CHAPTER XVI.

VESTING THE LEGISLATIVE POWER.

ARTICLE I.

Section 1. 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.

263.-Congress Bicameral.-As a rule, the legislatures of English-speaking countries have consisted of two houses. The House of Commons, as a distinct house of Parliament, dates from 1265. With few exceptions, the State Legislatures in 1787 consisted of two houses. In some countries, and notably in France, one house, or the unicameral system, was formerly preferred. The great argument for two houses is, that one will check and balance the other. This plan tends to secure a more thorough consideration of subjects coming before the legislature, and so to prevent hasty and ill-considered legislation.'

264. Names of the Legislature and the Houses.Naturally, the Federal Convention gave to the new Legislature the name that the old one had borne, and to the two Houses names by which corresponding State bodies were known. Congress, Senate, and House of Representatives were familiar names. It is both common and convenient to call the Houses the Upper and the Lower Houses, but this language is not found in the Constitution or laws, and is merely popular.

1 This is well illustrated by an anecdote. Soon after his return from France, in 1789, Mr. Jefferson, who was much influenced by French ideas, dined with Washington. He severely attacked the two-house plan as obstructive and mischievous. Washington replied that he adhered to the experience of England and America. You yourself," he said, "have proved the excellence of two houses this very moment." "I," said Jefferson, "how is that, General?" "You have," replied Washington, "turned your hot tea from the cup into the saucer, to get it cool. It is the same thing we desire of the two houses."-Life and Letters of Francis Lieber, p. 417. And yet there was strong objection made to introducing this system into the National Government, as has been shown in Part I.

265. True Theory of Representation.-This cannot be better stated than in Judge Cooley's words:

"Representatives are chosen in States and districts; but when chosen they are legislators for the whole country, and are bound in all they do to regard the interest of the whole. Their own immediate constituents have no more right than the rest of the Nation to address them through the press, to appeal to them by petition, or to have their local interests considered by them in legislation. They bring with them their knowledge of local wants, sentiments, and opinions, and may enlighten Congress respecting these, and thereby aid all the members to act wisely in matters which affect the whole country; but the moral obligation to consider the interest of one part of the country as much as that of another, and to legislate with a view to the best interests of all, is obligatory upon every member, and no one can be relieved from this obligation by instructions from any source. Moreover, the special fitness to legislate for all, which is acquired by the association, mutual information, and comparison of views of a legislative body, cannot be had by the constituency, and the advantages would be lost to legislation if the right of instruction were recognized.

266. The Right of Instruction.—The traditional theory of the House of Commons is, that every member, although elected by a particular constituency, serves for the whole realm and not merely for the people that elected him. Blackstone says: "Therefore he is not bound like a deputy of the United Provinces to consult with, or take the advice of, his constituents upon any particular point, unless he himself thinks it proper or right to do so." Although a determined effort was made to establish the opposite one in the United States, the same theory has been established here both as respects the Senate and the House of Representatives.

In 1789 an unsuccessful attempt was made in the House of Representatives to insert in one of the proposed amendments to the Constitution a clause reserving to the people the right of instruction. Some advocates have affirmed the duty of a representative to obey such instructions when properly given, or to resign his office. Little is now heard of this right; but formerly it was common for State

1 The Principles of Constitutional Law, pp. 41, 42.

Legislatures, and even for popular conventions, to instruct Senators and Representatives. Hugh L. White, Senator from Tennessee, maintained the doctrine of instruction in its extreme form; and when, in 1839, he could not conscientiously obey certain instructions that he had received from the Legislature of his State, he resigned. In recent years Legislatures have sometimes requested that a particular course be pursued by Senators and Representatives. The doctrine was defended on the ground that it is democratic. It is plainly impracticable, since there are no certain means of ascertaining what the people want without resorting to an election. Some of the States have incorporated the right of instruction into their constitutions, but no State has gone so far as to require the Representative to obey.1

1 Switzerland has carried the democratic principle, or the direct participation of the people in government, farther than any other country. Not only do the voters, under certain condition, pass upon bills that the Federal and Cantonal Legislatures have first approved, but they even initiate measures. See discussions of the Referendum and the Initiative: Vincent, State and Federal Government in Switzerland; Adams and Cunningham, The Swiss Confederation. See also The Atlantic Monthly, April, 1894, The Referendum in Switzerland and in America, and Lalor's Cyclopædia, Article, Instructions.

CHAPTER XVII.

COMPOSITION AND ORGANIZATION OF THE HOUSE OF REPRESENTATIVES.

ARTICLE I.

Section 2, Clause 1.-The House of Representatives shall be composed of members chosen every second year by the people of the several States, and the electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State Legislature.

267. Representative's Term.-Some members of the Convention wished to limit the Representative's term to one year, and some wished to extend it to three years. The first argued that a short term would keep the Representative mindful of his dependence upon the people; the second, that a long term would tend to give the Government permanence and stability. Two years was finally agreed upon as reasonably combining both ends.1

268. Representatives Elected by the People.Except in Connecticut and Rhode Island, where they were elected by the people, the delegates to the Old Congress were appointed by the State Legislatures. But it was an essential part of the new plan that the House of Representatives should be chosen by the people of the States. Hence it is called the popular branch of Congress. The legally qualified electors of State representatives are declared legally qualified electors of National Representatives. But as no State has more than one rule of suffrage, the man who may vote for State representatives may also vote for Governor, etc. As each State makes its own rules, subject to a single limitation, a man may vote for a Representative in

1 This clause also determines the length of a Congress. It is the same as the Representative's term. The first Congress legally began March 4, 1789; the Fifty-third Congress, March 4, 1893.

one State who cannot on moving to another. The single limitation referred to is found in section 1, Article XV., of Amendments: "The right of citizens of the United States to vote shall not be denied or abridged by the United States, or by any State, on account of race, color, or previous condition of servitude." By giving the electors of National Representatives the same qualifications as electors of State representatives, the Constitution provides indirectly that State representatives shall be elected by the people.1

Section 2, Clause 2.-No person shall be a Representative who shall not have attained to the age of twenty-five years, and been seven years a citizen of the United States, and who shall not, when elected, be an inhabitant of that State in which he shall be chosen.

269. Original Qualifications of Representatives.Beyond providing that no man should sit more than three years in six, the Articles of Confederation did not fix the qualifications of members of Congress. All other qualifications were left to the State. But the Constitution fixes the three qualifications of age, citizenship, and inhabitancy. The ages fixed, and the period of citizenship in the case of foreign-born citizens, are short enough to qualify men to sit in either House of Congress. Obviously, too, a legislature should consist wholly of citizens of the nation or state. In a great country like the United States, it is important that members of Congress shall be inhabitants of the States that elect them. As a rule, residents of New England could not intelligently represent the people of California. It is not necessary for a Representative to live in the district that he represents, but such is the almost unvarying custom. Again, inhabitancy and residence are different things. "An inhabitant is a bona fide member of the State, subject to all the requisites of law, and entitled

1 In Great Britain it is common for members of the House of Commons not to live within the constituencies that elect them. A resident of London or Edinburgh may represent any constituency in England, Scotland, or Wales. Mr. Glaqstone, who resides in Wales, has for many years sat for Midlothian, in Scotland. This rule there works well. It brings many able men into Parliament who would otherwise be shut out. A man twenty-one years of age, if otherwise qualified, can sit in Parliament. Such, too, is the rule in most of our State Legislatures.