fourteenth century. The important legislative bodies of the world at the present time almost without exception are composed of two branches. The reason lies in the fact that the English legislative body has served during the past century and a half, either directly or indirectly, as the model for other countries when engaged in the creating or the remodelling of their legislative departments. The course of events during the thirteenth and fourteenth centuries in England, rather than any theoretical superiority of a legislature of this number of houses ever one of three branches on the one hand, or of one branch on the other, brought about the first great dual legislative body.

Five different elements were present in the English parliament at the beginning of the fourteenth century; the greater barons, the knights of the shire, the representatives of the cities and boroughs, the bishops and the abbotts, and the representatives of the lesser clergy. The first class represented the nobility;. the third the commons; the fourth and fifth the clergy. The second class were anomalous in their position; they may be viewed either as representing the lesser barons, or as representing the freeholders of the counties. Perhaps the former view would be the more correct in the thirteenth century, and the latter the more correct in the fourteenth.

At first there seems to have been no regularity as to the division of this national council into houses. At one parliament all sat together; at another the barons and clergy sat together, apart from the commons. Again we find the greater barons and the knights of the shire forming one branch, the clergy another, the representatives of the cities a third. This three-fold division of parliament into lords, clergy and common might have seemed the one most likely to prevail; it was the division which later took place in the Estates-General of France. The final division into two houses was brought about largely by the refusal of the representatives of the lesser clergy to sit in parliament; the bishops and the abbotts then joined with the greater barons, who sat in parliament by hereditary right, to form the House of Lords. The knights of the shire, who had by this time become the representatives of all the freeholders of the county, united with the

representatives of the cities to form the House of Commons. This division may be regarded as having become permanent by

1339.

§ 121. Colonial and State Legislatures.-The legislative bodies of the thirteen colonies, with few exceptions, were composed of two houses. The members of the lower house were always elected by the people, while those of the upper house (except in the charter colonies of Connecticut and Rhode Island) were appointed. After the Declaration of Independence the new constitutions of the States generally provided for a dual legislative body; a higher property qualification was generally required of members of the second branch than of those of the first; and sometimes the qualifications of electors of this branch were higher than of the electors of the lower branch. The Upper House was in general supposed to more particularly represent property, while the Lower House was more particularly the democratic branch of the Legislature. It was generally felt that some distinction must be made between the two houses as to what they represented. In all the States where the Legislature consisted of two branches the members of the Upper House were elected for a longer period than those of the Lower House, except in the States of Massachusetts, New Hampshire and South Carolina. At the time of the meeting of the Constitutional Convention all the States except Pennsylvania and Georgia had two branches in their legislatures. The Continental Congresses and the Congress created by the Articles of Confederation were single bodies in accordance with their diplomatic nature. One of the differences between the Virginia and the New Jersey plans was that the former provided for a dual legislative body and the latter for a single one.

This question between a dual and a single legislature first came before the Constitutional Convention on May 31, 1787, when the third resolution, "That the National Legislature ought to consist of two branches," was agreed to in the Committee of the Whole without debate, and with but one dissenting vote, that of Pennsylvania, "given probably from complaisance to Doctor Franklin, who was understood to be partial to a single

house of legislation." Although this proposition of a legislature composed of two houses was afterwards fought by the smaller States, such opposition ceased upon their obtaining the right to equal representation in the Senate.

The history of the Connecticut Compromise, which settled the controversy as to the representation of the States in Congress, has already been given. By this compromise it was provided that there should be equal representation in the Senate and proportional representation in the house.

The different colonies had always been accustomed to popular election of the members of the lower house of their legislatures, and the popular election of members of the lower house of Congress was early voted for by the Constitutional Convention by a large majority.10

§ 122. Apportionment of Representatives. The controversy as to the method of apportionment of representation in the House was settled by the Connecticut Compromise and the Compromise as to the three-fifths representation of slaves. The Constitution provides: "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 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,

Madison's Journal of the Federal Convention, under date of May 31.

10 Massachusetts, Connecticut, New York, Pennsylvania, Delaware, Virginia, North Carolina, Georgia, yes. New Jersey, no. Maryland, divided.

This was the

vote in the Convention. The earlier vote in the Committee of the Whole, on May 31, was: Massachusetts, New York, Pennsylvania, Virginia, North Carolina, Georgia, yes.

New Jersey, South Carolina, no. Delaware, divided. See Madison's Journal of the Federal Convention.

the State of New Hampshire shall be entitled to choose 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.”11

The second section of the Fourteenth Amendment to the Constitution alters this provision as follows: "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 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."

This provision for the reducing of representation has never been enforced, although there have been many instances where other restrictions than merely being a male citizen twenty-one years of age have been placed upon voters. 12 A State cannot claim additional representation in Congress upon the basis of a new census until the new apportionment goes into effect.1

13

§ 123. The House of Representatives.-The Constitution left the qualifications for voters for Representatives to Congress entirely in the hands of the States: "The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State Legislature." A penalty for restricting the suffrage was imposed by the Fourteenth Amend

"U. S. Const., Art. I., Sec. II., Clause III.

12 These restrictions have not been confined to the Southern States; Rhode Island until recent

ly had a property qualification for voting, and Massachusetts still has an educational test.

13 Lowe I., Bart. El. Cases, 415. 14 United States Constitution., Art. I., Sec. II., Clause I.

ment, as above stated, and the Fifteenth went one step further and provided that: "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."

Subject to these restrictions, each State indirectly has the power to fix the qualifications of those entitled to vote for Congressmen in that State; a State, for example, could establish educational tests as a requisite for voting, as in the case in Massachusetts; a property qualification as recently existed in Rhode Island, or could grant the suffrage to women, as has been done in Colorado, Idaho, Wyoming and Utah. The right to vote for members of the House of Representatives, however, is not derived from the State constitutions or statutes; it comes directly from the Constitution of the United States, which merely adopts as the qualification for electors of Congressmen those qualifications which each State requires for electors of the lower branch of its legislature. 15 As the electors of Congressmen in each State, therefore, do not owe their right to vote exclusively to State legislation,10 such right may be protected by Congress.17

Where a candidate for Congress is ineligible, it has been held that the votes cast for him are of no effect, and the one of the other candidates receiving the highest number of votes is elected;18 but the correctness of this decision is doubtful.19

The office of delegate from a territory is created by statute and not by the Constitution,20 and may be abolished at any time by act of Congress.21 The term of a delegate is terminated if the territory becomes a State.22

"When vacancies happen in the representation from any State the executive authority thereof shall issue writs of election to

15

16

Wiley v. Sinkler, 179 U. S. 62.

Ex parte Yarbrough, 110 U. S. 663.

"United States v. Goldman, 3 Woods 187; 25 Fed. Cas. No. 15, 225.

18 Wallace v. Simpson, 2 Bart. El. Cases, 731.

19 See Smith v. Brown, 2 Bart. El. Cases, 395.

20 Biddle v. Richards, Cl. and H. El. Cases, 407.

21 Cannon v. Campbell, 2 Ell. El. Cases, 604.

22 Doty v. Jones, 1 Bart., El. Cases, 16.