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resignation. There is no word in the constitution in reference to the resignation of a legislative member. It might well be questioned whether a member can constitutionally resign. The doctrine held by the constitutional law of the country, to which the framers of the constitution of the United States looked for guidance, was that he could not. It is, as we shall see later, the doctrine still maintained by that law. Custom, however, permits resignation of membership from Congress, but I am unable to find any constitutional or statutory basis for the custom.

4. The Qualifications of Members.

So far as the constitution makes express provision in detail in regard to the subject, the qualifications are three in number, and only three. They are age, citizenship and inhabitancy. To be eligible to membership in the lower house, one must be twenty-five years of age or over, must have been for seven years a citizen of the United States, and must be an inhabitant of the commonwealth in which he is chosen. To be eligible to membership in the upper house, one must be thirty years of age or over, must have been for nine years a citizen of the United States, and must be an inhabitant of the commonwealth in which he is chosen.2 By implication the constitution makes the male sex also a qualification.3

No rules are provided in the constitution for determining a dispute in regard to the age of a person elected to either house, or in regard to the citizenship and the period of citizenship of such a person, or in regard to his place of residence. The determination of all such questions is left to each house for its own members, under the general principle of Article I, Section 5, that each house shall be the judge of the qualifications of its own members. Neither house, however, nor the whole Congress, nor the

1 United States Constitution, Art. I, sec. 2, § 2.
2 Ibid. Art. I, sec. 3, § 3.

3 Ibid.

commonwealths, can subtract anything from these constitutional qualifications. I do not think that either of these bodies can add anything, in principle, to these constitutional qualifications. Certainly the commonwealths cannot add anything in principle or in detail. They have attempted to do so, but Congress has always disregarded these attempts.1 If the Congress can add anything by law, or if either house can do so through the power of judging of the qualifications of its members, it must be something already existing, by reasonable implication, in these constitutional qualifications. For example, I think it certain that either house might reject an insane person, i.e. might require sanity of mind as a qualification; or might exclude a grossly immoral person, i.e. might require fair moral character as a qualification. On the other hand, neither house nor the whole Congress could make race or color or previous condition of servitude qualifications; and no power short of the sovereign, through amendment of the constitution, can make any religious test a qualification.2

The constitution expressly creates two disqualifications, viz; the holding of office contemporaneously; and participation in insurrection or rebellion against the United States, or the giving of aid and comfort to the enemies of the United States, after having taken an oath as a member of Congress or of a commonwealth legislature, or as an officer of the United States government or of a commonwealth, to support the constitution of the United States.4 The Congress may remove the latter disqualification by a two-thirds vote of each house. This is, therefore, rather a statutory than a constitutional disqualification; its continuance, in any case, depending not upon the will of the sovereign, but upon the will of the government.

The commonwealths cannot add to or subtract from these

1 Story, Commentaries on the Constitution (4th ed.), vol. i, p. 444 ff.

2 United States Constitution, Art. VI, § 3.

8 Ibid. Art. I, sec. 6, § 2.

4 Ibid. Amendments, Art. XIV, sec. 3.

disqualifications. On the other hand, the Congress may, by law, or either house may, in the exercise of the power to judge of the qualifications of its members, make anything a disqualification that is reasonably implied in the constitutional provisions in regard to this subject. Certainly they may make the corrupt use of his powers by a legislator a disqualification; and they have done so.1

5. The Rights and Privileges of Members.

Members have the constitutional right to a compensation for their services, to be paid out of the treasury of the United States. What the amount of the compensation shall be, how it shall be reckoned, and when paid, are all matters to be determined by congressional statute. The constitution certainly intends that the Congress shall be reasonable in its measures upon this subject; but I do not conceive that it vests any power in the judicial department to determine upon the reasonableness of these measures, either at the instigation of a member or of an individual citizen. It is to be presumed that the members will do fairly by themselves in the matter of regulating their own salaries; and the prospect of an offended constituency has certainly thus far constrained them to consider the interest of the people also.

Furthermore they are privileged from arrest during their attendance upon the sessions of their respective houses and in going to and returning from the same, except upon charges of treason, felony or breach of the peace. Reasonable delays in going and coming and reasonable deviations from the nearest course are allowed and protected by this privilege; and the privilege begins from the date of the election, i.e. it is operative before the member takes his seat or is sworn. It could, therefore, happen that a person claiming to be elected would participate in this privilege, although the house

1 United States Revised Statutes, sec. 1781.

2 United States Constitution, Art. I, sec. 6, § 1.

3 Ibid.

Story, Commentaries on the Constitution (4th ed.), vol. 1, p. 609 ff.

to which he claimed to be elected should subsequently deny his claim. This is sound in principle. The privilege should be enjoyed by any such person, while in attendance upon the house in the prosecution of his claim and in going to and returning from the seat of government for this purpose. It is true that the privilege may be abused; but the harm which could come from its abuse would be slight in comparison with that which might arise from its denial.

They have, finally, the freedom of speech and debate in their respective houses.1 The exact wording of the constitution is that for any speech or debate in either house they shall not be questioned in any other place. This means that only the house itself can call a member to account for what he says in the house. It means that he is not subject to any prosecution for libel or slander before the courts for what he says in the house to which he belongs, or in its committees, or for the official publication of what he says.

6. The Assembly and Adjournment of the Legislature. The constitution orders the annual assembly of the legislature. It fixes the day of assembly upon the first Monday of December, but authorizes the legislature to change this date, by law, if it will. The constitution does not forbid more than one assembly of the legislature each year and it expressly empowers the executive to call extraordinary sessions. This signifies that there may be as many sessions of the Congress as the Congress or the executive may determine; and that the Congress, as well as the executive, is authorized by the constitution to order its own assembly at any time it may deem expedient and desirable.

The constitution does not expressly vest the general power of adjournment of the Congress in any body. It impliedly vests the power in the two houses, in agreement with each other, in the express limitations which it places upon the

1 United States Constitution, Art. I, sec. 6, § 1.

power. Article I, section 5, paragraph 4, provides that "neither house shall, during the session of Congress, without the 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 Article II, section 3, provides that the executive may adjourn both houses, in case of disagreement between them with respect to the time of adjournment, to such time as he shall think proper. These limitations certainly recognize the general power of adjournment as residing in the two houses in agreement with each other, and the power of adjournment from day to day and for as long a period as three days in each house separately.

Finally, the constitution does not provide for any such procedures as the formal opening or closing of a session, or for prorogation or dissolution. The houses, therefore, separately arrange the ceremonies of opening and closing to suit themselves, under the power to make their own rules of order and procedure; the houses, in agreement, adjourn sine die or prorogue the session under their general power of adjournment ; and there is no such thing as a dissolution of either house of the Congress, except by the legal expiration of the terms of its members.

7. The Principle of the Quorum.

The constitution fixes the quorum of each house at an absolute majority of the members to which each house is entitled by the existing law of representation;1i.e. one more than half the number of members assigned by this law to each house may undertake legislation. The constitution does not expressly provide as to how the presence of a quorum shall be determined; but it seems to me to imply, in the power of each house to force the presence of members in order to form a quorum, that physical presence is the test, whether or no the members present all act. Such has not

1 United States Constitution, Art. I, sec. 5, § I.

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