vice President paced the deck in solitude. He was confronted with one of the most momentous decisions in American history, and he was called upon to make it under circumstances in which neither he nor any other man could be expected to maintain an objective point of view.

The situation was without precedent. Never before had a Chief Executive died in office. The country had, in effect, been without a President for two days. What happened next depended on the construction Tyler put on Article II, Section 1, Clause 5 of the Constitution--the clause which deals with the succession in the event of presidential inability. * The relevant passage reads as follows:

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. . . .

At first glance this may seem clear enough, but there is an ambiguity in the wording. Does "the Same" refer to the "Powers and Duties" of the presidency, or to "the said Office" itself?

If Tyler interpreted "the Same" as referring to "Powers and Duties," he would remain the Vice President exercising the powers and duties of the dead President. If he decided that "the Same" referred to "the said Office," he would become the tenth President of the United States.

On his arrival in Washington, Tyler was met at the dock by the Cabinet and escorted to Brown's Indian Queen Hotel on Pennsylvania Avenue. A note was sent to Judge William Cranch, Chief Justice of the Circuit Court of the District of Columbia, summoning him to the hotel. Cranch was taken to Tyler's rooms, where in the presence of the Cabinet, of Fletcher Webster, the tavernkeeper Jesse Brown, and some hotel guests, he administered the Presidential Oath of Office.

Directly after the ceremony the seventy-two-year-old jurist signed the following affidavit:

I, William Cranch, . . . certify that the above-named John Tyler personally appeared before me this day, and although he deems himself qualified to exercise the powers and office of President on the death of William Henry Harrison, late President of the United States, without any other oath than that which he has taken as Vice President, yet as doubts may arise, and for greater caution, took and subscribed the foregoing [Presidential] oath before me. 8

Who decided that Tyler should become President instead of Acting President? Was it his decision alone or reached in consort with the Cabinet? When was the decision made? These are questions to which we may never have a clear answer. All that can be stated with certainty is that the Cabinet publicly announced the President's death, sent a notification addressed to "John Tyler, Vice President of the United States," 9 and was present when he
was sworn in on April 6, 1841. None of the published papers of Tyler or of the five Cabinet members presentSecretary of StateDaniel Webster, Secretary of the Treasury Thomas Ewing, Secretary of War John Bell, Attorney General John J. Crittenden, Postmaster General Francis Granger-sheds any light on the matter. *

There are three schools of thought: (1) Tyler himself decided he would have presidential status, promptly claimed it, and was unopposed by the Cabinet; (2) Daniel Webster thought that Tyler's action violated the Constitution, but did not make an issue of it because they belonged to the same political party; and (3) Webster, far from opposing Tyler's assumption of office, was the one who decided that he should become President. According to this third version, only Webster among those in official circles thought that President Harrison would die, or at best would be disabled for a long period; he discussed these contingencies with the Cabinet, giving it as his opinion that in either event Tyler would be President, and urged that he be sent for. But no record of such a discussion can be found. After Harrison's death, Webster had the Clerk of the Supreme Court write to Chief Justice Roger B. Taney, who was in Maryland, asking him to come and confer on the question of whether or not Tyler should take the Presidential Oath. Taney refused to do so without a formal invitation from the Cabinet or from the Vice President, and further explained that he didn't want to appear to be intruding in the business of a coordinate branch of the government. 10

Who, then, did decide that Tyler should take the oath of office? On the face of it, the affidavit signed by Judge Cranch would seem to indicate that Tyler thought the oath was unnecessary--that he believed the office of President automatically devolved on him when Harrison died. 11 On the other hand, if he thought that he had become "no more than Acting President, the oath he had previously taken to discharge the duties of the Vice President would cover the whole ground, as one of the prescribed duties of that office
. . . is that of acting as President in the event of the President's death." 12 There is still a third possibility: if Tyler was uncertain of his status--if he was not sure that he automatically succeeded to the Presidency--but wished to lay claim to the office

it would appear from a plain reading of the Constitution that he was legally enjoined to subscribe to the oath provided especially for the President. For Article Two, Section One, provides that: "Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation. . . ." The act of taking the oath marks the President's first official act in office. The doubts that might arise, then, would have been well founded, as Cranch said, if Tyler laid claim to the presidential office without ever taking the presidential oath. The "greater caution" appears to have been the mark both of prudence and of necessity. 13

In short, all that can be said without fear of successful contradiction is that Tyler or somebody decided he should be President; Tyler or somebody decided he should take the oath of office; Tyler or somebody decided he should put it on the record that he did not believe the oath was necessary. However, since the Cabinet was present when he took the oath and since no evidence to the contrary exists, it can be asserted with some confidence that Webster and the other Cabinet members did not regard Tyler as a usurper.

Newspaper opinion was divided. Those holding that Tyler's decision (as it will be referred to for convenience) was right included the Boston Courier ( Whig), the Washington Globe and the Pennsylvanian (both Democratic), the Raleigh Register ( Whig), and the principal Whig paper, the National Intelligencer ( Philadelphia and Washington). Among those holding that Tyler should remain Vice President or Acting President were two other Boston papers (one Whig, one Democratic), the New York Post ( Democratic), a Harrisburg paper ( Whig), and the Richmond Enquirer ( Democratic). None of the major newspapers suggested that a special election be called. 14

Other dissident parties included an elder statesman. former President John Quincy Adams, and not unexpectedly, Henry Clay. On April 9, 1841, Tyler made an Inaugural Address, and on April 14 he moved into the White House. Two days later Adams wrote in his diary:

I paid a visit this morning to Mr. Tyler, who styles himself President . . . and not Vice-President acting as President. . . . But it is a construction in direct violation of both the grammar and context of the Constitution . . . a strict constructionist would warrant more than a doubt whether the Vice-President has the right to occupy the President's house, or to claim his salary, without an Act of Congress. 15

Clay picked up Adams' argument that. Tyler was Acting President only and carried it a step farther, declaring that he did not have all the powers of a regularly chosen Chief Executive, 16 but by the time the matter came up in the Senate (June), 1841), he either had changed his mind or had decided it was no use to fight a fait accompli: at any rate, he voted to give Tyler the presidential title. A somewhat longer debate in the House the day before had ended with the defeat of a resolution that Tyler be styled "Acting President." This congressional action appeared to close the succession issue, and by the end of June "even John Quincy Adams referred to Tyler as 'the President.'" 17

And yet Adams had been right. Tyler's accession to the office of President was contrary to the Constitution.

Adams' opinion of him is summed up in diary entry made on the day of Harrison's death:

Tyler is a political sectarian of the slave-driving, Virginian, Jeffersonian school, principled against all improvement, with all the interests and passions and vices of slavery rooted in his moral and political constitution--with talents not above mediocrity, and a spirit incapable of expansion to the dimensions of the station upon which he has been cast by the hand of Providence. . . . This day was in every sense gloomy. 24