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, Connecticut, 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 a tax, assessed 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 of that state 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 in the district, 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 of Commons must have paid public taxes, and none but freeholders can be members of either house of the legislature. In Georgia, the constitution of 1789 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 Union that brought 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 constitutional check, every conservative element, intended by the sages, who framed the earliest American constitutions, as safeguards against the abuses of popular suffrage. Thus, 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 of Rhode Island and Connecticut, a property qualification was requisite to constitute freemen and voters. This test is 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 one year next 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 right of suffrage. 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 of Virginia, in 1776, required electors to be freeholders; but the constitution of 1830 reduced down the property qualification to that of being the owner of a leasehold estate, or a householder. In Mississippi, by the constitution of 1817, electors were to have been enrolled in the militia, or paid taxes; but those impediments to universal suffrage were removed by the new constitution of 1833. So the freehold qualification, requisite, in certain cases, by the constitution of Tennessee of 1796, is entirely discontinued by the constitution of 1835. All the states and constitutions, formed since 1800, have omitted to require any property qualifications in an elector, except what may be implied in the requisition of having paid a state or county tax; and even that is not in the constitutions more recently formed or amended, except in the Rhode Island constitution of 1843. In some of the states, as in New Hampshire, for instance, a property qualification is still required in the elected, as governor or as members of the two houses of the legislature. Such a rapid course of destruction of the former constitutional checks (and of which further examples are hereafter noticed, vide infra, 295, note) is matter for grave reflection; and to counteract the dangerous tendency of such com-

(b) Art. 1, sec. 6. [See the fourteenth amendment of the Constitution.]

2 By the fifteenth amendment, the right of citizens of the United States to Tote shall not be denied or abridged by

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

The term for which a representative is to serve ought not to be so short as to prevent him from obtaining a comprehensive acquaintance with the business to which he is deputed; nor so long as to make him forget the transitory nature of his seat, and his state of dependence on the approbation of his constituents. It ought also to be considered as a fact deeply interesting to the character and utility of representative republics, that very frequent elections have a tendency to render the office less important than it ought to be deemed, and the people inattentive in the exercise of their right, or else to nourish restlessness, instability, and factions; whilst, on the other hand, long intervals between the elections are apt to make them produce too much excitement, and consequently to render the periods of their {230} return a time of too much competition and conflict for the public tranquillity. The Constitution has certainly not deviated in this respect to the latter extreme in the establishment of biennial elections. It has probably selected a medium, which, considering the situation and extent of our country, combines as many advantages, and avoids as many inconveniences, as any other term which might have been inserted.

The representatives are directed to be apportioned among the states, according to numbers, which is determined by adding to the whole number of free persons, including those bound to service for a term of years, and exclusive of Indians not taxed, three fifths of all other persons. (a)1 The number of representatives cannot exceed one for every thirty thousand, but each state is entitled to have at least one representative. The actual enumeration or census of the inhabitants of the United States is to be made every ten years, and the representatives newly apportioned upon the same, under a new ratio, according to the relative increase of the population of the states. (b) The number fixed by the Constitution in the first instance, and until a census was

bined forces as universal suffrage, frequent elections, all offices for short periods, all officers elective, and an unchecked press; and to prevent them from racking and destroying our political machines, the people must have a larger share than usual of that wisdom which is first pure, then peaceable, gentle, and easy to be entreated. (a) Art. 1, sec. 2. (b) Art. 1, sec. 2.

1 By the fourteenth amendment, representatives shall be apportioned among the several states according to their respective

numbers, counting the whole number of persons in each state, excluding Indians not taxed; but when, &c.

taken, was sixty-five members. The apportionment under the fourth census, by the act of Congress of 7th March, 1822, was to a ratio of one representative for every forty thousand persons in each state, and it made the whole number of representatives amount to two hundred and thirteen members. Under the fifth census, completed in 1831, and which made the population of the United States amount to twelve million eight hundred and fifty-six thousand persons, the ratio of representation was enlarged to one representative for every forty-seven thousand and seven hundred persons, making, in the whole, two hundred and forty members. (c) The rule of apportionment of the representatives among the several states according to numbers has been attended with great difficulties in the application, because the relative numbers in each state do not, and never will, bear such an exact proportion to the aggregate that a common divisor for all will leave no fraction in any state. Every decennial apportionment

(c) Act of Congress, May 22, 1832, c. 91. In 1836 the territories of Michigan and Arkansas were admitted as states into the Union. Vide infra, 384. And in 1845 the territories of Iowa and Florida were also admitted as states. Vide infra, 384. And in 1846 the territory of Wisconsin, and in 1845 the Republic of Texas. Id. By the 6th census, completed in 1841, the number of persons in the United States was 17,069,453. making an increase, over the census of 1830, of 4,202,646 inhabitants, and showing a gain in a ratio exceeding 32½ per cent for the last ten years; and by the act of Congress of June 25, 1842, c. 47, the ratio of representation was enlarged to one representative for every 70,680 persons in each state, and one additional representative for each state having a greater fraction than one moiety of the said ratio. This ratio reduced the number of the members of the House of Representatives, after the 3d March, 1843, to 223 members, besides a delegate from the three territories then existing. By this reduction, and with the addition of members from the new states, the House of Representatives consisted, on the 1st January, 1847, of 230 members, and representation by delegates of certain territories had ceased. The act of Congress last mentioned also prescribed that the number of representatives in each state, under the apportionment, should be elected by districts composed of contiguous territory, equal in number to the number of representatives to which the state should be entitled; and that no one district should elect more than one representative. This direction was authorized by the provision in the Constitution (art. 1, sec. 4), that "the times, places, and manner of holding elections for senators or representatives shall be prescribed in each state by the legislature thereof; but the Congress may at any time, by law, make or alter such regulations, except as to the place of choosing senators." The election of members of Congress by districts had been heretofore adopted in some of the states, and not in others. Uniformity on this subject was desirable, and the measure itself was recommended by the wisdom and justice of giving, as far as possible, to the local subdivisions of the people of each state a due influence in the choice of representatives, so as not to leave the aggregate minority of the people in a state, though approaching perhaps to a majority, to be wholly overpowered by the combined action of the numerical majority, without any voice whatever in the national councils.

has raised and agitated the embarrassing question. As an absolute, exact, relative equality is impossible, the principle which has ultimately prevailed is the principle of approximation, by making the apportionment among the several states according to their numbers, as near as may be. This is done by allowing to every state a member for every fraction of its numbers, exceeding a moiety of the ratio, and rejecting all representations of fractions less than a moiety. (d)

The rule of apportionment established by the Constitution is exposed to the objection that three fifths of the slaves in the southern states are computed in establishing the apportionment of the representation. But this article was the result of necessity, and grew out of the fact of the existence {231} of domestic slavery in a portion of our country.1 The evil has been of too long standing, and is too extensive and too deeply rooted, to be speedily eradicated, or even to be discussed without great judgment and discretion. But the same rule which apportions the representatives extends to direct taxes; and the slaves in the southern states, while they give those states an increased number of representatives, contribute, on the other hand, when that mode of taxation is resorted to, equally to increase the measure of their contributions. (a)

The number of the House of Representatives would seem to be quite large enough, on its present computation; and, unless the ratio be hereafter enlarged from time to time, as the exigency may require, the House would be in danger of increasing too rapidly, and would probably become, in time, much too un-

(d) See Story, Comm. on the Constitution, ii. pp. 141-171, where the subject is fully examined, and the opinion of Mr. Jefferson on the one side, and Mr. Webster's report in the Senate, in April, 1832, on the other, are given at large. These documents contain the substance of the arguments for and against the principle of apportionment as adopted and settled by Congress. The same difficulty arose in the legislature of New York, in 1791, on the apportionment of the state representation, according to the census then recently taken, and the same principle of approximation was adopted; and the author of this note was then one of the members of the House of Assembly who concurred in that rule. (Journal of the Assembly of New York for 1791, 26.) But the constitution of New York gave greater facility to such a rule, for it directed the senators in each district to be apportioned according to the number of the qualified electors, as near as may be; and this is the manner in which the amended constitution of 1822 expresses itself on the subject.

(a) Federalist, ii. No. 54.

1Ante, 195, n. 1; 230, n. 1.

wieldy a body for convenience of debate and joint consultation. A due acquaintance with the local interests of every part of the Union ought to be carried into the House, and a sufficient number collected, for all the purposes of information, discussion, and diffusive sympathy with the wants and wishes of the people. When these objects are obtained, any further increase neither promotes deliberation, nor increases the public safety. All numerous bodies of men, although selected with the greatest care, are too much swayed by passion, and too impatient of protracted deliberation.

The United States, in their improvements upon the exercise of the right of representation, may, as we apprehend, claim preeminence over all other governments, ancient and modern. Our elections are held at stated seasons, established by law. The people generally vote by ballot, in small districts, and public officers preside over the elections, receive the votes, and maintain order and fairness. (b) Though the competition between candidates is active, and the zeal {232} of rival parties sufficiently excited, the elections are everywhere conducted with tranquillity. The legislature of each state prescribes the times, places, and manner of holding elections, subject, however, to the interference and control of Congress, which is permitted them for the sake of their own preservation, and which, it is to be presumed, they will not be disposed to exercise, except when any state shall neglect or refuse to make adequate provision for the purpose. The privilege of voting, as we have already seen, is conferred upon all persons who are of sufficient competency by their age, and of sufficient ability to take care of themselves. The ancient Greeks and Romans had not only very imperfect notions of the value of representation, but the number and power of their popular assemblies were so great, and they were so liable to disorder, as to render it a very provident measure with them, to be guarded in diffusing the privileges of free citizens. Not a tenth part of the people of Athens were admitted

(b) Voting by ballot was introduced in the province of Massachusetts in 1634. In New York, the people voted viva voce, until after the Revolution, and then voting by ballot was constitutionally established. Elections in Virginia and Kentucky are still viva voce, and not by ballot, and this provision is established by the existing constitutions of those states. In Georgia, also, by the constitution of 1790, all elections by the people were by votes viva voce; but the legislature might otherwise direct; and they have since declared all elections to be by ballot.

to the privilege of voting in the assemblies of the people; and, indeed, nine tenths of the inhabitants throughout all Greece were slaves. (a) In Sparta, the number of votes was fixed at ten thousand. In Rome, this privilege was for many ages confined to the Pomœria of the city, (b) and it continued to be so con-

(a) Mitford's Greece, i. 354, 357. In the treatise of G. F. Schömann, a profound German scholar, De Comitiis Atheniensium, published in Latin in 1819, and translated into English, at Cambridge, in England, in 1838, the democratical government of Athens is discussed with masterly erudition. He states that during the vigor of the Athenian democracy, every citizen of the age of eighteen had a right to hold offices, and to give a vote at the assemblies of the people. That the most crowded assemblies rarely exceeded 8,000, though Attica contained 20,000 citizens; pp. 65, 69, 128. That all were reckoned citizens whose parents were both such; p. 66. To assume unlawfully the rights of a citizen, was punished by being sold into slavery; p. 74. The assemblies of the people were convened by magistrates (Prytanes and Strategi), and the chairmen or presidents (Prytanes and Proedri) presided at them, and proposed the subjects to be discussed, and had the bills, which had been previously prepared and sanctioned by the senate (for the fundamental law allowed none others to be considered), recited, and gave permission to the orators to speak, though the liberty of addressing the people on the subject from the Berna was open to all. The chairman also put the question to vote, whether to adopt or reject the proposition. The assembly had the right to vary or alter it; pp. 53, 81, 90, 101, 104, 107, 130, 245. The people generally voted by show of hands, and sometimes by ballot; p. 127. They voted by tribes (of which there were ten), but a majority of the whole assembly, collectively, decided.

The structure and history of the Athenian democracy has much to warn, and very little to console, the friends of freedom. From the incurable defect, among others, of assembling the people to make laws in masses, and not by representation, and from the want of a due and well-defined separation of the powers of government into distinct departments, that celebrated republic became violent and profligate in its career, and ended in despotism and slavery. The general assemblies of the people, without any adequate checks, assumed and exercised all the supreme powers of the state, legislative, executive, and judicial.

(b) Thirty-five tribes voted in the comitia held in the city of Rome; but the city tribes (Plebs urbana) consisted only of four within the walls of the city, and the Liberti were inscribed in the city tribes. The other thirty-one tribes were rural tribes, who occupied the lands for a considerable district of country around the city, and they were the ruling and influential body. See Lond. Q. Review, No. 112, for June, 1836, the Review of Professor Drumau's History of Rome. But the Roman slaves were not represented, and Rome exercised the right of absolute sovereignty over the dominions of its auxiliaries. The Roman citizens, who exclusively exercised as voters the powers of government, bore, therefore, a very small proportion in numbers to the gross amount of the inhabitants. The Roman mode of passing laws, and voting in their comitia, was orderly, and under great checks, during the best periods of the government. When a law was proposed and discussed, and the religious rites duly performed, and no intercession made, the people proceeded to vote, and every citizen was ordered to repair to his century. The method of voting was originally viva voce, but after the year of the city 614, it was by ballot by the leges tabellariæ, which applied

fined, and to be tolerable in its operations, until the memorable social war {233} extended it to all the inhabitants of Italy, south of the Rubicon and the Arnus. As no test of property or character was required, and as the people assembled within the walls of Rome in immense masses, and not merely to vote, but to make laws, this great innovation produced the utmost anarchy and corruption, and has justly been regarded as precipitating the fall of that commonwealth. (a)

The English nation, in common with the other feudal governments of Europe, anciently enjoyed the blessings of popular representation, and the knights, citizens, and burgesses were intended to represent the farmers, merchants, and manufacturers, being the several orders and classes of people of which the nation was composed. (b) But the mutations of time and commerce, in

equally to the election of magistrates, to public trials, and to making and repealing laws. The people were made to pass in order over some narrow planks, called pontes, into the septa, or enclosures, where certain officers delivered to every voter two tablets, one for and one against the proposition, and each person threw into a chest which of them he pleased, and they were pointed off, and the greatest number of points, either way, determined the sense of the century, and the greatest number of centuries passed for the voice of the whole people, who either passed or rejected the law. See Heineccius, Antiquit. Rom. Jur. lib. 1, tit. 2, sec. 3-11, Opera, iv., where the ancient learning on the subject is collected. And see Hooke's Rom. Hist. b. 1, c. 7, sec. 4, note. Cicero condemned the secret vote by ballot, as being a cover for corrupt and hypocritical votes. His object was to obtain or measure the moral value of the votes by a consideration of the persons who gave them. Cic. de Legibus, b. 3. Mr. Barnham, the translator of Cicero's treatises, De Republica and De Legibus, in his note to b. 3, De Legibus, learnedly discusses the superior value and safety of open voting by poll; but the orderly and specific mode of voting by ballot seems to render the latter preferable in that point of view. [See as to notes (a) and (b) Fustel de Coulanges, La Cité Antique.]

(a) Montesquieu's Esprit des Lois, i. lib. 2, c. 2; Grand. et Decad. des Rom. c. 9. Augustus allowed the Decurions, or privileged citizens, in the provincial chartered cities in Italy, to vote at home for Roman magistrates, and to send in writing their ballots under seal to the polls at Rome. This, says Suetonius, was conferring upon them, in a degree, the privileges and dignity of Rome itself. Sueton. Aug. c. 46.

(b) 1 Black. Comm. 174; Millar on the English Constitution, b. 2, c. 6, sec. 1. In all the northern nations, says Turner, in his learned History of England during the Middle Ages, i. 416, great councils were attached to the ruling chief, from their first emerging from the woods of Germany. The destruction of the Anglo-Saxon nobility, in their revolts against William the Conqueror, and the confiscation of their property among his Norman barons, had annihilated the members of their ancient witenagemotes, but did not terminate the institution. The Norman barons were as independent as the Saxon witena, and they surrounded the sovereign in a national council, as well after the conquest as before. But though the national councils, which were common to the Celtic and Teutonic tribes, may haw contained within them the germ of the English Parliament, yet the modern antiquarians generally conclude that the

depopulating ancient boroughs, and in establishing new cities and great manufacturing establishments, without any direct parliamentary representation, insensibly changed the structure of the House of Commons, and rendered it, in theory at least, a very inadequate and imperfect organ of the will of the nation. Archdeacon Paley observed, {234} many years ago, (a) that about one half of the Commons were elected by the people, and the other half came in by purchase, or by the nomination of single proprietors of great estates. So extremely unequal was the popular vote at elections in England, that less than seven thousand voters returned nearly one half of the House of Commons. (b)l But notwithstanding the great imperfection of the

Anglo-Saxon witenagemote had no representation of the ceorls, or inferior freemen. It consisted of the monarch, the aristocracy, and the clergy, with very little of the real liberty of deliberation and voting. Hallam on the Middle Ages, c. 8, pt. 1; Turner's Hist. of the Anglo-Saxons, iii.; Palgrave's Hist. of England, i.; Sir Wm. Betham's Dignities, Feudal and Parliamentary. The latter writer concludes, from a careful examination of an immense mass of ancient documents, that there existed no deliberative legislative assembly in England prior to the reign of Henry III. That was the era of the establishment of magna charta, which declared that no taxation (the three feudal aids excepted) was to be imposed but by Parliament, which was to consist of the higher clergy and nobility, and of the tenants in chief under the crown. This was the era of the introduction of popular representation in England, and of the establishment of the House of Commons in the time of Henry III. and Edward I. Lands held by feudal tenure were held on the condition of performing certain services; and being performed or rendered, the feudatory could not rightfully be assessed further without his consent. The royal towns obtained charters of privileges by which they were relieved from arbitrary taxation on paying or rendering the stipulated assessments. When the wants of the crown increased, and further aids were necessary, it was deemed expedient for the king and his council of peers to consult the wishes, and take the consent of the small country freeholders, and the inhabitants of the cities and boroughs; and knights, citizens, and burgesses were accordingly summoned to appear by representation in the great council or legislature under the feudal system. The first edict for the election of a representation of the commonalty of the realm of knights, citizens, and burgesses, from counties, cities, and boroughs, was issued under the usurpation of Simon Montfort, in the 49th of Hen. III. The great council of the nation had hitherto consisted of the prelates and barons, assisted by the officers of the state, and the judges. [See Stubbs's Select Charters, Clarendon Press, 1870. Freeman, Growth of the English Constitution].

(a) Moral Philosophy, 369, ed. 1786.

(b) In 1831, it was asserted, that out of six hundred and fifty-eight members, of which the English House of Commons consisted, the number of four hundred and eighty-seven were elected by one hundred and forty-four peers, and one hundred and twenty-three commoners. In 1832, the English House of Commons was reformed by three several statutes, passed to amend the representation of the people of England

1 See Essays on Reform (Macmillan & Co., 1867), App. 327.

constitution of the English House of Commons, if it were to be tested by the arithmetical accuracy of our own political standards, nevertheless, in all periods of English history, it felt strongly the vigor of the popular principle. While on the continent of Europe the degeneracy of the feudal system, the influence of the papal hierarchy, the political maxims of the imperial or civil law, and the force of standing armies, extinguished the bold and irregular freedom of the Gothic governments, and abolished the representation of the people, the English House of Commons continued to be the asylum of European liberty; and it maintained its station against all the violence of the Plantagenet line of princes, the haughty race of the Tudors, and the unceasing spirit of despotism in the house of Stuart. And when we take into consideration the admirable plan of their judicial polity, and those two distin-

and Wales, Scotland and Ireland. Under the first of these statutes, fifty-six English boroughs were totally disfranchised, and thirty boroughs were reduced each to the right of returning only one member. Twenty-two new boroughs were created, with a right to each of returning two members; and Manchester, Birmingham, Leeds, and Sheffield were among the towns invested with that privilege. Sixteen other new boroughs were created, with the right to each of returning one member. Thirty-four shires were subdivided in respect to members of Parliament, so as to give an increase of sixty-three knights. The qualifications of electors, consisting of freeholders, lessees, and copyholders, were altered, and the name of every voter required to be previously registered. The number of members of the reformed House of Commons consists in the aggregate of 658, the same number as before the reformed bill, viz. 417 members for England, 29 for Wales, 53 for Scotland, 105 for Ireland. By the Engglish Reform Act of 2 & 3 Wm. IV. c. 45, the qualifications of electors of the commons house of Parliament, for knights of the shires, were substantially as follows: That they must have a freehold or copyhold estate in possession, or as lessee or assignee in possession of the unexpired residue of a term of sixty years, of the clear yearly value in either case of not less than £10, above all rents and charges thereon; or of the unexpired residue in possession of a term of twenty years, of the clear yearly value of £50 above all rents and charges; or be a tenant in occupation of lands, liable to a yearly rent of £50. The elector must also have been duly registered, and, to be entitled to the registry, he must have been in the actual possession of the house, or of the rents and profits thereof, for six months previous to the last day of July in each year. The elector for citizens and burgesses must occupy, as owner or tenant, a house or building, either separately or jointly, with land within the borough, of the clear yearly value of £10, and rated to the poor-rate, and been duly registered, and a resident for six months previous to the last day of July in each year. The regulations respecting the registry and the revision of the lists are specific and minute, to guard more effectually against the destructive evil of fraudulent and spurious votes. No person is entitled to vote unless his name appears on the register of electors, and his qualifications cannot be questioned at the polls, except on three points: (1.) His identity with the person registered; (2.) as to having voted already at the election; (3.) that he continues to possess the registered qualification.

guished guardians of civil liberty, trial by jury and the freedom of the press, it is no longer a matter of astonishment that the nation, in full possession of those inestimable blessings, should enjoy greater security of person and property than ever was enjoyed in Athens or Sparta, Carthage or Rome, or in any of the commonwealths of Italy during the period of the middle ages.

I proceed next to consider the privileges and powers of the two houses of Congress, both aggregately and separately. The Congress is to assemble at least once in every year, and such meeting shall be on the first Monday in December, unless they

by law appoint a different day. (c)

4. Privileges of the Two Houses. — {235} Each house is made

the sole judge of the election return and qualifications of its members. (a)1 (w) The same power is vested in the British House of Commons, and in the legislatures of the several states; and there is no other body known to the Constitution, to which such a power might safely be trusted. It is requisite to preserve a pure and genuine representation, and to control the evils of irregular, corrupt, and tumultuous elections; and as each house acts in these cases in a judicial character, its decisions, like the decisions of any other court of justice, ought to be regulated by known principles of law, and strictly adhered to, for the sake of

(c) Art. 1, sec. 4.

(a) Art. 1, sec. 5. [See People v. Hall, 80 N. Y. 117, as to the effect of a power given to any other than a legislative body to be the judge of the election and qualifications of its members. — B.]

1 See the concurrent resolution of the

House of Representatives and Senate ap-

pointing a joint committee to report on

the right of the states which formed the

so-called Confederate States to be repre-

sented in either house, and the debate in

the Senate upon the same, December 12,

1865.

(w) A member of parliament, who does not believe in the existence of a Supreme Being, and upon whom an oath is binding only as a solemn promise, is incapable of taking the oath of allegiance prescribed by the English statutes. Att.-Gen. v. Bradlaugh, 14 Q. B. D. 667. The manner of holding an election for Congress may be regulated by a State legislature, but not qualifications. Stone v. Charlestown, 114 Mass. 227; 3 Am. Law Rev. 410.

The requirement, by a general State

statute, of notice of petitions before they are presented to the legislature, has been held to interfere unlawfully with the power of each house to regulate its own proceedings. Justices' Opinion, 63 N. H. 625. The qualification and election of the members of a Constitutional convention duly convened are questions belonging, it seems, exclusively to the convention and not subject to the action of the courts by prohibition or otherwise. See 49 Albany L. J. 384; 28 Am. L. Rev. 903.

uniformity and certainty. A majority of each house constitutes a quorum to do business, (x) but a smaller number may adjourn from day to day, and compel the attendance of absent members, in such manner and under such penalties as each house may provide. (b) Each house, likewise, determines the rules of its proceedings, and can punish its members for disorderly behavior; and, with the concurrence of two thirds, expel a member. (c) Each house is likewise bound to keep a journal of its proceedings, and from time to time publish such parts as do not require secrecy, and to enter the yeas and nays on the journal, on any question, when desired by one fifth of the members present. (d) Neither house, during the session of Congress, can, without the assent of the other, adjourn for more than three days, nor to any other place than that in which the two houses shall be sitting. (e) The members of both houses are likewise privileged from arrest during their attendance on Congress, and in going to and returning from the same, except in cases of treason, felony, and breach of the peace. (f) (y) These privileges of the two houses are obvi-

(b) In the English House of Commons forty members are requisite to form a quorum for business; but in 1833, the requisite number was reduced to twenty, so far as related to the morning sittings, appropriated to private business and petitions. The House of Lords may proceed to business if only three lords be present.

(c) The power of expulsion is in its nature discretionary, and its exercise of a more summary character than the power of judicial tribunals. Case of J. Smith, 1807. The cases are numerous in which members of the House of Commons in England have been called to account and punished by admonition, imprisonment, or expulsion, as the case might require, for offensive words or conduct before the House. May's Treatise on the Law of Parliament, 80.

(d) Art. 1, sec. 5. (e) Art. 1, sec. 5. (f) Art. 1, sec. 6. This privilege is confined to the members, and does not extend to their servants, and it applies as well to arrests on execution as to arrests on mesne

(x) If a quorum is present in the House, a bill may be passed by the votes of a majority of that quorum. United States v. Ballin, 144 U. S. 1. If the journal of the Federal house of representatives may properly be referred to, to ascertain whether a law was passed by a quorum or by sufficient votes, its correctness cannot be impeached by oral evidence. United States v. Ballin, 144 U. S. 1; see Somers v. State (S. D.), 58 N. W. Rep. 804; Field v. Clark, 143 U. S. 649, 661, note, 672; State v. Jones, 6 Wash. St. 452.

(y) In England, freedom from arrest, as a Parliamentary privilege, which was enjoyed by both Lords and Commons, never extended to criminal offences, and has been so reduced by legislation in civil actions as now to be of little value. See Pike's Constitutional History of the House of Lords, p. 259.

The exemption of a member of Congress from arrest when on his way to attend a session includes also the mere service of process, and is not lost by a slight deviation from the route or limited by the

ously necessary for their preservation and character; and what is still more important to the freedom of deliberation, no member can be questioned out of the house for any speech or debate therein. (g) 2 (z)

There is no power expressly given to either house of Congress to punish for contempts, except when committed

{236} by their own members; (x) but in the case of Anderson,

process. The arrest is illegal and void, and after the cessation of the privilege, the member may be arrested de novo for the same cause. If elected a member while in custody, on civil process of any kind, his privilege as a member operates to entitle him to his discharge during the continuance of the privilege. This is the English parliamentary law. May's Treatise, &c., 93, 97. But by several statutes in the reign of George III. (10 Geo. III., 45 Geo. III., 47 Geo. III.), privilege is no stay of proceedings in civil suits, down to judgment and execution, with the exception of personal arrest and imprisonment, nor does the privilege extend to commitments for contempts in courts of justice. Wellesley's Case and Charlton's Case, cited in May's Treatise, &c., 108, 109.

(g) Art. 1, sec. 6. The question whether a senator or member of the House of Representatives is liable to impeachment for conduct in his legislative capacity, is considered by Mr. Justice Story, in his Commentaries, ii. pp. 259-262; and the weight of authority, and the reason and policy of the thing, are decidedly in the negative, and in favor of the principle that members of Congress should be exempt from impeachment and punishment for acts done in their collective or congressional capacity. Though a member of Congress is not responsible out of Congress for words spoken there, though libellous upon individuals; yet if he causes his speech to be published, he may be punished as for a libel by action or indictment. This is the English and the just law. The cases of Lord Abingdon and of Creevy, 3 Esp. 228, 1 Maule & Sel. 276.

2 However it may be in case of the publication of a separate speech, it is now settled that faithful reports in the newspapers of parliamentary debates are privileged. Wason v. Walter, L. R. 4 Q. B. 73. But this decision professed to leave unshaken the determination in

shortest time required for the journey. Miner v. Markham, 28 Fed. Rep. 387; see Rhodes v. Walsh (Minn.), 23 L. R. A. 632, and note. Contra, as to the first point, Merritt v. Giddings, 4 MacArthur, 55.

An inhabitant of one State, going into another State voluntarily and solely to appear and testify before a joint committee of the legislature as to his claim against the State, is privileged from arrest

Stockdale v. Hansard, that an order of the House of Commons would not protect the publication of matter not otherwise privileged, for that would be allowing one branch of the legislature to change the law.

on civil process. Thompson's Case, 122 Mass. 428.

(z) Fair and accurate reports of the proceedings of bodies constituted by the legislature, such as county councils or a Council of Medical Education and Registration, are doubtless privileged. Allbutt v. General Council, 23 Q. B.C. 400, 412.

(x) See Stewart v. Blaine, 1 MacArthur, 453. A member of parliament is only liable to arrest for a contempt which, in its

who was committed by order of the House of Representatives, for a contempt of the House, and taken into custody by the sergeant-at-arms, an action of trespass was brought against the officer, and the question on the power of the House to commit for a contempt was carried by writ of error to the Supreme Court of the United States. (a) The court decided that the House had that power, and that it was an implied power, and of vital importance to the safety, character, and dignity of the House. The necessity of its existence and exercise was founded on the principle of self-preservation; and the power to punish extends no further than imprisonment, and that will continue no longer than the duration of the power that imprisons. The imprisonment will terminate with the adjournment or dissolution of Congress. (b)1

(a) Anderson v. Dunn, 6 Wheaton, 204.

(b) The duration of imprisonment for contempts terminates also in England upon the close of the existing session of Parliament. Stockdale v. Hansard, cited in May's

1 As to the powers and privileges of the Parliament of Great Britain, see How-

ard v. Gosset, 10 Q. B. 359, 411. See

also generally on commitment for con-

nature or by its incidents, is of a criminal character, not including a refusal to be examined on oath as a witness in bankruptcy proceedings. In re Armstrong, [1892] 1 Q. B. 327. In England, the Crown may remit a sentence for contempt of court. Be A Special Reference, [1893] A. C. 138.

The common council of a city has no judicial power and cannot be constitutionally empowered to commit and punish for contempt, without right of appeal or trial by jury. Whitcomb's Case, 120 Mass. 116. As the courts alone can punish for contempt, a board of tax commissioners, created by the legislature with power to summon and examine witnesses, cannot be constitutionally empowered to fine and imprison for contempt. Langenberg v. Decker, 131 Ind. 471. The judicial power of the United States extends to a petition filed in a Circuit Court under § 12 of the Interstate Commerce Act of 1887, in aid of its inquiries, to compel a witness before the Commission to testify or to produce books

or documents before it; and although a jury is not required by due process of law in matters of contempt, yet the final determination whether such witness can, by fine or imprisonment, be compelled so to act cannot be left solely to the judgment of a subordinate or executive tribunal. Interstate Commerce Commission v. Brimson, 154 U. S. 447.

Congress can only compel the production of private papers in or by judicial proceedings, and not for the purpose of aiding an investigating committee. In re Pacific Railway Commission, 32 Fed. Rep. 241.

Congress may, it seems, require any witness to appear as a witness before its committee, even without paying the witness his fees for attendance. Lilley v. United States, 14 Ct. of Cl. 539.

Any member of Congress may now administer the oath to witnesses, under the Act of June 26, 1884, ch. 123 (23 St. at L. 60).

The House of Representatives has the exclusive right of originating all bills for raising revenue, and this is the only privilege

Treatise on the Privileges of Parliament, 75; [9 Ad. & El. 1; 11 Ad. & El. 253, 273, 297; ante, 235, n. 2.] The decision of the Supreme Court, in the case of Anderson, is accompanied with a course of reasoning which would seem to be sufficient to place the authority of either house of Congress to punish contempts and breaches of privileges on the most solid foundation, independent of the absolute authority of the decision. The constitutional exercise of the same power by each house of Parliament has been repeatedly vindicated in Westminster Hall in the most masterly manner. Lord Ch. J. De Grey, in Rex v. Crosby, 3 Wils. 188; Lord Ellenborough, in Burdett v. Abbott, 14 East, 1. It is a power inherent in all legislative assemblies, and is essential to enable them to execute their great trusts with freedom and safety; and it has been frequently exercised, not only in Congress, but by the respective branches of the state legislatures, and may be considered as indisputably acknowledged and settled. Story, Comm. ii. pp. 305-317. What acts shall amount to a contempt of either house of Congress are not defined, and must be left to the judgment and discretion of the house, under the circumstances of each case. In England, libels upon the character or proceedings of either house of Parliament, or any of its members, are regarded as breaches of privilege, and punishable as for contempts, by imprisonment. May's Treatise on the Law and Privileges of Parliament, 62; Burdett v. Abbott, supra. But with us such a course of redress has not been adopted, and the house that was injured would probably, if redress was sought, direct a public prosecution by indictment. The act of Congress of 14th July, 1798, made it an indictable offence to libel the government, Congress, or President of the United States. Fide infra, ii. 24.

tempt, the case of Fernandes, 6 Hurlst. & N. 717, and 10 C.' B. N. S. 3. The legislative assemblies of the British colonies have, in the absence of express grant, no power to adjudicate upon, or punish for, contempts committed beyond their walls. Doyle v. Falconer, L. R. 1 P. C. 328, 339; Kielley v. Carson, 4 Moore, P. C. 63; Fenton v. Hampton, 11 Moore, P. 0. 347; In re Brown, 33 L. J. N. S. Q. B. 193, 5 Best & S. 280. Nor, even for a contempt committed in their presence and by one of their members. The right to remove for self-security is one thing, the right to inflict punishment is another. The latter power is judicial, and is not necessary to the existence of a legislative assembly. Doyle v. Falconer, L. R. 1 P. C. 328, 340 (citing and seemingly disapproving Anderson v. Dunn). When a statute gives the power, see Speaker of Leg. Ass. of Victoria v. Glass, L. R. 3 P. C. 560. The Massachusetts

House of Representatives can commit for contempt a party who refuses to attend as a witness and testify before a committee of the House. But the Supreme Court can inquire on habeas corpus into the propriety of the commitment. Burnham v. Morrissey, 14 Gray, 226; State v. Matthews, 37 N. H. 450. In Sanborn B. Carleton, 15 Gray, 399; S. C. 23 Law Rep. 7, it was held that the sergeant-at-arms of the United States Senate, having a warrant to arrest a party for contempt, could not delegate his authority, and authorize an arrest by his deputy in Massachusetts. [In Kilbourn v. Thompson, 103 II. S. 168, the power of the House of Representatives to punish for contempt received elaborate discussion. Kilbonrn had been arrested and imprisoned by order of the House for refusing to answer certain questions propounded and to produce certain books and papers called for by a committee of the House.

that house enjoys in its legislative character, which is not shared equally by the other; and even those bills are amendable by the Senate in its discretion. (c) The two houses are an entire and perfect check upon each other, in all business appertaining to legislation; and one of them cannot even adjourn, during the session of Congress, for more than three days, without the consent of the other, nor to any other place than that in which the two houses shall be sitting. (d)

The powers of Congress extend generally to all subjects of a national nature. Many of those powers will hereafter become the subject of particular observation and criticism. At present, it will be sufficient to observe, generally, that Congress are authorized to provide for the common defence and general welfare; and for that purpose, among other express grants, they are authorized to lay and collect taxes, {237} duties, imposts, and excises; to borrow money on the credit of the United States; to regulate commerce with foreign nations, and among the several states, and with the Indian tribes; to declare war, and define and punish offences against the law of nations; to raise, maintain, and govern armies, and a navy; to organize, arm, and discipline the militia; and to give full efficacy to all powers contained in the Constitution. Some of these powers, as the levying of taxes, duties, and excises, are

(c) Art. 1, sec. 7. (d) Art. 1, sec. 5.

He brought an action for false imprisonment against the sergeant-at-arms and the members of the committee at whose instance the arrest was ordered by the House. In reviewing the English cases, the court pointed out that the power in Parliament arose originally from the character of that body as a court, and not from its character as a legislative body. That no such character was given to Congress, at least except in certain strictly limited cases. It was held that at most the House had only power to punish for contempt when acting within these limits in a judicial capacity; and further, that it was open to the court to inquire into the question whether the House was so acting in this case. It was held that the

inquiry in which the committee was engaged at the time of plaintiff's refusal to testify was beyond the powers of Congress, and that the power to punish for contempt did not exist in the case, and hence that the order of the House was no protection to the defendants. The reasoning of Anderson v. Dunn was disapproved. It was held, however, that those of the defendants who were members of the House were protected by the last clause of sec. 6, of Art. I of the Constitution, "and for any speech or debate in either House they shall not be questioned elsewhere;" the words "speech or debate" being held to cover everything said or done by a member as such. — B.]

concurrent with similar powers in the several states; but in most cases, these powers are exclusive, because the concurrent exercise of them by the states separately would disturb the general harmony and peace, and because they would be apt to be repugnant to each other in practice, and lead to dangerous collisions. The powers which are conferred upon Congress, and the prohibitions which are imposed upon the states, would seem, upon a fair and just construction of them, to be indispensable to secure to this country the inestimable blessings of union. The articles of confederation, digested during the American war, intended to confer upon Congress powers nearly equal to those with which they are now invested; but that compact gave them none of the means requisite to carry those powers into effect. And if the sentiment which has uniformly pervaded the minds of the people of this country be a just one, that the consolidated union of these states is indispensable to our national prosperity and happiness, — and if we dp not wish to be once more guilty of the great absurdity of proposing an end, and denying the means to attain it, — then we must conclude that the powers conferred upon Congress are not disproportionate to the magnitude of the trust confided to the Union, and which the Union alone is competent to fulfil.

The rules of proceeding in each house are substantially the same; and though they are essential to the transaction of business with order and safety, they are too minute to be treated at length in an elementary {238} survey of the constitutional polity and general jurisprudence of the United States. The House of Representatives choose their own Speaker, but the Vice-President of the United States is, ex officio, President of the Senate, and gives the casting vote when they are equally divided. The proceedings and discussions in the two houses are public. This affords the community early and authentic information of the progress, reason, and policy of measures pending before Congress, and it is likewise a powerful stimulus to industry, to research, and to the cultivation of talent and eloquence in debate. Though these advantages may be acquired at the expense of much useless and protracted discussion, yet the balance of utility is greatly in favor of open deliberation; and it is certain, from the general opposition to the experiment that was made and continued for some years by the Senate of the United States, of sitting with closed doors, that such a

practice, by any legislative body in this country, would not be endured.

5. Manner of passing Laws. — The ordinary mode of passing laws is briefly as follows: (a) One day's notice of a motion for leave

(a) See the standing rules and orders of the House of Representatives, printed in 1795, by Francis Childs. The rules and forms of proceeding in legislative bodies are not only essential to orderly and free discussion and deliberation, but those forms become substance; for they operate as safeguards of liberty, and a protection to the minority against the violence and tyranny of the majority. It was an observation of Mr. Onslow, for many years Speaker of the English House of Commons, that he had often heard old and experienced members say, that nothing tended more to throw power into the hands of the administration, than a neglect of or departure from the rules of proceeding. Hatsel's Precedents of Proceedings in the House of Commons, and Jefferson's Manual of Parliamentary Practice, and especially May's Treatise upon the Law, Privileges, Proceedings, and Usage of Parliament, London, 1844, and Cushing's Rules of Proceeding and Debate in Deliberative Assemblies, Boston, 1845, ought to he thoroughly studied by all leading and efficient members in legislative assemblies.

Among the rules of the House of Representatives, the establishment of what is termed the previous question is of great importance. It is understood not to apply when a bill or motion is under discussion in a committee of the whole House, but only when the same is before the House, with the Speaker in the chair. The previous question is admitted when demanded by a majority of the members present; and it enables a majority at any time to put an end in the House to all discussion, and to put the minority to silence by a prompt and final vote on the main question. It is whether the question under debate shall now be put; and, until it is decided, it precludes all amendment and debate of the main question, and all motions to amend, commit, or postpone the main question. If the previous question be decided affirmatively, the main question is to be put instantaneously, and no member is allowed to amend or discuss it. The previous question has long been in use in the English House of Commons; and if it be carried in the affirmative, no alteration can then take place, no debate is suffered to intervene, and the Speaker puts the main question immediately. Dwarris on Statutes, 1830, p. 291. During the period of the Continental Congress, under the articles of confederation, the previous question was regarded rather as a preliminary inquiry into the propriety of the main question. This was also the case under the present Constitution of the United States, for many years. Its object was to avoid decision on delicate questions, as inexpedient, and if it was decided that the main question be put, the main question was open to debate. It was not until 1811 that the previous question attained its present absolute sway. The Hon. William Gaston, a member of the House of Representatives from North Carolina, in 1816, made a fruitless effort to expunge the previous question from the rules of the House. His speech was a very able and well-informed discussion of the merits of the rule, and he regarded it as a formidable instrument of tyranny of majorities over minorities, and, to the extent to which it is carried, without a precedent in the annals of any free deliberative assembly.

Legislation was a science cultivated with so much care and refinement among the ancient Romans, that they had laws to instruct them how to make laws. The Lex Licinia and Lex Ebutia, the Lex Cæcilia and Lex Didia, provided checks, that the

to bring in a bill, in cases of a general nature, is required. Every bill, must have three readings previous to its being passed, and these readings must be on different days, and no bill can be committed or amended until it has been twice read. Such little checks in the forms of doing business are prudently intended to guard against surprise or imposition. In the House of Representatives, bills, after being twice read, are committed to a, committee of the whole House, when the {239} Speaker leaves the chair, and takes a part in the debate as an ordinary member, and a chairman is appointed to preside in his stead. When a bill has passed one house, it is transmitted to the other, and goes through a similar form; though in the Senate there is less formality, and bills are often committed to a select committee, chosen by ballot. If a bill be altered or amended in the house to which it is transmitted, it is then returned to the house in which it originated, and if the two houses cannot agree, they appoint committees to confer together on the subject. (a)

6. President's Negative. — When a bill is engrossed, and has passed the sanction of both houses, it is transmitted to the President of the United States for his approbation. If he approves of the bill, he signs it. If he does not, it is returned, with his objections, to the house in which it originated, and that house enters the objections at large on its journals, and proceeds to reconsider the bill. (x) If, after such reconsideration, two thirds of

law should not unintentionally contain any particular personal privileges, or weaken the force of former laws, or be crowded with multifarious matter. Gravina, De Ortu et Progressu Juris Civilis, lib. 1, c. 29.

(a) By the revised constitution of New York, of 1846, it is declared that no bill shall be passed unless by the assent of a majority of all the members elected to each branch of the legislature; and the question upon the final passage shall be taken immediately upon its last reading, and the yeas and nays entered on the journal.

(x) With respect to the President's veto power, and the contention that it should be limited, as it has not recently been, to cases where the bill is not in his judgment within the constitutional power of Congress, Mr. Justice Miller (on the U. S. Constitution, p. 175) says: "Undoubtedly there is a just medium on this subject, and it is probable that a sound view would be that the occasion which requires or justifies the President in returning

without his approval a bill passed by both Houses of Congress, with his objections thereto, should be of a grave and serious character, and the measure itself of much public importance. There remains to the President, in all cases, the alternative of declining to sign, and failing to veto a bill, and thus permitting it by the lapse of ten days, without any action on his part, to become a law of the land upon the sole responsibility of its

that house should agree to pass the bill, it is sent, together with the objections, to the other house, by which it is likewise reconsidered, and, if approved by two thirds of that house, it becomes a law. (b) But, in all such cases, the votes of both houses are determined by yeas and nays, and the names of the persons voting for and against the bill are entered on the journals. If any bill shall not be returned by the President, within ten days (Sundays excepted) after it shall have been presented to him, the same becomes a law, equally as if he had signed it, unless Congress, by adjournment, in the mean time, prevents its return, and then it does not become a law. (c)l (y)

The practice in Congress, and especially in the second or last session of each Congress, of retaining most of their bills until within the last ten days, is attended with the disadvantage of shortening the time allowed to the President for perusal and reflection upon them, and of placing within the power of the President the absolute negative of every bill presented within the last ten days preceding the 4th of {240} March; and this he can effect merely by retaining them, without being obliged to assign any reason whatever; for he is entitled

(b) The Constitution does not say whether the vote of two thirds of each house on the reconsideration of a bill returned by the President, with objections, shall be two thirds of the members elected, or only two thirds of the members present. It is understood that the latter construction has been adopted in practice.

(c) Art. 1, sec. 7.

1 In New York, it has been decided, under a similar constitutional provision, that a bill which passed the second house [and was presented to the Governor for his action?] the day before the end of the

session, and signed by him after it, but within ten days of the time when it was so presented to him, was a valid law. People v. Bowen, 21 N. Y. 517.

passage by the Senate and House of Representatives." See Hart's edition of Mason on the Veto Power (1890); 4 Harvard L. Rev. 243; J. H. Benton, Jr.'s pamphlet on the Veto Power.

The mayor of a city may veto executive as well as legislative action by its common council. People v. Fitchie, 76 Hun, 80.

(y) In United States v. Weil, 29 Ct. Cl. 523, it was held that the President can approve an act of Congress within ten

days after its adjournment for the winter holidays. See also 39 Cent. L. J. 68; 8 Harvard L. Rev. 114; John V. Farwell Co. v. Matheis, 48 Fed. Rep. 363; Burns v. Sewell, 48 Minn. 425.

The number of days within which a bill is to be approved by the governor of a State includes days when the legislature is not in session, if it has not finally adjourned. Justices' Opinion, 45 N." H. 607, 610.

to ten days to deliberate. Most of the bills that are presented to the President in the second session of every Congress were, a few years ago, presented to him within the last ten days, and generally within the last two days; but the rules of Congress have latterly checked the evils and danger of such an accumulation of business on the last days of the session.

This qualified negative of the President upon the formation of laws is, theoretically at least, some additional security against the passage of improper laws, through prejudice or want of due reflection; but it was principally intended to give to the President a constitutional weapon to defend the executive department, as well as the just balance of the Constitution against the usurpations of the legislative power.1 To enact laws is a transcendent power; and if the body that possesses it be a full and equal representation of the people, there is danger of its pressing with destructive weight upon all the other parts of the machinery of the government. It has, therefore, been thought necessary, by the most skilful and most experienced artists in the science of civil polity, that strong barriers should be erected for the protection and security of the other necessary powers of the government. Nothing has been deemed more fit and expedient for the purpose than the provision that the head of the executive department should be so constituted as to secure a requisite share of independence, and that he should have a negative upon the passing of laws; and that the judiciary power, resting on a still more permanent basis, should have the right of determining upon the validity of laws by the standard of the Constitution. A qualified negative answers all the salutary purposes of an absolute one, for it is not to be presumed that two thirds of both houses of Congress, on reconsideration, with the reasoning of the President in opposition to the bill spread at large upon their journals, will ever concur in any unconstitutional {241} measure. (a) In the English constitution, the king has an absolute negative; but it has not been necessary to exercise it since the time

1Ante, 221, n. 1.

(a) This qualified negative of the President has, in the progress of the administration of the government, since the first publication of these Commentaries, in 1826, become a very grave power, and applied, under the ordinary name of veto, with a familiarity which appears not to have been anticipated by the generation which adopted the Constitution.

of William III. The influence of the crown has been exerted in a more gentle manner, to destroy any obnoxious measure in its progress through the two houses of Parliament. Charles I. stood for a long time upon the strict and forbidding rights of his prerogative; but he was compelled, by the spirit and clamor of the nation, to give his assent to bills which cut down that prerogative, and placed the power of government in the hands of the Parliament. The peremptory veto of the Roman tribunes, who were placed at the door of the Senate, would not be reconcilable with the spirit of deliberation and independence which distinguishes the councils of modern times. The French constitution of 1791, a labored and costly fabric, on which the philosophers and statesmen of France exhausted all their ingenuity, and which was prostrated in the dust in the course of one year from its existence, gave to the king a negative upon the acts of the legislature, with some very feeble limitations. Every bill was to be presented to the king, who might refuse his assent; but if the two following legislatures should successively present the same bill in the same terms, it was then to become a law. The constitutional negative given to the President of the United States appears to be more wisely digested than any of the examples which have been mentioned. (b)

(b) The organization of the two houses of Congress, and the principles on which it rests, were profoundly discussed in the Federalist, from No. 52 to No. [64,] inclusive. There is no work on the subject of the Constitution, and on republican and federal government generally, that deserves to be more thoroughly studied. The Federalist appeared originally in a series of numbers, published in the New York daily papers, between October, 1787, and June, 1788. They were read with admiration and enthusiasm as they successively appeared, and by no person more so than the author of this note, who made a fruitless attempt at the time to abridge them for the benefit of a country village print. No constitution of government ever received a more masterly and successful vindication. I know not, indeed, of any work on the principles of free government that is to be compared, in instruction and intrinsic value, to this small and unpretending volume of the Federalist; not even if we resort to Aristotle, Cicero, Machiavel, Montesquieu, Milton, Locke, or Burke. It is equally admirable in the depth of its wisdom, the comprehensiveness of its views, the sagacity of its reflections, and the fearlessness, patriotism, candor, simplicity, and elegance with which its truths are uttered and recommended. Mr. Justice Story acted wisely in making the Federalist the basis of his Commentary; and as we had the experience of nearly fifty years since the Federalist was written, the work of Judge Story was enriched with the results of that experience, and it is written in the same free and liberal spirit, with equal exactness of research and soundness of doctrine, and with great beauty and elegance of composition.



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