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not (under their old constitutions) impeachable until he was out of office. So that no immediate remedy in those States was provided for gross malversations and corruptions in office, and the only redress lay in the elective power, followed up by prosecutions after the party had ceased to hold his office. Yet cases may be imagined where a momentary delusion might induce a majority of the people to re-elect a corrupt chief magistrate, and thus the remedy would be at once distant and uncertain. The provision in the Constitution of the United States, on the other hand, holds out a deep and immediate responsibility, as a check upon arbitrary power; and compels the chief magistrate, as well as the humblest citizen, to bend to the majesty of the laws.

1 The Federalist, No. 39. [The whole subject of impeachment and impeachable offences has recently received so exhaustive an examination in this country (on the trial of President Johnson) that we might content ourselves in this place with making a simple reference to that case. The times, however, were prolific in impeachments. Three governors were impeached, two of whom were convicted and removed; a fourth vacated his office on serious charges being preferred; and a judge of the Supreme Court of New York was found guilty of the most scandalous misconduct. These were only the most notable cases. Truly, the time was "out of joint.”]



§ 814. THE first clause of the fourth section of the first article is as follows: "The times, places, and manner of holding elections for senators and 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." 1

1 [An act regulating the election of senators has recently been passed, and is as follows:

"An act to regulate the times and manner of holding elections for senators in Congress.

"Be it enacted, &c., that the legislature of each State which shall be chosen next preceding the expiration of the time for which any senator was elected to represent said State in Congress, shall, on the second Tuesday after the meeting and organization thereof, proceed to elect a senator in Congress, in the place of such senator so going out of office, in the following manner: Each house shall openly, by a viva voce vote of each member present, name one person for senator in Congress from said State; and the name of the person so voted for, who shall have a majority of the whole number of votes cast in each house, shall be entered on the journal of each house by the clerk or secretary thereof; but if either house shall fail to give such majority to any person on said day, that fact shall be entered on the journal. At twelve o'clock meridian of the day following that on which proceedings are required to take place as aforesaid, the members of the two houses shall convene in joint assembly, and the journal of each house shall then be read; and if the same person shall have received a majority of all the votes in each house, such person shall be declared duly elected senator to represent said State in the Congress of the United States; but if the same person shall not have received a majority of the votes in each house, or if either house shall have failed to take proceedings as required by this act, the joint assembly shall then proceed to choose, by a viva voce vote of each member present, a person for the purpose aforesaid; and the person having a majority of all the votes of the said joint assembly, a majority of all the members elected to both houses being present and voting, shall be declared duly elected; and in case no person shall receive such majority on the first day, the joint assembly shall meet at twelve o'clock meridian of each succeeding day during the session of the legislature, and take at least one vote, until a senator shall be elected.

"Sec. 2. That, whenever on the meeting of the legislature of any State, a vacancy shall exist in the representation of such State in the Senate of the United States, said legislature shall proceed, on the second Tuesday after the commencement and organization of its session, to elect a person to fill such vacancy, in the manner hereinbefore provided for the election of a senator for the full term; and if a vacancy shall happen during the session of the legislature, then on the second Tuesday after the legislature shall have been organized and shall have notice of such vacancy.

§ 815. This clause does not appear to have attracted much attention, or to have encountered much opposition in the convention, at least so far as can be gathered from the journal of that body.1 But it was afterwards assailed by the opponents of the Constitution, both in and out of the State conventions, with uncommon zeal and virulence. The objection was not to that part of the clause which vests in the State legislatures the power of prescribing the times, places, and manner of holding elections; for so far it was a surrender of power to the State governments. But it was to the superintending power of Congress to make or alter such regulations. It was said that such a superintending power would be dangerous to the liberties of the people and to a just exercise of their privileges in elections. Congress might prescribe the times of elections so unreasonably as to prevent the attendance of the electors, or the place at so inconvenient a distance from the body of the electors as to prevent a due exercise of the right of choice. And Congress might contrive the manner of holding elections so as to exclude all but their own favorites from office. They might modify the right of election as they should please; they might regulate the number of votes by the quantity of property, without involving any repugnancy to the Constitution. These and other suggestions of a similar nature, calculated to spread terror and alarm among the people, were dwelt on with peculiar emphasis.


§ 816. In answer to all such reasoning, it was urged that there was not a single article in the whole system more completely defensible. Its propriety rested upon this plain proposition, that every government ought to contain in itself the means of its own preservation.3 If, in the Constitution, there were


"Sec. 3. That it shall be the duty of the governor of the State from which any senator shall have been chosen as aforesaid, to certify his election, under the seal of the State, to the president of the Senate of the United States, which certificate shall be countersigned by the secretary of state of the State." Approved July 25, 1866.

The election of representatives after 1874 is provided for by the Act of Congress of February 2, 1872, which requires the elections to be in districts of contiguous territory, and to be held on the Tuesday next after the first Monday in November in the year 1876, and every two years thereafter.]

1 Journal of Convention, p. 218, 240; Id. 354, 374.

2 1 Elliot's Debates, 43 to 50; Id. 53 to 68; 2 Elliot's Debates, 38, 39, 72, 149, 150; 3 Elliot's Debates, 57 to 74; 2 American Museum, 438; Id. 435; Id. 545; 3 American Museum, 423; 2 Elliot's Debates, 277.

The Federalist, No. 59; 2 Elliot's Debates, 276, 277.

departures from this principle, (as it might be admitted there were,) they were matters of regret, and dictated by a controlling moral or political necessity, and they ought not to be extended. It was obviously impracticable to frame and insert in the Constitution an election law which would be applicable to all possible changes in the situation of the country, and convenient for all the States. A discretionary power over elections must be vested somewhere. There seemed but three ways in which it could be reasonably organized. It might be lodged either wholly in the national legislature, or wholly in the State legislatures, or primarily in the latter and ultimately in the former. The last was the mode adopted by the convention. The regulation of elections is submitted, in the first instance, to the local governments, which, in ordinary cases and when no improper views prevail, may both conveniently and satisfactorily be by them exercised. But in extraordinary circumstances, the power is reserved to the national government, so that it may not be abused, and thus hazard the safety and permanence of the Union.1 Nor let it be thought that such an occurrence is wholly imaginary. It is a known fact that, under the confederation, Rhode Island, at a very critical period, withdrew her delegates from Congress, and thus prevented some important measures from being carried.2

§ 817. Nothing can be more evident than that an exclusive power in the State legislatures to regulate elections for the national government would leave the existence of the Union entirely at their mercy. They could, at any time, annihilate it by neglecting to provide for the choice of persons to administer its affairs. It is no sufficient answer that such an abuse of power is not probable. Its possibility is, in a constitutional view, decisive against taking such a risk; and there is no reason for taking it. The Constitution ought to be safe against fears of this sort, and against temptations to undertake such a project. It is true that the State legislatures may, by refusing to choose senators, interrupt the operations of the national government, and thus involve the country in general ruin. But because, with a view to the establishment of the Constitution, this risk was necessarily taken when the appointment of senators was vested in the. State legislatures, still it did not follow that a power so dangerous ought to be conceded in cases

1 The Federalist, No. 59; 2 Elliot's Debates, 38, 39; Id. 276, 277.

2 1 Elliot's Debates, 44, 45; the Federalist, No. 22.

where the same necessity did not exist. On the contrary, it became the duty of the convention, on this very account, not to multiply the chances of mischievous attempts of this sort. The risk, too, would be much greater in regard to an exclusive power over the elections of representatives than over the appointment of senators. The latter are chosen for six years, the representatives for two years. There is a gradual rotation of office in the Senate, every two years, of one third of the body, and a quorum is to consist of a mere majority. The result of these circumstances would naturally be, that a combination of a few States, for a short period, to intermit the appointment of senators, would not interrupt the operations or annihilate the existence of that body. And it is not against permanent, but against temporary combinations of the States, that there is any necessity to provide. A temporary combination might proceed altogether from the sinister designs and intrigues of a few leading members of the State legislatures. A permanent combination could only arise from the deep-rooted disaffection of a great majority of the people; and, under such circumstances, the existence of such a national government would neither be desirable nor practicable.1 The very shortness of the period of the elections of the House of Representatives might, on the other hand, furnish means and motives to temporary combinations to destroy the national government; and every returning election might produce a delicate crisis in our national affairs, subversive of the public tranquillity, and encouraging to every sort of faction.2

§ 818. There is a great distinction between the objects and interests of the people and the political objects and interests of their rulers. The people may be warmly attached to the Union and its powers and its operations, while their representatives, stimulated by the natural rivalship of power and the hopes of personal aggrandizement, may be in a very opposite temper, and artfully using all their influence to cripple or destroy the national government.3 Their motives and objects may not at first be clearly discerned; but time and reflection will enable the people to understand their own true interests, and to guard themselves against insidious factions. Besides, there will be occasions in which the

1 The Federalist, No. 59.

2 Id.

8 The Federalist, No. 59; 1 Elliot's Debates, 43 to 55; Id. 67, 68; 3 Elliot's Debates, 65.

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