CHAPTER IX.

HOUSE OF REPRESENTATIVES.

§ 571. THE second section of the first article contains the structure and organization of the House of Representatives. The first clause is as follows:

"The House of Representatives shall be composed of members chosen every second year by the people of the several States, and the electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislature."(a)

§ 572. As soon as it was settled that the legislative power should be divided into two separate and distinct branches, a very important consideration arose in regard to the organization of those branches respectively. It is obvious that the organization of each is susceptible of very great diversities and modifications in respect to the principles of representation, the qualification of the electors and the elected, the term of service of the members, the ratio of representation, and the number of which the body should be composed.

§ 573. First, the principle of representation. The American people had long been in the enjoyment of the privilege of electing at least one branch of the legislature, and in some of the colonies of electing all the branches composing the legislature. A house of representatives, under various denominations, such as a house of delegates, a house of commons, or simply a house of representatives, emanating directly from, and responsible to, the people, and possessing a distinct and independent legislative authority, was familiar to all the colonies, and was held by them in the highest reverence and respect. They justly thought, that as the government in general should always have a common interest with the people, and be administered for their good, so it was essential to their rights and liberties that the most numerous branch should have an immediate dependence upon, and

(a) As to the powers of Congress over federal elections, see Ex parte Siebold, 100 U. S. 371; Ex parte Clarke, ib. 399.

No

sympathy with, the people. There was no novelty in this view. It was not the mere result of a state of colonial dependence, in which their jealousy was awake to all the natural encroachments of power in a foreign realm. They had drawn their opinions and principles from the practice of the parent country. They knew the inestimable value of the House of Commons, as a component branch of the British Parliament; and they believed that it had at all times furnished the best security against the oppressions of the crown and the aristocracy. While the power of taxation, of revenue, and of supplies remained in the hands of a popular branch, it was difficult for usurpation to exist for any length of time without check; and prerogative must yield to that necessity which controlled at once the sword and the purse. reasoning, therefore, was necessary to satisfy the American people of the advantages of a house of representatives, which should emanate directly from themselves; which should guard their interests, support their rights, express their opinions, make known their wants, redress their grievances, and introduce a pervading popular influence throughout all the operations of the government. Experience, as well as theory, had settled it in their minds, as a fundamental principle of a free government, and especially of a republican government, that no laws ought to be passed without the co-operation and consent of the representatives of the people; and that these representatives should be chosen by themselves, without the intervention of any other functionaries to intercept or vary their responsibility."

§ 574. The principle, however, had been hitherto applied to the political organization of the State legislatures only; and its application to that of the federal government was not without some diversity of opinion. This diversity had not its origin in any doubt of the correctness of the principle itself, when applied to simple republics; but the propriety of applying it to cases of confederated republics was affected by other independent considerations. Those who might wish to retain a very large portion of State sovereignty in its representative character in the councils of the Union, would naturally desire to have the House of Representatives elected by the State in its political character, as

1 The Federalist, No. 52; 1 Black. Comm. 158, 159; Paley's Moral Philosophy, B. 6, ch. 7; Wilson's Law Lect. 429 to 433; 2 Wilson's Law Lect. 122 to 132. 21 Tucker's Black. Comm. App. 28.

under the old confederation. Those, on the other hand, who wished to impart to the government a national character would as naturally desire an independent election by the people themselves in their primary meetings. Probably these circumstances had some operation upon the votes given on the question in the convention itself. For it appears that, upon the original proposition in the convention, "That the members of the first branch of the national legislature ought to be elected by the people of the several States," six States voted for it, two against it, and two were divided.1 And upon a subsequent motion to strike out the word "people," and insert in its place the word "legislatures," three States voted in the affirmative and eight in the negative. At a subsequent period a motion, that the representatives should be appointed in such manner as the legislature of each State should direct, was negatived, six States voting in the affirmative, three in the negative, and one being divided; and the final vote in favor of an election by the people was decided by the vote of nine States in the affirmative, one voting in the negative, and one being divided. The result was not therefore obtained without much discussion and argument, though at last an entire unanimity prevailed. It is satisfactory to know that a fundamental principle of public liberty has been thus secured to ourselves and our posterity, which will forever indissolubly connect the interests of the people with those of the Union.5 Under the confederation, though the delegates to Congress might

1 Journal of Convention, May 31, 1787, pp. 85, 86, 135; 4 Elliot's Debates (Yates's Minutes), 58.

2 Journal of Convention, May 31, 1787, pp. 103, 104; 4 Elliot's Debates (1 Yates's Minutes), 62, 63, 90, 91.

Journal of Convention, June 21, 1787, pp. 140, 141, 215; 4 Elliot's Debates, 90, 91 (Yates's Minutes).

4 Journal of Convention, pp. 216, 233.

Mr. Burke, in his Reflections on the French Revolution, has treated the subject of the mischiefs of an indirect choice only by the people of their representatives in a masterly manner. He has demonstrated, that such a system must remove all real responsibility to the people from the representative. Mr. Jefferson has expressed his approbation of the principle of a direct choice in a very qualified manner. He says: "I approve of the greater house being chosen by the people directly. For though I think a house so chosen will be very inferior to the present Congress, will be very ill qualified to legislate for the Union, for foreign nations, &c., yet this evil does not weigh against the good of preserving inviolate the fundamental principle, that the people ought not to be taxed but by representatives chosen immediately by themselves." 2 Jefferson's Corresp. p. 273.

have been elected by the people, they were, in fact, in all the States, except two, elected by the State legislature. 1

§ 575. We accordingly find, that in the section under consideration, the House of Representatives is required to be composed of representatives chosen by the people of the several States. The choice, too, is to be made immediately by them; so that the power is direct, the influence direct, and the responsibility direct. If any intermediate agency had been adopted, such as a choice through an electoral college, or by official personages, or by select and specially qualified functionaries pro hac vice, it is obvious that the dependence of the representative upon the people, and the responsibility to them, would have been far less felt and far more obstructed. Influence would have naturally grown up with patronage; and here, as in many other cases, the legal maxim would have applied, causa proxima, non remota, spectatur. The select body would have been at once the patrons and the guides of the representative; and the people themselves have become the instruments of subverting their own rights and power.

§ 576. The indirect advantages from this immediate agency of the people in the choice of their representatives are of incalculable benefit, and deserve a brief mention in this place, because they furnish us with matter for most serious reflection, in regard to the actual operations and influences of republican governments. In the first place, the right confers an additional sense of personal dignity and duty upon the mass of the people. It gives a strong direction to the education, studies, and pursuits of the whole community. It enlarges the sphere of action, and contributes in a high degree to the formation of the public manners and national character. It procures to the common people courtesy and sympathy from their superiors, and diffuses a common confidence, as well as a common interest, through all the ranks of society. It awakens a desire to examine and sift and debate all public proceedings, and thus nourishes a lively curiosity to acquire knowledge, and, at the same time, furnishes the means of gratifying it. The proceedings and debates of the legislature, the conduct of public officers from the highest to the lowest, the character and conduct of the executive and his ministers, the struggles, intrigues, and conduct of different parties, and the discussion of the great public measures and questions

1 The Federalist, No. 40.

which agitate and divide the community, are not only freely canvassed, and thus improve and elevate conversation, but they gradually furnish the mind with safe and solid materials for judgment upon all public affairs, and check that impetuosity and rashness to which sudden impulses might otherwise lead the people, when they are artfully misguided by selfish demagogues, and plausible schemes of change.1

§ 577. But this fundamental principle of an immediate choice by the people, however important, would alone be insufficient for the public security, if the right of choice had not many auxiliary guards and accompaniments. It was indispensable, secondly, to provide for the qualifications of the electors. It is obvious that even when the principle is established that the popular branch of the legislature shall emanate directly from the people, there still remains a very serious question, by whom and in what manner the choice shall be made. It is a question vital to the system, and in a practical sense decisive, as to the durability and efficiency of the powers of government. Here there is much room for doubt, and ingenious speculation, and theoretical inquiry upon which different minds may arrive, and indeed have arrived, at very different results. To whom ought the right of suffrage in a free government to be confided? Or, in other words, who ought to be permitted to vote in the choice of the representatives of the people? Ought the right of suffrage to be absolutely universal? Ought it to be qualified and restrained? Ought it to belong to many, or few? If there ought to be restraints and qualifications, what are the true boundaries and limits of such restraints and qualifications?

§ 578. These questions are sufficiently perplexing and disquieting in theory; and in the practice of different states, and even of free states, ancient as well as modern, they have assumed almost infinite varieties of form and illustration. Perhaps they do not admit of any general, much less of any universal answer, so as to furnish an unexceptionable and certain rule for all ages and all nations. The manners, habits, institutions, characters, and pursuits of different nations; the local position of the territory, in regard to other nations; the actual organizations and

1 I have borrowed these views from Dr. Paley, and fear only that by abridging them I have lessened their force. Paley's Moral Philosophy, B. 6, ch. 6. See also 2 Wilson's Law Lect. 124 to 128.