scribes the places of SEC. 4. [1.] The times, places, and manner of hold- Who preing elections for senators and representatives, shall be times and prescribed in each State by the legislature thereof; but elections? the Congress may at any time by law make or alter 17 such regulations, except as to the places of choosing senators. 18 41. When the legislature of a State has failed to "prescribe the What is the times, places, and manner of holding elections, as required by power of the the Constitution, the governor may, in case of a vacancy, in his governor ? writ of election, give notice of the time and place of election; but a reasonable time ought to be allowed for the promulgation of the notice. Hoge's Case, Cl. & Hall, 135. 30 This power of Congress has only been exercised so far as to How far has require the States to elect by districts, by the act of 1842, ch. 47. this power (See Barnard's Protest, in December, 1843, and the debates of that of Congress been exersession,) and the election of Senators already referred to. These cised? acts relate to the manner of elections, and the places so far as the legislative halls are concerned in the election of senators. There are those who contend that, under this power, the general powers, 274, 275. and the thirteenth and fourteenth amendments, and the general What is frame-work of the government, Congress may determine who shall meant by vote at the elections for representatives; but whatever may be and manner? time, place, said of other powers, the more settled opinion seems to be, that the times relate to the days, the places to the precincts for voting, 274–279. and the manner to the viva voce or ballot system, and the regula- 16-18. tions for conducting the elections. Congress only has a superintending control. 1 Story's Const. § over the 1 When Congress legislates on these points, the legislative "regu- What is the lations," (which relate back to those three things) will cease. power of Congress 815-828. It cannot be said, with any correctness, that Congress subject? can, in any way, alter the rights or qualifications of voters. Story's Const., § 820. But it was argued differently by those who 17, 18. opposed the ratification of the Constitution. Little was said in the Conventions., The Federalist, Nos. 59, 60; 1 Elliot's Debates, 45-44, 67 68; 3 Id. 65. The Editor would say that the practice of the States as to inappropriate times, the vacancies which exist when sessions are called, and the experience in regard to secession and rebellion render expedient that Congress should fix upon some rule of uniformity. As to the place of "choosing senators." This means that Congress shall not say where the legislature shall sit. Story's Const., 828, note 2. The arguments of those who contend for the power 17, 18. of Congress to determine who may vote, and who shall not be disfranchised, have been presented by Mr. Farrar, § 124-141. It is now one of the irritating questions.-ED. 80 [2.] The Congress shall assemble at least once in What are every year: and such meeting shall be on the first of Congress the Sessions When expire ? Act of 22 Jan., 1867. 14 St. 378. Monday in December, unless they shall by law appoint a different day. 42. The constitutional term of Congress does not expire until twelve o'clock at noon on the 4th of March. 11 Stat. Appendix ii. 43. "In addition to the present regular times of the meeting of Congress, there shall be a meeting of the Fortieth Congress of the United States, and of each succeeding Congress thereafter, at 12 o'clock meridian, on the fourth day of March, the day on which the times of the term begins for which the Congress is elected, except that meetings? when the fourth of March occurs on Sunday, then the meeting shall take place at the same hour on the next succeeding day." When are When and for how long? What are the powers of each House? What are turns and qualifications? So that each Congress is now divided into three sessions: The first commences on the fourth day of March, and may continue its session until the first Monday in December; the second commences on the first Monday in December, and may continue until the next first Monday in December; the third commences on the first Monday in December, and must adjourn on the next fourth day of March, by the dissolution of the Congress. SEC. V.-[1.] Each house shall be the judge of the elections, returns, and qualifications of its own members; and a majority of each 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. 44. THE ELECTIONS in a general sense, means the right to deterelection re- mine who has been chosen by the "qualified electors" at the "times and places" and returned, according to "the regulations" prescribed by the laws of the States or by Congress wherein they 16-18, 29, 30, shall have been superseded. Each case usually depends upon its own facts; and the object generally has been to ascertain who has received the highest number of lawful votes. The necessity and importance of this power discussed. Story's Const. § 833. 41. The returns? What of the qualifications? 19, 41, 35, 45. THE RETURNS from the State authorities are prima facie evidence only of an election, and are not conclusive upon the house. Spaulding v. Mead, Cl. & Hall, 16, 18, 29, 30, 41, 157; Reed v. Cosden, Id. 353. And the refusal of the executive of a State to grant a certificate of election, does not prejudice the right of one who may be entitled to a seat. Richard's Case, Id. 95. 46. The “QUALIFICATIONS," in its narrower sense, would doubtless relate to the age, citizenship, and inhabitancy of the applicant as defined in the second clause of section 2, art. 1, and the third clause of section three of the same. But as the term "PERSON," if taken alone, in both might include a female, a lunatic or an idiot, a convicted felon, a person of notoriously bad character, or actually 242. 70. at war with the United States, as during the rebellion, or one coming from a State all of whose inhabitants are at war with the United States, the term "qualifications" has, in practice, 275, 279. received a more enlarged signification. Thus in the case of Mr. Niles, in 1846, a committee was raised, in the senate, to inquire into his mental capacity; the rebellion has caused a test oath, which might reach persons in all the States, and does embrace majorities in some of them; a concurrent resolution was passed in 1866, in regard to the States lately in rebellion, which, it was urged, limited this independent power of each house; the fourteenth amendment of the Constitution looks to a new disqualifica- 275–279. tion, and all the reconstruction acts, it has been argued, intrench upon this right. At the time of this writing one committee is investigating the subject of the disqualifications of certain members from Kentucky, and another the question as to whether Maryland has a "republican form of government" within the meaning of the Constitution. 233. It may be pretty strongly inferred from messages and speeches of President JOHNSON, and certainly it has been very clearly expressed by some of the opposition statesmen in the senate and house, that after the acts of reconstruction, that is, the formation of amended constitutions and elections under the proclamations of the President, the "persons" so chosen were entitled to their seats without any superadded "qualifications" to those prescribed in this 277-279. section, except the fact that they are "loyal men from loyal States." 233. 242. 177. But the statesmen of the majority argue, that while these States and these very members elected and returned, and the great bodies of their constituents were claiming to be aliens to the United States, and magistrates and people were engaged in war to resist the authority of the government, they were not entitled to representation; and a fortiori they cannot send members with the proper "qualifications" until the law-making power shall determine upon the terms of restoration; and that, certainly, the test oath is a superadded disqualification, which the president's pardon cannot overcome. On the other hand, it has been argued that, as that oath has been decided to be unconstitutional in some cases, it is so as to 142, 143. members who are willing to swear to support the Constitution; that 242. the president's pardon does remove all political disabilities; and therefore, the test oath cannot apply to those who had been pardoned for their participation in the rebellion; and that the action of the people, under the authority of the president, restores those States and the citizens thereof, to all their rights, in statu quo ante bellum. These are the general arguments, for and against. The whole subject is a case not discussed in the formation of the Con. stitution; it is without precedent, because the frame-work of our government differs from all others; therefore, the difficult problem 275–279. must be worked out under its peculiar circumstances. It is not within the plan of this work to give the opinions of the Editor. It may not be improper to remark, however, that there seems to be more difference as to who shall accomplish the work of restoration than what shall be done to accomplish it. All seem to 209. What are the powers of agree that there was a time when the seceded States could not properly send members, even though such members possessed the constitutional qualifications; yet upon this the Constitution is silent. So the words disloyalty and loyalty are not in it." Necessity had to determine that those at war with the government could not vote on the question of supplies. But the time when, the power which, and the questions ho v and to whom political rights shall be restored or given, and indeed how far they are lost, are the matters of difference. Of course the actors in the drama, who believe that the ordinances of secession made the seceding States foreign and independent nations, and all the citizens who remained therein aliens, and during the war alien enemies; that the "Confederate States " became a lawful belligerent power, which was only forced "to yield to superior numbers and means," have a kind of estoppel in limine, for which there is no other answer than that the friends of the United States held and have established the opposite theory. The great misfortune in this and all political controversies is, that in discussions men neither weigh well nor define their words. I can only pray that, in future editions, facts and precedents may enable the Editor to give the exact signification of terms. [2.] Each house may determine the rules of its proeach house? ceedings, punish its members for disorderly behavior, and, with the concurrence of two-thirds, expel a member. Where are be found? 47. The "RULES" will be found in "Jefferson's Manual," and the rules to in the published manuals of each house. See Barclay's Digest; the standing rules printed by Francis Childs, in 1795; Jefferson's Manual; Dwarris on Statutes, 291; Hastel's Precedents; May's Treatise upon the Law, &c., of Parliament; Cushing's Rules of Proceeding, Debate, &c. All these works should be carefully studied by leading and efficient members of Parliamentary bodies. 1 Kent's Com. 238, and notes to 11th edition, where will be found an epitome of the rules. What is the 48. This does not exclude the power to punish for contempts power as to others than members of the house. The Constitution says nothing contempts? of contempts. These were left to the operation of the common law principle, that all courts have a right to protect themselves from insult and contempt, without which right of self-protection, they could not discharge their high and important duties. Nugent's Case, 1 Am. L. J. 139; Anderson v. Dunn, 6 Wh. 204; 1 Story's Const. SS 845-9; Bolton v. Martin, 1 Dall. 296; Sam. Houston's Case, 11 vol. of Benton's Condensed Debates, pp. 644, 658, where the whole case for striking Stanberry for words spoken in debate is given. This was a contempt not committed in the presence of the House, but upon the avenue, for words spoken and published. Houston was not a member of the House, and was punished by reprimand. Punishment for a breach of privilege should only be inflicted in cases of strong necessity. (Jarvis's Case, and Randolph & Whitney's Case); Houston's Case, 11 Benton's Debates 658. Whatever may have a tendency to impair the freedom of debate, or to detract from the independence of the representatives of the people, is a breach of privilege. Id. 669. See the question discussed. Jefferson's Manual; Tucker Blackstone App. note 200, 205; 1 Story on the Const. § 845-850, 3 ed. ber be ex 49. It seems to be settled that a member may be expelled for For what any misdemeanor which, though not punishable by any statute, is may a meminconsistent with the trust and duty of a member. Blount's Case, pelled? 1 Story's Const. § 838; Smith's Case, 1 Hall's L. J. 459; Brooks' Case, for assaulting Senator Sumner in the Senate Chamber, for 193, 194. words spoken in debate. It extends to all cases where the offense is such, as in the judgment of the House, unfits him for parliamentary duties. (1 Bl. Com. 163; Id. Christian's note, 167; Rex. v. Wilkes, 2 Wilson's R. 251; Com. Dig. Parliament G. 5; 1 Hall's Law Journ., 459, 466). 1 Story's Const. § 838. The Sergeant-at-arms has no authority to arrest by deputy. F. B. Sandborn's Case, 1 Kent's Com. 11 ed. 236, note 2. derived? The power to punish for contempt is inherent in all legislative Whence are assemblies. 1 Kent's Com. 236. This has been denied in Eng- the powers land. (Kelly v. Carson, 4 Moore Privy Council; 63 Fenton v. Hampton, 11 Id. 347). Id.; Rex v. Flower, 8 T. 314; Yates v. Lansing, 9 John. 417. And see 1 Story's Const. 3d ed. § 845, 850, and his notes which exhaust the authorities. William Blount was expelled for an attempt to seduce an United 193, 194, States interpreter from his duty, and to alienate the affections and confidence of the Indians from the public officers residing among them, &c. (Journals of the Senate, 8th July, 1797; Serg. Const. Ch. 28, p. 286), Story's Const. § 804. 50. On the 14th March, 1861, the Senate passed the following Who were resolution: "Whereas the seats of Albert G. Brown and Jefferson expelled for participa Davis of Miss., Stephen R. Mallory of Florida, Clement C. Clay, tion in the rule as to [3.] Each house shalt keep a journal of its proceed- What is the ings, and from time to time publish the same, except- Journals? ing such parts as may, in their judgment, require secrecy; and the yeas and nays of the members of Yeas and either house, on any question, shall, at the desire of one-fifth of those present, be entered on the journal. nays? 51. The object is to ensure publicity. Story's Const. § 840. What is the These journals have been published in various editions and are object of the valuable sources of information. journal ? 著 |