VIII CREATION OF THE FEDERAL LEGISLATURE All states have three elements, and the good law-giver has to regard what is expedient for each state. When they are well-ordered, the state is well-ordered, and as they differ from one another, constitutions differ. What is the element first (1) which deliberates about public affairs; secondly (2) which is concerned with the magistrates and determines what they should be, over whom they should exercise authority, and what should be the mode of electing them; and thirdly (3) which has judicial power? (The Politics of Aristotle, English translation by Benjamin Jowett, 1885, Vol. I, Book IV, Ch. 14, p. 133.) They saw that to live by one man's will became the cause of all men's misery. This constrained them to come unto laws, wherein all men might see their duties beforehand, and know the penalties of transgressing them. (Richard Hooker, Of the Laws of Ecclesiastical Polity, 1594, Church edition, 1868, Book I, Section 10, p. 56.) The government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right. (Mr. Chief Justice Marshall in Marbury v. Madison, 1 Cranch 137, 163, decided in 1803.) Relation being had to these two times, Government (to define it de jure, or according to antient Prudence) is an Art whereby a Civil Society of Men is instituted and preserv'd upon the Foundation of common Right or Interest; or (to follow Aristotle and Livy) It is the Empire of Laws, and not of Men. And Government (to define it de facto, or according to modern Prudence) is an Art whereby some man, or some few men, subject a City or a Nation, and rule it according to his or their private Interest: which, because the Laws in such cases are made according to the interest of a man, or of some few Families, may be said to be the Empire of Men, and not of Laws. (James Harrington, The Common-wealth of Oceana, 1656, Toland edition, 1737, Part I, The Preliminaries, Shewing the Principles of Government, p. 37.) But it is plain that where the Law is made by one Man, there it may be unmade by one man; so that the Man is not govern'd by the Law, but the Law by the Man; which amounts to the Government of the Man, and not of the Law: Whereas the Law being not to be made but by the Many, no man is govern'd by another man, but by that only which is the common interest; by which means this amounts to a Government of Laws, and not of Men. (James Harrington, The Art of Law-giving, 1659, Toland edition, 1737, Preface, p. 386.) Where the People are not over-balanc'd by one Man, or by the Few, they are not capable of any other Superstructures of Government, or of any other just and quiet settlement whatsoever, than of such only as consists of a Senate as their Counsillors, of themselves or their Representatives as Sovereign Lords, and of a Magistracy answerable to the People, as distributers and executioners of the Laws made by the People. And thus much is of absolute necessity to any or every Government, that is or can be properly call'd a Commonwealth, whether it be well or ill order'd. But the necessary definition of a Common-wealth, any thing well order'd, is, That it is a Government consisting of the Senate proposing, the People resolving, and the Magistracy executing. Magistracy is a stile proper to the executive part: yet because in a Discourse of this kind. it is hardly avoidable, but that such as are of the proposing or resolving Assemblies, will be sometimes compriz'd under this name or stile, it shall be enough for excuse to say, that Magistracy may be esteem'd of two kinds; the one proper or Executive, the other improper or Legislative. (James Harrington, The Art of Law-giving, 1659, Toland edition, 1737, Ch. VÌ, p. 393.) Thirdly. I know what is said by the several admirers of monarchy, aristocracy and democracy, which are the rule of one, a few, and many, and are the three common ideas of government, when men discourse on the subject. But I chuse to solve the controversy with this small distinction, and it belongs to all three: Any government is free to the people under it (whatever be the frame) where the laws rule, and the people are a party to those laws, and more than this is tyranny, oligarchy, or confusion. (William Penn's Preface to the Frame of Government of Pennsylvania, 1682, Ben. Perley Poore, The Federal and State Constitutions, Colonial Charters, and other Organic Laws of the United States, Part II, 1877, p. 1519.) The great end of Mens entring into Society, being the Enjoyment of their Properties in Peace and Safety, and the great instrument and means of that being the Laws establish'd in that Society; the first and fundamental positive Law of all Commonwealths, is the establishing of the Legislative Power; as the first and fundamental natural Law, which is to govern even the Legislative itself, is the preservation of the Society, and (as far as will consist with the publick good) of every person in it. (John Locke, Two Treatises of Government, 1690, Book II, Ch. XI, section 134, Works, Edition of 1714, Vol. II.) The Supream Power cannot take from any Man any part of his Property without his own Consent. . . . This is not much to be fear'd in Governments where the Legislative consists, wholly or in part, in Assemblies which are variable, whose Members upon the dissolution of the Assembly, are Subjects under the common Laws of their Country, equally with the rest. (John Locke, Two Treatises of Government, 1690, Book II, Ch. XI, section 138, Works, Edition of 1714, Vol. II.) When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no 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 power of judging be not separated from the legislative and executive powers. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary controul; for the judge would then be the legislator. Were it joined to the executive power, the judge might behave with all the violence of an oppressor. 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 those three powers, that of enacting laws, and that of executing the public resolutions, and that of judging the crimes or differences of individuals. (M. de Montesquieu, L'Esprit des Lois, 2 Vols., 1748, English translation of 1756, Vol. I, Book XI, Chap. VI, p. 165.) In the government of this commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers, or either of them; the judicial shall never exercise the legislative and executive powers, or either of them; to the end it may be a government of laws, and not of men. (Declaration of Rights of the Inhabitants of the Commonwealth of Massachusetts, 1780, Ben: Perley Poore, The Federal and State Constitutions, Colonia! Charters, and other Organic Laws of the United States, Part I, 1877, p. 960, Article XXX.) "Sir," said Rufus Choate, in the Massachusetts Convention of 1853, for revising the Constitution of the State (1 Debates, 120), "that same Bill of Rights, which so solicitously separates executive, judicial, and legislative powers from each other, to the end,'- in the fine and noble expression of Harrington, borrowed from the ancient prudence,' one of those historical phrases of the old glorious school of liberty of which this Bill of Rights is so full,- and which phrases I entreat the good taste of my accomplished friends in my eye, to whom it is committed, to spare in their very rust, as they would spare the general English of the Bible,-' to the end it may be a government of laws, and not of men'; that same Bill of Rights separates the people, with the same solicitude, and for the same reason, from every part of their actual government,-to the end it may be a government of laws and not of men.'" (James Bradley Thayer, Cases on Constitutional Law, 1895, Vol. I, foot-note, pp. 384-385.) The idea of an actual representation of all classes of the people by persons of each class is altogether visionary. Unless it were expressly provided in the Constitution that each different occupation should send one or more members, the thing would never take place in practice. (Alexander Hamilton, The Federalist, No. 35 [33], 1788, Ford, Editor, 1898, p. 216) The door ought to be equally open to all, (Alexander Hamilton, The Federalist, No. 36 [34], 1788, Ford, Editor, 1898, p. 220.) The system of representation which grew up in the early colonies under no legal authority of the English crown (with the exception of Maryland, where it was only authorized and not directed), came to be recognized and ratified by subsequent charters. It was ratified in Connecticut by the charter of 1662; in Rhode Island by the charter of 1663, and later in Massachusetts by the charter of 1692. In the colonies established after the Restoration in 1660 it became usual for the English king to grant to the proprietor permission to give to the freemen the right to a share in legislation, either in person or by deputies. It thus seems evident that the representative system in America had its origin in the peculiar circumstances in which the early colonies were placed. It was the product of the practical instinct of the Teutonic race, which had given birth to a form of representation even before the time of Henry III. or Edward I. It was not established by any charter of the English king, and did not receive a chartered sanction until it had become an established institution in the colonies. It had its own peculiar features in America, which were evidently not patterned after any existing model. It was rather a reversion to an earlier type than a reproduction of an existing one; and was, in fact, more truly representative of the whole body of the people than was the contemporary English House of Commons. (William C. Morey, The First State Constitutions, Annals of the American Academy of Political and Social Science, 1893, Vol. 4, p. 210.) The enlargement of population must always be attended either by the decay of democratic institutions, or else by the adoption of some form of representation. The special form which representation will assume in any people, which possesses the political sagacity to solve the problems growing out of its own social life, will be determined by the circumstances of time and place. It will be seen that the form of representation which grew up in the American colonies was not a reproduction of the elaborate and comparatively mature system which then existed in England, but was the outgrowth of the simple life of the colonists themselves, and was moreover marked by those inchoate features which distinguish a primitive from a well-developed institution. The need of representation was felt by the colonists as soon as their population became scattered and unable to meet in a single assembly. The system arose from the requirements of the colonists themselves, and was fully established before it was recognized by the English crown. (William C. Morey, The First State Constitutions, Annals of the American Academy of Political and Social Science, 1893, Vol. 4, p. 205.) A federal state requires for its formation two conditions. There must exist, in the first place, a body of countries such as the Cantons of Switzerland, the Colonies of America, or the Provinces of Canada, so closely connected by locality, by history, by race, or the like, as to be capable of bearing, in the eyes of their inhabitants, an impress of common nationality. . . . A second condition absolutely essential to the founding of a federal system is the existence of a very peculiar state of sentiment among the inhabitants of the countries which it is proposed to unite. They must desire union, and must not desire unity. (Albert Venn Dicey, Introduction to the Study of the Law of the Constitution, 1885, 8th edition, 1915, pp. 136-7.) A federal state is a political contrivance intended to reconcile national unity and power with the maintenance of state rights." The end aimed at fixes the essential character of federalism. For the method by which Federalism attempts to reconcile the apparently inconsistent claims of national sovereignty and of state sovereignty consists of the formation of a Constitution under which the ordinary powers of sovereignty are elaborately divided between the common or national government and the separate states. The details of this division vary under every different federal constitution, but the general principle on which it should rest is obvious. Whatever concerns the nation as a whole should be placed under the control of the national government. All matters which are not primarily of common interest should remain in the hands of the several States. . . From the notion that national unity can be reconciled with state independence by a division of powers under a common constitution between the nation on the one hand and the individual States on the other, flow the three leading characteristics of completely developed federalism,- the supremacy of the constitution - the distribution among bodies with limited and co-ordinate authority of the different powers of government - the authority of the Courts to act as interpreters of the constitution. (Albert Venn Dicey, Introduction to the Study of the Law of the Constitution, 1885, 8th edition, 1915, pp. 139–140.) The Spirit of The Two Branches of the Legislature CHAPTER VIII CREATION OF THE FEDERAL LEGISLATURE IN Mr. Randolph's resolutions the legislative power precedes the executive and the judiciary, and therefore was the first to be taken up; and the very first resolution of the group dealing with legislative power raised the issues which divided the delegates of the large and the small States into hostile camps. But the difference was adjusted by a concession of the extreme views of each, resulting in a compromise which made the Constitution a possibility; and indeed it may be stated in this connection, as it will be illustrated in the course of this narrative, that agreement was only possible on that principle of give and take obtaining in international conferences, and that the Constitution itself is the very creature of compromise and concession. The necessary spirit of concession was perhaps best stated by Mr. John Langdon of New Hampshire, whom, apropos of the Militia clause in the proposed Constitution, Mr. Madison reports as follows: Mr. Langdon said He could not understand the jealousy expressed by some Gentleman. The General & State Govts, were not enemies to each other, but different institutions for the good of the people of America. As one of the people he could say, the National Govt. is mine, the State Govt. is mine In transferring power from one to the other - I only take out of my left hand what it cannot so well use, and put it into my right hand where it can be better used.1 The plan provided for a national legislature of two houses, the first and the second, which, in the completed instrument appear as the Congress, consisting of a House of Representatives and a Senate, the first representing the people of the States according to their population, the second the States or the people within the States, and in which each is represented by two Senators, voting as individuals, not as delegates casting their vote under direct and specific instructions of the State or the citizens thereof. There was practically no objection to the bicameral system, although Pennsylvania, apparently influenced by Dr. Franklin's preference for a single chamber, proposed it, only to have it rejected.2 Nor was there any great opposition to the powers with which each of 1 Documentary History of the Constitution, Vol. iii, p. 597. 2"The 3d Resolution that the national Legislature ought to consist of two branches' was agreed to without debate or dissent, except that of Pennsylvania, given probably from complaisance to Doc". Franklin who was understood to be partial to a single House of Leg islation." Ibid., p. 26. these branches was to be vested. These were indeed important matters, but they were rather questions of detail, after agreement upon the principle, and until that principle was accepted, a Constitution of the kind proposed by the Virginian plan was impossible. This principle was that the first branch should not merely be elected by the people of the several States but that the right of suffrage in the national legislature ought "to be proportioned to the quotas of contribution or to the number of free inhabitants." It was provided in the fifth resolution that the members of the second branch" ought to be elected by those of the first, out of a proper number of persons nominated by the individual Legislatures." 1 There was little or no opposition to the election of the first branch by the people of each and every State, and after no great discussion Mr. Dickinson's motion was accepted on June 7th,2 that the members of the second branch should be elected by the legislatures of the respective States, thus providing the basis for the compromise that the first branch should represent the people of the States as such, the second branch the States. The instructions of the State of Delaware, however, blocked the way, for although they did not prevent a double chamber, if the convention should think such a system desirable, they forbade the delegates of that State from accepting a system in which the States should not have an equal vote. This opposition was brought to a head by Mr. Madison, who moved, on May 30th, the first session in which the plan was discussed, "that the equality of suffrage established by the articles of Confederation ought not to prevail in the National legislature, and that an equitable ratio of representation ought to be substituted." 3 of Repre It does not need to be recalled that Mr. Madison represented the large State of Virginia. In view of the discussion of the matter of equality be- Questions tween members of that delegation and of Pennsylvania before the opening sentation of the convention, it was to be expected that Mr. Madison would be seconded by a member of that delegation, and it was, very appropriately by Gouverneur Morris, who had raised the question. Mr. Madison, commenting upon his motion, says that it was "generally relished" and that it "would have been agreed to; when, Mr. Reed moved that the whole clause relating to the point of Representation be postponed; reminding the Com°. that the deputies from Delaware were restrained by their comission from assenting to any change of the rule of suffrage, and in case such a change should be fixed on, it might become their duty to retire from the Convention.* |