CHAP. V. ITS FORMATION AND DIVISION. 71 public confidence and vigour; and, on the other, to retain a large portion of experienced members, duly initiated into the general principles of national policy, and the forms and course of business in the House." "3 4 Thus, then, the Legislative is divided into two bodies, each having a control over the other, and the concurrence of both being requisite to make laws. The popular branch was intended to be the direct representative of the people, the Senate of the people incorporated as States, all the States returning through their Legislatures the same number of senators irrespective of their area, wealth, or population. By this double contrivance it was thought that no class or interest in the country would be left without its due share of representation in the councils of the nation. The precise ends which the founders of the Constitution aimed to accomplish will be most satisfactorily explained by a brief reference to the expounders of it. "It is the people only," said President Adams in his inaugural address, "that are represented it is their power and majesty that is 36 Commentaries,' Part II. Lect. xi. It was the original design that the Senate should be a check upon the popular power. Thus, in the Convention of 1787, Mr. Randolph said," He observed that the general object was to provide for the evils under which the United States laboured; that in tracing these evils to their origin, every man had found it in the turbulence and follies of democracy; that some check therefore was to be sought for against this tendency of our government; and that a good Senate seemed most likely to answer the purpose." (Madison's 'Reports,' p. 138.) 66 reflected, and only for their good in every legitimate government under whatever form it may appear." According to Jefferson the guiding principle of representation should be to secure the absolute supremacy of the will of the majority. In his inaugural address he insists upon the importance of "absolute acquiescence in the decisions of the majority, the vital principle of republics, from which there is no appeal but to force." In a letter to a friend he remarks,— 'My most earnest wish is to see the republican element of popular control pushed to the maximum of its practical exercise. I shall then believe that our government may be pure and perpetual."5 And again he writes, “The first principle of republicanism is that the lex majoris partis is the fundamental law of every society of individuals of equal rights; to consider the will of the society enounced by the majority of a single vote as sacred as if unanimous, is the first of all lessons in importance, yet the last which is thoroughly learnt." There have been writers who openly contended that there would be no danger in giving the whole control of the government to the Legislative. "The old Congress," says one," "held the Executive power of the Union. It was a plural Executive, annually appointed, liable to recall, ineligible after three years. . . . A sovereignty Jefferson's Works, vol. vii. p. 32. 6 Ibid. vol. vii. p. 75. 7 John Taylor, a Virginian: 'Inquiry into the principles and policy of the Government of the United States' (1848), pp. 175 and 211. CHAP. V. CONSTITUTIONAL FUNCTIONS OF CONGRESS. 73 over the Constitution, objectionable as it would still be, would be safer in the Legislature than in the Judiciary, because of its duennial responsibility." But there can be no question that those who drew up the Constitution attached great importance to the principle that each department of the government should be kept distinct from the others, and independent of them. "To what purpose," says Hamilton, "separate the Executive or the Judiciary from the Legislative, if both the Executive and the Judiciary are so constituted as to be at the absolute devotion of the Legislative? Such a separation must be merely nominal, and incapable of producing the ends for which it was established." The only men who seem to have been desirous of placing the preponderance of power in the hands of the Legislative were those who represented the section of the country which suffered most by that change in after years. The powers possessed by Congress are specifically defined by the Constitution. It is authorised to levy and collect taxes, to borrow money, to regulate commerce with foreign nations, to coin money and regulate the value thereof, to constitute tribunals inferior to the Supreme Court, to declare war and to raise and support armies, to maintain a navy, and make rules for the regulation of the land and naval forces, to admit new States to Congress, and make laws for the regulation of territories,10 and to exercise 8 Federalist,' No. 71. 9 Art. I. sect. 8. 10 Art. IV. sect. 3. exclusive legislation over the district which is the seat of the Government of the United States." By an amendment to the original Constitution it is provided that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances." Chancellor Kent remarks of the powers thus committed to Congress, that some of them, "as the levying of taxes, duties, and excises, are concurrent with similar powers in the several States; but in most cases these powers are exclusive, because the concurrent exercise of them by the States separately would disturb the general harmony and peace, and because they would be apt to be repugnant to each other in practice and lead to dangerous collisions." We shall see hereafter that Congress has always shown a disposition to enlarge the sphere of its authority, and to transcend the plain and express provisions of the Constitution. It was inevitable that this should happen. Congress, with the support of the majority to maintain it, was sure to gain the ascendency in the State. That it should always retain in the framework of government precisely the position assigned to it in the Constitu 11 It was in the exercise of this last power that Congress finally passed an Act (over the veto of President Johnson) for conferring the suffrage upon negroes in the district of Columbia (Jan. 7th and 8th, 1867). CHAP. V. AMERICAN IDEAS OF REPRESENTATION. 75 tion was impossible. There was no other effectual and abiding check placed upon it but the will of the people, and to expect them to control it within theoretical limits was to place before them unlimited power and ask them not to use it. It is a favourite boast with some Americans, although the idea by no means obtains universal assent among them, that the scheme of representation so laboriously prepared in the Federal and State Conventions confers upon the people the greatest advantages of which any arrangement of the elective franchise is capable. Whatever the cultivated classes may think, the masses believe that they have a more thorough and efficient representation in the national legislature than is known anywhere else in the world. And this belief is fortified by the authority of some of the most distinguished Americans. Webster says, the theory of representation "is admirably accommodated to our Constitution, better understood among us, and more familiarly and extensively practised, in the higher and in the lower departments of government, than it has been by any other people." So, likewise, Chancellor Kent remarks—" The United States, in their improvements upon the exercise of the right of representation, may, as we apprehend, claim pre-eminence over all other governments, ancient and modern."13 And Mr. Justice Story affirmed that every expedient which human ingenuity could 12 |