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of states, where the apportionment is made among countiesbut 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
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.
Number of Representatives.
1789. 1791. 1803. 1813. 1823.
Territories sending Delegates.
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, threefifths 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 behavour 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