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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, three-fifths 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 argaments 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, by law, to make or alter 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 behaviour to incur punishment, nor what kind of punisbment 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.
Bat a power extending beyond their own precincts, and affecting others than their own members, bas 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: strong considerations of public policy support it. 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 ju
dicial 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 can 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. But 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 distarbance 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 wbich 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 institation of a summary juris
diction 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 and may be authorized to compel the attendance of absent members in such manner and under such penalties as each house may provide.
Neither house without the consent of the other shall adjourn for more than three days, nor to any other place than that in which the two houses shall be sitting
Each house shall keep a journal of its proceedings, and from time to time publish the same, excepting such parts as may in their judgments require secrecy, and the yeas and nays of the members of either house shall, at the desire of one-fifth of those present, be entered on the journal.
Of the President's participation in the Legislative
THE president partakes of the legislative power; he is elected for the term of four years, in a mode of which the theory is excellent, but in no respect have the enlarged and profound views of the framers of the constitution, or the expectations of the people been so completely frustrated.
The constitution as it originally stood, prescribed that each state should appoint in such manner as the legislature may direct, a number of electors, equal to the whole number of senators and representatives to which the state might be entitled in congress. The time of choosing electors, and the day on which they give their votes, is to be the same throughout the United States, and to be determined by congress.
The electors were to meet in their respective states and yote by ballot for two persons, of whom one at least shall not be an inhabitant of the same state with themselves. The votes being transmitted to the senate, were to be opened by its president in the presence of the senate and house of representatives. The person having the greatest number of votes was to be president if such number be a majority of the wbole number of the electors appointed, and if there be more than one who had such majority and had an equal number of votes, the house of representatives were to immediately choose by ballot one of them for president, and if no person had a majority the house should in like manner choose the president out of the five highest