LECTURE XI.

OF CONGRESS.

THE power of making laws is the supreme power in a state, and the department in which it resides will naturally have such a preponderance in the political system, and act with such mighty force upon the public mind, that the line of separation between that and the other branches of the government ought to be marked very distinctly, and with the most careful precision.1

The Constitution of the United States has effected this purpose with great felicity of execution, and in a way well calculated to preserve the equal balance of the government and the harmony of its operations. It has not only made a general delegation of the legislative power to one branch of the government, of the executive to another, and of the judicial to the third, but it has specially defined the general powers and duties of each of those departments. (x) This is essential to peace and safety in any gov-

1 Mauran v. Smith, 8 R. I. 192, 217; [Kilbourn v. Thompson, 103 U. S. 168, 190 et seq.;] post, 322, n. 1. See also post, 296, n. 1; 221, n. 1; 323, n. 1. "According to the traditional theory, as it exists in all the books, the goodness of our constitution consists in the entire separation of the legislative and executive authorities; but in truth its merit consists in their singular approximation. The connecting link is the cabinet. By that new word we mean a committee of the legislative body selected to be the executive body.... As a rule, the nominal prime minister is

chosen by the legislature; and the real prime minister for most purposes — the leader of the House of Commons — almost without exception is so." Bagehot on the English Constitution, London, 1867, No. i. p. 12. "Living across the Atlantic, and misled by accepted doctrines, the acute framers of the Federal Constitution, even after the keenest attention, did not perceive the Prime Minister to be the principal executive of the British Constitution, and the sovereign a cog in the mechanism." Ib. No. iv. p. 84.

(x) The duties of the executive, legislative, and judicial departments of the government are constitutionally distinct,

and one of them cannot lawfully infringe upon the province of another. Thus the action of the Secretary of the Treasury in

eminent, and especially in one clothed only with specific powers for national purposes, and erected in the midst of numerous state governments retaining the exclusive control of their local con-

remitting penalties cannot be revised by the courts. Macheca v. United States, 26 Fed. Rep. 845. So a Federal court cannot control the discretion of the postmaster general, under U. S. Rev. Stats., §§ 3929, 4041, to return registered letters which he deems sent to persons conducting a lottery and to forbid payment by postmasters of money orders to such persons. Enterprise S. Ass'n v. Zumstein, 64 Fed. Rep. 837. A statute (like 25 St. at L. 424, §§ 9, 10) enabling the Secretary of War to determine whether a bridge obstructs navigation, and if so, to require its alteration, is unconstitutional, being a delegation to that officer of powers exclusively vested in Congress. United States v. Rider, 50 Fed. Rep. 406; United States v. Keokuk & H. Bridge Co., 45 id. 178. So the system of improving a harbor lawfully adopted by Congress cannot be changed or impeded by the Federal courts. Wisconsin v. Duluth, 96 U. S. 379. Congress may constitutionally provide for the exclusion of a certain class of aliens by enacting that the decision of the inspectors of immigration against the right to land shall be final and conclusive unless appeal is taken to the superintendent of immigration, his action being further reviewable by the Secretary of the Treasury. Nishimura Ekiu v. United States, 142 U. S. 651; Fong Yue Ting v. United States, 149 U. S. 698.

Congress cannot impose upon the courts functions not judicial in their nature. See Reagan v. Farmers' Loan & T. Co., 154 U. S. 362; Interstate Commerce Commission v. Brimson, id. 447; Travellers' Ins. Co. v. Oswego, 59 Fed. Rep. 58. It cannot make the courts its instruments in conducting purely legislative investigations; a commission, like the Pacific Railway Commission, created by act of

Congress, is not a judicial tribunal and cannot determine the rights of the government or of the corporations whose affairs it is to investigate. In re Pacific Railway Commission, 12 Sawyer, 559. But Congress may grant to the inferior courts of the United States jurisdiction in cases where original jurisdiction is vested in the Supreme Court by the Constitution. Ames v. Kansas, 111 U. S. 449. And the appellate jurisdiction of the Supreme Court may be extended to include the judicial action of all inferior courts established by Congress. United States v. Coe, 155 U. S. 76. Suits against the United States in their own courts can only be authorized by Congress, and the courts cannot go beyond the letter of its consent when given. Schillinger v. United States, 155 U. S. 163.

When land is taken for public use under the right of eminent domain the President's approval of the price to be paid by the United States is not a judicial act. Shoemaker v. United States, 147 U. S. 282. The judiciary may in extradition proceedings review the action of the executive when an error has clearly been committed. Ex parte Brown, 28 Fed. Rep. 653. And Congress may, without infringing upon the appointing power, impose new duties, germane to the office, upon officers previously appointed. Shoemaker v. United States, 147 U. S. 282.

A statute which, as construed by the Supreme Court of a State, allows a railroad commission to establish final rates for railroads, without any inquiry or trial as to their reasonableness, and forbids the courts to control the commission if their rates are unjust and unreasonable, deprives the railroad corporations of their right to a judicial investigation by "due process of law." Chicago, M. & St. P. Ry. Co. v.

cerns. It will be the object of this lecture to review the legislative department; and I shall consider this great title in our national polity under the following heads: — (1.) The constituent parts of Congress, and the mode of their appointment. (2.) Their joint and separate powers and privileges. (3.) Their method of enacting laws, with the qualified negative of the President.

1. Of the Division into Two Houses. — By the Constitution, (a) all the legislative powers therein {222} granted are vested in a Congress, consisting of a Senate and House of Representatives.

The division of the legislature into two separate and independent branches is founded on such obvious principles of good policy, and is so strongly recommended by the unequivocal language of experience, that it has obtained the general approbation

(a) Art. 1, sec. 1.

Minnesota, 134 U. S. 418. Authority to fix reasonable and just rates for railroad transportation of freight and passengers is a power which the legislature may delegate to railroad commissioners. Storrs v. Pensacola & A. R. Co., 29 Fla. 617.

If a city charter makes the common council the judge of the election and qualifications of its own members, their determination that a certain person is elected, cannot properly be interfered with by an injunction or mandamus issued upon his opponent's application. Halloran v. Carter, 35 N. Y. State Rep. 884; S. C. 13 N. Y. Sup. 214.

The power to determine the advisability of extending city limits may be conferred by the legislature upon the courts. Callen v. Junction City, 43 Kansas, 627. But the extension by the legislature of city limits to include additional territory cannot be interfered with by the courts on the ground that the added territory will not be benefited. People v. Riverside, 70 Cal. 461. A State statute which empowers the Governor to remove police commissioners does not confer upon him judicial power. State v. Hawkins, 44

Ohio St. 98. The fixing of a State reporter's salary belongs to the legislature and should not be delegated to the courts. Smith v. Strother, 68 Cal. 98. So legislative power cannot be delegated to an insurance commissioner. Anderson v. Manchester F. A. Co. (Minn.), 63 N. W. Rep. 241. The legislature of a State cannot require its highest court to give written grounds for its decisions. Vaughn v. Harp, 49 Ark. 160; or burden the judiciary with new duties such as the preparation of the head notes for the reports. Griffin 11. State, 119 Ind. 520; nor can it, unless so empowered by the constitution of the State, curtail or regulate the inherent power of its courts to punish for contempt. Burke v. Territory (Okl.), 37 Pac. Rep. 829.

A court of equity is without jurisdiction to enjoin the Secretary of a State from issuing notices of election under a statute which the plaintiff claims to be unconstitutional, as this involves political and not civil rights. Such a court cannot protect the citizen's right to vote or to be voted for at an election. Fletcher v. Tuttle, 151 Ill. 41.

of the people of this country. One great object of this separation of the legislature into two houses, acting separately and with co-ordinate powers, is to destroy the evil effects of sudden and strong excitement, and of precipitate measures, springing from passion, caprice, prejudice, personal influence, and party intrigue, which have been found, by sad experience, to exercise a, potent and dangerous sway in single assemblies. A hasty decision is not so likely to proceed to the solemnities of a law, when it is to be arrested in its course, and made to undergo the deliberation, and probably the jealous and critical revision, of another and a rival body of men, sitting in a different place, and under better advantages to avoid the prepossessions and correct the errors of the other branch.1 The legislatures of Pennsylvania and Georgia consisted originally of a single house. The instability and passion which marked their proceedings were very visible at the time, and the subject of much public animadversion; and in the subsequent reform of their constitutions, the people were so sensible of this defect, and of the inconvenience they had suffered from it; that in both states a senate was introduced. No portion of the political history of mankind is more full of instructive lessons on this subject, or contains more striking proof of the faction, instability, and misery of states under the dominion of a single unchecked assembly, than that of the Italian republics of the middle ages, which arose in great numbers, and with dazzling but transient splendor, in the interval between the fall of the Western and the Eastern empire of the Romans. They were all alike ill-constituted, with a single unbalanced assembly. {223} They were alike miserable, and all ended in similar disgrace. (a)

Many speculative writers and theoretical politicians about the time of the commencement of the French revolution were struck with the simplicity of a legislature with a single assembly, and concluded that more than one house was useless and expensive. This led the elder President Adams to write and publish his great

(a) Adams's Defence of the American Constitutions, iii. 502.

1 Laboulaye, Histoire des États-Unis, ii. Douzième Leçon, 288. Contra, Mill on Representative Government, c. 13. "The evil of two co-equal houses of distinct natures is obvious. Each house can

stop all legislation, and yet some legislation may be necessary." Bagehot on the English Constitution, No. v. p. 127. See also ib. 137, and Pomeroy, Const. Law, § 188 et seq.

work, entitled, "A Defence of the Constitutions of Government of the United States," in which he vindicates, with much learning and ability, the value and necessity of the division of the legislature into two branches, and of the distribution of the different powers of the government into distinct departments. He reviewed the history, and examined the construction of all mixed and free governments which had ever existed, from the earliest records of time, in order to deduce, with more certainty and force, his great practical truth, that single assemblies, without check or balance, or a government with all authority collected into one centre, according to the notion of M. Turgot, were visionary, violent, intriguing, corrupt, and tyrannical dominations of majorities over minorities, and uniformly and rapidly terminated their career in a profligate despotism.

This visionary notion of a single house of the legislature was carried into the constitution which the French National Assembly adopted in 1791. The very nature of things, said the intemperate and crude politicians of that assembly, was adverse to every division of the legislative body; and that as the nation which was represented was one, so the representative body ought to be one also. The will of the nation was indivisible, and so ought to be the voice which pronounced it. If there were two chambers, with a veto upon the acts of each other, in some cases they would be reduced to perfect inaction. By such reasoning, the National Assembly of France, consisting of upwards of one thousand members, {224} after a short and tumultuous debate, almost unanimously voted to reject the proposition of an upper house. (a) The same false and vicious principle continued for some time longer to prevail with the theorists of that country; and a single house was likewise established in the plan of government published by the French convention in 1793. The instability and violent measures of that convention, which continued for some years to fill all Europe with astonishment and horror, tended to display, in a most forcible and affecting light, the miseries of a single unchecked body of men, clothed with all the legislative powers of the state. It is very possible that the French nation might have been hurried into the excesses of a revolution, even under a better organization of their government; but if the proposition of M. Lally Tolendal, to constitute a senate or upper (a) New Ann. Reg. for 1791. Hist. 49.

house, to be composed of members chosen for life, had prevailed, the constitution would have had much more stability, and would probably have been much better able to preserve the nation in order and tranquillity. Their own sufferings taught the French people to listen to that oracle of wisdom, the experience of other countries and ages, and which for some years they had utterly disregarded, amidst the hurry and the violence of those passions by which they were inflamed. No people, said M. Boissy d'Anglas, in 1795, can testify to the world with more truth and sincerity than Frenchmen can do, the dangers inherent in a single legislative assembly, and the point to which factions may mislead an assembly without reins or counterpoise. We accordingly find that in the next constitution, in 1795, there was a division of the legislature, and a council of ancients was introduced, to give stability and moderation to the government; and this idea of two houses was never afterwards abandoned.

2. Of the Senate. — The Senate of the United States is composed (b) of two senators from each state, chosen by the legislature thereof, {225} for six years, and each senator has one vote. (x) If vacancies in the Senate happen by resignation, or otherwise, during the recess of the legislature of any State, the executive thereof may make temporary appointments, until the next meeting of the legislature, which shall then fill such vacancies. (a) The Senate at present consists of sixty members, representing the thirty states of the Union. (b) In this part of the Constitution we readily perceive the features of the old confederation. Each state has its equal voice and equal weight in

(b) Art. 1, sec. 3.

(a) It was settled by the Senate of the United States, in the case of Landman, in 1825, that the state executive could not make an appointment in the recess of the state legislature, in anticipation of an approaching vacancy. He must wait until the vacancy has actually occurred before he can constitutionally appoint.

(b) In 1840, it was enlarged from 48 to 52 members, by the admission of Michigan and Arkansas as states into the Union, in 1836, vide infra, 384, and subsequently to 60 members, by the admission of Iowa, Florida, Wisconsin, and Texas as states into the Union, vide infra, 384. The members of the English House of Lords are about 460 in number.

the Senate, without any regard to disparity of population, wealth, or dimensions. This arrangement must have been the result of that spirit of amity and mutual concession which was rendered indispensable by the peculiarity of our political condition. It is grounded on the idea of sovereignty in the states; and every independent community, as we have already seen, is equal by the law of nations, and has a perfect right to dictate its own terms, before it enters into a social compact. On the principle of consolidation of the states, this organization would have been inadmissible, for in that case each state would have been merged in one single and entire government. At the time the articles of confederation were preparing, it was attempted to allow the states an influence and power in Congress in a ratio to their numbers and wealth; but the idea of separate and independent states was at that day so strongly cherished, that the proposition met with no success. (c)

The election of the Senate by the state legislatures is also a recognition of their separate and independent existence, and renders them absolutely essential to the operation of the national government. (d) There were difficulties, some years ago, as to the true construction of the Constitution in the choice of senators. They were to be chosen by the legislatures, and the legislature was to prescribe the times, places, and manner of holding elections for senators, and Congress are authorized to make and alter such regulations, except as to the place. (e) As the legislature may prescribe the manner, it has been considered and settled, in New York, that the legislature may prescribe that they shall be chosen {226} by joint vote or ballot of the two houses, in case the two houses cannot separately concur in a choice, and then the weight of the Senate is dissipated and lost in the more numerous vote of the Assembly. This construction has become too convenient, and has been too long settled by the recognition of senators so elected, to be now disturbed; though I should think, if the question was a new one, that when the Constitution directed that the senators should be chosen by the legislature, it meant not the members of the legislature per capita, but the legis-

(c) Journals of Congress, iii. 416.

(d) It gives to the state governments, says the Federalist, No. 62, such an agency in the formation of the federal government as must secure their authority. (e) Art. 1, sec. 4.

(x) The choice of a senator for a full term belongs to the latest legislature that can perform the duty. Opinion of the Court, 60 N. H. 585. The Secretary of State or Supreme Court of a State cannot

pass upon the election of a United States senator by the legislature or his appointment by the State executive. State v. Crawford, 28 Fla. 441.

lature in the true technical sense, being the two houses acting in their separate and organized capacities, with the ordinary constitutional right of negative on each other's proceedings. This was a contemporary exposition of the clause in question, and was particularly maintained in the well-known letters of the Federal Farmer, (a) who surveyed the Constitution with a jealous and scrutinizing eye.

The small number and long duration of the Senate were intended to render them a safeguard against the influence of those paroxysms of heat and passion which prevail occasionally in the most enlightened communities, and enter into the deliberation of popular assemblies. In this point of view, a firm and independent Senate is justly regarded as an anchor of safety amidst the storms of political faction; and for want of such a stable body, the republics of Athens and Florence were overturned by the fury of commotions, which the Senates of Sparta, Carthage, and Rome might have been able to withstand. The characteristical qualities of the Senate, in the intendment of the Constitution, are wisdom and stability. The legal presumption is, that the Senate will entertain more enlarged views of public policy, will feel a higher and juster sense of national character, and a greater regard for stability in the administration of the government. These qualities, it is true, may, in most cases, be equally found in the other branch of the legislature, but {227} the constitutional structure of the House is not equally calculated to produce them; for, as the House of Representatives comes more immediately from the people, and the members hold their seats for a much shorter time, they are presumed to partake, with a quicker sensibility, of the prevailing temper and irritable disposition of the times, and to be in much more danger of adopting measures with precipitation, and of changing them with levity. A mutable legislation is attended with a formidable train of mischiefs to the community. It weakens the force and increases the intricacy of the laws, hurts credit, lessens the value of property, and it is an infirmity very incident to republican establishments, and has been a constant source of anxiety and concern to their most enlightened admirers. (a) A disposition to multiply and change laws, upon the spur of the occasion, and to be making constant and restless experiments with the statute code, seems to be the natural

(a) Letter 12. (a) Federalist, ii. No. 62.

disease of popular assemblies. In order, therefore, to counteract such a dangerous propensity, and to maintain a due portion of confidence in the government, and to insure its safety and character at home and abroad, it is requisite that another body of men, coming likewise from the people, and equally responsible for their conduct, but resting on a more permanent basis, and constituted with stronger inducements to moderation in debate and to tenacity of purpose, should be placed as a check upon the intemperance of the more popular department. (b)1 (x)

The Senate has been, from the first formation of the government, divided into three classes; and the rotation of the classes was originally determined by lot, and the seats of one class are vacated at the expiration of the second year, and one third of the Senate are chosen every second year. (c) This provision was borrowed from a similar one in some of the state constitutions, of which Virginia gave the first example; and it is admirably

(b) The Constitution of Rhode Island, which was organized and went into operation in 1843, has constituted the Senate of that state upon conservative principles, while the House of Representatives is constructed upon the basis of population, giving to each city and town a representation in a ratio to its number of inhabitants. The Senate is composed of only one member from each city or town, so that the legislative power cannot be wielded by overwhelming numbers in a few great manufacturing towns or cities, to the oppression of the agricultural towns. It is a salutary and provident check to the tyranny of majorities over minorities.

(c) Constitution of the United States, art. 1, sec. 3.

1 See 4 Am. Law Rev. 18.

(x) Sir Henry S. Maine, in his "Popular Government" says (p. 179, 248): "There appears to me to be no escaping from the fact that all such institutions as a Senate, a House of Peers, or a Second Chamber, are founded on a denial or a doubt of the proposition that the voice of the people is the voice of God.... It is not to be expected that all the hopes of the founders of the American Constitution would be fulfilled. They do not seem to have been prepared for the rapid development of party, chiefly under the influence of Thomas Jefferson, nor for the thorough organization with which the American parties before long provided themselves."

In England, the legislative functions

of the House of Lords have undergone many changes since the days of the Curia Regis. Yet there are some matters in relation to which exclusive powers are claimed by the House of Lords alone, or by the House of Commons. Thus, bills affecting the rights of the peerage are, it seems, to be first introduced into the House of Lords, and may be rejected but not amended in the House of Commons. So bills for restitution in blood, after corruption, and for restitution of honors, bills of attainder, and bills of pains and penalties have usually been first introduced into the House of Lords. See Pike's Constitutional History of the House of Lords, pp. 310, 335.

calculated, on the one hand, to infuse {228} into the Senate, biennially, renewed public confidence and vigor; and, on the other, to retain a large portion of experienced members, duly initiated into the general principles of national policy, and the forms and course of business in the House. The Vice-President of the United States is President of the Senate, but has no vote, unless they be equally divided. (a) It would seem to be the better opinion, that he has authority as presiding officer, virtute officii, and without any special delegation of power by the Senate, to preserve order; but from some scruples on that subject, the Senate, in 1828, established by rule that every question of order should be decided by the President of the Senate without debate, subject to an appeal to the Senate. (b)

The superior weight and delicacy of the trust confided to the Senate, and which will be shown more fully hereafter, is a reason why the Constitution (c) requires, not only that the senators should be chosen for six years, but that each senator should be thirty years of age, and nine years a citizen of the United States, and, at the time of his election, an inhabitant of the state for which he is chosen.1 The same age was also requisite for a Roman senator, though in their executive offices no qualification of age was required. Ne ætas quidem distinguebatur quin prima juventa consulatum ac dictaturas inirent. (d) It has been also deemed fit and proper, in a country which was colonized originally from several parts of Europe, and has been disposed to adopt the most liberal policy towards the rest of mankind, that a period of citizenship, sufficient to create an attachment to our government, and a knowledge of its principles, should render an emigrant eligible to office. The English policy is not quite so enlarged. No alien-born can become a member of Parliament. This disability was imposed by the act of settlement of 12 Wm. III. c. 2; and no bill of naturalization can be received in either House of Parliament, without such disabling clause in it.

(a) Art. 1, sec. 3. (b) Story, Comm. ii. 212, 213 [§ 740]. (c) Art. 1, sec. 3. (d) Tac. Ann. lib. 11, 22.

1 For further qualifications, as to participation in the late rebellion, see the fourteenth amendment of the Constitution, § 3. The question mentioned in

note (f) is discussed, and the precedents collected in an article in 3 American Law Review, 410.

3. Of the House of Representatives. — The House of Representatives is composed of members chosen every second year by the people of the several states, who are qualified electors of the most numerous branch of the legislature of the state to which they belong. The legislature of each state prescribes the times, places, and manner of holding elections for representatives, but Congress may, at any time, by law, make or alter such regulations. (e) (x) No person can be a representative until he has attained the age of twenty-five years, and has been seven years a citizen of the United States, and is, at the time of his election, an inhabitant of the state in which he is chosen. (f)

{229} The qualifications of electors of the assembly, or most numerous branch of the legislature, in the several state governments, generally are, that they be of the age of twenty -

(e) Art. 1, sec. 4.

(f) Art. 1, sec. 2. The question whether the individual states can superadd to, or vary the qualifications prescribed to the representative by the Constitution of the United States, is examined in Mr. Justice Story's Commentaries on the Constitution, ii. 99-103. But the objections to the existence of any such power appear to me to be too palpable and weighty to admit of any discussion. [3 Am. Law Rev. 410].

(x) The Act of Feb. 7, 1891 (26 St. at L. 735) provided for the apportionment of representatives among the States, to take effect from Mar. 3, 1893, under the census of 1890. Although this act may have unjustly deprived, of the benefit of the re-apportionment, until the 52d Congress, a State entitled to increased representation, the question is political rather than judicial. State v. Boyd, 36 Neb. 181. The manner of returning testimony to be used in cases of contested elections for Congress is regulated by the act of Mar. 2, 1887, ch. 318 (24 St. at L. 445), amending Rev. Stats. § 127. As to ordering by a State legislature of a new election for a representative in Congress, see In re Representative Election, 17 R. I. 820; Re Congressional Election, 15 R. I. 654. A member of the house is prima facie entitled to his seat and salary when he receives his certificate of admission and is seated, though the seat is afterwards declared vacant. Page v. United States, 23 Ct. of Cl. 4;

127 U. S. 67. The governor and council of a State are not judges of the election of representatives in Congress. Justices' Opinion, 58 N. H. 621.

As Congress is not empowered to regulate the right of suffrage in the States, the changes made in the basis of suffrage by the Mississippi constitution of 1890 are not invalid because they violate the act of Congress of 1870 readmitting that State into the Union. Sproule v. Fredericks, 69 Miss. 898. Congress may require State officers of elections to perform the duties defined by State laws as to Congressional elections, and make a failure in this regard an offence against the United States. In re Coy, 31 Fed. Rep. 794. Congress may enact laws to protect all voters in national elections. The Ku-Klux Cases, 110 U. S. 651. The Federal courts have no jurisdiction of an offence against election laws which does not affect the election of a member of Congress. United States v. Morrissey, 32 Fed. Rep. 147.

one years and upwards, and free resident male citizens of the state in which they vote; and, in some of the states, they are required to possess property, and in the most of them to be white, as well as free citizens.1 The description is, almost everywhere, so large as to include all persons who are of competent discretion, and are interested in the welfare of the government, and liable to bear any of its duties or burdens. The House of Representatives may, therefore, very fairly be said to represent the whole body of the American people. (a) Some of the state

(a) In almost all the states, no property qualification whatever, not even paying taxes, or serving in the militia, or being assessed for and working on the public highway, is requisite for the exercise of the right of suffrage. Every free male (and in a majority of the states) white citizen of the age of twenty-one years, and who shall have been a resident for some short given period, varying in those states from two years to three months, is entitled to vote. In Illinois, it has been adjudged that the word inhabitant, in the constitution of the state, means all persons who have a fixed permanent residence bona fide, and not one casual or temporary, and that a residence of six months entitles every inhabitant to vote; that under the ordinance of 1787, and the constitution of the state, and the statutes of 1819, 1821, 1823, 1829, and 1833, aliens, being residents, are entitled to vote, though the distinction between citizens and inhabitants is sustained for various other purposes; and that it belongs to the states respectively to prescribe the qualifications of persons entitled to exercise the right of suffrage, not only as to state, but to congressional elections. Spragins v. Houghton, 2 Scammon, 377. This latitudinary extension of the right of suffrage to aliens seems to be peculiar to some of the states formed out of the Northwestern Territory, under the ordinance of the Confederation Congress in 1787. The State of Michigan adopted it; so has Wisconsin, by her constitution in 1846; but in Ohio, by the act of 1831, the right of suffrage is restricted to natural-born and naturalized citizens, and so I think it ought to be in all sound policy; and the view taken of the subject in the above case, by one of the counsel who argued the cause, is a masterly argument. In the states of Massachusetts, constitution Pennsylvania, Delaware, Georgia (the words of the constitution of Georgia are, that the electors shall "have paid all taxes which may have been required of them, and which they may have had an opportunity of paying, agreeably to law, for the year preceding the election"), Ohio, and Louisiana, the elector is required, in addition to age and residence, to have been assessed and paid, or, in Ohio, charged with a state or county tax, or, in Connecticut, to have served in the militia. The revised constitution of Pennsylvania, in 1838, requires the elector to have resided one year in the state, and ten days in the district, immediately preceding the election, and having within two years, if of twenty-two years of age, paid constitutionessed ten days before the election. And in the amended constitution of Louisiana, in 1845, the qualification of having paid a tax is dropped, and the elector is only required to have been two years a citizen of the United States, or

constitutions have prescribed the same or higher qualifications as to property, in the elected than in the electors, and some of

resident in the state for two consecutive years next preceding the election, and the last year in the parish where he proposes to vote, and no person shall vote except in his own parish or election precinct. In Rhode Island, New Hampshire, Virginia, and North Carolina, a qualification as to property is still requisite. The Rhode Island charter of 1663 prescribed no regulation as to the right of suffrage. The power of admitting freemen was exercised by the general assembly, until they authorized the towns to admit freemen. In 1724 an act was passed by the general assembly, providing that no person should be admitted a freeman, unless he owned a freehold estate of a certain value, or was the eldest son of such a freeholder. Such has been the law ever since, and the requisite value of the estate is said to be $134. But the new constitution of Rhode Island, which went into operation in May, 1843, has established and defined the property qualification of electors, being native citizens, as to real estate, to be of the value of $134, over and above all incumbrances, and together with a previous residence and home in the state for one year, and of six months in the city or town in which he votes; or, without it, the elector must have had his residence and home in the state two years, and in the town or city in which he votes, six months next preceding the election, and his name must be registered in the city or town before the end of December preceding the election, and he must have paid a tax of $1, or been enrolled in the militia, and done military service or duty therein. No pauper shall be permitted to be registered or to vote. Naturalized citizens are required to have a freehold estate of the value before required; and no person can vote to impose a tax, or to expend money, in any town or city, unless he shall have paid a tax within the year preceding, upon property valued at least at $134. These provisions, together with that relating to the judicial tenure and compensation, mentioned infra, at p. 295, render the aspect of the constitution -->consticonstitutionil15 -->tate more wise and conservative than any other state constitution recently formed or amended. Indeed, that constitution seems to stand pre-eminent in value in the guards it introduces against one of the most alarming evils incident in large towns and cities to our democratical establishments. I mean the fraudulent abuse of the right of suffrage. The previous residence of the elector in the town or ward where he offers his vote, and his ascertained qualifications, ought to be defined and registered, as absolutely essential to the order and purity of elections. The legal provision on this subject in Massachusetts is valuable. Every citizen must have resided within the state one year, and within the town in which he may claim a right to vote, six months preceding the election. The selectmen of each town, ten days before the first Monday in March, and before the second Monday in November, annually, are to make out a correct list of all qualified voters for officers to be elected at those periods, and ten days before the election to cause their lists to be posted up in two public places in each town. The selectmen are also to meet in session within forty-eight hours next preceding the election, to receive evidence of the qualification of persons claiming to vote, and to correct the lists, and to meet for the like purpose for one hour on the day of election, and before the opening of it. The moderator at town meetings refuses, of course, to receive the votes of persons not on the list. Mass. R. S. pp. 63, 64. The constitution of the State of Florida, of 1839, contains a wholesome provision on this subject, in declaring that the legislature should, at its first session, provide for the registration of all the qualified electors in each county, and thereafter, from time to time, of all who may become such qualified electors, and that

1 See the fourteenth amendment of the Constitution. By the fifteenth amendment, the right of citizens of the United States to vote shall not be denied or

abridged by the United States or by any state on account of race, color, or previous condition of servitude.

them have required a religious test. But the Constitution of the United States requires no evidence of property in the represent-

every free white male qualified elector, when he offers to vote, must be a citizen, and have had his home, domicile, or permanent abode in the state for two years next preceding, and for the last six months in the county in which he offers to vote. The constitution of the State of Texas, of 1845, is quite latitudinary on the subject, and all white male citizens who have resided in the state one year, and six months iconstitutionct, county, city, or town, are entitled to vote. The constitution of Iowa, in 1846, goes much further, and gives the right of suffrage to every citizen who has resided in the state six months, and in the county thirty days. In Virginia, the elector must be either a freeholder or owner of a leasehold estate, or a householder, and have been assessed and paid taxes. In North Carolina, the electors of the Senate must be freeholders, as was the case formerly in New York, and the electors of the House constitutionust have paid public taxes, and none but freeholders can be members of either house of the legislature. In Georgia, the constitconstitution789 required a property qualification in the members of the legislature, over and above the amount requisite to discharge their debts; but this qualification was dropped in the amended constitution of 1798. In New Hampshire, a state senator must be seized of a freehold estate, in the state, in his own right, of the value of £200, and a state assemblyman must have an estate within his district, of the value of £100, one half thereof to be a freehold. Rhode Island and New Jersey were the only states in the Uniconstitutionght down their constitutions from 1776 triumphantly against every assault; but the former of those states changed its constitution in 1842, and the latter in 1844. The progress and impulse of popular opinion is rapidly destroying every constitutconstitution every conservative element, intended by the sages, who framed the earliest American constitutions, as safeguards against the abuses of popularconstitutionhus, in Massachusetts, by the constitution of 1780, a defined portion of real or personal property was requisite in an elector, and that qualification was dispensed with by the amended constitution of 1821. By the practice, under the charters constitution>constitutionand and Connecticut, a property qualification was requisite to constitute freemen and voters. Thconstitution still continued in Rhode Island, but done away with in Connecticut by their constitution in 1818. The New York constitution of 1777 required the electors of the Senate to be freeholders, and of the Assembly to be either freeholders, or to have rented a tenement of the yearly value of forty shillings. The amended constitution of 1821 reduced this qualification down to payment of a tax, or performance of militia duty, or assessment and work on the highways. But the constitution, as again amended in 1826, swept away all these impediments to universal suffrage. In the further Revised Constitution of New York, in 1846, art. 3, sec. 3, 5, the Senate is divided into 32 senator districts, and each district to choose one senator. So the members of assembly are to be divided into 128 assembly districts, and each district to choose one member. This appears to be a valuable improvement on the election of members of the legislature. To entitle a person to vote in the election districts, he must have been a citizen for ten days, and an inhabitant of the state constitutiont preceding the election, and for the last four months a resident of the county where he may offer to vote, and he must vote in the election district of which he shall be a resident at the time, and for thirty days next preceding the election. The constitution further provides, that, for the purpose of voting, no person should be deemed to have gained or lost a residence by reason of his presence or absence while employed in the service of the United States, nor while engaged in the navigation of

ative, nor any declaration of religious belief. He is only required to be a citizen of the competent age, and free from any undue bias or dependence, by not holding any office under the United States. (b) 2

the waters of the state, or of the United States, or of the high seas, nor while a student in any seminary of learning, nor while kept at any almshouse or other asylum at public expense, nor while confined in any public prison. Art. 2, sec. 1, 3. These provisions are very good, if duly and faithfully construed and observed. The constitution further adds, sec. 4, that laws shall be made for ascertaining, by proper proofs, the citizens who shall be entitled to the rigconstitutionge. There was the same as this last provision in the constitution of 1821, and the legislature in the year 1840 carried the constitutional provision into effect, according to its spirit and meaning, by the act entitled, "An act to prevent illegal voting in the city of New York, and to promote the convenience of legal voters," 63d sess. c. 78, by dividing the city into election districts, and providing for a registry of the legal voters in each district, to be made in each year, and the registry was made conclusive evidence of the right of persons so registered to vote. This act worked well, and was admirably calculated to prevent illegal voting and frauds in election, by which the right of suffrage in the city had been grossly perverted and abused. But the registry provision was repealed on the 28th February, 1842 (65th sess. c. 56), and the abuses, impositions, and frauds attending the city elections left to reassume their wonted mischiefs. The constitutional provision of 1846, as it stands, is therefore a delusive provision, unless wiser counsels prevail in future legislatures. In Maryland, by their constitution of 1776, electors were to be freeholders, or possessing property to £30; but by legislative amendments in 1801 and 1809 (and amendments are allowed to be made in that state by an ordinary statute, if confirmed by the next succeeding legislature), all property qualification was disregarded. The constitution ofconstitutionn 1776, required electors to be freeholders; but the constitution of 1830 rconstitutionthe property qualification to that of being the owner of a leasehold estate, or constitutionder. In Missconstitution