in the public burthens, they should at fixed periods be reduced to a private station, returning into the mass of the people, and the vacancies be supplied by certain and regular elections," etc. This resolution shared the fate of that proposed by the House, and was the last upon this subject which has ever been suggested. 3 Experience has shown few cases of conflict between the legislative and the judiciary,2 or between the judiciary and the executive, but between the legislative and the executive there have been several well-known instances of the attempt by one department to encroach upon the prerogatives of the other. The Executive has usually found his veto power an effective weapon in protecting his powers from any encroachment of the legislature. The power of Congress over appropriation bills has been supposed to protect it against aggression. 8. THE LEGISLATIVE DEPARTMENT: CLASSIFICATION OF AMENDMENTS. The system of two Houses in the National Legislature was to a large degree experimental. The Continental Congress and the Congress of the Confederation had each contained one House only. It is not surprising, therefore, that even in the earlier years various amendments were proposed aiming either to correct the imperfections which had become evident in the working of the legislative department, or to introduce what their authors considered desirable innovations; from time to time in subsequent years various other propositions to change the organization or powers of the legislative body have been made. The class of amendments dealing with the organization of this department will be considered in the present chapter.5 They may be conveniently divided into three groups; those relating alike to both branches of Congress and those referring distinctively either to the House of Representatives or to the Senate. 'App., No. 271. *The judiciary act of 1802 was not so much an attack upon the judiciary as on the Federal party. 3 The decision in Marbury v. Madison (1 Cranch, 137) aroused Jefferson's hostility against the court. Jackson also refused to enforce the decrees of the court against Georgia. See post, par. 77. See also Foster, Com. on Const., 1, pp. 303-305. Mason, Veto Power, par. 17-36. Davis, Am. Consts. Johns Hopkins Univ. Studies, 3d series, p. 465. Foster, Com. on Const., 1, pp. 238 et seq. 5 Those in regard to the powers of Congress in Chapter v. We pass directly to the consideration of the first group. First in importance among the various attempts made in the early years to alter the Constitution, were those directed against the provisions relative to the regulation of elections, and the qualification and compensation of members of both branches of Congress. Other proposals were intended to prevent members accepting any other civil office, and still others to prohibit members from participating in such pursuits as would tend to prejudice their action and unfit them for service in Congress. In more recent years very few amendments which can be classed under this head have been presented, the only movement of importance has been the one directed toward a change in the time of the sessions of Congress. 9. REGULATION OF ELECTION TO CONGRESS By the Constitution Congress may at any time by law make or alter the regulations prescribed by the legislature of the State for the time, place, and manner of holding elections for Senators and Representatives (except as to the place for choosing Senator)'. This clause created much dissatisfaction in some portions of the country; conventions in four of the Northern and three of the Southern States, at the time of their ratification of the Constitution, recommended substantially the same amendment to the Constitution, namely, that Congress shall not exercise this right "except when the legislature of any State shall neglect, refuse, or be disabled by invasion or rebellion to prescribe the same." The South Carolina convention prefaced their proposition with the strong declaration "that the right of prescribing the manner, time, and place of holding elections to the Federal Legislature should be forever inseparably annexed to the sovereignty of the several States." The New York convention was willing to permit Congress to exercise the power of prescribing the time for the election of Representatives. In the First Congress, in deference to this expression of opinion, several attempts were made to add to the series about to be recommended to the States an amendment on this subject, similar to those suggested by the State conventions. One was proposed by Mr. Sedgwick, giving Congress power to make regulations for elections, provided the States made improper 2 App. Nos. 3, 10, 16, 41, 49, 94, 105. 1 Art. 1, sec. 4, par. 1. ones. Mr. Tucker suggested that the clause in the Constitution should be struck out, but all these attempts to amend failed. It is quite possible that the result might have been different had the Senators and Representatives from North Carolina and Rhode Island been present, for the conventions in those States recommended this change. 1 10. REGULATIONS FOR PROVING ELECTIONS. 2 Only one attempt has been made to amend the provision of the Constitution in regard to the proving of elections. This was one of the series of amendments introduced by Mr. Tucker of South Carolina during the discussion of the so-called "Bill of Rights" in the First Congress. It proposed that this clause should be amended so that instead of each House judging of the election of its members, "each State should be the judge, according to its own laws, of the election of its Senators and Representatives to sit in Congress." The resolution failed to be referred, showing that in this case the House was unwilling to have the prerogatives of the Federal Government curtailed. In more recent years the tendency has been to assert the regulative power of Congress, and to supersede the system of regulation. 4 11. QUALIFICATIONS OF MEMBERS OF CONGRESS. One of the subjects which has greatly exercised the ingenuity of amendment framers is that of the qualification of members of Congress. Two groups of these propositions may be distinguished-those introduced between 1788 and 1815, and those introduced as a result of the civil war and applying to the disability of secessionists. One of the classes which were to be excluded by some of the various propositions of the first group was that of debtors of the United States. Such a restriction was proposed during the general discussion of amendments in the First Congress." The opposition to the national bank during the Third Congress took the form of a prolonged discussion of an amendment proposing to exclude officers and stockholders of the See post par. 24, for propositions affecting Representatives. 2 Art. 1, sec. 5, cl. 1. App., No. 197. 4 See post par. 24. In the 52d and 53d Congresses there was a reaction against Federal control and certain laws were repealed. United States Bank from Congress. The original motion was so amended as to exclude only the officers of the bank, and thus amended it was rejected by a vote of 12 yeas to 13 nays.2 The presence of contractors in the House led to the introduction of an amendment in 1806 to exclude contractors of the Government from the House of Representatives.3 Two years later a similar resolution was offered, but included the Senate as well as the House. This may have been suggested by the connection of Senator Smith of Maryland with a Baltimore firm which had large contracts with the Government. A third unsuccessful attempt was made in 1836 to secure an amendment making members of Congress ineligible to civil office and prohibiting their holding or making any contract with or under the authority of the United States.5 The The exclusion of naturalized persons from Congress was sought by another group of propositions. The New York ratifying convention and the Massachusetts and Connecticut legislatures in 1798 recommended an amendment making foreigners naturalized since the Declaration of Independence ineligible to the office of Senator and Representative in Congress. political significance of these amendments is referred to elsewhere. One of the amendments framed by the Hartford convention and recommended to Congress by the legislatures of Massachusetts and Connecticut, through their Senators and Representatives, stipulated that no person hereafter naturalized should be eligible to either House. 12. INCOMPATIBILITY OF OTHER FUNCTIONS FOR MEMBERS OF CONGRESS. No less than thirty-three resolutions have been introduced proposing that members of the Senate and House of Representatives shall not be eligible to any appointment or office. App., No. 318. App., Nos. 320, 324. 3 App., No. 374. 4 App., No. 387. stitution of North Б App., No. 655. See post par. 20 for further discussion. The constitutions of some of the States had such a provision. See con- App, Nos. 50, 330-333, 333a b. 7 Post par. 36. $App., Nos. 430, 438, 446. For replies of the various States, see post par. 22. The reply of the legislature of Pennsylvania declares "the number of foreigners now in office does not threaten any inconvenience. Out of 182 Representatives in Congress it is believed that there are not more than four who were born out of the limits of the United States. and in the Senate not one." This proposition was first suggested by the conventions that ratified the Constitution in Virginia, New York, and North Carolina,' and the attempt was made in both branches of the First Congress to add such an amendment to the series about to be sent to the States for their ratification." Amendments of this nature were also introduced in 1793, 1808, 1810, and 1818;3 and from 1820 until the early "forties" similar amendments were submitted at almost every session of Congress. The last one proposing a general disqualification from all offices was presented in 1850.4 The amendment proposed by the legislature of Tennessee in November of 1825 is of especial interest, as it was evidently prompted by the utterances of Andrew Jackson. When Tennessee, in the fall of 1825, nominated him as a candidate for the Presidency for the election of 1828, Jackson immediately departed from Washington, and in a speech before the Tennessee legislature resigned his office of Senator in order that he might not be open to the suspicion of using that office to promote his candidacy. At the same time he declared he would "impose a provision upon the Constitution rendering members of Congress ineligible to office under the General Government during the term for which elected and for two years thereafter," except in the case of judicial office. "The effect of such a provision," said he, "is obvious. By it Congress would be free from that connection with the executive department which at present gives strong ground of apprehension and jealousy on the part of the people. If the change should not be obtained and important appointments continue to devolve upon Congress, corruption will be the order of the day." However desirable, theoretically, Jackson believed this change to be, in practice he did more to create the need of App., Nos. 29, 62, 81. 2 App., Nos. 199, 275. App., Nos. 317, 387, 400, 401, 479. 4 App., Nos. 493, 511, 516, 544, 546, 549, 569, 581, 595, 612, 642, 652, 655, 662, 670, 678, 680, 696, 715, 723, 727, 749, 7554, 763. 5 App., No. 549. See also similar resolutions of the legislature of Tennessee of 1827, arraigning Adams and Clay, which were unanimously adopted by the house of representatives and only two dissenting votes in the senate. App., No. 581a. Niles' Register, xxxш, pp. 161, 183-186, 198. Counter resolutions of disapproval from the legislatures Ibid., XXIX, pp. 369, 429. of Indiana, Ohio, and Maine. "Niles Register, XXIX, 125, 155-157. Sumner's Jackson, p. 104, note 2. ? Ibid. |