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changes are made in the seats around them. By superior art, address, and opulence, by more splendid birth, reputations, and connections, they will be able to intrigue with their 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 connections, and 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 shall 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 obsequious enough to their inclinations. The whole judicial authority, as well as the executive, will be employed, perverted, and prostituted to the purposes of electioneering. No justice will be attainable, nor will innocence 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 judicial power, the public money will be expended in the same way. No favors will be attainable but by those who will court the ruling demagogues of the house by voting for their friends and instruments; and pensions, and pecuniary rewards and gratifications, as well as honors and offices of every kind, voted to friends and partisans, etc., etc. 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 will not accept of the hire that will be offered them, they must submit to the ruin that will be denounced against them. The presses, with much secrecy and concealment, will be made the vehicles of calumny against 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 affairs, and every conceivable motive of hope or fear, will be employed to promote the private interests of a few, and their obsequious majority; and there is no remedy but in arms. Accordingly we find in all the Italian republics, the minority always were driven to arms in despair." 1
§ 553. Another learned writer has ventured on the bold declara1 3 Adams's Defence of American Constitutions, 284 to 286.
tion, 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 intermixed with sudden and violent fits of despotism, injustice, and cruelty." 1
§ 554. Without conceding that this language exhibits an unexaggerated picture of the results of the legislative 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.2 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 possess 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 organization. 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.
§ 555. The value, then, of a distribution of the legislative 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 security against hasty, rash, and dangerous legislation; and allows errors and mistakes to be corrected, before they have produced any public mischiefs. It interposes delay between the introduction and final adoption of a measure, and thus furnishes time for reflection, and for the successive deliberations of different bodies, actuated by different motives, and organized upon different principles.
§ 556. 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 of the influence of the leaders who favor a particular measure, by whom it must be scanned, and to
1 1 Wilson's Law Lect. 393 to 405; The Federalist, No. 22.
2 See Sidney on Government, ch. 3, § 45.
whom it must be recommended upon its own merits, will have silent tendency to discourage the efforts to carry it by surprise, or by intrigue, or by corrupt party combinations. It is far less easy to deceive, or corrupt, or persuade two bodies into a course subversive of the general good, than it is one; especially if the elements of which they are composed are essentially different.
§ 557. In the next place, as legislation necessarily acts, or may act, upon the whole community, and involves interests of vast difficulty and complexity, and requires nice adjustments and comprehensive enactments, it is of the greatest consequence to secure an independent review of it by different minds, acting under dif ferent and sometimes opposite opinions and feelings; so that it may be as perfect as human wisdom can devise. An appellate jurisdiction, therefore, that acts and is acted upon alternately, in the exercise of an independent revisory authority, must have the means, and can scarcely 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 defective, are its provisions to protect rights and to redress wrongs. Whatever, therefore, naturally and necessarily 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 found, than the creation of an independent branch of censors to revise the legislative enactments of others, and to alter, amend, or reject them at its pleasure, while, in return, its own are to pass through a like ordeal.
§ 558. 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 legislative power is always arbitrary and not to be trusted in the hands of any who are not bound to obey the laws
1 "Look," says an intelligent writer, “into every society, analyze public measures, and get at the real conductors of them, and it will be found that few, very few men in every government, and in the most democratical perhaps the fewest, are, in fact, the persons who give the lead and direction to all which is brought to pass."-Thoughts upon the Political Situation of the United States of America, printed at Worcester, 1788.
they make.1 But it is not less true that it has a constant tendency to overleap its proper boundaries, from passion, from ambition, from inadvertence, from the prevalence of faction, or from the overwhelming influence of private interests. Under such circumstances, the only effectual barrier against oppression, accidental or intentional, is to separate its operations, to balance interest against interest, ambition against ambition, the combinations 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 into 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 Constitution, and its uncontrollable power may prompt the determination, 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.'
§ 559. 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. Experience has shown that if in all cases it has not been found a complete check to inconsiderate or unconstitutional 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 wanting at all times minds of a high order, which have been led
1 Sidney's Disc. on Government, ch. 3, § 45.
2 The Federalist, Nos. 15.
3 Id. Nos. 62, 15.
4 1 Wilson's Law Lect. 396; The Federalist, Nos. 62, 63. Mr. Jefferson was decidedly in favor 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 this period when this subject was discussed. 2 Pitk. Hist. 283. 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 result of a division of the executive power is either a more or less speedy establishment of the right of the strongest, or a continued state of war; that of a division of the legislative power is either truth or general tranquillity." See also Paley's Moral and Political Philosophy, B. 6, ch. 6, 7.
by enthusiasm, or a love of simplicity, or a devotion to theory, to vindicate such a union with arguments striking and plausible, if not convincing.
§ 560. In the convention which formed the Constitution, upon the resolution moved, "that the national legislature ought to consist of two branches," all the States present, except Pennsylvania, voted in the affirmative.1 At a subsequent period, however, seven only, of eleven States present, voted in the affirmative, three in the negative, and one was divided.2 But, although in the convention this diversity of opinion appears, it seems probable that ultimately when a national government was decided on, which should exert great controlling authority over the States, all opposition 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 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 principally with reference to the articles of confederation, and the structure of the Senate.4 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 commanding influence upon the actual basis in the House, the lesser States could not but unite in a desire to maintain their own equality in a co-ordinate branch.5
§ 561. 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 summary of those grounds which were deemed most important, 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.
1 Journal of the Convention, 85; 2 Pitk. Hist. 233.
2 Journal of the Convention, 140.
3 Yates's Minutes, 4 Elliot's Debates, 59, 75, 76; Id. 87, 88, 89; Id. 124, 125.
4 The Federalist, Nos. 22, 62, 63.
5 The Federalist, No. 22; Id. Nos. 37, 38; Id. No. 39; Id. No. 62.