Imágenes de páginas
PDF
EPUB

be a quorum to do business; but a smaller number may adjourn from day to day, and may compel the attendance of absent members. See Art. I. Sec. V. § 1.

The power given to the Senate and to the House of Representatives, each to pass upon the validity of the elections of its own members, and upon their personal qualifications, seems to be unbounded. But I am very strongly of the opinion that the two houses together, as one Congress, cannot pass any statute containing a general rule by which the qualifications of members as described in the Constitution, are either added to or lessened. Such a statute would not seem to be a judgment of each house upon the qualifications of its own members, but a judgment upon the qualifications of the members of the other branch. The power is sufficiently broad as it stands; indeed there is absolutely no restraint upon its exercise except the responsibility of representatives to their constituents. Under it the House inquires into the validity of elections, going behind the certificate of returning officers, examining witnesses, and deciding whether the sitting member or the contestant received a majority of legal votes. The House has also applied the test of personal loyalty to those claiming to be duly elected representatives, deeming this one of the qualifications of which it might judge. The Senate has also passed upon the validity of the election of a Senator by the legislature of his state, determining whether the choice had been made in accordance with the state law. This body has also inquired into the loyalty of a member, and has expelled Senators for alleged treasonable or seditious practices.

§ 220. Each house may determine the rules of its proceedings, punish its members for disorderly behavior, and with the concurrence of two thirds expel a member.

III. § 2.1

Art. I. Sec.

1 This rule does not vest any power in the House of Representatives to punish for contempt persons who are not "members." At least this is true of a witness who declines to testify before a committee of the House in an inquiry ordered by the House, where the subject-matter is beyond the jurisdiction of the House to investigate. See the very interesting case of Kilbourn v. Thompson, 103 U. S. 168, in which some valuable observations are made by Mr. Justice Miller, as to the powers and privileges of the House of Representatives. ED.

Under these provisions each house has the entire control over its own parliamentary proceedings, its methods of doing business, its rules of order, the observance of order on its floor, and the conduct of its members. The power of expulsion is unlimited, and the judgment of the two thirds majority is final.

§ 221. Each house shall keep a journal of its proceedings, and from time to time publish the same, excepting such parts as may, in their judgment, require secrecy; and the yeas and nays of the members of either house on any question shall, at the desire of one fifth of those present, be entered on the journal. 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.

Neither of these provisions requires any remark, except that giving one fifth of the members present the power to demand that the yeas and nays on any question shall be entered on the journal. This regulation, simple in itself, is most important and salutary. It is a safeguard against the acts of a reckless or corrupt majority. By placing in the hands of so small a minority the power to demand the yeas and nays, and to make a lasting record of all votes, which shall go before the people, it keeps each member alive to his personal responsibility to his constituents, and effectually prevents all subsequent concealment as to acts for which he may be called in question.

§ 222. All bills for raising revenue shall originate in the House of Representatives; but the Senate may propose, or concur with amendments, as on other bills. Art. I. Sec. VII. § 1.

This provision is substantially copied from the British Constitution. No principle is more firmly settled in the administration of the British government, than the doctrine that the Commons hold the purse. This power of the House of Commons to grant or withhold supplies has been contended for during centuries of conflict; it has been the instrument of success in every contest with the royal prerogative; it has finally raised the Commons to a position of absolute supremacy above all other departments of the government. And

yet there does not seem to be any good reason for importing it into our Constitution. The whole frame of our government, the whole state of our society is so different from that of England, that there is no class distinction, no permanent conflict of interest between the House of Representatives and the Senate; there is no reason why the lower house should be more careful of the public moneys, and more economical in the public expenditures than the Senate. The constituents which both represent are finally the same, and together bear the burdens of taxation. I believe the opinion is becoming general that the provision in question is not only useless, but is an absolute hindrance in the course of legislation.

§ 223. Rules applicable to the members of the two Houses individually. The Senators and Representatives shall receive a compensation for their services, to be ascertained by law, and paid out of the Treasury of the United States. They shall, in all cases except treason, felony, 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; and for any speech or debate in either house, they shall not be questioned in any other place. Art. I. Sec. VI. § 1.

The privilege from arrest, and from being questioned in any other place for any speech or debate, has ever been considered indispensable to a free representative government. These provisions in our Constitution are substantially the same as those of the English law.

§ 224. 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; and no person holding any office under the United States shall be a member of either house during his continuance in office. Art. I. Sec. VI. § 2.

The latter of these clauses is in striking contrast with the law and practice in England. As Parliament is organized the principal administrative officers must be members of one or the other house.

CHAPTER III.

GENERAL LIMITATIONS UPON THE POWERS OF THE UNITED STATES GOVERNMENT.

§225. THUS far, in the course of this work, I have endeavored to explain what the Constitution is, and who were its authors; then passing from this general survey to the instrument itself, have exhibited the fundamental ideas upon which the government of the United States is based, and described its outward form and structure. We now proceed to consider its powers. In explaining and illustrating the positive powers which are conferred by affirmative language of the Constitution, the natural order requires us to take up separately the Legislative, the Executive, and the Judicial. But before commencing this special investigation, there are some considerations to be submitted which affect the whole government, which apply to all departments alike.

§ 226. As has already been stated more than once, the government of the United States is one of limited powers. The people have not committed to it their own complete functions of legislation and administration. One portion they have retained dormant in their own hands; special capacities and attributes they have conferred upon the national government; the residue they have intrusted to the separate states. In order to confine their immediate agents within the proper bounds, the people have inserted in the organic law various restrictions, stated with the utmost care, so that the rights of the individual shall be guarded from the encroachments of power.

Let us now direct our attention to the limitations upon the governmental power; let us endeavor to ascertain their nature and the extent of their negative influence.

They are of two classes. 1st. Those which are expressed in the Constitution in positive terms; and 2d. Those which are implied from the general nature of the government, and the design of the instrument by which that government is created.

SECTION I.

EXPRESS LIMITATIONS UPON THE WHOLE GOVERNMENT.

§ 227. We are to examine those restraints and limitations which are imposed upon the general government and are embodied in express negative language of the Constitution. examination of the various provisions of the organic law will disclose the fact that most of these express negative clauses apply with equal force to the Legislature, the Executive, and the Judiciary. Some, however, are confined in their operation to a single one of these departments, generally to Congress. These latter will be passed by for the present, and will be examined in those subsequent chapters which treat of the legislative, administrative, or judicial functions.

General Statement and Nature of these Limitations.

§ 228. The Constitution, as proposed by the convention and adopted by the people, contained almost none of the express, general, negative provisions which impose a limit upon the entire functions of the government. This omission of a Bill of Rights was made one of the strongest grounds of objection to that instrument during the canvas which preceded its final ratification. To meet this objection, it was urged by the authors of "The Federalist" and others, that our whole Constitution was in itself a Bill of Rights; that no arguments drawn from English history would apply to our condition; that while the Parliament of Great Britain could do every thing, our own government had only those attributes which were granted to it; and that a denial of express powers not formally conferred, would be idle and absurd. These arguments, however, did not carry conviction, and immediately after the

« AnteriorContinuar »