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DIVISION II.—THE CONSTITUTION OF THE

LEGISLATURE.

CHAPTER I.

THE CONSTRUCTION OF THE LEGISLATIVE DEPARTMENT OF THE GOVERNMENT OF THE UNITED STATES.

1. The General Principle of the Legislative Organization. The constitution establishes the bicameral system,1 with substantial parity of powers in the two chambers as to legislation. The only inequality is the exclusive right of the lower house to originate the bills for the raising of revenue.2 With this single exception, which itself is simply an imitation of the British principle, each house may originate any measure of legislation and each may reject the measures originated in the other. The regular term in the House of Representatives is two years; in the Senate, six years. The change of mandates is, in the former case, total; in the latter, partial, by thirds.

2. The Suffrage from which the Legislature proceeds. The constitution provides that the members of the lower house shall be chosen by those persons in the several commonwealths who are qualified to vote for the members of the most numerous branch of the legislatures of their respective commonwealths,3 and that the members of the upper house shall be chosen by the legislatures of the respective commonwealths.4

1 United States Constitution, Art. I, sec. I. 8 Ibid. Art. I, sec. 2, § I.

2 Ibid. Art. I, sec. 7, § 1.

4 Ibid. Art. I, sec. 3, § I.

Unless these provisions are modified by some other clause or clauses of the constitution it follows, of course, that that part of the people of the United States resident within those parts of the territory of the United States not yet favored with the federal system of government has no constitutional representation in the legislature of the United States; that the members of the lower house are elected directly by the immediate holders of the suffrage; that the members of the upper house are elected indirectly by the holders of the suffrage, through the media of the legislatures of the respective commonwealths; and that the qualifications for the suffrage and the whole procedure of the elections are regulated wholly by commonwealth law. A search of the text of the constitution will discover but three modifications: one in reference to the qualifications for the exercise of the suffrage, another in reference to the regulation of the elections, and a third in reference to the final determination of the elections.

The first is the principle of the fifteenth amendment, which prohibits a commonwealth, as well as the government of the United States, from making race, color or previous condition of servitude a disqualification for the possession of the suffrage. This is negative language and does not directly confer upon any one the privilege of suffrage. It simply guards the individual against any discriminations in reference to the suffrage which may be attempted by the commonwealths, or by the government of the United States, on account of race, color or previous condition of servitude.1 This restriction, however, may indirectly confer suffrage: if, for example, a commonwealth law confers suffrage upon white persons having such and such qualifications, this provision of the fifteenth amendment would then operate to confer it upon other persons, not white, having the same qualifications.2

1 United States v. Reese, 92 U. S. Reports, 214.
2 Neal v. Delaware, 103 U. S. Reports, 370.

The restriction upon the power of the commonwealths over the process of election is contained in Article I, section 4, paragraph 1, which provides that Congress may at any time, by law, make regulations prescribing the times, places and manner of holding elections for the members of the lower house of the legislature of the United States and prescribing the times and manner of holding elections for the members of the upper house, or may alter any regulations made by the commonwealths in respect to these things. It will thus be seen that the legislature of the United States may regulate the whole process of election of the members of that legislature except as to the places of choosing the members of the upper house, the senators. It may not require the commonwealth legislatures to convene for the purpose of electing the senators at any other places than those fixed by the respective commonwealths.

The Congress has exercised this power in some degree. It has fixed the times for holding the elections for senators and representatives.1 The general rule established. by it for the election of senators, as to time, is the second Tuesday after the meeting and organization of the commonwealth legislature chosen next preceding the expiration of the senatorial term concerned. In case of accidental vacancy, it is the second Tuesday after the meeting and organization of the legislature next following the accident or, if the legislature be in session, the second Tuesday after it shall have received notice of the vacancy. The general rule established by Congress for the election of representatives, as to time, is the Tuesday next following the first Monday in November, every second year after the year 1876. In case of accidental vacancy, it is such time as the respective commonwealths may designate, limited only by the constitutional command that upon vacancies happening, the executive of

1 United States Revised Statutes, secs. 14, 16, 17, 25, 26.

the commonwealth shall issue writs of election to fill the same.1

As to the regulation of the manner of the elections. the legislation of Congress is as yet very fragmentary, and in some respects inharmonious. It has provided that all votes for representatives to Congress must be by written or printed ballot.2 It has provided that, upon the written application of two citizens of good standing of any town or city having 20,000 inhabitants, or of ten citizens of good standing of any county or parish in any congressional district, made to the judge of the circuit court of the United States for the circuit in which such city, town, county or parish may be situated, prior to any registration of voters for an election of a representative to Congress or prior to any election at which a representative is to be voted for, expressing the desire to have such registration or election or both guarded and scrutinized, the judge shall open the court at the most convenient point in the circuit ten days before the registration or the election, and keep it open for the transaction of the business connected with the registration or election or both, up to and including the day following the election; that the court shall appoint for each election district or voting precinct of the city, town or congressional district, from which such application as above mentioned shall have been made, two persons of different political parties, as supervisors of elections, that if the circuit judge is unable to perform this duty, he shall designate one of the United States district judges within his circuit to perform the same; that such supervisors shall attend the registration of the voters, and have power to challenge any person offering to register or to cause any name registered to be marked for challenge and to take measures for the detection and exposure of any fraud in the registra

1 United States Constitution, Art. I, sec. 2, § 4.

2 United States Revised Statutes, sec. 27.

8 Ibid. secs. 2011, 2012, 2013, 2014.

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tion; that they shall attend the elections and remain by the ballot boxes from the time that the polls are open until the proper and requisite certificates or returns shall have been made; that they shall challenge any vote concerning the legality of which either of them shall have any doubt, shall personally scrutinize and count each ballot and shall make report to the person appointed by the circuit court of the United States as chief supervisor of the elections in that circuit, of the proceedings at the registry and election.2

Congress has also provided that, upon application in writing by two citizens of a city or town of 20,000 inhabitants or more, made to the United States marshal for the judicial district in which the city or town may be situated, prior to an election at which representatives to Congress are to be chosen, the said marshal shall appoint special deputies to aid the supervisors in the discharge of their duties; that the marshal and his deputies or, in their absence, the supervisors shall have power to summon the posse comitatus to their aid in case of necessity; that the marshal and his deputies or, in their absence, the supervisors shall have power to arrest, without process, any person undertaking in their presence to commit a fraud against the laws of registration or election, and shall bring such person immediately before a commissioner, judge or court of the United States for examination of the charge made against him, etc.3*

The mode of electing senators has been much more fully regulated by Congress. It is a far easier subject to deal with. The statute prescribes viva voce vote, separate action of the two houses upon the first day of voting, and vote in joint assembly at least once every day after the first day until a senator shall be elected. It prescribes, further, that upon the separate vote a majority in each house shall be necessary to elect; that upon the vote in joint assembly a 1 United States Revised Statutes, sec. 2016. 2 Ibid. secs. 2017, 2018. 8 Ibid. secs. 2021, 2022, 2023, 2024, 2025.

* By act of February 8, 1894, all these statutes relating to supervisors of elections and special deputy marshals were repealed.

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