national polity under the following heads:- (1.) The constituent parts of Congress, and the mode of their appointment. (2.) Their joint and separate powers and privileges. (3.) Their method of enacting laws, with the qualified negative of the President.

1. Of the Division into Two Houses.

By the Constitu* 222 tion, (a) all the legislative powers therein * granted are vested in a Congress, consisting of a Senate and House of Representatives.

The division of the legislature into two separate and independent branches is founded on such obvious principles of good policy, and is so strongly recommended by the unequivocal language of experience, that it has obtained the general approbation of the people of this country. One great object of this separation of the legislature into two houses, acting separately and with co-ordinate powers, is to destroy the evil effects of sudden and strong excitement, and of precipitate measures, springing from passion, caprice, prejudice, personal influence, and party intrigue, which have been found, by sad experience, to exercise a potent and dangerous sway in single assemblies. A hasty decision is not so likely to proceed to the solemnities of a law, when it is to be arrested in its course, and made to undergo the deliberation, and probably the jealous and critical revision, of another and a rival body of men, sitting in a different place, and under better advantages to avoid the prepossessions and correct the errors of the other branch. The legislatures of Pennsylvania and Georgia consisted originally of a single house. The instability and passion which marked their proceedings were very visible at the time, and the subject of much public animadversion; and in the subsequent reform of their constitutions, the people were so sensible of this defect, and of the inconvenience they had suffered from it, that in both states a senate was introduced. No portion of the political history of mankind is more full of instructive lessons on this subject, or contains more

(a) Art. 1, sec. 1.

1 Laboulaye, Histoire des États-Unis, ii. Douzième Leçon, 288. Contra, Mill on Representative Government, c. 13. "The evil of two co-equal houses of distinct natures is obvious. Each house can

stop all legislation, and yet some legislation may be necessary." Bagehot on the English Constitution, No. v. p. 127. See also ib. 137, and Pomeroy, Const. Law, § 188 et seq.

striking proof of the faction, instability, and misery of states under the dominion of a single unchecked assembly, than that of the Italian republics of the middle ages, which arose in great numbers, and with dazzling but transient splendor, in the interval between the fall of the Western and the Eastern empire of the Romans. They were all alike ill-constituted, with a single unbalanced assembly. They were alike miserable, * 223 and all ended in similar disgrace. (a)

*

Many speculative writers and theoretical politicians about the time of the commencement of the French revolution were struck with the simplicity of a legislature with a single assembly, and concluded that more than one house was useless and expensive. This led the elder President Adams to write and publish his great work, entitled, "A Defence of the Constitutions of Government of the United States," in which he vindicates, with much learning and ability, the value and necessity of the division of the legislature into two branches, and of the distribution of the different powers of the government into distinct departments. He reviewed the history, and examined the construction of all mixed and free governments which had ever existed, from the earliest records of time, in order to deduce, with more certainty and force, his great practical truth, that single assemblies, without check or balance, or a government with all authority collected into one centre, according to the notion of M. Turgot, were visionary, violent, intriguing, corrupt, and tyrannical dominations of majorities over minorities, and uniformly and rapidly terminated their career in a profligate despotisın.

This visionary notion of a single house of the legislature was carried into the constitution which the French National Assembly adopted in 1791. The very nature of things, said the intemperate and crude politicians of that assembly, was adverse to every division of the legislative body; and that as the nation which was represented was one, so the representative body ought to be one also. The will of the nation was indivisible, and so ought to be the voice which pronounced it. If there were two chambers, with a veto upon the acts of each other, in some cases they would be reduced to perfect inaction. By such reasoning, the National Assembly of France, consisting of upwards of one thousand members, * after a short and tumultuous debate, * 224

(a) Adams's Defence of the American Constitutions, iii. 502.

almost unanimously voted to reject the proposition of an upper house. (a) The same false and vicious principle continued for some time longer to prevail with the theorists of that country; and a single house was likewise established in the plan of government published by the French convention in 1793. The instability and violent measures of that convention, which continued for some years to fill all Europe with astonishment and horror, tended to display, in a most forcible and affecting light, the miseries of a single unchecked body of men, clothed with all the legislative powers of the state. It is very possible that the French nation might have been hurried into the excesses of a revolution, even under a better organization of their government; but if the proposition of M. Lally Tolendal, to constitute a senate or upper house, to be composed of members chosen for life, had prevailed, the constitution would have had much more stability, and would probably have been much better able to preserve the nation in order and tranquillity. Their own sufferings taught the French people to listen to that oracle of wisdom, the experience of other countries and ages, and which for some years they had utterly disregarded, amidst the hurry and the violence of those passions by which they were inflamed. No people, said M. Boissy d'Anglas, in 1795, can testify to the world with more truth and sincerity than Frenchmen can do, the dangers inherent in a single legislative assembly, and the point to which factions may mislead an assembly without reins or counterpoise. We accordingly find that in the next constitution, in 1795, there was a division of the legislature, and a council of ancients was introduced, to give stability and moderation to the government; and this idea of two houses was never afterwards abandoned.

2. Of the Senate. The Senate of the United States is composed (b) of two senators from each state, chosen by the * 225 legislature thereof, * for six years, and each senator has one vote. If vacancies in the Senate happen by resignation, or otherwise, during the recess of the legislature of any state, the executive thereof may make temporary appointments, until the next meeting of the legislature, which shall then fill such vacancies. (a) The Senate at present consists of sixty members,

(a) New Ann. Reg. for 1791. Hist. 49.

(b) Art. 1, sec. 3.

(a) It was settled by the Senate of the United States, in the case of Landman, in

representing the thirty states of the Union. (b) In this part of the Constitution we readily perceive the features of the old confederation. Each state has its equal voice and equal weight in the Senate, without any regard to disparity of population, wealth, or dimensions. This arrangement must have been the result of that spirit of amity and mutual concession which was rendered indispensable by the peculiarity of our political condition. It is grounded on the idea of sovereignty in the states; and every independent community, as we have already seen, is equal by the law of nations, and has a perfect right to dictate its own terms, before it enters into a social compact. On the principle of consolidation of the states, this organization would have been inadmissible, for in that case each state would have been merged in one single and entire government. At the time the articles of confederation were preparing, it was attempted to allow the states an influence and power in Congress in a ratio to their numbers and wealth; but the idea of separate and independent states was at that day so strongly cherished, that the proposition met with no success. (c)

The election of the Senate by the state legislatures is also a recognition of their separate and independent existence, and renders them absolutely essential to the operation of the national government. (d) There were difficulties, some years ago, as to the true construction of the Constitution in the choice of senators. They were to be chosen by the legislatures, and the legislature was to prescribe the times, places, and manner of holding elections for senators, and Congress are authorized to make and alter such regulations, except as to the place. (e) As the legislature may prescribe the manner, it has been considered and settled, in New York, that the legislature may prescribe that they shall be

1825, that the state executive could not make an appointment in the recess of the state legislature, in anticipation of an approaching vacancy. He must wait until the vacancy has actually occurred before he can constitutionally appoint.

(b) In 1840, it was enlarged from 48 to 52 members, by the admission of Michigan and Arkansas as states into the Union, in 1836, vide infra, 384, and subsequently to 60 members, by the admission of Iowa, Florida, Wisconsin, and Texas as states into the Union, vide infra, 384. The members of the English House of Lords are about 460 in number.

(c) Journals of Congress, iii. 416.

(d) It gives to the state governments, says the Federalist, No. 62, such an agency in the formation of the federal government as must secure their authority.

(e) Art. 1, sec. 4.

* 226 chosen by joint vote or ballot of the two houses, in case the two houses cannot separately concur in a choice, and then the weight of the Senate is dissipated and lost in the more numerous vote of the Assembly. This construction has become too convenient, and has been too long settled by the recognition of senators so elected, to be now disturbed; though I should think, if the question was a new one, that when the Constitution directed that the senators should be chosen by the legislature, it meant not the members of the legislature per capita, but the legislature in the true technical sense, being the two houses acting in their separate and organized capacities, with the ordinary constitutional right of negative on each other's proceedings. This was a contemporary exposition of the clause in question, and was particularly maintained in the well-known letters of the Federal Farmer, (a) who surveyed the Constitution with a jealous and scrutinizing eye.

The small number and long duration of the Senate were intended to render them a safeguard against the influence of those paroxysms of heat and passion which prevail occasionally in the most enlightened communities, and enter into the deliberation of popular assemblies. In this point of view, a firm and independent Senate is justly regarded as an anchor of safety amidst the storms of political faction; and for want of such a stable body, the republics of Athens and Florence were overturned by the fury of commotions, which the Senates of Sparta, Carthage, and Rome might have been able to withstand. The characteristical qualities of the Senate, in the intendment of the Constitution, are wisdom and stability. The legal presumption is, that the Senate will entertain more enlarged views of public policy, will feel a higher and juster sense of national character, and a greater regard for stability in the administration of the government. These quali

ties, it is true, may, in most cases, be equally found in the * 227 other branch of the legislature, but the constitutional structure of the House is not equally calculated to produce them; for, as the House of Representatives comes more immediately from the people, and the members hold their seats for a much shorter time, they are presumed to partake, with a quicker sensibility, of the prevailing temper and irritable disposition of the times, and to be in much more danger of adopting measures (a) Letter 12.