session as short as possible and to guard against overlegislation, for he says: "One session in each year is provided for by the Constitution, in which there are no restrictions as to the subject of legislation by Congress. If more are required, it is always in the power of Congress during their term of office to provide for sessions at any time."

The constitutional quorum-a majority of all the members in either House-was larger than is usual in parliamentary bodies, but no serious inconvenience was felt, and there has been no effort to change the provision of the Constitution until nearly the close of the first century of its history. In the Fiftieth Congress, Mr. Wheeler of Alabama introduced a resolution to amend the Constitution so that "one-third of the members of each House shall constitute a quorum," instead of the existing requirement-a majority. The need of some change was suggested by the growth in the recent Congresses of the practice of "filibustering," which has reached such proportions as to seriously interfere with business. The claim of no quorum has been one of the favorite means of "filibustering." Since the Fifty-first Congress, rules have been adopted to check this practice in the House of Representatives.3

Another proposition, made by the ratifying conventions in New York and Rhode Island, would, had it been adopted, put an engine of irresistible power into the hands of the filibusterers, for the clause which provides that the yeas and nays shall be entered on the journals at the desire of one-fifth of those present was to be so changed that two members in either House might require it.*

17. DISCIPLINE OF MEMBERS OF CONGRESS.

5

The Constitution adopted the English and Cabinet practice of relieving members from responsibility for their utterances in Congress before the regular courts, but it gave to each House power to discipline its own members. But one proposition has ever been presented to decrease that power. In 1789, Mr. Tucker of South Carolina moved that this clause should be struck out. The ground for his motion was not

Constitution, art. 1, sec. 5, cl. 1.

2 App., No. 1728.

3 Manual and Digest, Fifty-first Congress, second session, Rule xv, cl. 3, p. 527.

4 App., Nos. 59, 124.

5 Constitution, art. 1, sec. 5, cl. 2.

App., No. 198.

stated, but probably it was that a member should be responsible only to his State or constituency.'

18. PUBLICATION OF THE JOURNALS.

The clause in the Constitution which provides that the journals of each House shall be published from time to time? seemed too indefinite to some of the ratifying conventions. Four of the conventions, therefore, included in their series of proposed amendments one which required their publication "at least once in every year."3 An unsuccessful attempt was made to add to the series of amendments recommended by the First Congress such a proposition. Subsequent history

has shown that the fear that the proceedings of Congress might be withheld for some time was groundless. The journals of each House have appeared annually, except that the proceedings of secret sessions have been made known only at the later discretion of the House concerned. In addition to the journals, the official debates of Congress since 1833 have been published by the Government."

19. THE HOUSE OF REPRESENTATIVES.

The House of Representatives, as the most numerous of the two constituent elements of Congress, and as the branch which springs most directly from the people, has been the object of many propositions for amendment. Some 150 amendments have been proposed to the provisions of the Constitution relative to this branch of Congress. Many attempts have been made to alter the qualifications of its members, to change their number and apportionment, and to control their election."

20. QUALIFICATION OF MEMBERS.

In addition to the resolutions proposing to alter the constitutional qualifications of members of either branch of Con

From 1789 to 1870 there were seventy-six attempts to discipline members of Congress. Of these twenty-six were cases of abusive language or disorderly behavior on the floor of the House and twenty-five for treason. Out of this number the actual censures for all causes in both Houses have been ten and the expulsions eighteen. Stated by Mr. C. F. Gettemy, a member of the Historical Seminary, Harvard University, 1890-91, from his research in the journals.

Constitution, art. 1, sec. 5, cl. 3.

3 Virginia, New York, North Carolina, Rhode Island. App., Nos. 30, 59, 82, 113.

4 App., No. 274.

The Congressional Globe, 1833 to 1873; the Congressional Record, 1873 to the present time.

No proposition has been made to take the right of election from the people. See Story, I, p. 409.

1

gress, two others have been introduced applying only to the House. In 1806, owing to the defeat of a bill to exclude "contractors or any one participating in any way in the profits of such contracts" from the House of Representatives, because many believed it was not within the competency of Congress to add to the qualifications for members required by the Constitution,3 an amendment with the same end in view was introduced. It is evident from the references in the course of the debate that persons holding Government contracts were members of Congress. The danger and evil of this practice was urged by Randolph and others, but the only thing accomplished was the calling upon the Postmaster-General for a list of all persons holding mail contracts.5 Two years later a somewhat similar provision was introduced, which applied to the Senate as well."

One resolution has appeared bearing upon the qualifications of residence. By the Constitution the only limitation was that the member should be a resident of the State in which he was chosen a clause suggested by the parsimonious practice of the States in the old Congress of selecting persons who lived near the seat of government as their agents. The ratifying convention of New York proposed as an amendment a resolution to the effect that the legislatures of the respective States may provide by law that a Representative must have been an inhabitant of the district he represents for at least one year immediately preceding his election. Congress does not appear to have taken into consideration the subject of this amendment, but some of the States have enacted laws requiring the Representative to be a resident of the district he represents. The constitutionality of such laws is so doubtful that the Massachusetts law was repealed. It amounts to the imposition by the States of a qualification not specified in the Constitution." Positive law has in any case been little needed since both in

1 Ante par. 11.

2 Introduced by Randolph. Annals, p. 508.

3 Annals, p. 880.

4 By Mr. Newton. App., No. 374. The example of England (see 22 George III, c. 45) and possibly the presence of some of Burr's relatives may have suggested it. Mr. Newton, however, said "he would wish to see an American Congress composed of very different material from a British Parliament." Annals, p. 894.

Annals, pp. 761, 828.

6 App., No. 387. Ante par. 11.

"Constitution, art. 1, sec. 2, cl. 2.

App., No. 77.

'Story, I, p. 447, note 1. Foster, Com. on the Const., I, p. 363, note 10.

the State and the national elections constituents usually refuse to choose nonresidents. One case of the choice of a Representative not a resident of the district occurred recently in Massachusetts,' but in general the English practice in this particular has not been favored.2

21. INCOMPATIBILITY OF OTHER FUNCTIONS FOR REPRESENTATIVES.

Various amendments excluding members of either branch of Congress from civil appointment have been considered elsewhere.3 The loss by Jackson of the election in the House in 1825, together with the alleged bargain between Clay and Adams, by which Adams was given the Presidency and Clay a position in the Cabinet, called out a proposition of a less sweeping character.

In the following year Mr. Powell of Virginia introduced the first resolution on this subject. It declared that no Representative, in the event of the election of President by the House of Representatives, should be capable of receiving an appointment to any office, where the power of nomination is in the President, for the term of three years thereafter. In the next Congress two other amendments were presented to the House, providing that under the same circumstances no member shall, during the continuance of that President in office, be appointed to any office under the authority of the United States. All three of these resolutions were buried in committee, and no similar proposition has since been proposed.

22. APPORTIONMENT OF REPRESENTATIVES.

In order to insure the adoption of the Constitution by the slaveholding States, it was found necessary to give to them a partial representation for their slave population. Accordingly it was agreed that "Representatives and direct taxes should be apportioned among the several States" "according to their respective numbers, which shall be determined by adding to the whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxed, three-fifths of all other persons." The enumeration was to be

96

In a by-election in April, 1893, William Everett, of the Eleventh Massachusetts district, was elected by the Seventh district.

2 Bryce, I, pp. 482-438.

3 Ante par. 12.

4 App., No. 557. Except in case of war.

5 App., Nos. 581, 595.

Art. 1, sec. 2, cl. 3.

Story, I, pp. 448-455. See Hinsdale's Am. Govt., Chap. XVIII for

methods employed. Foster, Com. on Const., I, pp. 393–397.

made once in every ten years, and the number of Representatives was not to exceed 1 for every 30,000, but each State was to have at least one Representative.

Dissatisfaction has, however, been expressed with these provisions at various times, and recourse has been had to numerous attempts to secure their amendment. The propositions to amend this section of the Constitution may be divided into four well-defined groups: First, the attempts made in the First Congress to establish a permanent ratio for the apportionment of Representatives; second, the few proposals, made with one important exception in the earlier years of this century, to strike out the clause granting partial representation for slaves; third, the attempt made in 1860-61 to incorporate into the Constitution a clause which should guarantee the slave States against any change in the method of apportionment without their consent; and fourth, the propositions growing out of the changes wrought by the civil war and culminating in the fourteenth amendment.

(1) The ratifying conventions of five of the States' were not satisfied with the simple provision in the Constitution, but desired that the ratio should be fixed in the organic law itself rather than left to the discretion or the caprice of Congress. All five propositions agreed in requiring 1 Representative to every 30,000 persons, until the whole number of Representatives amount to 200; three of the conventions suggested further, that above 200 the number should be continued or increased, as Congress shall direct.

In response to this general expression, Mr. Madison introduced in the First Congress an amendment which made provision for a fixed ratio.2 The number placing a limit upon the size of the House was left in blank, to be filled in as the united wisdom of Congress should suggest. The resolution, as reported by the special committee to which it had been referred, provided that after the number amounts to 100 "the proportion shall be so regulated" "that the number of Representatives shall never be less than 175."3 The resolution was considered for some days, and various attempts to amend were made. It finally passed the House in nearly the form suggested by Fisher Ames. This made provision for the expected

App., Nos. 2, 15, 27, 46, 79. Massachusetts, New Hampshire, Virginia, New York, North Carolina.