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BASIS OF THE SENATE.*
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 pres. ent. I ask leave, therefore, to submit a few remarks to the consideration of the committee.
T'he 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. I presume I may also 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 resolution of the honorable member from Roxbury + proposes to divide the State into certain legislative districts, and
Remarks made on the 15th of December, 1820, in the Convention, upon the Resolution to divide the Commonwealth into Districts for the Choice of Senators according to Population.
† General Dearborn.
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 Worcesterf 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 of them, as parts respectively of one legislative system. The legislature is one great machine of government, 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 adaptation 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. I do not inquire whether the senators whom this, principle brings into the government will come from the county of Suffolk, from the valley of the Housatonic, 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 shall 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 con
† Mr. Lincoln.
structed 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 the 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 im. mediate 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 in the States of this Union been deprived of the greater 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 warranta
ble 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 Constitutions; 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 mani . festly, 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. Neither has it happened, 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