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the whole representative population of the United States, and giving a representative to the largest fractions. The House would not agree to the principle, and the Senate finally receded from their ground. It may therefore be now considered as a settled construction of the Constitution, that the ratio of representation must be a common divisor of the numbers in the several states, and not in the whole Union.

§ 47. This section likewise requires, that an enumeration should be taken every ten years of the inhabitants of the United States. This commenced in 1790 by Act of Congress, and has been continued ever since. The ratio of representation has been altered at each census. The ratio, that is, the common divisor, or number which is entitled to a representative, has been constantly increasing, but the increase being in a less proportion than that of the population, the number of representatives has likewise increased.

§ 48. Clause 4th. When vacancies happen in the representation from any state, the executive authority thereof shall issue writs of election to fill up such vacan


§ 49. The necessity for this clause frequently arises, by virtue of the death or resignation of members of Congress. In some states, as in Massachusetts and Vermont, repeated elections have to be held before a choice can be made, in consequence of a majority of the votes being required to elect.

§ 50. 5th Clause. The House of Representatives shall choose their Speaker, and other officers, and shall have the sole power of impeachment.

$51. The power of impeachment is one of the most important under the Constitution. It is the only mode in which the Judiciary is made responsible, and it is a salutary and necessary check upon the President and his officers.

52. The most prominent examples of impeachment

under the Constitution are those of Judges Chase and Peck. In March, 1804, the House of Representatives, by resolution, impeached Samuel Chase, one of the Judges of the Supreme Court,-of malversation, improper and arbitrary conduct in office. In 1830, they did the same in relation to James H. Peck, District Judge for the state of Missouri. They were both acquitted.

§ 53. The mode of impeachment is this: the House pass a resolution to impeach, and then appoint a committee to manage the impeachment, and prepare the articles; articles making a plain statement of the case, in the manner, but with less formality than an indictment, are then adopted by the House. The Senate are then officially informed that such charges are preferred by the House, and resolve, that on a given day the Senate will sit as a Court of Impeachment. In the mean time, a summons to appear and answer is served upon the party, and as many subpoenas for witnesses are issued as the managers or the party accused may direct. On the day appointed for trial, the appearance or non-appearance of the party is recorded, and at 12 o'clock, the Secretary of the Senate administers an oath to the President of the Senate, that "he will do impartial justice according to the Constitution and laws of the United States." The same oath is then administered by the President to each senator present. 2Council are then heard for the respective parties; all motions are addressed to the President, and decisions are made by ayes and nays without debate. Witnesses are examined and cross-examined, in the usual manner. Questions put by senators are reduced to writing, and put by the President. It requires two-thirds to make a conviction.

1 See Journal of the 8th Congress, 2 Rules adopted by the Senate on the trial of S. Chase.

§ 54. SECTION 3D. 1st Clause. The Senate of the United States shall be composed of two senators from each state, chosen by the Legislature thereof, for six years; and each senator shall have one vote.

§ 55. In the Senate, each state is equally represented. It has been said by an eminent jurist,' that this feature of the Senate, and the mode of its election by the Legislatures, are evidences of the separate and independent existence of the states. If, by separate and independent be meant any thing more than local and municipal independence, the truth of the proposition is not readily seen. The counties of Great Britain were till recently equally represented in the House of Commons; so also are the counties of the state of Maryland in the state Legislature; yet, who would attribute a separate existence, or independent power, to these counties beyond mere local county purposes? The very contrary of this position, as it respects the United States, is shown from the fact, that the Senate votes, not by states, but by persons : hence, the members from a given state may, and often do, vote on opposite sides of a question. Here the representation of the state is neither separate nor independent, but mixed up with the whole mass. It is no doubt true, that this provision was intended to secure to the people of each state an equality of political power in the Senate; but it no more proves the separate existence, independence, or sovereignty of the states, than the government of Maryland acknowledges the separation and independence of its counties. As to the election of the senators by the state Legislatures, it is only the mode by which the people of the state exercise their power. In the same manner, the counties in Maryland send an equal number of delegates to a convention, which convention choose the state Senate; now the convention is the mere form through which the people express their

11 Kent's Comm, 211,

will; it is no acknowledgment of any separate authority in those counties.

§ 56. As it is provided, that the senators shall be chosen by the Legislatures, it is settled by the practice of most of the states, that they may be chosen by joint ballot of both houses, voting by individuals, and not necessarily by the Legislature in its official capacity, each house having a negative on the other.

§ 57. 2d Clause. Immediately after they shall be assembled, in consequence of the first election, they shall be divided, as equally as may be, into three classes. The seats of the senators of the first class shall be vacated at the expiration of the second year, of the second class at the expiration of the fourth year, and of the third class at the expiration of the sixth year, so that onethird may be chosen every second year; and if vacan cies happen by resignation or otherwise, during the recess of the Legislature of any state, the executivo thereof may make temporary appointments, until the next meeting of the Legislature, which shall then fill such


§ 58. The members of the first Senate were, in conformity to the Constitution, divided by lot into three classes, the terms of service of which expired in two, four, and six years, and ever since one-third has been removed every second year. In drawing the lots, care was taken that but one vacancy should occur at the same time in the representation of any one state.

§ 59. It has been decided1 under this clause, that the Governor cannot make an appointment during the recess of the Legislature, in anticipation of a vacancy. Thus, the term of James Lanman, senator from Connecticut, expired on the 3d March, 1825. The President had convoked the Senate to meet on the 4th of March. The Legislature of Connecticut did not meet till May.

1 Gordon's Digest of the Laws of the United States, 1827; Appendix, note 1.

The Governor in February appointed Mr. Lanman to sit after the 3d of March. The Senate decided that such an appointment cannot be constitutionally made; the vacancy must first occur.

§ 60. 3d Clause. 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.

61. All these limitations are manifestly founded upon propriety. It is probable they might have been made still stronger without injury to the public interests.

§ 62. 4th Clause. The Vice-President of the United States shall be President of the Senate, but shall have no vote unless they be equally divided.

§ 63. Legislative bodies have generally the power of choosing their own presiding officer; in this instance, however, the Constitution conferred the office of presiding over the Senate to the Vice-President; one reason may have been that he has no other duties to perform, and the chair of the Senate conferred dignity upon him. The casting vote of the Vice-President has been frequently given, and in some very important cases.

§ 64. In 1826,1 a question arose whether the VicePresident had the power of preserving order independent of the rules of the Senate? The then Vice-President, Mr. Calhoun, decided that he had not. In 1828, however, the Senate made a rule, that " every question of order shall be decided by the President without debate, subject to appeal to the Senate."

§ 65. 5th Clause. The Senate shall choose their other officers, and also a President pro tempore, in the absence of the Vice-President, or when he shall exercise the office of President of the United States.

§ 66. The power of choosing a President pro tempore

1 1 American Annual Register, 86, 87; 3 Idem. 99.

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