of Representatives of both the Fifty-second and the Fiftythird Congresses have passed, by very pronounced majorities, a joint resolution to submit such an amendment to the States.' The Senate, however, has failed to advance either of these resolutions to a vote.2

Some of these proposed amendments provide for the choice by the people, if a State prefer it, but the great majority take away all option and make the election by the people imperative. Some propose to confer upon Congress the power to provide by law for the conduct of the election and the canvassing of the vote. A tendency in the opposite direction, however, is seen in both the amendments recently proposed by the House of Representatives. Each contains a provision that "the time, place, and manner of holding elections for Senators shall be prescribed in each State by the legislature thereof."

Two of the recent propositions proposed to do away with the present basis of representation and substitute a system of proportional representation in its place. The first of these provided that each State should have at least two Senators, but that for each million of inhabitants of any State in excess of two million, an additional Senator should be allowed such State. By the terms of the second each State would have one Senator, and an additional one for every million of population. There is little reason to suppose that the great compromise of the Constitution will be disturbed, for no State can be deprived of its equal representation in the Senate without its own consent, and it is not in the nature of things to expect that any one of the eighteen Commonwealths whose Senatorial strength would be reduced one half by the second proposition would consent to it.5

The principal reasons which have been urged in favor of the election of Senators directly by the people are as follows: First, that the method now in use is not in accord with our

1 Fifty-second Congress, second session, Cong. Record, pp. 617-618. Passed without division. Fifty-third Congress, second session, H. J.. pp. 398, 497, 499, 501. Vote 141 to 51. 2 In the Fifty-third Congress, third session, reported adversely. S. Rep., 916; Cong. Record, p. 2152. In the Fifty-fourth Congress, first session, March 23, 1896, such an amendment was reported favorably, with an interesting report. S. Rep., 530; Cong. Record, pp. 3333, 3412-3415.

3 As App., Nos. 1385, 1409.

4 Bayne of Pennsylvania; App., No. 1543; Miller of Wisconsin; Fifty-second Congress, First session, Cong. Record, p. 201, January 17, 1892. The "Randolph plan," presented to the convention of 1787, made provision for proportional representation in both Houses. 5 The following States would by this plan be reduced to one Senator. Colorado, Connecticut, Delaware, Florida, Idaho, Maine, Montana, Nevada, New Hampshire, North Dakota, Oregon, Rhode Island, South Dakota, Utah, Vermont, Washington, West Virginia, and Wyoming-18.

democratic system, and indicates a lack of confidence in the wisdom of the people; second, that the present method leads to the corruption of legislatures, and to the selection of men whose only claim to office is their great wealth or their subserviency to corporate interests. On the other hand, it is maintained that the proposed change would lead to the choice of deserving men, reflecting more truly the sentiment of the people. Again, it is urged that the proposed method would prevent the prolonged deadlocks which sometimes occur in the State legislatures in their effort to elect a Senator. Further, it would take away one incentive for legislative gerrymandering of States. Finally, the advocates of popular elections claim that the evils of the present method, which tend to the introduction of national affairs into State politics and lead to the election of members of the State legislatures on national instead of local issues, would be diminished. Still, it may be

said in support of the present method that it has secured to the United States the only effective second chamber in the world.3

28. FILLING VACANCIES IN THE SENATE.

Only one of the ratifying conventions objected to that provision of the Constitution which gives the executive of the State power to make temporary appointments to vacancies in the Senate. The New York convention included in the series of amendments which it proposed one to reserve this power to the legislature. This would involve either a special session of the legislature in case of a vacancy or a continuance of the vacancy until the next regular session. The resolutions proposing the election of Senators by the popular vote usually made provision for this contingency. In general, the executive of the State was to issue writs for a special election," although

Recent examples: Illinois (1890); Montana, Washington, and Maryland (1893); Delaware (1894-95); Kentucky (1895-96). (1897.)

References: In favor of the proposed change, John Haynes, Popular Election of United States Senators. Johns Hopkins University Studies, series XI, p. 547. S. Report 530, Fifty-fourth Congress, First session; Cong. Record, pp. 3412-3415. In opposition: Ex-Senator Edmunds, "Forum," Vol. XVIII, p. 270. Senator Hoar's speech of April 6 and 7, 1893; Cong. Record, pp. 101-110. Pro and Con, Publications of the Mich. Pol. Science Ass., vol. 1.

3. The election of Senators has in substance almost ceased to be indirect." See Bryce, 1 pp. 100-101, note 1. Note provision in the constitution of Nebraska of 1875, which allows voters to express by ballot their preference for some person for the office of United States Senator."

4 Const., art. 1, sec. 3, cl. 2.

App., No. 63.

"As App., Nos. 1366, 1543.

one provided that the vacancy should be filled at the next general election in the State, but that pending the election the executive might make temporary appointment.1

There is no need of an amendment. The period during which the office is vacant is short, and the legislature frequently chooses some other man than the one appointed by the governor and is not often influenced by the personal desires of the temporary incumbent for a reelection.

29. RECALL OF SENATORS BY STATES.

4

Among the amendments proposed by the ratifying conventions there was one which was advocated by two of the Northern States-New York and Rhode Island-providing that the legislatures of the respective States may recall their Senators and send others in their place. The general doctrine of instructions received little adherence during the early years of Congress. No resolution was brought before that body until 1803, when the legislature of Virginia proposed an amendment authorizing a State to recall its Senators. Two years later, upon the acquittal of Judge Chase, Nicholson of Virginia, who had been associated with John Randolph in presenting the case for the House, and who was smarting under the sting of defeat caused by the failure of some of the Republican Senators to vote for the conviction of a judge impeached by their own party associates, sought revenge by trying to secure an amendment which would render Senators liable to recall by their State legislature. Three years later the legislature of Virginia renewed its former resolution, which was presented to Congress by her Senators and Representatives. This amendment provided that Senators might be removed by a majority vote of the whole number of members of their respective State legislatures. It called out in reply resolutions of disapproval from the legislatures of Maryland,

'App., No. 1687.

2 App., Nos. 61, 121.

Although the States early passed resolutions instructing their Senators (and requesting their Representatives) to favor or oppose measures. In the session of 1799-1800 the legislature of Virginia instructed the Senators to oppose naval expenses. Benton, II, p. 572. Griswold of New York, in 1803, made a speech against the doctrine of instructions of Representatives by State legislatures. Annals, Eighth Congress, First session, p. 664.

4 App., No. 362a. Massachusetts legislature passed resolutions of disapproval. See Ibid. App., No. 367. Randolph presented an amendment for the removal of judges. Post, par. 71. Schouler, 11, p. 78; McMaster, III, p. 182.

App., Nos. 386, 388.

New Jersey, Tennessee, Georgia, Massachusetts, and Vermont.' This amendment, if passed, would have made the Senators directly responsible to the State legislatures. At first it would probably have resulted in the removal of such Senators as went counter to the supposed interests of their State, and it might have gone on until it would have led to the removal of all Senators who were not in harmony with the dominant party in the State legislature."

It will be remembered that John Tyler, inasmuch as he believed in the right of instruction, resigned his seat in the Senate in 1836 rather than follow the instructions of the legislature of Virginia to vote for the "expunging resolution."3 Likewise Senator White of Tennessee resigned his seat during the session of 1839-40 because the legislature of his State passed resolutions censuring him for having voted on certain measures with the Whigs and calling on him in the future to act with the Democratic party.4

It is worthy of note, in connection with the doctrine of instruction, that it is customary for the States in passing a resolution in favor of some amendment to prefix a preamble instructing their Senators and requesting their Representatives to urge its adoption, thus seemingly implying that the legislatures have the right to instruct Senators, but that the Representatives are responsible only to their constituents.

30. TERM OF SENATORS.

The term of Senators is abnormally long. With the excep tion of some judgships, it is the longest term of any of the elective offices in the United States. It is not surprising,

1 Annals of Congress, Tenth Congress, second session, p. 306. Ibid., Eleventh Congress, third session, p. 383. Ibid., Twelfth Congress, first session, p. 559. Archives of Massachusetts Legislature, Doc. 6845; Resolves of Massachusetts Legislature, Vol. XII, p. 365; Archives of Massachusetts, Misc. Doc., 6663.

2 Richard Brent, in 1811, was censured by the legislature of Virginia for voting for the recharter of the bank contrary to its instructions. A bill setting forth its rights appears in the Laws of Virginia. See McMaster, III, p. 390.

Senator Leigh's

3 For letter of John Tyler, see Niles' Register, Vol. L, pp. 17, 25-27. letter refusing to resign, ibid., pp. 28-32. Resolutions of the legislature of Virginia asserting the right of instruction, S. J., p. 233 (Twenty-fourth Congress, first session). Mr. Rives of Virginia had resigned his seat in the previous year because he differed from the legislature on the deposit question, Niles' Register, Vol. L, p. 17. See also Niles' Register, Vol. XLVII, pp. 129, 161, 178, 313, 401–402, 445; Vol. L, p. 11.

4 Benton, Thirty Years' View, II, p. 184. Webster expressed himself on several occasions against the binding force of instructions. Works, III, pp. 228. 356; v, p. 425. Foster, Commentaries on the Constitution, I, pp. 494-496, and notes for other instances.

In the Federal Congress it was first fixed at seven years, then reconsidered and after a five and a nine year term had been rejected the six-year term was adopted. Elliot, v. pp. 203, 241, 245 Story, 1, p. 508

H. Doc 353, pt 2-5

therefore, that eight propositions have been presented to change the term of Senators, all within the first fifty years of the history of the Constitution. These all proposed diminishing the length of the term, some to one, others to three, and still others to four years.

Before discussing the separate amendments of this class, one amendment must be referred to, which was proposed by the ratifying convention of New York. It provided that no person should be eligible as a Senator for more than six years in any term of twelve years. This would prevent a Senator succeeding himself. The advantage of the proposition was not evident, and it received no consideration in the First Congress.

One proposition was, however, presented in the First Congress affecting the term of Senators; this was the only resolution that has been offered proposing to reduce the term to one year. It further stipulated that no person should be capable of serving more than five years in any term of six years. The motion of reference was lost. Three resolutions have been proposed fixing the term at three years. This suggestion first came from the legislature of Virginia in 1795.3 Their proposition made provision for the division of the Senators into three classes, one-third to retire annually. The same amendment was next proposed by Senator Hillhouse, in 1808, as a necessary part of his plan for the choice of the President by lot each year from the retiring Senators.* This change was last presented in 1816, by Senator Bibb of Georgia, and after an extended discussion was rejected by an overwhelming majority of the Senate.5

Amendments were proposed in 1812, 1814, 1829, and 1839 reducing the term of Senators to four years." The first two of these were resolutions from the legislature of Tennessee. The last was one of a series of propositions introduced by Mr. Talia

1 App., No. 61. Similar restrictions proposed for Representatives in First Congress. Ante, par. 26. Another evidence of the fear of the creation of a ruling class and a desire for rotation in office.

2 App, No. 391.

3 App., No. 327c.

4 App., No. 391, see post, par. 47.

App., No. 451.

App., Nos. 405a, 419, 594, 689.

7 It would seem that Georgia had also proposed the same, for in 1816 the legislature of Louisiana, North Carolina, and Ohio passed resolutions disagreeing with an amendment proposed by Georgia. Annals of Congress, Fourteenth Congress, first session, p. 365. Archives of Massachusetts, Misc., 8105, 8183.