The federal constitution having fixed the qualification of members of the Federal Legislature, no additional qualification can be added by the State Legislatures. Barney r. McCreery, CL and H. (U.S.) 176: Turney e. Marshall. 1 Cong. EL Cas. [U.S ] 167; Trumbuil's Case, id. 618.) The constitution of Ilinois. 1848 provided that the judges of the Supreme and Cironit Courts of the States should not be eligible to any other office of public trust or pront in that state, or in the United States, during the term for which they should be elected, nor for one year thereafter. The Federal House of Representatives held this provision of the constitution of Illinois void, in so far as it applied to persons elected members of the said House. (Turney v. Marshall, supra; Trumbull's Case, supra. Baker, Annot. Const. p. 5.)

Returns from the State authorities, showing that a certain person has been elected senator, are prima facie evidence of qualification only. Spaulding r. Mead, Cl. and Hall. 157; Reed r. Cosien id. 353.) The refusal of the Executive of the State to grant a certificate does not prejudice the right of any person entitled to a seat. (Richards' Case, CL. and Hall, 95; Baker, Annot. Const. pp. 10, 11.)

Election of President.

17. The Senate shall, before proceeding to the despatch of any other business, choose a senator to be the President of the Senate; and as often as the office of President becomes vacant the Senate shall again choose a senator to be the President.

The President shall cease to hold his office if he ceases to be a senator. He may be removed from office by a vote of the Senate, or he may resign his office or his seat by writing addressed to the Governor-General.

UNITED STATES.-The Vice-President of the United States shall be President of the Senate.—
Const. Art. I. sec. III. sub-sec. 4.

CANADA -The Governor-General may from time to time, by instrument under the Great Seal
of Canada, appoint a Senator to be Speaker of the Senate, and may remove him and
appoint another in his stead.-B N.A. Act, 1867, sec. 34.

HISTORICAL NOTE.—The clause in the Commonwealth Bill of 1891 was substantially the same, with additional provisions that "The President shall preside at all meetings of the Senate; and the choice of the President shall be made known to the GovernorGeneral by a deputation of the Senate." In Committee, Sir John Bray moved to omit the words "by a deputation of the Senate," but this was negatived. (Conv. Deb., Syd., 1891, pp. 610-1.) At the Adelaide session, 1897, the clause of 1891 was adopted verbatim. At the Melbourne session, drafting amendments were made before the first report and after the fourth report.

$96. "Choose a Senator to be the President."

The Lord Chancellor or Lord Keeper of the Great Seal of England is the Prolocutor or Lord Speaker of the House of Lords by prescription. It is singular, says May, that the President of that deliberative body is not necessarily a member of it. It has even happened that the Lord Keeper has officiated for years as Speaker without being raised to the peerage. (May's Parl. Prac., 10th ed., 1893, p. 184.) Under the Constitution of the United States the Vice-President of the Republic is elected by popular suffrage, at the same time as the President; he is next in succession to the President, and is ex officio the presiding officer of the Senate. The Republican Senate, like the aristocratic House of Lords, has no voice in the selection of its official head. By the Canadian Constitution the Governor-General is authorized from time to time to appoint a senator to be Speaker of the Senate and to remove him and appoint another in his stead. The Constitution of

the Commonwealth vests in the Senate itself the power of choosing and removing its President. The President is not elected for any particular term, but he will cease to hold office (1) if he ceases to be a senator; (2) if he is removed from office by a vote of the Senate; (3) if he resigns his office.

The duties of President are those usually assigned to and exercised by the presiding officers of legislative bodies; among these may be- to maintain order and decorum ; to enforce the rules of debate; to recognize a senator who wishes to speak and thus to give him the floor; to put the question before the Senate; to ascertain and declare the will of the Senate, either on the voices, or as the result of a division; to appoint tellers to take a division; to supervise the officers of the House and see that the votes and proceedings are properly recorded, so far as those duties are not otherwise regulated by the standing orders of the Senate, passed in conformity with the Constitution. (Foster, Comm. I., p. 501.) One function in particular appears to be recognized as the particular privilege of the presiding officer of the Upper House of every Parliament constructed on the British model; it is the right to present to the representative of the Crown a joint address of both Houses. According to the English practice, when a joint address is to be presented by both Houses to the Queen, the Lord Chancellor and the House of Lords and the Speaker and the House of Commons proceed in state to the palace at the time appointed. On reaching the palace the two Houses assemble in a chamber adjoining the throne room, and when her Majesty is prepared to receive them the doors are thrown open and the Lord Chancellor and the Speaker advance, side by side, followed by the members of the two Houses respectively. The Lord Chancellor reads the address and presents it to her Majesty, who then returns an answer, and both Houses retire. (May, 10th ed. p. 430.) More important, however, than such ceremonial functions will be the duty of the President of the Senate to assist in the enforcement of the law of the Constitution, and in particular to see that the privileges of the Senate, such as those contained in sections 53, 54, 55, and 56, are not invaded.

The Constitution makes no express provision for the salary of the President. The Federal Parliament, however, has ample power to appropriate a salary for the office under section 51-xxxix.

Absence of President.

18. Before or during any absence of the President, the Senate may choose a senator to perform his duties in his absence.

HISTORICAL NOTE.-In the Commonwealth Bill of 1891, the clause began "In case of the absence of the President." In the Adelaide Bill of 1897 these introductory words were omitted. At the Sydney session, the words "Before or during any absence of the President" were introduced as a drafting amendment.

$ 97. "Absence of the President."

This section makes provision for the appointment of a senator to act during the absence of the President. The Constitution is silent on the subject of permanent executive officers of the Upper House. The Senate of the Commonwealth, unlike the Senate of the United States, has been assigned no voice in the appointment of the officials necessary to carry on the business of the House. Until federal legislation deals with the matter, such appointments can be made only by the Executive Government of the Commonwealth. The chief officers of the Upper House, generally, are the Clerk of the Parliaments, the Gentleman Usher of the Black Rod, and the Assistant Clerk. The Clerk of the Parliaments has to make true entries and records of the things done and passed in the Parliaments. The Clerk Assistant has to attend to the table, with the

Clerk, and to take minutes of the proceedings and orders of the House. The Gentleman Usher of the Black Rod has to assist in the introduction of members, and other ceremonies; he is sent to desire the attendance of the members of the Lower House at the opening and proroguing of Parliament. He also executes orders for the commitment of parties guilty of breaches of privilege and contempt. (May, 10th ed. p. 194.)

Resignation of senator.

19. A senator may, by writing addressed to the President, or to the Governor-General if there is no President or if the President is absent from the Commonwealth, resign98 his place, which thereupon shall become vacant.

CANADA. A senator may, by writing under his hand addressed to the Governor-General, resign his place in the Senate, and thereupon the same shall be vacant.-B.N.A. Act, 1867, sec. 30.

HISTORICAL NOTE.-A similar clause is in the Constitutions of all the Australian colonies. In the Commonwealth Bill of 1891 the clause was substantially in the same words; at the Adelaide session of the Convention in 1897 it was introduced and passed as it now stands.

The seat of a senator is vacated by a resignation addressed to, and delivered to, the Governor of his State. It does not depend upon notice of acceptance. (Bledsoe's Case, Cl. and Hall [U.S.], 869; Baker, Annot. Const. p. 7.)

$99. "Shall become Vacant."

The Queensland Constitution Act, 1867, sec. 23, provides that if a member of the Legislative Council should, for two successive sessions of the Legislature of the colony, fail to give his attendance in the Council without the permission of Her Majesty or of the Governor of the Colony, signified by the Governor to the Council, his seat in the Council shall become vacant. A Councillor absented himself during the whole of three sessions, having previously obtained leave of absence for a year, which period of time, in the event, covered the whole of the first and part of the second session. The Privy Council held that his seat was vacated on the ground that the permission did not cover two successive sessions. (Att. Gen. [Queensland] v. Gibbon, 12 App. Cas. 442.)

Vacancy by absence.

20. The place of a senator shall become vacant if for two consecutive months of any session of the Parliament he, without the permission of the Senate, fails to attend the Senate.

CANADA. The place of a senator shall become vacant if for two consecutive sessions of the Parliament he fails to give his attendance in the Senate.-B. N. A. Act, 1867, sec. 31. HISTORICAL NOTE.-A similar clause is in the Constitutions of all the Australian colonies. In the Commonwealth Bill of 1891, the clause was the same except that the absence specified was "for one whole session of the Parliament," and that the permission of the Senate was to be entered on its journals." (Conv. Deb., Syd. [1891], p. 611.) At the Adelaide session, 1897, it was introduced in the same words. In Committee, on Mr. Gordon's motion, two consecutive months of any session" was substituted for "one

66

whole session " (Conv. Deb., Adel., p. 680.) At the Sydney session, a suggestion by the Tasmanian House of Assembly to substitute "thirty consecutive sitting days in any session" was negatived. At the Melbourne session, after the fourth report, the words "entered on its journals" were omitted.

Vacancy to be notified.

21. Whenever a vacancy happens in the Senate, the President, or if there is no President or if the President is absent from the Commonwealth the Governor-General, shall notify the same to the Governor of the State in the representation of which the vacancy has happened.

HISTORICAL NOTE. -The clause in the Commonwealth Bill of 1891 was substantially in the same words, and was adopted verbatim at the Adelaide session (1897). (Conv. Deb., Adel., p. 680.) At the Sydney session Mr. Glynn suggested that there should be a resolution of the Senate declaring the vacancy. This, however, was thought unnecessary. The word "forthwith," before "notify," was omitted as unnecessary. (Conv. Deb., Syd. [1897], pp. 990-1.) At the Melbourne session, before the first report, a drafting amendment was made.

Quorum 100.

22. Until the Parliament otherwise provides, the presence of at least one-third of the whole number of the senators shall be necessary to constitute a meeting of the Senate for the exercise of its powers.

UNITED STATES.-A majority of each House shall constitute a quorum to do business; but a smaller number may adjourn from day to day, and may be authorized to compel the attendance of absent members, in such manner, and under such penalties, as each House may provide.-Const. Art. I., sec. 5, sub-s. 1.

CANADA. Until the Parliament of Canada otherwise provides, the presence of at least fifteen senators, including the Speaker, shall be necessary to constitute a meeting of the Senate for the exercise of its powers.-B.N.A. Act, 1867, sec. 35.

HISTORICAL NOTE.--In the Commonwealth Bill of 1891 the clause was in the same

form, with the addition, after " senators," of the words as provided by the Constitution." At the Adelaide session, 1897, the clause was introduced in the same form, except that the words "until the Parliament otherwise provides were omitted. In Committee, on Mr. Gordon's motion, the words "as provided by this Constitution" were omitted. (Conv. Deb., Adel., p. 682.) At the Sydney session, on the motion of Mr. Higgins, the words "until the Parliament otherwise provides" were inserted. (Conv. Deb., Syd. [1897], pp. 991-2.)

The [American] Constitution does not expressly provide as to how the presence of a quorum shall be determined; but it seems to me to imply, in the power of each House to force the presence of members in order to form a quorum, that physical presence is the test, whether or no the members present all act. Such has not been the general practice, however, to this time. It has been regarded as necessary that a quorum shall not merely be present, but shall also act." (Burgess, vol. II, p. 55.)

For discussion of the principle of the quorum, see Note, § 137, infra.

Voting in Senate.

23. Questions arising in the Senate shall be determined by a majority of votes, and each senator shall have one vote101 The President shall in all cases be entitled to a vote102; and when the votes are equal the question shall pass in the negative.

UNITED STATES.-Each senator shall have one vote.-Const, Art. I., sec. 3, sub-s. 1.

[The President] shall have no vote, unless they be equally divided.Art. I., sec. 3, sub-s. 4.

CANADA.-Questions arising in the Senate shall be decided by a majority of voices, and the Speaker shall in all cases have a vote, and when the voices are equal the decision shall be deemed to be in the negative.-B.N.A. Act, 1867, sec. 36.

HISTORICAL NOTE.-In the Commonwealth Bill of 1891, the clause was substantially the same. In Committee, Sir Samuel Griffith explained that the provision that the President should have a vote was to secure the full representation of the State to which he belonged. (Conv. Deb., Syd. [1891], pp. 611-2.) At the Adelaide session, 1897, the clause was adopted in the same form. In Committee there was a short discussion of the provision for the President's vote. (Conv. Deb, Adel., pp. 682-3.) At the Melbourne session, before the first report, the words "and each senator shall have one vote transferred from clause 7.

§ 101.

“Each Senator shall have one Vote."

were

"Members of the Senate vote as individuals, that is to say, the vote a senator gives is his own and not that of his State. It was otherwise in the Congress of the old Confederation before 1789; it is otherwise in the present Federal Council of the German Empire, in which each State votes as a whole, though the number of her votes is proportioned to her population. Accordingly, in the American Senate, the two senators from a State may belong to opposite parties; and this often happens in the case of senators from States in which the two great parties are pretty equally balanced, and the majority oscillates between them. Suppose Ohio to have to elect a senator in 1886. The Democrats have a majority in the State legislature; and a Democrat is therefore chosen senator. In 1888 the other Ohio senatorship falls vacant. But by this time the balance of parties in Ohio has shifted. The Republicans control the legislature; a Republican senator is therefore chosen, and goes to Washington to vote against his Democratic colleague. This fact has largely contributed to render the senators independent of the State legislatures, for as these latter bodies sit for short terms (the larger of the two Houses usually for two years only), a senator has during the greater part of his six years' term to look for re-election not to the present, but to a future State legislature." (Bryce, vol. i., 97.)

The object of providing that the President, unlike the Speaker of the House of Representatives, shall be entitled to a vote in all cases, is that the State which he represents may not be deprived of the benefit of the constitutional privilege of equal representation. He is not given a casting vote as well, because that would give his State more than equal representation. Some other provision had, therefore, to be made for the case of an equality of votes; so the Constitution declares that in that event the question shall be resolved in the negative. This is based upon the universally recognized principle that affirmative action, in any legislative body, must be supported by a majority.