Civil Government in the United States Considered with Some Reference to Its Origins Part 26

10. Explain the "implied war powers" of the Congress.

11. When was the Congress at the height of its reputation, and why?

12. Explain the decline in its reputation from 1778 to 1783.

13. The alarming weakness of the union after 1783:--

a. The effect of peace upon the union.

b. Local prejudices.

c. State antagonisms.

d. The gloomy outlook in 1786.

14. The Federal Convention in 1787:--

a. The reluctance to make the change that was felt to be needed.

b. Some facts about the Convention.

c. The character of its delegates.

d. The fundamental weakness of the Continental Congress.

e. The fundamental power of a strong government.

f. The objection to granting the power of taxation to the Continental Congress.

g. The sort of a.s.sembly demanded for exercising the taxing power.

h. The model on which the federal government was built.

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 a.s.semblies. It is an a.s.sembly 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 towns.h.i.+p 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 accomplis.h.i.+ng 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 a.s.surance 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 pa.s.s 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 senators.h.i.+p 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 const.i.tution 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 ent.i.tled 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 Ma.s.sachusetts, 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 Const.i.tution 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 Ma.s.sachusetts. 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 Ess.e.x county gave to the district a somewhat dragon-like contour. This was indicated upon a map of Ma.s.sachusetts 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.

[Ill.u.s.tration]

[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 p.r.o.nounced "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'arrondiss.e.m.e.nt_ and _scrutin de liste_.]

[Sidenote: Time of a.s.sembling.]

Congress must a.s.semble at least once in every year, and the const.i.tution 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 a.s.semble 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 t.i.tle of Speaker was definitely given to Sir Thomas Hungerford, and from that date the list is unbroken. The t.i.tle was given to the presiding officers of the American colonial a.s.semblies, and thence it pa.s.sed 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 p.r.o.nounced 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 Const.i.tution 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 pa.s.sed 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 Const.i.tution. 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:--