CHAPTER VIII.

THE LEGISLATURE.

$545. THE first article of the Constitution contains the structure, organization, and powers of the legislature of the Union. Each section of that article, and indeed of every other article, will require a careful analysis 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 against it, and the interpretation, so far as it can satisfactorily be ascertained, of the terms in which each is expressed.

§ 546. The first section of the first article is in the following words: "All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives."

$547. 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 concentration of it in a single body was deemed a prominent defect of the confederation. But if a single assembly 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 and vigorous powers delegated in the Constitution.1

§ 548. The utility of a subdivision of the legislative power into different branches having a negative upon each other, is, perhaps, at the present time admitted by most persons of sound reflection.2 But it has not always found general approbation, and is, even now, sometimes disputed by men of speculative ingenuity and recluse habits. It has been justly observed that there is scarcely in the

1 The Federalist, No. 22.

Jefferson's Notes on Virginia, 194; 1 Kent's Comm. 208; De Lolme on the Constitution of England, B. 2, ch. 3; 3 Amer. Museum, 62, 66, Gov. Randolph's Letter.

whole science of politics a more important maxim, and one which bears with greater influence upon the practical operations of gov ernment. It has been already stated that Pennsylvania, in her first constitution, adopted the scheme of a single body as the depositary of the legislative power, under the influence, as is understood, of a mind of a very high philosophical character.1 Georgia, also, is said in her first constitution (since changed) to have confided the whole legislative power to a single body.2 Vermont adopted the same course, giving, however, to the executive council a power of revision and of proposing amendments, to which she yet adheres. We are also told by a distinguished statesman of great accuracy and learning, that at the first formation of our State constitutions it was made a question of transcendent importance, 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 two bodies of men, each having a decisive check upon the action of the other. All the arguments derived from the analogy between the movements of political bodies and the operations of physical nature, all the impulses 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.*

§ 549. It is also certain that the notion that the legislative power ought to be confided to a single body, has been, at various times, adopted by men eminent for their talents and virtues. Milton, Turgot, Franklin, are but a few among those who have professedly entertained and discussed the question.5 Sir James Mackintosh, in a work of a controversial character, written with a zeal and eloquence of youth, advocated the doctrine of a single legislative body. Perhaps his mature life may have changed this early opinion. At all events, he can, in our day, count few fol

1 1 Adams's Defence of American Constitutions, 105, 106; 2 Pitk. Hist. 294, 305, 316. 21 Kent's Comm. 208; 2 Pitk. Hist. 315.

82 Pitk. Hist. 314, 316; Const. of Vermont, 1793, ch. 2, § 2, 16. [Ante, p. 388, note 2.]

4 President J. Q. Adams's Oration, 4th July, 1831. See also Adams's Defence of American Constitutions, per tot; 1 Kent's Comm. 208, 209, 210; 2 Pitk. Hist. 233, 305; Paley's Moral Philosophy, B. 6, ch. 7.

51 Adams's Defence of American Constitutions, 3; Id. 105; Id. 366; 2 Pitk. Hist. 233. Ante, p. 19, § 536.

• Mackintosh on the French Revolution, (1792,) 4th edit. p. 266 to 273.

lowers. Against his opinion, 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.1 Against all visionary reasoning of this sort, Mr. Chancellor Kent has, in a few pages of pregnant sense and brevity, condensed a decisive argument. There is danger, however, that it may hereafter be revived; and indeed it is occasionally hinted by gifted minds, as a problem yet worthy of a fuller trial.3

§ 550. It may not, therefore, be uninstructive to review 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 impetuous. 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, l'esprit du corps. Certain popular leaders often acquire an extraordinary ascendency over the body, by their talents, their eloquence, their intrigues, or their cunning. Measures are often introduced in a hurry, and debated with little care, and examined with less caution. The very restlessness of many minds produces an utter impossibility of debating with much deliberation when a measure has a plausible aspect and enjoys a momentary favor. Nor is it infrequent, especially in cases of this sort, to overlook 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 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

1 1 Kent's Comm. 209, 210.

21 Kent's Comm. 208 to 210.

3 Mr. Tucker, the learned author of the Commentaries on Blackstone, seems to hold the doctrine, that a division of the legislative power is not useful or important. See Tuck. Black. Comm. App. 226, 227.

holding a question long enough under its own view to see and mark it in all its bearings and relations on society.1

§ 551. But it is not merely inconsiderate and rash legislation which is to be guarded against, in the ordinary course of things. There is a strong propensity in public bodies to accumulate power in their own hands, to widen the extent of their own influence, and to absorb within their own circle the means and the motives of patronage. If the whole legislative power is vested in 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 exists upon its exercise.2 Mr. Hume has remarked with great sagacity, that men are generally more honest in their private than in their public capacity; and will go greater lengths to serve a party, than when their own private interest is alone concerned. Honor 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 his own party, for what promotes the common interest; and he soon learns to despise the clamors of adversaries. This is by no means an opinion peculiar to Mr.

11 Kent's Comm. 208, 209; 3 Amer. Museum, 66.

2 The facility with which even great men satisfy themselves with exceeding their constitutional powers was never better exemplified than by Mr. Jefferson's own prac tice and example, as stated in his own correspondence. 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. 4 Jefferson's Corresp. 1, 2, 3, 4. And, in 1810, he contended for the right of the executive to purchase Florida, if in his own opinion the opportunity would otherwise be lost, notwithstanding it might involve a transgression of the law. Id. 149, 150. Such are the examples given of a State necessity, which is to supersede the Constitution and laws. Such are the principles which, he contended, justified him in an arrest of persons not sanctioned by law. Id. 151. [During the late civil war a great number of arrests were made without authority of law; some of them, doubtless, in the belief, which was sometimes avowed and justified, that to save the Constitution and laws it was necessary in the emergency that for the time being on some subjects they should be silent. Many of these cases never became the subject of judicial consideration; but in Ex parte Milligan, 4 Wal. 2, it was decided by the Supreme Court that the guaranties of individual liberty in the Constitution were intended for a state of war as well as a state of peace, and were equally binding upon rulers and people at all times and under all circumstances.]

3 1 Hume's Essays, Essay 6; Id. Essay 16. Mr. Jefferson has said that "the functionaries of public power rarely strengthen in their dispositions to abridge it.” 4 Jefferson's Corresp. 277.

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 infirmities of the history and experience of mankind. With a view, therefore, to preserve the rights and liberties 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 irresistible power.2

$552. This subject is put in a very strong light by an eminent writer, whose mode of reasoning can be best conveyed in his own words. "If," says he, "we should extend our candor 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 majority, 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 this 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 favor of justice, to compel all to respect the common right, the public good, the universal law in preference to all private and partial considerations."4 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 private interests of a few individuals. A few eminent, conspicuous characters will be continued in their seats in the sovereign assembly from one election to another, whatever

1 See 1 Adams's Defence of American Constitutions, p. 121, Letter 26, &c.; Id. Letter 24; Id. Letter 55; 1 Hume's Essays, Essay 16; 1 Wilson's Law Lect. 394 to 397; 3 Adams's Defence of American Constitutions, Letter 6, p. 209, &c.

* Mr. Hume's thoughts are often striking and convincing; but his mode of a perfect commonwealth (1 Hume's Essays, Essay 16) contains some of the most extravagant vagaries of the human mind, equalled only by Locke's Constitution of Carolina. These examples show the danger of relying implicitly upon the mere speculative opinions of the wisest men.

8 Mr. John Adams.

* 3 Adams's Defence of American Constitutions, Letter 6, p. 215, 216. See North American Review, Oct. 1827, p. 263.