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this presupposition, for the two senators of a state are elected by two different legislatures, and it is therefore a matter of common occurrence that they should belong to two different parties. Despite this, they are absolutely equal representatives of their state. The constitution (art. I., sec. 3, § 1) provides: "Each senator shall have one vote." It is therefore proper only in a very limited sense to call the senate the congressional house of states. The votes of the states are not cast there. Each senator votes according to his own convictions, and on his own personal responsibility. A legislature cannot assert that the state is practically deprived of its proper weight in the senate because the vote of a senator elected by a former legislature neutralizes the vote of one of an opposite party elected by a more recent legislature. The state has no right of complaint, moreover, even when -as may easily be the case-both senators belong to a party which, at the moment, is in a minority in the state.

There is no difference in the political existence of the house of representatives and of the senate, from the standpoint of constitutional law. Their functions are not quite the same; the mode of election, the voters, and the tenure of office are different; and in the senate the states as such have equal representation, whereas in the house of representatives representation is in proportion to the population. But the constitutional nature of the tenure of office is the same for both houses of congress. The mistake of the state's-rights conception of this question is, that it treats the legislatures and the states as identical. But according to the constitution, the latter, not the former, are represented in the senate.1

1 It has happened that senators have resigned because obedience to instructions was irreconcilable with their consciences, and they recognized the right of the legislature to demand the representation of its views in the senate.

The conditions upon which the passive right of suffrage (the right to be voted for) depends are in substance the same for both houses of congress. For the senate they are simply somewhat more severe. To be eligible a person must be at least twenty-five (thirty) years of age, have been a citizen of the United States for at least seven (nine) years, and be an inhabitant of the state at the time of the election. The third section of the fourteenth amendment moreover provides: "No person shall be a senator or representative in congress, or elector of president and vicepresident, or hold any office, civil or military, under the United States or under any state, who, having previously taken an oath as a member of congress, or as an officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any state, to support the constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But congress may, by a vote of two-thirds of each house, remove such disability." During the so-called period of reconstruction, these provisions were of great moment. Since its close, they are of importance only in so far as they tend to prevent the revival of doctrines which, in their ultimate consequences, led to the absurdity of constitutional rebellion.

§ 24. CONGRESS. As the elections to the house of representatives and to the senate in accordance with the provisions of the constitution and the laws proceed without the co-operation of the federal executive power, so in the regular course of affairs there is no need of its intervention to call the representatives and senators to assem

1 The tenure of office does not cease by reason of removal of the elected person to another state after his election. Diplomatic officials of the Union, even when at their posts in foreign countries, are recognized as "inhabitants” of their respective states and are eligible.

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ble together in congress. Art. I., sec. 4, § 2, provides: "The congress shall assemble at least once in every year, and such meeting shall be on the first Monday in December, unless they shall by law appoint a different day." The president can, however (art. II., sec. 3, § 2), "on extraordinary occasions convene both houses or either of them."2

In congress itself different views have been maintained with great vigor on the question as to whether the congress comes into life of and by itself by virtue of the meeting of the members of both houses, or whether the congress first exists when both houses have completed their organization. The question, at bottom, however, has only an academic interest, as the co-operative action of both houses as a congress unquestionably is possible only after their formal organization is effected. Touching the senate, however, such an organization can be spoken of only in a very limited sense, since "the vice-president of the United States shall be president of the senate" (art. I., sec. 3, §4). "The senate shall choose their other officers and also a president pro tempore in [case of] the absence of the vice-president, or when he shall exercise the office

1 By virtue of the authority granted by the last clause, this provision was enlarged by the act of January 22, 1867, to the extent that congress should also meet upon the day its lawful existence begins, to wit, on March 4 of the odd-numbered years, and that every congress should thus have three regular sessions. This law, however, remained in force only for the three legislative periods of the 40th, 41st and 42d congresses.

2 The clause proceeds: "And in case of disagreement between them, with respect to the time of adjournment, he may adjourn them to such time as he shall think proper." This power has never yet been used. It is, however, to be observed, that this right of adjournment by the president accrues only in the one particular case.

3 See my Constitutional History, V., 212, 218.

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of president of the United States." The house of representatives, on the other hand, in addition to its other officers, has to elect its permanent chairman, who bears the title of speaker (art. I, sec. 2, § 5). As he has to appoint the standing committees which, so far as the house is concerned, as a rule practically shape all legislation, the election of the speaker is an act of pre-eminent political importance. In times of great political excitement, when neither party has an absolute majority, the organization of the house is apt to become a very serious question. The other factors of government have no power to enforce it. In other words, the majority of the memberselect have the power to deprive the Union for the legislative two-year period of its law-making functions by preventing the organization of the house. On the other hand, neither of the two houscs by itself can close a session after congress has once met either by virtue of the constitutional provisions or upon the call of the president.. "Neither house, during the session of congress, shall, without the consent of the other, adjourn for more than three days, nor to any other place than that in which the two houses shall be sitting" (art. I., sec. 5, § 4).

§ 25. THE EXECUTIVE POWER. "The executive power shall be vested in a president of the United States of America" (art. II., sec. 1, § 1). The vice-president has no share in the executive power. His sole task, as long as the president acts as such, is that of presiding over the senate. Even though the executive authority is far removed from independence of the other factors of govern

1 Shortly before the close of each session, the vice-president gives the senate an opportunity to choose a president pro tempore, so that it shall not be without a presiding officer, if before the next session of congress the vice-president die or assume the office of president.

2 See the sketch of the two-months campaign over the speakership in the 34th congress in my Constitutional History, V., 203–219. The house of representatives has no permanent vice-chairman.

ment, it is nevertheless singularly simple. The president is dependent in manifold ways upon the other factors, but he alone is the sole possessor of what the constitution describes as the executive power. The law may confer upon the so-called secretaries or members of the "cabinet," as well as upon other executive officers, independent functions, but the constitution recognizes no representative of the president, no one upon whom either the law or the free will of the president can temporarily confer even the slightest of the privileges and duties which the constitution grants to and imposes upon the bearer of the executive power. "In case of the removal of the president from office, or of his death, resignation, or inability to discharge the powers and duties of the said office, the same shall devolve on the vice-president, and the congress may by law provide for the case of removal, death, resignation or inability, both of the president and vice-president, declaring what officer shall then act as president, and such officer shall act accordingly, until the disability be removed or a president shall be elected." Art. II., sec. 1, § 5. The constitution thus creates in the person of the vice-president an official who in a given case is to take the place of the president. It commits to congress the task of providing for all cases in which he cannot discharge the duties of the office. But in every case the rights and duties of the place pass fully and wholly over to the designated person, either until the expiration of the term of office or temporarily. Any separation of these rights and duties, or of the responsibility imposed by them, is under all circumstances absolutely excluded.1

1 By virtue of the authority conferred in the second clause of the paragraph cited above, congress has already provided, by the act of March 1, 1792, for the case of the inability of both the president and vice-president to act. After the vice-president, the president pro

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