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erted, in some instances, under the influence of local or party feelings, to an extent which is indefensible in principle and policy. There is no uniformity in the choice or in the mode of election. In some States the representatives are chosen by a general ticket for the whole State; in others they are chosen singly in districts; in others they are chosen in districts composed of a population sufficient to elect two or three representatives; and in others the districts are sometimes single, and sometimes united in the choice. In some States the candidate must have a majority of all the votes to entitle him to be deemed elected; in others (as it is in England) it is sufficient if he has a plurality of votes. In some of the States the choice is by the voters viva voce (as it is in England); in others it is by ballot.1 The times of the elections are quite as various; sometimes before, and sometimes after the regular period at which the office becomes vacant. That this want of uniformity as to the time and mode of election has been productive of some inconveniences to the public service cannot be doubted; for it has sometimes occurred that at an extra session a whole State has been deprived of its vote, and at the regular sessions some districts have failed of being represented upon questions vital to their interests. Still, so strong has been the sense of Congress of the importance of leaving these matters to State regulation, that no effort has been hitherto made to cure these evils ; and public opinion has almost irresistibly settled down in favor of the existing system.2

§ 827. Several of the States, at the time of adopting the Constitution, proposed amendments on this subject; but none were ever subsequently proposed by Congress to the people, so that the public mind ultimately acquiesced in the reasonableness of the existing provision. It is remarkable, however, that none of the amendments proposed in the State conventions purported to take away entirely the superintending power of Congress, but only restricted it to cases where a State neglected, refused, or was disabled to exercise the power of regulating elections.3

§ 828. It remains only to notice an exception to the power of Congress in this clause. It is, that Congress cannot alter or make regulations "as to the place of choosing senators." This excep

1 1 Tucker's Black. Comm. App. 192.

2 1 Tucker's Black. Comm. App. 191, 192.

3 See Journal of Convention, Supplement, p. 402, 411, 418, 425, 433, 447, 454.

tion is highly reasonable. The choice is to be made by the State legislature, and it would not be either necessary or becoming in Congress to prescribe the place where it should sit. This exception was not in the revised draft of the Constitution, and was adopted almost at the close of the convention; not, however, without some opposition, for nine States were in its favor, one against it, and one was divided.1

§ 829. The second clause of the fourth section of the first article is as follows: "The Congress shall assemble at least once in every year; and such meeting shall be on the first Monday in December, unless they shall by law appoint a different day." This clause, for the first time, made its appearance in the revised draft of the Constitution, near the close of the convention, and was silently adopted, and, so far as can be perceived, without opposition. Annual parliaments had been long a favorite opinion and practice with the people of England; and in America, under the colonial governments, they were justly deemed a great security to public liberty. The present provision could hardly be overlooked by a free people, jealous of their rights; and therefore the Constitution fixed a constitutional period at which Congress should assemble in every year, unless some other day was specially prescribed. Thus the legislative discretion was necessarily bounded, and annual sessions were placed equally beyond the power of faction and of party, of power and of corruption. In two of the States a more frequent assemblage of the legislature was known to exist. But it was obvious that, from the nature of their duties and the distance of their abodes, the members of Congress ought not to be brought together at shorter periods, unless upon the most pressing exigencies. A provision so universally acceptable requires no vindication or commentary.2

§ 830. Under the British constitution the king has the sole right to convene and prorogue and dissolve Parliament. And although it is now usual for Parliament to assemble annually, the power of prorogation may be applied at the king's pleasure, so as to prevent any business from being done. And it is usual for the king, when he means that Parliament should assemble to do business, to give notice by proclamation accordingly; otherwise a prorogation is, of course, on the first day of the session.3

1 Journal of Convention, 354, 374.

2 The Federalist, No. 52.

8 1 Black. Comm. 187, 188, and Christian's Note; 2 Wilson's Law Lect. 154, 155.

§ 831. The fifth section of the first article embraces provisions principally applicable to the powers, rights, and duties of each house in its separate corporate character. These will not require much illustration or commentary, as they are such as are usually delegated to all legislative bodies in free governments, and were in practice in Great Britain at the time of the emigration of our ancestors, and were exercised under the colonial governments, and have been secured and recognized in the present State constitutions.

§ 832. The first clause declares that "each house shall be the judge of the elections, returns, and qualifications of its own members, and a majority of each 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." 1

§ 833. It is obvious that a power must be lodged somewhere to judge of the elections, returns, and qualifications of the members of each house composing the legislature; for otherwise there could be no certainty as to who were legitimately chosen members, and any intruder or usurper might claim a seat, and thus trample upon the rights and privileges and liberties of the people. Indeed, elections would become, under such circumstances, a mere mockery, and legislation the exercise of sovereignty by any self-constituted body. The only possible question on such a subject is as to the body in which such a power shall be lodged. If lodged in any other than the legislative body itself, its independence, its purity, and even its existence and action may be destroyed or put into imminent danger. No other body but itself can have the same motives to preserve and perpetuate these attributes; no other body can be so perpetually watchful to guard its own rights and privileges from infringement, to purify and vindicate its own character, and to preserve the rights and sustain the free choice of its constituents. Accordingly, the power has always been lodged in the legislative body by the uniform practice of England and America.2

1 See the New Jersey Elections for 1841 1843, where the house refused the governor's certificate of election under the State seal as prima facie evidence of election, and the subsequent proceedings. [Quincy's Memoir of John Quincy Adams, 295.]

21 Black. Comm. 163, 178, 179; Rawle on the Constitution, ch. 4, p. 46; 1 Kent, Comm. 220; 2 Wilson's Law Lect. 153, 154.

§ 834. The propriety of establishing a rule for a quorum for the despatch of business is equally clear, since otherwise the concerns of the nation might be decided by a very small number of the members of each body. In England, where the house of commons consists of nearly six hundred members, the number of forty-five constitutes a quorum to do business.1 In some of the State constitutions a particular number of the members constitutes a quorum to do business; in others a majority is required. The Constitution of the United States has wisely adopted the latter course; and thus, by requiring a majority for a quorum, has secured the public from any hazard of passing laws by surprise, or against the deliberate opinion of a majority of the representative body.

§ 835. It may seem strange, but it is only one of many proofs of the extreme jealousy with which every provision in the Constitution of the United States was watched and scanned, that though the ordinary quorum in the State legislatures is sometimes less, and rarely more, than a majority, yet it was said that in the Congress of the United States more than a majority ought to have been required; and in particular cases, if not in all, more than a majority of a quorum should be necessary for a decision. Traces of this opinion, though very obscure, may perhaps be found in the convention itself.2 To require such an extraordinary quorum for the decision of questions would, in effect, be to give the rule to the minority instead of the majority, and thus to subvert the fundamental principle of a republican government. If such a course were generally allowed, it might be extremely prejudicial to the public interest in cases which required new laws to be passed, or old ones modified, to preserve the general, in contradistinction to local or special interests. If it were even confined to particular cases, the privilege might enable an interested minority to screen themselves from equitable sacrifices to the general weal, or, in particular cases, to extort undue indulgences. It would also have a tendency to foster and facilitate the baneful practice of secession, a practice which has shown itself even in States where a majority

1 1 Tucker's Black. Comm. App. 201, 202, 203, 229. I have not been able to find, in any books within my reach, whether any particular quorum is required in the house of lords. [Three lords constitute a quorum; see 2 English Jurist, 1829, p. 261, 262; Cooper's Lettres sur le Chancellerie, Letter 18, p. 134; Macqueen's Practice of House of Lords, p. 19.-E. H. B.] [See also Cooley's Blackstone, Vol. 3, p. 56 note.] 2 The Federalist, No. 58; Journal of Convention, 218, 242.

only is required, which is subversive of all the principles of order and regular government, and which leads directly to public convulsions and the ruin of republican institutions.1

§ 836. But as a danger of an opposite sort required equally to be guarded against, a smaller number is authorized to adjourn from day to day, thus to prevent a legal dissolution of the body, and also to compel the attendance of absent members.2 Thus, the interests of the nation and the despatch of business are not subject to the caprice or perversity or negligence of the minority. It was a defect in the articles of confederation, sometimes productive of great public mischief, that no vote, except for an adjournment, could be determined, unless by the votes of a majority of the States; and no power of compelling the attendance of the requisite number existed.


1 The Federalist, Nos. 22, 58.

2 Journal of Convention, 218, 242; 4 Instit. 43, 49.

3 Confederation, art. 9; 1 Elliot's Debates, 44, 45; the Federalist, No. 22.

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