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in the common law of England, is a presentment by the House of Commons, the most solemn grand inquest of the whole kingdom, each State shall be divided by a common divisor, and that, in addition to the number of members resulting from such division, a member shall be allowed to each State whose fraction exceeds a moiety of the divisor.
“Either of these is, it seems to the committee, a fair and just rule, capable of uniform application, and operating with entire impartiality. There is no want of a common proportion or a common divisor ; there is nothing left to arbitrary discretion. If the rule, in either of these fornis, be adopted, it can never be doubtful how every member of any proposed number for a Honse of Representatives ought to be assigned. Nothing will be left in the discretion of Congress ; the right of each State will be a mathematical right, easily ascertained, about which there can be neither doubt nor difficulty; and, in the application of the rule, there will be no room for preference, partiality, or injustice. In any case, in all time to come it will do all that human means can do, to allot to overy State in the Union its proper and just proportion of representative power. And it is because of this, its capability of constant application, as well as because of its impartiality and justice, that the committee are earnest in recommending its adoption to Congress. If it shall be adopted, they believe it will remove a cause of uneasiness and dissatisfaction recurring, or liable to recur, with every new census, and place the rights of the States, in this respect, on a fixed basis, of which none can with reason complain. It is true, that there may be some numbers assumed for the composition of the House of Representatives, to which, if the rule were applied, the result might give a member to the House more than was proposed. But it will be always easy to correct this, by altering the proposed number by adding one to it or taking one from it; so that this can be considered no objection to the rule.
“The committee, in conclusion, cannot admit that it is sufficient reason for rejecting this mode of apportionment, that a different process has heretofore prevailed. The truth is, the errors and inequalities of that process were at first not obvious and startling. But they have gone on increasing; they are greatly augmented and accumulated every new census ; and it is of the very nature of the process itself, that its unjust results must grow greater and greater in proportion as the population of the country enlarges. What was objectionable, though tolerable yesterday, becomes in. tolerable to-morrow. A change, the committee are persuaded, must come, or tho whole just balance and proportion of representative power among the States will be disturbed and broken up."
Mr. Everett also made a very able speech on the same subject, in which he pressed some additional arguments with great force on the same side. See his printed speech of 17th May, 1832. (a)
(a) Although this report did not be its population exceeded half of that num. come the basis of the apportionment in ber. Every decade now brings a change 1832, yet it was actually adopted as the in the basis of representation, and thus basis, in the apportionment in 1842, under far some increase in the number of reprethe new census. By the Act of 22d of sentatives. But withal some inequality June, 1842, the ratio was adopted of seems unavoidable ; for population is at a 70,680, and each State was declared en. standstill in some States, while in others titled to as many representatives as its there is vast increase in the course of ten federal population would give divided by years, and that increase has no representhat number, and also to one additional tation, member upon the remaining fraction, if
to the House of Lords, the most high and supreme court of criminal jurisdiction of the kingdom. The articles of impeachment are a kind of bill of indictment found by the Commons, and tried by the Lords, who are, in cases of misdemeanors, considered, not only as their own peers, but as the peers of the whole nation.” The origin and history of the jurisdiction of Parliament, in cases of impeachment, are summarily given by Mr. Woodeson; but little can be gathered therefrom which is now of much interest, and, like most other legal antiquities, they are involved in great obscurity.8 To what classes of offenders this applies, will be more properly an inquiry hereafter. In the Constitution of the United States, the House of Representatives exercises the functions of the House of Commons in regard to impeachments; and the Senate (as we shall hereafter see) the functions of the House of Lords in relation to the trial of the party accused. The principles of the common law, so far as the jurisdiction is to be exercised, are deemed of primary obligation and government. The object of prosecutions of this sort in both countries is to reach high and potent offenders, such as might be presumed to escape punishment in the ordinary tribunals, either from their own extraordinary influence, or from the imperfect organization and powers of those tribunals. These prosecutions are, therefore, conducted by the representatives of the nation, in their public capacity, in the face of the nation and upon a responsibility which is at once felt and reverenced by the whole community.5 The notoriety of the proceedings, the solemn manner in which they are conducted, the deep extent to which they affect the reputations of the accused, the ignoming of a conviction which is to be known through all time, and the glory of an acquittal which ascertains and confirms innocence, these are all calculated to produce a vivid and lasting interest in the public mind, and to give to such prosecutions, when necessary, a vast importance, both as a check to crime and an incitement to virtue.
$ 689. This subject will be resumed hereafter, when the other provisions of the Constitution, in regard to impeachments, come
1 2 Hale's Pl. Cr. 150 ; 4 Black. Comm. 259 ; 2 Wilson's Law Lect. 165, 166. 2 4 Black. Comm. 260.
3 2 Woodeson's Lect. 40, p. 596, &c. • 4 Black. Comm. 260 ; Rawle on the Constitution, ch. 22, pp. 210, 211 ; 2 Woodeson's Lect. 40, p. 596, &c. 6 Rawle on the Constitntion, ch. 22, p. 209.
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under review. It does not appear that the vesting of the power of impeachment in the House of Representatives was deemed a matter of serious doubt or question, either in the convention or with the people. If the true spirit of the Constitution is consulted, it would seem difficult to arrive at any other conclusion than of its fitness. It is designed as a method of national inquest into the conduct of public men. If such is the design, who can so properly be the inquisitors for the nation as the representatives of the people themselves? They must be presumed to be watchful of the Interests, alive to the sympathies, and ready to redress the grievances, of the people. If it is made their duty to bring official delinquents to justice, they can scarcely fail of performing it without public denunciation and political desertion on the part of their constituents.
1 Journal of Convention, pp. 69, 121, 137, 225, 226, 236; 3 Elliot's Debates, 48, 44, 45, 46.
$ 690. The third section of the first article relates to the organization and powers of the Senate.
§ 691. In considering the organization of the Senate, our inquiries naturally lead us to ascertain, first, the nature of the representation and vote of the States therein; secondly, the mode of appointment; thirdly, the number of the senators; fourthly, their term of service; and, fifthly, their qualifications.
§ 692. The first clause of the third section is in the following words: “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.”
$ 693. In the first place, the nature of the representation and vote in the Senate. Each State is entitled to two senators; and each senator is entitled to one vote. This, of course, involves in the very constitution of this branch of the legislature a perfect equality among all the States, without any reference to their respective size, population, wealth, or power. In this respect there is a marked contrast between the Senate and the House of Representatives. In the latter, there is a representation of the people according to the relative population of each State upon a giver basis; in the former, each State in its political capacity is represented upon a footing of perfect equality, like a congress of sovereigns or ambassadors, or like an assembly of peers. The only difference between it and the continental Congress under the old confederation is, that in this the vote was by States; in the Senate each senator has a single vote. So that, though they represent States, they vote as individuals. The vote of the Senate thus may, and often does, become a mixed vote, embracing a part of the senators from some of the States on one side, and another part on the other.
$ 694. It is obvious that this arrangement could only arise from a compromise between independent States; and it must have been less the result of theory than “ of a spirit of amity,
and of mutual deference and concession, which the peculiarity of the situation of the United States rendered indispensable.” 1 It constituted one of the great struggles between the large and the small States, which was constantly renewed in the convention, and impeded it in every step of its progress in the formation of the Constitution. The struggle applied to the organization of each branch of the legislature. The small States insisted upon an equality of vote and representation in each branch; and the large States upon a vote in proportion to their relative importance and population. Upon this vital question there was so near a balance of the States that a Union in any form of government which provided either for a perfect equality or inequality of the Statos in both branches of tho logísluturo becamo utlerly hopeless. If the basis of the Senate was an equality of repre. sentation, the basis of the House must be in proportion to the relative population of the States. * A compromise was, therefore, indispensable, or the convention must be dissolved. The small States at length yielded the point as to an equality of representation in the House, and acceded to a representation proportionate to the federal numbers. But they insisted upon an equality in the Senate. To this the large States were unwilling to assent; and for a time the States were, on this point, equally divided.5 Finally, the subject was referred to a committee, who reported a scheme which became, with some amendments, the basis of the representation as it now stands. 6
$ 695. The reasoning by which each party in the convention supported its own project naturally grew out of the relative situation and interests of their respective States. On the side of the small States it was urged that the general government ought to be partly federal and partly national, in order to secure a just balance of power and sovereignty and influence among tho States.
1 Letter of the Convention, 17th of Sept. 1787 ; 1 Kent, Comm. $ 11, pp. 210, 211.
32 Pitkin's Hist. 233, 245, 247, 248 ; Yates's Minutes, 4 Elliot's Debates, 68, 74, 75, 81, 89, 90, 91, 92, Id. 99, 100, 101 ; Id. 107, 108, 112 to 124 ; Id. 125, 126, 127 ; 1 Elliot's Debates, 66.
8 2 Pitkin's Hist. 233, 245 ; Journal of the Convention, 112.
· On this subject see the Journal of the Convention, 111, 112, 153 to 158, 162, 178, 180, 235, 236, 237, 238 ; Yates's Minutes, 4 Elliot's Debates, from 68 to 127.
02 Pitkin's Hist 245; Journal of Convention, 20 July, pp. 156, 158 ; Id. 162, 175, 178, 180, 211; Yates's Minutes, 4 Elliot's Debates, 124 to 127; 2 Amer. Mu. seum, 379.
6 1 Elliot's Debates, 87 ; Journal of Convention, 157.