Tucker's Blackstone

Volume 1 — Appendix
Note D

[Section 4 — Powers of Congress]

Let us now take a view of the federal and state constitutions, and examine the structure and organization of the government, arising from their mutual connection, and the distribution of power among the several branches or departments of each, respectively.

The powers of government, both by the federal and state constitutions, are distributed under three heads, the Legislative, Executive, and Judiciary; and these three departments the state constitution 53 expressly declares shall be separate and distinct, so that neither exercise the powers properly belonging to the other. We shall nevertheless find that the constitution itself has in many respects blended them; assigning to the legislative body, duties, which, in strictness, belong to the executive; as in the appointment of the officers of government, &c. Yet this is undoubtedly conformable to the nature of a democracy in this, that the appointment is vested in the immediate representatives of the people. The constitution of the United States seems upon the same principle to have vested congress, in whom the legislative power is reposed, with powers absolutely foreign from the exercise of legislation, strictly speaking; but which will appear upon a scrutiny to have been more safely and beneficially entrusted to that department, than they could have been to any other whatsoever. Yet these deviations from the fundamental maxims of the government are to be construed strictly, and not made use of as precedents to justify others, where the constitution by its silence must be presumed to have referred it to that head under which it properly falls.

In the course of this investigation, we shall have occasion to enquire into the constituent parts of these several departments; with the mode of constituting them; the periods for which they are chosen; their respective qualifications, duties, and privileges; with the manner of removing them from, and punishing them for, any misconduct in office.

We shall begin with the federal government.

I. Of the congress.

1. The first article or the federal constitution, declares, that all legislative powers therein granted shall be vested in a congress of the United States, which shall consist of a senate and house of representatives. These, therefore, are the constituent parts of the federal legislature.

2. & 3. The next section prescribes the manner in which the last of these bodies shall be chosen 54, that is to say, every second year, by the people of the several states; the qualifications of the electors being the same as that of electors of the most numerous branch of the state legislature 55.

The same article provides that representatives and direct taxes shall be apportioned among the several states according to their respective numbers, to be determined by adding to the whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxed, three fifths of all other persons; according to an actual enumeration to be made every ten years 56: but the number of representatives is limited to one for every thirty thousand persons 57.

This mode of ascertaining the number of representatives, and the inseperable connection thereby established between the benefits and burthens of the state, seems to be more consonant with the true principles of representation than any other which has hitherto been suggested 58. For every man, in his individual capacity, has an equal right to vote in matters which concern the whole community: no just reason therefore can be assigned why ten men in one part of the community should have greater weight in it's councils, than one hundred in a different place, as is the case in England, where a borough composed of half a dozen freeholders, sends perhaps as many representatives to parliament, as a county which contains as many thousands; this unreasonable disparity appears to be happily guarded against by our constitution. It may be doubted indeed how the apportionment of the numbers, as it respects slaves, is founded upon the principles of perfect equality; and if it be not, it may be a further question whether the advantage preponderates on the side of the states that have the most, or the fewest slaves amongst them; for, if on the one hand it be urged, that slaves are not in the rank of persons 59, being no more than goods or chattels, according to the opinion of the Roman jurists, and consequently not entitled to representation, it may be answered that the ratio of representation and taxation being the same, this additional weight in council is purchased at an expence which secures the opposite party from the abuse of it in the imposition of burthens on the government. On the other hand, it must be remembered, that the two fifths of this class of people who are not represented, are by that means exempted from taxation. An exemption which probably took its rise from the unprofitable condition of that proportion of the number of slaves.

The times, places and manner of holding elections for representatives and senators, shall be prescribed in each state by the legislature; subject nevertheless to such alterations as congress may make, except as to the places of choosing senators 60.

It cannot be denied, that this article vests a power in congress, the exercise of which, if not really dangerous to the liberties of the states 61, may at least interrupt their tranquility, unless dictated by the utmost wisdom and discretion. In some of the states the vote is conducted by ballot, in others viva voce. In some the members are chosen by a general ticket or ballot of the whole state; in others the representatives are chosen by districts. Without entering into the discussion of the preference due to either of these modes, we may venture to pronounce that the states respectively will be tenacious of that to which their own constitution or laws may have given the preference: any attempt to render the manner of election uniform must therefore inevitably produce discontents among the states. Hitherto the congress has wisely left this article to the direction of the state governments. The manner of proceeding in this state, as established by the act of 1788, (V. L.) c. 2. amended by the act of 1792. c. 1 62, is shortly, as follows.

The act divides the states into as many districts, as there are representatives to be chosen, and directs that the persons qualified by law to vote for members to the house of delegates, in each county composing a district, shall assemble at their respective court houses, on the third Monday in March, (now altered by the act of 1798. c. 14. to the fourth Wednesday in April) in every second year, and then and there vote for a proper person as a representative in congress. The election to be conducted by the high sheriff, or in case of sickness or inability to attend, one of his deputies, in the same manner as the elections for delegates, except that as no determination is to be had by view, but only by the polls, the votes being publickly taken viva voce. Immediately after the closing of the poll, the clerk having first signed the same and made oath to the truth thereof, is to deliver it to the sheriff; the sheriffs of the respective counties in the district shall within seven days thereafter, assemble at the court house of the county first named in the district, compare their respective polls, and return the person having the greater number of votes, or in case of an equality of votes, giving their own votes. Duplicates of such return under the hands and seals of the sheriffs are to be sent one to the governor, the other to the representative elected, within ten days thereafter under the penalty of 100, and the poll book under a similar penalty are to be returned again to the clerk of the counties respectively. The governor is moreover required to transmit to congress without delay the returns made to him. The act further provides that no person shall, during the same election, vote more than once for the same candidate; under the penalty of one hundred dollars. This provision was made to prevent persons voting in several counties within the same district.

The representatives by this bill are chosen immediately by the people, in a public manner, by the electors within an aggregate number of counties composing a district. The person chosen seems to be strictly the delegate of those by whom he is chosen, and bound by their instructions whenever they think proper to exercise the right. This principle has been denied by the British writers 63 on their own government, and a deference to the maxims of that government probably prevented the decision of the question, when agitated in congress in the form of am article to a proposed bill of rights: but if the maxim be true, that all power is derived from the people; that magistrates are their trustees and servants, and at all times amenable to them for their conduct, it seems impossible to withhold our assent from the proposition, that in a popular government the representative is bound to speak the sense of his constituents upon every subject, where he is informed of it. The difficulty of collecting the sense of the people upon any question, forms no argument against their right to express that sense when they shall think proper so to do. Otherwise, by whatever denomination the government may be called, it is a confined aristocracy, in which the people have nothing more to do than to choose their rulers, over whose proceedings, however despotic, and repugnant to the nature and principles of the fundamental laws of the state, they have no control 64. It will be answered, that the power of removing and punishing is not denied by this doctrine. I answer, that the power of preventing offences against the commonwealth, is to be preferred to that of punishing offenders: and if the government is virtually in the people, it ought to be so organized, that whenever they chuse to exercise the right of governing, they may do it without destroying it's existence. Corruption and mal-administration, unchecked, may drive them to a resumption of all the powers which they have entrusted to the government, and bring on tumults and disturbances which will end only with it's final dissolution: an event to be apprehended in all governments, but particularly in democracies, since dissatisfaction towards the administration may produce a desire of change in the constitution itself; and every change by which the government is in the smallest degree removed from its republican nature and principle, must be for the worse. This danger is effectually avoided by the principle here contended for. The aggregate of mankind understand their own interest and their own happiness better than any individual: they never can he supposed to have resigned the right of judging for themselves to any set of men whatsoever; it is a right which can never be voluntarily resigned, though it may be wrested from their hands by tyranny, or violated by the infidelity and perfidy of their servants.

When vacancies happen in the representation from any state, the executive authority thereof, shall issue writs of election to fill the vacancies 65.

The manner of electing senators is much shorter, being vested in the legislatures of the several states; each state being entitled to two senators, whose periods of service are six years, and each senator is entitled to one vote 66.

The election of representatives we have seen; is by a mode strictly popular. Had the distinction of states been entirely done away, there could have been no good reason assigned, perhaps, why the elections of senators should not have been assimilated thereto, at least in respect to numbers, since in a government where all parts are equal, no preference under any pretext whatsoever ought to be allowed to any one part, over the rest. Why then should Rhode Island and Delaware have as many representatives in the senate as Virginia and Massachusetts, which contain ten times their respective numbers? It has been answered, the senate are chosen to represent the states in their sovereign capacity, as moral bodies, who as such, are all equal; the smallest republic, as a sovereign state, being equal to the most powerful monarchy upon earth 67, As states, then, Rhode Island and Delaware are entitled to an equal weight in council on all occasions, where that weight does not impose a burthen upon the other states in the union. Now as the relation between taxation and representation, in one branch of the legislature, was fixed by an invariable standard, and as that branch of the legislature possesses the exclusive right of originating bills on the subject of revenue, the undue weight of the smaller states is guarded against, effectually, in the imposition of burdens. In all other cases their interests, as states, are equal, and deserve equal attention from the confederate government. This could no way he so effectually provided for, as in giving them equal weight in the second branch of the legislature; and in the executive whose province it is to make treaties, &c.... Without this equality, somewhere, the union could not, under any possible view, have been considered as an equal alliance between equal states. The disparity which must have prevailed, had the apportionment of representation been the same in the senate as in the other house, would have been such as to have submitted the smaller states to the most debasing dependence, I cannot, therefore, but regard this particular in the constitution, as one of the happiest traits in it, and calculated to cement the union equally with any other provision that it contains.

This body is not, like the former, dissolved at the end of the period for which it's members were ejected; it is a permanent, perpetual body; the members, indeed, are liable to a partial change every two years, the senate being divided into three classes, one of which is vacated every second year, so that a total change in the members may be made in six years, but cannot possibly be effected, without the intervention of death, in less time.... According to the arrangements of the classes actually made, both the senators from the same state shall never vacate their seats at the same time; a provision which certainly has it's advantages, as no state is thereby in danger of being not represented at any time.

This mode of constituting the senate, seems liable to some important objections 68. The perpetuity of the body is favorable to every stride it may be disposed to make towards extending power and influence in the government: a tendency to be discovered in all bodies, however constituted, and to which no effectual check can be opposed, but frequent dissolutions and elections. It is no satisfactory answer to this objection, that the members are removable, though the body itself be perpetual. The change, even were the members ineligible a second time, would be too gradual, to effect any counterpoise to this prevailing principle.

It has been insisted that the perpetuity of this body, is the only security to be found in the constitution against that instability of councils and of measures which has marked the proceedings of those States, where no such check is provided by the constitution 69. To which it may be answered, that every newly established government must be a government of experiment.... The design of a machine may appear correct, the model perfect, and adapted to all the purposes which the original inventor proposed: yet a thousand defects may be discovered when the actual application of it's powers is made, and, many useful improvements, in time, become obvious, to the eyes of a far less skilful mechanic. Their success and perfection must, however, still depend upon actual experiment, and that experiment may suggest still further improvement. Are we to reject these because they did not occur to the first projector, though evidently growing out of his original design? Or, if on the other hand we have unwarily adopted that as an improvement, which experiment shall evince to he a defect, shall we be so wedded to error as to persist in the practice of it, for no better reason than that we have once fallen into it.

In case of vacancies in the office of senator, the executive of the state are authorized to make a temporary appointment until the next meeting of the legislature, who are then to fill the vacancy 70.

4. The qualifications of the members of these bodies respectively, are, that both senators and representatives should have been citizens of the United States, the former nine, and the latter seven years 71 and be citizens also of that state for which they shall be chosen, at the time of their election; to which the law of the state adds, that a representative should be a freeholder and resident of the district for which he is chosen 72: a wise provision and perfectly consonant with the principles of representation, which should be made from the body of the people with whom the representative must be presumed to have a common interest, but which perhaps may be rendered nugatory, by the constitution which imposes no such condition, and which makes each house the judge of the qualifications, as well as of the elections and returns of its own members. The constitution further requires that a representative should be twenty-five, and a senator thirty years of age 73; to which may be added that no person holding any office under the United States shall be a member of either house during his continuance in office 74.

So much for the qualifications of the members of congress, to which we may subjoin their incapacities, as individuals, during the period for which they are elected; these are shortly an incapacity of being appointed to any civil office under the United States, which shall have been created or the emoluments thereof increased during their time 75. An admirable provision against venality, but which, it is to be feared, is not sufficiently guarded to prevent evasion. And to preclude undue influence on the part of the federal government over that of the commonwealth, it is provided by a law of the state 76, that the members of congress shall be ineligible to, and incapable of holding any seat in either house of assembly, or any legislative, executive, or judicial office, or other lucrative office whatsoever, under the government of this commonwealth: and this last provision is by the same act extended to all persons holding any legislative, executive, judicial or other lucrative office whatsoever under the United States, with a proviso in favour of militia officers, and county court magistrates.

5. Senators and representatives during their attendance in congress, as also in travelling to and returning from the place of their session, are privileged from arrest in all cases, except treason, felony, and breach of the peace 77; and no speech or debate in either house can be questioned in any other place. They are also entitled to a compensation for their services, to be ascertained by law, and paid out of the treasury of the United States 78.

These are all the personal privileges which the constitution gives to the members of the federal legislature. And here I shall transcribe the words of one of it's former members on a similar occasion.... "The members of the legislature ought certainly to have no privilege but what is demonstrably essential to the freedom, and welfare of their constituents. The state is not made to dignify it's officers, but the the E2 officers to serve the state. The dignity of a commonwealth does not consist in the elevation of one, or a few, but in the equal freedom of the whole. The privileges of the legislature ought to be defined by the constitution, and should be fixed as low as is consistent with the public welfare.".... This is the point which the constitution appears to have had in view, and very happily to have attained; and it is to be sincerely wished, the question may never arise whether they ought to have been more, or less, limitted.

Thus much for the privileges of the members; each house has moreover it's own distinct privileges and powers; those of the house of representatives are,

1. To chuse their own speaker, and other officers 79.
2. To originate all bills for raising a revenue; but the senate may propose, or concur with amendments, as on other bills 80.
3. This house also possesses the sole power of impeachment 81. These are all it's exclusive privileges.

The vice-president of the United States is, by virtue of his office, president of the senate; but has no vote unless they be equally divided 82.

This power may at first view appear to be of no great consequence: it is however of the utmost importance; and the occasions on which it is said to have been exercised, will demonstrate the necessity of leaving it, as seldom as possible, to it's full scope 83.

In fact this part of the constitution gives a decided influence in the legislature to that part of the United States from which the vice-president shall be elected. He has eventually a veto, without being obliged to assign his reasons for it; it is otherwise with the president. But to return to the senate.

1. In case of the absence of the vice-president, or of his exercising the office of president of the United States, they may choose a president pro tempore.... they have also a right of choosing all their other officers 84.
2. The senate have the sole power of trying impeachments 85. A most inordinate power, and, in some instances, utterly incompatible with their other functions, as we shall hereafter have occasion more fully to demonstrate.
3. The senate likewise constitute a part of the executive department 86 .... the examination of which part of their constitution we shall take up under its proper head.

Exclusive of these privileges which the two houses possess, as contradistinguished from each other, each house possesses the right of determining the rules of it's own proceedings; of punishing it's members for disorderly behaviour; and of expulsion, provided two-thirds concur therein 87.

Each house is moreover the judge of the elections, returns, and qualifications of it's own members 95, as we have before observed; a majority of each is requisite to form a quorum to do business; a provision of no small importance, since otherwise it is possible that the concerns of the nation might be decided by a very small portion of it's representatives; if; as has been done in other assemblies, the quorum were left to the decision of the body itself. In England, where there are near six hundred members in the house of commons, the number of 45 constitutes a quorum to do business. Is it possible that the nation can be represented by that number, whilst the elections stand upon their present footing? But although it requires a majority of the house of representatives, or the senate, to do the business of the nation, a smaller number may adjourn from day to day 96, and compel the attendance of absent members.

Each house is moreover required to keep a journal of its proceedings 97, and from time to time to publish the same; excepting such parts as may in their judgments require secrecy; a provision evidently calculated to defeat the salutary purposes of the former part of the rule; since every measure which intrigue may dictate, or cabal enforce, may thus be hid from the public eye, by being consigned to the secret journals an expedient too obvious to be neglected whenever it may be found advisable.

The yeas and nays of the members of either house, on any question, shall, at the desire of one-fifth of those present, be entered on the journal 98. Any member of the house of lords in England may enter his protest on the journals of the house, but the commons possess no such privilege. In a representative government, it is of the utmost consequence that the people should be informed of the conduct of their delegates individually, as well as collectively. This purpose is fully answered by the rule here spoken of. But to prevent a call of the yeas and nays too frequently, as is said to have been practised in the former congress, the constitution has set some reasonable limits to the exercise of this power, by requiring that at least one-fifth of the members present should concur in the expediency of it.

To prevent those inconveniencies which might arise from the national legislatures omitting to assemble as often as the affairs of the nation require, the constitution provides, that congress shall assemble 99, at least once a year, and fixes the period of assembling to the first Monday of December, unless they shall by law appoint another day. It likewise vests the president of the United States with the power of convening them, or either house, on extraordinary occasions 100.

Lastly, to prevent the evils which might result from the want of a proper concert and good understanding between the houses, it is provided 101, that neither house, during the session of congress shall, without consent of the other, adjourn for more than three days, nor to any other place than that in which the two houses shall be sitting. And further to guard against any inconvenience which might result from their disagreement, it is provided 102, that in such case the president may adjourn them to any time he shall think proper. This is the only instance in which the constitution permits an interference, with the duration of the session, on the part of the executive; and we have already seen, that though the power of convening the congress is entrusted, on extraordinary occasions, to the president of the United States, yet he has none to prevent, or even retard their assembling, at any time, by their own adjournment, or at certain stated periods fixed by law, or by the constitution.

The duration of congress is necessarily limited to two years, the period for which the house of representatives is chosen. The period of its commencement seems to have been fixed to the fourth day of March, the day on which the first congress assembled, and that of it's expiration to the third of that month biennially .... It is incapable of any other mode of termination, their being no power in any part of the government to dissolve it. By these wise and salutary provisions; it is effectually guarded against every possible encroachment on it's independence. Very different from the constitution of the British parliament, since the crown may, at any time, put an end to a session by a prorogation, or to the existence of a parliament by a dissolution.

The president of the United States may be considered sub modo, as one of the constituent parts of congress 103, since the constitution requires that every bill, order, resolution, or vote, to which the concurrence of the senate and house of representatives may be necessary (except on a question of adjournment) shall be presented to him: if he approve he shall sign it, but if not he shall return it with his objections to that house in which it shall have originated, who shall enter the objections at large on their journal, and proceed to reconsider it. If after such reconsideration two thirds of that house agree to pass it, it shall be sent, together with the objections to the other house, by which it shall likewise be reconsidered, and if approved by two thirds of that house shall become a law. In all such cases the yeas and nays shall be entered on the journals of both houses. If any bill, &c. be not returned by the president within ten days, Sundays excepted, unless in case of adjournment, whereby the return is prevented, it shall nevertheless be a law &c.

This closes our hasty sketch of the constituent parts of the congress of the United States, with a short view of the duration and the outlines of the distinct powers, and privileges of both houses, as also of the individuals who compose them. Before we proceed to the investigation of the powers of the whole body thus formed, let us compare some of it's most distinguished features, with those of the two houses of the British parliament, long held in idolatrous veneration, as a palladium of political freedom which some partial deity had bestowed upon that favourite nation, and presenting a model of perfection which the combined wisdom of nations, and of ages, could but faintly imitate, and never equal. We shall occasionally resume this comparison at different periods of our enquiry, in order to assist the student in the application of what he will meet with in authors on the subject of that far famed constitution, to the more recent institutions of our own.


53. C. V. Art. 3.

54. On this subject the student is referred to the Federalist, Nos. 52. and 53.

55. The act of 1785 c. 55. (V. L.) fixes the qualification of electors to be a freehold estate, in twenty-five acres of land, with a house the superficial content of the foundation whereof is twelve feet square or equal to that quantity, and a plantation thereon; or in fifty acres of unimproved land; or in a lot, or part of a lot of land in a city or town established by act of assembly, with a house thereon of the like superficial content or quantity; but the possession of lands, in virtue of which the right of suffrage is claimed, unless acquired by descent, devise, or marriage settlement, must have continued six months.
In Williamsburg and Norfolk every house-keeper being a citizen is entitled to vote.
Free negroes, mullattoes, persons under the age of twenty-one years, and such as have refused to give assurance of fidelity to the commonwealth, are excluded from the right of suffrage.

[56. Separate file.]

57. On this subject the student is referred to the Federalist No. 55, 56, 57, 58.

58. The student is referred to the Federalist, No. 51.

59. Spavan's Puffendorf, p. 10.

60. C. U. S. Art. 1. Sect. 4, see also Federalist, No. 59, 60, 61, upon this subject.

61. Amendments on this subject have been proposed by the States of New Hampshire, Massachusetts, Rhode-Island, New-York, Virginia, North-Carolina, and South-Carolina.

62. These two acts are omitted in the compilation of 1794.

63. Black. Com. 159.

64. "When we elect persons to represent us in parliament" (says a judicious writer) "we must not be supposed to depart from the smallest right which we have deposited with them. We make a lodgment, not a gift; we entrust, but part with nothing. And, were it possible that they should attempt to destroy that constitution which we had appointed them to maintain, they can no more he held in the rank of representatives than a factor turned pirate, can continue to be called the factor of those merchants whose goods he had plundered, and whose confidence he had betrayed. The men, whom we thus depute to parliament, are not the bare likeness or reflection of us their constituents; they actually contain our powers and privileges, and are, as it were, the very persons of the people they represent. We are the parliament in them? we speak and act by them. We have, therefore, a right to know what they are saying and doing. And should they contradict our sense, or swerve from our interests, we have a right to remonstrate in form, and direct them. By which means we become the regulators of our own conduct, and the institutors of our own laws, and nothing material can be done but by our authority and consent." Burgh's Political Disquisitions, Vol. 1. p. 202.... However inadmissible this doctrine may be in Great Britain, it seems perfectly adapted to the principles of our government.

65. C. U. S. art. 1. sect. 2.

66. Ibid. sect. 3. See the Federalist, No. 62.

67. Vattel, 9, 16.

68. See Federalist, No. 62.

69. Ibidem.

70. C. U. S. Art. 1. . 3.

71. Ibid. . 2 & 3.

72. V. L. Acts of 1788, c. 2. 1792, c. 1.

73. C. U. S. Art. 1. Sec. 2 and 3.

74. Ibidem, Sec. 6.

75. C. U. S. Art. 1. Sec. 6.

76. V. L. Acts of 1788, c .38, 1794, c. 36. Amended 1798, c. 15.

77. C. U. S. Art. 1. Sec. 6.

78. The act of the first congress, 1 Session, c. 17 fixed the compensation to the members of congress at six dollars per diem, and the same for every twenty miles distance, which they travel in coming to and returning from congress, until the fourth of March, 1795. After which period the members of the senate were to receive seven dollars, and the representatives six dollars only per diem. But the act of the 4th congress, c. 4. places the members of both houses exactly on the same footing, allowing them six dollars per diem, without distinction.

79. C. U. S. Art. 1. s. 2.

80. Ibid. s. 7.

81. C. U. S. Art. 1. s. 2.

82. Ibid. s. 3.

83. In the first session of the second congress, the house of representatives passed a bill apportioning the number of representatives in the ratio of one for thirty thousand. The senate were equally divided upon this bill. Some of the members, though momently expected, being absent, the question was put, and carried by the decision of the vice president against the bill. If ever a case could he named under the constitution which seemed to belong solely to the representatives to determine, it was this.

84. C. U. S. Art. 1. s. 3.

85. Ibid.

86. Ibid. Art. 2. s. 2.

[87. Separate file.]

[89-94 in Footnote 87 file.]

95. C. U. S. Art. 1. Sect. 5.

96. C. U. S. Art. 1. Sect. 5.

97. Ibid.

98. C. U. S. Art. 1. Sect. 5.

99. Art. 1. S. 4.

100. Art. 2. S. 3.

101. Art. 1. S. 5.

102. C. U. S. Art. 2. Sect. 3.

103. C. U. S. Art. 1. Sect. 7.

E2. The double "the" is in the original text. Perhaps a typesetter error.


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