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June, and was incorporated by Paterson four days later, into the New Jersey Plan, and yet later were incorporated the apportionment of representation and direct taxes among the States, and also the number of Representatives in the first Congress, and the number in connection with representation in the Senate giving an average membership in Congress of seven to each State. The clause empowering the executive authority of a State to issue writs of election to fill vacancies in its representation stands in the Constitution almost word for word as it was reported by the Committee of Detail. The nearest approach to a precedent for it, in America, was the provision in the constitution of South Carolina, directing the President of its Senate and the Speaker of its House to issue writs for filling vacancies caused by death, in their respective Houses, during the recess.


That the Lower House should choose its Speaker? conformed with the practice of the British government and was suggested by the Albany plan, of 1754,8 by Galloway,

1 For the early history of the three-fifths clause, see Vol. I, pp. 221-223, 355, ante.

2 Elliot, V, 192. For the discussion of the clause as applicable to a State, see Debates of the Constitutional convention of Virginia, 1829-1830, p. 276 et seq.

3 July 9, Elliot, V, 288; July 10, Id. p. 290, as in the Constitution.

4 This conformed liberally to the suggestion of Franklin in the Albany plan, that each Colony should have no less than two or more than seven delegates.

6 4. When vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies.

6 South Carolina Constitution, 1778, XVIII.

75. The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment.

8 Carson, II, 469.

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twenty years later;' it prevailed in the States, and was the practice of the old Congress. Equally abundant were the precedents for giving the House the sole power of impeachment, though the New York constitution declared that it should always be necessary for two-thirds of the members present to agree to the impeachment. The language of the clause on the choice of the Speaker and the power of impeachment was the work of the Committee of Detail.

For the organization of the Senate, the oldest American precedent was the provision for “the two commissioners from each jurisdiction” in the New England Articles of 1643.5 The Earl of Stair also proposed a similar arrangement for the Provinces in 1721.6 Franklin and Hutchinson had suggested a Grand Council in 1754, composed of from two to seven members from each province. The constitution of Virginia required the State Senator to be

1 Galloway's plan, 1774, Carson, II, 499.

2 New Jersey, 1776, Article V; Pennsylvania, 1776, Section 10; Delaware Constitution, 1776, Article V; Maryland, 1776, Article XXIV; North Carolina, 1776, Article X; South Carolina, 1776, Article IX; 1778, Article XVIII; New York, 1777, Article IX; Vermont, 1777, Article IX; 1786, Article XII; Massachusetts, 1780, Part 1, Chapter i, Section 3, Article X. It was the unwritten constitution in the other States.

3 Articles of Confederation, IX.

4 Pennsylvania, 1776, Section 22; Delaware, 1776, Article XXIII; Virginia, 1776, Section 15; Georgia, 1777, XLIX; South Carolina, 1778, XXIII; New York, 1777, Article XXXIII; Vermont, 1777, Article XX; 1786, Article XXI; Massachusetts, 1780, Part 1, Chapter i, Section 3, Article VI.

6 Article VI, Carson, II, 442.

6 A council of two members from each Province elected by the assembly. Plan of the Earl of Stair, 1721, Section 3, Carson, II,

7 Carson, II, 469, 475.

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a resident of his district, and the principle of residence was strictly observed in the Articles of Confederation.2 Gorham of Massachusetts proposed two Senators from each State ;3 and Spaight of North Carolina that the Senators should be chosen by the State legislatures, 4-5 a proposition which he almost immediately withdrew, but which was a few days afterward renewed by Dickinson of Delaware. 8 The term for six years was proposed by Williamson of North Carolina, and also by Gorham and Wilson; that the Senators should "vote per capita” was proposed by Gouverneur Morris, but later more smoothly expressed by him, that "each Senator shall have one vote.” The Committee of Detail embodied these various suggestions which

1 Virginia, 1776, Section 4. The State was divided into 24 senatorial districts and each county was given two representatives; the districts were formed of groups of counties. A similar arrangement prevailed in Massachusetts, in the Constitution of 1780.

2 Article V. Of course a delegate to Congress was a citizen of the State which elected him, although Delaware did not strictly keep the rule,

3 July 23, Elliot, V, 356.
4 May 31, Elliot, V, 137.

5 Section 3: 1. The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof, for six Years; and each Senator shall have one Vote.

6 June 7, Elliot, V, 166. 7 June 25, Elliot, V, 241. By Gorham and Wilson, June 26. 8 July 23, Elliot, V, 356.

9 2. Immediately after they shall be assembled in Consequence of the first Election, they shall be divided as equally as may be into three Classes. The Seats of the Senators of the first Class shall be vacated at the Expiration of the second Year, of the second Class at the Expiration of the fourth Year, and of the third Class at the Expiration of the sixth Year; so that one third may be chosen every second Year; and if Vacancies 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.

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had been approved by the Convention and expressed them almost in the language of the Constitution.

In the frame of government for Pennsylvania which William Penn drew up in England in 1682, he provided for a provincial council, divided into three classes, an arrangement incorporated into the first constitution of Pennsylvania nearly a century later.1 A division of the Upper House into classes was also provided for in the first constitutions of Delaware, Virginia, South Carolina and New York.2 Doubtless it was the practice in South Carolina that suggested to Pinckney and Rutledge, of that State, on the eighth of June: to divide the Senate into three classes, and the idea was elaborated by the Committee of Detail, and reported as it stands in the Constitution. The age required of Senators, thirty years, was required in South Carolina and New Hampshire. It was agreed to, by the Committee of the Whole, in June, and, later, by the Committee of Detail. The longest period of residence which any State required of a Senator was seven years, in New Hampshire, but inhabitancy, from


1 See the Proprietary Frame, etc., for Pennsylvania, Article III, in the proceedings of the Conventions of 1776 and 1790, p. 20, and the adaptation of the Article in the Pennsylvania Constitution, 1776, p. 19; for the council of three classes, three, two, and one years, as in the Pennsylvania Frame.

2 Delaware 1776, Article IV (Council, 3 classes); Virginia, 1776 (Senate 4 classes); New York 1777, Article XI (Senate 4 classes, 4 years); South Carolina, 1778, Article IX (Council, 2 classes).

3 Elliot, V, 174.

4 South Carolina constitution, 1778; New Hampshire constitution, 1784.

5 June 18, Elliot, V, p. 189.

8 3. No Person shall be a Senator who shall not have attained to the Age of thirty years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen,

7 Constitution 1784.



one to five years, was required in all the States and, by implication, in the Articles of Confederation. It was on Randolph's suggestion that citizenship of nine years was required of Senators.2

That the Vice-President should be President of the Senate, but have no vote unless it be equally divided, was a compromise measure from the Committee of Eleven.3-4 In Pennsylvania and South Carolina the President presided over the council, and, in New York, the LieutenantGovernor over the Senate. That the Senate should choose its various officers was the practice in all the States that had an Upper House, though prescribed by the constitutions of only four. The provision was inserted in the Constitution by the Committee of Detail.? The precedent for making the Senate a court to try all impeachments was laid down in the constitutions of four States. 8

1 Article V. For the qualification of State senators, 1776-1800, see my Constitutional History of the American People, 1776-1850, Vol. I, pp. 77-80. The requirement of residence was not strictly followed by Delaware in choosing its delegates to Congress, 17761787.

2 August 9, Elliot, V, 400.
3 September 4, Elliot, V, 507.

4 4. The Vice-President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided.

5 Pennsylvania constitution, 1776, Sections 19 and 20; South Carolina 1776, Article V; New York, 1777, Article XX.

6 Maryland 1776, Article XXIV; South Carolina, 1776, Article 1X; Massachusetts 1780, Part 1, Chapter 1, Section 2, Article VII; New Hampshire, 1784.

75. The Senate shall chuse their other Officers, and also a President pro tempore in the Absence of the Vice-President, or when he shall exercise the Office of President of the United States.

8 Delaware, 1776, Article XXIII, by legislative council; New York, 1777, Article XXIII, by the Senate; Massachusetts, 1780, Part 1, Chapter I, Section 2, Article VIII; New Hampshire, 1784, by the Senate.

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