Remember, when reading this, that it was written by an attorney, as an attorney's view.
Joseph Story's writings should also be considered [being from the same time period] along with the federalist papers and the anti-federalist papers. The Expose' Volumes address these aspects in a different light, and in great depth.
Rawle's - A view of the Constitution
CHAPTER IV.
OF THE HOUSE OF REPRESENTATIVES.
THE house of representatives was founded on the principle of
the representation of the people; yet not purely and
abstractedly, but with as much conformity to it as was
practicable.
It is composed of representatives of the people of the several
states, not of the people at large; and in this respect there is
still something of a federative quality. If the whole had been
thrown into one mass, it would certainly have been more
consistent with a full representation of the entire people, but
many would have been the objections to it. It would have been
desirable that the qualifications of the electors should be
uniform, but considerable variety of opinion and practice in this
respect exists. In some states, the system of universal suffrage
prevails; in others a freehold or other estate is required of
more or less value. Residence for a longer or shorter time is
requisite in different states, and when the constitution was
framed, different qualifications were required in two of the
states for electors of the different branches of the legislative
body. The people of each state were naturally attached to their
own institutions, and would unwillingly have surrendered them in
favour of others. Indeed, if the qualification of property had
been required, the people of those states wherein universal
suffrage was established, would probably have refused altogether
to accede to the Union.
Again. If the representatives were to be all chosen by a
general ticket, the consequences would be that thousands of
voters must give their suffrages in favour of persons of whom
they had no knowledge. If it was required that the candidate
should reside in a particular district, the inhabitants of
Georgia would either have to select a resident of Massachusetts
on their own judgment, or implicitly follow the suggestions of
the voters in Massachusetts.
Under these difficulties the principle of exact representation
was necessarily abandoned, and in lieu of it, representation was
apportioned among the several states. The medium of not more than
one representative for 30,000 inhabitants, was first agreed on,
and is a fundamental part of the system by which the inhabitants
of every state, although it might possess a fractional part
however large of 30,000, consented to relinquish the benefit of
the ultra number. But every state is to be represented; and if
any one should by casualties be reduced below that number, she is
still to have one representative, as she will still retain two
members of the senate. [1]
At one time it was conceived by congress, that without
invading the constitution, the principle of apportionment might
be reformed to advantage. The object was to prevent the loss in
the number of representatives arising from the fractional
parts.
With a sound political view to retain the just relation of
representation to numbers, it is provided in the Constitution,
that within three years an actual enumeration should be made of
the inhabitants of the United States, which should be repeated
every ten years. In fixing the number of the first house of
representatives, the population was estimated, not ascertained.
When the census, (as it is now commonly termed,) was taken in
1790, it appeared that, in many states, there would be
considerable fractional parts, which, whether the quotient was
fixed at 30,000, or a greater number, would be unrepresented. To
increase the number of the house of representatives as far as the
constitution would permit, was deemed most conducive to the
public security, against the preponderancy of executive
influence, which however was denied and resisted by a
considerable minority. A bill, after great struggles, passed both
houses, which it seems difficult to reconcile to the
Constitution.
The whole number of inhabitants according to the recent census
being ascertained, it was divided by 30,000, and produced the
number of one hundred and twenty representatives, which were, in
the first place, apportioned among the several states, until as
many representatives as it would give were allotted to each. The
residuary numbers were distributed among the states having the
highest fractions. But the correct and independent mind of the
illustrious man who then held the office of president, rejected
the bill. It was returned to the house of representatives, with
the observation, that the Constitution had provided that the
number of representatives should not exceed one for 30,000, which
is to be applied to the respective numbers of the states, and the
bill allotted to eight of the states more than one for
30,000.
As there was not a constitutional majority to pass it again,
the effort failed, and probably will never be renewed. Another
law was immediately passed, allotting one member to 33,000
inhabitants, which still left some fractional parts
unrepresented.
The same objection also exists in the representative bodies of
states, where the apportionment is made among counties -- but a
state legislature possesses the power of enlarging or reducing
counties, and of adding two or more together, whereas the United
States have no power to alter the boundaries of a state, although
they may give their assent to an alteration by the state itself
the enumeration, at stated intervals, as required by the
Constitution is, like many other parts of it, deserving of praise
both for its wisdom and its novelty. It is not to be found in the
Constitution of any of the European governments, and if
occasionally practised, it is not obligatory on them to continue
it.
The census of Rome was directed by a law passed three hundred
years after the commencement of the state was occasionally
intermitted, and finally abolished; but the institution itself
was rather of a military than a representative character.
By conforming the representation to the actual number of
citizens, as it is ascertained from time to time, the evils
experienced in the country, to which, on account of its bearing
the greatest resemblance to our civil polity, we so frequently
allude, are avoided. The decline of population in some parts of
England, and its increase in others, have produced the utmost
inequality in the formation of their house of commons. London,
which contains about one-seventh of the inhabitants of England,
is entitled to send four members to parliament. The
inconsiderable united borough of Weymouth and Melcombe Regis,
containing seventeen hundred inhabitants, sends the same number.
Manchester and Birmingham, two very populous towns, have no
representatives, while the small deserted borough of Old Sarum,
without a house or an inhabitant, is the vehicle through which
two members obtain their seats; the largest county in the kingdom
sends only two.
Thus a rigid adherence to an ancient system of representation,
which may perhaps have been not unsound at the time it was
formed, is now productive of the grossest abuses. The name, the
tegument are preserved, when the substance that ought to be
enclosed, is almost entirely gone.
The beneficial effects of our system will appear by referring to the following tabular view, in, which the increase of general population may be deduced from the increased number of representatives from most of the states.
TABLE.
STATES, Number of Representatives.
1789. 1791. 1803. 1813. 1823.
New Hampshire - - - - 3 4 5 6 6
Massachusetts 8 14 17 20 13
Rhode Island 1 2 2 2 2
Connecticut 5 7 7 7 6
New York 6 10 17 27 34
New Jersey 4 5 6 6 6
Pennsylvania 8 13 18 23 26
Delaware 1 1 1 2 1
Maryland 6 8 9 9 9
Virginia 10 19 22 23 22
North Carolina 5 10 12 13 13
South Carolina 5 6 8 9 9
Georgia 3 2 4 6 7
Kentucky,(separated from Virginia 2 6 10 12
in 1791)
Vermont, from (New Hampshire and 2 4 6 5
New York, 1791)
Tennessee, (from North Carolina, 2 3 6 9
1796)
Ohio, (from a territory, 1802) 1 6 14
Louisiana, (from a territory, 1812) 1 3
Indiana, (from a territory, 1816) 3
Mississippi, (from a territory, 1817) 1
Illinois, (from a territory, 1818) 1
Alabama, (from a territory, 1821) 3
Missouri, (from a territory, 1822) 1
Maine, (from Massachusetts, 1822) 7
Territories sending Delegates.
Michigan
Arkansas
Florida
There is, however, one anomaly in our system with which we are
sometimes reproached. The representative proportions are made to
depend on adding to the whole number of free persons in each
state, including those bound to service for a term of years, and
excluding Indians not taxed, three- fifths of all other persons,
that is, that fifteen slaves shall be considered as equal in the
ratio of representation to nine freemen.
It would now be unseasonable and useless to consider or to
answer the arguments on either side. It has been agreed to, and
the question is for ever at rest.
It only remains to observe, that to guard against a refractory
disposition, should it ever arise in the legislatures of the
states, in respect to the times, places, and manner of holding
elections for senators and representatives, congress is empowered
at any time, to make or alter by law such regulations, except as
to the place of choosing senators. This exception was proper, as
congress ought not to have the power of convening the state
legislature at any other than its usual place of meeting. We have
already observed, that when the Constitution was adopted,
different qualifications were prescribed in some of the states
for electors to their different legislative branches. As the
house of representatives is the most numerous branch of the
general legislature, it was judiciously provided that the
electors of it should have the qualifications requisite for the
electors of the most numerous branch of the state
legislature.
When vacancies happen, the executive authority of the state,
issues writs for elections to be holden to fill them.
Both the senate and house of representatives possess the usual
powers to judge of the elections, returns and qualifications of
their own members, and to punish them for disorderly behaviour,
which may be carried to the extent of expulsion, provided
two-thirds concur.
It has not yet been precisely settled what must be the
disorderly behaviour to incur punishment, nor what kind of
punishment is to be inflicted; but it cannot be doubted that
misbehaviour out of the walls of the house or within them, when
it is not in session, would not fall within the meaning of the
Constitution.
Expulsion may, however, be founded on criminal conduct
committed in any place, and either before or after conviction in
a court of law.
But a power extending beyond their own precincts, and
affecting others than their own members, has been exercised by
both houses, and has been decided in the supreme court to be
constitutional.
It is a maxim in the practical application of government, that
the public functionaries should be supported in the full exercise
of the powers intrusted to them. Attempts to bribe or to
intimidate them constitute offences against the public. They
amount to more than contempts or breaches of privilege against.
the legislative bodies, and they undoubtedly subject the
offenders to the usual course of prosecution and punishment in
the courts of law. But this liability does not exclude the
immediate jurisdiction of the legislative body, which is
supported by strong considerations of public policy. The people
are entitled to the utmost purity and integrity in the conduct of
their representatives. The house is a guardian of the public
interests in this respect. It is its duty to make immediate
inquiry as to any attempt to assail the freedom or corrupt the
integrity of any of its members. From the duty to inquire arises
the right to punish; it needs not to be devolved on the ordinary
tribunals. It is true that no power to this effect is expressly
given by the Constitution, nor does the judicial or criminal
power given to the courts of the United States in any part,
expressly extend to the infliction of punishment for such
offences. But it is not therefore to be inferred that no such
power exists any where. If the courts of the United States would
possess it by implication, there is no reason for refusing it to
the legislative body itself, unless it should be discovered to be
wholly inconsistent with the construction or nature of that body,
or with some clause in the Constitution. But the reverse of the
first position is the truth. It would be inconsistent with the
nature of such a body to deny it the power of protecting itself
from injury or insult. If its deliberations are not perfectly
free, its constituents are eventually injured. This power has
never been denied in any country, and is incidental to the nature
of all legislative bodies. If it possesses such a power in the
case of an immediate insult, or disturbance preventing the
exercise of its ordinary functions, it is impossible to deny it
in other cases, which although less immediate or less violent,
partake of the same character, by having a tendency to impair the
firm and honest discharge of public duties.
Those clauses in the Constitution which provide that the trial
of all crimes shall be by jury, in the state and district where
the offence has been committed, are ever to be held sacred -- but
it would be doing violence to them to carry them further than the
plain meaning, that trial by jury shall be preserved in criminal
prosecutions in the ordinary courts; otherwise it would be
impossible to support the jurisdiction given to the senate in
cases of impeachment, wherein no trial by jury takes place. It
appears then that this implied power of punishing what are termed
contempts and infringements of the privileges of the houses, is
in reality the useful institution of a summary jurisdiction for
the punishment of offences substantially committed against the
people, and that it is correctly deduced from the
Constitution.
The following express provisions, which require no
elucidation, are inserted to close this part of the subject
--
A majority of each house shall constitute a quorum to do
business, but a smaller number may adjourn from day to day and
may be authorized to compel the attendance of absent members in
such manner and under such penalties as each house may
provide.
Neither house without the consent of the other shall adjourn
for more than three days, nor to any other place than that in
which the two houses shall be sitting.
Each house shall keep a journal of its proceedings, and from
time to time publish the same, excepting such parts as may in
their judgments require secrecy, and the yeas and nays of the
members of either house shall, at the desire of one-fifth of
those present, be entered on the journal.
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1. In the articles of confederation it was also a fundamental provision that each state should have one vote, (art. iv,) and this was made an express condition in the instructions given by the state of Delaware to its delegates in the convention of 1787.