cept for felony and breach of the peace, be privileged from arrest during their attendance at the sessions of their respective houses, and in going to and returning from the same,' is conclusive that for those offences they may be arrested. As a punishment for crime, then, it is clear that a senator-elect, possessing all the Constitutional qualifications of age, citizenship and inhabitancy, may be prevented from taking the oath of office. Congress has repeatedly acted upon the presumption that it was entirely competent for it to prescribe, as a punishment for crime, an inability forever afterwards to hold any office of honor, profit or trust, under the United States." "If it be competent for Congress to make disqualification to hold office as punishment for an offence against the United States, then it is clearly competent for the Senate, which by the Constitution is made 'the judge of the elections, returns, and qualifications of its own members,' to do the same thing, so far as the right to take a seat in that body is concerned. Doubtless a law of Congress declaring that a person convicted of a particular offence should not hold office under the United States, and the decision of the courts sustaining such a law, would not preclude the Senate from admitting such a person to a seat, should it think proper, because the Senate is the exclusive judge of the elections, returns, and qualifications of its own members; yet it is hardly conceivable that the Senate ever would admit such a person to be sworn; nor does the fact that Congress has not adopted such a punishment for disloyalty or treason prevent the Senate from refusing to allow to be sworn as a member a person believed by the body to be guilty of those offences or other infamous crimes. That an armed traitor, a convicted felon, or a person known to be disloyal to the government, has a constitutional right to be admitted into that body, would imply that the Senate had no power of protecting itself. a power which, from the nature of things, must be inherent in every legislative body. Suppose a member sent to the Senate, before being sworn, were to disturb the body and by violence interrupt its proceedings, would the Senate be compelled to allow such a person to be sworn as a member of the body before it could cast him out? Surely not, unless the Senate is unable to protect itself and preserve its own order. The Constitution declares that each house may determine the rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two-thirds, expel a member.' The connection of the sentence in which the power of expulsion is given would indicate that it was intended to be exercised for some act done as a member, and not for some cause existing before the member was elected or took his seat. For any crime or infamous act done before that time, the appropriate remedy would seem to be to refuse to allow him to qualify, which, in the judgment of the undersigned, the Senate may properly do, not by way of adding to the qualifications imposed by the Constitution, but as a punishment done to his crimes or the infamy of his character." This argument, it will be observed, is based upon the assumption that a Senator cannot be expelled before he has been sworn and admitted to his seat. CHAPTER VIII. APPORTIONMENT OF REPRESENTATIVES AND DIRECT TAXES. § 63. Constitutional Provisions concerning Apportionment of Representatives and Direct Taxes. THE next clause of the Constitution ordains : "Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, 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 actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, and in such manner as they shall by Law direct. The Number of Representatives shall not exceed one for every thirty thousand, but each State shall have at least one Representative; and until such enumeration shall be made, the State of New Hampshire shall be entitled to chuse three, Massachusetts eight, Rhode Island and Providence Plantations one, Connecticut five, New York six, New Jersey four, Pennsylvania eight, Delaware one, Maryland six, Virginia ten, North Carolina five, South Carolina five, and Georgia three."1 The Fourteenth Amendment: "Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for president and vicepresident of the United States, representatives in Congress, the executive or judicial officers of a State, or the members of the legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age and citizens of the United States, or in any § 63. 1 Article I, Section 2. way abridged, except for participation in rebellion or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State." 2 § 64. History of the Clause concerning the Apportionment of Representatives and Direct Taxes. The clause concerning the apportionment of representatives and direct taxes was the second of the three great compromises of the Constitution, and the adjustment of a controversy which had been the cause of discord since the colonies first confederated together. Although so much thereof as applied to the apportionment of representatives has been materially modified, the other remains in the original language. Since the meaning of this is still the subject of a dispute between two sections of the country, the importance of the subject seems to demand a full consideration of the history of the proceedings which led to its adoption. On the day after the meeting of the first Congress of the United States, September 6th, 1774, their first legislative act was adopted as follows: "Resolved, that, in determining questions in Congress, each colony shall have one vote, the Congress not being possessed of, or at present able to procure, proper materials for ascertaining the importance of each colony." The advantage then secured by the smaller States they refused to relinquish and retained in the Articles of Confederation, which were adopted March 1st, 1781,1 and until these were abrogated by the Constitution. The articles provided that — "in determining questions in the United States, in Congress assembled, each State shall have one vote." 2 The continuance of this rule was one of the chief obstacles to the formation of the Articles of Confederation. In 1777 it was proposed that Rhode Island, Delaware, and Georgia should each have one vote and the other States one vote for every fifty thousand white inhabitants; but this was supported only by Virginia and 3 2 Fourteenth Amendment, Section 2. § 64. 1 Curtis, Constitutional His tory, vol. i, p. 86. 2 Article V. 3 See Jefferson's Notes of Debate on Confederation in Congress, during July Pennsylvania. A delegate from Virginia then moved that each State should have one vote for every thirty thousand such inhabitants, but no other State voted for the motion. By a similar vote, a motion that representation should be proportioned to the amount of taxes paid by each colony was negatived. Finally, after a debate of nearly two months, all the States in Congress yielded to the principle of State equality except Virginia, which subsequently ratified the Articles of Confederation that contained it.4 Before their adoption, the only financial means at the command of Congress were the continental paper currency, and loans from foreign nations and from provincial congresses, the latter of which exercised the power of taxation for their local efforts in the prosecution of the war. A quota of the currency was assigned to each colony, which was directed to discharge a fraction of the whole proportioned "to the number of inhabitants of all ages, including negroes and mulattoes," an obligation generally repudiated. So limited were the revenues of Congress that Washington was obliged to impress supplies for the army, without which he could not have withstood the enemy.6 The eleventh article of Confederation in the original draft was as follows: "All charges of war, and all other expenses that shall be incurred for the common defence, or general welfare, and allowed by the United States assembled, shall be defrayed out of a common treasury, which shall be supplied by the several colonies in proportion to the number of inhabitants of every age, sex and quality, except Indians not paying taxes in each colony, a true account of which, distinguishing the white inhabitants, shall be triennially taken, and transmitted to the Assembly of the United States."" - The Southern States, however, objected that it would be unfair and August, 1777. Elliot's Debates, 2d ed., vol. i, pp. 70-78. Chase of Maryland proposed as a compromise "that, in votes relating to money, the voice of each colony should be proportioned to the number of its inhabitants." (Ibid., p. 74.) 4 Towle, History and Analysis of the Constitution, 3d ed., p. 49. 5 Journals, vol. i, p. 125, June 23, 1775; ibid., vol. i, p. 185-186, June 29, 1875; cited by Curtis, Constitutional History of the United States, vol. i, p. 22. 6 See the remarks of Governor Clinton in the New York Convention (Elliot's Debates, 2d ed., vol. ii, p. 360); and of Grayson in the Virginia Convention (ibid., vol. iii, p. 290). 7 Ibid., vol. i, p. 70. to assess their colored bondsmen at the same value as the free white laborers of the North, since their work was far less efficient. The Southern delegates moved that the assessment be proportioned to the "white inhabitants." A compromise was suggested, which the South was willing to accept, "that two slaves should be counted as one freeman." 8 Both propositions were rejected by the seven Northern against five Southern States, Georgia being divided. As a compromise the requisitions were proportioned to the value of land in each State, which was then believed by many to correspond to the population; but no power to collect taxes was given to Congress which was authorized merely to assess a requisition upon a State to be collected by the State legislature if it chose to act upon the subject. The Eleventh Article as finally adopted was in these words: "All charges of war and all other expenses that shall be incurred for the common defence or general welfare, and allowed by the United States in Congress assembled, shall be defrayed out of a common treasury, which shall be supplied by the several States, in proportion to the value of all land within each State, granted or surveyed for any person, and such land, and the buildings or improvements thereon, shall be estimated according to such mode as the United States in Congress assembled shall from time to time direct and appoint. The taxes for paying that proportion shall be levied and paid by the authority and direction of the legislatures of the United States in Congress assembled." 10 This system proved absolutely impracticable. Four States paid nothing toward the requisitions which Congress levied; and all but two, less than the amount required of them. The unfairness of the assessment, which must always be a ground of controversy wherever the value of land is an element in the computation, was an excuse set up by some of the delinquent States; but the feeling against them ran high in Congress, and more than once it was proposed to use force to collect the balances.12 The bank 8 Ibid., vol. i, p. 72; vol. v, p. 79. 9 August 1, 1777. Ibid., vol. i, pp. 73-74. 10 Article VIII. 11 See § 3, note 1, supra. In 1786, Rhode Island and New Jersey passed laws to make their own paper money sufficient payment of all arrears due from them to the United States. Congress naturally protested. Journals XI, p. 224; Curtis, Constitutional History, vol. i, p. 163. 12 Elliot's Debates, 2d ed., vol. iii, p. 243. |