THE SEPARATION OF THE

SECTION II.

LEGISLATURE INTO TWO CO-ORDINATE
BRANCHES.

§ 188. The second feature in the organization of the government which I shall notice is, the division of the Legislature into two co-ordinate branches, the Senate and the House of Representatives, the one chosen directly by the people, the other appointed directly by the legislatures of the several states. Art. I. Sec. I. declares that the Congress "shall consist of a Senate and House of Representatives." Art. I. Sec. II. § 1, says that "the House of Representatives shall be composed of representatives chosen every second year by the people of the several states." Art. I. Sec. III. § 1, provides that "the Senate of the United States shall be composed of two senators from each state, chosen by the legislature thereof, for six years, and each senator shall have one vote."

Of the advantages and even necessity of this dual arrangement, I do not now intend to speak. The subject is fully discussed in Dr. Lieber's "Treatise on Civil Liberty," and in "The Federalist." This double legislature has approved itself so well that all the states have formed their local assemblies upon the same model.

§ 189. But the framers of the Constitution did not invent this scheme; they had an example ready at hand to imitate ; they evidently copied from the British Parliament. Like that the Congress, in its law-making function, truly represents three estates. Not indeed royalty, nobility, and commons; but the President represents the people in their collective, imperial capacity; the Senate represents the same people gathered into their local commonwealths; while the lower House represents the same people as divided into small and single communities, Thus we have all interests united. The nation, as one bodypolitic, speaks through the President. The states, as separate political societies, speak through the Senate; the local districts speak each through their own delegates. All varieties of opinions and interests are thus instrumental in moulding the

national legislation. The tyranny of majorities is weakened, all claims may be heard and fairly considered; and a policy suited to the general good of the whole may be evolved from this conflict.

$ 190. And here we see again involved in the formation of our national Congress, the two ideas which were referred to in a former chapter, that of local self-government, and that of centralization, united and balanced in such a manner that neither can destroy, but each may aid and strengthen the other. The provisions of the Constitution which regulate the choice of Senators, and confer the power of selection upon the state legislatures, and yield to each commonwealth an equal voice in the upper House, were the result of a spirit of compromise. So tenacious were the states of this equality that an express restriction upon the power of amendment is inserted in the Constitution; it cannot be destroyed without an unanimous consent. Thus have we fast anchored in our fundamental law the principle of local self-government. While we recognize the nation, while we glory in our unity, we have guarded against a central power of such magnitude as to endanger the liberties of the citizen. To a popular branch of the legislature, fresh from contact with small constituencies, frequently elected, partaking of the momentary passions and errors of the people, and therefore endeavoring to reflect their immediate wishes, is joined the more conservative Senate, fewer in numbers, with longer duration of office, appointed by the legislatures, and therefore somewhat removed from the fitful flow of the popular will. One house is the force which drives, the other the anchor which holds fast; one is the in strument of progress, the other tempers the vehemence of advance; one communicates speed, the other steadiness. Yet as each is finally responsible to the people, and draws its inspiration from the same source, the Senate is not, like the British House of Lords, the representative of class interests and of privileged orders. It does not interpose itself as an obstruction to all progress, hindering the onward march by the mere force of passive resistance. It is conservative be

1 Const. Art. V.

cause it has the opportunity to be calmer and more deliberate, to look beyond the present, to study the effect of measures upon the future.

§ 191. When we turn from the Senate to the more numerous and popular branch, the question meets us, how are the members to be apportioned to their constituents; according to what ratio shall they be allotted among the several states. As the principle of local self-government had been preserved in the organization of the Senate by giving each commonwealth an equality of representation, so after some struggle the principle of centralization, the idea of an empire, triumphed in constructing the lower House. All state equality is here abandoned, and the members are to represent either property or population. But it was perceived that any definite distribution which should be made at the time when the Constitution was adopted, and which might then be just and equable, would, probably, as years passed by, and the nation developed in resources, become extremely unfair and one sided. Some rule must, therefore, be established which would hold good for all subsequent generations; by which the representation might be rearranged from time to time whenever a necessity should require.

§ 192. It was easy to determine that the number of delegates given to each particular state should be ascertained by the amount of the population, and not by the amount of property. It was therefore provided that at the outset each state should be entitled to a certain definite number of representatives; that the number of representatives should never exceed one for every thirty thousand; but that each state should always have at least one delegate; and that as the basis of the subsequent apportionment, an enumeration of inhabitants. should be taken within three years after the first meeting of Congress and at intervals of ten years thereafter.1

§ 193. But in fixing upon the exact basis of apportionment by means of this census, a difficulty presented itself so great that it could only be evaded by a compromise. Had the inhabitants of the states been all freemen no such difficulty could

1 Const. Art. I. Sec. II. § 3.

have arisen; but most of the original thirteen states contained a mixed population of freemen and slaves, and in the Southern States the latter class bore a large proportion to the former. Should these slaves be reckoned as persons in determining the number of inhabitants in a state for the purpose of ascertaining how many delegates that state should send to the national Congress? On the one side it was urged that slaves were property, and therefore not to be included in the aggregate of population; on the other hand it was replied that slaves were actual persons, and were as much entitled to be represented as women and minors and all others who are forbidden to exercise political rights. This contrariety of opinion on so vital a question could only be arranged by a compromise, and it is thus that the Constitution settled the difficulty.

"Representatives and direct taxes shall be apportioned among the several states which may be included within this Union, according to their respective numbers, which shall be determined by adding to the whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxed, three fifths of all other persons. The term "free persons" includes all inhabitants of every age, sex, and color who are not in a condition of slavery, except Indians not taxed; "all other persons" is the constitutional euphemism for slavery.

§ 194. During the continuance of slavery this rule of the Constitution resulted in giving to the Southern States a far larger representation in Congress than would have been due simply from the number of freemen in those communities, and thus greatly added to the power of the ruling class at the South. For the slaves were, to all intents and purposes, property, made so by the state laws, and no more appropriate to be taken as the basis of an apportionment, than the cattle and horses of the Northern farmer. The claim that, being actual persons, they were to be regarded as in the same condition as women and minors, was plainly fallacious. Women and minors, though having no political capacities, are clothed with all civil rights, rights for whose protection governments are

1 Const. Art. I. Sec. III. § 3.

instituted. Slaves have no such rights; as members of the society they are completely swallowed up in their masters; even the laws for their personal safety are rather enacted in the interests of the masters, to protect their property. As the slaves could not, under any supposable circumstances, exert the slightest influence in the actual choice of legislators, the Southern freeman, while voting on behalf of a fraction of his slave population, was just so far out voting his Northern fellowcitizen.

§ 195. This preponderating influence may be increased in the future rather than diminished. An amendment to the Constitution has abolished slavery, and the bondmen have become free. There are now no more "other persons to whom the constitutional provision can apply. Representatives must be apportioned equally over the whole country. The same number of free citizens in every part of the Union will now speak through the voice of every delegate to the national Congress. This will immediately increase the number of Southern representatives in the lower House; for the total representative population of a state will no longer be ascer tained by adding to the number of freemen three fifths of the slaves, but by adding to the former freemen the whole of the former slaves. This result will be unobjectionable if the vast aggregate of persons thus suddenly raised into the status of freedom and taken as the numerical basis of apportionment, can have any actual voice, can exert any positive influence in the choice of representatives. If this power be not conferred upon them, the former governing classes at the South will have received an accession to their political importance; the balance will be even more inclined in their favor. In no other portion of the country will there be such an enormous number of free persons, who, by state laws, are deprived of all active co-operation in the management of the government, and yet who are reckoned as persons that must be fully represented in the Congress of the nation.

§ 196. This result was probably overlooked at the time when the amendment abolishing slavery was adopted. Various plans are now suggested to evade it. A second amend