Section 2. _The Federal Congress._

[Sidenote: The House of Representatives.]

The federal House of Representatives is descended, through the state

houses of representatives, from the colonial assemblies. It is an

assembly representing the whole population of the country as if it were

all in one great state. It is composed of members chosen every other

year by the people of the states. Persons in any state who are qualified

to vote for state representatives are qualified to vote for federal

representatives. This arrangement left the power of regulating the

suffrage in the hands of the several states, where it still remains,

save for the restriction imposed in 1870 for the protection of the

southern freedmen. A candidate for election to the House of

Representatives must be twenty-five years old, must have been seven

years a citizen of the United States, and must be an inhabitant of the

state in which he is chosen.

[Sidenote: The three fifths compromise.]

As the Federal Congress is a taxing body, representatives and direct

taxes are apportioned among the several states according to the same

rule, that is, according to population. At this point a difficulty

arose in the Convention as to whether slaves should be counted as

population. If they were to be counted, the relative weight of the

slave states in all matters of national legislation would be much

increased. The northern states thought, with reason, that it would

be unduly increased. The difficulty was adjusted by a compromise

according to which five slaves were to be reckoned as three persons.

Since the abolition of slavery this provision has become obsolete, but

until 1860 it was a very important factor in American history.[7]

In the federal House of Representatives the great states of course

have much more weight than the small states. In 1790 the four largest

states had 32 representatives, while the other nine had only 33. The

largest state, Virginia, had 10 representatives to 1 from Delaware.

These disparities have increased. In 1880, out of thirty-eight states

the nine largest had a majority of the house, and the largest state,

New York, had 34 representatives to 1 from Delaware.

[Footnote 7: See my _Critical Period_, pp. 257-262.]

[Sidenote: The Connecticut compromise]

This feature of the House of Representatives caused

the smaller states in the Convention to oppose the whole scheme of

constructing a new government. They were determined that great and

small states should have equal weight in Congress. Their steadfast

opposition threatened to ruin everything, when fortunately a method

of compromise was discovered. It was intended that the national

legislature, in imitation of the state legislatures, should have an

upper house or senate; and at first the advocates of a strong national

government proposed that the senate also should represent population,

thus differing from the lower house only in the way in which we have

seen that it generally differed in the several states. But it happened

that in the state of Connecticut the custom was peculiar. There it

had always been the custom to elect the governor and upper house by a

majority vote of the whole people, while for each township there was

an equality of representation In the lower house. The Connecticut

delegates in the Convention, therefore, being familiar with a

legislature in which the two houses were composed on different

principles, suggested a compromise. Let the House of Representatives,

they said, represent the people, and let the Senate represent the

states; let all the states, great and small, be represented equally

in the federal Senate. Such was the famous "Connecticut Compromise."

Without it the Convention would probably have broken up without

accomplishing anything. When it was adopted, half the work of making

the new government was done, for the small states, having had their

fears thus allayed by the assurance that they were to be equally

represented in the Senate, no longer opposed the work but cooperated

in it most zealously.

[Sidenote: The Senate]

Thus it came to pass that the upper house of our national legislature

is composed of two senators from each state. As they represent the

state, they are chosen by its legislature and not by the people; but

when they have taken their seats in the senate they do not vote

by states, like the delegates in the Continental Congress. On the

contrary each senator has one vote, and the two senators from the same

state may, and often do, vote on opposite sides.

In accordance with the notion that an upper house should be somewhat

less democratic than a lower house, the term of office for senators

was made longer than for representatives. The tendency is to make the

Senate respond more slowly to changes in popular sentiment, and

this is often an advantage. Popular opinion is often very wrong at

particular moments, but with time it is apt to correct its mistakes.

We are usually in more danger of suffering from hasty legislation than

from tardy legislation. Senators are chosen for a term of six years,

and one third of the number of terms expire every second year, so

that, while the whole Senate may be renewed by the lapse of six years,

there is never a "new Senate." The Senate has thus a continuous

existence and a permanent organization; whereas each House of

Representatives expires at the end of its two years' term, and is

succeeded by a "new House," which requires to be organized by electing

its officers, etc., before proceeding to business. A candidate for the

senatorship must have reached the age of thirty, must have been nine

years a citizen of the United States, and must be an inhabitant of the

state which he represents.

The constitution leaves the times, places, and manner of holding

elections for senators and representatives to be prescribed in each

state by its own legislature; but it gives to Congress the power to

alter such regulations, except as to the place of choosing senators.

Here we see a vestige of the original theory according to which the

Senate was to be peculiarly the home of state rights.

[Sidenote: Electoral districts.]

[Sidenote: "Gerrymandering."]

In the composition of the House of Representatives the state

legislatures play a very important part. For the purposes of the

election a state is divided into districts corresponding to the number

of representatives the state is entitled to send to Congress. These

electoral districts are marked out by the legislature, and the division

is apt to be made by the preponderating party with an unfairness that is

at once shameful and ridiculous. The aim, of course, is so to lay out

the districts as to secure in the greatest possible number of them a

majority for the party which conducts the operation. This is done

sometimes by throwing the greatest possible number of hostile voters

into a district which is anyhow certain to be hostile, sometimes by

adding to a district where parties are equally divided some place in

which the majority of friendly voters is sufficient to turn the scale.

There is a district in Mississippi (the so-called Shoe String district)

250 miles long by 30 broad, and another in Pennsylvania resembling a

dumb-bell.... In Missouri a district has been contrived longer, if

measured along its windings, than the state itself, into which as large

a number as possible of the negro voters have been thrown.[8] This

trick is called "gerrymandering," from Elbridge Gerry, of Massachusetts,

who was vice-president of the United States from 1813 to 1817. It seems

to have been first devised in 1788 by the enemies of the Federal

Constitution in Virginia, in order to prevent the election of James

Madison to the first Congress, and fortunately it was unsuccessful.[9]

It was introduced some years afterward into Massachusetts. In 1812,

while Gerry was governor of that state, the Republican legislature

redistributed the districts in such wise that the shapes of the towns

forming a single district in Essex county gave to the district a

somewhat dragon-like contour. This was indicated upon a map of

Massachusetts which Benjamin Russell, an ardent Federalist and editor of

the "Centinel," hung up over the desk in his office. The celebrated

painter, Gilbert Stuart, coming into the office one day and observing

the uncouth figure, added with his pencil a head, wings, and claws, and

exclaimed, "That will do for a salamander!" "Better say a Gerrymander!"

growled the editor; and the outlandish, name, thus duly coined, soon

came into general currency.

[Illustration]

[Footnote 8: Tyler's _Patrick Henry_, p. 313.]

[Footnote 9: _Winsor's Memorial History of Boston_, vol. iii. p. 212;

see also Bryce, _loc. cit_. The word is sometimes incorrectly pronounced

"jerrymander." Mr. Winsor observes that the back line of the creature's

body forms a profile caricature of Gerry's face, with the nose at

Middleton.]

[Sidenote: The election their at large.]

When after an increase in its number of representatives the state has

failed to redistribute its districts, the additional member or members

are voted for upon a general state ticket, and are called

"representatives at large." In Maine, where the census of 1880 had

_reduced_ the number of representatives and there was some delay in the

redistribution, Congress allowed the State in 1882 to elect all its

representatives upon a general ticket. The advantage of the district

system is that the candidates are likely to be better known by

neighbours, but the election at large is perhaps more likely to secure

able men.[10] It is the American custom to nominate only residents of the

district as candidates for the House of Representatives. A citizen of

Albany, for example, would not be nominated for the district in which

Buffalo is situated. In the British practice, on the other hand, if an

eminent man cannot get a nomination in his own county or borough, there

is nothing to prevent his standing for any other county or borough. This

system seems more favourable to the independence of the legislator than

our system. Some of its advantages are obtained by the election at

large.

[Footnote 10: The difference is similar to the difference between the

French _scrutin d'arrondissement_ and _scrutin de liste_.]

[Sidenote: Time of assembling.]

Congress must assemble at least once in every year, and the constitution

appoints the first Monday in December for the time of meeting; but

Congress can, if worth while, enact a law changing the time. The

established custom is to hold the election for representatives upon the

same day as the election for president, the Tuesday after the first

Monday in November. As the period of the new administration does not

begin until the fourth day of the following March, the new House of

Representatives does not assemble until the December following that

date, unless the new president should at some earlier moment summon an

extra session of Congress. It thus happens that ordinarily the

representatives of the nation do not meet for more than a year after

their election; and as their business is at least to give legislative

expression to the popular opinion which elected them, the delay is in

this instance regarded by many persons as inconvenient and injudicious.

Each house is judge of the elections, qualifications, and returns of its

own members; determines its own rules of procedure, and may punish its

members for disorderly behaviour, or by a two thirds vote expel a

member. Absent members may be compelled under penalties to attend. Each

house is required to keep a journal of its proceedings and at proper

intervals to publish it, except such parts as for reasons of public

policy had better be kept secret. At the request of one fifth of the

members present, the yeas and nays must be entered on the journal.

During the session of Congress neither house may, without consent of the

other, adjourn for more than three days, or to any other place than that

in which Congress is sitting.

[Sidenote: Privileges of members.]

Senators and representatives receive a salary fixed by law, and as they

are federal functionaries they are paid from the federal treasury. In

all cases, except treason or felony or breach of the peace, they are

privileged from arrest during their attendance in Congress, as also

while on their way to it and while returning home; "and for any speech

or debate in either house they shall not be questioned in any other

place." These provisions are reminiscences of the evil days when the

king strove to interfere, by fair means or foul, with free speech in

parliament; and they are important enough to be incorporated in the

supreme law of the land. No person can at the same time hold any civil

office under the United States government and be a member of either

house of Congress.

[Sidenote: The Speaker.]

The vice-president is the presiding officer of the Senate, with power

to vote only in case of a tie. The House of Representatives elects its

presiding officer, who is called the Speaker. In the early history of

the House of Commons, its presiding officer was naturally enough its

_spokesman_. He could speak for it in addressing the crown. Henry

of Keighley thus addressed the crown in 1301, and there were other

instances during that century, until in 1376 the title of Speaker was

definitely given to Sir Thomas Hungerford, and from that date the list

is unbroken. The title was given to the presiding officers of the

American colonial assemblies, and thence it passed on to the state and

federal legislatures. The Speaker presides over the debates, puts the

question, and decides points of order. He also appoints the committees

of the House of Representatives, and as the initiatory work in our

legislation is now so largely done by the committees, this makes him

the most powerful officer of the government except the President.

[Sidenote: Impeachment in England]

The provisions for impeachment of public officers are copied from the

custom in England. Since the fourteenth century the House of Commons

has occasionally exercised the power of impeaching the king's

ministers and other high public officers, and although the power was

not used during the sixteenth century it was afterward revived and

conclusively established. In 1701 it was enacted that the royal pardon

could not be pleaded against an impeachment, and this act finally secured

the responsibility of the king's ministers to Parliament. An impeachment

is a kind of accusation or indictment brought against a public officer

by the House of Commons. The court in which the case is tried is the House

of Lords, and the ordinary rules of judicial procedure are followed.

The regular president of the House of Lords is the Lord Chancellor, who

is the highest judicial officer in the kingdom. A simple majority vote

secures conviction, and then it is left for the House of Commons to

say whether judgment shall be pronounced or not.

[Sidenote: Impeachment in the United States.]

In the United States the House of Representatives has the sole

power of impeachment, and the Senate has the sole power to try all

impeachments. When the president of the United States is tried,

the chief-justice must preside. As a precaution against the use of

impeachment for party purposes, a two thirds vote is required for

conviction; and this precaution proved effectual (fortunately, as most

persons now admit) in the famous case of President Johnson in 1868. In

case of conviction the judgment cannot extend further than "to removal

from office, and disqualification to hold and enjoy any office of

honour, trust, or profit under the United States;" but the person

convicted is liable afterward to be tried and punished by the ordinary

process of law.

[Sidenote: Veto power of the president]

The provisions of the Constitution for legislation are admirably

simple. All bills for raising revenue must originate in the lower

house, but the upper house may propose or concur with amendments, as

on other bills. This provision was inherited from Parliament, through

the colonial legislatures. After a bill has passed both houses it must

be sent to the president for approval. If he approves it, he signs

it; if not, he returns it to the house in which it originated, with

a written statement of his objections, and this statement must be

entered in full upon the journal of the house. The bill is then

reconsidered, and if it obtains a two thirds vote, it is sent,

together with the objections, to the other house. If it there

likewise obtains a two thirds vote, it becomes a law, in spite of the

objections. Otherwise it fails. If the president keeps a bill longer

than ten days (Sundays excepted) without signing it, it becomes a law

without his signature; unless Congress adjourns before the expiration

of the ten days, in which case it fails to become a law, just as if

it had been vetoed. This method of vetoing a bill just before the

expiration of a Congress, by keeping it in one's pocket, so to speak,

was dubbed a "pocket veto," and was first employed by President

Jackson in 1829. The president's veto power is a qualified form of

that which formerly belonged to the English sovereign but has now, as

already observed, become practically obsolete. As a means of guarding

the country against unwise legislation, it has proved to be one of the

most valuable features of our Federal Constitution. In bad hands it

cannot do much harm, it can only delay for a short time a needed law.

But when properly used it can save the country from, laws that if once

enacted would sow seeds of disaster very hard to eradicate; and it has

repeatedly done so. A single man will often act intelligently where

a group of men act foolishly, and, as already observed, he is apt to

have a keener sense of responsibility.

QUESTIONS ON THE TEXT.

What is to be said with regard to the following topics?

1. The House of Representatives:--

a. Its relation to the people.

b. The term of service.

c. Qualifications of those who may vote for representatives.

d. Qualifications for membership.

e. The three fifths compromise.

2. The Connecticut Compromise.

a. The powers of the different states in the House.

b. Opposition to the scheme of a new government.

c. What the advocates of a strong government wanted the Senate to

represent.

d. A peculiar Connecticut system.

e. The suggestion of the Connecticut delegates.

f. The effect of the compromise.

3. The Senate:--

a. The number of senators.

b. The method of electing senators.

c. The voting of senators.

d. The term of service.

e. The maintenance of a continuous existence.

f. A comparison with the House in respect to nearness to the people.

g. Qualifications for membership.

4. Elections for senators and representatives:--

a. Times, places, and manner of holding elections.

b. The power of Congress over state regulations.

c. Electoral districts.

d. The temptation to unfairness in laying out electoral districts.

e. Illustrations of unfair divisions.

f. "Gerrymandering."

g. Representatives at large.

h. The advantage of the district system.

i. The British system and its advantage.

5. The assembling of Congress:--

a. The time of assembling.

b. The interval between a member's election and the beginning of his

service.

c. The disadvantage of this long interval.

6. What is the duty of each house in respect (1) to its membership,

(2) its rules, (3) its records, and (4) its adjournment.

7. Give an account (1) of the pay of a congressman, (2) of his freedom

from arrest, (3) of his responsibility for words spoken in debate, and

(4) of his right to hold other office.

8. Tell (1) who preside in Congress, (2) how the name _speaker_

originated, (3) what the speaker's duties are, and (4) what his power

in the government is.

9. Impeachment of public officers:--

a. Old English usage.

b. The conduct of an impeachment trial in England.

c. The conduct of an impeachment trial in the United States.

d. The penalty in case of conviction.

10. The provisions of the Constitution for legislation:--

a. Bills for raising revenue.

b. How a bill becomes a law.

c. The president's veto power.

d. Passage of a bill over the president's veto.

e. The "pocket veto."

f. The veto power in England.

g. The value of the veto power.

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