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those who contended for National payment were, that it was unjust to ask the States to pay for services rendered to the Nation; that the several States would compensate their members at different rates, thus begetting jealousy and heart-burning; and that some of the States might make the pay so low as to substitute for the question, " Who is most fit to be chosen ?" “Who is most willing to serve ?” Furthermore, Mr. Madison said State payment would prevent that very stability in the Government which they were seeking to gain ; Senators would become the mere agents of State interests and views, instead of being impartial guardians of the public good. Mr. Hamilton presented the same argument in the tersest form : "Those who pay are the masters of those who are paid.” These arguments were decisive of the source of payment.
326. Compensation Left to Congress.-Still another question was, whether the amount of the compensation should be fixed in the Constitution or be left to Congress. On the one hand, it was urged that the pay would need to be changed from time to time, and that it would be difficult or impossible to amend the Constitution; and on the other hand, that Congress would be likely to abuse the power. It was also proposed that Congress should fix the compensation only once in twelve years. The matter was finally left to the law-making power.
327. Retroactive Compensation.-Each Congress has absolute power over its own pay, subject to the Presidential veto. In every case of charge, no matter when made, it has had effect from the beginning of the Congress niaking it. In other words, every law has been retroactive. The law of March 16, 1816, reached back to March 4, 1815; the law of August 16, 1856, to March 4, 1855; the law of March 3, 1873, to March 4, 1871, or two full years. The laws of 1816 and 1873 provoked severe criticism throughout the country. It was the popular opinion that the increased compensation was excessive; and that the retroactive feature, although constitutional, was improper and incompatible with the character of Congress. In both cases the ensuing Congress hastened to repeal the obnoxious legislation.'
1 This Amendment, which failed to secure the requisite number of ratifications, was the second one to be proposed in 1789: “No law varying the compensation for the services of the Senators and Representatives shall take effect until an election of Representatives shall have intervened.”
328. Exemption from Arrest.-The exemption of Senators and Representatives from arrest, to the extent defined, is necessary to the proper representation of the people and to the independence of Congress. If a member of either House could be arrested and detained on any charge for which the common citizen is liable to arrest, his constituents mnight be deprived of his services. But manifestly this exemption should not cover the grave offenses enumerated: treason, bribery, and breach of the peace. The exemption does not extend to vacations between sessions; but a member happening to be in custody must be discharged, save in the enumerated cases, in time to allow him to reach the Capital at the opening of a session.
329. Not to be Questioned.—The clause "they shall not be questioned in any other place," means they shall not be held responsible out of Congress for words spoken in Congress. This rule is as essential to freedom of debate as the former one is to the freedom of representation. However, just how far this privilege extends is doubtful. In England it does not extend to a speech made in Parliament and published by its author, and a member may be prosecuted for libelous matter contained in such speech. Judge Cooley thinks that, in this country, where all debates in Congress are published by law, the privilege must also cover the publication. The rule is confined strictly to what is said in the House or in committee, in the discharge of legislative duty; the words “speech or debate'' cover whatever is said or done in the transaction of public busi
i The following table exhibits the compensation of members of Congress at different times : 1789–1815.
$ 6 00 a day. 1815-1817.
1,500 oo a year. 1817–1855.
800 a day. 1855-1865...
3,000 oo a year. 1865-1871.
5,000 00 a year. 1871-1873.
7,500 00 a year. 1873
5,000 oo à year. Except in the period 1815-1817, members have always received mileage. Down to 1815 it was $6.00 for every twenty miles of necessary travel, going to and returning from the Capital. From 1817 to 1865 it was $8.00 for every twenty miles of such travel. From 1865 to 1871 it was only twenty cents a mile. In 1871-73 it was the actual expenses of travel. Since 1873 it has been the same as from 1865 to 1871. The Speaker of the House and the President pro tempore of the Senate receive each $8.000.00 a year. For the single year 1795, Senators received one dollar per diem more than Representatives.
Section 6, Clause 2.-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.
330. Reason of the Rule.-The President is often interested in seeing certain measures become laws; and if he had the power to make such appointments as are here forbidden, he might make them, or promise to make them, for the purpose of inducing members to vote for such measures. Further, he might aid in creating new offices, or in increasing the salaries of old ones, for the sake of corrupting members with them. The clause tends to prevent bargains and understandings between the Executive and members of Congress, and so to keep the two branches practically separate and distinct. At the same time, a Senator or Representative may, immediately on the expiration of the term for which he was elected, receive such an appointment; or he may, while serving, be appointed to an office created before his election, if he resigns his seat.
NOTE.-What is sometimes called Cabinet government prevails in England and in some other countries. The leading members of the English Ministry sit in one or the other of the Houses of Parliament. The Premier is either a prominent Lord or Commoner, and for the time the leader of his political party. The Legislative and Executive branches are intimately connected; the Ministry takes the initiative in the most important legislation, and is for the time clothed with, and is responsible for, the exercise of the powers of the Crown. The Ministry is popularly called the Government, and also the Administration. No Ministry can
1 Constitutional Limitations, p. 594.
stand long in the face of a hostile majority in the House of Commons. Indeed, the Ministry has been called, not unaptly, a Committee of that House. This system, which has grown up since the time of Queen Anne, is essential to the very existence of government as now carried on in the United Kingdom. It has been proposed to admit the heads of our Executive Departments to the floors of Congress for the purpose of discussion when measures relating to their own departments are under debate. Bills or resolutions involving that plan have been before both the Senate and the House of Representatives at different times, but no action has been had in either body. Neither has the proposition ever received the public approval nor attracted much public notice. - Bagehot, The English Constitution ; Wilson, Congressional Government; Fiske, The Critical Period in American History; Bryce, American Commonwealth, Chaps. IX.-XVI. ; Article on Ministry in Laior's Cyclopædia. See also a speech by President Garfield, Cabinet Officers in Coni gress, Works, Vol. I., p. 61.
Section 7, Clause 1.-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.
331. Controversy over the Clause. – Perhaps no clause of the Constitution was more seriously contested than this one. At first the Convention gave the exclusive power of originating revenue bills to the House of Representatives as a compensation to the large States for conceding equal representation in the Senate to the small ones. Then the clause was thrown out, “thereby nearly unhinging the whole plan,” as one of the members put it. Later it was restored as a concession to the large States for yielding to the Senate the right to ratify treaties and the power to try impeachments. Still, one hundred years have not settled the extent of the right conceded to the House.
332. Bills for Raising Revenue. What are bills for raising revenue in the sense of the Constitution ? It is clear that the language does not include appropriation bills and that it is limited to taxation. But does it include bills to diminish or repeal taxes, as well as bills to increase or create them? On the one hand, it is contended that a bill to repeal or reduce taxes is not a bill to raise revenue; on the other hand, it is replied that repealing or reducing taxes cannot be separated from levying taxes, since the abolition or repeal of one tax may render the increase or creation of another one necessary, or even demand the recasting of a whole revenue system. These may be called the Senate and the House views respectively, and each party maintains that history is on its side.