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inferior offices as they think proper, - in the President alone, in the courts of law, or in the heads of departments; and have done so to some extent.
The President alone, as the supreme executive of the nation, can make treaties with foreign States and powers. But the treaty is not valid unless two-thirds of the senators present when the vote is taken concur. As the Senate thus seems to partake of the executive power, so it seems to partake of the judicial power, in that it sits as & supreme court for the trial of impeachments. That topic, however, will be treated of in its own section.
POWER AS TO THEIR OWN MEMBERS.
Each House is the judge of the elections, returns, and qualifications of its own members. This would seem to be a power of judgment over the right of any person to become a member. Generally, if this right comes into question, it is by the petition or remonstrance of some other person who claims to be a member, thus giving rise to what is called a “contested election.” When such a case occurs, it is investigated according to the rules of the House to which contestants claim to belong. This is usually, or perhaps always, done through a committee, who ascertain the facts, and report them to the House, which then proceeds to adjudge the question. The power to expel a member is given by the clause immediately following. The question may be asked, If either House of Congress exercises either the power of admission or the power of expulsion wantonly and wrongfully, what is the remedy? The answer is, There is no remedy. Some court, or body, or tribunal, must decide all questions without appeal, or there would be no final decision. This final power is given to each House upon these questions. A wrongful decision would be, in this respect, like the verdict of acquittal by a jury of a person charged with crime, and proved beyond all rational question to be guilty. If the jury see fit to say he is not guilty, he must go free, and the verdict cannot be annulled or questioned. In Massachusetts, where each house of the legislature has this power, a mals was expelled for misbehavior from the House of Representatives. He carried the case to the Supreme Court; but that body decided that they had no power over the decision of the House.
THE HOUSE OF REPRESENTATIVES.
Representatives are chosen by the people of the several States They are apportioned among the States according to the number of people in each State, and this number is ascertained by the national census, of which more will be said presently. The second section of the first clause of the constitution provides that the number of representatives shall not exceed one for every thirty thousand; that an enumeration of the people shall be made within three years after the first meeting of Congress; that each State shall have at least one representative; and that, until an enumeration is made, New Hampshire shall be entitled to 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. Sixty-five in all. The present number is two hundred and ninety-two. A table will be given presently, one column of which, giving the number of representatives to each State, shows that four of the thirty-seven States have but one representa tive each, while New York has thirty-three.
PRIVILEGES OF SENATORS AND REPRESENTATIVES
FREEDOM FROM ARREST.
The first paragraph of the sixth section of the first clause of the constitution contains a provision which is very easily misunderstood as to its ground and purpose. The provision is, that senators and representatives shall, in all cases except treason, 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. This provision is undoubtedly imitated from a rule of the British Parliament. There it grew up as a personal privilege, which, in the days when arrest for debt was allowed and practised far more than it is now, was of great value.
But this provision was not inserted in our constitution on the same ground, although it has the same effect. It was intended to secure to the nation the services of its servants, when employed in attending to its business, from hinderance or interruption from the pecuniary claims of individual creditors. It does not relieve the members from the necessity of answering in person when they have committed some public wrong, for the public interest requires that all men should be amenable to the law in such case; but they cannot be arrested for debt, nor taken on execution for debt.
NOT TO BE QUESTIONED ELSEWHERE FOR SPEECH IN EITHER
The last clause of this same paragraph provides that they shall not be questioned in any other place for any speech or debate in either House. This, also, is not intended merely as a personal privilege to the members; but to secure to them, for the public good, the most perfect freedom of discussion and debate. Nor is it intended to authorize or sanction any abuse of this power, by permitting members to indulge, without check or fear of punishment, in personal vituperation, or in malignant slander, or in giving credit and wide diffusion to statements and allegations which they know to be false. It is said that members shall not be questioned for speech or debate “in any other place." But, then, in that place, when such malignity expresses itself, it may be questioned, and should be questioned. This is one of those powers which must be given; for the public good imperatively demands it, however liable to abuse it may be. Surely the wise framers of our constitution were not mistaken in believing that the sense of honor and of duty of each House would suffice to prevent any frequent or extreme misuse of the right of debate, even if the sense of personal decency did not suffice to restrain members.
POWER TO REGULATE COMMERCE.
The clause of the constitution which relates to this subject gives power to Congress “to regulate commerce with foreign nations, and among the several States, and with the Indian tribes." Every part of this clause, and almost every word of it, has given rise to much discussion, and presented questions not without their difficulty We will first consider
COMMERCE WITH FOREIGN NATIONS.
It is obvious that such a power is absolutely necessary to our holding any distinct place among the nations. It is probable that some commerce existed among different tribes and races from the earliest dawn of civilization. With the growth of civilization commerce grew, and in recent times it has reached an enormous extent. It seems to be an appointed means of bringing nations together, and establishing among them a community of interest. But international commerce cannot be carried on without rules and laws, which each nation must make for itself; but which, when they prevail among civilized nations, acquire, by general and universal usage, the force of laws. There are many such laws; and each nation must make them for itself, with the modifications or peculiar provisions which its own circumstances and interests require. Our nation could not have made them but for the power thus given to it by the constitution. And it is but reasonable to say that a clause of such vital importance should receive a liberal and favorable construction.
This it has received. It has been held to include not traffis merely, or buying and selling, but intercourse between nations, and all the forms and instruments of that intercourse. Thus it includes navigation laws, and all the laws which relate to shipping and the carriage of passengers and of cargoes. It has always been conceded that it was within the province of Congress not only to make rules for (which is what "regulate” means) existing commerce, but to build up our commerce, and give us a full share of the commerce of the world. This has been done, and most successfully; and with little opposition, because there was little diversity among the several States in regard to this matter. It was far otherwise, however, in reference to the next provision of this clause, which relates to the
POWER TO REGULATE COMMERCE AMONG THE STATES.
Here a distinction has been taken. It has been maintained that power to regulate means only power to make rules for; while to many measures proposed at different times the objection has been made, that their purpose was not so much to regulate a commerce which then existed, or which might exist of itself, as to make rules the effect of which would be to create commerce. It is impossible to draw a sharp dividing line between these two things. Un. doubtedly regulation is one thing and creation another; but it is not always easy to say where the one ends and the other begins. This controversy is not yet over; and perhaps it will continue in some form for successive generations, as new occasions for reviving it occur. It
may be said, however, that the sense of the people has in a great degree settled down to the conclusion that Congress, under the power to regulate commerce, may make proper rules respecting the intercourse of the people of different States, and the means thereof, so far as they relate to water-ways, to our great lakes, to the whole coasting trade of the ocean or the lakes, and to the manner of carrying on the same.
Bat, then, we come upon a question to which our constitution gives no direct answer,—What is the power of Congress over or in relation to, instruments of internal domestic commerce which could not by any possibility have entered into the contemplation of Congress; that is to say, What is the power of Congress over
They have now spread their net-work over the whole country, and are constantly and everywhere growing in extent and in importance. If we ask, What is the power of Congress in relation to them, we must answer this question by the construction we put on the clause of the constitution which gives Congress power" to regu. late commerce between the States.” For already are these iron ways the instruments of a commerce which rivals, to say the least, the commerce along our water-ways, and has already superseded a more circuitous water-borne commerce in some parts of the country, and threatens, or promises, to do so in others.
Some things seem to be settled by usage and precedent. Congress can charter railroads, and can help railroads by guaranteeing their bonds, and by grants of the public domain. While there have been objections, sometimes very urgent objections, to these measures, and at this day there are those who hold them to be unconstitutional, it must be admitted that the objections were mainly to the improvidence of the guaranty, or loan of credit, and the extravagance of the donations of land. These objections have had power enough of late to cause Congress to stay its hand, and will undoubtedly cause much more careful consideration and a less liberal aid by grant or by guaranty in the future. But we think it practically established, that, within reasonable limits, and a due regard to expediency and safety, Congress may exercise these powers with the approval of the people. Indeed, it must be admitted, even by those who are loudest in charging Congress with folly and extravagance, that the railroads thus far built by means of this assistance are of great utility, and that the population which they are causing upon what without them would have been a deserted and inaccessible wilderness, have added very much to the value of the lands reserved by the government.
But can Congress actually build a railroad with the public funds? This most important question is already raised, and must soon be pressed upon Congress and the people. That a thoroughly buirt and equipped railroad, competent to carry from the far interior to the seaboard the vast produce of those fertile States, - that such a railroad would be of great utility, no one would deny. But, on