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IN THE CONVENTION, UPON THE RESOLUTION TO DIVIDE THE
COMMONWEALTH INTO DISTRICTS FOR THE CHOICE OF SENA. TORS ACCORDING TO POPULATION.
I know not, sir, whether it be probable that any opinions or votes of mine are ever likely to be of more permanent importance, than those which I may give in the discharge of my duties in this body. And of the questions which may arise here, I anticipate no one of greater consequence than the present. I ask leave, therefore, to submit a few remarks to the consideration of the committee.
The subject before us, is the manner of constituting the legislative department of government. We have already decided, that the legislative power shall exist as it has heretofore existed, in two separate and distinct branches, a Senate and a House of Representatives. We propose also, at least I have heard no intimation of a contrary opinion, that these branches shall, in form, possess a negative on each other. And I presume I may take it for granted, that the members of both these houses are to be chosen annually. The immediate question now under discussion, is, In what manner shall the senators be elected ? They are to be chosen in districts ; but shall they be chosen, in proportion to the number of inhabitants in each district, or in proportion to the taxable property of each district, or, in other words, in proportion to the part which each district bears in the public burdens of the state. The latter is the existing provision of the constitution; and to this I give my support. The proposition of the honorable member from Roxbury, (Mr. Dearborn,) proposes to divide the state into certain legislative districts, and to choose a given number of senators, and a given number of representatives, in each district, in proportion to population. This I understand. It is a simple and plain system. The honorable member from Pittsfield, and the honorable member from Worcester support the first part of this proposition—that is to say, that part which provides for the choice of senators, according to population-without explaining entirely their views, as to the latter part, relative to the choice of representatives. They insist that the questions are distinct, and capable of a separate consideration and decision. I confess myself, sir, unable to view the subject in that light. It seems to me, there is an essential propriety in considering the questions together; and in forming our opinions on the constitution of one, with reference
to that of the other. The Legislature is one great machine of goy-* ernment, not two machines; the two Houses are its parts, and its utility will, as it seems to me, depend not merely on the materials of these parts, or their separate construction, but on their accommodation, also, and adaption to each other. Their balanced and regulated movement, when united, is that which is expected to insure safety to the state; and who can give any opinion on this, without first seeing the construction of both, and considering how they are formed and arranged with respect to their mutual relation.- I cannot imagine, therefore, how the member from Worcester should think it uncandid to inquire of him, since he supports this mode of choosing senators, what mode he proposes for the choice of representatives.
It has been said that the constitution, as it now stands, gives more than an equal and proper number of senators to the county of Suffolk. I hope I may be thought to contend for the general principle, without being influenced by any regard to its local application. Í do not inquire whether the senators, whom this principle brings into the government, will come from the county of Suffolk, or from the Housatonic river, or the extremity of Cape Cod. I wish to look only to the principle; and as I believe that to be sound and salutary, I give my vote in favor of maintaining it.
In my opinion, sir, there are two questions before the committee. The first is, shall the legislative department be constructed with any other check than such as arises simply from dividing the members of this department into two houses? The second is, if such other and further check ought to exist, in what manner shall it be created ?
If the two houses are to be chosen in the manner proposed by the resolutions of the member from Roxbury, there is obviously no other check or control than a division into separate chambers. The members of both houses are to be chosen at the same time, by the same electors, in the same districts, and for the same term of office. They will of course all be actuated by the same feelings and interests. Whatever motives may at the moment exist to elect particular members of one house, will operate, equally, on the choice of members of the other. There is so little of real utility in this mode, that, if nothing more be done, it would be more expedient to choose all the members of the legislature, without distinction, simply as members of the legislature, and to make the division into two houses, either by lot, or otherwise, after these members thus chosen should have come up to the capital.
I understand the reason of checks and balances, in the legislative power, to arise from the truth, that, in representative governments that department is the leading and predominating power; and if its will may be at any time suddenly and hastily expressed, there is great danger that it may overthrow all other powers.—Legislative bodies naturally feel strong, because they are numerous, and because they consider themselves as the immediate representatives of the people. They depend on public opinion to sustain their measures, and they undoubtedly possess great means of influencing public opinion. With all the guards which can be raised by constitutional provisions, we are not likely to be too well secured against
cases of improper, or hasty, or intemperate legislation. It may be observed, also, that the executive power, so uniformly the object of jealousy to republics, has become, in the states of this union, deprived of the greatest part both of its importance and its splendor, by the establishment of the general government. While the states possessed the power of making war and peace, and maintained military forces, by their own authority, the power of the state executives was very considerable, and respectable. It might then even be an object, in some cases, of a just and warrantable jealousy. But a great change has been wrought. The care of foreign relations, the maintenance of armies and navies, and their command and control, have devolved on another government. Even the power of appointment, so exclusively, one would think, an executive power, is, in very many of the states, held or controlled by the legislature; that department either making the principal appointments, itself, or else surrounding the chief executive magistrate with a council, of its own election, possessing a negative upon his nominations.
Nor has it been found easy, nor in all cases possible, to preserve the judicial department from the progress of legislative encroachment. Indeed, in some of the states, all judges are appointed by the legislature; in others, although appointed by the executive, they are removable at the pleasure of the legislature. In all, the provision for their maintenance is necessarily to be made by the legislature. As if Montesquieu had never demonstrated the necessity of separating the departments of governments; as if Mr. Adams had not done the same thing, with equal ability, and more clearness, in his defence of the American constitution; as if the sentiments of Mr. Hamilton and Mr. Madison, were already forgotten: we see, all around us, a tendency to extend the legislative power over the proper sphere of the other departments. And as the legislature, from the very nature of things, is the most powerful department, it becomes necessary to provide, in the mode of forming it, some check, which shall insure deliberation, and caution, in its measures. If all legislative power rested in one house, it is very problematical, whether any proper independence could be given, either to the executive or the judiciary. Experience does not speak encouragingly, on that point. If we look through the several constitutions of the states, we shall perceive that generally the departments are most distinct, and independent, where the legislature is composed of two houses, with equal authority, and mutual checks. If all legislative power be in one popular body, all other power, sooner or later, will be there also.
I wish, now, sir, to correct a most important mistake in the manner in which this question has been stated. It has been said, that we propose to give to property, merely as such, a control over the people, numerically considered. But this I take not to be at all the true nature of the proposition. The Senate is not to be a check on the people, but on the House of Representatives. It is the case of an authority, given to one agent, to check or control the acts of another. The people, having conferred on the House of Representatives powers which are great, and, from their nature, liable to abuse, require, for their own security, another house, which shall possess an effectual negative on the first. This does not limit the power of the people; but only the authority of their agents. It is not a restraint on their rights, but a restraint on that power which they have delegated. It limits the authority of agents, in making laws to bind their principals. And if it be wise to give one agent the power of checking or controlling another, it is equally wise, most manifestly, that there should be some difference of character, sentiment, feeling, or origin, in that agent who is to possess this control. Otherwise, it is not at all probable that the control will ever be exercised. To require the consent of two agents to the validity of an act, and yet to appoint agents so similar, in all respects, as to create a moral certainty that what one does the other will do also, would be inconsistent, and nugatory.—There can be no effectual control, without some difference of origin, or character, or interest, or feeling, or sentiment. And the great question in this country has been, where to find, or how to create this difference, in governments entirely elective and popular? Various modes have been attempted, in various states. In some, a difference of qualification has been required, in the persons to be elected. This obviously produces little or no effect. All property qualification, even the highest, is so low as to produce no exclusion, to any extent, in any of the states. A difference of age, in the persons elected, is sometimes required; but this is found to be equally unimportant. It has not happened, neither, that any consideration of the relative rank of the members of the two houses, has had much effect on the character of their constituent members. Both in the state governments, and in the United States government, we daily see persons elected into the House of Representatives who have been members of the Senate. Public opinion does not attach so much weight and importance to the distinction, as to lead individuals greatly to regard it. In some of the states, a different sort of qualification in the electors, is required, for the two houses; and this is probably the most proper and efficient check. But such has not been the provision in this commonwealth, and there are strong objections to introducing it. In other cases, again, there is a double election for senators; electors being first chosen, who elect senators. Such is the constitution of Maryland, in which the senators are elected for five years, by electors appointed in equal numbers by the counties; a mode of election not unlike that of choosing representatives in Parliament for the boroughs of Scotland. In this state, the qualification of the voters is the same, and there is no essential difference in that of the persons chosen.—But, in apportioning the senate to the different districts of the state, the present constitution assigns to each district a number proportioned to its public taxes. Whether this be the best mode of producing a difference in the construction of the two houses, is not now the question; but the question is, whether this be better than no mode.
The gentleman from Roxbury called for authority on this subject. He asked, what writer of reputation had approved the principle for which we contend. I should hope, sir, that even if this call could not be answered, it would not necessarily follow, that the principle should be expunged. Governments are instituted for practical benefit, not for subjects of speculative reasoning, merely. The best authority, for the support of a particular principle or provision in government, is experience; and, of all experience, our own, if it have been long enough to give the principle a fair trial, should be most decisive. This provision has existed for forty years, and while so many gentlemen contend that it is wrong in theory, no one has shown that it has been either injurious or inconvenient in practice. No one pretends, that it has caused a bad law to be enacted, or a good one to be rejected. To call on us, then, to strike out this provision, because we should be able to find no authority for it in any book on government, would seem to be like requiring a mechanic to abandon the use of an implement, which had always answered all the purposes designed by it, because he could find no model of it in the patent office.
But, sir, I take the principle to be well established, by writers of the greatest authority. In the first place, those who have treated of natural law, have maintained, as a principle of that law, that as far as the object of society is the protection of something in which the members possess unequal shares, it is just, that the weight of each person in the common councils should bear a relation and proportion to his interest. Such is the sentiment of Grotius, and he refers, in support of it, to several institutions among the ancient states.
Those authors who have written more particularly on the subject of political institutions, have, many of them, maintained similar sentiments.-Not, indeed, that every man's power should be in exact proportion to his property, but that, in a general sense, and in a general form, property, as such, should have its weight and influence in political arrangement. Montesquieu speaks with approbation of the early Roman regulation, made by Servius Tullius, by which the people were distributed into classes, according to their property, and the public burdens apportioned to each individual according to the degree of power which he possessed in the government. By which regulation, he observes, some bore with the greatness of their tax because of their proportionable participation in power and credit; others consoled themselves for the smallness of their power and credit, by the smallness of their tax. One of the most ingenious of political writers, is Mr. Harrington; an author not now read so much as he deserves. It is his leading object, in his Oceana, to prove, that power naturally and necessarily follows property.--He maintains that a government, founded on property, is legitimately founded; and that a government founded on the disregard of property, is founded in injustice, and can only be maintained by military force. “If one man," says he,“ be sole landlord, like the grand signior, his empire is absolute. If a few possess the land, this makes the Gothic or Feudal constitution. If the whole people be landlords, then is it a commonwealth."
" It is strange,” says Mr. Pope, in one of his recorded conversations, “that Harrington should be the first man to find out so evident and demonstrable a truth as that, of property being the true basis and measure of power.” In truth, he was not the first. The idea is as old as political science itself. It may be found in Aristotle, Lord Bacon, Sir Walter Raleigh, and other writers. Har