ment, the House of Representatives refused admission to memberselect who had been disloyal to the Union.14 The Senate at first refused to pursue this practice,15 although they expelled several members for disloyalty.16 Finally, after the Fourteenth Amendment had passed both houses of Congress, and been ratified by three-fourths of the States there represented, but not by threefourths of the entire number, the Senate refused to allow a Senator-elect to take the oath, or to hold a seat, upon the ground that he had "voluntarily given aid, countenance and encouragement to persons engaged in armed hostility to the United States." 17 "The Committee on the Judiciary, to whom were referred the credentials of Benjamin Stark, as Senator from the State of Oregon, with the accompanying papers, have had the same under consideration, and, without expressing any opinion as to the effect of the papers before them upon any subsequent proceedings in the case, they report the following resolutions: Resolved, that Benjamin Stark, of Oregon, appointed a Senator of that State by the governor thereof, is entitled to take the Constitutional oath of office." The resolution was amended by adding the words, "without prejudice to any subsequent proceedings in the case"; and thus passed by twenty-six yeas to nineteen nays, Feb. 27, 1862. Lyman Trumbull made a strong minority report in which he argued that disloyalty was a disqualification (see infra, note 20). After the oath had been administered to Stark the papers were referred to a select committee who after investigation reported, April 2, 1862, in favor of his expulsion. On June 6, 1862, a motion for his expulsion was negatived; there being sixteen yeas and twenty-one nays. (Taft's Senate Election Cases, continued by Furber, pp. 188-201.) 16 Cases of James M. Mason, John C. Breckinridge, Trusten Polk, Waldo P. Johnson, Jesse D. Bright and others. (Ibid., pp. 741, 743, 744, 746, 748.) 17 In the case of Philip F. Thomas of Maryland, Feb. 19, 1868, the following resolution was adopted after an investigation by the Committee on the Judiciary: Resolved, that Philip F. Thomas, having voluntarily given aid, countenance and encouragement to persons engaged in armed hostility to the United States, is not entitled to have the oath of office as a Senator of the United States from the State of Maryland, or to hold a seat in this body as such Senator; and that the president pro tempore of the Senate inform the governor of the State of Maryland of the action of the Senate in the premises." It was argued in the debate that the Fourteenth Amendment had been effectively ratified and that the excluded States should not be taken into consideration in that connection. (Ibid., pp., 237-243.) It has since been held by the House of Representatives that a member duly elected could not be disqualified for a cause not named in the Constitution, such as immorality, and that the remedy in such a case, if any, was expulsion.18 The distinction between the right to refuse admission and the right of expulsion upon the same ground is important, since the former can be done by a majority of a quorum, whereas expulsion requires the vote of two-thirds.19 The question cannot be said to have been authoritatively decided. The principle that each house has the right to impose a qualification upon its membership which is not prescribed in the Constitution, if established, might be of great danger to the republic. It was on this excuse that the French Directory procured an annulment of elections to the Council of Five Hundred, and thus maintained themselves in power against the will of the people, who gladly accepted the despotism of Napoleon as a relief.20 18 Maxwell v. Cannon, 43d Congress, cited in McCrary on Elections, 3d ed., § 590. 19 Constitution, Article I, Section 5. 20 The arguments in support of the right of either house to exclude for disloyalty are well set forth in the minority report of Lyman Trumbull in Stark's Case (ibid., pp. 190-191): 66 Does It is admitted that neither the Senate, Congress, nor a State can superadd other qualifications for a Senator to those prescribed by the Constitution, and yet either may prevent a person possessing all those qualifications, and duly elected, from taking his seat in the Senate. any one question the right of a State to arrest for crime a person duly qualified for and appointed Senator, hold him in confinement, and thereby prevent his appearing in the Senate to qualify? Suppose a Senator, after his appointment and before qualifying, to commit the crime of murder, would anyone question the right of the State authorities where the crime was committed to arrest, confine, and if found guilty execute the murderer, and thereby prevent his taking his seat? Or if the punishment for the offence was imprisonment, would any one question the right to hold the Senator in prison and thereby prevent his appearing in the Senate? Could the Senate in such a case expel him before he had been admitted to a seat? Or must he be brought from the felon's cell, be introduced into the Senate, and sworn as a member before his seat could be declared vacant? If not, must the State go unrepresented till the time for which he was appointed has expired? Or would it be competent for the Senate, in such a case, by a majority vote to declare the convict incompetent to hold a seat in the body, and thereby open the way for the appointment of a successor? It is manifest that the prescribing of the qualifications for a Senator in the Constitution was not intended to prevent his being amenable for his crimes. The fact that the Constitution declares that Senators and Representatives shall in all cases, ex cept for 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,' is conclusive that for those offences they may be arrested. As a punishment for crime, then, it is clear that a senator-elect, possessing all the Constitutional qualifications of age, citizenship and inhabitancy, may be prevented from taking the oath of office. Congress has repeatedly acted upon the presumption that it was entirely competent for it to prescribe, as a punishment for crime, an inability forever afterwards to hold any office of honor, profit or trust, under the United States." "If it be competent for Congress to make disqualification to hold office as punishment for an offence against the United States, then it is clearly competent for the Senate, which by the Constitution is made 'the judge of the elections, returns, and qualifications of its own members,' to do the same thing, so far as the right to take a seat in that body is concerned. Doubtless a law of Congress declaring that a person convicted of a particular offence should not hold office under the United States, and the decision of the courts sustaining such a law, would not preclude the Senate from admitting such a person to a seat, should it think proper, because the Senate is the exclusive judge of the elections, returns, and qualifications of its own members; yet it is hardly conceivable that the Senate ever would admit such a person to be sworn; nor does the fact that Congress has not adopted such a punishment for disloyalty or treason prevent the Senate from refusing to allow to be sworn as a member a person believed by the body to be guilty of those offences or other infamous crimes. That an armed traitor, a convicted felon, or a person known to be disloyal to the government, has a constitutional right to be admitted into that body, would imply that the Senate had no power of protecting itself. a power which, from the nature of things, must be inherent in every legislative body. Suppose a member sent to the Senate, before being sworn, were to disturb the body and by violence interrupt its proceedings, would the Senate be compelled to allow such a person to be sworn as a member of the body before it could cast him out? Surely not, unless the Senate is unable to protect itself and preserve its own order. The Constitution declares that each house may determine the rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two-thirds, expel a member.' The connection of the sentence in which the power of expulsion is given would indicate that it was intended to be exercised for some act done as a member, and not for some cause existing before the member was elected or took his seat. For any crime or infamous act done before that time, the appropriate remedy would seem to be to refuse to allow him to qualify, which, in the judgment of the undersigned, the Senate may properly do, not by way of adding to the qualifications imposed by the Constitution, but as a punishment done to his crimes or the infamy of his character." This argument, it will be observed, is based upon the assumption that a Senator cannot be expelled before he has been sworn and admitted to his seat. CHAPTER VIII. APPORTIONMENT OF REPRESENTATIVES AND DIRECT TAXES. § 63. Constitutional Provisions concerning Apportionment of Representatives and Direct Taxes. THE next clause of the Constitution ordains: "Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of Free Persons, including those bound to service for a Term of Years, and excluding Indians not taxed, three-fifths of all other Persons. The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, and in such manner as they shall by Law direct. The Number of Representatives shall not exceed one for every thirty thousand, but each State shall have at least one Representative; and until such enumeration shall be made, the State of New Hampshire shall be entitled to chuse 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.' 1 The Fourteenth Amendment: "Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for president and vicepresident of the United States, representatives in Congress, the executive or judicial officers of a State, or the members of the legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age and citizens of the United States, or in any § 63. 1 Article I, Section 2. way abridged, except for participation in rebellion or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State." 2 § 64. History of the Clause concerning the Apportionment of Representatives and Direct Taxes. The clause concerning the apportionment of representatives and direct taxes was the second of the three great compromises of the Constitution, and the adjustment of a controversy which had been the cause of discord since the colonies first confederated together. Although so much thereof as applied to the apportionment of representatives has been materially modified, the other remains in the original language. Since the meaning of this is still the subject of a dispute between two sections of the country, the importance of the subject seems to demand a full consideration of the history of the proceedings which led to its adoption. On the day after the meeting of the first Congress of the United States, September 6th, 1774, their first legislative act was adopted as follows: "Resolved, that, in determining questions in Congress, each colony shall have one vote, the Congress not being possessed of, or at present able to procure, proper materials for ascertaining the importance of each colony." The advantage then secured by the smaller States they refused to relinquish and retained in the Articles of Confederation, which were adopted March 1st, 1781,1 and until these were abrogated by the Constitution. The articles provided that "in determining questions in the United States, in Congress assembled, each State shall have one vote." 2 The continuance of this rule was one of the chief obstacles to the formation of the Articles of Confederation. In 1777 it was proposed that Rhode Island, Delaware, and Georgia should each have one vote and the other States one vote for every fifty thousand white inhabitants; but this was supported only by Virginia and 3 2 Fourteenth Amendment, Section 2. § 64. 1 Curtis, Constitutional History, vol. i, p. 86. 2 Article V. 3 See Jefferson's Notes of Debate on Confederation in Congress, during July |