THE house of representatives was founded on the principle of the representation of the people; yet not purely and abstractedly, but with as much conformity to it as was practicable.
It is composed of representatives of the people of the several states, not of the people at large; and in this respect there is still something of a federative quality. If the whole had been thrown into one mass, it would certainly have been more consistent with a full representation of the entire people, but many would have been the objections to it. It would have been desirable that the qualifications of the electors should be uniform, but considerable variety of opinion and practice in this respect exists. In some states, the system of universal suffrage prevails; in others a freehold or other estate is required of more or less value. Residence for a longer or shorter time is requisite in different states, and when the constitution was framed, different qualifications were required in two of the states for electors of the different branches of the legislative body. The people of each state were naturally attached to their own institutions, and would unwillingly have surrendered them in favour of others. Indeed, if the qualification of property had been required, the people of those states wherein universal suffrage was established, would probably have refused altogether to accede to the Union.
Again. If the representatives were to be all chosen by a general ticket, the consequences would be that thousands of voters must give their suffrages in favour of persons of whom they had no knowledge. If it was required that the candidate should reside in a particular district, the inhabitants of Georgia would either have to select a resident of Massachusetts on their own judgment, or implicitly follow the suggestions of the voters in Massachusetts.
Under these difficulties the principle of exact representation was necessarily abandoned, and in lieu of it, representation was apportioned among the several states. The medium of not more than one representative for 30,000 inhabitants, was first agreed on, and is a fundamental part of the system by which the inhabitants of every state, although it might possess a fractional part however large of 30,000, consented to relinquish the benefit of the ultra number. But every state is to be represented; and if any one should by casualties be reduced below that number, she is still to have one representative, as she will still retain two members of the senate. 1
At one time it was conceived by congress, that without invading the constitution, the principle of apportionment might be reformed to advantage. The object was to prevent the loss in the number of representatives arising from the fractional parts.
With a sound political view to retain the just relation of representation to numbers, it is provided in the Constitution, that within three years an actual enumeration should be made of the inhabitants of the United States, which should be repeated every ten years. In fixing the number of the first house of representatives, the population was estimated, not ascertained. When the census, (as it is now commonly termed,) was taken in 1790, it appeared that, in many states, there would be considerable fractional parts, which, whether the quotient was fixed at 30,000, or a greater number, would be unrepresented. To increase the number of the house of representatives as far as the constitution would permit, was deemed most conducive to the public security, against the preponderancy of executive influence, which however was denied and resisted by a considerable minority. A bill, after great struggles, passed both houses, which it seems difficult to reconcile to the Constitution.
The whole number of inhabitants according to the recent census being ascertained, it was divided by 30,000, and produced the number of one hundred and twenty representatives, which were, in the first place, apportioned among the several states, until as many representatives as it would give were allotted to each. The residuary numbers were distributed among the states having the highest fractions. But the correct and independent mind of the illustrious man who then held the office of president, rejected the bill. It was returned to the house of representatives, with the observation, that the Constitution had provided that the number of representatives should not exceed one for 30,000, which is to be applied to the respective numbers of the states, and the bill allotted to eight of the states more than one for 30,000.
As there was not a constitutional majority to pass it again, the effort failed, and probably will never be renewed. Another law was immediately passed, allotting one member to 33,000 inhabitants, which still left some fractional parts unrepresented.
The same objection also exists in the representative bodies of states, where the apportionment is made among counties but a state legislature possesses the power of enlarging or reducing counties, and of adding two or more together, whereas the United States have no power to alter the boundaries of a state, although they may give their assent to an alteration by the state itself the enumeration, at stated intervals, as required by the Constitution is, like many other parts of it, deserving of praise both for its wisdom and its novelty. It is not to be found in the Constitution of any of the European governments, and if occasionally practised, it is not obligatory on them to continue it.
The census of Rome was directed by a law passed three hundred years after the commencement of the state was occasionally intermitted, and finally abolished; but the institution itself was rather of a military than a representative character.
By conforming the representation to the actual number of citizens, as it is ascertained from time to time, the evils experienced in the country, to which, on account of its bearing the greatest resemblance to our civil polity, we so frequently allude, are avoided. The decline of population in some parts of England, and its increase in others, have produced the utmost inequality in the formation of their house of commons. London, which contains about one-seventh of the inhabitants of England, is entitled to send four members to parliament. The inconsiderable united borough of Weymouth and Melcombe Regis, containing seventeen hundred inhabitants, sends the same number. Manchester and Birmingham, two very populous towns, have no representatives, while the small deserted borough of Old Sarum, without a house or an inhabitant, is the vehicle through which two members obtain their seats; the largest county in the kingdom sends only two.
Thus a rigid adherence to an ancient system of representation, which may perhaps have been not unsound at the time it was formed, is now productive of the grossest abuses. The name, the tegument are preserved, when the substance that ought to be enclosed, is almost entirely gone.
The beneficial effects of our system will appear by referring to the following tabular view, in, which the increase of general population may be deduced from the increased number of representatives from most of the states.
|STATES.||Number of Representatives.|
|Kentucky, (separated from Virginia in 1791)||- -||2||6||10||12|
|Vermont, from (New Hampshire and New York, 1791)||- -||2||4||6||5|
|Tennessee, (from North Carolina, 1796)||- -||2||3||6||9|
|Ohio, (from a territory, 1802)||- -||- -||1||6||14|
|Louisiana, (from a territory, 1812)||- -||- -||- -||1||3|
|Indiana, (from a territory, 1816)||- -||- -||- -||- -||3|
|Mississippi, (from a territory, 1817)||- -||- -||- -||- -||1|
|Illinois, (from a territory, 1818)||- -||- -||- -||- -||1|
|Alabama, (from a territory, 1821)||- -||- -||- -||- -||3|
|Missouri, (from a territory, 1822)||- -||- -||- -||- -||1|
|Maine, (from Massachusetts, 1822)||- -||- -||- -||- -||7|
|Territories sending Delegates.|
|Michigan||- -||- -||- -||- -||1|
|Arkansas||- -||- -||- -||- -||1|
|Florida||- -||- -||- -||- -||1|
There is, however, one anomaly in our system with which we are sometimes reproached. The representative proportions are made to depend on adding to the whole number of free persons in each state, including those bound to service for a term of years, and excluding Indians not taxed, three-fifths of all other persons, that is, that fifteen slaves shall be considered as equal in the ratio of representation to nine freemen.
It would now be unseasonable and useless to consider or to answer the arguments on either side. It has been agreed to, and the question is for ever at rest.
It only remains to observe, that to guard against a refractory disposition, should it ever arise in the legislatures of the states, in respect to the times, places, and manner of holding elections for senators and representatives, congress is empowered at any time, to make or alter by law such regulations, except as to the place of choosing senators. This exception was proper, as congress ought not to have the power of convening the state legislature at any other than its usual place of meeting. We have already observed, that when the Constitution was adopted, different qualifications were prescribed in some of the states for electors to their different legislative branches. As the house of representatives is the most numerous branch of the general legislature, it was judiciously provided that the electors of it should have the qualifications requisite for the electors of the most numerous branch of the state legislature.
When vacancies happen, the executive authority of the state, issues writs for elections to be holden to fill them.
Both the senate and house of representatives possess the usual powers to judge of the elections, returns and qualifications of their own members, and to punish them for disorderly behaviour, which may be carried to the extent of expulsion, provided two-thirds concur.
It has not yet been precisely settled what must be the disorderly behaviour to incur punishment, nor what kind of punishment is to be inflicted; but it cannot be doubted that misbehaviour out of the walls of the house or within them, when it is not in session, would not fall within the meaning of the Constitution.
Expulsion may, however, be founded on criminal conduct committed in any place, and either before or after conviction in a court of law.
But a power extending beyond their own precincts, and affecting others than their own members, has been exercised by both houses, and has been decided in the supreme court to be constitutional.
It is a maxim in the practical application of government, that the public functionaries should be supported in the full exercise of the powers intrusted to them. Attempts to bribe or to intimidate them constitute offences against the public. They amount to more than contempts or breaches of privilege against. the legislative bodies, and they undoubtedly subject the offenders to the usual course of prosecution and punishment in the courts of law. But this liability does not exclude the immediate jurisdiction of the legislative body, which is supported by strong considerations of public policy. The people are entitled to the utmost purity and integrity in the conduct of their representatives. The house is a guardian of the public interests in this respect. It is its duty to make immediate inquiry as to any attempt to assail the freedom or corrupt the integrity of any of its members. From the duty to inquire arises the right to punish; it needs not to be devolved on the ordinary tribunals. It is true that no power to this effect is expressly given by the Constitution, nor does the judicial or criminal power given to the courts of the United States in any part, expressly extend to the infliction of punishment for such offences. But it is not therefore to be inferred that no such power exists any where. If the courts of the United States would possess it by implication, there is no reason for refusing it to the legislative body itself, unless it should be discovered to be wholly inconsistent with the construction or nature of that body, or with some clause in the Constitution. But the reverse of the first position is the truth. It would be inconsistent with the nature of such a body to deny it the power of protecting itself from injury or insult. If its deliberations are not perfectly free, its constituents are eventually injured. This power has never been denied in any country, and is incidental to the nature of all legislative bodies. If it possesses such a power in the case of an immediate insult, or disturbance preventing the exercise of its ordinary functions, it is impossible to deny it in other cases, which although less immediate or less violent, partake of the same character, by having a tendency to impair the firm and honest discharge of public duties.
Those clauses in the Constitution which provide that the trial of all crimes shall be by jury, in the state and district where the offence has been committed, are ever to be held sacred but it would be doing violence to them to carry them further than the plain meaning, that trial by jury shall be preserved in criminal prosecutions in the ordinary courts; otherwise it would be impossible to support the jurisdiction given to the senate in cases of impeachment, wherein no trial by jury takes place. It appears then that this implied power of punishing what are termed contempts and infringements of the privileges of the houses, is in reality the useful institution of a summary jurisdiction for the punishment of offences substantially committed against the people, and that it is correctly deduced from the Constitution.
The following express provisions, which require no elucidation, are inserted to close this part of the subject
A majority of each house shall constitute a quorum to do business, but a smaller number may adjourn from day to day and may be authorized to compel the attendance of absent members in such manner and under such penalties as each house may provide.
Neither house without the consent of the other shall adjourn for more than three days, nor to any other place than that in which the two houses shall be sitting.
Each house shall keep a journal of its proceedings, and from time to time publish the same, excepting such parts as may in their judgments require secrecy, and the yeas and nays of the members of either house shall, at the desire of one-fifth of those present, be entered on the journal.
1. In the articles of confederation it was also a fundamental provision that each state should have one vote, (art. iv,) and this was made an express condition in the instructions given by the state of Delaware to its delegates in the convention of 1787.
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