integral or total renewal, but yet at the expiration of each legislative period, one-third of the senators retire. On this account (according to art. I., sec. 3, § 2), at the foundation of the government, the senators were distributed into three classes by lot; but care was taken that both senators from one state did not fall into the same class. When a new state is admitted into the Union, its senators are likewise placed by lot in different classes. Thus the senatorial term of office, next to that of the 'federal judges, is not only the longest, but the senate itself is likewise, though not in the manner of the supreme court, a permanent body with perpetual succession. The government is on the one hand assured, by this systematic diversity of official terms, of the continual influx of new blood, which keeps it in immediate and active sympathy with the existing wishes of the people. On the other hand, the danger of the government's reflecting only the momentary popular humor is thus also obviated.

$22. MODE OF ELECTION. THE ACTIVE RIGHT OF SUFFRAGE. A like amalgamation of a self-conscious democratic spirit and conservative forecast characterizes every provision concerning the formation of those two departments which, in the more limited sense of the word, are designated as the government.'

The members of the house of representatives must be elected "by the people of the several states" (art. I., sec. 2, § 1). Farrar (p. 150) thinks that by "people" is meant only citizens, and, in fact, only citizens of the United

1 What is called the government in Europe is styled the administration in the United States. The difference of speech is well founded in fact. In these, as in all like cases where the ideas do not completely coincide, for the purpose of greater accuracy I shall always adhere to the American terminology, after the expression has once been explained.

States. This assertion is neither justified by the most famous commentators on the constitution, nor is it in accordance with practice. The provision is simply that the representatives shall receive their authority by a direct election, for further on it is set forth: "The electors in each state shall have the qualifications requisite for electors of the most numerous branch of the state legislature." The active right of voting for congressmen, it thus appears, is not established on the same basis for all of the United States, either by the constitution or laws of the Union. In each state it may be made dependent upon different conditions. Formerly the greatest diversities prevailed in this respect, and even now there is no complete uniformity. Yet from a constitutional standpoint it is not correct merely to state that the constitution left it entirely to the judgment of the states to determine the qualifications of the voter at elections to the house of representatives. It would be more correct to say that the states have never had any power whatever in the matter. The states have only to decide. who shall possess the franchise at elections to the most numerous branch of the state legislature. The constitu tion makes the possessors of this franchise the electors for the house of representatives. It may seem at first sight that this is only a logical distinction, without any practical difference. But this is not so. The states, in many instances, in framing their election laws, paid no attention to the elections for the house of representatives.

1 Congress also has the right to protect voters in the exercise of the franchise; to punish election officials for unlawful practices; to direct the registration of voters, etc. How far it may exercise these rights is within its judgment, but so far as it does exercise them the conflicting provisions of the state laws will be of no avail. Ex parte Siebold, 100 U. S., 371; Ex parte Clarke, 100 U. S. (Otto, X.), 299.

They considered simply their own public affairs. This is why, for instance, many states have given the franchise to non-naturalized foreigners, who thereby were endowed under the constitution with the franchise at elections to the house of representatives. We have, then, this curious spectacle: that, in the democratic republic, male citizens of full age, of good character, and of sound mind, cannot vote for members of the people's house of the Union, while certain persons who are not citizens can do so. Having or not having the franchise depends, in the first place, upon the domicile. A change in that may give or may forfeit the franchise. In the United States, as such, universal suffrage (so called) does not exist. Moreover, citizenship is not a condition precedent of the franchise.1

The amendments adopted after the civil war have brought about a much greater uniformity with regard to the franchise, but the anomalies just noted have not been set aside. The second section of the fourteenth amendment declares that the states shall be represented in the house of representatives in proportion to the total number of their inhabitants, exclusive of the untaxed Indians.2

1 See Scott vs. Sanford (better known as the Dred-Scott decision), Howard, XIX., 404-414.

2 Art. I., sec. 2, § 3, provides that each five slaves (but this word was avoided) should be counted, in regard to representation, as three persons. The further declaration of this paragraph, that "direct taxes" should also be levied in proportion to the population of the states, is not touched by the fourteenth amendment, and is therefore still in full force. What is meant by "direct taxes" has evoked very divergent views, and there has been no authoritative decision of the question. I must therefore rely upon the simple statement of the clause, and can do this the more readily since before the civil war direct taxes were levied only thrice,-in 1798, 1813 and 1815. The nature of certain taxes levied during the war is a subject of controversy. Since its termination the controversy has again assumed a

"But when the right to vote at any election for the choice of electors for president and vice-president of the United States, representatives in congress, the executive and 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 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." So far as this provision is concerned the right of the states to regulate the franchise according to their own opinions is not in the least abridged; but it puts a strong pressure on the states to introduce universal suffrage. Every considerable limitation of the right of suf frage henceforth would bring about a sensible diminution of a state's representation in the house of representatives. Pomeroy (p. 135) justly observes that this provision, directed mainly against the former slave states and intended to force them to grant full political equality to the freedmen, was the surrender of a fundamental principle of the constitution. It is not limited to the exercise of an influence upon the elections to the house of representatives. It subjects the states to the strongest pressure in framing their laws concerning the right of suffrage in state elections. Hitherto, on the contrary, the constitution had, as a matter of fundamental principle, left with

purely academic character, and the economic relations of the Union suggest that it will retain this character for generations to come. According to the decision of the supreme court in Springer vs. The United States (102 U. S., 586), the income tax is not a “direct tax" within the meaning of the constitution; only poll taxes and taxes on real estate are to be regarded as "direct."

the states the absolute right of self-government in all affairs peculiarly their own.

In one provision, the fifteenth amendment went far in advance of the fourteenth. It reads: "The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color or previous condition of servitude." In opposition to a widespread opinion, the courts have decided, in every case brought before them, that nobody obtained the right to vote by reason of this amendment. The United States, as well as the several states, can still withhold it forever from every colored man and former slave, but they cannot do so on account of his race, color or previous condition of servitude. The states' right of self-government relative to the franchise has now undoubtedly suffered a legal limitation, not because they have been obliged to grant the suffrage to certain persons, but because they are forbidden to refuse it on certain grounds.

The number of members of the house of representatives is not fixed by the constitution. It merely declares that every tenth year an enumeration of the people shall be made, that the number of representatives shall not exceed one for every 30,000 inhabitants, and that each state. shall have at least one representative (art. I., sec. 2, § 3). The basis of representation has been repeatedly changed by law in accordance with the results of the decennial census. After the first census it was fixed at 33,000; now it is 154,325; and the number of members has grown from 65 and 105 to 325, to which a delegate from each of the eight territories is to be added.1

1There were 65 members according to the temporary provisions of the constitution, and 105 after March 4, 1793, upon the basis of the first census. Nevada had, according to the census of 1880, only a