the provisions of the constitution, relating to the legislative department. The legislative power of the United States is vested in a Congress, consisting of a Senate and House of Representatives. A similar arrangement exists in all the States, though until recently Vermont was an exception. We have already seen that the motive for dividing legislative power in this manner, is to obtain the utmost security for its being faithfully and beneficially exercised. The idea is not original in this country. We had a well-tried example in the structure of the British Parliament. And although,

protracted. The first resolution, adopted by a vote of 7 to 3, was, that the rule of suffrage, in the house should not be as under the confederation, but according to some equitable ratio of representation-id. 830-42. The next, adopted by a vote of 9 to 2, was, that this ratio should be according to a census, including the free inhabitants and three-fifths of the slaves; this being the rule of contribution proposed in 1783 under the confederation, and agreed to by eleven of the States-id. 842-3. The next, adopted by a vote of 6 to 5, was, that the same ratio should prevail in the senateid. 843. The mode of choosing senators was again debated, and election by the State legislatures affirmed, 9 to 2-id. 945-59. The term of service for a representative was first fixed at three years, by a vote of 7 to 4, and then at two years, by a unanimous vote-id. 848, 931. The term for a senator was first fixed at seven years, by a vote of 8 to 1 Afterwards, opinions ranged between four and nine years, except that some were for the term of good behavior; but six years was adopted by a vote of 7 to 4-id. 853, 960-9. The rule of suffrage in the house again came up, and, after a long and animated debate, equality among the States was rejected, 6 to 4id. 974-96. But by way of compromise, equality in the senate was proposed. This was debated with great earnestness, and lost by a tie vote-id. 966-1016. The fate of the convention was now at its crisis. Happily, the whole matter of suffrage in Congress was referred to a committee of one from each State, who reported the following compromise, namely, in the house, one representative for every forty thousand, including three-fifths of the slaves, but each State to have one; an equal representation in the senate; and a prohibition to the senate either to originate or amend money bills-id. 1016-24. The various parts of this compromise were debated for several days, with sundry references to other committeesid. 1082-1108. With respect to the ratio in the house, a specific apportionment was proposed for the present, with power in Congress to regulate it in future, upon the combined principles of wealth and population-id. 1036-51. The specific apportionment was modified and agreed to — id. 1053-6. The rule of future apportionment was first agreed to, 9 to 2; but afterwards the proposition of a periodical census brought up the slave question-id. 105363. A proposition to consider slaves equal to freemen, was negatived, 3 to 7; and after warm debate upon the proper basis of representation, whether wealth, or numbers, or both, and whether slaves or not, a periodical census was unanimously negatived-id. 1069-79. It was then resolved, 6 to 2, that representation should be according to direct taxation, and that both should be determined by a census to be taken every ten years, including three-fifths of the slaves—id. 1086. The part of the compromise giving an equal vote in the senate, was adopted, 6 to 3; and that relating to money bills, 5 to 3-id. 1045-47. On the whole compromise, as thus adjusted, the vote stood 5 to 4-1107-8. The small States considered this as a triumph. The large States were dissatisfied. A breaking up was talked of. The convention adjourned for one day. Out-door meetings were had, and the next day, the business of the convention was resumed-id. 1109-13. The proposition of three senators from each State, was negatived, 1 to 8, and two agreed upon unanimously; and the proposition that they should vote per capita, and not by States, was adopted, 9 to 2-id. 1185-6. Such was the scheme of the legislative department, as it appeared in the first draft of the constitution — id. 1226-9. The ratio for the house was modified so as not to exceed one for every forty thousand; which, on the last day of the session, was changed to thirty thousand-id. 1263, 1699. The proposition to confine the ratio to free inhabitants was negatived, 1 to 10— id. 1266. The restriction of the senate as to money bills was stricken out, 7 to 4-id. 1273. But upon subsequent debate it was reinstated, with the modification, that the senate might amend, but not originate them-id. 1305-16. On the general subject of this department, see the 11th lecture of Kent; the 7th-13th chapters of Story's third book; and the 2d chapter of Blackstone's first book.

from absence of the privileged orders, we have not the same materials as exist in England for constituting two bodies with really distinct interests, yet it is obvious that if the two bodies were alike in every particular, the mere necessity of their independent concurrence in every legislative act, would afford more security than if there were but a single body. To some extent, they must necessarily act as a check upon each other, and the efficiency of this check will be increased, in exact proportion as these two bodies can be differently constituted, either with respect to their numbers, their mode of election, or their term of service; in all which particulars it will be seen that the senate and house of representatives differ from one another. In fixing the number of each house, the aim has been to secure a medium between too large and too small, in both; and at the same time to establish a difference between the two, by making the senate smaller than the other house. Accordingly, the number of federal representatives can never exceed one for every thirty thousand constituents; while every State, however small, must have at least one; whereas the federal senate can only consist of two senators from each State. This equal representation of the States in the senate, is a compromise in favor of the small States, whose influence is in a measure swallowed up in the other house; and in this respect, the constitution is declared to be unalterable. Thus simply and admirably was one of the strongest objections to our present federal organization completely obviated, by departing, in the construction of the senate, from the principle of proportionate representation. With regard to the State legislatures, a similar difference is made in the number of the two bodies. In Ohio, for example, the number of representatives is fixed at one hundred, and of senators at thirty-five.

Apportionment. (a) The federal method of apportionment is the result, partly of compromise, and partly of convenience. The provision is in these words: "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

(a) The second section of the 14th article proposed as an amendment to the constitution, June 16, 1866, and ratified by the requisite number of States, in the summer of 1868, provides for the apportionment of representatives, as follows:

"Section 2. 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 or 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."

It will be noticed, that, while this section may, in some cases, change the apportionment of representatives, it says nothing about a change in the apportionment of direct taxes. Therefore, cases may arise in which they will not be proportioned to the representation of the State.

persons, including those bound to service for a term of years, and excluding Indians not taxed, three-fifths of all other persons. The slaveholding States demanded a greater portion of representatives than, by the rule of uniformity, their free population would entitle them to; and they were willing, in return for this advantage, to bear a like proportion of the general expense, so far as supplied from direct taxation. This compromise was assented to by the non-slaveholding States; and thus another threatening obstacle to the formation of the present government was patriotically overcome. For the purpose of apportionment, a census or enumeration is made every ten years; and after each census, it devolves upon Congress to determine the number of representatives for each State, according to the directions of the constitution. The process originally adopted, was, first, to fix a ratio of representation within the limit before mentioned. This ratio forms the common divisor for the representable population of each State, as ascertained by the census, pursuant to the slave compromise; and the quotient, rejecting fractions, is the number of representatives for each State. By this process, therefore, if a State happen to have such an amount of population as to leave the remainder but one less than the assumed ratio, this entire remainder must be unrepresented. But how can this evil be avoided, consistently with the words of the constitution just quoted, "among the several States, according to their respective numbers"? It has been proposed to modify the above process thus: First, agree upon the whole number of representatives. By this divide the aggregate representable population of the Union, to obtain the ratio of representation. Then proceed as before, giving to each State the nearest whole number thence resulting; that is, when the remainder is greater than one half the ratio, adding one to the quotient. The result would be that some of the States would have one more than by the former process; but taking the aggregate, there would be no unrepresented fractions. This process was twice proposed, and strongly recommended, as more equitable than the other; but it was rejected as unconstitutional. (a) As to the State represent

(a) By the act of May 23, 1850, the representatives are to be two hundred and thirty-three in number. They are to be apportioned in the following manner: Divide the aggregate population of the United States by this number. Then divide the popu lation of each State by the ratio so obtained, rejecting any fraction it may contain. The quotient, disregarding fractions, is to be the number of representatives to which each State is primarily entitled. The loss resulting from the rejection of fractions is to be compensated for by assigning to so many States having the largest fractions left after the division last named one additional member each for its fraction as may be necessary to make the whole number of representatives two hundred and thirty-three. It will be noticed that this corresponds nearly to the mode suggested in the text.

By the act of March 3, 1862, the number of representatives was increased to two hundred and forty-one, and one additional member each was assigned to Pennsylvania, Ohio, Kentucky, Illinois, Iowa, Minnesota, Vermont, and Rhode Island. By the act of February 22, 1872, the House of Representatives was to consist of 283 members, and if any new States were admitted, the number to which they should be entitled was to be additional. By a subsequent act in the same year, May 30, 1872, nine additional representatives were given to different States, making the whole num.

atives and senators, their apportionment presents no difficulty. In Ohio, for example, the ratio of representation is ascertained, for the house of representatives, by dividing the whole population of the State, by one hundred, and for the Senate, by thirty-five; with an equitable provision for fractions.

§ 31. Elections. (a) Under this head I shall speak, first, of the qualifications of electors, and, secondly, of the time, place, and manner of elections.

ber 292. The former act also provides, that the representation of any State which shall deny the right to vote to any of the male inhabitants of the State who are twenty-one years old and citizens of the United States, shall be reduced in the proportion that the number of male citizens so deprived, bears to the whole number of male citizens twenty-one years old in the State.

(a) The duties of canvassers are purely ministerial, and their return is only prima facie evidence of election. Brower v. O'Brien, 2 Carter (Ind.), 423; People v. Van Cleve, 1 Mann. (Mich.) 362; Mayo v. Freeland, 10 Missouri, 629; Bacon v. Commissioners, 26 Maine, 491; The State of Iowa ex rel. Rice v. County Judge of Marshall County, 7 Clarke (Iowa), 186; The State ex rel. Byers v. Bailey Co. Judge, id. 390; Morgan . Quackenbush, 22 Barb. 72; State v. Clerk of Passaic, 1 Dutcher, 354; Attorney-General ex rel. Bashford v. Barstow, 4 Wisconsin, 567. Omissions of the judges or clerks in making up the tally sheets, such as a failure to sign, or to fill up the blanks in the caption, or to state the aggregate number of votes cast, may be supplied by parole on a contest. Howard v. Shields, 16 Ohio St. 184. Where an election board has once regularly dissolved after making out a tally sheet, it is functus officio, and cannot subsequently reassemble and alter its return. State v. Donnewirth, 21 Ohio St. 216. An election held on a different day from that fixed by the legislature is unauthorized and void. State ex rel. v. Dombaugh, 20 Ohio St. 167. Votes given to

a person who is ineligible are not nullities, but must be counted. State v. Giles, 1 Chandler (Wis.), 112. Where the ballots were destroyed in one of four districts, and the returns from the other three showed an election, and it did not appear that the missing returns would have changed the result, a mandamus was granted. Heath's case, 3 Hill, 42. It is no objection that illegal votes were received, or legal votes rejected, unless the majority is thereby changed. Blandford v. Gibbs, 2 Cushing, 39; Sudbury v. Stearns, 21 Pick. 148. Where the majority would be changed, the election is void, and the ballots themselves are the highest evidence. State v. Judge, 13 Alabama. 805; People v. Tisdale, 1 Doug. (Mich.) 59. But it must be made to appear affirmatively and satisfactorily, that all the ballots were present in their original condition. State v. Donne wirth, 21 Ohio St. 216 Questions of fraud and illegality can only be tried in a contest, not in a suit to enjoin the clerk from recording the result. Peck v. Weddell, 17 Ohio St. 271. A ballot with the whole surname, and only the initial of the Christian name, is good. People v. Seaman, 5 Denio, 409; but see People v. Ferguson, 8 Cowen, 102; State v. Moffitt, 5 Ohio, 358. Where votes contain a name idem sonans with that of a candidate, but differently spelled, they are to be counted as thrown for him. People v. May worm, 5 Mich. 146. A ballot containing the names of two persons for an office to which only one can be elected, is bad so far as that office is concerned. Carpenter v. Ely, 4 Wis. 420. The intention of voters as to who the person voted for is, is to govern; but this intention cannot be ascertained by extrinsic evidence. People v. Matteson, 17 Ill. 167; People v. Higgins, 3 Mich. 233. Where a person was not legally elected, by reason of improperly rejecting votes, he may be ousted by quo warranto. People v. Van Slyck, 4 Cowen, 297; Commonwealth v. Commissioners, 5 Rawle, 75. The People v. May worm, 5 Mich. 146. See the important case of Attorney-General ex rel. Bashford v. Barstow, 4 Wis. 567, where judgment of ouster from the office of governor of Wisconsin was given against the defendant. Where in one of several districts no election was held, through the fault of a deputy, and the sheriff returned an election without stating this fact, the court refused to induct into office the person having the certificate. Marshall v. Kerns, 2 Swan (Tenn.), 68. And see on the subject of elections, Gorham v. Campbell, 2 Hepb. (Cal.) 135; State v. Cadle, 2 Iowa, 400; State v. King, 17 Missouri, 511; Bearce v. Fossett, 34 Maine, 575, People v. Martin, 1 Seiden, 22; People v. Jones, 17 Wendell, 81; People v. Cook, 14 Barbour, 259; and on the subject of annexation of cities and towns, Warren v. Mayor and Aldermen of Charlestown, 2 Gray, 84.

1

Qualifications of Electors. (a) In regard to federal representatives; this matter was left by the constitution, to the determination of each State, on the principle that no more power was to be conferred on the federal government than was necessary to effect its objects. It is, moreover, a matter of convenience, because the States are not uniform in this respect; some adopting restricted, and others universal suffrage. There is, however, this limitation, that the qualifications must be the same as for electors of State representatives, in order that the States may not be tempted to pervert this power. In Ohio, the qualifications of electors are the same for all purposes of voting. 1. The voter must be a white (b) male adult, and not an idiot or insane person. 2. He must be a citizen of the United States. 3. He must have resided within the State for one year preceding. But no person in the military, naval, or marine service of the United States is to be considered a resident by being stationed within the State. 4. He must not have been convicted of a penitentiary offence, unless afterwards pardoned. In some of the States property qualifications are required. We seem to have chosen the wise medium. On strict democratic principles, I see not how this most precious of all our rights can be rendered much less than universal. Who would ever consent to a government, which he could have no voice in framing or directing?

Time, Place, and Manner of Elections. (c) With regard to federal senators and representatives, these are likewise left, in the first instance, to the determination of each State for the same reasons as above stated. But in order to prevent the States from defeating the federal government, if they should be so inclined, by neglecting to make the necessary provisions, a supervisory power

(a) In the federal convention a freehold qualification for electors was debated, but it was afterwards unanimously agreed to leave the whole matter to the States. Mad. Pap. 1249-56.

(b) The construction given to the word "white," is, that it only excludes negroes and mulattoes. Jeffries v. Ankeny, 11 Ohio, 372; Thacker v. Hawk, 11 Ohio, 376. Persons having "a distinct and visible admixture of African blood," are excluded by the act of April 2, 1859. This act was repealed March 13, 1865, being clearly in conflict with the Constitution as construed by the Supreme Court. In April 16, 1868, it was attempted to gain the same end by requiring such strict proofs of descent from such persons that it was practically impossible to comply, and relieving the judges of election from any penalty whatever for refusing such votes. This law was unanimously held unconstitutional by the Supreme Court in Monroe v. Collins, 17 Ohio St. 665, on the ground that laws to regulate suffrage must be reasonable, uniform, and impartial. This law they held to violate all these requirements. The adoption of the fifteenth amendment to the Constitution of the United States was announced by the Secretary of State, March 30th, 1870. It is as follows:

ARTICLE 15.

Sec. 1. 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.

Sec. 2. The Congress shall have power to enforce this article by appropriate legislation.

(c) See Mad. Pap. 1282, 1297. By the act of February 22, 1872, the elections in 1876 and thereafter are all to be held on the Tuesday after the first Monday in November. Representatives are to be elected in districts of compact territory, as nearly equal in population as possible; and by act of May 3, 1872, all future elections of representatives are to be by ballot.