4. The Senate.
The Senate.
7. The Senate67 shall be composed of senators for each State68, directly chosen by the people of the State, voting, until the Parliament otherwise provides, as one electorate69.
But until the Parliament of the Commonwealth otherwise provides, the Parliament of the State of Queensland70, if that State be an Original State71, may make laws dividing the State into divisions and determining the number of senators to be chosen for each division, and in the absence of such provision the State shall be one electorate.
Until the Parliament otherwise provides there shall be six senators for each Original State. The Parliament may make laws increasing or diminishing the number of senators for each State, but so that equal representation of the several Original States shall be maintained72 and that no Original State shall have less than six senators.
The senators shall be chosen for a term of six years, and
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the names of the senators chosen for each State shall be certified by the Governor to the Governor-General.
CANADA.—The Senate shall, subject to the provisions of this Act, consist of seventy-two members, who shall be styled Senators.—B.N.A. Act, 1867, sec. 21.
In relation to the Constitution of the Senate, Canada shall be deemed to consist of Three Divisions:—
1. Ontario;
2. Quebec;
3. The Maritime Provinces, Nova Scotia and New Brunswick; which Three Divisions shall (subject to the provisions of this Act) be equally represented in the Senate as follows:—Ontario by twenty-four Senators; Quebec by twenty-four Senators; and the Maritime Provinces by twenty-four Senators, twelve thereof representing Nova Scotia, and twelve thereof representing New Brunswick.—Id., sec. 22.
The Governor-General shall from time to time, in the Queen's name, by instrument under the Great Seal of Canada, summon qualified persons to the Senate; and, subject to the provisions of this Act, every person so summoned shall become and be a member of the Senate and a Senator.—Id, sec. 24.
Such persons shall be first summoned to the Senate as the Queen by Warrant under Her Majesty's Royal Sign Manual thinks fit to approve, and their names shall be inserted in the Queen's Proclamation of Union.—Id., sec. 25.
If at any time on the recommendation of the Governor-General the Queen thinks fit to direct that three or six members be added to the Senate, the Governor-General may by summons to three or six qualified persons (as the case may be), representing equally the Three Divisions of Canada, add to the Senate accordingly.—Id., sec. 26.
In case of such addition being at any time made, the Governor-General shall not summon any person to the Senate, except on a further like direction by the Queen on the like recommendation, until each of the Three Divisions of Canada is represented by twenty-four Senators, and no more.—Id., sec. 27.
The number of Senators shall not at any time exceed seventy-eight.—Id., sec. 28.
A Senator shall, subject to the provisions of this Act, hold his place in the Senate for life.—Id., sec. 29.
HISTORICAL NOTE.—Clause 9, Chap. I., of the Commonwealth Bill of 1891 was as follows:—
“The Senate shall be composed of eight members for each State, directly chosen by the Houses of the Parliament of the several States during a session thereof, and each senator shall have one vote. The senators shall be chosen for a term of six years. The names of the senators chosen in each State shall be certified by the Governor to the Governor-General.”
In Committee, the debate opened with a warning by Mr. Wrixon that, if the Senate were given large powers, the clause must be reconsidered; “it will never do to give equal representation to the smallest, as well as to the largest States, if the Senate is to be a large and determined power in the Constitution.” An amendment by Mr. Munro, to substitute “six” for “eight,” was negatived. Mr. Kingston proposed to omit the words “directly chosen by the Houses,” &c., so as to leave each State to determine the mode of election. The arguments in favour of a uniform mode of election, however, were too strong; and the time was not yet ripe for the plan of direct election. Mr. Kingston's amendment was negatived by 34 votes to 6. (Conv. Deb., Syd. [1891], pp. 588-99.)
At the Adelaide session, the provision was introduced as follows (part of clause 9):—
“The Senate shall be composed of six senators for each State, and each senator shall have one vote.
“The senators shall be directly chosen by the people of the State as one electorate.
“The senators shall be chosen for a term of six years, and the names of the senators chosen by each State shall be certified by the Governor to the Governor-General.
“The Parliament shall have power, from time to time, to increase or diminish the number of senators for each State, but so that the equal representation of the several States shall be maintained and that no State shall have less than six senators.”
The discussions upon this clause at the Adelaide and Sydney sessions may be most conveniently referred to under separate subject-headings.
Equal Representation.—At the Adelaide session, Mr. Higgins proposed that representation in the Senate should be according to a sliding scale, intermediate between
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equal and proportionate representation. This was negatived by 32 votes to 5. (Conv. Deb., Adel., pp. 641-68, 1190.) At the Sydney session, a suggestion by both Houses of the New South Wales Parliament, providing for proportionate representation, with a minimum of three senators for each State, and a minimum total number of 40 senators, was negatived by 41 votes to 5. (Conv. Deb., Syd. [1897], pp. 256-355.) In the re-draft of the clause proposed at Sydney, doubts as to the construction of the clause, read with the clause providing for the representation of new States (sec. 121), were removed by restricting the right of equal representation to “Original States.” (See Conv. Deb., Syd. [1897], pp. 257-8.) The same principle was affirmed by a suggestion of the Legislative Assembly of Victoria, declaring that the provision for the maintenance of equal representation should not apply to new States admitted on other terms. This was opposed by those who claimed that equal representation was an essential principle of Federation, but was supported by those who defended equal representation as a necessary compromise. It was agreed to by 25 votes to 20. (Conv. Deb., Syd. [1897], pp. 394-415.)
Direct Election by People.—At the Adelaide session, Mr. Dobson protested against the direct election of senators on the same suffrage as the House of Representatives, but moved no amendment. (Conv. Deb., Adel., pp. 670-2.) At the Sydney session, Sir John Forrest announced his preference for election by the Legislatures. (Conv. Deb., Syd. [1897], p. 361.)
As one Electorate.—At the Adelaide session, Mr. Lyne criticized the policy of making each State one electorate, and advocated single-member constituencies. (Conv. Deb., Adel., pp. 668-9.) At the Sydney session, suggestions by the Legislative Assembly of New South Wales, and by both Houses of all the other colonies, to omit the words “as one electorate,” were discussed. Sir John Forrest suggested three electorates, seeing that three members for each State were to retire periodically. Mr. Fraser suggested six electorates. After debate, the words “until the Parliament otherwise provides” were inserted by 29 votes to 19; and the words “as one electorate” were retained by 29 votes to 18. (Conv. Deb., Syd. [1897], pp. 360-91.)
Term of Office.—At the Adelaide session, Mr. Higgins proposed to reduce the senators' term of office from six to four years. This was negatived. (Conv. Deb., Adel., p. 670.)
Certifying Names.—At the Sydney session, a suggestion by the Legislative Assembly of Victoria to omit this provision—on the ground that the States should have nothing to do with the electoral machinery of the Senate—was negatived. (Conv. Deb., Syd. [1897], pp. 391-4.)
At the Sydney session, the clause was re-drafted in the following form:—
“The Senate shall be composed of senators for each State, directly chosen by the people of the State, voting, until the Parliament otherwise determines, as one electorate, and each senator shall have one vote. Until the Parliament otherwise provides, there shall be six senators for each Original State. The Parliament may, from time to time, increase or diminish the number of senators for each State, but so that equal representation of the several Original States shall be maintained, and that no Original State shall have less than six senators. The Senators shall be chosen for a term of six years, and the names of the senators chosen by each State shall be certified by the Governor to the Governor-General.”
At the Melbourne session, before the first report, the words “and each Senator shall have one vote” were transferred to another clause (sec. 23); and the words “chosen for each State” were substituted for “chosen by each State.” After the second report, Mr. Isaacs proposed to allow each State, provisionally, to divide the State into electorates. This was negatived by 27 votes to 16. (Conv. Deb., Melb., pp. 1922-8.) Verbal amendments were made after the fourth report.
At the Premiers' Conference, 1899, the paragraph enabling the Parliament of Queensland, in the absence of federal legislation, to divide the State into electoral divisions, was agreed to.
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§ 67. “The Senate.”
The Senate is one of the most conspicuous, and unquestionably the most important, of all the federal features of the Constitution, using the word federal in the sense of linking together and uniting a number of co-equal political communities, under a common system of government. The Senate is not merely a branch of a bicameral Parliament; it is not merely a second chamber of revision and review representing the sober second thought of the nation, such as the House of Lords is supposed to be; it is that, but something more than that. It is the chamber in which the States, considered as separate entities, and corporate parts of the Commonwealth, are represented. They are so represented for the purpose of enabling them to maintain and protect their constitutional rights against attempted invasions, and to give them every facility for the advocacy of their peculiar and special interests, as well as for the ventilation and consideration of their grievances. It is not sufficient that they should have a Federal High Court to appeal to for the review of federal legislation which they may consider to be in excess of the jurisdiction of the Federal Parliament. In addition to the legal remedy it was deemed advisable that Original States at least should be endowed with a parity of representation in one chamber of the Parliament for the purpose of enabling them effectively to resist, in the legislative stage, proposals threatening to invade and violate the domain of rights reserved to the States.
That the Senate is the Council of States in the Federal Parliament is proved by the words of this section. There are to be six senators for each Original State. That the States, and not the people, are actually represented in the Senate is shown by the requirement that the “equal representation of the several Original States shall be maintained.” Equality of representation, it is argued, is a natural corollary of State representation, because the colonies were, prior to federation, politically equal; equal in constitutional power and status, although not necessarily equal in territory or population. Territory and population afford no absolute test of political status. The true test is the power to govern. Crown colonies would not have been admitted members of the Federal Partnership, on terms of equality with the responsible-government colonies. Further, it was one of the terms of the federal bargain that, in consideration of the transfer of general powers to the Commonwealth, each colony represented in the Convention should, on becoming a State, maintain its original relative equality and individuality unimpaired. That could only be done by equality of representation in the Council of States. Without the adoption of that principle the federation of the Australian colonies would not have been accomplished.
After prolonged and exhaustive debates the Federal Convention, by decisive majorities, accepted the principle of equal representation of Original States in the Senate, as a positive and indispensable condition of the Federal scheme. The question had to be considered, not so much from its logical and symmetrical aspect—not so much as a principle capable of satisfactory dialectical analysis and vindication—but rather as one of the terms of the Federal compact, which is based on compromise. The problem to be solved in the case of the Australian colonies desiring to federate was similar to that which had to be solved by the framers of the American Constitution; it was—how to reconcile the creation of a strong national government with the claims and susceptibilities of separate, and, in their own eyes, quasi-sovereign States. The solution of the problem was found in a Parliament partly national and partly Federal. The national part of the Parliament is the House of Representatives—the organ of the nation. The Federal part of the Parliament is the Senate—the organ of the States, the visible representative of the continuity, independence, and reserved autonomy of the States, linking them together as integral parts of the Federal union. As quasi-sovereign entities, it was contended that they were entitled to equal representation, because they were constitutionally and politically equal; inequality in the number of people within their jurisdiction did not constitute inequality in their quasi-sovereignty; in sovereignty there were no degrees. This was the only logical ground suggested. Whether it was
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sound or unsound is not so material as the fact that a majority of the Australian communities affirmed that they would not agree to transfer a part of their political rights and powers to a central Legislature except on the condition that, as States, they should be equally represented in one of the Chambers of that Legislature.
The functions and basis of the Senate are fully explained and vindicated in the annexed quotations from standard authorities and extracts from speeches delivered in the Federal Convention. The fact that equal State representation cannot be taken away, even (as may be contended) by an amendment of the Constitution, fully warrants the presentation of the case for the Senate in the language of some of its strongest advocates.
“Whatever may now be thought of the reasoning of the contending parties, no person who possesses a sincere love of country and wishes for the permanent union of the States can doubt that the compromise actually made was well founded in policy, and may now be fully vindicated upon the highest principles of political wisdom and the true nature of the government which was intended to be established. It may not be unprofitable to review a few of the grounds upon which this opinion is hazarded. In the first place, the very structure of the general government contemplated one partly federal and partly national. It not only recognized the existence of State governments, but perpetuated them, leaving them in the enjoyment of a large portion of the rights of sovereignty, and giving to the general government a few powers, and those only which were necessary for national purposes. The general government was, therefore, upon the acknowledged basis, one of limited and circumscribed powers; the States were to possess the residuary powers. Admitting, then, that it is right, among a people thoroughly incorporated into one nation, that every district of territory ought to have a proportional share of the government; and that among independent States, bound together by a simple league, there ought, on the other hand, to be an equal share in the common councils, whatever might be their relative size or strength (both of which propositions are not easily controverted); it would follow that a compound republic, partaking of the character of each, ought to be founded on a mixture of proportional and equal representation. The legislative power, being that which is predominant in all governments, ought to be above all of this character; because there can be no security for the general government or the State governments without an adequate representation, and an adequate check of each in the functions of legislation. Whatever basis, therefore, is assumed for one branch of the legislature, the antagonist basis should be assumed for the other. If the House is to be proportional to the relative size, and wealth, and population of the States, the Senate should be fixed upon an absolute equality, as the representative of State sovereignty. There is so much reason and justice and security in such a course than it can with difficulty be overlooked by those who sincerely consult the public good, without being biassed by the interests or prejudices of their peculiar local position. The equal vote allowed in the Senate is, in this view, at once a constitutional recognition of the sovereignty remaining in the States, and an instrument for the preservation of it. It guards them against (what they meant to resist as improper) a consolidation of the States into one simple republic; and, on the other hand, the weight of the other branch counterbalances an undue preponderance of State interests tending to disunion. Another and most important advantage arising from this ingredient is the great difference which it creates in the elements of the two branches of the legislature.” (Story, Comm. on the Const. §§ 697–9.)
“The state legislatures ought to have some means of defending themselves against encroachments of the national government. And what better means can we provide than to make them a constituent part of the national establishment? No doubt there is danger on both sides; but we have only seen the evils arising on the side of the state governments. Those on the other side remain to be displayed; for congress had not power to carry their acts into execution, as the national government will now have.” (Geo. Mason, in the Philadelphia Convention, 7th June, 1787.)
“The Senate of the United States is the only upper legislative chamber in the world that has the strength to resist the will of the electorate for a considerable period of time. It represents the Federal principle in the government, and, besides its legislative, has important executive functions.” (Foster, Comm. I. p. 457.)
“The name of Senate is taken from a body which ruled ancient Rome; and its prototype was the body of senior warriors with whom the king or chieftain held his councils of war; but in its legislative functions it resembles the Roman tribunate more closely than its name-father, and its immediate model was the House of Lords.” (Id. p 459.)
“We may imagine very easily in a moment's reflection what would have been the condition of this country at this moment had the Senate of the United States been constituted on a different principle. If the size and populations of the several States had
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been the test of representation in the Senate of the United States, I think it is not too much to say, in sober minded truth, that this Republic would not have endured until now. Many and many have been the times when, if the right of the Senators of each State to resist and defeat the current of popular passion and prejudice which arises sometimes in the action of the popular body, the House of Representatives, had failed to exert itself, as it would have failed if the Senate had been constituted as the national House of Representatives, discord and revolution would almost certainly have caused the dismemberment of the Union.” (Senator George F. Edmunds, cited in Foster, Comm. vol. I. p. 467.)
“Although there has been no need of its interposition to protect the small from any encroachment by the larger States, until the Civil War the Senate was more conspicuously the guardian of State rights in general. Their advocates maintained the position that the body was an assembly of ambassadors from sovereign States. During Washington's administration, North Carolina directed her senators to execute a deed ceding land to the United States: Senator Tazewell, of Virginia, declined Jackson's offer of a place in the cabinet, and said:—‘Having been elected a senator, I would as soon think of taking a place under George IV. if I was sent as minister to his court, as I would to take a place in the cabinet.’ Insistence has frequently been made upon the right of State legislatures to instruct their senators in Congress. In 1808, John Quincy Adams resigned after voting for the embargo in opposition to the wishes of his constituents. A senator, in 1828, after arguing against the Tariff of Abominations, said, ‘as the organ of the State of Kentucky he felt himself bound to surrender his individual opinion, and express the opinion of his State.’ John Tyler, in 1836, before he was President, resigned his place in the Senate because the Virginia legislature had instructed him to vote in favour of the expunging resolution, which he could not conscientiously approve. These doctrines are now abandoned The Senators consider themselves as members of an ordinary legislative body. They pay no more attention to the instructions of State legislatures than do members of the House; and in fact, since their terms are longer, they are more inclined to disobey them.” (Foster, Comm. I. pp. 494–6.)
“A survey of its position throughout the history of the United States shows that the Senate has maintained, almost without interruption, the respect of the American people, and that it has vindicated the wisdom of its creation; while State senates are usually more despised than State houses of assembly. It has been shorn of but a single power, that to originate general appropriation bills, which the House has, by their continuous rejection when sent there, refused to permit it to exercise successfully, although the Senate has more than once recorded a protest asserting its prerogative; but in practice, through its power of amendment, the loss is rather nominal than real.” (Id. 496.
“What I mean is an upper chamber, call it what you may, which shall have within itself the only conservation possible in a democracy—the conservatism of maturity of judgment, of distinction of service, of length of experience, and weight of character—which are the only qualities we can expect to collect and bring into one body in a community young and inexperienced as Australia.” (Sir Henry Parkes, in the Federal Convention, 1891; Convention Debates, p. 26.)
“If the Australian people desired unity, it would, perhaps, be a question open to discussion whether the Senate should or should not be an elected body, but when they desire Union only, it is essential that there should be in the Federal Government some body representing the Provinces as such; some body sufficiently strong, from the nature of its constitution, to uphold the rights of the Provinces whom it represents. What other body than an elected Senate can be suggested? It is no answer to point out objections to an elected Senate, unless you are prepared to suggest some other mode of appointment which is open to less objections. If there is to be some outward and visible sign of recognition of State rights, if the ‘natural’ desire of the small States is to be given effect to, how can it be better effected than by equal representation in the Senate? Their ‘desires’ will have to be ascertained, and consent obtained before any Union can be formed, and we must never forget the saying of Solon, who, when asked if he had given the Athenians the best possible laws, replied, ‘I have given them the best they can bear.’ As Mr. Bagehot himself remarks, a Federal Senate, a second House which represents State unity, has this advantage: it embodies a feeling at the root of society—a feeling which is older than complicated politics, which is stronger a thousand times over than common political feeling; the local feeling, ‘my shirt,’ says the Swiss State patriot, ‘is nearer to me than my coat.’ An elected Senate in which each State is equally represented is a guarantee that no law will be passed, not only without the consent of the majority of the people, but also without the consent of a majority of the States. By the election of Senators by each State for each State you insure the respect and attachment of the State as a whole, not only for the particular Senators they have elected, but also for the whole federal constitution of which they form a part.” (Sir R. C. Baker; Manual for use of Convention of 1891, p. 61.)
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“All Federal Governments have their Senates or Councils of the States, and in all of them the Senate is based upon the principle that in a Federation the States must be represented as well as the people. The principle, if not as old as the hills, goes as far back as the Achæan League, where each city, independent of its size, had one vote. And the reason why the principle is universal is not far to see. It is probable that no small States would care to link their fortunes with large States if they were liable to be out-voted and ignored by virtue of the superior population of their greater brethren. Certainly the American States would never have set aside their loose confederation, unworkable as it was, if it had not been for this method of alleviating their fears, and of extinguishing their jealousies. In their Senate each State, the great and the pigmy, is equal. We shall undoubtedly to a large extent have to recognize this principle here.” (Mr. Howard Willoughby, Australian Federation [1891] p 58.)
“The individualism of the States after Federation is of as much interest to each colony as the free exercise of national powers is essential to that aggregation of colonies which we express in the term Federation. If the one trenches upon the other, then, so far as the provinces assert their individuality overmuch, the fear is an approach to a mere loose confederation, not a true Federation. The fear on the other hand is, if we give the power to encroach—that is if we represent the federated people only, and not the States in their entities, in our Federation—then day by day you will find the power to make this encroachment will be so gladly availed of that, day by day and year by year, the body called the Federation will more nearly approach the unified or ‘unitarian’ system of government. We cannot adopt any form of government the tendency of which will be, as time goes on, to turn the constitution towards unification on the one hand, and towards a loose confederacy on the other. We must observe that principle, or else we do not observe the charge laid upon us by the enabling Act, which lays on us the duty to frame a ‘Federal’ Constitution under the Crown. So, therefore, I take it there must be two Houses of Parliament, and in one of these Houses the principle of nationhood, and the power and scope of the nation, as constituted and welded together into one by the act of Federation, will be expressed in the National Assembly, or House of Representatives, and in the other Chamber, whether it is called the Council of the States, the States Assembly, or the Senate, must be found not the ordinary checks of the Upper House, because such a Chamber will not be constituted for the purposes of an Upper House; but you must take all pains, not only to have a Parliament consisting of two Chambers, but to have it constituted in those two Chambers in such a way as to have the basic principle of Federation conserved in that Chamber which is representative of the rights of the States; that is that each law of the Federation should have the assent of the States as well as of the federated people. If you must have two Chambers in your Federation, it is one consequence of the Federation that the Chamber that has in its charge the defence of State interests will also have in its hands powers in most matters coordinate with the other House.” (Mr. Edmund Barton, Conv. Deb., Adel., pp. 21–23.)
“In all four legislatures [England, Germany, France and the United States] the distribution of the representation in the upper houses is made with but little regard to the census of the population. In England and in the United States, no regard at all is paid to the principle of proportionality; in Germany, not much; in France, considerable. If there is any one controlling principle applicable to all these cases, it is the representation of local governmental organizations. In the Senate of the United States, this is the exclusive principle. In the German Federal Council, it is the dominant principle. In the French Senate, considerable regard is paid to the census of the population in determining the number of senatorial seats to be assigned to each dèpartement; but within the dèpartement the effect of this concession to proportionality is modified by a very great discrimination in favour of the less populous communes as regards the number of representatives accorded them in the electoral colleges. In England alone no regard seems at present to be paid to local governmental or administrative organizations in the distribution of the seats in the upper house. If we look, however, to history, we find that the representation of England in the House of Lords was originally very closely connected with the local organizations; while the number of seats in that house now occupied by representative peers from Scotland and Ireland is fixed by statute, and is thus defended against the power of the Crown on the one side, and the accidents of extinction on the other. These statutes are based far more upon territorial considerations than upon the idea of proportionality. We may say then, I think, that the principle controlling the distribution of seats in the upper houses of the legislatures of these typical systems is the representation of the local governmental or administrative organizations. This is a most valuable principle. It tends to preserve the real fruits of the historic development of the State. It gives opportunity for the exertion of a larger influence by the cultured minority; and it gives more security to the rights of that minority. Many of the greatest statesmen have been brought forward through the influence of this principle. The organizations which have not the
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strength of numbers have been compelled to search diligently for their best talent in order to maintain, in fact, their legal equality. The principle, however, is frequently assailed as mediæval and contradictory to the doctrine of popular sovereignty. From the view which we take of the province of legislation, viz., the interpretation of the reason of the State rather than the registration of the popular will, this objection appears irrelevant. Something more conclusive than the demand for proportionality must be adduced before we can be called upon to admit that this system of distributing representation is faulty. If the less populous community were always the more cultured, this would certainly be a better distribution than the principle of numbers could afford. It is because the less populous community may chance to be also the less cultivated that the system is in some degree unreliable. It would not, therefore, serve as the exclusive system of distribution, i.e., the system for both legislative chambers. When, however, it is balanced by the principle of distribution according to population in the other house, there is every reason to believe that it contributes powerfully to the production of sound legislation, and that it is a most wholesome check upon the radical tendencies of mathematical politics.” (Burgess, Political Sc. II. pp. 114–116.)
§ 68. “Chosen by the People of the State.”
The senators for a State are to be chosen by those of “The People of the State” possessed of the qualifications prescribed by section 8. This provision marks a great advance in a democratic direction. The Commonwealth Bill of 1891, following the precedent of the Constitution of the United States, provided that the Senators for each State should be directly chosen by the Houses of the Parliament of the State. In the Canadian Constitution the Senators are appointed by the Governor-General for life. The principle of popular election, on which the Senate of the Commonwealth is founded, is more in harmony with the progressive instincts and tendencies of the times than those according to which the Senate of the United States and the Senate of Canada are called into existence. In the Convention which drafted the Constitution of the Commonwealth not a single member was found in favour of a nominated Senate. It was generally conceded, not only that a chamber so constituted would be of an obsolete type and repugnant to the drift of modern political thought, but that, as a Council of States, it would be an infirm and comparatively ineffective legislative body. A few members were, indeed, for a time in favour of a Senate elected by the State legislatures; but they eventually abandoned that view as the debate progressed, and as the strong volume of authoritative opinion, and the overwhelming mass of evidence opposed to the manner in which the Senate of United States is chosen, was presented and developed.
The mode of choosing Senators embodied in the American Constitution was adopted in times and under circumstances quite different from those of the present; but even in the Philadelphia Convention which drafted that Constitution there were wise and far-seeing men who advocated the election of Senators directly by the people. “The States,” contended James Wilson, one of the Representatives of Pennsylvania, “are in no danger of being devoured by the national government; I wish to keep them from devouring the national government. Their existence is made essential by the great extent of our country. I am for an election of the second branch by the people in large districts, subdividing the districts only for the accommodation of voters.” (Bancroft's History of the Constitution of the U.S. 2nd vol. p. 30.)
As we have already seen, the functions of the Senate are of a double kind: first as a chamber of revision and review in matters of general legislation; and, secondly, as a chamber to represent the particular views, opinions, and interests of the States, in matters admittedly within the sphere of the federal authority but respecting which differences might arise, as well as for the purpose of resisting proposals not within the sphere of the federal authority. For the purpose of exercising powers such as these it was contended, with unanswerable force, that the Senate of the Commonwealth could and should be chosen by the process of popular election, and that there was no occasion to vest the choice in the State legislatures. In Australia there was a particular reason, in addition to the democratic one, why the American precedent should not be followed. In
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two of the six Australian colonies, namely, Queensland and New South Wales, the Upper Houses were nominated by the Crown, and not elected by the people; and the same was the case in New Zealand. It would be highly undesirable for Federal Senators to be elected by any Legislature, one branch of which would not be elected by the people, and, therefore, would not be responsible to the people. It would also be highly desirable that the senators representing the various States should be elected on a uniform basis, but there would be no such uniformity if some senators were elected by nominated Chambers and others by Chambers deriving their existence directly from the people. The struggle in Queensland over the Federal Enabling Bill was an object lesson of the difficulties to be encountered where there were two Chambers of a different basic Constitution. In Queensland the Legislative Assembly distinctly denied the right of the nominated Upper House to take part in the election of members to be sent to the Federal Convention. That was the whole contest. In the same way we might expect even more formidable objections to be taken to the Constitution of a Federal Senate partly elected by nominee Chambers. In addition to these considerations there was a gathering mass of testimony before the Convention as to the unsatisfactory manner in which the American system of senatorial elections was conducted.
“In one respect alone is there any sign of a popular demand for a change in either the functions or the construction of the Senate. A movement is now on foot to secure a constitutional amendment transferring the election of senators from the State legislatures to the people; and on account of the facilities for intrigue and bribery which are afforded by the present method, it is not unlikely that such a change would be beneficial. But the Senate of the United States will probably endure as long as any second legislative chamber upon the earth” (Foster, Comm. I. p. 498.)
“A proposal recently made to amend the Federal Constitution by taking the election of senators from the legislatures in order to vest it in the people of each State, is approved by some judicious publicists, who think that bad candidates will have less chance with the party at large and the people than they now have in bodies apt to be controlled by a knot of party managers. A nomination made for a popular election will at least be made publicly, whereas now a nomination for an election by a legislature may be made secretly.” (Bryce, The American Commonwealth, I. pp. 96 and 97; Senator Mitchell's article in the Forum, June 6, 1896.)
“The method of election to the Senate or second Chamber is a matter that will be thrashed out in the Committee and upon the discussion of the Bill. There are some who think the only way to preserve definite responsibility is to have the election by the people of the quota of each State to the Senate. There are others who think that could be well and best done by the election of the quota of each State by its legislature; there are others, too, who think that there should be a difference in suffrage between the electorate which chooses the States Council and the National Assembly. It should not be our purpose now to lay down definite lines upon any one of those subjects, because they are really questions which should be decided only after we become acquainted with each others' views in this debate and upon the discussion in Committee, and when the Bill is being discussed. It is then, and then only, that we shall be fully in possession of the reasons which underlie each others' views, and be able to say how far we can demand concessions in return.” (Mr. Edmund Barton, Conv. Deb., Adel., p. 22.)
§ 69. “One Electorate.”
One of the arguments in favour of the election of senators by the State Legislatures was that thereby the corporate and undivided representation of the States in the Senate was secured. It was, however, considered that the advantage of unified State representation in the Senate could be secured quite as effectually by the system, now provisionally embodied in the Constitution, of “one State one Senatorial electorate.” As soon as it was decided that the senators should be elected by the people and not by the legislatures, the view was pressed with great force that the people of each State, in choosing senators for the State, should vote as one constituency. If a State were divided into electorates, and if locality became the guiding principle of selection, the special purpose for which the Senate was constituted would be obscured. That purpose is that each State should be represented as a whole, as one entity, and not in divisions or sections. Voting as electors of one great constituency, it is contended, the people of a State will not be
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influenced by local sympathies and parochial interests; at any rate not to the same extent as if they were required to vote in provincial groups. It is believed that the process of voting in one common electorate is calculated to promote the selection of the best men whose services are available—men of broad views, established reputations, and extended experience, such as should be elected members of the Senate. There would be a better chance of giving effect to what Sir Henry Parkes, in 1891, described as the only conservatism possible in a democracy—the conservatism which arises from official position, length of experience, and weight of character. (Mr. E. Barton, Conv. Deb., Adel., p. 669; Mr. H. B. Higgins, Conv. Deb., Syd., pp. 369-70.)
A serious objection raised to the system of “one State one Senatorial electorate” was, that the expense necessarily involved in contesting an election extending over a whole State would be so great that only rich men would become candidates for the Senate, and that poor men of talent and capacity would be excluded. It was, however, denied that such would be the case. On the contrary, it was contended that the largeness of the electorate and the vast number of voters to be canvassed or appealed to would render it impossible for even a rich man to secure a seat in the Senate by lavish expenditure; he would have a better chance of doing so in a small or moderately large electorate. A man of limited means who had the confidence of the public would have a better chance of being successful than a millionaire who did not possess that confidence. It was mentioned during the debate that, on the occasion of the election of members for the Federal Convention, it was found that democratic candidates of moderate means had no difficulty in taking part in the campaign, on equal terms with conservative candidates, backed by wealth and social position. If the well-to-do candidates spent more money, it was because they were expected to do so; it did not follow that the expenditure of money gained them many more votes. Mr. Trenwith was proud to mention the fact that his expenses in connection with the Federal Convention election did not exceed £4.
The next objection was that the election of senators was a matter of State concern, and that each State should be allowed to decide whether its senators should be chosen by the people voting in one or several divisions. It was also feared that popular election would tend to place in large cities, towns, and centres of population the dominating influence in Senatorial elections, to the prejudice of the people in the country districts who, through want of organization, would not be able to exercise an influence proportionate to their numbers. It was accordingly proposed at the Sydney sittings of the Convention to amend the “one State one electorate” plan adopted at Adelaide, and to allow each State, if it thought fit, to split its territory into as many senatorial electorates as would be consistent with the application of the rotation principle.
The proposed modification was strongly opposed by most of the leading members of the Convention. It was pointed out that the amendment, if adopted, might endanger the principle of State representation in the Senate, with which the sectional election of Senators would be inconsistent. Local representation was adequately provided for in the House of Representatives. In the Senate the principle of locality, as the basis of representation, should be ignored, and corporate representation should be insisted upon. Under no circumstances, it was argued, should the matter be left to the discretion of the State Parliaments. It was not a matter of solely local concern. It was absolutely necessary that there should be uniformity in the electoral system by which senators were to be chosen; because the mode in which senators were chosen in one State might substantially affect the people in other States. If the power to cut up a State into senatorial districts were granted to the State Parliaments it might lead to “gerry-mandering;” by a careful adjustment of the boundaries of districts, and the grouping of populations in those districts, a State Parliament would be able to unduly colour the political principles of the senators returned for the State. (Mr. H. B. Higgins, Conv. Deb., Syd., p. 369.)
With reference to the suggested possibility of cities, towns, and centres of population exercising a predominating influence as against voters in rural districts, it was
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pointed out that the Parliament of each State was empowered to make laws prescribing the method of choosing Senators for that State (sec. 9). In the exercise of that power the State Parliaments, if they thought fit, would be able to introduce a system of preferential voting, providing for the representation of minorities, which would completely dispose of the objection referred to. (See Note § 77, “Methods of choosing Senators.”)
§ 70. “Queensland.”
The circumstances which conspired to prevent the representation of Queensland in the Federal Convention are detailed in the Historical Introduction, pp. 162, 187, 193. At the Conference of Premiers which met at Melbourne in January, 1899 (see Historical Introduction, p. 218, supra), Mr. Dickson, the Premier of Queensland, pleaded hard for an amendment in the Constitution enabling the Parliament of that colony, if it became an Original State, to divide it into divisions for the election of Senators and to determine the number of Senators for each division. The Conference decided that, although this concession would involve a departure from the fundamental principle, yet the Conference, considering the special circumstances of Queensland, its vast territory and scattered population, coupled with the fact that its population seemed to be naturally growing and developing in three divisions which may hereafter become separate States, and considering also that Queensland had not been represented in the Convention and was therefore derived of the opportunity of having her views and interests adequately considered, decided to recommend the insertion of the special provision which now stands as the second paragraph of the section.
That Queensland would be an Original State was ensured by the affirmative vote of the people of that colony on 2nd September, 1899, and confirmed by the Address to the Queen subsequently passed by both Houses of the Queensland Parliament.
This power of the Parliament of Queensland only exists “until the Parliament of the Commonwealth otherwise provides.” The Parliament of the Commonwealth has, therefore, the power to require that the State of Queensland shall be represented in the Senate as a corporate whole.
§ 71. “Original State.”
An Original State is defined by Clause 6 as a State which is part of the Commonwealth at its establishment. An Original State is entitled, as a constitutional right, to equal representation in the Senate and other special privileges which need not necessarily be conceded to new States. The Federal Parliament may admit to the Commonwealth or establish new States, and may upon such admission or establishment make or impose such terms and conditions, including the extent of representation in either House of the Parliament, as it thinks fit (sec. 121). The fact that new States are not entitled as of right to equal representation shows that the system is not founded on a logical principle, but that it is a political compromise or contrivance regarded as one of the conditions precedent to the establishment of the Commonwealth.
§ 72. “Equal Representation .. Shall be Maintained.”
The immobility of the principle of the equal representation of Original States in the Senate is assumed to be secured by the combined operation of this section and section 128, which provides that no alteration diminishing the proportionate representation of any State in either House of the Parliament, shall become law unless the majority of the electors voting in that State approve the proposed law. Referring to the corresponding section of the Constitution of the United States, Dr. Burgess says:—
“The principle of representation in the Senate is State-equality. The Constitution secures this equality even against amendment in the ordinary manner. That is, the state, the sovereignty, as it was organized back of the Constitution, undertakes to secure the principle of State-equality in the Senate, against the state, the sovereignty, as
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organized within the Constitution. This is confused and unnatural. It is not possible that this restriction could stand against a determined effort on the part of the state within the Constitution to overthrow it. It is a relic of confederatism, and ought to be disregarded. It may be good political science now and in the future that the principle of State-equality should prevail in the Senate, but the state as organized in the Constitution must be the final judge of this. No Constitution is complete which undertakes to except anything from the power of the state as organized in the Constitution. Such a Constitution invites the reappearance of a sovereignty back of the Constitution, i.e., invites revolution.” (Burgess, Pol. Sc. II. p. 49.)
§ 73. “Chosen for a Term of Six Years.”
The members of the Senate of the United States are elected by the State Legislatures for a fixed term of six years, subject to the rotation system by which one-third retire every two years. In Canada the senators, appointed by the Governor-General, hold their seats for life. In Switzerland the cantons determine the tenure of the members of the Council of States. Members of the Federal Council of Germany hold their seats at the will of the Executive Governments of the States. The Commonwealth Bill of 1891 proposed that the tenure of senators to be elected by the Legislatures should be six years, subject to the retirement of one-half the senators every three years. The same term and tenure for Senators have been embodied in the present Constitution. The length of the legal term of a senator is, therefore, twice that of the potential term of a member of the House of Representatives. The reason for this difference in length of term is that, in theory, the Senate is designed to be a continuous body, and that Senators ought to have a longer duration of membership, in order to give them greater independence and better opportunities for deliberation in dealing with proposed legislation, so that they may, if necessary, even protect the people themselves. (Foster, Comm. I. 469.)
§ 74. “Certified by the Governor.”
EXECUTIVE CONTROL OF SENATE ELECTIONS.—By sec. 12, the Governor of each State is charged with the duty of issuing writs for the election of senators; and this section enacts that the names of the senators chosen for each State must be certified by the Governor to the Governor-General. This provision was supported in the Convention as helping to preserve the essence of State unity. (Sir John Downer, Conv. Deb., Syd., 393; see also note, § 94, infra.)
The Constitution, while it gives the Federal Parliament wide legislative powers in respect of the mode of election and laws relating to elections of senators, seems to vest the administrative conduct of the elections wholly in the States. The State Parliaments are to fix the times and places of the elections; the State Governments are to issue the writs and certify the result of the polls. The power to issue the writs involves the power to appoint returning officers, who will be State officials, and whose duty will be to appoint deputies, to fix polling places, to advertise, to hold the elections at the times and places prescribed by State laws, and to return the writs to the Governors of their respective States. The method of election (sec. 9) and the laws relating to elections (sec. 10), except as to the times and places of elections, may be prescribed by the Federal Parliament; but the executive control remains constitutionally vested in the States.
EXPENSES OF SENATE ELECTIONS.—From the proposition that the Senate elections are conducted and controlled by State officials, it seems to follow logically that the expenditure in connection with these elections must be defrayed by the States. The returning officers, being States officials, must look to their own Governments for their expenses; and if the States have a free hand as to the number of polling-booths, the advertisement of the elections and so forth, it would be manifestly unreasonable that the Federal Government should be under an obligation to pay any bills which may be incurred, however extravagant; and no such obligation appears to be imposed by the Constitution.
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At the same time, the Constitution does appear to contemplate that the Federal Government shall have the power to defray these expenses. Sec. 83 provides that the Governor-General in Council may draw from the Treasury and expend such moneys as may be necessary “for the holding of the first elections for the Parliament,” not merely for the House of Representatives. It would seem, therefore, that the Federal Government, though it is under no obligation to defray the expenses of senate elections, has the power to re-imburse the States for expenses reasonably incurred. Whether it exercises this power, or leaves each State to bear its own expenses, is perhaps not of much moment, because the aggregate amount of the re-imbursement would come out of the surplus divisible among the several States. The re-imbursement to each State would probably be made, if made at all, on a uniform population basis; and as it would then be charged against each State as federal expenditure on the same basis, the result would be unaltered.
In connection with elections for the members of the House of Representatives, the Federal Government will appoint returning officers and make arrangements for the conduct of electoral proceedings throughout the Commonwealth, and pay the necessary expenses. It will be possible on certain occasions—for instance, at the first election and after a double dissolution—for the Federal authorities and the State authorities to concur in the holding of elections for both Houses on the same day. As the election of representatives in a State will be conducted on the same suffrage as the election of senators for the State, it may be possible for the Federal authorities and the State authorities to join in the expense of providing one common electoral roll for Federal elections in each State.
Qualification of electors.
8. The qualification of electors75 of senators shall be in each State that which is prescribed by this Constitution, or by the Parliament, as the qualification for electors of members of the House of Representatives; but in the choosing of senators each elector shall vote only once.76
HISTORICAL NOTE.—This provision (except the words prohibiting plural voting) was introduced at the Adelaide session in the same form, as part of the preceding clause. In Committee, the words “but in the choosing of senators each elector shall have only one vote” were added on Mr. Barton's motion. (Conv. Deb., Adel., p. 670.) Lest it should be contended that this would prevent an elector from casting votes for two or more candidates, this was afterwards amended by adding the words “for as many persons as are to be elected”—a phrase which later on was rejected in favour of “each elector shall vote only once.” A provision was also added that “if any elector votes more than once, he shall be guilty of a misdemeanour.” (Conv. Deb., Adel., pp. 675, 1189-90, 1210.)
At the Sydney session, a suggestion by the Legislative Assembly of South Australia, to the effect that senators should be elected in all the States on the basis of one adult one vote, was negatived by 32 votes to 13. A suggestion by the Legislative Council of Tasmania, to leave out the provision as to misdemeanour, was supported on the ground that the words were unnecessary, because a breach of a statutory prohibition was always a misdemeanour. Moreover, it was thought inadvisable to load the Constitution with penal provisions. The amendment was agreed to by 28 votes to 16. A suggestion by the Legislative Council of Victoria, to prevent disfranchisement of existing voters, was formally negatived, with a view to making Mr. Holder's clause (sec. 41) apply to both Houses. (Conv. Deb., Syd. [1897], pp. 416-20.) At the Melbourne session, after the fourth report, the provision was placed as a separate clause.
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§ 75. “Qualification of Electors of Senators.”
The qualification of electors of senators in each State is the same as the qualification of electors of representatives in each State. This qualification is defined in sec. 30, a reference to which is necessary to explain the meaning of the expression “That which is prescribed by this Constitution or by the Parliament.” In sec. 30 the Constitution prescribes that the qualification of electors of representatives shall be, in each State, that which is prescribed by the law of the State as the qualification of electors of the more numerous House of the Parliament of the State. This therefore is the Constitutional provision for the qualification of electors of both Houses. But by virtue of the words “Until the Parliament otherwise provides” this constitutional provision may be altered by the Parliament, without the necessity of recourse to the process of amendment of the Constitution under sec. 128. The Parliament may pass a suffrage law for the Commonwealth, superseding at all Federal elections the State suffrages, subject to the restriction prescribed by section 41. The Parliament cannot, however, prescribe one suffrage for the Senate and another for the House of Representatives. Whatever suffrage it prescribes for the House of Representatives will, by virtue of this section, be the suffrage for the Senate also. (For Notes on Suffrage see § 122, infra.)
§ 76. “Each Elector shall Vote only Once.”
By this provision a federal elector is forbidden to vote more than once at any senatorial election. Without such an inhibition it might have been possible for an elector to record his vote in every electoral division throughout a State, in which his name was registered in the State rolls, and to which he could journey on the day of polling. The possibility of plural voting at a senatorial election would not, owing to the magnitude of the constituency, be so great as at a general election of members of the House of Representatives in which the constituencies would necessarily be smaller and more numerous. The application of the restriction to the election of members of both Federal Chambers is a strong proof of the liberal policy which guided and influenced the deliberations of the Federal Convention.
The mode of enforcing the inhibition formed the subject of some debate in the Convention. At the Adelaide session a provision was added to the effect that if an elector voted more than once at the same election he should be guilty of a misdemeanour. At the Sydney session a recommendation was received from both Houses of the Tasmanian Legislature that the penalizing words should be omitted, as being foreign to a Constitution, although no objection was raised to another section (46) which created an offence and provided a penalty. In supporting the omission of the words, Sir P. O. Fysh urged, at the Sydney Convention, that the bill should not embrace anything except what was necessary for the framing of the Constitution, and that any matters which belonged to the criminal law, or the electoral laws of the States, had better be left as they were. As far as the criminal law was concerned, it should not be part of the Constitution. (Conv. Deb., Syd., p. 417.)
“There seemed to be a considerable number of members at Adelaide who wished to have this provision about a misdemeanour inserted, and it was inserted in accordance with the wish of the majority. I am, myself, of opinion that so far as you can you should leave the Constitution to deal simply with matters of necessary machinery. I am not, myself, strongly in favour of a provision of this kind, and I think it can otherwise be provided for; but I am entirely in the hands of the Committee. If there is such a desire on the part of the Committee, I shall not object to the retention of these words, although I admit the force of the argument that the Constitution Act is not the place for making offences against the criminal law, or for prescribing penalties. That is perfectly true; but the object in the first instance seemed to be to obtain a statement of this kind in the Constitution. The object seemed to make it plain on the face of the Constitution that whoever offended against the law of one man one vote should be in danger of the police. I think I pointed out in Adelaide, and hon members mostly agreed with me, that where a man does wilfully and deliberately what is against the express provisions of an Act, it is a misdemeanour, and there is no necessity to place that in an Act of Parliament.” (Mr. Edmund Barton, id. p. 417.)
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On a division the words declaring plural voting at a senatorial election to be a misdemeanour were struck out. A breach of a direct statutory prohibition, however, is a misdemeanour. (See Note, § 123, infra.)
Method of election of senators. Times and places.
9. The Parliament of the Commonwealth may make laws prescribing the method of choosing senators77, but so that the method shall be uniform for all the States78. Subject to any such law, the Parliament of each State may make laws prescribing the method of choosing the senators for that State.
The Parliament of a State may make laws for determining the times and places of elections of senators79 for the State.
UNITED STATES.—The times, places, and manner of holding elections for senators and representatives, shall 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.—Const., Art. 1, Sec. iv., subs. 1.HISTORICAL NOTE.—Clause 10, Chap. 1., of the Commonwealth Bill of 1891 was as follows:—
“The Parliament of the Commonwealth may make laws prescribing a uniform manner of choosing the senators. Subject to such laws, if any, the Parliament of each State may determine the time, place, and manner of choosing the senators for that State by the Houses of Parliament thereof.” (Conv. Deb., Syd. [1891], p. 599.)
At the Adelaide session, 1897, the same clause was adopted with the omission of the words “by the Houses of Parliament thereof.” In Committee, Mr. Deakin suggested “method” as preferable to “manner,” but no amendment was moved. (Conv. Deb., Adel., pp. 672-4.)
At the Sydney session, a suggestion by both the Houses of the Parliament of Tasmania, to leave the manner of choosing senators to the States altogether, was negatived. A suggestion by the Legislative Assembly of Victoria, to insert “the times, places, and” before “a uniform manner,” in order to enable the Federal Parliament to legislate as to the times and places of elections, was agreed to. (Conv. Deb., Syd. [1897], pp. 987-8.)
At the Melbourne session, after the fourth report, the clause was altered to its present shape, the determination of times and places being again left to the States. In Committee, Mr. Symon pointed out that this was an alteration in substance; but no amendment was moved. (Conv. Deb., Melb., pp. 2445-7.)
§ 77. “Method of Choosing Senators.”
The method of choosing senators in each State may, in the first instance, be prescribed by the Parliament of each State. The Parliament of the Commonwealth, however, may at any time after the first election of senators pass laws prescribing the “method of choosing senators,” subject to the restriction that such method shall be uniform for all the States. The question which at once presents itself for consideration is the meaning of the expression “method of choosing.”
“Method of choosing” clearly does not include the sub-division of the State into electorates, because sec. 7 gives this power solely to the Federal Parliament. Nor does it include the fixing of the times and places of elections; because sec. 9 reserves this power absolutely to the State Parliaments. The power to prescribe the method of choosing senators is also limited by the constitutional provision that “each elector shall vote only once.”
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Subject to these express constitutional provisions, it would seem that the power to prescribe the method of choosing senators extends to the regulation of the whole process of election, including the mode of nomination, the form of writs and ballot papers, the mode of voting, the mode of counting votes, &c. The section would thus enable the State Parliaments provisionally, and the Federal Parliament ultimately, to prescribe the mode in which an elector should record his vote, e.g., whether he should vote for as many candidates as there are vacancies to be filled at the election, or whether he should have the option of “plumping” for a less number of candidates or of concentrating his vote, or whether he should mark some or all of the candidates in the order of his preference. Provision could thus be made for the introduction of some system of preferential or alternative voting and the representation of minorities.
“Method of choosing” would probably also include general regulations as to the conduct of elections. Under the power conferred on the Congress of the United States to prescribe the “times and manner of holding elections for senators and representatives,” a statute has been passed providing for the holding of federal revision courts and the appointment of “supervisors of elections” to attend and scrutinize the registration of electors and the recording of votes, with power to arrest persons guilty of fraud against the election laws, and if necessary to summon the posse comitatus to their aid. (Burgess, Political Sc. ii. 44.)
In the absence of State or federal laws prescribing the “method of choosing senators,” the senators for a State would be chosen according to the method prescribed by “the law relating to elections for the more numerous House of the Parliament of the State.” (See Notes, § 124, infra.)
“I take it this deals more with the manner in which you carry out your elections, and that the provision in a Constitution that a State shall be one electorate in voting as an entity of the Constitution is not a matter of minor degree as are these summed up in the phrase ‘manner of choosing.’ If these matters come before the courts the courts cannot have any difficulty.” (Mr. Edmund Barton, Conv. Deb., Adel., p. 673.)
“The definition which Mr. Barton has rather implied than given of the word ‘manner’ raises a doubt in my mind as to whether the word ‘manner’ is also wide enough to cover all alteration in the system of voting, if so desired. If ‘manner’ relates rather to the conduct of an election and the general provisions made for taking votes, is it wide enough to cover also, and to a certainty, a variety of systems of voting which might perhaps be indicated by the word ‘method?’ Would it not be desirable to take care that those States which think fit to adopt a system of proportional voting for the representation of minorities shall have power to do so, and that the Parliament of the Federal Commonwealth shall also be able to adopt such a system if it thinks desirable?” (Mr. A. Deakin, id. p. 673.)
“There are only two limitations to the subjects which may come under the head of ‘manner of choosing.’ One is that the member is to be chosen by the people of the States as one electorate. That cannot be altered. The other is that the qualification shall be as stated for the House of Representatives, and one man shall have one vote. Those two things are expressly provided for, and therefore the ‘manner’ cannot touch them. They really put the very basis upon which the Senate is elected. But the manner of conducting elections must embrace everything else, and the manner of choosing, surely, would include the method in which the votes are to be recorded. The method in which votes are recorded must allow for representation of minorities, alternative votes, or any other system.” (Mr. R. E. O'Connor, id. p. 673.)
“It would be perfectly open, for instance, for every Parliament to provide for the Hare system of election. The tenth clause provides that the Parliament may, in the first instance, prescribe an uniform manner applicable to every State, of choosing members for the Senate; but, subject to such provision, the Parliament of each State may decide how to choose members of that body. It reserves such a power to the Parliaments of the States. But there is reserved to the Federal Parliament a power of control, which might well be exercised, in the case of certain difficulties or misdeeds arising, to take the matter into its hand.” (Mr. Edmund Barton, id. p. 673.)
§ 78. “Uniform for all the States.”
“Uniform” means the same in all the States; not different methods in different States. (Head Money Cases, 112 U.S. 580.) Where a Federal Legislature is authorized to pass “uniform laws” it is not merely enabled to pass laws the operation of which
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shall be uniform, but to establish uniform laws on the subject throughout the union. This uniformity is incompatible with state legislation on that part of the subject to which the federal law may extend. (Sturges v. Crowninshield, 4 Wheat. 123-194.)
§ 79. “Times and Places of Elections of Senators.”
This sub-section further strengthens the control of the States over the election of senators. The Parliament of a State may, by legislation, determine the times when, upon the occasions arising under the Constitution, elections of senators for the State shall take place; it may also determine the places at which polling booths for the reception of votes for the election of senators shall be held. These powers are permanently and exclusively vested in the States. The election of senators will, of course, take place on the occurrence of the events prescribed by the Constitution, such as the triennial election of senators, when half the number of senators retire according to the process of rotation defined by section 13; and such as a general election of the Senate following a dissolution thereof under section 57. Under a similar section in the American Constitution it has been held that when the legislature of a State has failed to “prescribe the times, places and manner” of holding elections, the Governor may, in case of a vacancy, designate in his writ of election the time and place, when and where such election will be held; but that a reasonable time should be allowed for the promulgation of the notice. (Hoge's Case, Cl. and Hall [U.S.], 135; cited Baker Annot. Const. 6.)
Application of State laws.
10. Until the Parliament otherwise provides, but subject to this Constitution, the laws in force in each State, for the time being, relating to elections80 for the more numerous House of the Parliament of the State shall, as nearly as practicable, apply to elections of senators for the State.
HISTORICAL NOTE.—At the Adelaide session, the following words (taken from the corresponding clause of the Commonwealth Bill of 1891, relating to the House of Representatives) were introduced as paragraph 2 of the preceding clause:—
“Until such determination, and unless the Parliament of the Commonwealth otherwise provides, the laws in force in the several States for the time being, relating to the following matters, namely: The manner of conducting the elections for the more numerous House of the Parliament of the State, the proceedings at such elections, returning officers, the periods during which elections may be continued, and offences against the laws regulating such elections, shall, as nearly as practicable, apply to elections in the several States of members of the Senate.” (Conv. Deb., Adel., pp. 674-6.)
At the Sydney session, a suggestion by both Houses of the Parliament of Tasmania, to omit “and unless the Parliament of the Commonwealth otherwise provides,” so as to make the power of the States permanent, was negatived. (Conv. Deb., Syd., 1897, pp. 988-9.)
At the Melbourne session, the paragraph was omitted, with a view to placing the provision as to both Houses in a single clause (44 AA). (Conv. Deb., Melb., pp. 1827, 1855.) After the fourth report, however, it was determined to deal with each House separately; the clause was restored in shorter and more general terms, and clause 44 AA was omitted. (See also sec. 31.)
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§ 80. “Laws in Force in Each State … Relating to Elections.”
This section provides that in the election of senators for a State the laws for the time being in force in such State relating to elections for the more numerous House of Parliament of the State shall, so far as practicable, be applied. To this general enactment there are two limitations; one being that such electoral machinery laws are to be applicable to senatorial elections only until the Parliament otherwise provides; and the second being that the operation of the section is to be “subject to this Constitution.” The latter phrase seems to cover two cases; (1) express provisions in the Constitution relating to elections—such as the prohibition against plural voting, and the provision that until the Parliament otherwise provides, each State shall be one electorate; and (2) laws passed by the States under the authority of the Constitution—such as laws determining the time and places of elections and provisional laws prescribing the method of choosing senators. Accordingly the section is merely provisional and temporary. It may be superseded in part by State legislation, under sec. 9, and superseded altogether by federal legislation.
The words “until the Parliament otherwise provides,” seem, by virtue of sec. 51—xxxvi., to give the Federal Parliament (subject of course to the express limitations imposed by the Constitution) a general power to legislate as to “laws relating to elections” for the Senate—words which have a wider scope than the words “laws prescribing the method of choosing senators.” The executive conduct of the elections, however, will remain with the States. (See Note, § 74, supra.)
Section 31 of the Constitution, making preliminary application of State election laws to the choice of members of the House of Representatives, is the same in substance as the section now under review. Both sections, as originally framed, enumerated in detail the particular branches of the electoral law, to which they were intended to apply (see Historical Note, supra); but at the Melbourne session of the Convention this enumeration was replaced by general words.
The omission of the particular words, instead of weakening, rather strengthens the section by rendering it more general, and less restricted than the original one. The section, as it stands, is most comprehensive, and applies, to senatorial elections in a State, all State laws relating to the conduct of and proceedings at elections of members of the popular Chamber in that State; the appointment of returning officers, their deputies and assistants, and their respective powers and duties; the publication of the mandate contained in the senatorial writs; the preparation of voters' rolls; the preparation of ballot papers; the nomination of candidates; the conditions of nomination—such as the signature of nomination papers by a certain number of electors, and the lodging of a deposit with each nomination paper as a guarantee of bona fides; the withdrawal of nominations; the notification of the time and places of polling as fixed by State laws under section 9; the recording of votes by secret ballot on the day of polling; the proof of qualification and proof of identity of voters; questions to be answered or oaths taken by persons seeking to vote whose qualification or identity may be challenged; the maintenance of order at the polling places; the time of opening and closing thereof; the counting of votes, the certification of returns, and the declaration of the poll.
Failure to choose senators81.
11. The Senate may proceed to the despatch of business, notwithstanding the failure of any State to provide for its representation in the Senate.
HISTORICAL NOTE.—Clause 11, chap. I., of the Commonwealth Bill of 1891 was as follows:—
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“The failure of any State to provide for its representation in the Senate shall not affect the power of the Senate to proceed to the despatch of business.”
At the Adelaide session, 1897, the clause was adopted in the same words; and at the Melbourne session, after the fourth report, it was altered to its present form.
§ 81. “Failure to Choose Senators.”
This section must be read in conjunction with the quorum section, which enacts that the presence of at least one-third of the whole number of senators shall be necessary to constitute a meeting of the Senate for the exercise of its powers (sec. 22). Accordingly the Senate will be capable of being duly constituted for the despatch of business if at least one-third of the States under the system of equal representation have provided for their representation in that body; the failure of two-thirds of the States to return the quota of senators to which they are entitled under the Constitution would not paralyse the legislative action of the Senate, and the absent and unrepresented States would be bound by laws passed whilst the statutory quorum was present, just as legally as if they were fully represented. The Constitution of the United States of America requires an absolute majority of the members of the Senate to constitute a quorum (Art. I. sec. 5, sub-sec. 1), and there is no section corresponding to the above one stipulating that unrepresented States are bound as effectively as those which have elected Senators. In the case of Cohens v. Virginia, 6 Wheat. 264, it was said that if a majority of States should refuse to elect senators the government of the United States of America would necessarily come to an end. Applying that principle to the Constitution of the Commonwealth it might be contended that there would be a deadlock in the Federal Government if more than two-thirds of the States failed to elect senators. The risk of such a failure, however, is very remote.
This section contains the only legal and effective provision made by the Constitution for the prompt and regular return of senators by the States. The whole carriage of senatorial elections is vested in the State authority; the Federal Government can exercise no control or supervision over them. The Governor of each State issues the writ for a senatorial election; the election is conducted by State officers; the Governor of the State, on the return of the senatorial writ to him, has to certify to the Governor-General the names of senators duly chosen for his State. There is no time limited within which the certification has to be made. The fact that a quorum of the Senate may proceed to the despatch of business, notwithstanding any neglect or delay on the part of a State to provide for its representation, will be a strong inducement and incentive for the prompt holding of elections and the return of senators to fill vacancies as they arise.
Issue of writs.
12. The Governor of any State may cause writs to be issued82 for elections of senators for the State. In case of the dissolution of the Senate83 the writs shall be issued within ten days from the proclamation of such dissolution.
HISTORICAL NOTE.—At the Adelaide sessions, 1897, in committee, Mr. Barton introduced a clause (11A) as follows:—
“For the purpose of holding elections of members to represent any State in the Senate, the Governor of the State may cause writs to be issued by such persons in such form and addressed to such returning officer as he thinks fit.”
Mr. Isaacs thought that the writs ought to be issued by the Governor-General, as in the case of writs for the House of Representatives. Mr. Holder moved an amendment to provide that the writs should be issued by the Governor-General in Council; but this was negatived. (Conv. Deb., Adel., pp. 1149-50.)
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At the Sydney session, a suggestion by the Legislative Assembly of Victoria to omit the clause was not adopted. (Conv., Syd., 1897, p. 989; and see id. pp. 391-4.) At the Melbourne session, drafting amendments were made before the first report and after the fourth report.
§ 82. “Writs to be Issued.”
As we have already seen, the whole executive supervision and conduct of a senatorial election in each State, from the issue of the writ to the certification of returns, is, subject to certain restraints, vested in the State authority. The only restrictive mandate imposed on the Governor of a State is, that in case of a dissolution of the Senate, he must issue the writ within ten days from the proclamation of such dissolution. No express provision has been made as to the limit of time within which the writ issued by the Governor of a State should be returned to him. Section 5 provides that the Parliament shall be summoned to meet, after a general election, not later than thirty days after “the day appointed” for the return of the writs. As we have pointed out in our notes on that section, “the day appointed” there referred to means the time fixed by the Governor-General in Council for the return of the writs for the election of members of the House of Representatives. There is no express or implied power vested in the Governor-General in Council to appoint a day for the return of the senatorial writs or for the certification of names of senators chosen.
§ 83. “Dissolution of the Senate.”
The liability of the Senate of the Commonwealth to dissolution, in the circumstances and under the conditions stipulated in section 57, is an important feature in its constitution, which strikingly differentiates it from its great model and prototype—the Senate of the United States of America. It has been said that the American Senate is a continuous body, always in existence, and that its permanency and the length of the terms of its members have given it a dignity possessed by no other legislative body now in existence. (Foster's Comm. I. 493.) The Senate of the Commonwealth has been deprived of that principle of undisturbed continuity. The system of retirement by rotation makes the Senate of the Commonwealth, in theory, a continuous body; but its liability to dissolution is, to some extent, inconsistent with that theory. At the same time, when the conditions prescribed by section 57 and the various safeguards surrounding the exercise of the power therein conferred are considered, it will appear that the dissolubility of the Senate is quite consistent with the teachings of political science and the drift of modern political thought, and that what it loses by an occasional break in continuity it will gain in representative character, public esteem and legislative usefulness.
Rotation of senators.
13. As soon as may be after the Senate first meets, and after each first meeting of the Senate following a dissolution thereof, the Senate shall divide the senators84 chosen for each State into two classes, as nearly equal in number as practicable; and the places of the senators of the first class shall become vacant at the expiration of the third year, and the places of those of the second class at the expiration of the sixth year, from the beginning of their term of service; and afterwards the places of senators shall become vacant at the
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expiration of six years from the beginning of their term of service.
The election to fill vacant places shall be made in the year at the expiration of which the places are to become vacant.
For the purposes of this section the term of service of a senator85 shall be taken to begin on the first day of January following the day of his election, except in the cases of the first election and of the election next after any dissolution of the Senate, when it shall be taken to begin on the first day of January preceding the day of his election.
UNITED STATES.—Immediately after they shall be assembled, in consequences of the first election, they shall be divided as equally as may be into three classes. The seats of the senators of the first class shall be vacated at the expiration of the second year, of the second class at the expiration of the fourth year, and of the third class at the expiration of the sixth year; so that one third may be chosen every second year.—Const., Art. I., sec. 3, sub-sec. 2.HISTORICAL NOTE.—Clause 13, Chap. I., of the Commonwealth Bill of 1891 was substantially the same except that it was provided that the Senators for each State “shall be divided by lot into two classes.” (Conv. Deb., Syd. [1891], pp. 599–603.) At the Adelaide session, 1897, the clause of 1891 was adopted almost verbatim, and in Committee verbal amendments were made. (Conv. Deb, Adel., pp. 676-9, 1190.) At the Sydney session, Mr. Glynn objected to the principle of rotation, as preventing the Senate ever being in touch with public opinion. (Conv. Deb., Syd. [1897], p. 989.) Drafting amendments were also made. At the Melbourne session, Mr. Deakin moved the omission of the words “by lot.” He thought that either provision should be made for the three lowest on the poll to retire first, or the Senate should be left to manage the matter itself. The amendment was carried. (Conv. Deb., Melb., pp. 1928-9.) Drafting amendments were made before the first report and after the fourth report.
§ 84. “The Senate shall divide the Senators.”
The Senate will be a continuous body so far as its continuity is not broken by a dissolution under sec. 57. It may be assumed that such a break will only occur on rare and abnormal occasions in the history of the Commonwealth. Permanency of succession being its natural condition, arrangements have to be made for the periodical retirement of batches of senators so as to give effect, as far as possible, to the provisions of the Constitution; which provides that whilst senators shall be chosen for a term of six years, half of them shall retire every three years. Six years of service is the maximum term for which all senators are elected, but the policy of the Constitution is to cause the retirement of half the senators for each State every three years instead of all the senators every six years. If all the senators were to retire at the same time there would be no element of continuity in the constitution of the Senate. By the rotation principle that advantage is secured, whilst there will also be, at short intervals, an infusion of either fresh blood or restored vitality in the personnel of the Senate by the return, every three years, of newly chosen senators, or by the re-election of former senators strong in the confidence of their respective States. As the members of the first Senate, and of every Senate elected after a dissolution, are elected at the same time, they would, but for this section, be all entitled to six years tenure of office so far as not interfered with by a dissolution. For the purpose of securing the retirement every three years of a moiety of the senators for each State, an arbitrary provision has been adopted that one-half of the senators for each State in the first Senate, and every Senate succeeding a dissolution,
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shall vacate their seats at the expiration of three years from the beginning of their term of service. The Constitution does not itself specify the method of determining which half of the senators, for each State, shall retire at the end of half their terms of service. It requires the Senate to divide the senators for each State into two classes, as nearly equal in number as practicable, and declares that the places of senators of the first class shall become vacant at the expiration of the third year, and the places of those of the second class at the end of the sixth year; the Senate may divide them by lot or it may divide them according to some recognized principle; it may place the three senators for each State who stood highest on the poll in one class, entitled to six years, and place the other three senators for each State in the other class entitled to three years of office.
The words “as nearly equal in number as practicable” are intended to include the possible contingency of the number of senators for each State being altered, under section 7, to an odd number; or of a new State being accorded an odd number of senators. So long as the number of senators for each State remains even, the equality will of course be exact.
In the Draft Bill of 1891, as well as in the Bill as settled in the Adelaide and Sydney sessions, the Senate was authorized to divide the senators into two classes by lot. At the Melbourne session, the words “by lot” were omitted. The Senate has now, therefore, the unrestricted right to divide the senators for each State into two classes in such manner as it thinks fit. The purpose of the amendment is shown by the following extracts from the debates of the Convention:—
“The amendment I suggest need not occupy more than a moment or two in discussion. It is a blot on the face of a measure of this kind to require that the division of the senators into two classes after the first election shall be made by lot. I could understand that device being adopted in the absence of any other means of determining which senators should have the longer period. But the poll itself ought to afford, or be taken to afford, a reasonable indication of the wishes of the electors in this respect, and it is a probable injustice, as well as a mistake, to fall back on the antique method of settling questions of the kind. I move, therefore, the omission of the words ‘by lot,’ which will leave it absolutely at the discretion of the Senate itself to determine, after it meets, on what method the division shall take place. If the Drafting Committee think fit, they can adopt the method of providing that the three highest on the poll should have the six years' tenure. If that be the sense of the Convention, I will now simply submit my motion.” (Mr. Alfred Deakin, Conv. Deb., Melb., p. 1928.)
“I think a great deal can be said in favour of the view the Hon. Mr. Deakin has placed before the Convention. In a constitutional matter of this kind we ought not to resort to deciding a question by lot unless there are no other means of determining the matter. If the Convention are willing to agree to the amendment, it might be left to the Drafting Committee to decide whether any provision for the division of the Senate should take place, or whether the matter should be left to the senators themselves.” (Mr. R. E. O'Connor, id. p. 1928.)
Under the corresponding section of the Constitution of the United States of America the following procedure was adopted:—
“On the original organization of the Senate, May 14th, 1789, a committee was appointed to consider and report a mode of carrying into effect this constitutional provision. In accordance with their report, the senators then sitting were arbitrarily divided into three classes, the first including six members, and the second and third seven each. Three papers, numbered 1, 2 and 3 respectively, were rolled up and put into a box by the secretary; and then one senator from each class drew a number. The class which drew number 1 vacated their seats at the expiration of the second, the class which drew number 2 vacated their seats at the end of the fourth, and those who drew number 3 at the end of the sixth year. This plan, on account of the number then present at the Senate, left the first class, who vacated their seats at the expiration of the second year, one less in number than each of the other two. To prevent any unnecessary inequality in the classes, when the senators from New York appeared, two lots, one numbered 3, that of the small class, and one blank, were placed in the box. After each senator had drawn a lot, the one who drew number 3 was placed in the small class; and the other drew again from the box containing numbers 1 and 2, taking his place in the class whose number he drew. When the senators from North Carolina appeared, there were then two classes of equal numbers, and one with a number in excess of each. The numbers of the equal classes were put in the box. Then each
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senator drew one and was classed according to the number he drew. The classes were then equal in number. Accordingly, when the senators from Rhode Island appeared, papers numbered 1, 2 and 3 respectively, were again placed in the box, from which each senator drew one. The proceedings continued according to these successive methods until the admission of the senators from Washington, North Dakota and South Dakota at the same time. The same three numbers were then placed in the box, and drawn by one senator from each of the new States. The secretary then placed in the ballot-box two papers of equal size, numbered 1 and 3 respectively. Each of the senators from the State which had thus drawn number 1 drew out a paper and was assigned in accordance with the number he drew. The secretary then placed in the ballot-box numbers 1, 2 and 3, and each of the senators from the State which had drawn number 2 drew a lot from the box. They were assigned in accordance with the number drawn by each; and the remaining lot with a blank was again placed in the box and the senators from the remaining State drew from them. He who drew a number was assigned to the class represented by it; and he who drew a blank drew again from the box, which then contained the other two numbers, and was assigned according to the number drawn. When the senators from Idaho, Montana, and Wyoming were admitted at the same time, the same proceedings took place. A custom has been thus established which will be followed in the future.” (Foster's Comm. I. p. 483-4.)
“The classification is settled by lot when the senators first appear from the new States, in the mode adopted in the first classification, so as to prevent two vacancies occurring in the same State at the same time.” (Journal Senate, May 15, 1789, 26th ed., 1820; Baker, A.C. p. 7.)
“The provision for the election of members by rotation was adopted unanimously at the suggestion of Gorham and Randolph. Penn's Frame of Government for Pennsylvania had provided that in the Council one-third of the members should be elected every year, and at the time of the Convention the upper houses of New York, Virginia, and Delaware, as well as of the first-named State, were filled in a similar manner. The idea is said to have been borrowed from the senates of the cities in the Netherlands, who had taken it from Venice.” (Foster's Comm. I. p. 471.)
“The rotation principle was in great favour among the Republicans of the seventeenth century. The earliest mention of it in English political history occurs in a pamphlet published by James Harrington—author of ‘The Commonwealth of Oceana’—in 1660, which he entitled ‘The Rota: or a Model of a Free State, or Equal Commonwealth.’ The nature of the scheme may be gathered from Anthony Wood's account of the Rota Club, established by Harrington and his friends:—‘The model of it was that the third part of the Senate or House should rote out by ballot every year (not capable of being elected again for three years to come), so that every ninth year the Senate would be wholly altered. No magistrate was to continue above three years, and all to be chosen by ballot. This club of Commonwealthsmen lasted till about 1659.’ (Athenæ Oxon. vol. 11, p. 591.) Milton, who favoured a perpetual Senate, pointed out an objection to this scheme in his pamphlet on ‘The Ready and Easy Way to Establish a Free Commonwealth,’ published shortly after Harrington's appeared:—‘For it appears not how this (retirement by rotation) can be done without danger and mischance of putting out a great number of the best and ablest, in whose stead new elections may bring in as many raw, unexperienced, and otherwise affected, to the weakening and much altering for the worse of public transactions.”’ (G. B. Barton, Notes on the Draft Bill, 1891, p. 25.)
“The Senate resembles the Upper Houses of Europe, and differs from those of the British colonies and of most of the States of the Union, in being a permanent body. It does not change all at once, as do bodies created by a single popular election, but undergoes an unceasing process of gradual change and renewal, like a lake into which streams bring fresh water to replace that which the issuing river carries out. This provision was designed to give the Senate that permanency of composition which might qualify it to conduct or control the foreign policy of the nation. An incidental and more valuable result has been the creation of a set of traditions and a corporate spirit, which have tended to form habits of dignity and self-respect. The new senators, being always in a minority, are readily assimilated; and though the balance of power shifts from one party to another, according to the predominance in the State legislatures of one or other party, it shifts more slowly than in bodies directly chosen all at once, and a policy is therefore less apt to be suddenly reversed.” (Bryce, Amer. Comm. I. p. 99.)
§ 85. “The Term of Service of a Senator.”
After the Senate first meets, and after each first meeting following a dissolution, the senators are classified according to the scheme in the first paragraph in this section; thereupon the place or seat of each senator is identified with a term of service annexed to it. That term is not exhausted by the death, disqualification or resignation of the
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senator. His successor is elected to occupy the place or seat for the remainder of the term. By this paragraph of the section the precise date of the beginning of each term of service is defined. The beginning of a term does not depend upon such uncertain events as the date of the election, the return of the writs, or the swearing in of senators, but on the words of the section itself. On the occasion of the first election of senators, after the establishment of the Commonwealth, the term of service is deemed to have begun on the first day of January preceding the day of election. On the occasion of every general election of senators, the term of service is deemed to have begun on the first day of January preceding the day of election. But, in the case of senators elected to fill places or seats which will become vacant by effluxion of time, the term of service is deemed to begin on the first day of January following the day of election. The new term of service will thus begin at the expiration of the preceding term; although the elections will take place during the currency of the term. Hence it may arise that there will be senators actually in office, their term being unexpired, and senators elect, chosen to succeed the senators in office, but whose terms do not begin until the first day of January following their election.
Further provision for rotation86.
14. Whenever the number of senators for a State is increased or diminished, the Parliament of the Commonwealth may make such provision for the vacating of the places of senators for the State as it deems necessary to maintain regularity in the rotation.
HISTORICAL NOTE.—A clause, in substantially this form, was inserted as a drafting amendment at the Melbourne session, before the first report. After the fourth report it was amended, by the substitution of “may” instead of “shall as soon as may be.”
§ 86. “Further Provision for Rotation.”
The number of senators for each State may be increased or diminished at any time by the Federal Parliament, subject to the condition that equal representation of the several Original States must be maintained, and that no Original State shall have less than six senators (sec. 7). Whenever this is done, such further arrangements must be made as may be necessary to maintain regularity in the rotation.
Casual vacancies.
15. If the place of a senator becomes vacant before the expiration of his term of service, the Houses of Parliament of the State87 for which he was chosen shall, sitting and voting together, choose a person to hold the place until the expiration of the term88, or until the election of a successor89 as hereinafter provided, whichever first happens. But if the Houses of Parliament of the State are not in session at the time when the vacancy is notified90, the Governor of the State91, with the advice of the Executive Council thereof92, may appoint a person to hold the place until the expiration of fourteen days
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after the beginning of the next session of the Parliament of the State, or until the election of a successor, whichever first happens.
At the next general election of members of the House of Representatives, or at the next election of senators93 for the State, whichever first happens, a successor shall, if the term has not then expired, be chosen to hold the place from the date of his election until the expiration of the term.
The name of any senator so chosen or appointed shall be certified by the Governor94 of the State to the Governor-General.
UNITED STATES.—And if vacancies happen, by resignation or otherwise, during the recess of the legislature of any State, the executive thereof may make temporary appointments until the next meeting of the legislature, which shall then fill such vacancies.—Const. Art. I. sec. 3, sub-sec. 2.HISTORICAL NOTE.—In the Commonwealth Bill of 1891 (which provided for the election of Senators by the Parliament of States) clause 13, Chap. I., was as follows:—
“If the place of a Senator becomes vacant during the recess of the Parliament of the State which he represented, the Governor of the State, by and with the advice of the Executive Council thereof, may appoint a Senator to fill such vacancy until the next session of the Parliament of the State, when the Houses of Parliament shall choose a Senator to fill the vacancy.”
In Committee, it was suggested that it might be better that a vacancy should continue until the State Parliament met, rather than that the nominee principle should be allowed, even temporarily, to invade the Senate. Mr. Barton moved the omission of the provision for a temporary appointment, but this was negatived. (Conv. Deb., Syd. [1891]. pp. 600-5.) At the Adelaide session (the Bill having provided for the direct election of Senators) the clause was first drafted as follows:—
“If the place of a member of the Senate becomes vacant before the expiration of his term of service, the Houses of Parliament of the State he represented shall, sitting and voting together, choose a successor, who shall hold office only during the unexpired portion of the term. And if the Houses of Parliament of the State shall be in recess at the time when the vacancy occurs, the Governor of the State, with the advice of the Executive Council thereof, may appoint some person to fill the vacancy until the beginning of the next session of the Parliament of the State.”
In Committee, the clause was postponed, in order that the Drafting Committee might consider some suggestions that had been made for enabling a senator to be chosen by the people at the next general election, State or Federal, in the State. It was desired to have the vacancy filled by direct election as soon as possible; but the expense of holding a special election throughout the State was an obstacle. (Conv. Deb., Adel., pp. 579-80.) Later on the clause was passed substantially in its present form. (Conv. Deb., Adel., pp. 1948-9, 1101.) Drafting amendments were made at the Sydney session; and also at the Melbourne session before the first report, and after the fourth report.
§ 87. “The Houses of Parliament of the State.”
If a vacancy arises in the representation of any State in the Senate, the Houses of Parliament of the State, being in session at the time when the vacancy is notified, are enjoined to choose a person to hold the place provisionally, that is to say until (1) the expiration of the constitutional term or (2) the election of a successor at the next triennial election of senators or at the next election of representatives, whichever event
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first happens. The vacancies contemplated by this section are casual or extraordinary vacancies, arising from accidents, such as death, disqualification or resignation, and not those vacancies which take place at the regular expiration of senatorial terms. In thus choosing persons, to provisionally fill vacant places, the members of the Houses of Parliament of the State must sit and vote together—that is to say, the choice is made at a joint sitting of the Chambers, at which the vote of a majority prevails.
Under the Constitution of the United States of America (Art. I. sec. 3) which provides that the Senate “shall be composed of two senators from each State chosen by the legislature thereof,” it has been decided that the two Houses of the State Legislature might, by joint resolution adopted by both of them, without the consent of the State Governor, provide for the manner in which a senatorial election should take place; that the State Constitution could not limit the power of the legislature in that respect The practice was adopted in several States of electing senators in joint convention of the two legislative Houses, in case the Houses acting separately had failed to make a choice. (Foster's Comm. I. p. 473.)
In 1866 an Act of Congress was passed for the regulation of senatorial elections. It provides that, if the two Houses of a State legislature are unable to agree in the choice of a senator, a joint assembly of the two Houses shall be held, and the person who receives a majority of all the votes of the joint assembly, a majority of all the members elected to both Houses being present and voting, shall be declared duly elected. Under this statute it has been held that an election is valid when made in a joint convention by a majority of the members of both Houses, in the absence of a quorum of one of them. (Foster's Comm. I. p. 475.)
§ 88. “The Expiration of the Term.”
This expression means the end of the period of service, whether it be the three years of a senator of the first class or the six years of a senator of the second class; it is an event that depends on no fortuitous circumstances, being determined by the Constitution itself, which provides that all terms shall expire on the thirty-first day of December, either three years from the beginning thereof or six years from the beginning thereof. The exact date on which the term, annexed to each senatorial seat, begins and ends is fixed by section 13. Every term, whether for three years or six years, begins on the first day of January of some year, and necessarily ends on the thirty-first day of December in some year, except when the terms of all senators are prematurely ended by a dissolution of the Senate. “The expiration of the term,” if it happens before a successor has been elected, renders the election of a successor unnecessary, because the senators elected for the ensuing term, at the ordinary triennial election, then take their seats.
§ 89. “Election of a Successor.”
The choice of a person, by the Houses of Parliament of a State, to take the place of a senator who has ceased to act, is not regarded by the Constitution as the election of a successor; it is merely a provisional arrangement to save the expense of a special State election. The time for the triennial election of senators might be close at hand, in which case the vacancy would be filled without any appreciable additional expense. If, however, the usual triennial election of senators is preceded by a general election of members of the House of Representatives, an equally convenient and prompter method of filling the extraordinary vacancy is available. The legislative selection is only operative until the expiration of the term or the election of a successor, whichever first happens; it is merely an ad interim appointment, in order to save the State from being short of a senator, on the one hand, and to save the State the cost of a special election, on the other; the legislative appointee is not a successor of the deceased, disqualified, or resigned, senator, but merely a temporary holder of the office, pending the election of a successor by the people of the State.
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Triennial senatorial elections are held at times partly determined by the Constitution, and partly by the State legislatures. Those times are determined by the Constitution, to the extent that triennial senatorial elections to fill places to become vacant must be held during the last year of the term of service; sec. 13. The exact date, within that year, of such elections, is not fixed by the Constitution. The Parliament of each State is empowered to make laws determining the times of elections of senators for the State; sec. 9. The only restriction on the State power is the one above quoted.
§ 90. “When the Vacancy is Notified.”
When a casual vacancy happens in the representation of a State in the Senate, it is the duty of the President to notify the occurrence of such vacancy to the Governor of the State interested. If the President is absent from the Commonwealth at the time it is the duty of the Governor-General to notify the vacancy. (Sec. 21.) The happening of this vacancy should, no doubt, be promptly notified by the Federal to the State authorities, so as to enable the latter to take steps at once to fill it. Until the receipt of the statutory notification, that cannot be done; hence a delay in the notification would delay a choice by the State legislature or an appointment by the State Executive to fill the place until the election of a successor. It is a principle of the Constitution that the representation of States in the Senate should be maintained, as far as possible, with unbroken continuity, and that no State should be, for any time longer than absolutely necessary, short in its representation and consequently deficient in its political strength in the Council of States.
§ 91. “The Governor of the State may … appoint.”
If the Houses of Parliament of the State, in the representation of which a casual vacancy occurs, are not in session at the time when it is notified, the Governor of the State, with the advice of the Executive Council thereof, may appoint a person to hold the place for a temporary period; that is until the expiration of fourteen days after the beginning of the next session of the Parliament of the State, or until the election of a successor, under the power conferred by the second paragraph of this section. The clear limitations of this section should prevent many questions arising, such as have arisen under the Constitution of the United States. According to one American precedent the Executive of a State may appoint a senator to fill an anticipated vacancy before it actually occurs. (Case of Uriah Tracey, Taft's Senate Election Cases, p. 3; Foster, I. p. 488.) In Lanman's Case, however, it was held that the Governor of a State cannot, during the recess of the legislature, appoint a senator to fill an expected vacancy (Cl. and Hall [U.S.], 871; Baker, Annot. Const. 7.) It has also been held that the Governor of a State may receive the resignation of a member of the House of Representatives of the United States and cause a new election to be held to fill the vacancy without waiting to be notified of the vacancy by the House. (Mercer's Case, Cl. and Hall [U.S.], 44; Edwards' Case, id. 92; Baker, Annot. Const., p. 6.) No such controversies could arise under the Australian Constitution, under which it is obvious that the State Legislature would have no jurisdiction to choose, or the State Executive to appoint, a senator pro tempore until the actual receipt of a notification of the vacancy from the Federal authorities.
§ 92. “With the Advice of the Executive Council.”
These words were inserted to make it plain that the provisional appointment of senators, though vested in the Governor of the State, as head of the State Executive, is not one which he should make according to his own personal judgment and discretion, but that it is, in fact, a political appointment to be made by the State Executive, according to the principle of ministerial responsibility. Such an appointment, made on the advice of a State ministry, having the confidence of the State Parliament, would
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probably be one which the Houses of the State Parliament would make if they were in session at the time. It may be pointed out, however, that even if the words at the head of this note had not been inserted in the clause the result would have been precisely the same; no State Governor would venture to make such an important appointment without the advice of his responsible ministers. The words have been inserted in strict conformity with constitutional usage; as the section creates a new power and function the addition of the words “with the advice of the Executive Council” could not possibly involve an infringement of any established prerogative of the Crown. (See § 60, supra.)
§ 93. “The Next Election of Senators.”
These words refer to the next choice of senators, by the suffrages of the people of the State, on the occasion of a triennial election to fill places about to become vacant by effluxion of time. It is to be noted that there is no special section in the Constitution enacting, in so many words, that there shall be an election of senators, by popular vote, every three years; that follows as the necessary result of a combination of sections. Thus section 7 provides that senators shall be chosen for a term of six years. This is qualified by section 13, which provides for the classification of the senators for each State after every general election of senators, according to which half of them will retire every three years. By section 9 the Parliament of each State has exclusive power to make laws determining the times of elections of senators for the State, subject to the condition that elections to fill vacant places must be made in the year at the end of which the places are to become vacant. The expressions “choosing of senators,” “choosing the senators,” “election of senators,” “next election of senators,” which occur in Part II. of the Constitution, allude to the triennial elections to fill places about to become vacant, as well as to general elections consequent on a dissolution.
At “the next general election of members of the House of Representatives,” or at “the next election of senators for the State,” whichever first happens, if the senatorial term has not then expired, the provisional appointment of “a person to hold the place” is superseded by “the election of a successor” to hold the place from the date of his election until the expiration of the term. The election of a successor to a deceased or resigned senator, for the balance of the term, may thus possibly take place at a triennial election, at the same time when three senators of the class in which the vacancy has occurred are elected for the ensuing term which begins on 1st January of the following year. In such a case, it will of course be competent for the temporary holder of the place to be a candidate for the balance of the term and also a candidate for the new term which begins on the expiration of the current term.
§ 94. “Certified by the Governor.”
In the United States, the returns from the State authorities, declaring that a certain person has been elected senator, are only primà facie evidence of qualification. (Spaulding v. Mead, Cl. and Hall [U.S.] 157; Reed v. Cosden, id. 353.) The refusal of the State executive to grant a certificate does not prejudice the right of a person entitled to a seat. (Richards' Case, Cl. and Hall [U.S.] 95; Baker, Annot. Const. pp. 10, 11. See Note, § 74, supra.)
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Qualifications of senator.
16. The qualifications of a senator 95 shall be the same as those of a member of the House of Representatives.
UNITED STATES.—No person shall be a senator who shall not have attained the age of thirty years, and been nine years a citizen of the United States, and who shall not, when elected be an inhabitant of that State for which he shall be chosen.—Const. Art. I., sec. 3, sub-sec. 3.CANADA.—The qualifications of a Senator shall be as follows:—
- (1.) He shall be of the full age of thirty years.
- (2.) He shall be either a natural-born subject of the Queen, or a subject of the Queen naturalized by an Act of the Parliament of Great Britain, or of the Parliament of the United Kingdom of Great Britain and Ireland, or of the Legislature of one of the Provinces of Upper Canada, Lower Canada, Canada, Nova Scotia, or New Brunswick, before the Union, or of the Parliament of Canada after the Union:
- (3.) He shall be legally or equitably seised as of freehold, for his own use and benefit, of lands or tenements held in free and common socage, or seised or possessed for his own use and benefit of lands or tenements held in franc-alleu or in roture, within the Province for which he is appointed, of the value of four thousand dollars over and above all rents, dues, debts, charges, mortgages, and incumbrances due or payable out of or charged on or affecting the same:
- (4.) His real and personal property shall be together worth four thousand dollars over and above his debts and liabilities:
- (5.) He shall be resident in the Province for which he is appointed:
- (6.) In the case of Quebec, he shall have his real property qualification in the electoral division for which he is appointed, or shall be resident in that division.—B.N.A. Act, 1867, sec. 23.
HISTORICAL NOTE.—In the Commonwealth Bill of 1891 the qualifications prescribed for a Senator differed in three respects from those of a member of the House of Representatives:—(1.) He must have been of the age of 30 years—as against 21 years for the other House; (2.) He must have been resident in the Commonwealth for five years—as against three in the other House; (3.) He must, if not natural-born, have been naturalized for five years—as against three years for the other House. In Committee there was some debate as to the qualifications of residence and naturalization. (Conv. Deb, Syd. [1891] pp. 605-10.)
At the Adelaide session, 1897, the clause was introduced substantially in its present form. In Committee, Mr. Walker moved an amendment requiring that a Senator should be of the age of 25 years, but this was negatived. (Conv. Deb., Adel., p. 1191.)
At the Sydney session, a suggestion by the Legislative Council of Victoria, to add “with the exception that he must be of the full age of 30 years” was negatived by 29 votes to 4; and a suggestion by both Houses of the Parliament of Tasmania, requiring that Senators should be of the age of 25 years, was also negatived. (Conv. Deb., Syd. [1897] pp. 989-90.) The words “the same as” were added as a drafting amendment.
§ 95. “The Qualifications of a Senator.”
Until altered by the Parliament the qualifications of a senator, being the same as those of a member of the House of Representatives, will be as follows:—
- (i.) He must be of the full age of 21 years.
- (ii.) He must be an elector entitled to vote at elections of the House of Representatives, or qualified to become an elector.
- (iii.) He must have been for three years at least a resident within the limits of the Commonwealth as existing at the time when he is chosen.
- (iv.) He must be a subject of the Queen, either natural-born or for at least five years naturalized under a law of the United Kingdom, or of a colony which has become or becomes a State, or of the Commonwealth, or of a State.
In addition to these positive qualifications a senator must not be the subject of any of those disabilities enumerated in sections 44 and 45.
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The federal constitution having fixed the qualification of members of the Federal Legislature, no additional qualification can be added by the State Legislatures. (Barney v. McCreery, Cl. and H. [U.S.] 176; Turney v. Marshall, 1 Cong. El. Cas. [U.S.] 167; Trumbull's Case, id. 618.) The constitution of Illinois (1848) provided that the judges of the Supreme and Circuit Courts of the States should not be eligible to any other office of public trust or profit 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 v. Mead, Cl. and Hall, 157; Reed v. Cosden. 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 96 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 Governor-General 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
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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 53, 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 97, 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
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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 vacant99.
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.
§ 98. “A Senator may … resign.”
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
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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.
Quorum100.
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.)
§ 100. “Quorum.”
“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.
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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” were transferred from clause 7.
§ 101. “Each Senator shall have one Vote.”
“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.)
§ 102. “The President shall … be entitled to a Vote.”
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.