to control.10 Ample protection against them has been afforded hitherto by the barriers of written constitutions enforced by the courts, in which the conservative elements of the community have always found adequate representation; and the breathing space which their resolute action has compelled has been to the present enough to give time for the passion to subside, and common sense again to resume its sway.

That

These words, however, are not intended as an argument in favor of universal suffrage for all times and peoples. That many of the human race are, in their present condition, incapable of self-government, and need despotic rule to preserve order and save from theft the fruits of toil and self-denial, cannot be doubted. where the land is in the hands of a small class, of a race different from the majority, it will be better for their interests to keep the rule in their own hands, is as clear as that it is foolish to drive a horse without a bridle. Although a small property test has been proved to be impracticable, except as a transitional expedient, and

10 If we should extend our candor so far as to own that the majority of mankind are generally under the dominion of benevolence and good intentions, yet it must be confessed that a vast majority frequently transgress, and, what is more decidedly in point, not only a majority, but almost all, confine their benevolence to their families, relations, personal friends, parish, village, city, county, province, and that very few indeed extend it impartially to the whole community. Now, grant but this truth and the question is decided. If a majority are capable of preferring their own private interests or that of their families, counties, and party, to that of the nation collectively, some provision must be made in the Constitution in favor of justice, to compel all to respect the common right, the public good, the universal law in preference to all private and partial considerations."

"Of all possible forms of govern

ment a sovereignty in one assembly, successively chosen by the people, is, perhaps, the best calculated to facilitate the gratification of self love, and the pursuit of the private interest of a few individuals. A few eminent, conspicuous characters will be continued in their seats in the sovereign assembly from one election to another, whatever changes are made in the seats around them. By superior art, address, and opulence, by more splendid birth, reputations, and connections they will be able to intrigue with their people and their leaders out of doors, until they worm out most of their opposers and introduce their friends. To this end they will bestow all offices, contracts, privileges in commerce and other emoluments on the latter, and their connections." Adams, Defence of American Constitutions, vol. iii, Letter 6, pp. 215-216. See North American Review, Oct., 1827, p. 263; Story on the Constitution, 5th ed., § 552.

a poll-tax is paid by the managers of the political parties, it may be that where the majority is entirely illiterate, an educational qualification is essential. But every such case hitherto has been accompanied by injustice toward those who were disfranchised. And wherever the illiterate have been few, as in the Northern States of the Union, no harm to the rest can be perceived to have followed their admission to the right of suffrage, while they have benefited by the ballot as a means of self-protection. As the condition of the human race advances, there can be no doubt that universal manhood suffrage will eventually spread throughout the civilized world." Whether it will be accompanied by the admission of women to the franchise is a question, an answer to which seems premature.

11 The first suggestion of universal manhood suffrage that I have found was in the council of officers of Cromwell's army, when a form of government was prepared by them. (See the Clarke Papers, vol. i, pp. 307–330.

It seems to have been first established by the Vermont Constitution of 1777. It was first introduced in Europe by the National Convention. (Constitu tion du 24 Juin 1793; Hélie, Constitutions de la France.)

CHAPTER VII.

NECESSARY QUALIFICATIONS FOR SENATORS AND REP

RESENTATIVES.

§ 60. Constitutional Provisions concerning Qualifications of Members of Congress.

THE next clause in the Constitution provides that

"no Person shall be a Representative who shall not have attained to the Age of twenty-five Years and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen."1

It seems more convenient to consider the qualifications of a representative and of a senator together. A subsequent clause provides that

"no Person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen." 2

A still later provision is that "no Person holding any office under the United States, shall be a member of either House during his continuance in Office."3 This last clause will be discussed later in the section on disqualifications from office. The Fourteenth Amendment provides that "no person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as the executive or judicial officer of any State, to support the Constitution of the United

§ 60.

Constitution, Article I, Section 2. For the provisions of the Confederate Constitution on this subject, see supra, § 37.

2 Constitution, Article I, Section 3. 3 Constitution, Article I, Section 6. 4 Infra.

States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House remove such disability."5 Nearly all the disabilities of the survivors of the Civil War have been removed. While they were in force, it was held that the election to the House or Senate of a person laboring under a disability imposed by the Fourteenth Amendment was voidable, not void, and that a subsequent removal of the disability entitled him to his seat.6

§ 61. History of Provisions concerning Qualifications of Members of Congress.

one;

In 1787, the law of England required, as it does still, that no person should sit in either house of Parliament until he had attained his majority; but two of the greatest leaders of the House of Commons-Shaftesbury and Fox-took their seats when under twentyand in earlier times the custom was as common as the appointment of minors to high military office.1 The other qualifications for membership in the House of Commons, at that time, were, besides citizenship and certain negative disqualifications imposed by law, the ownership of a freehold with an estate worth at least three hundred pounds a year, with exceptions in favor of the eldest sons of peers and members of the universities.2 It was, however, the custom to circumvent the law by the transfer of a small piece of property from one member to another, so as to qualify each to take the necessary oath. The requisite qualifications for membership in the different colonial and early State assemblies were various, although usually the right of membership was confined to freeholders or the owners of a specified amount of property, or taxpayers; and occasionally higher qualifications were required for member

5 Fourteenth Amendment, Section 3. 6 R. B. Butler's Case, House Contested Election Cases, 1855-1871, p. 464; Young's Case, ibid.; Ransom v. Abbott, Taft's Senate Election Cases, continued by Furber, pp. 300, 305.

§ 61. 1 Shaftesbury sat in Parliament when only nineteen (Traill's Shaftesbury, p. 18.) Fox at the same

age. In one of the Parliaments of James I there were forty members who were under age, some not more than sixteen (Traill's Shaftesbury, p. 18, note). See infra, note 6.

2 Blackstone's Commentaries, vol. i, p. 176.

3 May, Constitutional History, vol. i.

ship in the upper than the lower house. In all of them, the law required that each member should be of full age; but this requirement there, as in England, was sometimes waived. In some, clergymen were disqualified, an injustice which the Federal Convention wished not to extend to Congress. In South Carolina till 1790, and in New Hampshire, until 1877, all who did not adhere to the Protestant religion were excluded. In all, the law required that each member should be of full age; but this requirement there, as in England, was sometimes waived.6

The provisions concerning the requisite age for senators and representatives were adopted with little discussion in the Federal Convention. The evident object was to secure sufficient maturity of judgment; and greater age was required for a senator than for a representative, on account of the greater importance of the duties of the former office. The only division upon this point in the Convention was upon a motion to disqualify from membership in the House all under twenty-five years of age, the period of minority and of disqualification from the right of suffrage usually

4 Poore's Charters and Constitutions, passim.

5 Ibid., pp. 1286, 1298, 1309, 1623. 6 The following incident is described in Warfield's Kentucky Resolutions of 1798, pp. 52-53: John Breckenridge "was about to set out from home for his third year at college when he was elected to represent his county in the House of Delegates. This was in the autumn of 1780, when he was only nineteen years of age. He had made no canvass, and was in no true sense a candidate. His election was the result of one of those silent movements when men are brought, under the pressure of events, to select those who can best represent them, without regard to the much pressed claims of office seekers. No one could have been more surprised at his election than was John Breckenridge himself, but he cheerfully undertook the task imposed upon him, and

set out for Williamsburgh. The House of Delegates, however, set aside the election on account of his youth, feeling, no doubt, that the choice was both unprecedented and out of place in a time so full of danger and demanding the most far-sighted counsels. But the hardy frontiersmen had not made their choice without being convinced of its wisdom, and promptly re-elected Mr. Breckenridge. The House again set the election aside, and again the electors cast their ballot as before, and this time the election was acquiesced in, and the young student left his academy pursuits in the one part of the town, and took his seat in the council hall at the other."

Henry Clay was elected to the Senate of the United States, took his seat and occupied an influential position there before he was thirty. (Shurz, Clay, vol. i, pp. 38-39.)