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COMMENTARIES
CONSTITUTION OF THE UNITED STATES;
WITB
A PRELIMINARY REVIEW or
THE CONSTITUTIONAL BISTORT OF THX COLONIES AND STATK8, BEFORE THE ADOPTION OF THE CON8TITUTI<»l.
By JOSEPH STORY, LL. D.,
DAHX PROFSffOR OF LAW IN BARTARD UHITXRSITr.
IN THREE VOLUMEa
' MagifiUatUnM igitar opos Mt } lino qnoniin pradaDlii ae dilifmtiiL •■•« eiTitti noo peU«t i quonunqiM deaeripCioM oomia ReipobUoi moderatio oontinatnr."
• • CfOBSo »B JLb*. lib. 3. cap. SL
"Ooveminttit ia a contriTaoee 6f^!iooiao wjiQ^ to'^troVk^ i«r JK^ufn waata."
VOLUMS?Il.-
BOSTON:
HILLIARD, GRAY, AND COMPANY. * CAMBRIDGE: BROWN, 8HATTUCK, ANDCO.
1833.
^*'^*'' \ ' Digitized by Google
THEKh.v/V YORK
PUBLIC LIBRARY
TILOEN'FoBBoATlifs
Entered aoeording to the act of Congren in the year one thousand eight hondred and thirty-threey
by JosBrH Stokt,
in the Clerk'i office of the District Court of the District of Masiachuietts.
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E. W. M E T Va iJ f" ^^V t?0 M P A N T,
Printers to the University.
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COMMENTARIES.
CHAPTER Vn.
DISTRIBUTION OF POWERS.
§ 517. In siffveymg the general structure of Ae constitution of the United States, we are naturally led to an examination of the fundamental principles^ cm which it is organized, for the purpose of carrying int^ eflfect the objects disclosed in the preamble. Every government must include within its scope, at least if it is to possess suitable stability and energy, the exercise of the three great powers, upon which all governments are supposed to rest, viz- the executive, the legi^tive, and the judicial powers. The manner and extent, in whidi these powers are to be exercised; and the fimc- tionariesy in whom they i&fe 'toJbe vested, constitute the great distinctions, which are known in the formS of government In absolirte^,^yfetii^ent» the whole executive, legislative, anil jjiidieiaJ.w>wers are, at least in their final result,^ exclusively confined to a single in- dividual ; and such a form of government is denominat- ed a despotism, as the whole sovereignty of the state is vested in him^ If the same powers are exclusively con- fided to a few persons, constituting a permanent sove- reign council, the government may be appropriately denommated an absolute of despotic Aristocracy. If
VOL. II. 1
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2 CONSTITUTION OF THE U. STATES. [BOOK III.
they are exercised by the people at large in their origi- nal sovereign assemblies, the government is a pure and absolute Democracy. But it is more common to find these powers divided, and separately exercised by in- dependent functionaries, the executive power by one department, the legislative by another, and the judi- cial by a third ; and in these cases the government is properly deemed a mixed one ; a mixed monarchy, if the executive power is hereditary in a smgle person ; a mixed aristocracy, if it is hereditary in several chief- tains or families ; and a mixed democracy or republic, if it is delegated by election, and is not hereditary. In mixed monarchies and aristocracies some of the func- tkmaries of the legislative and judicial powers are^ or at least may be, hereditary. But in a representative re- public all power emanates from the people, and is ex- ercised by their choice, and aever extends beyond the lives of tl^ individuals, to whom it is entrusted It may be entrusted for any shorter period ; and then it i etums to them again, to be again delegated by a new choice.
^518. In the convention, which framed the consti- tution of the United States, the first resolution adopted by that bod}^ :^^t fh^^ ^: ^ natiqnal government ought to be estabUs&^S^*c6nsQf^g']C^:a supreme legislative, judiciary, and e^^u4t^f^::;And from this limdamental proposition sprij^ i^^^ubset^u oi^anization of the whole govemttiemJDt lA&*:tJi]ited States. It is, then, our duty to examine and consumer the grounds^ on which this proposition rests, since it lies at the bottom of all our institutions, state, as weU as BatienaL
§ 519. In die establishment of a free goverameiit, the division of the three great powers of government,
& Joornals of Convent. 83» 83, 139, 207, 315.
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the executive, the legis]atiye» and the judicial^ different fuQctionaiies, has been a favorite policy with patriots and statesmen* It has by many beea deemed a maxim of vital importance, that these powen shoiikl ^ evw be kept separate and distinct. And according- ly we find it laid down widi emphatic care in the biUof rights of several of the state constitutions. In the con- stitution of Massachusetts, ibr example, it is dedareci^ that ^^in the government of this commonwealth, the legislative department shall never exercise die execu- tive and judicial powers, or either of them ; the execu- tive, shall never exercise the legislative and judicial powers, or either of them ; the judicial shall nev^ ex- ercise the legislative and Judicial powers, or either of them ; to the end it may be a government of kuo$ and not of men. " ^ Other declarations of a shnilar char- acter are to be foimd in other state constitutions.*
^ 620. Montesquieu seems to have been the first, who^ with a truly philosophical eye, surveyed the political truth involved in this maxim, in its fiiU extent^ and gave to it a paramount importance and value. As it is tacitly assumed, as a fundamental basis in the conatitutioii of the United States, in the distribution of its powers, it may be worth inquiry, what is the true nature, object,
I Bill of Rights; article 20.
* Tbe Federalist No. 47. — It has been remarked by Mr. J. Adanis, that the practicability or the duration of a repul))icy in which there is a gov- ernor, a senate, and a house of representatives, is doubted by Tacitus, though he admits the theory to be laudable. Cunctas nationes et orbes populus, aut priures, aut singuli regunt Delects ex his et constitata reipublice forma laudari facilius quam inveniri, vel si evenit, haud diutuma esse potest Tacit Ann. lib. 14. Cicero asserts, ** Statuo ease optime constitutam rempublicam, que ex tribus generibus illis, regali, Optimo, et populari, raodice confusa." Cic. Frag, de Repub.* The Brit- ish government perhaps answers more nearly to the form of government proposed by these writers, than what we in modem times should esteem strictly a republic,
* 1 AduDB*! Amer. Ooniiitatuni, Preftoe, 19.
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4 coir 8TITUTI0N OF THE U. STATES. [bOOK III.
and extent of the maxim, and of the reasoning, by which it is supported. The remarks of Montesquieu on this subject will be found in a professed commentary upon the constitution of England.^ " When/' says he, " the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be HO liberty, because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner. Again ; there is no liberty, if the judiciary power be not separated from the }egislative and executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary cpntrol ; for the judge would be the legislator. Were it joined to the executive power, the judge might behave with violence and oppression. There would be an end of every thing, were the same man, or the same body, whether of the nobles, or of the people, to exercise these three powers, that of enactmg laws, that of executing the public resolutions, and of trying the causes of individuals.*' '
§ 521. The same reasoning is adopted by Mr. Justice Blackstone, in his Commentaries.' ^^ In all tyrannical goyemments,'* says he, " the supreme magistracy, or jthe right both of making and of enforcing laws, is vest- ed in the same man, or one and the same body pf men ; .and wherever these two powers are united together,
1 MoDtesqaieu, B. 11, ch. 6.
s Mr. Turgot u^es the following strong longaage : ''The tyranny of .the people is the most cruel and intolerable, because it leaves the fewest reeources to the oppressed. A despot }s restrained by a sense of his own interest He is checked by remorse or public opinion. But the mujti- tade*ney^r calculate ; the multitude are never checked by renjorse, and will even aspribe to themselves the hi^ghest honour, when they deserve X)nly disgrace.^ Letter to Dr. Price.
' 1 filapk. Comm. 146,
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there can be no public liberty. The magistrate may enact tyrannical laws, and execute them in a tyrannical manner, since he is possessed, in quality of dispenser of justice, with all the power, which he, as legislator, thinks proper to give himselt But where the legislative and executive authority are in distinct hands, the former will take care not to entrust the latter with so large a power, as may tend to the subversion of its own independence, and therewith of the Uberty of the subject.'* Again ; " In this distinct and separate existence of the judicial power in a peculiar body of men, nominated, indeed, by, but not removeable at, the pleasure of the crown, consists one main preservative of the public liberty ; which cannot long subsist in any state, unless the ad- ministration of common justice be in some degree sep- arated from the legislative, and also the executive pow- er. Were it joined with the legislative, the life, Uberty, and property of the subject would be in the hands of arbitrary judges, whose decisions would then be regu- lated only by their opinions, and not by any fundamen* tal principles of law ; which, though legislators may depart from, yet judges are bound to observe. Were it joined with the executive, this unioii might soon be an overbalance for the legislative.*' *
1 1 Black. Conam. 269. See 1 Wilson's Law Lectures, 394, 399, 400, 407,408,409; Woodeson's Elem. of Jurisp. 53, 56.— The remarks of Dr. Paley, on the same subject, are full of his usual practical sense. ^The first maxim," says he, ^ of a free state is, that the laws be made by one set of men, and administered by another ; in other words, that the legislative and judicial characters be kept separate. When these offices are united in the same person or assembly, particular laws are made for particular cases, springing oftentimes from partial motives, and directed to private ends. Whilst they are kept separate, general laws are made by one body of men, without foreseeing whom they may affect ; and, when made, they must be applied by the other, let them af> feet whom they will.
^ For the sake of illustration let it be supposed, in this country, either
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^ 522. And the Federalist has, i^ith equal point and brevity, remarked, that ^ the accumulation of all pow- ers legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may be justly pronounced the very definition of tyranny.*' ^
that, parliaments beitig laid aside, the courts of Westminster Hall made their own laws ; or, that the two houses of parliament, with the king at their head, tried and decided causes at their bar. It b ertdent, in tiie first place, that the decisions of such u judicature would be so many laws ; and, in the second place, that, when the parties and the interests to be afiected by the laws were known, the inclinations of tlie law^mak* eis would inevitably attach on one aide or the other ; and thai wheie there were neither any fixed rules to regulate their determinatioDs, nor any superior power to control their proceedings, these inclinations would interfere with the integrity of public justice. The consequence of which must be, that the subjects of such a constitution would lire either with- out any constant laws, that is, without any known pre-established rules of adjudication whatever ; or under laws made for particular persons, and partaking of the contradictions and iniquity of the motiTes, to which they owed their origin.
These dangers, by the division of the legislative and judicial functions, are in this country effectually provided against Parliament knows not the individuals, upon whom its acts will operate ; it has no eases or par* ties before it ; no private deigns to serve : consequently, its resolutions will be suggested by the consideration of universal effects and tenden- cies, which always produce impartial, and commonly advantageous regu- lations. When laws are made, courts of justice, whatever be the dispo- sition of the judges, must abide by them ; for the legislative being necessarily the supreme power of the state, the judicial and every other power is accountable to that: and it cannot be doubted, that the persons, who possess the sovereign authority of government, will be tenacious of the laws, which they themselves prescribe, and sufficiently jealous of the assumption of dispensing and legislative power by any others.** Paley's Moral Philosophy, B. 6, ch. &
s The Federalist, No. 47; Id. No. 33. See also Gov. Randolph's Letter, 4 Elliot's Deb. 133 ; Woodeson's Elem. of Jurisp. 53, 56. — Mr. Jefferson, in his Notes on Virginia,* has expressed the same truth with peculiar fervour and force. Speaking of the constitution of government of his own state, he says, **all the powers of government, legislative executive, and judiciary, result to the legislative body. The concen- trating these in the same hands is precisely the definition of a despotic
• J«ffenMi*i NoUfl, p. 199.
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» ^ 523. The general reasoning, by which the maxim is supported, independently of the just weight of the authority m its support, seems entirely satis&ctory. What is of far more value than any mere reasoning, experience has demonstated it to be founded in a just view of the nature of government, and the safety and fiberty of the people. And it is no small commendation of die constitation of the United States, that instead of adopting anew theory, it has placed this practical truth, as i^e basis of its organization. It has placed the legis- lative, executive, and judicial powers in different hands. It has, as we shall presently see, made their term of office and their organization different ; and, for objects of permanent and paramount importance, has given to the judicial department a tenure of office during good be
|fo?enuDeat. It will be no allevkdoD, that these powers will bo exer- ctsed by a plurality of haods, aod not by a single one. One hundred and seventy-three despots would surely be as oppressive as one. Let thoae^ wbo doubt it, torn their eyes on the republic of Venice. Aa elec- tive deqx»tism is aot the government we fought for ; but one, which should not only be founded on free principles, but in which the powers of government should be so divided and balanced among several bodies of nagistracy, as tint no one could transcend their legal limits without be- ing effectually checked and restrained by the others " Yet Virginia lived voluntarOy under this constitution more than fifly years;* and, notwithstanding ^is solemn warning by her own favourito statesman, in tb« recent nevinon of her old constitution and the formation of a new one, she has not in this respect changed the po\¥ers of the government. The legislature still remains with all its great powers.
^o person, however, has examined this whole subject more profbcmdly, and with more illustrations from history and political philosophy, than Mr. John Adams, in his celebrated Defence of the American Constitu- tions. It deserves a thorough perusal by every statesman.
Milton was aai open advocate for concentrating all powers, legislative and executive, in one body; and his opinions, as well as those of some other men of a philosophical cast, are sufficiently wild and extravagant to put US upon our guard against too much reliance on mere authority .f
• 8m a PitUn'i Hbt. 298, 999, 900.
t Sea 1 Adaiiia*! Da?. o7 Amer. Conat. 365 to 371.
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8 CONSTITUTION OF THE U. STATES. [bOOK III^
haviour ; while it has limited each of the others to a term of years.
^ 524. But when we speak of a separation of the three great departments of government, and maintain, that that separation is indispensable to public liberty, we are to understand this maxim in a limited senses It is not meant to aflSrm, that they must be kept wholly * and entirely separate and distinct, and have no common link of connexion or dependence, the one upon the other, in the slightest degree; The true meaning is, that the whole power of one of these departments should not be exercised by the same hands, which possess the whole power of either of the other departments ; and that such exercise of the whole would subvert the prin* ciples of a free constitution. This has been shown vnth great clearness and accuracy by the authors of the Federalist.^ It was obviously the view taken of the subject by Montesquieu and Blackstone in their Com- mentaries ; for they were each speaking with approba* tion of a constitution of government, which embraced this division of powers in a general view ; but which, at the same time, established an occasional mixture of each with the others, and a mutual dependency of each upon the others. The slightest examination of the British constitution will at once convince us, that the legislative; executive, and judiciary departments are by no means totally distinct, and separate from each other. The executive magistrate forms an integral part of the legis- lative department ; for parliament consists of the king, lords, and commons ; and no law can be passed except by the assent of the king. Indeed, he possesses cer- tain prerogatives, such as, for instance, that of making foreign treaties, by which he can, to a limited extent,
1 The Federalist, No. 43.
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CH. VII.] BiSTRiBtmoir or powjgrs. 9
impart to them a legislative force and operation. He also possesses the sole appointing power to the judicial department, though the judges, when once appcnnted, are not subject to his will, or power of removal The house of lords also constitutes, not only a vital and in- dependent branch of the legislature, but is also a great constitutional council of the executive magistrate, and is, in the last resort, the highest appellate judicial tribu* naL Again; the other branch of the legislature, the commons, possess, in some sort, a portion of the execu- tive and judicial power, in exercising the power* of accusation by impeachment ; and in this case, as also in the trial of peers, the house of lords sits as a grand court of trials for public oflfences. The powers of the judi- ciary department are, indeed, more narrowly confined to theu' own proper sphere. Yet still the judges occasionally assist in the deliberations of the house of lords by giv* ing their opinions upon matters of law referred to them for advice ; and thus they may, in some sort, be deemed assessors to the lords in their legislative, as well as judi* cial capacity.^
^ 525. Mr. Justice Blackstone has illustrated the advantages of an occasional mixture of the legislative and executive functions in the English constitution in a strikmg manner. " It is highly necessary,*' says he, *'for preserving the balance of the constitution, that the executive power should be a branch, though not the whde of the legislative. The total union of them, we have seen, would be productive of tyranny. The total disjunction of them, for the present, would, in the end, produce the same effects by causmg that union, against wluch it seems to provide. The legislative would soon
1 The Federalist, No. 47; De Lolme on the English Constitution, B. 3,ch.a
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become tyrannical by making continual encroachments, and gradually assuming to itself the rights of the execu- tive power, &c. To hinder, therefore, any such encroachments, the king is, himself, a part of the parlia- ment ; and, as this is the reason of his being so, very properly, therefore, the share of legislation, which the constitution has placed in the crown, consists in the power of rejecting^ rather than resolving ; this being sufficient to answer the end proposed. For we may apply to the royal negative, in this instance, what Cice- ro ^observes of the negative of the Roman tribunes, that the crown has not any power of domg wrong ; but merely of preventing wrong from being done. The crown cannot begin of itself any alterations in the pres- ent established law ; but it may approve, or disapprove of the alterations suggested, and consented to by the two houses,*' ^
§ 526. Notwithstanding the memorable terms, in which this maxim of a division of powers is mcorporat- ed into the bill of rights of many of our state constitu- tions, the same mixture will be found pro\ided for, and indeed required in the same solemn instruments of gov- ernment. Thus, the governor of Massachusetts exer- cises a part of the legislative power, possessing a quali- fied negative upon all laws. The house of representa- tives is a grand mquest for accusation ; and the senate is a high court for the trial of impeachments. The gov- ernor, with the advice of the executive council, pos- sesses the power of appointment in general ; but the appointment of certain officers still belongs to the sen- ate and house of representatives. On the other hand, although the judicial department is distmct from the
1 1 Black. Comm. 154.
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executive and legislative in many respects, either branch may require the advice of the judges, upon solemn questions of law referred to them. The same general division, with the same occasional mixture, may be found m the constitutions of other states. And in some o( them the deviations from the stiict theory are quite re- markable. Thus, until the late revision, the constitu- tion of New- York constituted the governor, the chan- cellor, and the judges of the Supreme Court, or any two of them with the governor, a councU of revision, which possessed a qualified negative upon all laws pass- ed by the senate and house of representatives. And, now, the chancellor and the judges of the Supreme Court of that state constitute, with the senate, a court of impeachment, and for the correction of errors. In New-Jersey the governor is appointed by the legisla-^ ture, and is the chancellor and ordinary, or surrogate, a member of the Supreme Court of Appeals, and presi- dent, with a casting vote, of one of the branches of the legislature. In Virginia the great mass of the s^point- ing power is vested in the legislature. Indeed, there is not a single constitution of any state in the Union, which does not practically embrace some acknowledg- ment of the maxim, and at the same time some admix- ture'of powers constituting an exception to it.*
^ 627. It would not, perhaps, be thought unportant to have dwelt on this subject, if originally it had not been made a special objection to the constitution of the United States, that though it professed to be founded upon a division of the legislative, executive, and judi- cial departments, yet it was really chargeable with a departure from the doctrine by acciunulating m some
1 Tbe Federalist, No. 47, 4a
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12 CONSTITUTION OF THE U* STATES. [BOOK III.
instances the diflferent powers in the same hands, and by a mixture of them in others ; so, that it, in effect, subverted the maxim, and could not but be dangerous to the public liberty.^ The fact must be admitted, that such an occasional accumulation and mixture exists ; but the conclusion, that the system is therefore danger- ous to the pubhc liberty, is wholly inadmissible. If the objection were well founded, it would apply with equal, and in some cases with far greater force to most of our state constitutions; and thus the people would be proved their own worst enemies, by embodying in their own constitutions the means of overthrowmg their lib- erties.
^ 628. The authors of the Federalist thought this subject a matter of vast importance, and accordingly bestowed upon it a most elaborate commentary. At the present time the objection may not be felt, as pos- sessing much practical force, smce experience has de- monstrated the fallacy of the suggestions, on which it was founded. But, as the objection may be revived ; and as a perfect separation is occasionally found sup- ported by the opinions of ingenious minds, dazzled by theory, and extravagandy attached to the notion of simplicity m government, it may not be without use to recur to some of the reasoning, by which those illustri- ous statesmen, who formed the constitution, while they admitted the general truth of the maxim, endeavoured to prove, that a rigid adherence to it in all cases would be subversive of the eflSciency of the government, and result in the destruction of the public liberties. The proposition, which they undertook to maintain, was this, that ^^imless these departments be so far connected and blended, as to give to each a constitutional control over
1 1 Amer. Museum, 536, 549, 550 ; Id. 553 ; 3 Amer. Museum, 78, 79.
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CH. VII.] DISTRIBUTION OF POWERS. 13
the others, the degree of separation, which the maxim requires, as essential to a free government, can never m practice be duly maintained." *
§ 629. It is proper to premise, that it is agreed on all sides, that the powers belonging to one departme'ht ought not to be directly and completely administered by either of the other departments ; and, as a corollary, that, in reference to each other, neither of them ought to possess, direcdy or mdirectiy, an overruling influence in the administration of their respective powers.* Power, however, is of an encroaching nature, and it ought to be effectually restrained from passing the limits assign- ed to it Having separated the three great depart- ments by a broad line from each other, the difficult task remains to provide some practical means for the security of each against the meditated or occasional in- vasions of the others. Is it sufficient to declare on parchment in the constitution, that each shall remain, and neither shall usurp the functions of the other? No one, well read in history in general, or even in our own history durmg the period of the existence of our state constitutions, will place much reliance on such declara- tions. In the first place, men may and will differ, as to the nature and extent of the prohibition. Their wishes and their mterests, the prevalence of faction, an appa- rent necessity, or a predominant popularity, will give a strong bias to their judgments, and easily satisfy them with reasoning, which has but a plausible colouring. And it has been accordingly found, that the theory has bent under the occasional pressure, as well as under the occasional elasticity of public opinion, and as well in the states, as in the general government under the confed-
1 The Federalist, No. 48. « The Federalist, No. 48.
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eration. Usurpations of power have been notoriously assumed by particular departments in each ; and it has often happened, that these very usurpations have re- ceived popular favour and indulgence,^
•§ 630. In the next place, in order to preserve m full vigour the constitutional barrier between each depart- ment, when they are entirely separated, it is obviously mdispensable, that each should possess equally, and in the same degree, the means of self-protection. Now, m point of theory, this would be almost impracticable, if not impossible ; and in pomt of fact, it is well known, that the me^s of self-protection in the different depart- ments are immeasurably disproportionate. The judi- ciary is mcomparably the weakest of either ; and must for ever, in a considerable measure, be subjected to the legislative power. And the latter has, and must have, a controlling influence over the executive power, since it holds at its own command all the resources, by which a chief magistrate could make hunself formidable. It possesses the power over the purse of the nation, and the property of the people. It can grant, or withhold supplies ; it can levy, or withdraw taxes ; it can un- nerve the power of the sword by striking down the arm, which wields it.
§ 531. De Lolme has said, with great emphasis, '^It is, without doubt, absolutely necessary for securing the constitution of a state, to restrain the executive power ; but it is still more necessary to restrain the legislative. What the former can duly do by successive steps, (I mean subvert the laws,) and through a longer, or a shorter tradn of enterprises, the latter does in a moment As its bare will can give being to the laws, so its bare
1 The Federalist, No. 48. See also Tbe Federalist, No. 38, 42.
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CH. til] distribution of powers. 16
will can also annihilate them ; and if I may be permit- ted the expression, the legislative power can change the constitution, as God created the light In order, therefore, to insure stability to the constitution of a state, it is indispensably necessary to restrain the legis- lative authority. But, here, we must observe a diflfer- ence between the legislative and executive powers. The latter may be confined, and even is more easily so, when undivided. The legislative, on the contrary, in order to its being restrained, should absolutely be di- vided.''*
§ 532. The truth is, that the legislative power is the great and overruling power in every fi^e government It has been remarked with equal force and sagacity, that the legislative power is every where extending the sphere of its activity, and drawing all power into its impetuous vortex. The founders of our republics, wise as they were, under the influence and the dread of the royal prerogative, which was pressing upon them, never for a moment seem to have turned their eyes from the immediate danger to liberty from that source, combined, as it was, with an hereditary authority, and an heredi- tary peerage to support it They seem never to have recollected the danger from legislative usurpation, which, by ultimately assembling all power in the same hands, must lead to the same tyranny, as is threatened by ex*- ecutive usurpations. The representatives of the people will watch with jealousy every encroachment of the executive magistrate, for it trenches upon their own authority. But, who shall watch the encroachment of these representatives themselves? Will they be as jealous of the exercise of power by themselves, as by
1 De Ldme, B. 2, ch. a
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Others 1 In a representative republic, where the ex- ecutive magistracy is carefully limited, both in the ex- tent and duration of its power ; and where the legisla- tive power is exercised by an assembly, which is in- spired, by a supposed influence over the people, with an intrepid confidence in its own strength ; which is sufficiently numerous to feel all the passions, which ac- tuate the multitude ; yet not so numerous, as to be in- capable of pursuing the objects of its passions by means, which reason prescribes ; it is easy to see, that the tendency to the usurpation of power is, if not constant, at least probable ; and that it is against the enterprising ambition of this department, that the people may weU indulge all their jealousy, and exhaust all their precau- tions.^
§ 533, There are many reasons, which may be as- signed for the engrossing influence of the legislative department. In the first place, its constitutional pow- ers are more extensive, 'and less capable of being brought within precise limits, than those of either of the other departments. The bounds of the executive authority are easily marked out, and defined. It reaches few objects, and those are known. It cannot transcend them, without being brought in contact with the other departments. Laws may check and restrain, and bound its exercise. The same remarks apply with still greater force to the judiciary. The jurisdiction is, or may be, bounded to a few objects or persons; or, however general, and unlimited, its operations are necessarily confined to the mere administration of private and pub- lic justice. It cannot punish without law. It cannot create controversies to act upon. It can decide only
I The Federalist, No. 48, 49.
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upon rights and cases, as they are brought by others be- fore it. It can do nothmg for itself. It must do every thing for others. It must obey the laws ; and if it cor- ruptly administers them, it is subjected to the power of impeachment On the other hand, the legislative power, except in the few cases of constitutional prohibition, is unlimited. It is for ever varying its means and its ends. It governs the institutions, and laws, and public policy of the coimtry. It regulates all its vast mterests. It dis- poses of all its property. Look but at the exercise of two or three branches of its ordinary powers. It levies all taxes ; it directs and appropriates all supplies ; it gives the rules for the descent, distribution, and de- vises of all property held by individuals. It contrds the sources and the resources of wealth. It changes at its will the whole fabric of the laws. It moulds at its pleasure ahnost all the institutions, which give strength, and comfort, and dignity to society.
§ 534. In the next place, it is the direct, visible rep- resentative of the will of the people in all the changes of times and circumstances. It has the pride, as well as the power of numbers.* It is easUy moved and steadily moved by the strong impulses of popular feel- ing, and popular odium. It obeys, without reluctance, the wishes and the will of the majority for the time being. The path to public favour lies open by such obedience ; and it finds not only support, but impimity, in whatever measures the majority advises, even though they transcend the constitutional limits. It has no motive, therefore, to be jealous, or scrupulous in its own use of power ; and it finds its ambition stimulated,
1 ''.Numerous assembHes," says Mr. Turgot, ** are swayed in tbeir de-^ bates by Uie smallest motives."
VOL. II. 3
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and its arm strengthened by the countenance, and the courage of numbers. These views are not alone those of men, who look with apprehension upon the fate of republics ; but they are also freely admitted by some of the strongest advocates for popular rights, and the permanency of republican institutions.^ Our domestic history furnishes abundant examples to verify these suggestions.'
§ 635. If, then, the legislative power possesses a decided preponderance of influence over either or both of the others ; and if, in its own separate struc- ture, it furnishes no effectual security for the others, or for its own abstinence from usurpations, it will not be sufficient to rely upon a mere constitutional division of the powers to insure our liberties.*
§ 636. What remedy, then, can be proposed, ade- quate for the exigency? It has been suggested, that an appeal to the people, at stated times, might redress any inconveniences of this sort. But, if these be fre- quent, it will have a tendency to lessen that respect for, and confidence in the stability of our constitutions, which is so essential to their salutary influence. If it be true, that all governments rest on opmion, it is no less true, that the strength of opinion in each individ- ual, and its practical influence on his conduct, depend much upon the number, which he supposes to have entertained the same opinion.^ There is, too, no small danger in disturbing the public tranquillity by a fre-
1 See Mr. Jefferson's very striking remarks in his Notes on Virginia^ p. 195, 196, 197, 248. In December, 1776, and again, June, 1781, the legislature of Virginia, under a great pressure, were near passing an act appointing a dictator. lb. p. 207.
« The Federalist, No. 48, 49.
3 See Jefferson's Notes on Virginia, 195, 196, 197.
^ The Federalist, No. 48.
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queht recurrence to questions respecting the funda- mental principles of government.* Whoever has been present in any assembly, convened for such a purpose, must have perceived the great diversities of opinion upon the most vital questions ; and the extreme diffi- culty in bringing a majority to concur in the long- sighted wisdom of the soundest provisioAS* Tempo- rary feelings and excitements, popular prejudices, an ardent love of theory, an enthusiasdc temperament, mexperience, and ignorance, as well as preconceived opinions, operate wonderfully to blind the judgment, and seduce the understanding. It v^ill probably be foimd, in the history of most convendons of this sort, that the best and soundest parts of the constitution, those, which give it permanent value, as well as safe and steady operation, are precisely those, which have enjoyed the least of the public favour at the moment, or were least estimated by the framers. A lucky hit, or a strong figure, has not imfrequently overturned the best reasoned plan. Thus, Dr. Franklin's remark, that a legislature, vnth two branches, was a wagon, drawn by a horse before, and a horse behind, in oppo- site directions^ is understood to have been decisive in inducing Pennsylvania, m her original constitution, to invest all the legislative power in a single body.* In her present constitution, that error has been fortimately corrected. It is not believed, that the clause m the constitution of Vermont providing for a septennial council of celisors to mquire mto the infractions of her constitution during the last septenary, and to recom- mend suitable measures to the legislature, and to call^
1 The Federalist, No. 48, 50.
s 1 Adams's American ConstitatioDS, 105, 106.
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if they see fit, a conyention to amend the constitution, has been of any practical advantage in that state in securing it against legislative or other usurpations, beyond the security possessed by other states, having no such provision.*
§ 537. On the other hand, if an appeal to the people, or a convention, is to be called only at great distances of time, it will afford no redress for the most pressing mischiefs. And if the measures, which are supposed to be infractions of the constitution, enjoy popular favour, or combine extensive private interests, or have taken root in the habiteof the government, it is obvious, that the chances of any effectual redress will be essen- tially diminished.'
^ 538. But a more conclusive objection is, that the decisions upon all such appeals would not answer the purpose of miuntaining, or restoring the constituticmal equilibrium of the government The remarks of the Federalist, on this subject, are so striking, that they scarcely admit of abridgment without impairing their force : " We have seen, that the tendency of repub- ^lican governments is to aggrandizement of the legis- **lature at the expense of the other departments. The *< appeals to the people, therefore, would usually be **made by the executive and judiciary departments. •*But whether made by one or the other, would each ^side enjoy equal advantages on the trial? Let us **view their different situations. The members of the ** executive and judiciary departments are few in num- ^ber, and can be personally known to a small part
^ The hiitory of the former constitution of Pennsylvania, and the report of its council of censon, shows the little value of provisions of this sort in a strong light The Federalist, No. 48, 50.
8 The Federalist, No. 50.
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**only^of Ac people. The latter, by the mode of their ^appointment, as well as by the nature and perma- "nency of it, are too far removed fix)m the people to ^ share much in their professions. The former are ** generally objects of jealousy ; and their administra- ^ tion is aJways liable to be discoloured and rendered •^unpqpular. The members of the legislative depart- **ment, on the other hand, are numerous. They are ^distributed and dwell among the people at large. ^ Their connexions of blood, of friendship, and of ^acquamtance, embrace a great proportion of the most "influential part of the society. The nature of their ** public trust implies a personal weight with the peo- "ple, and that they are more immediately the confi- "dential guardians of their rights and liberties. With * these advantages it can hardly be supposed, that the ^adverse party would have an equal chance of a favour-* ^able issue. But the legislative party would not only •*be able to plead their case most successfully with the ** people; they would probably be constituted them- " selves the judges. The same mfluence, which had "gamed them an election into the legislature, would " gain them a seat in the convention. If this should " not be the case with all, it would probably be the "case with many, and pretty certamly widi those "leading characters, on wh6m every thing depends in "such bodies. The convention, in short, would be "composed chiefly of men, who had been, or who " actually were, or who expected to be, members of the "department, whose conduct was arraigned. They "would consequently be parties to the very ques- " tion to be decided by them.*' ^
1 The Federalist, No. 48. — The trath of this reasonine^, aa well aa
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22 CONSTITUTION Or THE U. STATES. [BOOK III.
§ 539. I^ then, occasional or periodical appeals to the people would not aflFord an eflFectual barrier against the inroads of the legislature upon the other depart- ments of the government, it is manifest, that resort must be had to some contrivances in the interior struc- ture of the government itself, which shall exert a con- stant check, and preserve the mutual relations of each with the other. Upon a thorough examination of the subject, it will be found, that this can be best accom- plished, if not solely accomplished, by an occasional mixture of the powers of each department with that of the others, while the separate existence, and constitu- tional independence of each are fully provided for. Each department should have a will of its own, and the members of each should have but a limited agency in the acts and appointments of the members of the others. Each should have its own independence secured beyond the power of being taken away by either, or both of the others. But at th« same tune the relations of each to the other should be so strong, that there should be a mutual interest to sustain and pro- tect each other. There should not only be constitu- tional means, but personal motives, to resist encroach- ments of one, or either of the others. Thus, ambidon would be made to counteract ambition ; the desire of power to check power ; and the pressure of interest to balance an opposing mterest.^
§ 540. There seems no adequate method of pro- ducing this result but by a partial participation of each
the utter inefficacy of any tnich periodical conveDtions, is abundantly established by the history of Pennsylvania under her former constitu- tion.*
1 The Federalist, No. 48, 50, 51.
* Tho Fedenliit, No. 60. 8M3PitkiB'iHift.305,306.
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in the powers of the other ; and by introducing into every operation of the government m all its branches^ a system of checks and balances, on which the safety of free institutions has ever been found essentially to depend. Thus, fot instance, a guard against rashness and violence in legislation has often been found, by dis- tributing the power among different branches, each having a negative check upon the other. A guard against the inroads of the legislative power upon the execu- tive has been in like manner applied, by giving the lat- ter a qualified negative upon the former ; and a guard against executive influence and patronage, or unlawful exercise of authority, by requiring the concurrence of a select council, or a branch of the legislature in ap- pointments to office, and in the discharge of other high functions, as well as by placing the command of the revenue in other hands. '
^ 541. The usual guard, applied for the security of the judicial department, has been m the tenure of office of the judges, who commonly are to hold office during good behaviour. But this is obviously an mad- equate provision, while the legislature is entrusted with a complete power over the salaries of the judges, and over the jurisdiction of the courts, so that they can alter, or diminish them at pleasure. Indeed, the judi- ciary is naturally, and almost necessarily (as has been already said) the weakest department* It can have no means of influence by patronage. Its powers can never be wielded for itself. It has no command over the purse or the sword of the nation. It can neither lay taxes, nor appropriate money, nor command armies, or appoint to offices. It is never brought into contact
1 Montesq. Spirit of Laws, B. II, ch. 6.
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with the people by the constant appeals and solicita- tions, and private mtercourse, which belong to all the other departments of government It is seen only in controversies, or in trials and punishments. Its rigid justice and impartiality give it no claims to favour, however they may to respect. It stands solitary and unsupported, except by that portion of public opinion, wUch is interested only in the strict administration of justice. It can rarely secure the sympathy, or zealous support, either of the executive, or the legislature. If they are not (as is not unfrequently the case) jealous of its prerogatives, the constant necessity of scrutiniz- ing the acts of each, upon the application of any private person, and the painful duty of pronouncing judgment, that these acts are a departure from the law or consti- • tution, can have no tendency to conciliate kindness, or nourish influence. It would seem, therefore, that some additional guards would, under such circumstances, be necessary to protect this department jrom the absolute dominion of the others. Yet rarely have any such guards been applied ; and every attempt to introduce them has been resisted with a pertinacity, which de- monstrates, how slow popular leaders are to introduce checks upon their own power ; and how slow the peo* pie are to believe, that the judiciary is the real bulwark of their liberties. In some of the states the judicial department is partially combined with some branches of the executive and legislative departments ; and it b believed, that in those cases, it has been foxmd no unimportant auxiliary in preserving a wholesome vig- our in the laws, as well as a wholesome administration of public justice.
^ 542. How far the constitution of the United States, in the actual separation of these departments, and the
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occasional mixtures of some of the powers of each, haa accomplished the objects of the great maxim, which we have been considering, will appear more fully, when a survey is taken of the particular powers confided to each department. But the true and only test must, after all, be experience, which corrects at- once the errors of theory, and fortifies and illustrates the eternal judgments of nature.
^ 543. It is not a little singular, however, (as has been already stated,) that one of the principal objec- tions urged against the constitution at the time of its adoption was this occasional mixture of powers,* upon which, if the preceding reasoning (drawn, as must be seen, from the ablest commentators) be well founded, it must depend for life and practical influence. It was said, that the several departments of power were dis- tributed, and blended in such a manner, as at once to destroy all symmetry and beauty of form ; and to expose some of the essential parts of the edifice to the danger of being crushed by the disproportionate weight of the other parts. The objection, as it presents itself in details, will be more accurately examined hereafter. But it may here be said, that the experience of more than forty years has demonstrated the entire safety o( this distribution, at least in the quarter, where the ob- jection was supposed to apply with most force. If any department of the government has an undue influ- ence, or absorbing power, it certainly has not been either the executive or judiciary.
1 The Federalist, No. 47 ; Id. 38. VOL. II. 4
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CHAPTER VIII.
THE LEGISLATURE.
§ 544. The first article of the constitution contains the structure, organization, and powers, of the legisla- ture of the Union. Each section of that article, and in- deed, of every other article, will require a careful analy- sis, and distinct examination. It is proposed, therefore, to bring each separately under review, in the present commentaries, and to unfold the reasons, on which each is founded, the objections, which have been urged agsdnst it, and the interpretation, so far as it can sat- isfactorily be ascertained, of the terms, in which each is expressed.
§ 545. The first section of the first article is in the fol- lowmg words : " All legislative powers herein granted "shall be vested inacongress of the United States, which ** shall consist of a senate and house of representatives.**
^ 546. This section involves, as a fundamental rule, the exercise of the legislative power by two distinct and independent branches. Under the confederation, the whole legislative power of the Union was vested in a single branch. Limited as was that power, the con- centration of it in a single body was deemed a prom- inent defect of the confederation. But if a single assem- bly could properly be deemed a fit receptacle of the slender and fettered authorities, confided to the federal government by that instrument, it could .scarcely be consistent with the principles of a good government to entrust it with the more enlarged^ai^d vigorous pow- ers delegated in the constitution.*
1 The Federalist, No. 22.
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§ 547. The utility of a subdivision of the legislatiye power into different branches, having a negative upon each other, is, perhaps, at the present time admitted by most persons of sound reflection.^ But it has not always found general approbation ; and is, even now, sometimes disputed by men of speculative ingenui* ty, and recluse habits. It has been justly observed^ that there is scarcely in the whole science of politics a more important maxim, and one, which bears with greater influence upon the practical operations of gov-' emment. It has been already stated, that Pennsylvania, in her first constitution, adopted the scheme of a sin^e body, as the depositary of Ae legislative power, under the influence, as is understood, of a mind of a very high philosophical character.^ Georgia, also, is said in her first constitution, (since changed,) to have confided the whole legislative power to a single body.' Vermont adopted the same course, giving, however, to the exec- utive council a power of revision, and of proposing amendments, to which she yet adheres.^ We are ajso told by a distinguished statesman of great accuracy and leammg, that at the first formation of our state consti- tutions, it was made a question of transcendant unport- ance, and divided the opinions of our most eminent men. Legislation, being merely the expression of the will of the community, was thought to be an operation so simple in its nature, that inexperienced reason could not readily perceive the necessity of committing it to
* Jefferson's Notes on Virginia, 194 ; 1 Kent's Comm. 208 ; DeLolme on the Constitution of England, B. 2, ch. 3 ; 3 Amer. Museum, 62, 66, Gov. Randolph's Letter.
« 1 Adams's Defence of American Constitution, 105,106 ; 2 PKk. Hist 294,305,316.
9 1 Kent's Comm. 206 ; 2 Pitk. Hist 315.
4 2 Pitk. Hist 314, 316; Const of Vermont, 1793, ch. 2, § 2, 16.
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two bodies of men, each having a decisive check upon the action of the other. All the arguments derived from the a&alogy between the movements of political bod- ies, and the operations of physical nature ; all the im- pulses of political parsimony ; all the prejudices against a second co-ordinate legislative assembly stimulated by the exemplification of it in the British parliament, were against a division of the legislative power.^
^ 548. It is also certain, that the noiion, that the legislative power ought to be confided to a single body, has been» at various times, adopted by men eminent fior thek* talents and virtues. MUton, Turgot, Franklin, are but a few among those, who have professedly en- tertained, and discussed the question.^ Sir James Mackintosh, in a woik of a controversial character, writ- ten with the zeal and eloquence of youth, advocated the doctrme of a single legislative body.' Perhaps his ma- turer life may have changed this early opinion. At all events, he can, in our day, count few foUowers. Against his opinbn, thus uttered, there is the sad example of France itself, 'whose first constitution, in 1791, was formed on this basis, and whose proceedings the genius of this great man was employed to vindicate. She stands a monument of the folly and mischiefs of the scheme ; and by her subsequent adoption of a division of the legislative power, she has secured to herself (as it is hoped) the permanent blessings of liberty.^ Against all visionary reasoning of this sort, Mr. Chancellor Kent
1 President J. Q. Adams's Oration, 4th July, 1831. See also Adams's Defence of AmeAcan Constitution, per iot ; 1 Kent's Coram. 208, 209, 210 ; 2 Pitk. Hist 233, 305 ; Paley's Moral Phil. B. 6, ch. 7.
9 1 Adams's Defence American Constitution, 3 ; Id. 105 ; Id. 366 ; 2 Pitk. Hist. 233.
3 Mackintosh on the French Revoludon, (1792) 4 edit p. 265 to 273.
4 1 Kent's Comm. 209, 210.
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has, in a few pages of pregnant sense and brevity, con* densed a decisive argument^ There is danger, however, that it may hereafter be revived ; and indeed it is occa- sionally hinted by gifted minds, as a problem yet wor- thy of a fuller trial*
^ 649. It may not, therefore, be uninstrucdve to re- view some of the principal arguments, by which this division is vindicated. The first and most important ground is, that it forms a great check upon undue, hasty, and oppressive legislation. Public bodies, like private persons, are occasionally under the dominion of strong passions and excitements ; impatient, irritable, and im- petuous. The habit of acting together produces a strong tendency to what, for want of a better word, may be called the corporation spirit, or what is so happily expressed in a foreign phrase, P esprit du corps. Certain popular leaders often acquire an extraordinary ascen- dency over the body, by their talents, their eloquence, their intrigues, or their cunning. Measures are often introduced in a huiry, and debated with little care, and examined with less caution. The very restlessness of many minds produces an utter impossibility of debat- ing with much deliberation, when a measure has a plau- sible aspect, and enjoys a momentary favour. Nor is it infrequent, especially in cases of this sort, to over- look well-founded objections to a measure, not only because the advocates of it have little desire to bring them in review, but because the opponents are often seduced into a credulous silence. A legislative body is not ordinarily apt to mistrust its own powers, and far
1 1 Kent's Coram. 208 to 210.
8 Mr. Tucker, the learned author of the Commentaries on Blackstone, seems to hold the doctrine, that a division of the legislative power la not useful or important See Tuck. Black. Como. App. 226, 227.
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less the temperate exercise of those powers. As it prescribes its own rules for its own deliberations, it easily relaxes them, whenever any pressure is made for an immediate decision. If it feels no check but its own will, it rarely has the firmness to insist upon holding a question long enough under its own view, to see and mark it in all its bearings and relations on society.^
§ 550. But it is not merely inconsiderate and rash legislation, which is to be guarded against, in the ordi- nary course of things. There is a strong propensity in public bodies to accumulate power in their own hands, to vnden the extent of their own influence, and to ab- sorb within their own circle the means, and the motives of patronage. If the whole legislative power is vested m a single body, there can be, practically, no restraint upon the fullest exercise of that power ; and of any usurpation, which it may seek to excuse or justify, either from necessity or a superior regard to the public good. It has been often said, that necessity is the plea of tyrants ; but it is equally true, that it is the plea of all public bodies invested with power, where no check ex- ists upon its exercise.* Mr. Hume has remarked with
* 1 1 Kent's Comm. 206, 209 ; 3 Amer. Museum, 66.
9 The facility, with which even great men satisfy themselves with ex- ceeding their constitutional powers, was never better exemplified, than by Mr. Jefferson's own practice and example, as stated in his own cor- respondence. In 1802, he entered into a treaty, by which Louisiana was to become a part of the Union, although (as we have seen) in his own opinion, it was unconstitutional.* And, in 1810, he contended for the right of the executive to purchase Flori^m if, in his own opiuion, the op- portunity would otherwfee be lost, notwithstanding it might involve a transgression of the law.f Such are the examples given of a state neces- sity, which is to supersede the constitution and laws. Such are the principles, which he contended, justified him in an arrest of persons not sanctioned bylaw.|
♦ 4 Jeffenon*s Gorresp. 1, 9, 3, 4. f W. 149, 150. % Id- 151-
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great sagacity, that men are generally more honest in their private, than in their public capacity ; and wiU go greater lengths to serve a party, than when their own private interest is alone concerned. Honour is a great check upon mankind. But where a considerable body of men act together, this check is in a great measure removed, since a man is sure to be approved of by hia own party, for what promotes the common interest ; and he soon learns to despise the clamours of adversa- ries.* This is by no means an opinion peculiar to Mr. Hume. It will be found lying at the foundation of the political reasonings of many of the greatest men in all ages, as the result of a close survey of the passions, and infirmaties, of the history, and experience of mankind.' With a view, therefore, to preserve the rights and lib- erties of the people against unjust encroachments, and to secure the equal benefits of a free constitution, it is of vital importance to interpose some check against the undue exercise of the legislative power, which in every government is the predominating, and almost irresist- ible power.*
§ 551. This subject is put in a very strong light by an eminent writer,^ whose mode pf reasoning can be
1 1 Hume's Essays, Essay 6 ; Id. Essay 16. — Mr. Jefferson has said, that " the functionaries of public power rarely strengthen in their dis- positions to abridge it" 4 Jefferson's Corresp. 277.
9 See 1 Adams's Defence of American Constitution, p. 121, Letter 26, Slc. ; Id. Letter, 24 ; Td. Letter 55 ; 1 Hume's Essays, Essay IG ; 1 WU- son's Lawl^ect 394 to 397 ; 3 Adamses Defence of American Constitution, Letter 6, p. 209, &c.
3 Mr. Hume's thoughts ore often striking and convincing ; but his mode of a perfect commonwealth * contains some of the most extrava- gant vagaries of the human mind, equalled only by Locke's Constitution for Carolina. These examples show the danger of relying implicitly upon the mere speculative opinions of the wisest men. «
^ Mr. John Adams.
* 1 Home's Emayt, Enay 16.
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best conveyed in his own words. " If,'* says he, ** we should extend our candour so far, as to own, that the majority of mankind are generally under the dominion of benevolence and good intentions ; yet it must be confessed, that a vast majority frequently transgress ; and what is more decidedly in point, not only a major- ity, but almost all, confine their benevolence to their families, relations, personal friends, parish, village, city, county, province ; and that very few indeed extend it impartially to the whole community. Now, grant but thip truth, and the question is decided. If a majority are capable of preferring their own private interests, or that of their families, counties, and party, to that of the nation collectively, some provision must be made in the constitution in favour of justice, to compel all to re- spect the common right, the public good, the universal law in preference to all private and partial considera- tions.'* ^ Again : " Of all possible forms of government, a sovereignty in one assembly, successively chosen by the people, is, perhaps, the best calculated to facilitate the gratification of self-love, and the pursuit of the pri- vate interests of a few individuals. A few emment, con- spicuous characters will be continued in their seats in the sovereign assembly from one election to another, whatever changes are made in the seats around them. By superior art, address, and opulence, by more splen- did birth, reputations, and connexions, they wifl be able to intrigue with the people, and their leaders out of doors, until they worm out most of their opposers, and introduce their friends. To this end they will bestow all offices, contracts, privileges in commerce, and other emoluments on the latter, and their connexions, and
1 3 Adams's Defence of American Constitution, Letter 6, p. 215, 216. See North American Review, Oct 1827, p. 263.
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CH. VIII.] THE LEGISLATURC. 33
throw every vexation and disappointment in the way of the former, until they establish such a system of hopes and fears throughout the whole state, as shaU enable them to carry a majority in every fresh election of the house. The judges will be appointed by them and their party, and of consequence will be obsequi- ous enough to their inclinations. The whole judicial authority, as well as the executive, will be employed, pprverted, and prostituted, to the purposes of elec- tioneering. No justice will be attainable ; nor will inno- cence or virtue be safe in the judicial courts, but for the friends of the prevailing leaders. Legal prosecutions will be instituted, and carried on against opposers to their vexation and ruin. And as they have the public purse at command, as well as the executive and judi- cial power, the public money will be expended in the same way. No favours will be attainable, but by those, who vrill court the ruUng demagogues of the house, by votmg for their friends, and mstruments ; and pensions, tod pecimiary rewards and gratifications, as well as honours, and offices of every kind, voted to friends and partisans, 5lc. &c. The press, that great barrier and bulwark of the rights of mankind, when it is protected by law, can no longer be free. If the authors, writers, and printers, vnll not accept of the hire, that will be offered them, they must submit to the rum, that will be denounced against them. The presses, with much secrecy and concealment, will be made the vehicles of calumny agamst the minority, and of panegyric, and empirical applauses of the leaders of the majority, and no remedy can possibly be obtained. In one word, the whole system of affiadrs, and every conceivable motive of hope or fear, will be employed to promote the private interests of a few, and their obsequious majority ; and
VOL. II. 5
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34 CONSTITUTION OF THE V. STATES. [BOOK IIU
there id no remedy but in arms. Accordingly we find in all the Italian republics, the mmority always were driv- en to arms in despair.^
^ 662. Anothfer learned writer has ventured on the bold declaration, that *^ a single legislature is calculated to unite in it all the pernicious qualities of the different extremes of bad government. It produces general weakness, inactivity, and confusion ; and these are in- termixed with sudden and violent fits of despotism, in- justice and cruelty." *
^ 663. Without conceding, that this language exhib- its an unexaggerated picture of the results of the legis- lative power being vested in a single assembly, there is enough in it to satisfy the minds of considerate men, that there is great danger in such an exclusive deposit of it.^ Some check ought to be provided, to maintain the real balance intended by the constitution ; and this check will be most effectually obtained by a co-ordinate branch of equal authority, and different organization, which shall have the same legislative power, and pos* sess an independent negative upon the doings of the other branch. The value of the check will, indeed, in a great measure depend upon this difference of organiza- tion. If the term of office, the qualifications, the mode of election, the persons and interests represented by each branch, are exactly the same, the check will be less powerful, and the guard less perfect, than if some, or all of these ingredients differ, so as to bring into play all the various interests and influences, which belong to a free, honest, and enlightened society.
1 3 Adtms'f Defence of American Conatitation, 284 to 386. 8 1 Wilson's Law Lect 393 to 405 ; The Federalist, Na 22. 3 See Sidney on Government, eh. 3, $ 45.
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CH. rmJ] THE LE«ISLATURX, 36
§ 554. The vahie, then, of a distrftution of the legis- lative power, between two branches, each possessing a negative upon the other, may be summed up under the following heads. First : It operates directly as a se- curity against hasty, rash, and dangerous legislation ; and allows errors and mistakes to be corrected, before they have produced any public mischiefs. It interposes de- lay betweaoi the introduction, and final adoption of a measure ; and thus furnishes time for reflection ; and for the successive deliberations of different bodies, ac- tuated by different motives, and organized upon difer- . ent principles.
^ 555. In the next place, it operates indirectly as a preventive to attempts to carry private, personal, or party objects, not connected with the common good The very circumstance, that there exists another body clothed with equal power, and jealous of its own rights, and independent d* the influ^ice of the leaders, who favour a particular measiu*e, by whom it must be scan- ned, and to whom it must be recommended upon its own merits, will have a silent tendency to discourage the effiMis to carry it by surprise, ot by mtrigue, or by corrupt party combinations. It is £su* less easy to de- ceive, or ccHTupt, or persuade two bodies into a course, subversive of the general good, than it is one ; especial- ly if the elements, of which they are composed, are es- sentially different
^ 556. In the next place, as legislation necessarily acts, or may act, upon the whole community, and in- volves interests of vast difficulty and complexity, and requires nice adjustments, and comprehensive enact- ments, it is of the greatest consequence to secure an independent review of it by different minds, acting under different, and sometimes opposite opinions and
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36 COWSTITUTIOir of the U. states, [book III.
feeliij^s ; so,*' that it may be as perfect, as human wis- dom can devise. An appellate jurisdiction, therefore, that acts, and is acted upon alternatively, in the exer- cise of an independent revisory authority, must have the means, and can scarely fail to possess the will, to give it a full and satisfactory review. Every one knows, notwithstanding all the guards interposed to secure due deliberation, how imperfect all human legislation is; how much it embraces of doubtful principle, and of still more doubtful utility ; how various, and yet how defec- tive, are its provisions to protect rights, and to redress wrongs. Whatever, therefore, naturally and necessa- . rily awakens doubt, solicits caution, attracts inquiry, or stimulates vigilance and industry, is of value to aid us against precipitancy in framing, or altering laws, as well as against yielding to the suggestions of indolence, the selfish projects of ambition, or the cunning devices of corrupt and hollow demagogues.^ For this purpose, no better expedient has, as yet, been foimd, than the crea- tion of an independent branch of censors to revise the legislative enactments of otho^and to alter, amend, or reject them at its pleasure,^aiiaHib, in return, its own are to pass through a like ordeaL
^ 557. In the next place, there can scarcely be any other adequate security against encroachments upon the constitutional rights and liberties of the people. Algernon Sidney has said with great force, that the legis- lative power is always arbitrary, and not to be trusted in the hands of any, who are not bound to obey the
* " Look," says an intelligrent writer, " into every society, analyze pub- lic measures, and get at the real conducters of thero,and it will be found, that few, very few, men in any government, and in tiie most democraiical perhaps the feweHj are, in fact, the persons, who give the lead and direc- tion to all, which is brought to pass." Thoughts upon the Political Sit- oation of the United States of America, printed at Worcester, 1788.
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CH. riuJ] THE LEGISLATURE. 37
laws they make.' But it is not less true, that it has a constant tendency to overies^ its proper boundaries, from passion, from ambition, from inadvertence, from the prevalence of faction, or from the overwhelming m- fluence of private interests.* Under such circumstan- ces, the only effectual barrier against oppression, acci- dental or intentional, is to separate its operations, to balance interest against interest, ambition against ambi- tion, the combinadons and spirit of dominion of one body against the like combinations and spirit of another. And it is obvious, that the more various the elements, which enter mto the actual composition of each body, the greater the security will be.' Mr. Justice Wilson has truly remarked, that, ^^ when a single legislature is determined to depart from the principles of the consti- tution, and its uncontrollable power may prompt the de- termination^ there is no constitutional authority to check its progress. It may proceed by long and hasty strides in violating the constitution, till nothing but a revolution can check its career. Far different will the case be, when the legislature consists of two branches. If one of them should depart, or attempt to depart, from the principles of the constitution, it will be drawn back by the other. The very apprehension of the event will prevent the departure, or the attempt*
1 Sidney's Disc, on Government, ch. 3, § 45.
8 The Federalist, No. 15. 3 Id. No. 62, 15.
4 1 Wilson's Law Lect. 396 ; The Federalist, No. 62, 63. — Mr. Jef- ferson was decidedly in favour of a division of the legislative power into two branches, as will be evident from an examination of his Notes on Virginia, (p. 194,) and his Correspondence at the period, when this sub- ject was much discussed.* De Lolme, in his work on the constitution of England, has (ch. 3, p. 214, &c.) some very striking remarks on the same subject, in the passage already cited. He has added : ** The re- sult of a division of the executive power is either a more or less speedy
• . -a Pitk. flirt, sea.
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38 CONSTITUTION OF THB U. 8TAT£S. [BOOK III.
^ 558. Such is an outline of the general reasoning, by which the system of a separation of the legislative power into two branches has been maintained. Expe- rience has shown, that if in all cases it has not been found a complete check to inconsiderate or imconstitu- tional legislation; yet, that it has, upon many occasions, been found sufficient for the purpose. There is not probably at this moment a single state in the Union, which would consent to unite the two branches into one assembly ; though there have not been wantmg at all times minds of a high order, which haiTe been led by enthusiasm, or a love of simplicity, or a devotion to theory, to vindicate such a union with arguments strik- ing and plausible, if not convincing.
§ 559. In the convention, which formed the consti- tution, upon the resolution moved, *' that the nati<mal legislature ought to consist of two branches,'' all the states present, except Pennsylvania, voted in the af- firmative.^ At a subsequent period, however, seven only, of eleven states present, voted in the affirma- tive ; three in the negative, and one was divided.* But, although in the convention this diversity of opinion ap- pears,* it seems probable, that ultimately, when a na- tional government was decided on, which should exert great controlling authwity over the states, all opposi- tion was withdrawn, as the existence of two branches furnished a greater security to the lesser states. It does not appear, that this division of the legislative
establishment of the right of the strongest, or a continued state of war ; that of a division of the legislative power is either tmth, or general tranquillity." See also Paley's Moral and Political Philosophy, B. 6, ch. 6,7.
1 Journal of the Convention, 85 ; 2 Pitk. Hist 233.
s Journal of the Convention, 140.
3 Yates's Minutes, 4 Elliot's Debates, 59, 75, 76 ; Id. 87, 88, 89 ; Id. 124, 125.
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CH. Till.] THE L£GISLATUR£« 39
power became with the people any subject of ardent discussion, or of real controversy. If it had been so, deep traces of it would have been found in the public debates, instead of a general silence. The Federalist touches the subject in but few places, and then princi- pally with reference to the articles of confederation, and the structure of the senate.^ In fact, the opponents of the constitution felt, that there was additional security given to the states, as such, by their representation in the senate ; and as the large states must have a com- manding influence upon the actual basis in the house, the lesser states could not but unite in a desire to main- tain their own equality in a co-ordinate branch.*
§ 560. Having considered the general reasoning, by which the division of the legislative power has been justified, it may be proper, in conclusion, to give a sum- mary of those grounds, which were deemed most im- portant, and which had most influence in settling the actual structure of the constitution of the United States. The question of course had reference altogether to the establishment of the senate ; for no one doubted the propriety of establishing a house of representatives, as a depositary of the legislative power, however much any might differ, as to the nature of its composition.
^661. In order to justify the existence of a senate with co-ordinate powers, it was said, first, that it was a misfortune incident to republican governments, though in a less degree than to other governments, that those, who administer it, may forget their obligations to then- constituents, and prove unfaithful to their important trust. In this point of view, a senate, as a second branch of the legislative assembly, distinct fi-om, and
1 The Federalist, No. 22, 62, 63.
9 The Federalist, No. 22 ; Id. No. 37, 38 ; Id. No. 39 ; Id. No. 62.
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40 CONSTITUTION OF THE U. STATES. [bOOK III.
dividing the power with a first, must be in all cases a salutary check on the government. It doubles the security to the people by requiring the concurrence of two distinct bodies, in schemes of usurpation or per- ^fidy ; whereas the ambition or corruption of one would otherwise be sufficient This precaution, it was adde^!, was founded on sujh clear principles, and so well un- derstood in the United States, that it was superfluous to enlarge on it. As the improbability of sinister com- binations would be in proportion to the dissimilarity in the genius of the two bodies, it must be politic to dis- tinguish them fi-om each other by every circumstance, which would consist with a due harmony in all proper measures, and with the genume principles of republican government*
§ 662. Secondly. The necessity of a senate was not less indicated by the propensity of all single and numerous assemblies to yield to the impulse of sud- den and violent passions, and to be seduced by fac- tious leaders into intemperate and pernicious resolu- tions. Examples of this sort might be cited without number, and fi*om proceedings in the United States, as well as fit)m the history of other nations. A body, which is to correct this infirmity, ought to be free from it, and consequently ought to be less numerous, and to possess a due degree of firmness, and a proper tenure of office.'
^ 663. Thirdly. Another defect to be supplied by a senate lay in the want of a due acquaintance with the objects and principles of legislation. A good govern- ment implies two things ; fidelity to the objects of the
1 The PederalUt, No. 69.
9 The Federalist, No. 62 ; Paley's Moral and Political Philosophy, B. 6, cL 6, 7 ; 2 Wilson's Law Leci 144 to 148.
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government ; secondly, a knowledge of the means, by which those objects can be best attained. It was sug- gested, that in the American goveraments too little at- tention had been paid to the last ; and that the estab- lishment of a senate upon a proper basis would greatly increase the chances of fidelity, and of wise, and safe legislation. What (it was asked) are all the repealing, explaining, and amending laws, which fill and disgrace our voluminous codes, but so many monuments of de- ficient wisdom; so many impeachments exhibited by each succeeding, against each preceding session ; 30 many admonitions to the people of the value of those aids, which may be expected firom a well-constituted senate? ^
§ 664. Fourthly. Such a body would prevent too great a mutability in the public councils, arising from a Tapid succession of new members ; for from a change of men there must proceed a change of opinions, and from a change of opinions, a change of measures. Such in- stability in legislation has a tendency to diminish respect and confidence abroad, as well as safety and prosperity at home. It has a tendency to damp the ardour of in- dustxyloid enterprise; to diminish the security of prop- erty ; ajid to impair the reverence and attachment, which are indispensable to the permanence of every political institution.*
§ 666. Fifthly. Another ground, illustratmg the util- ity of a senate, was suggested to be the keeping alive of a due sense of national character. In respect to foreign nations, this was of vital importance ; for m our inter- course with them, if a scrupulous and uniform adher- ence to just principles was not observed, it must sub-
1 The Federalist, No. 62. « Id. No. &l
VOL. II. 6
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43 CONSTITUTiOlf OF THB U. «TATBS. [bOOK in*
ject us to many embarrassments and collisions. It is difficult to impress upon a single body, which is nume- rous and changeable, a deep sense of the value of na- tional character. A small portion of the praise, or blame of any particular measure can fall to the lot of any particular person ; and the period of office is so short, that litde responsibility is felt, and little pride is indulged, as to the course of the government^
^ 566. Sixthly. It was urged, that paradoxical as it might seem, the want in some important cases of a due responsibility in the government soises from that very frequency of elections, which in other cases pro- duces such responsibility. In order to be reasonable, responsibility must be limited to objects withm the power of the responsible party ; and in order to be effectual, it must relate to operations of that power, of which a ready and proper judgment can be formed by the constituents. Some measures have singly an im- mediate and sensible operation ; others agsdn depend on a succession of weU connected schemes, and have a gradual, and perhaps unobserved operation. If, there^ fore, there be but one assembly, chosen for a short peri- od, it will be difficult to k^p up the train of prefer measures, or to preserve the proper connexion between the past and the future. And the more numerous the body, and the more changeable its component parts, the more difficult it wiU be to preserve the perscmal responsibility, as well as the uniform action, of the suc- cessive memb^^ to the great objects of the public wdfare.*
^ 667. Lastiy. A senate duly constituted would not only operate, as a salutary check upon the representa-
1 The Federalist, No. 63. .a M. No. 68.
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OH. Tfn.] THS LKmisukTxrwm. 48
iiyes^ but occasbiiallj iipoB the peqple themselves, a^painst their own temporary delosions and errors. The cod, deliberate sense of the commimity ought, in aQ governments, and aetuattjr will, m all free gorem* ments^ ultimately prevail over the views of their rulers. Bat there are particular moments in public affairs, when the people, stimulated by some irregular passion, w some illicit advantage, or misled by the artful misrepre- sentations of mterested men, may call jbr measures, whidi they themselves will afterwards be the most ready to lament and condemn. In these critical mo* ments, how salutary will be the interference of a body of respectaWe citizens, chosen without reference to the exciting cause, to check the misguided career of public opinion, and to suspend the blow, untS reason, justice, find truth can regain their authority over the public mind.^ ' It was thought to add great weight to all these considerations, that history has informed us of no long- lived republic, which bad not a senate. Sparta, Rome, Carthage were, in fact, the only states, to whom that dbaraeter can be applied.'
& The Federalist, No. 69.
9 The Federalist, No. 63. — There areeome very striking remarks on this subject in the reasoning of the convention, in the county of Essex, called to consider the constitution proposed for Massachusetts, in 1778,* and which was finally rejected. ** The legislative power," said that body, "must not be trusted with one assembly. A single assembly is frequently influenced by the vices, follies, passions, and prejudices of an mdividual. It is liable to be avaricious, and to exempt itself from the burthens it lays on its constituents. It is subject to ambition ; and after a series of years will be prompted to vote itself perpetual. The long paHinmeni in Eisgland voted itself perpetual, and thereby for a time de- stroyed the political liberty of the «mbject Holland was governed by
• It is coDUiDod in a pamphlet, entitled ** The Ewoz Result,** and was printed io 1778. I quote the passage ftom Blr. BavageVi ralnable Exposition of the Constitution of MassacbusetU, printed in the New-Bngland Mafazine for March, 1838, p. 9. Sise abo on this sobject Palej's H«ra]PhUoioph7,B.6,eb.7,p.3e8 } The Federalis^ No. 88,63.
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^ 668. It will be observed, that some parts of the foregoing reasoning apply to the fundamental impor- tance of an actual division of the legislative power ; and other parts to the true principles, upon which that di- vision should be subsequently organized, in order to give full effect to the constitutional check. Some parts go to show the value of a senate ; and others, what should be its structure, in order to ensure wisdom, ex- perience, fidelity, and dignity in its members. All of it, however, instructs us, that, in order to give it fair play and influence, as a co-ordinate branch of govern- ment, it ought to be less numerous, more select, and more durable, than the other branch ; and be chosen in a manner, which should combine, and represent differ- ent interests with a varied force.* How far these ob- jects are attained by the constitution will be better seen, when the details belongmg to each department are succesifiively examined.
^ 569. This discussion may be closed by the remark, that in the Roman republic the legislative authority, in the last resort, resided for ages in two distinct political bodies, not as branches of the same legislature, but as distinct and independent legislatures, in each of which an opposite interest prevailed. In one, the patrician ;
one representative assembly, annually elected. They afterwards voted themselves from annual to septennial ; then for life ; and finally exerted the power of filling up all vacancies, without application to their constit- uents. The government of HoUand is now a tyranny, thottgh a rtpuhltc The result of a single assembly will be hasty and indigested ; and their judgments frequently absurd and inconsistent There must be a second body to revise with coolness, and wisdom, and to control with firmness, independent upon the first, either for their creation, or existence. Yet the first must retain a right to a similar revision and control over the second."
1 The Federalist, No. 63, 63.
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CH. Tin.] THE LBOISLATITBS. 46
in the other, the plebeian predominated And yet, during the co-existence of these two legislatures, the Roman republic attained to the supposed pmnade of human greatness.^
1 The Fedenlift, No. 34.
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CHAt>TEH IX.
HOUSE OF REPRESENTATIYBH.
§ 670. The second section of the first article con- tains the structure and organization of, the house of representatives. The first clause is as foUows :
"The house of representatives shall be composed of " members chosen every second year by the people of " the several states ; and the electors in each state shall " have the qualifications requisite for electors of the " most numerous branch of the state legislature.**
^571. As soon as it was settled, that the legislative power should be divided into two separate and distinct branches, a very important consideration arose in regard to the organization of those branches respectively. It is obvious, that the organization of each is susceptible of very great diversities and modifications, in respect to the principles of representation ; the qualification of the electors, and the elected ; the term of service of the members ; the ratio of representation ; and the number, of which the body should be composed.
^ 572. First; the principle of representation. The American people had long been in the enjoyment of the privilege of electing, at least, one branch of the legislature ; and, in some of the colonies, of electing all the branches composing the legislature. A house of representatives, under various denominations, such as a house of delegates, a house of commons, or, simply, a house of representatives, emanating directly fix)m, and responsible to, the people, and possessing a distinct and independent legislative authority, was familiar to all the colonies, and was held by them in the highest rever-
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CH. IX.] HOiarsfi of RfiPRESsnrATiTss. 47
ence and respect They justly thought, that as the goTermnent in general should always have a common interest with the people, and be admin stered for their good ; so it was essential to their rights'and liberties, that the most numerous branch should have an immedi- ate dependence iq>on, and sympathy with, the people.^ Th&te was no novelty in this view. It was not the mere result of a state of cdonial dependence, in which their jealousy was awake to all the natural encroach- ments of power in a foreign reahn. They had drawn their opinions and principles firom the practice of the parent country. They knew the inestimable value oi die house of commons, as a component branch of the British parliament ; and they believed, that it had at all times furnished the best security against the oppres- sions of the crown, and the aristocracy. While the power of taxation, (rf revenue, and of supplies, remamed in the hands of a popular branch, it was difficult for usurpation to exist for any length of time without check ; and prerogative must yield to that necessity, which controtied at once the sword and the purse. No rea- soning, th^^efore, was necessary to satisfy the American people of die advantages of a house of representatives, vdiich should emanate directiy from themselves; which should guard their interests, support their rights, ex- press theu* opmions, make known their wants, redress their grievances, and introduce a pervading popular influ- ence throughout all the operations of the government. Experience, as weU as theory, had settled it in their minds, as a fundamental principle of a free government, and especis3iy of a republican government, that no laws
1 The Federalist, No. 52; 1 Black. Comm« 158, 159; Paley's Moral « Philosophy, B. 6, ch. 7 ; 1 Wilson's Law Lect 429 to 433 ; 2 Wilson's Law Lect 122 to 132. »
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48 CONSTITUTION OF THE 0. STATES. [bOOK III.
ought to be passed without the co-operation and con- sent of the representatives of the people; and that these representatives should be chosen by themselves without the intervention of any other functionaries to intercept, or vary their responsibility. ^
§473. The principle, however, had been hitherto applied to the political organization of the state legis- latures only ; and its application to that of the fed- eral government was not without some diversity of opinion. This diversity had not its origin in any doubt of the correctness of the principle itself when applied to simple republics ; but, the propriety of applying it to cases of confederated republics was affected by other independent considerations. Those, who might wish to retain a very large portion of state sovereignty, in its representative character, in the coimcils of the Union, would naturally desire to have the house of representa- tives elected by the state in its political character, as under the old confederation. Those, on the other hand, who wished to impart to the government a national character, would as naturally desire an independent election by the people themselves in their primary meet- ings. Probably these circumstances had some opera- tion upon the votes given on the question in the con- vention itself. For it appears, that upon the origmal proposition in the convention, " That the members of the first branch of the national legislature ought to be elected by the people of the several states, six states voted for it, two against it, and two were divided.* And upon a subsequent motion to strike out the word ^ peo- ple,'* and insert m its place the word " legislatures,**
I 1 Tacker's Black. Comm. App. 2B.
s Journal of Convention, May 31, 1787^ p. 85, 86, 135 ; 4 EUiot'a De- batea, (Yatea'a Minutea,) 58.
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CH. IX.] HOUSE OF REPRESENTATIVES. 49
three states voted in the affirmative and eight in the negative.^ At a subsequent period a motion, that the representatives should be appointed in such manner as the legislature of each state should direct, was negativ- ed^ six states voting in the affirmative, three, in the negative, and one being divided ; and the final vote in favour of an election by the people was decided by the vote of nine states in the affirmative, one voting in the negative, and one being divided.* The result was not therefore obtained without much discussion and argu- ment ; though at last an entbe imanimity prevailed.* It is satisfactory to know, that a fundamentsJ principle of public liberty has been thus secured to ourselves and our posterity, which will for ever indissolubly connect the interests of the people with the mterests of the Union.* Under the confederation, though the delegates to congress might have been elected by the people, they were, in fact, in all the states except two, elected by the state legislature.*
1 Joanialof Convention, May 31, 1787, p. 103, J04 ; 4 Elliot'a De- bates, (1 Yates's Minutes,) 62, 63, 90, 91.
9 Journal of Convention, June 21, 1787, p. 140, 141, 215 ; 4 Elliot's Debates, 90, 91, (Yates's Minutes.)
3 Journal of Convention, p. il6, 233.
4 Mr. fiurke, in his Reflections on the French Revolution, has treated the subject of the mischiefs of an indirect choice only by the people of their representatives in a masterly manner. He has demonstrated, that such a system must remove all real responsibility to the people from the representative. Mr. Jefierson has expressed his approbation of the prin- ciple of a direct choice in a very qualified manner. He says, " I ap- prove of the greater house being chosen by the people directly. For, though I think a house so chosen will be very inferior to the present congress, toiU be very ill quaiiJUd to legislate for the Union, for foreign nations, &.c. ; yet this evil does not weigh against the good of preserv- ing inviolate the fundamental principle, that the people ought not to be taxed but by representatives chosen immediately by themselves." 2 Jefferson's Corresp. p. 273.
* The Federalist, No. 40. VOL. II. 7
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60 coNsnruTioir of the v. states, [book hi.
§ 574 We accordingly find, that in the section under consideration, the house of representatives is required to be composed of representatives chosen by the people of the several states. The choice, too, is to be made immediately by them ; so that the power is direct ; the influence (Krect ; and the responsibility direct If any intermediate agency had been adopted, such as a choice through an electoral college, or by official personages, or by select and specially qualified functionaries pro hoc mcBj it is obvious, that the dependence d* the repre- sentative upon the people, and the responsibility to them, would have been far less felt, and £Bir more ob- structed. Influence would have naturally grown up with patronage ; and here, as in many other case^ the legal maxim would have applied, causa proxma^ non remotOj spectaiwr. The select body woidd have been at once the patrons and the guides of the represen- tative; and the people themselves have beonne the instruments of subverting their own rights and power.
§ 676. The indirect advantages from this immediate agency of the people in the choice of their representa- tives are of incalculable benefit, and deserve a brief mention in this place, because they furnish us with matter for most serious reflection, in regard to the actual operations and influences of republican gov- ernments. : In the first place, the right confers an additional sense of personal dignity and duty upon the mass of the people. It gives a strong direc- tion to the education, studies, and pursuits of the whole community. It enlarges the sphere of action, and con- tributes, in a high degree, to the formation (rf the public manners, and national character. It procures to the common people courtesy and sympathy from their su- periors, and difiuses a common confidence, as well as a
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coDimoii interest) through aU the ranks of society. It awakens a desire to examine, and sift, and debate all pi&lic proceedings, and thus nourishes a lively curiosity to acquire knowledge, and, at the same time, furnishes the means of gratifying it The proceedings and de- bates of the legislature ; the conduct of publk: officers from the highest to the lowest ; the character and poo- duct of the executive and his ministers ; the struggles, mtriguesy and conduct of difierent parties ; and the dis- cussion of the great public measures and questions, which s^tate and divide the community, are not only freely canvassed, and thus improve and elevate con- versation ; but they gradually furnish the mmd with safe and solid materials for judgment upon all public affairs ; and check that impetuosity and rashness, to which sudden impulses might otherwise lead the peo- ple, when they are artfully misguided by selfish dema- gogues, and plausible schemes of change*^
^ 576. But this fundamental pvincifde of an immedi- ate choice by the people, however important, would alone be insufficient for the pubUc security, if the right of choice had not many auxiliary guards and accom- paniments. It was indispensable, secondly, to provide for the qualifications of the electors. It is obvious, that even when the principle is established, that the popular branch of the legislature shall emanate du*ecdy from the people, there still remains a very serious question, by whom and in what manner the choice shall be made. It is a question vital to the system, and in a fraciicdl sense decisive, as to the durability and efficiency of the powers of government. Here, there is much room for doubt, and ingenious speculation, and theoretical inqui-
1 1 have borrowed these views from Dc Palejr, and fear only, that by abridging them I have lessened their force. Paley's Moral Philosophy, 6. 6^ ch. 6. See abo 2 Wilson's Law Lect 124 to 12a
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ry ; upon which diflFerent minds may arrive, and indeed have arrived, at very different results. To whom ought the right of suffrage, in a free government, to be con- fided 1 Or, in other words, who ought to be permitted to vote in the choice of the representatives of the peo- ple 1 Ought the right of suffrage to be absolutely universal ? Ought it to be qualified and restrained 1 Ought it to belong to many, or few ? If there ought to be restraints and qualifications, what are the true bound- aries and limits of such restraints and qualifications ?
^ 677. These questions are sufficiently perplexing and disquieting in theory ; and in the practice of differ- ent states, and even of free states, ancient as weU as modem, they have assumed almost infinite varieties of form and illustiration. Perhaps they do not admit of any general, much less of any universal answer, so as to fiunish an unexceptionable and certsdn rule for.aU ages and all nations. The manners, habits, institutions, characters, and pursuits of different nations ; the local position of the territory, in regard to other nations ; the actual organizations and classes of society ; the influ- ences of peculiar religious, civil, or political institutions ; the dangers, as well as the difficulties, of the times ; the degrees of knowledge or ignorance pervading the mass of society ; the national temperament, and even the cli- mate and products of the soil ; the cold and thoughtful gravity of the north; and the warm and mercurial excitability of tropical or southern regions ; all these may, and probably will, introduce modifications of prin- ciple, as well as of opinion, m regard to the right of suffrage, which it is not easy either to justify or to over- throw.*
A 1 Black. Comm. 171, 172. — Mr. Justice Blackstone* has remarked,
*lBlMk.Comm. 171.
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^ 578. The most strenuous advocate for universal suffrage has never yet contended, that the right should be absolutely universal No one has ever been suffi- ciently visionary to hold, that all persons, of every age, degree, and character, should be entitled to vote in all elections of all public officers. Idiots, infants, minors, and persons insane or utterly imbecile, have been, with- out scruple, denied the right, as not having the sound judgment and discretion fit for its exercise. In many countries, persons guilty of crimes have also been denied the right, as a personal punishment, or as a security to society. In most countries, females, whether married or smgle, have been purposely excluded fi'om voting, as interfering with sound policy, and the harmony of social life. In the few cases, in which they have been per- mitted to vote, experience has not justified the coucla- sion, that it has been attended with any correspondent advantages, either to the public, or to themselves. And yet it would be extremely difficult, upon any mere theo- retical reasoning, to establish any satisfactory principle,
" That the true reason of requiring any qualification with regard to proper- ty in voters is to exclude such persons, as are in so mean a situation, that they are esteemed to have no will of their own. If these persons had votes, they would be tempted to dispose of them under some undue influence or other. This would give a great, an artful, or a wealthy man a larger share in elections, than is consistent with general liberty. If it were probable, that every roan would give his vote freely and without influence of any kind, then, upon the true theory and genuine principles of liberty, every member of the community, however poor, should have a vote in electing those delegates, to whose charge is committed the disposal of his proper- ty, his liberty, and his life. But since that can hardly be expected in persons of indigent fortunes, or such as are under the immediate dominion of others, all popular states have been obliged to establish certain quali- fications, whereby some, who are suspected to have no will of their own, are excluded from voting, in order to set other individuals, whose will may be supposed independent, more thoroughly upon a level with each other.'' Similar reasoning might be employed to j ustify other exclusions, besides those founded upon a want of property.
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upon which the one half of every society has thus been systematically excluded by the other half from all right of participating in government, which would not, at the same time, apply to and justify many other exclusions. If it be said, that all men have a natural, equal, and unalienable right to vote, because they are all bom free and equal ; that they all have common rights and inter- ests entided to protection, and therefore have an equal right to decide, either personally or by their chosen representatives, upon the laws and regulations, which shall control, measure, and sustain those rights and interests ; that they cannot be compelled to surrender, except by their free consent, what, by the bounty and order of Providence, belongs to them in common with all their race ; — what is there in these considerations, which is not equally applicable to females, as free, intel- ligent, moral, responsible beings, entided to equal rights, and mterests, and protection, and havmg a vital stake in all the regulations and laws ofsociety ? And if an excep- tion, from the nature of the case, could be felt in regard to persons, who are idiots, infants, and insane ; how can this apply to persons, who are of more mature growth, and are yet deemed mmors by the municipal law? Who has an original right to fix the time and period of pupilage, or minority 1 Whence was derived the right of the ancient Greeks and Romans to declare, that women should be deemed never to be of age, but should be subject to perpetual guardianship? Upon what principle of natural law did the Romans, in after times, fix the majority of females, as well as of males, at twenty- five years ? * Who has a right to say, that in England it shall, for some purposes, be at fourteen, for others, at seventeen, and for all, at twenty-one years ; while, in
1 1 Black. Comm. 463^ 464.
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France, a person arrives, for all purposes, at majority, only at thirty years, in Naples at eighteen, and in Hol- land at twenty-five ? * Who shall say, that one man is not as well qualified; as €MCQter, at eighteen years of ag^e, as another is at twenty-five, or a third at forty ; and far better, than most men are at eighty ? And if any socie- ty is invested with authority to settle the matter of the age and sex of voters, according to its own view of its policy, or convenience, or justice, who shall say, that it has not equal authority, for like reasons, to settle any other matter regarding the rights, qualifications, and duties of voters ? *
§ 679, The truth seems to be, that the right of voting, like many other rights, is one, which, wheth- er it has a fixed foundation in natural law or not, has always been treated in the practice of nations, as a strictly civil right, derived from, and regulated by each society, according to its own circumstances and inter- ests.^ It is difficult, even in the abstract, to conceive how it could have otherwise been treated. The terms and conditions, upon which any society is formed and organized, must^ essentially depend upon the wUI of those, who are associated ; or at least of those, who constitute a majority, actually controlling the rest. Originally, no man could have any right but to act for himself; and the power to choose a chief magistrate or other officer to exercise dominion or authority over others, as well as himself, could arise only upon a joint consent of the others to such appointment ; and their consent might be qualified exactly according to their
1 1 Black ComiiL 463, 464. » Id. 171.
3 1 Black. Comtn. 171; 2 Wilson's Law Lect 130; Montesquieu's Spirit of Laws, B. 11. ch. 6 ; 1 Tucker's Black. Comm. App. 52, 53.
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own interests, or power, or policy. The choice of representatives to act in a legislative capacity is not only a refinement of much later stages of actual asso- ciation and civilization, but could scarcely occur, until the society had assumed to itself the right to introduce such institutions, and to confer such privileges, as it deemed conducive to the public good, and to prohibit the existence of any other. In point of fact, it is well known, that representative legislative bodies, at least in the form now used, are the peculiar invention of modern times, and were unknown to antiquity. If, then, every well organized society has the right to consult for the common good of the whole, and if, upon the principles of natural law, this right is conceded by ' the very union of society, it seems difficult to assign any limit to this right, which is compatible with the due attainment of the end proposed. If, therefore, any society shall deem the common good and interests of the whole society best promoted under the partic- ular circumstances, in which it is placed, by a restric- tion of the right of suffrage, it is not easy to state any solid ground of objection to its exercise of such an au- thority. At least, if any society has a clear right to de- prive females, constituting one half of the whole popu- lation, from the right of suffrage, (which, with scarcely an exception, has been uniformly mamtained,) it will require some astuteness to find upon what ground this exclusion can be vindicated, which does justify, or at least excuse, many other exclusions.* Government (to ^Jt^ •^'^ the pithy language of Mr. Burke) has been deemed i a practical thing, made for the happiness of mankind,
1 See Paley's Moral Philosophy, B. 6, ch. 7, p. 393 ; 1 Black. Comm. J 71 ; Montesquieu's Spirit of Laws, B. 11. ch. 6.
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and not to furnish out a spectacle of unifonnity to gratify the schemes of vbionary politicians.^
§ 580. Without laying any stress upon this theoreti- cal reasoning, which is brought before the reader, not so much because it solves all doubts and objecticms, as because it presents a view of the serious difficulties attendant upon the assumption of an origmal and un- alienable right of suffice, as (niginating in natural law^ and independent of ciril law, it may be proper to state, that every civilized society has uniformly fixed, modified, and regulated the right of suffrage for itself according to its own free will and pleasure. Every constitution of government in these United States has assumed, as a fundamental principle, the right of the people of the state to alter, abolish, and modify the (ona of its own government, according to the sovereign pleas- ' ure of the people.' In fact, the people of each state have gone much farther, and settled a far more critical question, by deciding, who shall be the voters, entitled to approve and reject the constitution fi-amed by a dele- gated body under their direction. In the adoption of no state constitution has the assent been asked of any but the qualified voters ; and women, and minors, and other persons, not recognised as voters by existing laws, have been studiously excluded. And yet the constitution has been deemed entirely obligatory upon them, as well as upon the minority, who voted against it. From this it will be seen, how little, even in the most fi-ee of republican governments, any abstract right of suffrage, or any original and indefeasible privilege, has been recognised in practice. If this consideration
1 Burke's Letter to the Sheriff of Bristol in 1777. 3 See Locke on Government, p. 2, § 149, 2S7.
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does not satisfy our minds, it at least will prepare us to presume, that there may be an almost infinite diver- sity in the established right of voting, without any state being able to assert, that its own mode is exclusively founded in natural justice, or is most conformable to sound policy, or is best adapted to the public security. It will teach us, that the question is necessarily com- plex and intricate in its own. nature, and is scarcely susceptible of any simple solution, which shall rigidly apply to the circtmistances and conditions, the inter- ests and the feelings, the institutions and the manners of all nations.^ What may best promote the public weal, and secure the public liberty, and advance the public prosperity in one age or nation, may totally fail of similar results under local, physical, or moral predicaments essentiaUy different
^581. It would carry us too far from the immediate object of these Commentaries to take a general survey of the various modifications, under which the right of su&age, either in relation to laws, or magistracy, or even judicial controversies, has appeared in different nations in ancient and modem times. The examples of Greece and Rome, in ancient times, and of England in modem times, will be found most instractive.* In England, the qualifications of voters, as also the modes of representation, are various, and fi*amed upon no common principle. The counties are represented by knights, elected by the proprietors of lands, who are freeholders ;' the boroughs and cities are represented
1 Dr. Lieber's Encyclopfedia Americana, art Consiituium,
9 See^3 Adams's Amer. Constitut Letter 6, p. 263, Sic. p. 440, 3cc.
1 Black. Comm. 171, 172, 173 ; Montesquieu's Spirit of Laws, Book 11,
eh. 13; Id. B. 2, ch.12. 3 1 Black. Comm. 172, 173; Paley's Moral Philosophy, B. 6, ch. 7;
The Federalist, No. 57.
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by citizens and burgesses, or others chosen by the citizens or burgesses, according to the qualifications prescribed by custom, or by the respective charters and by-laws of each borough, or city.* In these, the right of voting is almost infinitely varied and modified.* In the American colonies, under their charters and laws, no uniform rules in regard to the right of suffrage existed. In some of the colpnies the course of the parent country was closely foUowed, so that fi^ebdd* ers alone were voters ;* in others a very near approach was made to universal sufirage among the males of competent age ; and in others, again, a middle princi- ple was adopted, which made taxation and voting de- pendent upon each other, or annexed to it the qualifi- cation of holdmg some personal estate, or the privilege of being a fi*eeman, or the eldest son of a freeholder of the town or corporation.^ When the revolution brought about the separation of the colonies, and they formed themselves mto independent states, a very striking diversity was observable in the original constitutions adopted by them ; ^ and a like diversity has pervaded all the constitutions of the new states, which have since grown up, and all the revised constitutions of the old states, which have received the final ratification of the people. In some of the states the right of suffrage
1 1 Black. Comm. 172 to 175 ; 1 Tuck. Black. Comm. App. 209 to 212. See also Bnrko's Reflections on the French Revolution.
2 See Dr. Lieber's Encyclopaedia Americana, art Election; Great Britatn, ConsiUution of,
3 See Jefferson's Notes on Virginia, 191 ; 1 Tucker's Black. Conun. App. 96 to 100.
4 See Charter of Rhode-Island, 1663, and Rhode-Island Laws, (edit 1798,) p. 114. See also Connecticut Charter, 1662, and Massachusetts Charters, 1628 and 1692.
5 2 Wilson's Law Lect. 132 to 138 ; 2 Pitkin's Hist ch. 19, p. 294 to 316.
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depends upon a certain length of residence,, and pay- ment of taxes ; in others, upon mere citizenship and residence ; in others, upon the possession of a freehold, or some estate of a particular value, or upon the pay- ment of taxes, or performance of some public duty, such as service in the militia, or on the highways.^ In no two of these state constitutions will it be found, that the qualifications of the voters are setded upon the same uniform basis.* So that we have the most abundant proofs, that among a free and enlightened people, convened for the purpose of establishing their own forms of government, and the rights of their own voters, the question, as to the due regulation of the qualifications, has been deemed a matter of mere state poUcy, and varied to meet the wants, to suit the preju- dices, and to fo&ter the mterests of the majority. An absolute, indefeasible right to elect or be elected, seems never to have been asserted on one side, or denied on the other ; but the subject has been freely canvassed, as one of mere civil polity, to be arranged upon such a basis, as the majority may deem expedi- ent with reference to the moral, physical, and intellec- tual condition of the particular state.'
§ 582. It was under this known diversity of consti- tutional provisions in regard to state elections, that the convention, which framed the constitution of the Union,
1 2 Wilson's Law Lect. 132 to 138. — Mr. Hume, in his Idea of a Perfect Commonwealth, proposes, that the representatives should be freehohlers of 202 a year, and householders worth 500/. 1 Hume's Essays, Essay 16, p. 526.
8 See The Federalist, No. 54 ; 2 Wilson's Law Lectures, 132 to 138 ; 2 Pitkin's Hist 294 to 316.
3 Dr. Lieber's Encyclopedia Americana, art ConstUulion of the UnUed Slates. The Federalist, No. 52 to 54.
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was assembled. The definition of the right of suffrage is very justly regarded, as a fundamental article of a republican government. It was incumbent on the convention, therefore, to define and establish this right m the constitution. To have left it open for the occa- sional regulation of congress would have been improper, for the reason just mentioned. To have submitted it. to the Jegislative discretion of the states, would have been improper, for the same reason ; and for the addi- tional reason, that it would have rendered too depend- ent on the state governments, that branch of the fed- eral government, which ought to be dependent on the people alone.^ Two modes of providing for the right of suffrage in the choice of representatives were pre- sented to the consideration of that body. One was to devise some plan, which should operate uniformly in all the states, on a common principle ; the other was to conform to the existing diversities in the states, thus creating a mixed mode of representation. In favour of the former course, it might be urged, that all the states ought, upon the floor of the house of representatives, to be represented equally ; that this could be accom- plished only by the adoption of a uniform qualification of the voters, who would thus express the same public opinion of the same body of citizens throughout the Union ; that if freeholders alone in one state chose the representatives; and in another all male citizens of competent age ; and in another all freemen of particu- lar towns or corporations ; and in another all taxed inhabitants ; it would be obvious, that different inter- ests and classes would obtain exclusive representations in different states ; and thus the great objects of the
1 The Federalist, No. 52.
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constitution, the promotion of the general welfare and common defence, might be^ unduly checked and ob- structed ; that a uniform principle would at least have this recommendation, that it could create no well- founded jealousies among the different states, and- would be most likely to satisfy the body of the people by its perfect fairness, its permanent equality of opera- tion, and its entire mdependence of all local legislation, whether in the shape of state laws, or of amendments to state constitutions.
§ 583. On the other hand, it might be urged m fevour of the latter course, that the reducing of the different qualifications, already existing in the dif- ferent states, to one uniforte rule, woiild have been a very difficult task, even to the convention itself, and would be dissatisfactory to the people of dif- ferent states.* It would not be very easy for the convention to frame any rule, which would satisfy the scruples, the prejudices, of the judgments of a majority of its own members. It would not be easy to induce Virginia to give up the exclusive right of freeholders to vote ; or Rhode-Inland, or Connecticut, the exclusive right of freemen to vote; or Massachu- setts, the right of persons possessing a given value of personal property to vote ; or other states, the right of persons paying taxes, or having a fixed residence, to vote. The subject itself was not susceptible of any very exact limitations upon any general reasoning. The circumstances of different states might create great di- versities in the practical operation of any imiform sys- tem. And the natural attachments, which long habit and usage had sanctioned, in regard to the exercise of the
» The Federalist, No. 52.
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nghty would enlist all the feelings, and interests, and opinions of every state against any substantial change in its own institutions. A great embarrassment would be thus thrown m the way of the adoption of the consti- tution itself, which perhaps would be thus put at haz- ard, upon the mere ground of theoretical propriety.*
^ 584. Besides ; it might be lU'ged, that it is far from being clear, upon reasoning or experience, that uniform- ity in the composition of a representative body is either desirable or expedient, founded in sounder policy, or more promotive of the general good, than a mixed sys- tem, embracing, and representing, and combinmg distinct interests, classes, and opmions.* In England the house of commons, as a representative body, is foimded upon no uniform principle, either of nimibers, or classes, or
I Rawle on the Constitution^ ch. 4, p. 40.
s Mr. Burke manifestly thought, that no system of representative gov- ernment could be safe without a large admiicture of different persons and interests. " Nothing,*^ says he, ^ is a due and adequate represonta- tation of a state, that does not represent its ability, as well as its prop- erty. But as ability is a vigorous and active principle, and as property is sluggish, inert, and timid, it can never be safe from the invasion of abili- ty, unless it be, out of all proportion, predominant in the representation." * In a subsequent page of his Reflections on the French Revolution, he discusses the then favorite theory of representation proposed for the constitution of France, upon the triple basis of territory, population, and taxation, and demonstrates, with great clearness, its inconvenience, ine- quality, and inconsistency. .The representatives, too, were to be chosen indirectly, by electors appointed by electors, who were again chosen by other electors. " The member," says Mr. Burke, " who goes to the Na- tional Assembly, is not chosen by the people, nor accountable to them. There are three elections before he Is chosen ; two sets of magistrates intervene between him and the primary assembly, so as to render him, as I have said, an ambassador of a state, and not the representative of the people within a state," So much for mere theory in the hands of vision- tLTj and speculative statesmen.
«,
* Borke't RefloctioM onthd French ReTolotioo. See alio Paley't Moral Philotopfay, B. 6, ch.7.
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places.* The representation is made up of persons chosen by electors having very different, and sometimes very discordant qualifications ; in some cases, property is exclusively represented ; in others, particular, trades and pursuits ; in others, inhabitancy and corporate priv- ileges ; in others, the reverse. In some cases, the rep- resentatives are chosen by very numerous voters ; in others, by very, few; in, some cases, a single patron possesses the exclusive power of choosmg representa- tives, as in nomination boroughs ; in others, very pop- ulous cities have no right to choose any representatives at all ; in some cases, a select body, formmg a very small part of the inhabitants, has the exclusive right of choice ; in others, non-residents can control the whole election ; in some places a half million of inhabitants possess the right to choose no more representatives, than are assigned to the most msignificant borough, with scarcely an inhabitant to point out its local limits.* Yet this inequality has never, of itself, been deemed an ex- clusive evil m Great Britain.* And in every system of reform, which has found public favour in that coimtry, many of these diversities have been embodied Grom choice, as important checks upon undue legislation, as facilitating the representation of different interests, and
1 Paley's Moral Phaosophy, B. 6, ch. 7, p. 380, 381 to 394 ; DeLolme, Const of England, B. 1, ch. 4, p. 61, 62 ; 1 Kent's Comm. 219; 1 Tuck. Black. App. 209, 210, 211 ; 1 Wilson's Law Lect 431.
8 Mr. Jefferson, in his Notes on Virginia, insists with great earnest- ness upon the impropriety of allowing to different counties in that state, the same number of representatives, without anyregard to their relative population.* And yet in the new constitution adopted in 1830-1831, Virginia has adhered to the same system in principle, and ber present representation is apportioned upon an arbitrary and unequal basil.
3 Burke's Reflections on the French Revolution.
• JeirenoD>tNotM,19S.
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different opinions; and as thus securing, by a well-balanc- ed and intelligent representation of all the various class- es of society, a permanent protection of the public liber- ties of the people, and a firm security of the private rights of persons and property.* Without, therefore, asserting, that such a mixed representation is absolutely, and un- der alt circtmistances, the best, it might be safely affirm- ed, that the existence of various elements in the com- position of the representative body is not necessarily inexpedient, imjust, or insecure ; and, in many cases, may promote a wholesome restraint upon partial plans of legislation, and ensure a vigorous growth to the gen- eral interests of the Union. The planter, the farmer, the mechanic, the merchant, and the manufacturer might thus be brought to act together, in a body repre- senting each ; and thus superior intelligence, as well as mutual good-will and respect, be diffused through the whole of the collective body.*
^ 585. In the judgment of the convention, this latter reasoning seems to have obtained a decisive influence,
1 Mr. WUson in his Lectures, considers the inequality of representa- tion in the house of commons, as a prominent defect in the British gov- ernment. But his objections are mainlj urged against the mode of ap- portioning the representation, and not against the qualifications of the voters.* In the reform now under the consideration of parliament, there is a very great diversity of electoral qualifications allowed, and appar- ently supported by all parties. Mr. Burke in his Reflections on the French Revolution, holds doctrines essentially different in many pointa from Mr. Wilson. See also in Winne's Eunomus, Dialogue 3, § 18, 19, 20, an ingenious defence of the existing system in Great-Britain.
a See Paley's Moral Philosophy, B. 6, ch. 7, p. 380 ; Id. 394. See also Franklin's Remarks ; 2 Pitk. Hist 242. — Dr. Paley has placed the in- equalities of representation in the house of commons in a strong light; and be has attempted a vindication of it, which, whether satisfactory or not, is at least urged with great skill and ingenuity of reasoning. Paley's Moral Philosophy, B. 6, ch, 7, p. 391 to 400. See also 2 Pitk. Hist 242.
* 1 Wilfon'9 Lect. 430 to 433. VOL. 11. 9
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and to have established the final result ; and it was ac- cordingly declared, in the clause under consideration, that "the electors in each state shall have the qualifica- tions requisite for electors of the most numerous branch of the state legislature." ^ Upon this clause (which was finally adopted by a unanimous vote) the Federalist has remarked, " the provision made by the convention ap- pears to be the best, that lay withm their option. It must be satisfactory to every state, because it is conformable to the standard already established by the state itself. It will be safe to the United States, because, being fixed by the state constitutions, it is not alterable by the state governments ; and it cannot be feared, that the people of the states will alter this part of their constitu- tions in such a manner, as to abridge the rights secur- ed to them by the federal constitution.'' * The remark, in a general sense, is true ; but the provision has not, in fact, and may not have, all the security against alteration by the state governments, which is so confidently af- firmed. At the time, when it was made, Connecticut and Rhode-Island were acting under the royal charters of 1662 and 1663; and their legislatures possessed the power of modifying, from time to time, the right of suf- fi*age. Rhode-Island yet continues without any written constitution, unless the charter of 1663 is to be deem- ed such. In Maryland successive legislatures may change the form of government ; and in other states amendments may be, and indeed have been adopted,
1 Journal of Convention, 216, 233.'— The clause, however, did not pass without opposition ; a motion to strike out was made and negatived, seven states voting in the negative, one in the affirmative, and one being di- vided. Journ. of Convention, 7 Aug. p. 233.
9 The Federalist, No. 52. See also 2 £iliot's Debates, 38 ; 2 Wilson's Law Lect 123, 139, 131.
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materially varying the rights of suffrage.* So that ab- solute stability is not to be predicated of the existing modes of suffrage ; though there is little practical dan- ger of any changes, which would work unfavourably to popular rights.
§ 586. In the third place, the term of service of representatives. In order to ensure permanent safety to the liberties of the people, other guards are indispensa- ble, besides those, which are derived from the exercise of the right of suffrage and representation. If, when the legis- lature is once chosen, it is perpetual, or may last during the life of the representatives; and in case of death, or re- signation only, the vacancy is to be supplied by the elec- tion of new representatives ; it is easy to perceive, that in such cases there will be but a very slight check up- on their acts, on the part of the people. In such cases, if the legislative body should be once corrupted, the evil would be past all remedy, at least without some violent revolution, or extraordinary calamity.^ But, when dif- ferent legislative bodies are to succeed each other at short intervals, if the people disapprove of the present, they may rectify its faults, by the silent exercise of their power in the succeeding election. Besides, a legisla- tive assembly, which is sure to be separated again, and its members soon return to private life, will feel its own interests, as well as duties, bound up with those of the community at large.' It may, therefore, be safely laid down, as a fundamental axiom of republican govern- ments, that there must be a dependence on, and re- sponsibility to, the people, on the part of the represen- tative, which shall constandy exert an influence upon
1 See 2 Wilson's Law Lect note (d,) 196, 137.
s 1 Black. Comm. 189 ; Montesqaieu's Spirit of Laws, B. 11, ch. 6.
» 1 Black. Comm. 1^.
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68 CONSTITUTION DT THE U. STATES. [bOOK III.
his acts and opinions, and produce a sympathy between him and his constituents.^ If, when he is once elected, he holds his place for life, or during good behaviour, or for a long period of years, it is obvious, that there will be litde effective control exercised upon him ; and he will soon learn to disregard the wishes, the interests, and even the rights of his constituents, whenever they interfere with his own selfish pursuits and objects. When appointed, he may not, indeed, consider himself, as exclusively their representative, bound by their opin- ions, and devoted to their peculiar local interests, although they may be wholly inconsistent with the good of the Union. He ought rather to deem himself a repre- sentative of the nation, and bound to provide for the general welfare, and to consult for the general safety.* But still, in a just sense, he ought to feel his responsi-^ bility to them, and to act for them in common with the rest of the people ; and to deem himself, in an emphatic manner, their defender, and their friend.^
§ 687. Frequent elections are unquestionably the soundest, if not the sole policy, by which this depend-.
1 The Federalist, No. 52, 57.
8 1 Black. Comra. 159. See also Dr. Franklin's Remarks; 2 Pitk. Hist 242; Rawle on Const 38, ;)9. Bat see I Tucker's Black. ComTti. App. 193; 4 Elliot's Debates, 209.->Mr. Burke in his Speech to the Electors of Bristol, in 1774, has treated this subject with great candour, and dignity, and ability. " Parliament," said he, ** is not a congress of ambassadors from different and hostile interests, which interests eaph must maintain, as an agent and advocate, against other agents and ad- vocates. But parliament is a deliberative assembly of one nation with one Interest, that of the whole ; where not local purposes, not local prejudi- eesi ought to guide ; but the general good, resulting from the general reason of the whole. You choose a member indeed ; but when you have chosen him, he is not a member of Bristol, but he is a member of parlia- ment" See, on this subject, 1 Tuck. Black. Comm. App. 193 ; 2 Lloyd's Deb.inl789,p.]99to217.
9 See Burke's Speech to the Electors of Bristol in 1774.
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' ence and sympathy and responsibility can be effectual* ly secured.^ But the question, what degree of frequen- cy IS best csSculated to accomplish that object is not susceptible of any precise and universal answer, and must essentially depend upon very different considera* tions m different nations, and vary with their size, their age, their conditions, their institutions, and their local , peculiarities.^
§ 688. It has been a current observation, that " where annual elections end, tyranny begins.'' ' But this re- mark, like many others of a general nature, is open to much question. There is no pretence, that there is any natural connexion between the period of a year, or any other exact revolution of time, and the political changes fit for governments or magistrates. Why is the elec- tion of a magistrate or representative more safe for one year, than for two years ? For one year, more than for six months ? For six months, more than for three months ? It is certainly competent for a state to elect its own rulers, daily, or weekly, or monthly, or annual-
I Tbe Federalist, No. 52, 57,
s Dr. Paley, with his usual practical sense, has remarked, in regard to tbe composition, and tenure of office, of the British house of commons, thatf *' the number, the fortune, and quality of the members ; the variety of interests and characters among tiiem ; above ail^ the temporary dura- tion of their power y and the change of men, which every new election produces, are so many securities to the public, as well against the Bvbjection of their judgments to any external dictation, as against the formation of a junto in their own body, sufficiently powerful to govern their decisions. The representatives are so intermixed with the constit- uents, and the constituents with the rest of the people, that they can- not) without a partiality too flagrant to be endured, impose any burthen upon the subject, in which they do not share themselves. Nor scarce- ly can they adopt an advantageous regulation, in which their own in- terests Will not participate of the advantage." Paley's Moral Philosophy, B. 6, ch. 7.
3 The Federalist, No. 53. See Montesquieu'^ Spirit of Laws, B. 2, ch. 3.
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ly, or for a longer period, if it is deemed expedient. In this respect, it must be, or ought to be, governed by its own convenience, interests, and safety. It is, therefore, a question of sound policy, dependent upon circumstan- ces, and not resolvable into any absolute elements de- pendent upon the revolution or retiun of natural sea- sons.* The aim of every political constitution is, or ought to be, first to obtain for rulers men, who possess most wisdom to discern, and most virtue to pursue the com- mon good of the society ; and, in the next place, to take the most effectual precautions for keeping them virtuous, whilst they continue their public trust.* Various means may be resorted to for this purpose ; and doubdess one of the most efficient is the frequency of elections. But who is there, that will not perceive, upon the slightest examination of the subject, what a wide space there is for the exercise of discretion, and for diversity of judgment.
§ 689. Without pretending to go into a complete survey of the subject, in all its bearings, the fi*equency of elections may be materially affected, as matter of policy, by the extent of the population and territory of a country, the concentration or sparseness of the popu- lation, the nature of the pursuits, and employments, and engagements of the people ; and by the locsd and politi- cal situation of the nation in regard to contiguous na- tions. If the government be of small extent, or be con- centrated in a smgle city, it will be far more easy for the citizens to choose their rulers frequendy, and to change them without mischief, than it would be, if the territory were large, the population sparse, and the means
1 The Federalist, No. 52, 53 ; Montesquieu's Spirit of Laws, B. 2, ch. 3 ; 1 Elliot's Debates, 30, 31 , 39. s The Federalist, No. 57 ; 2 Elliot's Debates, 42.
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of intercourse few and liable to interruption. If all the inhabitants, who are to vote, reside in towns and viUages there will be little inconvenience in assembling together at a short notice to make a choice. It will be far other- wise, if the inhabitants are scattered over a large territo- ry, and are engaged in agricultural pursuits, like the planters and farmers of the southern and western states, who must meet at adistance from their respective homes, and at some common place of assembling. In cases of this sort, the sacrifice of time necessary to accomplish the object, the expenses of the journey, the imperfect means of communication, the slow progress of inter- changes of opinion, would naturally diminish the exer- cfae of the* right of suffrage. There would be great danger, under such circumstances, that there would grow up a general indifference or inattention to elec- tions, it they were frequent, since they wouM create litde interest, and would involve heavy charges and burthens. The nature of the pursuits and employments of the people must also have great influence in settling the question. If the mass of the citizens are engaged m employments, which take them away for a long peri- od from home, such as employments in the whale and cod fisheries, in the fur-trade, in foreign and distant commerce, in periodical caravans, or in other pursuits, which require constant attention, or long continued lar hours at particular seasons ; it is obvious, that frequent elections, which should interfere with their primary m- terests and objects, would be at once mconvenient, op- pressive, and unequal. They would enable the few to obtain a complete triumph and ascendency in the af- fairs of the state over the many. Besides, the frequen- cy of elections must be subject to other considerations, affecting the general comfort and convenience, as well
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of rulers, as of electors. In the bleak regions of Lapland, and the farther north, and m the sultry and protracted heats of the south, a due regard must be had to the health of the inhabitants, and to the ordinary means of travelling. If the territory be large, the representatives must come Jrom great distances, and are hable to be retarded by all the varieties of climate, and geological features of the country ; by drifts of impassable snows; by sudden inundations ; by chains of mountains ; by extensive prairies; by numerous streams; by sandy deserts.^
§ 690. The task of legislation, too, is exceedingly different in a small state, from what it is in a large one ; in a state engaged m a single pursuit, or living in pas- toral simplicity, from what it is in a state engaged in the infinitely varied employments of agriculture, manu- facture, and commerce, where enterprise and capital rapidly circulate ; and new legislation is constantly re- quired by the new fortunes of society. A single week might suffice for the ordinary legislation of a state of the territorial extent of Rhode-Island ; while several months would scarcely suffice for that of New-York. In Great-Britain a half year is consumed in legislation for its diversified interests and occupations ; while a week would accomplish all, that belongs to that of Lap- land or Greenland, of the narrow republic of Geneva, or of the subordinate principalities of Germany. Athens might legislate, without obstructing the daily course of common business, for her own meagre territory ; but when Rome had become the mistress of the world, the year seemed too short for all the exigencies of her sovereignty. When she deliberated for a world, she
1 1 Elliot's Debates, 33, Ames's Speech.
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felt, that legislation, to be wise or safe, must be slow and cautious ; that knowledge, as well as power, was indispensable for the true government of her ppoyinces.
^591. Again; the local position of a nation in n^ gard to other nations may recpiire very different courses of legislation, and very different intervals of etoctionSy from what would be dictated by a sense of its own in- terest and convenience imder other circumstances. If it is surrounded by powerful and warlike neighbours, its own government must be invested with proportionately prompt means to act, and to legislate, in order to repel aggressions, and secure its own rights. Frequent changes in the public councils might not oatf leave it exposed to the hazard of having no efficient body in existence to act upon any sudden emergency, but also, by the fluctuations of opinion, necessarily growing out of these changes, introduce imbecility, irresolution, and the want of due information into those councils. Men, to act vnth vigour and effect, must have time to mature measures, and judgment and experience^ as to the best method of applying thenu They must not be harried on to theair conclusions by the passions, or the fears of the multitude. They must deliberate, as well as re- solve. If the power drops from their hands before they have an opportunity to carry any system into full effect, or even to put it on its trial, it is impossible, that foreign nations should not be able, by uitrigues, by fabe alarms, and by ccHTupt influences, to defeat the wbest measures of the best patriots.
§ 592. One other con^deration of a general nature
deserves attention. It is, that while^ on the one hand,
constantly reciuring elections afford a great security to
puWic liberty, they are not, on the other hand, without
.some dangers and inconveniences of a formidable
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nature. The very firequency of elections has a ten- dency to create agitations and dissensions in the pub- lic mind; to nourish factions^ and encourage restless- ness, to favour rash innovations in domestic legis- lation and public policy ; and to produce violent and sudden changes in the administration of public af- fairs, founded upon temporary excitements and pre- judices.*
§ 593. It is plain, that some of the considerations, which have been stated, must apply with very different force to the condition and interests of different states ; a^d they demonstrate, if not the absurdity, at least the impolicy of laying down any general maxim, as to the frequency of elections to legislative, or other offices.* There is quite as much absurdity in laymg down, as a general rule, that where annual elections end, tyranny begins, as there is in saymg, that the people are free only while they are choosing their representatives, and slaves during the whole period of their service.
§ 694. If we examine this matter by the light of history, or at feast of that portion of it, which is best entided to instruct us on the point, it will be found, that there is no uniformity of practice, or principle, among free nations in regard to elections. In England it is not easy to trace out any very decided course. The history of parliament, after magna charta, proves, that that body had been accustomed usually to assemble once a year ; but, as these sessions were dependent upon the good pleasure and discretion of the crown, very long and inconvenient intermissions occasionally
1 See Mr. Ames's Speech, 1 Elliot's Debates, 31, 33 ; Ames's Works, 20,24.
9 Montesquieu's Spirit of Laws, B. 2, ch. 3 ; I Elliot's Debates, 30 to 42.
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occurred, from royal contrivance, ambition, or policy.* Bat, even when parliament was accustomed to sit every year, the members were not chosen every year. On the contrary, as the dissolution of parliament was solely dependent on the will of the crown, it might, and for- merly it sometimes did happen, that a single pariia- ment lasted through the whole life of the king, who convened it* To remedy these grievances, it was provided by a statute, passed in the reign of Charies the Second, that the intermissions should not be pro- tracted beyond the period of three years ; and by a subsequent statute of William and Mary, that the same parliament should not sit longer than three years, but be, at the end of that period, dissolved, and a new one elected. This period was, by a statute of (Jeorge the Fu^t, prolonged to seven years, after an animated de» bate; and thus septennial became a substitute for triennial parliaments.' Notwithstanding the constantly increasing influence of the house of commons, and its popular cast of opinion and action, more than a century has elapsed without any successful effort, or even any general desire, to change the duration of parliament. So that, as the English constitution now stands, the parliament must expire, or die a natural death, at the end of the seventh year, and not sooner, unless dis- solved by the royal prerogative.^ Yet no man, tolera- bly well acquainted with the history of Great Britain for the last century, would venture to affirm, that the people had not enjoyed a higher degree of liberty and
II - _
1 The Federalist, No. SSL
9 1 Black. Comm. 189, and note.
3 1 Black. Corora. 189; Tbe Federalist, No. 52, 53; 1 Elliot's De- bates, 37, 39 ; 2 Elliot's Debates, 42.
4 1 Black. Comm. 189 ; The Federalist, No. 52-
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76 CONSTITUTION or THE U. STATES. [BOOK III.
influence in all the proceedings of the government, than ever existed in any antecedent period.
§ 595. If we bring our inquiries nearer home^ it will be found, that the history of the American colonies be- fore the revolution affords an equally striking proof of the diversity of opinion and usage. It is very wcJl known, that the principle of representation in one branch of the legislature was (as has been already stated) established in all the colonies. But the periods of election of the representatives were very different They varied fix)m a half-year to seven years. In Vir- ginia the elections were septennial; in North and South- Carolina, biennial ; in Massachusetts, annual ; in Con* necticut and Rhode-Island, semi-annuaL^ It has been very justly remarked by the Federalist, that there is not any reason to mfer, from the spirit and conduct of the representatives of the people prior to the revolu* tion, that biennial elections would have been dangerous to the public liberties. The spirit, which every where displayed itself at the commencement of the struggle, and which vanquished the obstacles to independence, is the best of proofs, that a sufficient portion of liberty had been every where enjoyed to inspire both a sense of its worth, and a zeal for its proper enlargement. This remark holds good, as well with regard to the then colonies, whose elections were least frequent, as to those, whose elections were most frequent. Vir- ginia was the colony, which stood first in resisting the parliamentary encroachments of Great Britam ; it was the first also in espousing, by a public act, the resolution of independence. Yet her house of representatives
1 The Federalist, ^o. 52 ; 1 Elliot's Debates, 41,43; 2 Elliot's De- bates, 42 ; 3 Elliot's Debates, 4a
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was septenniaL^ When, after the revolutioDy the states freely framed and adopted theu* own constitutioDS of gOTernment, a similar, though not so marked a diversity of opinion, was exhibited. In Connecticut, untU her recent constitution, the representatives were chosen semi-annually ; in Rhode-Island they are still chosen semi-annually ; in South-Carolina, Tennessee, Missouri, Illinois, and Louisiana they are chosen biennially ; and in the rest of the states annually.' And it has been justly observed in the Federalist,' that it would not be easy to show, that Connecticut or Rhode-Island is better governed, or enjoys a greater share of rational liberty, than Soutb^CaroUna, (or any of the other states having biennial elections ;) or, that either the one or the other of these states is distmguished, in these respects, and by these causes, from the states, whose elections are dijQferent from both.
§ 596. These remarks are sufficient to establish the (utility of the maxim alluded to, respecting the value of annual elections. The question, how frequent elections should be, and what should be the term of service of representatives, cannot be answered in any universal form, applicable to all times, and all nations.^ It is very complex in its nature, and must ultimately resolve itself into a question of policy and sound discretion, with reference to the particular condition and circum- stances of each nation, to which it is sought to be applied. The same fundamental principles of govern- ment may require very different, if not entirely oppo- site practices in different states. There is great wis-
1 The Federalist, No. 52.
* Dr. Lieber's E^cjcL Americana, art ContlUuiums of tkt UmUd Slates ; 3 Elliot's Debates, 260 ; 1 Kent Comm. 215. ' The Federalist, No. 53 ; 3 Elliot's Debates, 260. 4 1 EUiot's Debates, 40, 41, 42.
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78 CONSTITtJTION OF THE U. STATES. [bOOK III.
dom in the observations of one of our eminent states- men on this subject. "It is apparent," said he, "that a delegatiQn. for a very short period, as for a single day, would defeat the design of representation. The elec- tion in that case would not seem to the people to be of any importance, and the person elected would think as lighdy of his appointment. The other extreme is equaUy to be avoided. An election for a long term of years, or for life, would remove the member too far from the control of the people, would be dangerous to liberty, and in fact repugnant to the purposes of the delegation. The truth, as usual, is placed somewhere between the extremes, and, I believe, is included iii this proposition; the term of election must be so long, that the representative may understand the interests of the people ; and yet so limited, that his fidelity may be secured by a dependence upon theu' approbation.'* *
§ 697. The question, then, which was presented to the consideration of the convention, was, what duration of office, on the part of the members of the house of representatives,^was, with reference to the structure of the other branches of the legislative department of the general government, best adapted to preserve the pub- lic liberty and to promote the general welfare. I say, with reference to the structure of the other branches of the legislative department of the general govern- ment, because it is obvious, that the duration of office of the president and senate, and the nature and extent of the powers to be confided to congress, must most materially aflfect the decision upon this point Abso- lute unanimity upon such a subject could hardly be expected ; and accordingly it vdll be found, that no
i Mr. Ames's Speech, 1 Elliot's Debates, 90, 81 ; Ames's Works, 21 ; 2 EUiot's Debates, 44, 46.
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inconsiderable diversity of opinion was exhibited in the discussions in the convention. It was, in the first in- stance, decided in a committee of the whole, that the period should be three years, seven states voting in the affirmative, and four in the negative.* That period was afterwards struck out by a vote of the convention, seven states voting in the affirmative, three in the negative, and one being divided, and the word " twp*' was unani- mously inserted in its stead.* In the subsequent re- vision the clause took the shape, in which it now stands m the constitution.
§ 598. The reasons, which finally prevailed in the convention and elsewhere in favour of biennial elections in preference to any other period, may be arranged under the following heads :
§ 599. In the first place, an argument might prop- erly be drawn firom die extent of the country to be governed. The territorial extent of the United States would require the representatives to travel from great distance*s, and the arrangements, rendered necessary by that circumstance, would furnish much more serious ob- jections with men fit for this service, if limited to a single year, than if extended to two years.' Annual elections might be very well adapted to the state legislatures from the faciUty of convening the members, and from the familiarity of the people with all the general objects of local legislation, when they would be highly inconve- nient for the legislature of the Union. If, when con- vened, the term of congress was of short duration, there would scarcely be time properly to examine and mature
1 Journal of the Convention, p. 67, 115, 1 16, 135; 4 Elliot's Debates, (Yates's Minutes,) 70, 7i.
9 Journal of the Convention, p. 14] , 207, 216 ; 1 Elliot's Debates, 30 ; 4 £!lliot's Debates, (Yates's Minutes,) 91, 03.
a The Federalist, No. 53 ; 1 Elliot's Debates, 30, 40, 41, 43.
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80 CONSTITimoir OF TH£ IT. STATSSk [bOOK Ul.
measures. A new election might intervene bef<Nre there had been an opportunity to interchange opinions and acquire the information indispensable for wise and salutary action.^ Much of the business of the national legislature must necessarily be postponed beyond a single session ; and if new men are to come every year, a great part of the information already accumulated will be lost, or be unavoidably open for re-exammation be-^ fore any vote can be properly had.
§ 600. In the next place, however well founded the maxim might be, that where no other circumstances affect the case, the greater the power is, the shorter ought to be its duration ; and conversely, the smaller the power, the more safely its duration may be pro- tracted ; ' that maxim, if it applied at all to the govern- ment of the Union, was favourable to the extension of the period of service beyond that of the state legisla- tures. The powers of congress are few and limited, and of a national character ; those of the state legi^a- tures are general, and have few positive limitations* If annual elections are safe for a state ; biennial elections would not be less safe for the United States. No just objection, then, could arise from this source, upon any notion, that there would be a more perfect security for public liberty in annual than in biennial elections.
^601. But a far more important consideration grows out of the nature and objects of the powers of congress. The aim of every political constitution is, or ought to be, first, to obtain for nilers men, who possess most wisdom to discern, and most virtue to pursue, the com- mon good of society ; and, in the next place, to take the most effectual precautions for keeping them virtu-
1 The Federalist, No. 53 ; 1 Elliot's Debates, 40, 41, 42.
9 The Federalist, No. 53 ; Moniesqaieu's Spirit of Laws, B. 3, cb. 3.
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ous, whQst they continue to hold their public trust Frequent elections have, without question, a tendency to accomplish the latter object But too great a fre- quency will, almost invariably, defeat the former object, and, in most cases, put at hazard the latter. As has been already intimated, it has a tendency to in- troduce faction, and rash counsels, and passionate ap- peals to the prejudices, rather than to the sober judgment of the people. And we need not to be reminded, that faction and enthusiasm are the instruments, by which popular governments are destroyed.* It operates alsO| as a great discouragement upon suitable candidates oflFering themselves for the public service. They can have little opportunity to establish a solid reputation, as statesmen or patriots, when their schemes are liable to be suddenly broken in upon by demagogues, who may create injurious suspicions, and even displace them from office, before their measures are fably tried.* And th^y are apt to grow weary of continued appeals to vindicate their character and conduct at the polls, since success, however triumphant, is of such short duration, and con- fidence is so easily loosened. These considerations, which are always of some weight, are especially appli- cable to services in a national legislature, at a distance from the constituents, and in cases, where a great varie- ty of information, not easily accessible, is indispensable to a right understanding of the conduct and votes of representatives.
§ 602. But the very nature and objects of the na- tional government require far more experience and knowledge, than what may be thought requisite in the
1 The Federalist, No. 57; 1 Kent's Comm. 215.
2 Ames's Speech ; 1 Elliot's Debates, 3:5.
3 1 Kent's Comm. 215.
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members of a state legislature. For the latter a knowl- edge of local interests and opinions may ordinarily suf- fice. But it is far different with a member of congress. He is to legislate for the interest and welfare, not of one state only, but of all the states. It is not enough, that he comes to the task with an upright intendon and sound judgment, but he must have a competent degree of knowledge of all thrf subjects, on which he is c^ed to legislate ; and he must have skill, as to the best mode of applymg it. The latter can scarcely be acquired, but by lon^ experience and training in the national coun- cUs. The period of service ought, therefore, to bear some proportion to the variety of knowledge and prac- tical skill, which the duties of the station demand.^
^ 603. The most superficial glance at the relative duties of a member of a state legislature and of those of a member of congress, will put this matter in a strik- ing light In a single state, the habits, manners, insti- tutions, and laws, are uniform, and all the citizens are more or less conversant with them. The relative bear- ings of the various pursuits and occupations of the people are well understood, or easily ascertained. The gen- eral affairs of the state lie in a comparatively narrow compass, and are daily discussed and examined by those, who have an immediate interest in them, and by frequent communication with each other can inter- change opinions.^ It is very different with the general government. There, every measure is to be discussed with reference to the rights, interests, and pursuits of all the states. When the constitution was adopted, there were thirteen, and there are now twenty -four
1 The Federalist, No. 53; 1 Elliot's Debates, 30, 37, 39, 40, 41 ; Id- 230; a ElUot'8 Debates, 42 ; 1 Kent's Coinin.2I5. s The Federalist, No. 53, 56.
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States, having different laws, institutions, emplojonents, products, and climates, and many artificial, as well as natural differences m the structure of society, growing out of these circumstances. Some of them are almost wholly agricultural ; some commercial ; some manufac- turing ; some have a mixture of all ; and in no two of them. are there precisely the same relative adjustments of all these interests. No legislation for the Union can be safe or wise, which is not founded upon an accurate knowledge of these diversities, and their practical influ* ence upon public measures. What may be beneficial and politic, with reference to the interests of a smgle state, may be subversive of those of other states. A regulation of commerce, wise and just for the commer- cial states, may strike at the foundation of the prosperi- ty of the agricultural or manufacturing states. And, on the other hand, a measure beneficial to agriculture or manufactures, may disturb, and even overwhelm the shipping interest. Large and enlightened views, com- prehensive information, and a just attention to the local ^peculiarities, and products, and employments of differ- ent states, are absolutely indispensable qualifications (ot a member of congress. Yet it is obvious, that if very short periods of service are to be allowed to members of congress, the continual fluctuations in the public coimcils, and the perpetual changes of members will be very unfavourable to the acquirement of the proper knowledge, and the due application of it for the public welfare. One set of men will just have mastered the necessary information, when they will be succeeded by a second set, who are to go over the same grounds, and then are to be succeeded by a third. So, that inexpe- rience, instead of practical wisdom, hasty legislation, in- stead of sober deliberation, and imperfect projects*
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84 CONSTITUTION OF THE U. STATES. [bOOK III.
instead of well constructed systems, would characterize the national government^
§ 604. Congress has power to regulate commerce witii foreign nations and among the several states. How can foreign trade be properly regulated by uniform laws without (I do not say some acquaintance, but) a large acquamtance with tiie commerce, ports, usages, and regulations of foreign states, and with the pursuits and products of the United States? How can trade be- tween the different states be duly regulated, without an accurate knowledge of their relative situation, and cli- mate, ^d productions, and facilities of intercourse.' Congress has power to lay taxes and imposts ; but how can taxes be judiciously imposed, and effectively col- lected, unless they are accommodated to the local cir-, cumstances of the several states 1 The power of taxa- tion, even with the purest and best intentions, might, without a thorough knowledge of the diversified inter- ests of the states, become a most oppressive and ruinous engine of power.' It is true, that difficulties of this sort, will occur more frequently in the first operations of the government, than afterwards.^ But in a growing com- munity, like that of the United States, whose popula- tion has already mcreased from three to thirteen mil- lions within forty years, there must be a perpetual change of measures to suit the new exigencies of agri- culture, commerce, and manufactures, and to ensure the vital objects of the constitution. And, so far is it fix)m being true, that the national government has by its familiarity become more simple and facile in its ma- chmery and operations, that it may be affirmed, that a
i The Federalist, No. 53, 56.
« M. 3 Id. 4 Id.
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far more exact and comprehensive knowledge , is now necessary to preserve its adjustments, and to carry on its daily operations, than was required, or even dream- ed of, at its first institution. Its very success, as a plan of government, has contributed, in no small degree, to give complexity to its legislation. And the important changes in the world during its existence has requir« ed very many developements of its powers and duties, which could hardly have occurred, as practical truths to its enlightened founders.
§ 605. There are other powers belonging to the na- tional government, which require qualifications of a high character. They regard our foreign intercourse and diplomatic policy. Although the house of representa- tives does not direcdy participate in foreign negotiations and arrangements ; yet, fix>m the necessary connexion between the several branches of public affairs, its co- operation with the other departments of the govern- ment will be often indispensable to carry them into full effect Treaties with foreign nations will often require the sanction of laws, not merely by way of appropria- tions of money to comply with their stipulations ; but also to provide suitable regulations to give them a prac- tical operation. Thus, a purchase of territory, like that of Louisiana, would not only require the house of repre- sentatives to vote an appropriation of money ; and a treaty, containing clauses of indemnity, like the British treaty of 1794, in like manner require an appropriation to give it effect ; but commercial treaties, in ^n especial manner would require many variations and additions to the existmg laws in order to adjust them to the general system, and produce, where it is intended, a just re- ciprocity.* It is hardly necessary to say, that a com-
1 The Federalist, No. S3.
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petent knowledge of the law of nations is mdispensable to every statesman ; and, that ignorance may not only involve the nation in embarrassing controversies with other nations ; but may also involve it in humiliating sacrifices. Congress aJone is entrusted with the pow- er to declare wan What would be said of representa- tives called upon to exercise this ultimate appeal of sovereignty, who were ignorant of the just rights and duties of belligerent and neutral nations ? *
§ 606. Besides ; the whole diplomacy of the execu- tive department, and all those relations with mdepen- dent powers, which connect themselves with foreign intercourse, are so intimately blended with the proper discharge of legislative duties, that it is impossible, that they should not be constantiy brought under review in the public debates. They must fi'equently furnish mat- ter for censure or praise ; for accusation or vindication ; for legislative checks, or legislative aids ; for powerful appeals to popular favour, or popular resentment ; for the ardent contests of party ; and even for the graver exercise of the power of impeachment.
§ 607. And this leads us naturally to another remark ; and that is, that a due exercise of some of the powers confided to the house of representatives, even in its most narrow functions, require, that the members should at least be elected for a period of two years. The power of impeachment could scarcely be exerted with efiSect by any body, which had not a legislative life of such a period. It would scarcely be possible, in ordinary cases, to begin and end an impeachment at a single annual session. And the effect of change of members during its prosecution would be attended with no inconsidera- ble embarrassment and inconvenience. If the power
1 The Fcderulist, No. 53.
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is ever to be exerted, so as to bring great offenders to justice, there must be a prolonged legislative term of office, so as to meet the exigency. One year will not suffice to detect guilt, and to pursue it to conviction.*
§ 608. Again ; the house of representatives is to be the sole judge of the elections of its own members. Now, if but one legislative session is to be held in a year, and more than one cannot ordinarily be presumed convenient or proper, spurious elections cannot be in- vestigated and annulled in time to have a due effect. The sitting member must either hold his seat during the whole period of the investigation, or he must be suspended during the same period. In either case the public mischief will be very great The imiform prac- tice has been to allow the member, who is retmned, to hold his seat and vote, until he is displaced by the or- der of the house, after full mvestigation. If, then, a return can be obtained, no matter by what means, the irregular member is sure of holding his seat, until a long period has elapsed, (for that is indispensable to any thorough investigation of facts arising at great dis- tances ;) and thus a very pernicious encouragement is given to the use of unlawful means for obtaining irreg- ular returns, and fraudulent elections.*
§ 609. There is one other consideration, not without its weight in all questions of this nature. Where elec- tions are very frequent, a few of the members, as hap- pens in all such assembles, will possess superior talents; will, by frequent re-elections, become members of long standing ; will become thoroughly masters of the public business ; and thus will acquire a preponderating and undue influence, of which they will naturally be dis-
1 1 Elliot's Debates, 34 ; Mr. Ames's Speech. 8 The Federalist, No. 53.
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pose(J to avail themselves. The great bulk of the house Wai be composed of new members, who will necessa- rily be inexperienced, diflSdent, and undisciplined, and thus be subjected to the superior ability and informa- tion of the veteran legislators. If biennial elections would have no more cogent effect, than to diminish the amount of this inequality ; to guard unsuspecting confi- dence agamst the snares, which may be set for it ; and to stimulate a watchful and ambitious responsibility, it would have a decisive advantage over mere annual elections.^
§ 610. Such were some of the reasons, which pro- duced, on the part of the fi-amers of the constitution, and ultimately of the people themselves, an approbation of biennial elections. Experience has deiponstrated the sound policy and wisdom of the provision. But looking back to the period, when the constitution was upon its passage, one cannot but be struck with the alarms, with which the public mind was on this subject attempted to be disturbed. It was repeatedly urged in and out of the state conventions, that biennial elections were dangerous to the public liberty ; and that con- gress might perpetuate itself, and reign with absolute power over the nation.*
§ 611. In the next place, as to the qualifications of the elected. The constitution on this subject is as follows:' "No person shall be a representative, who " shall not have attained to the age of twenty-five years, " and been seven years a citizen of the United States ;
1 The Federalist, No. 53. See also I Tucker's Black. Comm. App. 229 ; 2 Wilson's Law Lectures, 151. 9 J Elliot's Debates, 28, 37, 38, 43; Id. 217. 9 Art 1) § 2, paragraph 3.
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'^ and who shall not, when elected, be an inhabitant of " that state, in which he shall be chosen.^
^612. It is obvious, that the inquiry, as to the due qualifications of representatives, like that, as to the due qualifications of electors in a government, is susceptible, in its own nature, of very different answers, according to the habits, institutions, interests, and local peculiarities of different nations. It is a point, upon which we can arrive at no universal rule, which will accommodate itself to the welfare and wants of every people, with the same proportionate advantages. The great objects are, or ought to be, to secure, on the part of the repre- sentatives, fidelity, sound judgment, competent infor- mation, and mcorruptible independence. The best modes, by which these objects can be attained, are mat- ters of discussion and reasoning, and essentially depen- dent upon a large and enlightened survey of the human character and passions, as developed in the different stages of civilized society. There is great room, there- fore, for diversities of judgment and qpinion upon a subject so comprehensive and variable in its elements. It would be matter of surprise, if doctrines essentially different, nay, even opposite to each other, should not; under such circumstances, be maintained by political writers, equally eminent and able. Upon questions of civil policy, and the fundamental structure of govern- ments, there has hitherto been too little harmony (rf opinion among the greatest men to encourage any hq>e, that the future will be less finiitfiil in dissonances, than the past In the practice of governments, a veiy great diversity of qualifications has been insisted on, as pre- requisites of oflice ; and this alone would demonstrate, that there was not admitted to exist any ccnnmc^ stan-
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dard of superior excellence, adapted to all ages, and all nations.
^613. In Great-Britain, besides those negative quali- fications, which are founded m usage, or positive law, such as the exclusion of persons holding certain offices and pensions, it is required, that every member for a coun- ty, or knight of a shire, (as he is technically called,) shall have a clear estate of freehold, or copyhold, to the value of .£600 sterling per annum ; anji every member for a city or borough, to the value of <£300, except the eldest sons of peers, and of persons qualified to be knights of shires, and except the members of the two universities.* . ^614. Among the American, colonies antecedent to the revolution, a great diversity of qualifications existed; and the state constitutions, subsequently formed, by no means lessen that diversity. Some insist upon a fi'ee- hcdd, or other property, of a certain value ; others re- quire a certain period of residence, and citizenship only; others require a freehold only ; others a payment of taxes, or an equivalent ; others, again, mix up all the various qualifications of property, residence, citizenship, and taxation, or substitute some of these, as equivalents for others.*
^615. The existing qualifications in the states being then so various, it may be thought, that the best course would have been, to adopt the rules of the states re- spectively, in regard to the most numerous branch of their own legislatures. And this course might not have been open to serious objections. But, as the qualifica- tions of members were thought to be less carefully de- fined in the state constitutions, and more susceptible of
^ 1 Black. Comm. 176. See 4 Instit 46 to 48. s Dr. Liebei;^ EncycL Americana, art CmHUtUumi of the UniUd States.
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uniformity, than those of the electors, the subject was thought proper for regulation by the convention.* And it is observable, that the positive qualifications are few and simple. They respect only age, citizenship, and inhabitancy.*
§ 616. First, in regard to age. The representative must have attained twenty-five years. And certainly to this no reasonable objection can be made.* If expe- rience, or wisdom, or knowledge be of value in the na- tional councils, it can scarcely be pretended, that an earlier age could afford a certain guaranty for either. That some qualification of age is proper, no one will dispute. No one will contend, that persons, who are minors, ought to be eligible ; or, that those, who have not attained manhood, so as to be entitled by the com- mon law to dispose of their persons^ or estates, at their own will, would be fit depositaries of the authority to dispose of the rights, persons, and property of others. Would the mere attainment of twenty-one years of age be a more proper qualification? All just reasomng would be against it. The characters and passions of young men can scarcely be understood at the moment of their majority. They are then new to the rights of self-government; warm in their passions; ardent in their expectations ; and, just escaping from pupilage, are strongly tempted to discard the lessons of caution, which riper years inculcate. What they will become, remams to be seen ; and four years beyond that period is but a very short space, in which to try their virtues, develope their talents, enlarge their resources, and give them a practical insight into the busmess of life ade-
1 The Federalist, No. 2d5. > 1 Tucker's Black. Comm. App. 1^. d 1 Tucker's Black. Comm. App. 313, 314 ; 2 Wilson's Law Lect 139, 140.
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quate to their own immediate wants and duties. Can ttie interests of others be safely confided to those, who have yet to learn how to take care of their own ? The British constitution has, indeed, provided only for the members of the house of commons not being minors ; * and illustrious instances have occurred to show, that great statesmen may be formed even during their mmor- ity. But such mstances are rare, they are to be looked at as prodigies, rather than as examples ; as the extraordi* nary growth of a peculiar education and character, and a hot-bed precocity in a monarchy, rather than as the sound and thrifty growth of the open air, and the bracing hardihood of a republic. In the convention this qualification, as to age, did not pass without a struggle. It was originally carried by a vote of seven states against three, one being divided ; though it was ulti- mately adopted without a division.' In the state con- ventions it does not seem to have formed any impor- tant topic of debate.^
1 1 Hlaok. Comm, 16S, 173, 175 ; 4 lostit 46, 47.
s Journal of Convention, June 22, p. 143; Id. Ang. 8, p. 235 ; 4 Elli- ot's Debates, (Yates's Minutes,) 94.
9 Lork €k>ke has with much gravity enumerated the proper quallfi- cationa of a pariiameotsnan, drawing the resemblances from the profh erties of the elephant First, that he should be without gaU ; tlwt is, without malice, rancour, heat, and ehvy. Secondly, that he should be eonstant, inflexible, and not to be bowed, or turned from the right, either for fear, reward, or fkvour, nor in judgment respect persons. Thirdly, that he should be of a ripe memory, that remembering perils past, he might remember dangers to come. Fourthly, that though he be of the greatest strength and understanding, yet he be sociable, and go in com- panies ; and fifthly, that he be philanthropic, showing the way to every man."^ Whatever one may now think of this quaint analogy, these qual- ities would not, in our day, be thought a bad enumeration of the proper qualities of a good modem member of parliament, or congress.
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§ 617. Secondly, in regard to citizenship. It is required, that the representative shall have been a citizen of the United States seven years. Upon the propriety of excluding aliens from eligibility, there could scarcely be any room for debate; for there ceuld be no security for a due administration of any government by persons, whose interests and con- nexions were foreign, and who owed no permanent allegiance to it, and had no permanent stake in its measures or operations. Foreign influence, of the most corrupt and mischievous nature, could^not fail to make its way into the public councils, if there was no guard against the introduction of alien representatives.^ It has accordingly been a fundamental policy of most, if not of all free states, to exclude all foreigners from hold- ing offices in the state. The only practical question would seem to be, whether foreigners, even after natu* ralization, should be eligible as representatives ; and if so, vehat was a suitable period of citizenship for the al- lowance of the privilege. In England, all aliens born, unless naturalized, were c»iginally excluded from a seat in parliament ; and now, by poi^tive legislation, no alien, though naturalized, is capable of being a member of either house of parliament^ A diflFerent course, naturaUy arising from the circumstances of the country, was adopted in the American cdonies antecedent to the revcdution, with a view to invite emigrations, and set- tlements, and thus to facilitate the cultivation of their wild and waste lands. A similar policy had smce pervaded the state governments, and had been attend- ed with so many advantages, that it would have been
1 The Federalist, Na 63.
s 1 Black. Comm. 162, 175 ; 4 Inst 46.
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impracticable to enforce any total exclusion of natural- ized citizens from office. In the convention it was originally proposed, that three years' citizenship should constitute a qualification ; but that was exchanged for seven years by a vote of ten states to one.* No ob- jection seems even to have been suggested against this qualification ; and hitherto it has obtained a gen- eral acquiescence or approbation. It certainly sub- serves two important purposes. 1. That the constit- uents have a full opportunity of knowing the character and merits of their representative. 2. That the repre- sentative has a like opportunity of learning the charac- ter, and wants, and opinions of his constituents.'
§ 618. Thirdly, in regard to inhabitancy. It is re- qmred, that the representative shall, when elected, be an mhabitant of the state, in which he shall be chosen. The object of this clause, doubdess, was to secure an attachment to, and a just representation o^ the inter- ests of the state in the national councils. It was sup- posed, that an inhabitant would feel a deeper concern, and possess a more enlightened view of the various interests of his constituents, than a mere stranger. And, at all events, he would generally possess more entirely their sympathy and confidence. It is observable, that the inhabitancy required is within the state, and not within any particular district of the state, in which the member is chosen. In England, in former times, it was required, that all the members of the house of commons should be inhabitants of the places, for which they were chosen. But this was for a long time wholly disregarded in practice, and was at length repealed by
1 Journal of Uie ConTentioD,8 Aagust, 333; 234. 9 2 Wilion's Law Lectures, 14].
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Statute of 14 Greo. 3^ cL 58.^ This circumstance is not a little remarkable in parliamentary history ; and it establishes, in a very striking manner, how little mere theory can be regarded in matters of government It was found by experience, that boroughs and cities were often better represented by men of eminence, and known patriotism, who were strangers to them, than by those chosen from their own vicinage. And to this very hour some of the proudest names in Eng- lish history, as patriots and statesmen, have been the representatives of obscure, and, if one may so say, of ignoble boroughs.
^619. An attempt was made m the convention to mtroduce a qualification of one year's residence before the election ; but it failed, four states voting in favour ofxit, six against it, and one bemg divided.* The omission to provide, that a subsequent non-residence shall be a vacation of the seat, may in some measure defeat the policy of the original limitation. For it has happened, in more than one instance, that a member, after his election^ has removed to another state, and thus ceased to have that intimate intercourse with, and dependence upon his constituents^pon which so much value has been placed in all M^scussions on this subject.
^ 620. It is observable, that no qualification, in point of estate, has been required on the part of members of the house of representatives.' Yet such a qualifica- tion is insisted on, by a considerable number of the states, as a qualification for the popular branch of the
1 1 Black. Comm. 175 ; 2 Wilson's Law Lect. 142.
9 Journal of Convention, 8 August, p. 224, 225.
3 Journal of Convention, 26 July, p. 204, 205 ; Id. 212 ; Id. 241, 242.
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state legislature,^ The probability is, that it was not incorporated into the constitution of the Unbn from the difficulty of framing a provision, that would be gen- erally acceptable. Two reasons have, however, been assigned by a learned commentator for the omission, which deserve notice. First, that in a representative government the people have an undoubted right to judge for themselves of the qualification of their repre- sentative, and of their opinion if his integrity and abil- ity will supply the want of estate, there is better reason for contending, that it ought not prevail Secondly, that by requiring a property qualification, it may hs^ pen, that men, the best qualified in other respects, might be incapacitated firom serving their country.* There is, doubtless, weight in each of these considera- tions. The first, however, is equally applicable to all sorts of qualifications whatsoever ; and proceeds upon an inadmissible* foundation ; and that is, that the soci- ety has no just right to regulate for the common good, what a portion of the community may deem for their special good. The other reason has a better founda- tion in theory; though, generally speaking, it will rarely occur in practice. But it goes very far towards overturning another fundamental guard, which is deemed essential to public liberty ; and that is, that the representative should have a common interest in measures with his constituents. Now, the power of taxation, one of the most delicate and important in human society, will rarely be exerted oppressively by those, who are to share the common burthens. The possession of property has in this respect a great value
1 Dr. Lieber's EDcyclopedia Amoncana, art. CcntUhdimu ^ ihjt United States. 9 1 Tucker's Black. Comm. App. 212, 213 ; 1 Elliot's Debates, 55, 56.
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among the proper qualifications of a representative ; smce it will hare a tendency to check any undue im- positions, or sacrifices, which may equally injure his own, as well as theirs.^
^621. In like manner there is a total absence of any qualification founded on religious opinions. How- ever desirable it may be, that every government should be administered by those, who have a fixed religious belief and feel a deep responsibility to an infinitely wise and eternal Bemg ; and however strong may be our persuasion of the everlasting value of a belief in Christianity for our present, as wdl as our immortal wel- &re ; the history of the world has shown the extreme dangers, as weU as difficulties^ of connecting the civil power with religious opinions. Half the calamities, with which the human race have been scourged, have aris- en from the union of church and state ; and the { eople of America^ above all others, have too largely partaken of the terrors and the sufferings of persecution for conscience' sake, not to feel an excessive repugnance to the introduction of religious tests. Experience has demonstrated the folly, as well as the injustice, of ex- clusions from office, foimded upon religious opinions. They have aggravated all other evils in the political organization of societies. They carry in their train discord, oppression, and bloodshed.* They perpetu- ate a savage ferocity, and insensibility to human rights and sufferings. Wherever they have been abolished, they have introduced peace and moderation, and en- li^tened legislation. Wherever they have been per- petuated, they have always checked, and in many
1 1 Tucker's BlaeL Comm. App. 213, 3ia > See 4 Black. Comm. 44, 45, 46, 47.
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cases have overturaed all the securities of public Kb* erty. The right to burn heretics survived in England almost to the close of the reign of Gharies the Second ; * and it has been asserted, (but I have not been able to ascertain the fact by examination of the printed journals,) that on that occasion rhe whole bench of bishops voted against the repeal. We all know how slowly the Roman Catholics have recovered their just rights in England and Ireland. The triumph has been but just achieved, after ^ most painful contest for a half century. In the catholic countries, to this very hour, protestants are, for the most part, treated with a cold and reluctant jealousy, tolerated perhaps, but never cherished. In the actual situation of the United States a union of the states would hare been impractible from the known diversity of religious sects, if any thing more, than a simple belief in Christianity in the most general form of expression, had been required. And even to this some of the states would have object- ed, as inconsistent with the fundamental policy of their own charters, constitutions, and laws. Whatever, . indeed, may have been the desire of many persons, of a deep religious feeling, to have embodied some provi- sion on this subject in the constitution, it may be safely affirmed, that hitherto the absence has not been felt, as an evil ; and that while Christianity continues to be the belief of the enlightened, and wise, and pure, among the electors, it is impossible, that infidelity can find an easy home in the house of representatives.
^ 622. It has been justly observed, that under the reasonable qualifications established by the constituticm, the door of this part of the federal government is open
1 4 Black. Comm. 49.
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to merit of every description, whether native or adoptive, whether young or old, and without regard to pov- erty or wealth, or any particular professbn of re- ligious faith.^
^ 623. A question, however, has been suggested upon this subject, which ought not to be passed over without notice. And that is, whether the states can superadd any qualifications to those prescribed by the constitution of the United States. The laws of some of the states have already required, that the represen- tative should be a fi'eeholder, and be resident within the district, for which he is chosen.* If a state legiria- ture has authority to pass laws to this effect, they may impose any other qualifications beyond those provided by the constitution, however inconvenient, restrictive, or even mischievous they may be to the interests of the Union. The legislature of one state may require, that none but a Deist, a Catholic, a Protestant, a Calvinist, or a Universalist, shall be a representative. The legislature of anoth^ state may require, that none shall be a representative but a planter, a farmer, a mechanic, or a manufacturer. It may exclude mer- chants, and divines, and physicians, and lawyers. Another legislature may require a high monied qualifi- cation, a freehdd of great value, or personal estate of great amount Another legislature may require, that the party shall have been bom, and fdways lived in the state, or district ; or that he shall be an inhabitant of a particular town or city, fi^e of a corporation, or eldest son. In short, there is no end to the varieties of qualifications, which, without insisting upon extrava- gant cases, may be imagined. A state may, with the
1 The Federalist, No. 52.
> 1 Tucker's Black. Comm. App. 213.
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sole object of dissolving the Union, create qualifications so high, and so singular, that it shall become impracti- cable to elect any representative.
^ 624. It would seem but fair reasoning upon the plainest principles of interpretation, diat when the con- stitution estabUshed certain qualifications, as necessary for office, it meant to exclude all others, as prerequi- sites. Prom the very nature of such a provision, the affirmation of these qualifications would seem to imply a negative of all others. And a doubt of this sort seems to have pervaded the mind of a learned com- mentator.^ A power to add new qualifications is cer- tainly equivalent to a power to vary them. It adds to the aggregate, what changes the nature of the former requisites. The house of representatives seems to have Acted upon this interpretation, and to have held, that the state legislatures have no power to prescribe new qualifications, unknown to the ccmstitution of the United States.^ A celebrated American statesman,' however, with his avowed devotion to state power, has intimated a contrary doctrine., **Ifi''says he, "whenever the constitution assumes a single power out of many, which belong to the same subject, we should consider it as assuming the whole, it would vest the general govern- ment with a mass of powers never contemplated. On the contrary, the assumption of particular powers seems an exclusion of all not assumed. This reasoning ap- pears to me to be sound, but on so recent a change of view, caution requires us not to be over confident.** * He intimates, however, that unless the case be either
I 1 Tucker's Black. Comm. App. 213. > 4 Jefferson's Corre^ndence, 338, s Mr. Jefferson. i Jefferson's Correspondence, 1239.
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clear or urgent, it would be better to let it lie undis- turbed.*
^ 625. It does not seem to have occurred to this celebrated statesman, that the whole of this reasoning, which is avowedly founded upon that amendment to the constitution, which provides, that ** the powers not delegated nor prohibited to the states, are reserved to the states respectively, or to the people,'* proceeds upon a basis, which is inapplicable to the case. In the first place, no powers could be reserved to the states, ex- cept those, winch existed in the states before the con- stitution was adopted. The amendment does not pro- fess, and, indeed, did not intend to confer on the states any new powers ; but merely to reserve to them, what were not conceded to the government of the Union. Now, it may properly be asked, where did the states get the power to appoint representatives in the national government? Was it a power, that existed at all before the constitution was adopted ? If derived from the constitution, must it not be derived exactly under the qualifications established by the constitution, and none others ? If the constitution has delegated no power to the states to add new qualifications, how can they cladm any such power by the mere adoption of that instrument, which they did not before possess ?
^ 626. The truth is, that the states can exercise no powers whatsoever, which exclusively spring out of the existence of the national government, which the con- stitution does not delegate to them* They have just as much right, and no more, to prescribe new qudifi- cations for a representative, as they have for a presi- dent. Each is an officer of the Union, deriving his
1 4 Jefferson's Correfpondancei p. 239.
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powers and qualifications from the constitution, and neither created by, dependent upon, nor controllable by, the states. It is no original, prerogative of state power to appoint a representative, a senator, or president for the Union. Those oflScers owe their existence and functions to the united voice of the whole, not of a por- tion, of the people. Before a state can assert the rights it must show, that the constitution has delegated and recognised it. No state can say, that it has reserved, what it never possessed.
^ 627. Besides ; mdependent of this, there is another fundamental objection to the reasoning. The whole scope of the argument is, to show, that the legislature of the state has a right to prescribe new qualifications* Now, if the state in its political capacity h^d it, it wodd not follow, that the legislature possessed it That must depend upon the powers confided to the state legisla- ture by its own constitution. A state, and the legisla- ture of a state, are quite different political beings. Now it would be very desirable to know, in which part of any state constitution this authority, exclusively of a national character, is found delegated to any state legis- lature. But this is not all. . The amendment does not reserve the powers to the states exclusively, as political bodies ; for the language of the amendment is, that the powers not delegated, &c. are reserved to the states, or to the people. To justify, then, the exercise of the power by a state, it is indispensable to show, that it has not been reserved to the pec^e of the state. The peo- ple of the state, by adoptmg the constitution, have de- clared what their will is, as to the qualifications ibr ofiice. And here the maxim, if ever, must aj^ly, JSa?- pressio wfiius est exchmo alterius. It might further be urged, that the constitution, being the act of the whole
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people of the United States, formed and fashioned ac- cordmg to their own views, it is not to be assumed, as the basis of any reasoning, that they hare given any control over the functionaries created by it, to any state, beyond what is found in the text of the instru- ment When such a control is asserted, it b matter of proof^ not of assumption ; it is matter to be established, as of right, and not to be exercised by usurpation, un- til it is displaced. The burthen of proof is on the state, and not on the government of the Union. The aflirm- ative is to be established ; the negative is not to be denied, and the denial taken for a concession.
§ 628. In regard to the power of a state to prescribe the qualification of mhabitancy or residence in a dis- trict, as an additional qualification, there is this forcible reason for denying it, that it is undertaking to act upon the very qualification prescribed by the constitution, as to inhabitancy in the state, and abridging its operation. It is precisely the same exercise of power on the part of the states, as if they should prescribe, that a represen- tative should be forty years of age, and a citizen for ten years. In each case, the very qualification fixed by the constitution is completely evaded, and indirectly abolished.
§ 629. The next clause of the second section of the first article respects the apportionment of the represen- tatives among the states. It is as follows : ^^ Represen- **tatives and direct taxes shall be apportioned among *^ the several states, which may be included in this ** Union, according to their respective numbers, which " shall be determined by adding to the whole number of "free persons, including those bound to service for a " term of years, and excluding Indians not taxed, three- " fifths of all other persons. The actual enumeration
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** shall be ma ^'^ within three years after the first meeting **of the congress of the United States^ and within every ^ subsequent term of ten years, in such manner, as they ^ shall, by law, direct. The number of representatives " shall not exceed one for every thirty thousand j but "each state shall have at least one representative. "And until such enumeration shall be made, the state "of New-Hampshire shall be entitled to choose three, "Massachusetts eight, Rhode-Island and Providence " Plantations one, Connecticut five,New-Yorksix,New- " Jersey four, Pennsylvania eight, Delaware one, Mary- "land six, Virginia ten, North-Carolma five, South- " Carolma five, and Greorgia three.'*
§ 630. The first apportionment thus made, being of a temporary and fugacious character, requires no com- mentary.* The basis assumed was probably very near- ly the same, which the constitution pointed out for aM future apporuonments, or, at least, of all the free persons in the states.*
It is obvious, that the question, how the s^portion- ment should be made, was one, upon which a consid- erable diversity of judgment might, and probably would^ exist. Three leading principles of apportionment would, at once, present themselves. One was to adopt the rule already existing, under the confederation ; that is, an equality of representation and vote by each state, thus giving each state a right to send not kss than two, nor more than seven representatives^ and in the determin- ation of questions, each state to have one vote.' This would naturally receive encouragement from all those, who were attached to the confederation, and preferred
» Joarn. of Convention, lOth July, 165, 166, 167, 171, 172, 179, 216. > Joum. of Conyention^ 159, note. But see The Federdist, No. 55* s Confederation, Art 5.
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a mere league of states, to a government in any degree national^ And accordingly it formed, as it should seem, the basis of what was called the New-Jersey Plan.* This rule of apportionment met, however, with a decid- ed opposition, and was negatived m the conventitm at an early period, seven states votmg against it, three be- ing in its favour, and one being divided.'
^631. Another principle might be, to apportion the representation of the states according to the relative property of each, thus making property the basis of representation. This might commend itsdf to some persons, because it would introduce a salutary check into the legislature m regard to taxation, by securing, in some measure, an equalization of the public burthens, by the voice of those, who were called to give most to- wards the common contributions.^ That taxation ought to go hand in hand with representation, had been a fa- vourite theory of the American people. Under the con- federation, all the common expenses were required to be borne by the states in proportion to the value of the land within each state.* But it has been already seen, that this mode of contribution was extremely dif- ficult and embarrassing, and unsatisfactory in practice, under the confederatiop.^ There do not, indeed,
1 Journ. of Convention, 111, 153, 159.
9 Mr. Patterson's Plan, Journ. of Convention, 193; 4ElKot'8 Debates, (Yates's Minutes,) 74 ; Id. 81 ; Id. 107 to 113, 116 ; 2 Pitk. Hist. 228, 239,232.
3 Journ. of Convention, llth June, 111. See also Id. 153, 154; 4 Elliot's Debates, (Yates's Minutes,) 68.
4 4 Elliot's Debates, (Yates's Minutes,) 68, 69 ; Jouin. of Convention, llth June, 111 ; Id. 5th July, 158 ; Id. llth July, 169.
5 Confederation, Art. 8.
« Journals of Congress, 17th Feb. 1783, vol. 8, p. 129 to 133 ; Id. 27th Sept. 1785, vol. 10, p. 328 ; Id. 18th April, 1783, vol. 8, p. 188 ; 1 Elliot's Debates, 56; 2 Elliot's Debates, 113 ; 1 Tuck. Black. Comm. App. 235, 236, 243 to 246 ; The Federalist, No. 80; Id. No. 21. VOL. II. 14
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106 CONSTITUTION OF THE V. STATES. [BOOK III.
seem to be any traces in the proceedings of the conven- tion, that this scheme had an exclusive influence with any persons m that body. It mixed itself up with other considerations, without acquiring any decisive prepond- erance. In the first place, it was easy to provide a reme- dial check upon undue direct taxation, the only species, of which there could be the slightest danger of unequal and oppressive levies. And it will be seen, that this was sufficiently provided for, by declaring, that repre- sentatives and direct taxes should be apportioned by the same ratio.
§ 632. In the next place, although property may not be direcdy aimed at, as a basis in the representation, provided for by the constitution, it cannot, on the other hand, be deemed to be totally excluded, as will pres- ently be seen. In the next place, it is npt admitted, that property alone can, in a free government, safely be re- lied on, as the sole basis of representation. It may be true, and probably is, that in the ordinary course of affairs, it is not the interest, or policy of those, who possess property, to oppress those, who want it But, in every well-ordered commonwealth, persons, as well as property, should possess a just share of influence. The liberties of the people are too dear, and too sacred to be entrusted to any persons, who may not, at all tunes, have a common sympathy and common interest with the people in the preservation of theu* public rights^ privileges, and liberties. Checks and balances, if not indispensable to, are at least a great conservative in, the operations of all fi^e governments. And, perhaps, upon mere abstract theory, it cannot be justly affirmed, that either persons or property, numbers or wealth, can safely be trusted, as the final repositaries of the dele-
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gated powers of goyemment^ By apportioning influ- ence among each, vigilance^ caution^ and mutual checks are naturally introduced, and perpetuated.
§ 633. The third and remaining principle was, to apportion the representatives among the states accord- ing to their relative numbers. This had the recom- mendation of great simplicity and uniformity in its ope- ration, of being generally acceptable to the people, and of being less liable to fraud and evasion, than any other, which could be devised.' Besides ; although wealth and property cannot be affirmed to be in different states, exacdy in proportion to the numbers ; they are not so widely separated from it, as, at a hasty glance, might be imagined. There is, if not a natural, at least a very common connexion between them ; and, perhaps, an apportionment of taxes according to numbers is as equitable a rule for contributions according to reUtive wealth, as any, which can be practically obtained.'
^ 634. The scheme, therefore, under all the circum- stances, of making numbers the basis of the representa- tion of the Union, seems to have obtained more gene- ral favour, than any other in the convenrion, because it had a natural and universal connexion with the rights and liberties of the whole people.^
§ 636. But here a difficulty of a very serious nature arose. There were other pers^ons in several of the states, than those, who were free. There were some persons, who were bound to service for a term of years; though these were so few, that they would scarcely
1 The Federalirt, No. 54. « Id.
3 The Federalist, No. 54 ; Resolve of Congrese, 18th April, 1783, (8 Joanials of Congress, 188,194,198); 1 United States Laws,(Bioren & Duane^s edit) 29, 32, 35.
4 The Federalist, No. 54.
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108 CONSTITUTIOK OF THE U. STATES. [BOOK III.
vary the result of the general rule, in any important de- gree. There were Indians, also, in several, and proba- bly in most, of the states at that period, who were not treated as citizens, and yet, who did not form a part of independent communities or tribes, exercising general sovereignty and powers of government within the boun- daries of the states. It was necessary, therefore, to pro- vide for these cases, though they were attended with no practical