The Revolutionary Period.—The nation was born July 4, 1776. From that time until the adoption of the articles of confederation in 1781 the people of the United States carried on their governmental affairs by means of a congress "clothed with undefined powers for the general good."
This congress had, speaking "in the name and by the authority of the good people of these colonies," issued the declaration of independence; it had entered into an alliance with France; and it had prosecuted the war almost to a successful issue, before it had received any definite warrant for its acts. Its acts were justified by necessity, and had their authority in the "common consent" of a majority of the people. During nearly all of the revolutionary war, the people of the colonies were largely "held together by their fears."
Their History.—But these were pre-eminently a people of peace and good order. This is shown in part by the spirit and form of the declaration of independence. They had no idea of allowing themselves to lapse or drift into anarchy. They understood the necessity for a permanent government.
Accordingly, when, on the eleventh of June, 1776, a committee of congress was appointed to "abolish" one form of government by drafting a declaration of independence, another committee was appointed to frame a plan on which to "institute a new government."
After more than a month's deliberation this committee reported its plan, embodied in what is called articles of confederation. This plan was discussed from time to time, and finally, somewhat modified, was agreed to by congress, November 15, 1777. It was then submitted to the states for ratification.
In July, 1778, the articles were ratified by ten of the states. New Jersey ratified in November, 1778, and Delaware in February, 1779. But the articles were not to become binding until ratified by all the states, and Maryland did not authorize her delegates in congress to sign the instrument in ratification until March 1, 1781. (Maryland claims to have fought through the revolutionary war, not as a member but as an ally of the United States.)
Their peculiarities.—The articles of confederation were different from our present constitution, both in principle and in method of operation, as follows:
1.The nature of the government formed.The government was that of a "confederation of states," each retaining its sovereignty and independence. The union was declared to be a "firm league of friendship." It was to be perpetual.
2.The branches of government.Only one was provided for, a congress. No provision was made for executive or judicial officers apart from the congress itself.
3.The structure of the congress.The congress consisted of only one house or chamber. Members were elected for one year, subject to recall at any time, and they were paid by their respective states. No person was eligible to membership for more than three years in any period of six years. No state could be represented by "less than two, nor more than seven members." Each state had one vote.
4.The powers of congress."The United States in congress assembled" had power to treat with foreign countries, to send and receive ambassadors, to determine peace and war. Congress was the last resort on appeal in all disputes between the states; could fix the standard of weights and measures, and of the fineness of coin; could establish and regulate postoffices; could ascertain and appropriate "the necessary sums of money to be raised for the service of the United States;" could borrow money "on the credit of the United States;" could agree upon the number of land forces and make requisition on each state for its quota; and could appoint a committee consisting of one member from each state, to sit during the vacations of congress.
5.Powers denied to the states.No state could enter into any treaty with another state or with a foreign nation, nor engage in war, except by consent of "the United States in congress assembled;" nor keep vessels of war or a standing army in time of peace, except such number as congress should deem necessary.
Reasons for the peculiarities.—Suffering breeds caution. Every one of the peculiarities was based upon distrust.
The people were afraid to trust their delegates. This is manifest in the shortness of the term, the provision for recall, the reserved right to control the delegates by controlling their pay, and the limitation as to service.
The states were afraid of each other, especially were the small states distrustful of the large ones. This is evidenced in the provision that each state should have one vote. By this arrangement the states had equal power in the congress.
The people and the states were afraid of the general government. A central government was a necessity, but it was given only very limited powers. The people would not have an executive officer, because they feared anything resembling kingly rule. They did not dare to establish a national judiciary having jurisdiction over persons and property, because their experience with "trials beyond the sea" had made them wary of outside tribunals.
It is to be observed, however, that with all their distrust, in spite of the fact that their colonial or state jealousies and habits had returned upon them, notwithstanding their specific statement in the instrument itself that "each state retains its sovereignty," the instinct of nationality was yet strong enough to cause them to continue in the general government the actual sovereign powers. Thus, the "United States" alone could treat with foreign nations, declare war, and make peace. Another great sovereign power, that of coining money, was unfortunately shared by the states.
Their defects.—The great defect in the articles of confederation was that they placed too little power in the hands of the general government. Although congress possessed the right to declare war, it could only apportion the quota of men to each state; the states raised the troops. And so on with the other powers. The government of the United States during the confederation period was "a name without a body, a shadow without a substance." An eminent statesman of the time remarked that "by this political compact the continental congress have exclusive power for the following purposes without being able to execute one of them: They may make and conclude treaties; but they can only recommend the observance of them. They may appoint ambassadors; but they cannot defray even the expenses of their tables. They may borrow money on the faith of the Union; but they cannot pay a dollar. They may coin money; but they cannot buy an ounce of bullion. They may make war and determine what troops are necessary; but they cannot raise a single soldier. In short, they may declare everything, but they can do nothing."
The consequences.—"The history of the confederation during the twelve years beyond which it was not able to maintain itself, is the history of the utter prostration, throughout the whole country, of every public and private interest,—of that which was, beyond all comparison, the most trying period of our national and social life. For it was the extreme weakness of the confederate government, if such it could be called, which caused the war of independence to drag its slow length along through seven dreary years, and which, but for a providential concurrence of circumstances in Europe, must have prevented it from reaching any other than a disastrous conclusion. When, at last, peace was proclaimed, the confederate congress had dwindled down to a feeble junto of about twenty persons, and was so degraded and demoralized, that its decisions were hardly more respected than those of any voluntary and irresponsible association. The treaties which the confederation had made with foreign powers, it was forced to see violated, and treated with contempt by its own members; which brought upon it distrust from its friends, and scorn from its enemies. It had no standing among the nations of the world, because it had no power to secure the faith of its national obligations. For want of an uniform system of duties and imposts, [Footnote: Each state regulated its own commerce.] and by conflicting commercial regulations in the different states, the commerce of the whole country was prostrated and well-nigh ruined…. Bankruptcy and distress were the rule rather than the exception…. The currency of the country had hardly a nominal value. The states themselves were the objects of jealous hostility to each other…. In some of the states rebellion was already raising its horrid front, threatening the overthrow of all regular government and the inauguration or universal anarchy." [Footnote: Dr. J. H. McIlvaine in Princeton Review, October, 1861. Read also Fiske's Critical Period of American History, chapter IV.]
"For several years efforts were made by some of our wisest and best patriots to procure an enlargement of the powers of the continental congress, but from the predominance of state jealousies, and the supposed incompatibility of state interests with each other, they all failed. At length, however, it became apparent, that the confederation, being left without resources and without powers, must soon expire of its own debility. It had not only lost all vigor, but it had ceased even to be respected. It had approached the last stages of its decline; and the only question which remained was whether it should be left to a silent dissolution, or an attempt should be made to form a more efficient government before the great interests of the Union were buried beneath its ruins." [Footnote: Story]
Preliminary Movements.—In 1785 a resolution was passed by the legislature of Massachusetts declaring the articles of confederation inadequate, and suggesting a convention of delegates from all the states to amend them. No action, however, was taken. In the same year commissioners from Virginia and Maryland met at Alexandria, Va., to arrange differences relative to the navigation of the Potomac, the Roanoke, and Chesapeake Bay. The deliberations showed the necessity of having other states participate in the arrangement of a compact. In 1786 the legislature of Virginia appointed commissioners "to meet such as might be appointed by the other states of the Union, … to take into consideration the trade of the United States." Only four states accepted the invitation. Commissioners from the five states met at Annapolis, and framed a report advising that the states appoint commissioners "to meet at Philadelphia on the second Monday in May next, to take into consideration the situation of the United States, to devise such further provisions as shall appear to them necessary to render the constitution of the federal government adequate to the exigencies of the Union." [Footnote: Elliot's Debates] In accordance with this suggestion, congress passed a resolution, February 21, 1787, recommending that a convention of delegates, "who shall have been appointed by the several states, be held at Philadelphia, for the sole and express purpose of revising the articles of confederation." [Footnote: Elliott's Debates]
The Constitutional Convention.—In response to the call of congress,delegates from all the states except Rhode Island met in Philadelphia. ByMay 25, a quorum had assembled, the convention organized, with GeorgeWashington as chairman, and began its momentous work.
It was soon discovered that it would be useless to attempt to amend the articles of confederation. They were radically defective, and a new plan of government was seen to be necessary. Thenationalidea must be re-established as the basis of the political organization.
"It was objected by some members that they had no power, no authority, to construct a new government. They certainly had no authority, if their decisions were to be final; and no authority whatever, under the articles of confederation, to adopt the course they did. But they knew that their labors were only to be suggestions; and that they as well as any private individuals, and any private individuals as well as they, had a right to propose a plan of government to the people for their adoption…. The people, by their expressed will, transformed this suggestion, this proposal, into an organic law, and the people might have done the same with a constitution submitted to them by a single citizen." [Pomeroy's Constitutional Law, p. 55]
The labors of the convention lasted four months. The constitution was agreed to September 15, 1787.
Some of the difficulties encountered.—Of these perhaps the most formidable was the adjustment of power so as to satisfy both the large and the small states. So long as the idea of having the congress consist of one house remained, this difficulty seemed insurmountable. But the proposal of the bicameral congress proved a happy solution of the question. [Footnote: See discussion of section 1, Article I., Constitution, page 124.]
Although so much distress had followed state regulation of commerce, and although most of the delegates from the commercial states were in favor of vesting this power in the federal government, it was only after much deliberation, and after making the concession that no export duties should be levied, that the power to regulate commerce was vested in congress.
Another perplexing question was the regulation of the slave trade. For two days there was a stormy debate on this question. By a compromise congress was forbidden to prohibit the importation of slaves prior to 1808, but the imposition of a tax of ten dollars a head was permitted.
The men who constituted the convention.—The convention included such men as George Washington, Alexander Hamilton, Benjamin Franklin, James Madison, Roger Sherman, Gouverneur Morris, Edmund Randolph, and the Pinckneys. "Of the destructive element, that which can point out defects but cannot remedy them, which is eager to tear down but inapt to build up, it would be difficult to name a representative in the convention." [Footnote: Cyclopedia of Political Science, vol. I., article "Compromises."]
The constitution a growth.—The constitution was not an entirely new invention. The men who prepared it were wise enough not to theorize very much, but rather to avail themselves of the experience of the ages. Almost every state furnished some feature. For instance: The title President had been used in Pennsylvania, New Hampshire, Delaware, and South Carolina; The term Senate had been used in eight states; the appointment and confirmation of judicial officers had been practiced in all the states; the practice of New York suggested the president's message, and that of Massachusetts his veto; each power of the president had its analogy in some state; the office of vice-president came from that of lieutenant governor in several of the states.
Some of its peculiarities.—And yet the instrument is one of the most remarkable ever penned by man.
1.It is short. It would not occupy more than about two columns of a newspaper.
2.It covers the right ground. It deals with things permanent, and leaves transient matters to legislation. Its adaptation to our needs is seen in the fact that it has remained substantially unchanged, although in territory and population our country has grown immensely.
3.It is a model in arrangement and language. The lucidity and perspicuity of the language of the constitution have called forth expressions of admiration from all who have studied it carefully.
Probably its master-stroke is the creation of the national judiciary.
Let us now proceed to a study of the instrument itself, prepared to weigh carefully every sentence.
Some Pertinent Questions.
Group all the defects of the government under the articles of confederation using these two heads: 1. Defects in organization. 2. Defects in essential powers.
In the constitutional convention there were several "plans" proposing forms of government. State the provisions of the Virginia plan; of the New Jersey plan; of the Hamilton plan; the Connecticut plan. Watch for traces of each as you proceed in your study of the constitution.
Memorize the following outline of the constitution:
PREAMBLE, giving reasons for the formation of the constitution.
ARTICLE I.—The Legislative Department.
Sec. 1. Vestment of power in a congress of two houses.
Sec. 2. House of representatives: apportionment, qualifications, election, term, sole powers.
Sec. 3. Senate: apportionment, qualifications, election, term, sole powers.
Sec. 4. Congress: time and place of election, time of meeting.
Sec. 5. Houses respectively: relations to members.
Sec. 6. Provisions common: privileges and disabilities.
Sec. 7. Mode of passing laws.
Sec. 8. Powers of congress.
Sec. 9. Prohibitions on congress.
Sec. 10. Prohibitions on the states.
ARTICLE II.—The Executive Department.
Sec. 1. Vestment of power, term, qualifications, election, etc.
Sec. 2. Powers.
Sec. 3. Duties.
Sec. 4. Responsibility.
ARTICLE III.—The Judicial Department.
Sec. 1. Vestment of authority, appointment, term, etc.
Sec. 2. Jurisdiction.
Sec. 3. Treason, definition, procedure.
ARTICLE IV.—The States.
Sec. 1. Mutual credit of official papers.
Sec. 2. Inter-state relations.
Sec. 3. New states and territories.
Sec. 4. Republican form of government guaranteed.
ARTICLE V.—Mode of Amending the Constitution
ARTICLE VI.—Miscellaneous
ARTICLE VII.—Ratification
1-10. Personal rights guaranteed.
11. Limitation on Jurisdiction of U.S. Courts.
12. Mode of electing the president and vice-president.
13-15. Fruits of the Civil War.
[Illustration: PRINCIPAL STORY (For Key see back of page.)]
[Illustration: THE PRINCIPAL STORY OF THE CAPITOL.]
We, the people of the United States,[2] in order to form a more perfect union,[3] establish justice,[4] insure domestic tranquillity,[5] provide for the common defense,[6] promote the general welfare,[7] and secure the blessings of liberty to ourselves and our posterity,[8] do ordain and establish this constitution for the United States of America.
[1] The preamble or enacting clause is very important, because it states the purposes for which the constitution was framed, and is, therefore, a valuable aid in interpreting its provisions.
[2] These words are important, because: First, they recognize the people as the source of power. Second, they show that the constitution is different in nature from the articles of confederation. The latter was a compact between states, adopted by state legislatures acting for the states as such; the former was "ordained and established" by "the people of the United States,"onepeople, acting as a unit. And the expression, which was inserted in the preamble after due deliberation, is, therefore, an argument in favor of the proposition that this is anationand not a mere confederacy.
[3] "More perfect" than under the articles of confederation, in which the states were declared sovereign and independent. The sovereignty is given by the constitution to the general government, which is clothed with ample power to maintain its independence. At the same time such limitations are placed upon its power as will prevent its becoming despotic.
[4] To establish justice is one of the primary purposes of government. Under the articles of confederation there had been no national judiciary, and state courts often discriminated against foreigners and citizens of other states. To remedy this, to establish fair-handed justice throughout the land, the national judiciary was created by the constitution.
[5] "Domestic tranquillity" means here peace among the states and within each state. The condition of affairs during the confederation period had been woeful. A long war had impoverished the people, and unable to pay their taxes they had in several places broken out in rebellion. Each state by commercial regulations was trying to better its fortunes even at the expense of the others. These regulations, and disputes about boundaries, kept the states quarreling among themselves.
By transferring to the general government the power to regulate commerce with foreign nations and among the states, by giving it power to enforce treaties, and by creating a tribunal with authority to settle controversies between states, the framers of the constitution removed in a large measure the irritating causes of discord. But toinsurepeace, the general government was expressly given power to put down insurrections in the states.
[6] To defend the country is another of the important duties of government. The United States could do this better than each state could defend itself. Several reasons are obvious. Therefore the general government was empowered to raise and maintain an army and navy, and it thus became "competent to inspire confidence at home and respect abroad."
[7] "To promote the general welfare" was the great object for which the government was organized, and all the provisions of the constitution have that in view. This expression was intended to cover all those things which a government may properly do for the good of the people. It is very elastic, as it was intended to be, and has covered acts as different as the purchase of Louisiana, and the endowment of agricultural colleges, the granting of a patent, and the establishment of post-offices.
[8] This is a worthy climax to the preamble. The great struggle, which began in the mother country, continued through colonial times, and culminated in the revolution, had been for liberty. The love of liberty had illumined the pathway of the pilgrims crossing unknown seas; it had glowed in the Declaration of Independence; it had warmed the hearts of the half-clad soldiers at Valley Forge.
Liberty had now been won; the problem was how to render it secure. The desired security was to be found only in the formation of a government having all powers necessary for national sovereignty and independence, while retaining in the states all powers necessary for local self-government.
All legislative powers herein granted, shall be vested in a congress of the United States, which shall consist of a senate and house of representatives.[2]
[1] The division of governmental functions among three branches has already been discussed on page 79.
The legislative branch comes first and occupies most space in the constitution because its framers regarded the legislative as the most important branch. And laws must bemadebefore they can be interpreted or executed.
[2] Thereasonfor the creation of two houses or chambers was that thus only could the conflicting claims of the large and small states be reconciled. It was, in fact, acompromise, the first of a series.
Only a few in the convention thought at first of having two houses, the plan being to continue as under the articles of confederation with one house. On the question of apportioning representatives, it was found that there was a decided difference of opinion. The small states wished to continue the principle of the articles of confederation, which gave the several states equal power. But the large states insisted that the power of a state should bein proportion to its population. The differences were finally settled by the creation of two houses, in one of which the states should have equal power, and in the other the representation should be based upon population.
Connecticut has the honor of furnishing this valuable compromise. In her legislature, representation in one house was based on population; in the other, the towns had equal representation.
Among theadvantagesof having two houses, aside from that mentioned on page 80, are these: It tends to prevent a few popular leaders from carrying through laws not designed for the common good; it secures a review of any proposed measure by men elected in different ways and looking at it from different standpoints. As our congress is organized, the members of the house of representatives, being elected by popular vote and for a short term, are likely to represent with considerable faithfulness the wishes of the people. But the people may be for a time wrong—as, for instance, in the persecution of the "witches"—and senators, who by their mode of election and length of term are made somewhat independent, can comparatively without fear do what seems right, even if temporarily unsupported by public opinion.
Clause 1.—Composition and Term.
The house of representatives shall be composed of members chosen every second year[2] by the people[3] of the several states, and the electors[4] in each state shall have the qualifications requisite for electors of the most numerous branch of the state legislature.[5]
[1] So called because it represents the people.
[2] The term under the confederation had been one year. This was too short to permit any adequate study of the subjects to be legislated upon. This longer term, two years, is still short enough to impose upon representatives the feeling of responsibility.
The term begins March 4, at noon. The time covered by a representative's term is calleda congress;thus we speak of the fortieth congress, meaning the fortieth two years of our constitutional existence. The name also applies to the body constituting our national legislative department during that time. Thus we say that a certain person is a member of congress.
"A congress" includes two regular sessions and any number of extra sessions which the president may see fit to call or which may be provided for by law. The first regular session is called "the long session," because congress may remain in session through the summer, if it choose. The second is called "the short session," because it must end March 4, at noon. Expiring thus by limitation, it lasts not more than about three months.
[3] The wordpeoplehere meansvoters.
Each state is divided by its legislature into congressional districts equal in number to the representatives to which it is entitled, and the people of each district elect one representative. Sometimes when a state has its representation increased after a new census, the old congressional districts are left for a time undisturbed, and the added representatives are elected "at large," while the others are chosen by districts as before.
[4] Voters.
[5] The qualifications for voting in any state are fixed by the state itself, and different states require different qualifications. When the constitution was framed, but not now, some states required higher qualifications in voters for the upper house of the state legislature than in voters for the lower; so that more persons could vote for members of the lower, which is always the "most numerous" branch, than for the higher. Desiring to make the United States house of representatives as "popular" as possible, the framers of the constitution determined that all whom any state was willing to trust to vote for a member of the lower house of the state legislature, the United States could trust to vote for members of its lower house.
Clause 2.—Qualifications.
No person shall be a representative who shall not have attained the age of twenty-five years,[1] and been seven years a citizen of the United States,[2] and who shall not, when elected, be an inhabitant of that state in which he shall he chosen.[3]
[1] For business and voting purposes a man "comes of age" at twenty-one years. Four years of probation are considered the least amount of time necessary to fit him for the responsibilities of a member of the house of representatives.
[2] A born citizen will at twenty-five years of age have been a citizen for twenty-five years. A naturalized citizen must have lived in the United States for at least twelve years, [Footnote: Eight years in the case of an honorably discharged soldier who may become a citizen on one year's residence.] five years to become a citizen and seven years afterwards, before being eligible to the house of representatives. These twelve years will have given him time to become "Americanized."
[3] Residence in the state is required in order that the state may be represented by persons interested in its welfare. No length of time is specified, however. Residence in the district is not required by the constitution, because the distribution of representatives within a state is left to the state itself. A personmaybe chosen to represent a district in which he does not live, and this has been done in a few instances. One does not lose his seat by moving from the district or even from the state, but propriety would impel resignation.
1. Persons holding any office under the United States. [I., 6, 2.]
2. Persons who by engaging in rebellion against the United States have violated their oath to support the constitution, unless the disability be removed. [Am. XIV., 3.]
Clause 3.—Apportionment.
The parts of this clause enclosed in brackets are now obsolete.
Representatives and direct taxes[1] shall be apportioned among the several states which may be included within this Union, according to their respective numbers,[2] [which shall he determined by adding to the whole number of free persons[3] including those bound to service [4] for a number of years, and] excluding Indians not taxed, [three-fifths of all other persons.[5]] The actual enumeration[6] shall he made within three years after the first meeting of the congress of the United States,[7] and within every subsequent term of ten years, in such manner as they shall by law direct. The number of representatives shall not exceed one for every thirty thousand,[8] but each state shall have at least one representative,[9] [and until such enumeration shall he made, the State of New Hampshire, shall be entitled to choose three, Massachusetts eight, Rhode Island and Providence Plantations one, Connecticut five, New York six, New Jersey four, Pennsylvania eight, Delaware one, Maryland six, Virginia ten, North Carolina five, South Carolina five, and Georgia three.]
[1] These are like the usual local taxes; that is, "poll" taxes and taxes on real and personal property. A tax on incomes derived from such property was, in May, 1895, declared by the United States Supreme Court to be a direct tax. United States direct taxes have been laid only in 1798, 1813, 1815, 1816, 1862.
[2] The revolutionary war had just been fought to maintain the principle, "taxation and representation go hand in hand," and this provision was made in harmony therewith. The including of direct taxes was a concession to the slaveholding states.
[3] Men, women and children. [4] Apprentices.
[5] Slaves. The framers of the constitution did not like to use the word "slave," and therefore used this expression. Most of them, even the slaveholders, hoped that slavery would soon cease to be.
In determining the persons to be enumerated, much difficulty was encountered. The slaveholding states wished the slaves counted as individuals, claiming that they had as much right to be represented as had women, children and other non-voters. The non-slaveholding [Footnote: In all the states except Massachusetts slavery then existed. But in the northern states the number of slaves was so small, that we may call them "non-slaveholding."] states thought that being held as property they should not be counted at all for purposes of representation. This provision in the constitution was the outcome,—another compromise.
[6] Called theCensus. The prime purpose in taking the census is to find out the number of people in each state, so that representation may be equalized. But the census takers collect at the same time a vast amount of other useful information upon the agriculture, manufactures, commerce, etc., of the country. Reports of the census are published by the government for gratuitous distribution.
[7] The first meeting of congress was held in 1789, and the first census was taken in 1790.
[8] To prevent the House from becoming too large. But the population of the United States has constantly and rapidly increased, so that the "ratio of representation," as it is called, has been made greater at each census. It now takes 173,901 people to secure a representative. (For ratio in each decade, see pages 312-13.)
[9] So that even the smallest states shall be represented.
Clause 4.—Vacancies.
When vacancies[1] happen in the representation from any state, the executive authority[2] thereof shall issue writs of election[3] to fill such vacancies.[4]
[1] Vacancies usually happen through the death or resignation of the incumbent. But a vacancy may be made by the expulsion of a member or by the election of an ineligible person.
[2] The governor or acting governor.
[3] That is, he orders an election. The order is printed in the newspapers of the district, and specifies the time the election is to be held. At the time specified the electors vote as in regular elections. This is called a "special election."
[4] The person elected serves for the unexpired term.
_Clause 5.—House Powers.
The House of Representatives shall choose their speaker[1] and other officers;[2] and shall have the sole power of impeachment[3]._
[1] Called so in imitation of the title of the presiding officer of the British House of Commons, who was originally called the speaker because he acted as spokesman in communicating to the king the wishes of the House.
The speaker is chosen by ballot from among the members, and serves during the pleasure of the House. At the beginning of each congress a new election is held. A speaker may be re-elected. Henry Clay served as speaker for ten years.
The duties of the speaker are prescribed by the rules of the House. So far, he has always appointed the committees. As the work of legislation is largely shaped by committees, it may be fairly asked whether any one else can so affect the legislation of the country as can the speaker—whether, indeed, he has not too much power.
[2] The most important "other officers" are the clerk and the sergeant-at-arms.
The clerk, as his title would indicate, has charge of the records of theHouse. He has a number of assistants.
The sergeant-at-arms acts under the orders of the speaker in keeping order and in serving processes. His duties in the House resemble those of the sheriff in court.
The doorkeeper, postmaster, and chaplain, have duties indicated by their titles.
These officers are elected by the House and serve during its pleasure, usually two years. Assistants are appointed by the officers whom they assist.
None of these officers are members of the House.
[3] An impeachment is a solemn accusation in writing, formally charging a public officer with crime. "The articles of impeachment are a sort of indictment; and the House, in presenting them, acts as a grand jury, and also as a public prosecutor." [Footnote: Story's Exposition of the Constitution of the United States.]
For further discussion of impeachment, see pages 138, 203 and 331. A very interesting account of the impeachment trial of Secretary Belknap is given in Alton'sAmong the Lawmakers, pages 245-250. Mr. B. is hidden under a fictitious name.
On impeachment, see also Wilson'sCongressional Government, page 275.
Each member of the class should prepare a tabulation like this, filling out the blanks briefly.
I. NUMBER—1. Based upon.2. Limitations.(a)(b)II. QUALIFICATIONS.1.2.3.4.5.III. ELECTION—IV. TERM—Y. VACANCY—
Pertinent Questions.
What is a constitution? A law? A preamble? How many of the reasons assigned in the preamble for establishing this government are general and how many are special?
How many houses do most legislative bodies have? How many did the congress under the confederation have? Why? Why has congress two houses?
How many representatives has this state in the U.S. congress? Give their names by districts. In which district do you live? When was your representative elected? By the census of 1880, Alabama had a population of 1,262,505; how many representatives should it have? Nevada had only 62,261 inhabitants, but has a representative; how do you account for the fact? What proportion of U.S. officers are elected?
What is the "most numerous branch" of this state's legislature called? What qualifications must electors to that house have? Whom else can such persons therefore vote for? If this state desired higher qualifications in electors for United States representatives, how could she require them? Should not the United States designate the qualifications of voters for members of congress? May one who is not a citizen of the United States vote for a member of congress?
What is the number of the present congress? When did it begin? How many members in the present House of Representatives? Just how was that number determined? Name the speaker. What political party is in the majority in the present House? Is congress now in session?
Must a representative reside in thedistrictfrom which he is chosen? If your representative should move to another state, would he lose his seat? If a person twenty-four years and ten months old at the time of election should be chosen representative, would he be eligible?
How long must an alien live in the United States to be eligible to the house? Is there any exception?
If $13,000,000 were to be raised for the use of the United States by direct taxation, how much would this state have to pay? How much would Alaska have to pay? How would this state raise the money?
Are there any people in this state who are not counted in making up the representative population?
When was the first United States census taken? How many have since been taken? When was the last taken? When will the next be taken?
How did members of congress vote under the confederation? How do they now vote?
How is Utah represented in congress? The District of Columbia?
What five states had the largest representation in the first congress? What five have now? Which two have fewer members now than in the first congress? Which three have just the same number?
Name the present officers of the House of Representatives. Are any of them from this state?
How does our House of Representatives compare with the British House of Commons in the number of members? In the length of their terms? In the age required for eligibility? What famous speech have you read in reply to one in which a certain member of the House of Commons had been alluded to contemptuously as "a young man?"
Could one who is not a voter be elected to the house? Is a woman eligible? Could the state impose other qualifications than those mentioned in the constitution?
Clause 1.—Composition.
The Senate of the United States shall be composed of two senators from each state,[2] chosen by the legislature thereof,[3] for six years;[4] and each senator shall have one vote.[5]
[1] Latinsenatus, fromsenex, an old man. This dignified term seems a favorite, being used in many countries to designate the upper house. In other countries a term is used having the same signification.
[2] This arrangement will be remembered as the concession made by the large states to the small ones.
Had the number of senators been fixed at one from each state, equality of power among the states would still have been secured; but sickness or accident might then leave a state unrepresented. By having two, this difficulty is obviated. The two can consult about the needs of their state; and the Senate is large enough to "confer power and encourage firmness." Three from each state would bring no advantages which are not now secured, while the Senate would be unnecessarily large and expensive.
[3] This mode of election was fixed upon for two reasons: First, the senators represent the state, as such, and hence it seemed proper that they should be chosen by the body which acts for the state in its corporate capacity; second, the members of the House of Representatives being elected by the people, it was deemed advisable to elect the senators in a different way, in order that, by representing different elements, each house might act as a check upon the other. Incidentally, election by the legislature was considered good, because it would serve as a connecting link between the states and the United States.
[4] The long term gives dignity and independence to the position of senator; it gives assurance of stability in the national councils, and tends to secure for them confidence at home and respect abroad; it raises senators "above the whims and caprices of their constituents, so that they may consult their solid interests, rather than their immediate wishes."
[5] Under the confederation each state had from two to seven members of congress, but only one vote. If the delegation was equally divided on any question, or if only one member was present, the state lost its vote.
By the present arrangement a state need not go entirely unrepresented on account of the absence of one of its senators.
Clause 2.—Classification and Vacancies.
Immediately after they shall be assembled in consequence of the first election, they shall be divided, as equally as may be, into three classes.[1] 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;[2] 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.[3]
[1] The object of this division is to secure for the Senate at all times a large proportion of experienced members. By this arrangement, too, the Senate becomes a permanent body, ready at any time to convene for the consideration of treaties, for the trial of impeachments, or for confirming executive appointments.
[2] Only ten states were represented when, on May 15, 1789, this classification was first made. (North Carolina and Rhode Island had not yet ratified the constitution, and New York's senators had not yet presented their credentials.) The twenty senators had on the preceding day been grouped by name into three classes, two of seven senators each, and one of six. By the drawing of three numbered slips of paper, seven fell into class 1, seven into class 2, and six into class 3, with terms ending March 3, 1791, 1793, and 1795, respectively. After the classification had been fixed, the two senators from New York appeared. One was placed, by lot, in class 3 (thus filling the classes), and then the other, also by lot, in class 1. The two senators from the next state, North Carolina, were therefore placed in the unfilled classes 2 and 3. Since 1795, each class holds for six years, and a senator's term expires with that of his class.
[3] Senators represent the state, and are elected by the body which acts for the state,—by the legislature if in session, temporarily by the governor if it is not.
Clause 3.—Qualifications.
No person shall be a senator, who shall not have attained to the age of thirty years,[1] and been nine years a citizen of the United States,[2] and who shall not, when elected, be an inhabitant of that state from which he shall be chosen.[3]
[1] This was also the age for eligibility to the Roman Senate. It is five years more than the requirement for membership in the House.
[2] Two years of citizenship more than required of a representative. As the Senate acts with the president in making treaties, this requirement seems none too great.
[3] The propriety of this is self-evident. (I. 2: 2.)
Clause 4.—Presiding Officer.
The vice-president of the United States shall be president of the Senate,[1] but shall have no vote,[2] unless they be equally divided.[3]
[1] This arrangement was made for three reasons:
First. It would give the vice-president something to do.
Second. Partaking in the executive business of the Senate would give the vice-president excellent training for the duties of the presidency, in case he should be called thereto.
Third. The equality of power among the states would remain undisturbed. Had it been arranged that the Senate should choose its own presiding officer from among its members, one state might thereby gain (or lose) power in the Senate.
[2] Because he is not a member of the Senate. For this reason, also, he cannot take part in debates, nor can he appoint committees. These are elected by the Senate itself.
[3] But for his casting vote; a "dead-lock" might occur on some important question. This "might give rise to dangerous feuds, or intrigues, and create state or national agitations."
Clause 5.—Other Officers.
The Senate shall choose their other officers,[1] and also a president pro tempore,[2] in the absence of the vice-president, or when he shall exercise the office of president of the United States.
[1] These are similar to those of the House. (See p. 131.)
[2] The presidentpro temporeis chosen from among the senators. Being a senator, he can debate and vote upon any question. He cannot, of course, give a "casting vote," because that would virtually give him two votes.
The presidentpro temporeserves during the pleasure of the Senate, or until the expiration of his senatorial term.
It is the general practice for the vice-president to vacate his chair at the beginning of the session, to permit the Senate to chose a presidentpro tempore, so that if during vacation the vice-president should become president, the Senate might not be without a presiding officer. Until recently this was quite important, for the presidentpro temporeof the Senate was next to the vice-president in the succession to the presidency. But the succession has been changed. (See p. 190.)
Clause 6.—Impeachment.
The Senate shall have the sole power to try all impeachments.[1] When sitting for that purpose, they shall be on oath or affirmation.[2] When the president of the United States is tried, the chief Justice shall preside;[3] and no person shall be convicted without the concurrence of two-thirds of the members present.[4] Judgement in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust or profit, under the United Sates;[5] but the party convicted shall, nevertheless, be liable and subject to indictment, trial, judgment and punishment, according to law.[6]
[1] For the mode of conducting impeachments, see pages 131 and 331.
To have impeachments tried by a court of law would be unwise for several reasons: In the first place, judges should be kept free from political contests, in order that they may retain the proper judicial frame of mind. In the second place, judges are appointed by the executive, who may be the one impeached. Lastly, a judge is himself subject to impeachment.
[2] To enhance the solemnity of the occasion. The British House of Lords when sitting as a high court of impeachment is not under oath. But courts usually are.
[3] The vice-president, having interest in the result, would be disqualified. The chief justice, from the dignity of his station and his great experience in law, seems the fittest person to preside on such a grave occasion. Except in this single instance, however, the vice-president presides in trials on impeachment.
[4] In an ordinary court, the verdict of the jury must be unanimous. To require similar agreement in this case would be to make it next to impossible ever to convict. To allow a bare majority to convict would be to place too little protection over a public officer.
[5] But for this provision abuses of power might occur in times of political excitement and strife. The question which the Senate settles is simply whether, in view of the evidence, the accused is or is not worthy to hold public office.
[6] This provision was inserted to prevent an official who had been deposed for crime from pleading the principle that "No one can be twice tried and punished for the same offense."
Number………………………………………..AgeQualifications……Citizenship………………….InhabitancyElection………………………………………Term………………………………………….Vacancy……………………………………….Presiding Officer Title………………………..How Chosen……………………Sole Powers……………………………………Debate.
Resolved, That United States Senators should be elected by the people.
Pertinent Questions.
Name the present senators from this state. When were they elected? Were they elected to fill a vacancy or for a full term? How many times has each been elected?
How many more senators has New York that Rhode Island? How many members in the present Senate? How many in each class? When the next state is admitted, in what classes will its senators be placed? How will the class of each be decided?
Why not have senators chosen for life?
If one of our senators should resign today, to whom would the resignation be addressed? How would the vacancy be filled? How long would the appointee serve? Could the governor appoint himself?
How long at least must an alien live in the United States before being eligible to the Senate? Has anyone ever been refused admission, after being duly elected, on account of shortness of citizenship?
Who is now vice-president? Who is presidentpro temporeof the Senate? Why is it not correct under any circumstances to speak of the presidentpro temporeas vice-president?
Has the vice-president's vote ever helped to carry any measures of great importance?
If every senator be "present," what number of senators would it take to convict? Does the accused continue to perform his official duties during the trial? Was President Johnson impeached? Is there any appeal from the Senate's verdict? How do senators vote in cases of impeachment? How is judgment pronounced?
What punishments follow conviction on impeachment in other countries?
What is treason? Bribery? What are crimes? High crimes? Misdemeanors?
How is an impeachment trial conducted? (See appendix.)
Clause 1.—Elections to Congress.
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,[1] except as to the place of choosing senators.[2]
[1] Until 1842 these matters were left entirely with the several states. Congress then provided that representatives should be elected by districts of contiguous territory, equal to the number of representatives. It has since provided that elections for representatives shall be by ballot, and that the election shall be on the first Tuesday after the first Monday of November in the even numbered years.
The time and mode of electing senators are given on page 333.
[2] This would in effect be giving congress power to locate the capital of a state.
Clause 2.—Meetings.
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.
They havenotby law appointed a different day.
"Annual meetings of the legislature have long been deemed, both in England and America, a great security to liberty and justice." By making provision in the constitution for annual meetings, the duty could not be evaded.
Extra sessions of congress may be called at any time by the president or be provided by law. There used to be three sessions, one beginning March 4.
Theplaceof meeting is not named, because the capital had not been located, and in some cases it might be desirable to hold the session elsewhere.
Clause 1. Membership: Quorum.
Each house shall be the judge of the elections, returns and qualifications of its own members,[1] and a majority of each shall constitute a quorum to do business;[2] 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.[3]
[1] This means simply that each house has the power to determine who are entitled to membership in it. This has long been recognized in free countries as a right belonging to a legislative body, necessary to the maintenance of its independence and purity—even its existence. But when the parties are nearly balanced, the majority is tempted to seat its fellow-partizan.
[1] This is the number usually established as a quorum for a deliberative body. Certainly no smaller number should have a right to transact business, for that would give too much power to an active minority. And to require more than a majority, would make it possible for a minority to prevent legislation.
[3] Under the rules no member has a right to be absent from a session unless excused or sick. Unexcused absentees, unless sick, may be arrested and brought to the capitol by the sergeant-at-arms or a special messenger.
When fewer than fifteen members are present, they usually adjourn.
Clause 2.—Discipline.
Each house may determine the rules of its proceedings,[1] punish its members for disorderly behavior, and with the concurrence of two-thirds, expel a member.[2]
[1] The rules are intended to facilitate business, by preventing confusion and unnecessary delay. They are designed also to check undue haste.
The rules of each house are based upon the English parliamentary practice, as are the rules of all legislative or deliberative bodies wherever the English language is spoken. (See "Manuals" of Senate and House.)
[2] It seems unlikely that even in times of great excitement two-thirds of either house would favor expulsion unless it were deserved. This is also, it will be observed, the number necessary to convict in case of impeachment.
Clause 3.—Publicity.
Each house shall keep a journal of its proceedings, and, from time to time, publish the same,[1] excepting such parts as may, in their judgment, require secrecy;[2] and the yeas and nays[3] of the members of either house, shall at the desire of one-fifth of those present, be entered on the journal.[4]
[1] This is to give publicity to the proceedings of congress, for the benefit of both legislators and constituents. This provision is a valuable one, in spite of the fact that demagogues are sometimes able thereby to gain cheap glory.
To give still further publicity to the proceedings, spectators and newspaper reporters are admitted to the gallery of each house, and members may have their speeches printed and distributed.
[2] The House of Representatives rarely has a secret session. But the Senate still keeps its executive sessions secret.
[3] For methods of voting see page 314.
[4] The purpose of this provision is to make members careful how they vote, for the record is preserved. It will be noticed that the number necessary to secure the record is small.
While this provision is intended to protect the minority, by enabling them to impose responsibility upon the majority, it is open to abuse. It is sometimes used by a minority to delay unnecessarily the proper transaction of business. (For a graphic account of "filibustering," see Among the Law Makers, 165-173.)
Clause 4—Adjournment.
Neither house, during the session of congress, shall 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.
The purpose of this provision is evident.
The sessions of congress may end in any one of three ways:
1. The terms of representatives may end.
2. The houses may agree to adjourn.
[Illustration: SENATE CHAMBER]
[Illustration: HOUSE OF REPRESENTATIVES]
[Illustration: STATE, WAR AND NAVY DEPARTMENTS.]
[Illustration: INTERIOR DEPARTMENT]
3. In case of disagreement between the houses as to the time of adjournment, the president may adjourn them. (This contingency has never yet arisen, however.)
Clause 1.—Privileges.
The senators and representatives shall receive a compensation for the services,[1] to be ascertained by law,[2] and paid out of the treasury of the United States.[3] They shall in all cases except treason,[4] felony,[4] and breach of the peace, be privileged from arrest during their attendance at the session of their respective houses, and in going to and returning from the same;[5] and for any speech or debate in either house, they shall not be questioned in any other place.[6]
[1] See discussion in connection with state legislature, p. 85.
[2] The salary of congressmen is, therefore, fixed by themselves, subject only to the approval of the president. It is now $5000 a year, and mileage. The speaker receives $8000 a year and mileage. The presidentpro temporeof the Senate receives the same while serving as president of the Senate.
[3] They are serving the United States.
[4] Defined on pages 158 and 211.
[5] So that their constituents may not for frivolous or sinister reasons be deprived of representation.
[6] That is, he cannot be sued for slander in a court of justice, but he can be checked by his house, if necessary, and the offensive matter omitted from the Record.
The purpose of this provision is not to shield cowards in speaking ill of persons who do not deserve reproach, but to protect right-minded members in exposing iniquity, no matter how the doers of it may be intrenched in wealth or power.
Clause 2.—Restrictions.
No senator or representative shall, during the time for which he was elected, be appointed to any civil office under the authority of the United States, which shall have been created, or the emoluments whereof shall have been increased during such time;[1] and no person holding any office under the United States shall be a member of either house during his continuance in office.[2]
[1] The obvious purpose of this provision is to remove from members of congress the temptation to create offices with large salaries for their own benefit, or to increase for a similar reason the salaries of offices already existing. It was designed also to secure congress from undue influence on the part of the president.
The wisdom of the provision has, however, been seriously questioned. "As there is a degree of depravity in mankind, which requires a certain degree of circumspection and distrust, so there are other qualities in human nature, which justify a certain portion of esteem and confidence. Republican government presupposes the existence of these qualities in a higher form, than any other. It might well be deemed harsh to disqualify an individual from any office, clearly required by the exigencies of the country, simply because he had done his duty…. The chances of receiving an appointment to a new office are not so many, or so enticing, as to bewilder many minds; and if they are, the aberrations from duty are so easily traced, that they rarely, if ever, escape the public reproaches. And if influence is to be exerted by the executive, for improper purposes, it will be quite as easy, and its operation less seen, and less suspected, to give the stipulated patronage in another form." [Footnote: Judge Story.]
[2] This was to obviate state jealousy, to allay the fears entertained by some that the general government would obtain undue influence in the national councils.
Each pupil may make out a tabulation, giving briefly the facts called for in this outline:
I. CONGRESSIONAL ELECTIONS, HOW REGULATED.II. SESSIONS OF CONGRESS—1. Frequency.2. Time of beginning.III. POWERS AND DUTIES OF EACH HOUSE—1. Membership.2. Quorum.3. Discipline.4. Publicity.5. Adjournment.IV. MEMBERS OF CONGRESS—1. Privileges.2. Restrictions.
Debate.
Resolved, That members of the cabinet should have seats in congressex officio.
Pertinent Questions.
Why not leave the power to regulate congressional elections unreservedly with the states? Where are the United States senators from this state elected?
How are United States senators elected? See appendix.
Is congress now in session? Will the next session be the long or the short one? When, within your recollection, was there an "extra session" of congress? Could the president convene one house without the other? Which is the longest session of congress on record? Does congress meet too often?
Where does congress now meet? Is that the best place? At what different places has congress met since the adoption of the constitution?
If two persons should claim the same seat in the House of Representatives, who would decide between them? How would the contest be carried on? (See page 330.) Has there ever been a "contested" election from this state?
What number of representatives is the least that could transact business? The least number of senators? The least number of representatives that could possibly pass a bill? Of senators? What is done if at any time during the proceedings it is found that there is "no quorum present?"
Has a member ever been expelled from either house? May either house punish for disorder persons who are not members? Can either house temporarily set aside all of its rules?
Did you ever see a copy of the Congressional Record? If congress be now in session, make a weekly report of its proceedings. How could you see congress in session? Could you be a spectator at a committee meeting? How could you witness an "executive session" of the Senate?