been ratified in the manner heretofore mentioned, and so has become valid to all intents and purposes as part of the Constitution of the United States."

Later, however, in a second proclamation Seward declared in a positive manner the Amendment to have been adopted.

The requirement of ratification by the States lately in rebellion of the Fourteenth Amendinent as a condition precedent to their readmission to full constitutional rights as member States of the Union, was a requirement the imposition of which by Congress it is difficult constitutionally to justify. But, a State having yielded and ratified, the Supreme Court expressed the view in White v. Hart1o that a claim could not be made that the ratification was void because given under coercion."

10 13 Wall. 646; 20 L. ed. 685.

11 The court say: "The third of these propositions is clearly unsound, and requires only a few remarks. Congress authorized the State to form a new constitution and she elected to proceed within the scope of the authority conferred. The result was submitted to Congress as a voluntary and valid offering, and was so received and so recognized in the subsequent action of that body. Upon the same grounds she might deny the validity of her ratification of the constitutional amendments. The action of Congress upon the subject cannot be inquired into. The case is clearly one in which the judicial is bound to follow the action of the political department of the government and is concluded by it."

CHAPTER XXXVII.

CONGRESS - ITS ORGANIZATION: PRIVILEGES OF MEMBERS.

§ 228. The Name.

The first section of Article I of the Constitution provides that "all legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives." Following sections of this article provide for the composition and organization of these two branches of the national legislature and enumerate the powers which they may collectively or severally exercise. In the present chapter we shall be concerned with the constitutional provisions for the organization of Congress.

The term "Congress" is an old one, its international use as the title of formal meetings of heads of sovereign States or their representatives, dates from the seventeenth century.' In America the word had been used of such joint conferences as the colonies had convened. When the articles of consideration were drawn up, the term was applied to the confederate administrative and law-making body, and, as was but natural, the same name was given to the legislature provided for in the Constitution which replaced the Articles.

§ 229. Qualifications for Senators and Representatives.

It is required by the Constitution that Representatives shall have attained the age of twenty-five years, have been seven years citizens of the United States, and be, when elected, inhabitants of the State in which they are chosen.3 Senators are required to be thirty or more years of age, to have been nine years citizens of the United States, and to be, when elected, inhabitants of the State for which they are chosen.*

1Cf. Reinsch, American Legislatures, Chapter I.

2 This requirement was satisfied in the first congress by assuming that the citizenship demanded could be dated from the time of the Articles of Con federation, if not indeed, from the Declaration of Independence.

3 Art. I, Sec. II, Cl. 2.

4 Art. I, Sec. II, Cl. 3.

It is furthermore provided by the Constitution that "no person holding any office under the United States shall be a member of either house during his continuance in office."

Furthermore, by Section 3 of the Fourteenth Amendment it is declared that: "No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, 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."

It will be observed that habitancy and not mere residency in a State is required. Habitancy implies greater permanency than does residence. "A man's residence is often a legal conclusion from statements showing his intention. Habitaney is a physical fact which may be proved by eye witnesses."

The constitutional provision is that habitaney shall exist at the time of election. It is thus legally possible for a member of Congress, after election, to become the inhabitant of another State without thereby forfeiting his seat.

§ 230. Qualifications Determined by Congress.

Though essentially a judicial function the conclusive determination as to whether the constitutional qualifications for membership have been met is, by the Constitution, placed in the hands of each of the two Houses of Congress. It thus happens that though neither House may formally impose qualifications addi

5 Art. I, Sec. 6, Cl. 2.

Congress has removed this disability from all, or practically all, persons suffering from them because of participation in the Civil War. Delegates from the Territories who are given the right to sit but not to vote in the House of Representatives have their qualifications and terms of office determined by Congress.

7 Foster, Commentaries, § 62.

8" Each House shall be the judge of the elections, returns and qualifications of its own members." Art. I, Sec. IV, CI. 1.

tional to those mentioned in the Constitution, or waive those that are mentioned, each may in practice do either of these things. For example, in 1900, the House excluded Brigham H. Roberts of Utah because of various charges brought against him, none of which, however, alleged a constitutional disqualification. In this case it was strenuously argued that, having the necessary constitutional disqualifications, Roberts should be admitted to membership, and then, if the House should so see fit, he might be expelled by a two-thirds vote. For the right to expel, it is admitted, is absolute, and may be exercised for any reason which the House thinks adequate. The House, however, by a large majority voted to exclude Roberts."

10

It is plain that no State may add qualifications to those required by the Constitution of members of Congress. Thus in 1856, the governor of a State having refused to issue credentials to the rival claimants, because they were disqualified under provisions of the state constitution to membership in the House, the House seated the one shown prima facie by official statement to have a majority of votes.12 Similar action was taken by the

Senate the same year.

The disqualification of a member of Congress, it has been held, does not entitle the one receiving the next highest vote, to his seat. 13

Members who have already taken the oath may, it has been held, be unseated by a majority vote. That is to say, disqualification being shown the process of expulsion, which requires a two-thirds vote, is not needed.14

9" Each House may

member." Art. I, Sec. V, Cl. 2.

with the concurrence of two-thirds, expel a

10 In Patterson's case (Hinds, § 1276) it was held that a resolution of expulsion would not be entertained after the term of the accused Senator had expired. In Whittemore's case it was held that one who, to escape expulsion, had resigned, would, upon re-election, be refused his seat.

11 For a full statement of the arguments pro and contra in this important case see House Rpt. 85, 56th Cong., 1st Sess. See also Hinds, Precedents of the House of Representatives, Vol. I.

12 Hinds, op. cit. § 415; Story, Commentaries, §§ 623–629.

In contested election cases each House may examine witnesses, compel testimony and the production of papers, and punish witnesses for contempt.15 Imprisonment for contempt must, however, cease with the adjournment of the Congress which orders. it, for with the dissolution of that body its authority necessarily

In the case of In Re Loney' it was held that a notary public or other state officer designated by Congress to take depositions in cases of contested election of members of the House of Representatives of the United States performs this function under the authority of Congress and not under that of the State; and that perjury alleged to have been committed before such notary or other state official is exclusively cognizable in the federal courts. In its opinion the court say: "Any one of the officers designated by Congress to take the depositions of such witnesses (whether he is appointed by the United States or by the State

) performs this function, not under any authority derived from the State, but solely under the authority conferred upon him by Congress, and in a matter concerning the government of the United States. There are cases (the most familiar of which are those of making and uttering counterfeit money) in which the same act may be a violation of the laws of the State, as well as of the laws of the United States, and may be punishable by the judiciary of either [citing cases]. But the power of punishing a witness for testifying falsely in a judicial proceeding belongs peculiarly to the government in whose tribunals that proceeding is had. It is essential to the impartial and efficient administration of justice in the tribunals of the nation that witnesses should be able to testify freely before them unrestrained by legislation of the State, or by fear of punishment in the state courts. . . A witness who gives his testimony, pursuant to the Constitution and laws of the United States, in a case pending in a court or other judicial tribunal of the United

15 Kilbourn v. Thompson, 103 U. S. 168; 26 L. ed. 377. 15 Anderson v. Dunn, 6 Wh. 204; 5 L. ed. 242.

17 134 U. S. 372; 10 Sup. Ct. Rep. 384; 33 L. ed. 949.