S313. The times, places, and manner of holding elections for senators and representatives are to be prescribed in each state by the legislature thereof; but the congress may at any time, by law, make or alter such regulations, except as to the place of choosing senators. This provision of the constitution gives to the general government full power to provide for maintaining itself in both branches of the legislature, should a state be disposed to subvert its constitutional existence. Congress could by law provide for the election of members to the house of representatives, by fixing upon the time and place for holding the election, and by prescribing the manner of holding the same; and could make all laws necessary and proper for such purpose. It could also, if necessary, determine by law the time and manner of electing the senator; and could, by law, require the legislature of a state to come together and elect a senator in accordance therewith; and they could make all laws necessary and proper to compel a compliance with such requirement. The constitution has imposed a duty upon the legislatures of the several states, and made it supremely binding upon them. They are required by the same constitution to take an oath of office to perform that duty; and without taking that oath they cannot qualify as members. Should the members refuse to perform this duty as required by the constitution and the laws of congress in respect thereto, there is a supreme judiciary to apply the law, and a supreme executive to enforce its mandate.

S314. Each house is required to keep a journal of its proceedings, and from time to time to publish the same, excepting such parts as may, in their judgment, require secrecy. The object of this requirement, in part, at least, is to give the people an opportunity of examining particularly into the official conduct of the members of the congress, with a view of holding them to a strict accountability, and to enable the constituent and nation to know the position and action of each member upon every important measure. A provision for entering the yeas and nays of the members upon the journal at the desire of one-fifth of the persons present, is also inserted in the constitution.3

S315. The senators and representatives are to receive a compensation for their services, to be ascertained by

1 Art. 1, ¿4, Const. U. S. 2 Rawle on the Constitution, p. 42.

Art. 1, 25, Const. U. S.

law, and paid out of the treasury of the United States. Except for treason, felony and a breach of the peace, they are privileged from arrest during their attendance at the session of their respective houses, and also in going to and returning from the same. Nor are they to be called in question in any other place for any speech or debate in either house. During the continuance of the official term of either the senator or representative, they may not be appointed to any civil office under the authority of the United States, which shall have been created, or the emoluments of which shall have been increased during such time; and no person holding any office under the United States can be a member of either house during its continuance.1

CHAPTER IX.

LEGISLATIVE POWERS AND DUTIES.

S 316. ALL legislative powers granted to the general government are vested in congress, and it is authorized to make all laws necessary and proper for carrying into execution all the powers vested by the constitution in the government of the United States, or in any department or officer thereof. The constitution has, in the most general terms, instituted the several departments of the government, and given guides to the proper administration thereof. It has vested it with powers to exercise all the functions of government over certain specified subjects. But it requires the legislation of congress to define and determine the mode of its action, and the details of its administration; so that practically every department and officer of the government, in the exercise of the powers committed to either, are under the direction and control of congress. The constitution vests in a president of the United States the executive powers of the government; and points out in general terms the manner of his election, and induction into office. But it is necessary for congress to regulate and determine the mode of executive administration. constitution vests the judicial power of the United States in one supreme court, and in such inferior courts as congress from time to time may ordain and establish. But the organization of the supreme court in all its

1 Art. 1, § 6, Const. U. S.

The

details, is necessarily the subject of legislation, and consequently these details are to be determined by congress. All the several departments of the government are to be administered according to law; and the laws of their administration are to be determined by congress. This necessity imposes upon the legislative department the supervision of all the others; and, although it is the constitutional duty of the president to see that the laws are executed, it is the duty of congress to see that he has the necessary means, and that he performs his constitutional duty.

$317. The legislative department of a government, more than any other, eminently represents the sovereignty of the people. It is necessarily required to be present by its laws, in every other department, and to provide for the faithful and just administration of the duties thereof. It stands in the place of the people, and must have their wisdom and unlimited discretion, in respect to all subjects committed to its jurisdiction. It must be a department with Argus eyes, seeing the relations, dependencies, influences, and needs of society in all its parts; it must have wisdom to discover the laws necessary to regulate and harmonize the jarring and discordant elements; and discretion to adapt means to that end. The true mission of the legislator is to discover the natural laws incident to every condition and relation which can exist in society; and to devise means by which such laws can have just sway without interruption. For every individual being, as well as every atom of matter, is the subject of natural law, and can be regulated and controlled harmoniously only in accordance with such laws. The Infinite Father and Divine Architect of the universe is omnipresent in every department of existence by the omnipotence of his power, in the operations of these natural and necessary laws, and the highest good of all requires that these natural laws should be understood and observed. Hence, the wise legislator, if he would regulate by law the commerce and trade of society, will first ascertain the natural laws pertaining to commerce and trade, and then adapt his legislation thereto; and thus it is in respect to every branch of industry and every department of business.

S318. The legislative department of government is necessarily intrusted with the exercise of a larger discretion than any other. It is impossible to foresee the

powers which it may become necessary for the government to exercise to preserve itself and the society over whose interests it presides. For these reasons the legislative departinent should be connected immediately with the people, and should be in constant communication with them. One branch, at least, should take its members from every district in the state or nation, that the observation, information, interest and discretion of the people may be present in the legislature to suggest, urge and act for the particular occasion. There are certain rights of the individual and public which should be so guarded by constitutional bulwarks that even the legislature cannot invade them. There are certain fundamental principles so essential to the welfare of the individual and the well-being of society, that even the people themselves should be deemed incapable of disregarding them. The jurisdiction of each department of the government should be well defined-that of the legislature as well as of the others. But within its assigned sphere or jurisdiction, and in respect to proper subjects of legislative control or direction, it should be permitted to exercise large discretion. Where vested rights are not infringed, where fundamental principles are not endangered, and especially where the common welfare demands legislative action, there the maxim, salus reipublicæ est suprema lex, applies, and the legislature will be required to exercise all necessary discretion within the limits of its assigned jurisdiction. Its paramount duty is to see that the commonwealth sustains no detriment, if it be within the reasonable scope of its authority to prevent it by proper legislation. The reason why the legislative department of government should be permitted to exercise such large discretion, is founded in the necessity of the case; and that is, it cannot perform the necessary duties of its office in providing for the common security and general welfare of the people without the exercise of a liberal discretion.

$319. The reasons requiring the exercise of a broad discretion by the legislative department of government in administering within the sphere of its jurisdiction, do not apply to other departments. In general, the judiciary department is not called upon to act until the legislature has acted. It is not called upon to interpret and apply the law, until the legislature have enacted the law to be applied. In fact the judiciary

cannot exist or act until created by legislative action and direction. The duty of the judge is limited to ascertaining the law as it exists, and applying it to the facts as ascertained in each particular case; while the duty of the legislator requires him to ascertain what laws are necessary for the welfare of individuals, and the well-being of society, and to enact them in suitable form. The executive department like the judiciary, has less occasion to exercise a large discretion, than the legislative. In general, its duties are all regulated and defined by law, so that there is little left to executive discretion. Its duties begin when the legislature or judiciary have completed theirs. When required to execute an order, judgment or decree of the court, the necessary directions are given by the legislature or the court, or by both. When required to execute the provisions of a statute without the interposition of a court, the manner of its execution is pointed out and determined by law. But the legislature has no power or department to go before and prepare its way, and make its paths straight. Hence, it must always be very near the people, to learn from them and their needs, the interpretation of its duties and powers within the general limits assigned by the constitution.

$320. From this ever-present necessity of liberal discretionary powers in the legislative department, has arisen the doctrine of the absolute supremacy of the legislature over all other departments of government, and, indeed, over all other authority. Says Sir EDWARD COKE," the power and jurisdiction of parliament " the legislative department-"is so transcendant that it cannot be confined, either for causes or persons, within any bounds. It hath sovereign and uncontrollable authority in the making, confirming, enlarging, restraining, abrogating, repealing, reviving and expounding of laws, concerning matters of all possible denominations, ecclesiastical or temporary, civil, military, maritime or criminal, this being the place where absolute despotic power, which must in all governments reside somewhere, is intrusted by the constitution of these kingdoms. All mischief and grievances, operations and remedies that transcend the ordinary course of the laws, are within the reach of this extraordinary tribunal. It can regulate or new-model the succession to the crown, as was done in the reign of Henry VIII and William III. It can alter the established religion of the land, as was