History of the Origin, Formation, and Adoption of the Constitution of the United States Volume II Part 11

They introduced, however, into their draft of a Const.i.tution, an express provision that every member of the House of Representatives should be of the age of twenty-five years at least, should have been a citizen of the United States for at least three years before his election, and should be, at the time of his election, a resident in the State in which he might be chosen.[135]

A property qualification for the members of the House of Representatives was a thing of far less consequence than the fact of citizens.h.i.+p. Indeed, there might well be a doubt, whether a requisition of this kind would not be in some degree inconsistent with the character that had already been impressed upon the government, by the compromise which had settled the nature of the representation in the popular branch. It was to be a representation of the people of the States; and as soon as it was determined that the right of suffrage in each State should be just as broad as the legislative authority of the State might see fit to make it, the basis of the representation became a democracy, without any restrictions save those which the people of each State might impose upon it for themselves. If then the Const.i.tution were to refrain from imposing on the electors a property qualification, for the very purpose of including all to whom the States might concede the right of voting within their respective limits, thus excluding the idea of a special representation of property, it was certainly not necessary to require the possession of property by the representatives, or to clothe the national legislature with power to establish such a qualification. The clause reported by the committee of detail for this purpose was accordingly left out of the Const.i.tution.[136]

But with respect to citizens.h.i.+p, as a requisite for the office of a representative or a senator, very different considerations applied.

With whatever degree of safety the States might be permitted to determine who should vote for a representative in the national legislature, it was necessary that the Const.i.tution itself should meet and decide the grave questions, whether persons of foreign birth should be eligible at all, and if so, at what period after they had acquired the general rights of citizens. It seems highly probable, from the known jealousies and fears that were entertained of foreign influence, that the eligibility to office would have been strictly confined to natives, but for a circ.u.mstance to which allusion has already been made. The presence of large numbers of persons of foreign birth, who had adopted, and been adopted by, some one of the States, who stood on a footing of equality with the native inhabitants, and some of whom had served the country of their adoption with great distinction and unsuspected fidelity, was the insuperable obstacle to such a provision. The objection arising from the impolicy of discouraging future immigration had its weight; but it had not the decisive influence which was conceded to the position of those foreigners already in the country and already enjoying the rights of citizens.h.i.+p under the laws and const.i.tutions of the several States.

That men should be perpetually ineligible to office under a const.i.tution which they had a.s.sisted in making, could not be said to be demanded by the people of America.

The subject, therefore, was found of necessity to resolve itself into the question, what period of previous citizens.h.i.+p should be required.

The committee of detail proposed three years. Other members desired a much longer period. Hamilton, on the other hand, supported by Madison, proposed that no definite time should be established by the Const.i.tution, and that nothing more should be required than citizens.h.i.+p and inhabitancy. He thought that the discretionary power of determining the rule of naturalization would afford the necessary means of control over the whole subject. But this plan did not meet the a.s.sent of a majority of the States, and, after various periods had been successively rejected, the term of seven years' citizens.h.i.+p as a qualification of members of the House of Representatives was finally established.

But was this qualification to apply to those foreigners who were then citizens of the States, and who, as such, would have the right to vote on the acceptance of the Const.i.tution? Were they to be told that, although they could ratify the Const.i.tution, they could not be eligible to office under it, until they had enjoyed the privileges of citizens.h.i.+p for seven years? They had been invited hither by the liberal provisions of the State inst.i.tutions; they had been made citizens by the laws of the State where they resided; the Articles of Confederation gave them the privileges of citizens in every other State; and thus the very communities by which this Convention had been inst.i.tuted were said to have pledged their public faith to these persons, that they should stand upon an equality with all other citizens. It is a proof that their case was thought to be a strong one, and it is a striking evidence of the importance attached to the principles involved, that an effort was made to exempt them from the operation of the rule requiring a citizens.h.i.+p of seven years, and that it was unsuccessful.[137]

It is impossible now to determine how numerous this body of persons were, in whose favor the attempt was made to establish an exception to the rule; and their numbers const.i.tute a fact that is now historically important only in its bearing upon a principle of the Const.i.tution.

From the arguments of those who sought to introduce the exception, it appears that fears were entertained that the retrospective operation of the rule would expose the acceptance of the Const.i.tution to great hazards; for the States, it was said, would be reduced to the dilemma of rejecting it, or of violating the faith pledged to a part of their citizens. Accordingly, the implied obligation of the States to secure to their citizens of foreign birth the same privileges with natives was urged with great force, and it was inferred from the notorious inducements that had been held out to foreigners to emigrate to America, and to avail themselves of the easy privileges of citizens.h.i.+p. Whether the United States were in any way bound to redeem these alleged pledges of the States, was a nice question of casuistry, that was a good deal debated in the discussion. But in truth there was no obligation of public faith in the case, the disregard of which could be justly made a matter of complaint by anybody. When the States had made these persons citizens, and through the Articles of Confederation had conferred upon them the privileges of citizens in every State in the Union, they did not thereby declare that such adopted citizens should be immediately eligible to any or all of the offices under any new government which the American people might see fit to establish at any future time. To have said that they never should be eligible, would have been to establish a rule that would have excluded some of the most eminent statesmen in the country. But the period in their citizens.h.i.+p when they should be made eligible, was just as much an open question of public policy, as the period of life at which all native and all adopted citizens should be deemed fit to exercise the functions of legislators. If the citizen of foreign birth was disfranchised by the one requirement, the native citizen was equally disfranchised by the other, until the disability had ceased.

The question was decided, therefore, and rightly so, upon large considerations of public policy; and the princ.i.p.al reasons that exercised a controlling influence upon the decision, and caused the refusal to establish any exception to the rule, afford an interesting proof of the national tone and spirit that were intended to be impressed upon the government at the beginning of its history.

It was quite possible, as all were ready to concede, that the time might arrive, when the qualification of so extended a period of citizens.h.i.+p as seven years might not be practically very important; since the people, after having been long accustomed to the duty of selecting their representatives, would not often be induced to confer their suffrages upon a foreigner recently admitted to the position of a citizen. The mischiefs, too, that might be apprehended from such appointments would be far less, after the policy of the government had been settled and the fundamental legislation necessary to put the Const.i.tution into activity had been accomplished. But the first Congress that might be a.s.sembled under the Const.i.tution would have a work of great magnitude and importance to perform. Indeed, the character which the government was to a.s.sume would depend upon the legislation of the few first years of its existence. Its commercial regulations would then be mainly determined. The relations of the country with foreign nations, its position towards Europe, its rights and duties of neutrality, its power to maintain a policy of its own, would all then be ascertained and settled. Nothing, therefore, could be more important, than to prevent persons having foreign attachments from insinuating themselves into the public councils; and with this great leading object in view, the Convention refused, though by a mere majority only of the States, to exempt from the rule those foreigners who had been made citizens under the naturalization laws of the States.[138]

Thus it appears that the Const.i.tution of the United States discloses certain distinct purposes with reference to the partic.i.p.ation of foreigners in the political concerns of the country. In the first place, it was clearly intended that there should be no real discouragement to immigration. The position and history of the country from its first settlement, its present and prospective need of labor and capital, its territorial extent, and the nature of its free inst.i.tutions, were all inconsistent with any policy that would prevent the redundant population of Europe from finding in it an asylum.

Accordingly, the emigrant from foreign lands was placed under no perpetual disqualifications. The power of naturalization that was conferred upon the general government, and the accompanying circ.u.mstances attending its transfer by the States, show an intention that some provision should be made for the admission of emigrants to the privileges of citizens.h.i.+p, and that in this respect the inducements to a particular residence should be precisely equal throughout the whole of the States. The power was not to remain dormant, under ordinary circ.u.mstances, although there might undoubtedly be occasions when its exercise should be suspended. The intention was, that the legislature of the United States should always exercise its discretion on the subject; but the existence of the power, and the reasons for which it was conferred, made it the duty of the legislature to exercise that discretion according to the wants of the country and the requirements of public policy.

In the second place, it is equally clear that the founders of the government intended that there should be a real, as well as formal, renunciation of allegiance to the former sovereign of the emigrant,--a real adoption, in principle and feeling, of the new country to which he had transferred himself,--an actual amalgamation of his interests and affections with the interests and affections of the native population,--before he should have the power of acting on public affairs. This is manifest, from the discretionary authority given to Congress to vary the rule of naturalization from time to time as circ.u.mstances might require,--an authority that places the States under the necessity of restricting their right of suffrage to citizens, if they would avoid the evils to themselves of an indiscriminate exercise of that right by all who might choose to claim it. The period of citizens.h.i.+p, too, that was required as a qualification for a seat in the popular branch of the government, and which was extended to nine years for the office of senator, was placed out of the discretionary power of change by the legislature, in order that an additional term, beyond that required for the general rights of citizens.h.i.+p, might for ever operate to exclude the dangers of foreign predilections and an insufficient knowledge of the duties of the station.

No one who candidly studies the inst.i.tutions of America, and considers what it was necessary for the founders of our government to foresee and provide for, can hesitate to recognize the wisdom and the necessity of these provisions. A country of vast extent opened to a boundless immigration, which nature invited and which man could scarcely repel,--a country, too, which must be governed by popular suffrage,--could not permit its legislative halls to be invaded by foreign influence. The independence of the country would have been a vain and useless achievement, if it had not been followed by the practical establishment of the right of self-government by the native population; and that right could be secured for their posterity only by requiring that foreigners, who claimed to be regarded as a part of the people of the country, should be first amalgamated in spirit and interest with the ma.s.s of the nation.

No other changes were made in the proposed qualifications for the representatives, excepting to require that the person elected should be an _inhabitant_ of the State for which he might be chosen, at the time of election, instead of being a _resident_. This change of phraseology was adopted to avoid ambiguity; the object of the provision being simply to make the representation of the State a real one.

The Convention, as we have seen, had settled the rule for computing the number of inhabitants of a State, for the purposes of representation, and had made it the same with that for apportioning direct taxes among the States.[139] The committee of detail provided that there should be one representative for every forty thousand inhabitants, when Congress should find it necessary to make a new apportionment of representatives; a ratio that had not been previously sanctioned by a direct vote of the Convention, but which had been recommended by the committee of compromise, at the time when the nature of the representation in both houses was adjusted.[140] This ratio was now adopted in the article relating to the House of Representatives; but not before an effort was made to exclude the slaves from the enumeration.[141] The renewed discussion of this exciting topic probably withdrew the attention of members from the consideration of the numbers of the representatives, and nothing more was done, at the time we are now examining, than to make a provision that the number should not exceed one for every forty thousand inhabitants. But at a subsequent stage of the proceedings,[142] before the Const.i.tution was sent to the committee of revision, Wilson, Madison, and Hamilton endeavored to procure a reconsideration of this clause, for the purpose of establis.h.i.+ng a more numerous representation of the people. Hamilton, who had always and earnestly advocated the introduction of a strong democratic element into the Const.i.tution, although he desired an equally strong check to that element in the construction of the Senate, is represented to have expressed himself with great emphasis and anxiety respecting the representation in the popular branch. He avowed himself, says Mr. Madison, a friend to vigorous government, but at the same time he held it to be essential that the popular branch of it should rest on a broad foundation. He was seriously of opinion, that the House of Representatives was on so narrow a scale as to be really dangerous, and to warrant a jealousy in the people for their liberties.[143]

But the motion to reconsider was lost,[144] and it was not until the Const.i.tution had been engrossed, and was about to be signed, that an alteration was agreed to, at the suggestion of Was.h.i.+ngton. This was the only occasion on which he appears to have expressed an opinion upon any question depending in the Convention. With the habitual delicacy and reserve of his character, he had confined himself strictly to the duties of a presiding officer, throughout the proceedings. But now, as the Const.i.tution was likely to go forth with a feature that would expose it to a serious objection, he felt it to be his duty to interpose. But it was done with great gentleness. As he was about to put the question, he said that he could not forbear expressing his wish that the proposed alteration might take place. The smallness of the proportion of representatives had been considered by many members, and was regarded by him, as an insufficient security for the rights and interests of the people. Late as the moment was, it would give him much satisfaction to see an amendment of this part of the plan adopted. The intimation was enough; no further opposition was offered, and the ratio was changed to one representative for thirty thousand inhabitants.[145]

It is now necessary to trace the origin of a peculiar power of the House of Representatives, that is intimately connected with the practical compromises on which the government was founded, although the circ.u.mstances and reasons of its introduction into the Const.i.tution are not generally understood. I refer to the exclusive power of originating what are sometimes called "money bills." In making this provision, the framers of our government are commonly supposed to have been guided wholly by the example of the British const.i.tution, upon an a.s.sumed a.n.a.logy between the relations of the respective houses in the two countries to the people and to each other. This view of the subject is not wholly correct.

At an early period in the deliberations, when the outline of the Const.i.tution was prepared in a committee of the whole, a proposition was brought forward to restrain the Senate from originating money bills, upon the ground that the House would be the body in which the people would be the most directly represented, and in order to give effect to the maxim which declares that the people should hold the purse-strings. The suggestion was immediately encountered by a general denial of all a.n.a.logy between the English House of Lords and the body proposed to be established as the American Senate. In truth, as the construction of the Senate then stood in the resolutions agreed to in the committee of the whole, the supposed reason for the restriction in England would have been inapplicable; for it had been voted that the representation in the Senate should be upon the same proportionate rule as that of the House, although the members of the former were to be chosen by the legislatures, and the members of the latter by the people, of the States. It was rightly said, therefore, at this time, that the Senate would represent the people as well as the House; and that if the reason in England for confining the power to originate money bills to the House of Commons was that they were the immediate representatives of the people, the reason had no application to the two branches proposed for the Congress of the United States.[146] It was however admitted, that, if the representation in the Senate should not finally be made a proportionate representation of the people of the several States, there might be a cause for introducing this restriction.[147] This intimation referred to a reason that subsequently became very prominent. But when first proposed, the restriction was rejected in the committee by a vote of seven States against three; there being nothing involved in the question at that time excepting the theoretical merits of such a distinction between the powers of the two houses.[148]

But other considerations afterwards arose. When the final struggle came on between the larger and the smaller States, upon the character of the representation in the two branches, the plan of restricting the origin of money bills to the House of Representatives presented itself in a new aspect. The larger States were required to concede an equality of representation in the Senate; and it was supposed, therefore, that they would desire to increase the relative power of the branch in which they would have the greatest numerical strength.

The five States of Ma.s.sachusetts, Pennsylvania, Virginia, North Carolina, and South Carolina had steadily resisted the equality of votes in the Senate. When it was at length found that the States were equally divided on this question, and it became necessary to appoint the first committee of compromise, the smaller States tendered to the five larger ones the exclusive money power of the House, as a compensation for the sacrifice required of them. It was so reported by the committee of compromise; and although it met with resistance in the Convention, and was denied to be a concession of any importance to the larger States, it was retained in the report,[149] and thus formed a special feature of the resolutions sent to the committee of detail.

But those resolutions had also established the equality of representation in the Senate, and the whole compromise, with its several features, had therefore been once fully ascertained and settled. A strong opposition, nevertheless, continued to be made to the exclusive money power of the House, by those who disapproved of it on its merits; and when the article by which it was given in the reported draft prepared by the committee of detail was reached, it was stricken out by a very large vote of the States.[150] In this vote there was a concurrence of very opposite purposes on the part of the different States composing the majority. New Jersey, Delaware, and Maryland, for example, feeling secure of their equality in the Senate, were not unwilling to allow theoretical objections to prevail, against the restriction of money bills to the branch in which they would necessarily be outnumbered. On the other hand, some of the delegates of Pennsylvania, Virginia, and South Carolina, still unwilling to acquiesce in the equality of representation in the Senate, may have hoped to unhinge the whole compromise. There was still a third party among the members, who insisted on maintaining the compromise in all its integrity, and who considered that the nature of the representation in the Senate, conceded to the wishes of the smaller States, rendered it eminently fit that the House alone should have the exclusive power to originate money bills.[151]

This party finally prevailed. They rested their first efforts chiefly upon the fact that the Senate was to represent the States in their political character. Although it might be proper to give such a body a negative upon the appropriations to be made by the representatives of the people, it was not proper that it should tax the people. They first procured a reconsideration of the vote which had stricken out this part of the compromise. They then proposed, in order to avoid an alleged ambiguity, that bills for raising money for the purpose of _revenue_, or appropriating money, should originate in the House, and should not be so amended or altered in the Senate as to increase or diminish the sum to be raised, or change the mode of levying it, or the object of its appropriation.[152] An earnest and somewhat excited debate followed this proposition, but it was lost.[153]

In a day or two, however, another effort was made, conceding to the Senate the power to amend, as in other cases, but confining the right to the House of originating bills for raising money for the purpose of revenue, or for appropriating the same, and for fixing the salaries of officers of the government.[154]

This new proposition was postponed for a long time, until it became necessary to refer several topics not finally acted upon to a committee of one member from each State.[155] Among these subjects there was one that gave rise to protracted conflicts of opinion, which will be examined hereafter. It related to the mode of choosing the executive. In the plan reported by the committee of detail, pursuant to the instructions of the Convention, the executive was to be chosen by the national legislature, for a period of seven years, and was to be ineligible a second time. Great efforts were subsequently made to change both the mode of appointment and the tenure of the office, and the whole subject was finally referred with others to a committee. In this committee, a new compromise, which has attracted but little attention, embraced the long-contested point concerning the origin of money bills. In this compromise, as in so many of the others on which the Const.i.tution was founded, two influences are to be traced. There were in the first place what may be called the merits of a proposition, without regard to its bearing on the interests of particular States; and in the second place there were the local or State interests, which entered into the treatment of every question by which they could be affected. In studying the compromises of the Const.i.tution, it is constantly necessary to observe how the arrangement finally made was arrived at by the concurrence of votes given from these various motives.

It was now proposed in the new committee, that the executive should be chosen by electors, appointed by each State in such manner as its legislature might direct, each State to have a number of electors equal to the whole number of its senators and representatives in Congress; that the person having the greatest number of votes, provided it were a majority of the electors, should be declared elected; that if there should be more than one having such a majority, the Senate should immediately choose one of them by ballot; and that if no person had a majority, the Senate should immediately choose by ballot from the five highest candidates on the list returned by the electors. This plan of vesting the election in the Senate, in case there should be no choice by the electors, was eagerly embraced by the smaller States, because it was calculated to restore to them the equilibrium which they would lose in the primary election, by the preponderance of votes held by the larger States. At the same time, it gave to the larger States great influence in bringing forward the candidates, from whom the ultimate choice must be made, when no choice had been effected by the electors; and it put it in their power, by a combination of their interests against those of the smaller States, to choose their candidate at the first election. To this great influence, many members from the larger States desired, naturally, to add the privilege of confining the origin of revenue bills to the House of Representatives. They found in the committee some members from the smaller States willing to concede this privilege, as the price of an ultimate election of the executive by the Senate, and of other arrangements which tended to elevate the tone of the government, by increasing the power and influence of the Senate. They found others also who approved of it upon principle. The compromise was accordingly effected in the committee, and in this att.i.tude the question concerning revenue bills again came before the Convention.[156]

But there, a scheme that seemed likely to elevate the Senate into a powerful oligarchy, and that would certainly put it in the power of seven States, not containing a third of the people, to elect the executive, when there failed to be a choice by the electors, met with strenuous resistance. For these and other reasons, not necessary to be recounted here, the ultimate choice of the executive was transferred from the Senate to the House of Representatives.[157] This change, if coupled with the concession of revenue bills to the House, without the right to amend in the Senate, would have thrown a large balance of power into the former a.s.sembly; and in order to prevent this inequality, a provision was made, in the words used in the Const.i.tution of Ma.s.sachusetts, that the Senate might propose or concur with amendments, as on other bills. With this addition, the restriction of the origin of bills for raising revenue to the House of Representatives finally pa.s.sed, with but two dissentient votes.[158]

The qualifications of the Senators had been made superior in some respects to those of the members of the House of Representatives, on account of the peculiar duties which it was intended they should discharge, and the length of their term of office. They were to be of the age of thirty years; to be inhabitants of the States for which they might be chosen; and in the report of the committee of detail the period of four years' citizens.h.i.+p was made one of the requirements.

But so great was the jealousy of foreign influence, and so important was the position of a senator likely to become, that, when this particular qualification came to be considered, it was found to be altogether impossible to make so short a period of citizens.h.i.+p acceptable to a majority. According to the plan then contemplated, the Senate was to be a body of great power. Its legislative duties were to form but a part of its functions. It was to have the making of treaties, and the appointment of amba.s.sadors and judges of the Supreme Court, without the concurrent action of any other department of the government. In addition to these special powers, it was to have a concurrent vote with the House of Representatives in the election of the executive. It was also to exercise the judicial function of hearing and determining questions of boundary between the States.

This formidable array of powers, which were subsequently much modified or entirely taken away, but which no one could then be sure would not be retained as they had been proposed, rendered it necessary to guard the Senate with peculiar care. A very animated discussion, in which the same reasons were urged on both sides which had entered into the debate on the qualifications of the representatives, enforced by the peculiar dangers to which the Senate might be exposed, at length resulted in a vote establis.h.i.+ng the period of nine years' citizens.h.i.+p as a qualification for the office of a senator.[159]

The origin of the number of senators and of the method of voting forms an interesting and important topic, to which our inquiries should now be directed. We have already seen that, in the formation of the Virginia plan of government, as it was digested in the committee of the whole, the purpose was entertained, and was once sanctioned by a bare majority of the States, of giving to both branches of the legislature a proportional representation of the respective populations of the States; and that the sole difference between the two chambers then contemplated was to be in the mode of election. But in the actual situation of the different members of the confederacy, it was a necessary consequence of such a representation, that the Senate would be made by it inconveniently large, whether the members were to be elected by the legislatures, the executives, or the people of the States. It would, in fact, have made the first Senate to consist of eighty or a hundred persons, in order to have ent.i.tled the State of Delaware to a single member. This inconvenience was pointed out at an early period, by Rufus King;[160] but it did not prevent the adoption of this mode of representation. On the one side of that long contested question were those who desired to found the whole system of representation, as between the States, upon their relative numbers of inhabitants. On the other side were those who insisted upon an absolute equality between the States. But among the former there was a great difference of opinion as to the best mode of choosing the senators,--whether they should be elected by the people in districts, by the legislatures or the executives of the States, or by the other branch of the national legislature. So strongly, however, were some of the members even from the most populous States impressed with the necessity of preserving the State governments in some connection with the national system, that, while they insisted on a proportional representation in the Senate, they were ready to concede to the State legislatures the choice of its members, leaving the difficulty arising from the magnitude of the body to be encountered as it might be.[161]

The delegates of the smaller States accepted this concession, in the belief that the impracticability of constructing a convenient Senate in this mode would compel an abandonment of the principle of unequal representation, and would require the subst.i.tution of the equality for which they contended.

In this expectation they were not disappointed; for when the system framed in the committee came under revision in the Convention, and the severe and protracted contest ended at last in the compromise described in a previous chapter, the States were not only permitted to choose the members of the Senate, but they were admitted to an equality of representation in that branch, and the subject was freed from the embarra.s.sment arising from the numbers that must have been introduced into it by the opposite plan. From this point, the sole questions that required to be determined related to the number of members to be a.s.signed to each State, and the method of voting. The first was a question of expediency only; the last was a question both of expediency and of principle.

The constant aim of the States, which had from the first opposed a radical change in the structure of the government, was to frame the legislature as nearly as possible upon the model of the Congress of the Confederation. In that a.s.sembly, each State was allowed not more than seven, and not less than two members; but in practice, the delegations of the States perpetually varied between these two numbers, or fell below the lowest, and in the latter case the State was not considered as represented. The method of voting, however, rendered it unimportant how many members were present from a State, provided they were enough to cast the vote of the State at all; for all questions were decided by the votes of a majority of the States, and not of a majority of the members voting. I have already had occasion more than once to notice the fact,--and it is one of no inconsiderable importance,--that the first Continental Congress, a.s.sembled in 1774, adopted the plan of giving to each Colony one vote, because it was impossible to ascertain the relative importance of the different Colonies. The record that was then made of this reason for a method of voting that would have been otherwise essentially unjust, shows quite clearly that a purpose was then entertained of adopting some other method at a future time. But when the Articles of Confederation were framed, in 1781, it appears as clearly from the discussions in Congress, not only that the same difficulty of obtaining the information necessary for a different system continued, but that some of the States were absolutely unwilling to enter the Confederation upon any other terms than a full federal equality. In this way the practice of voting by States in Congress was perpetuated down to the year 1787. It had come to be regarded by some of the smaller States, notwithstanding the injustice and inconvenience which it constantly produced, as a kind of birthright; and when the Senate of the United States came to be framed, and an equality of representation in it was conceded, some of the members of those States still considered it necessary to preserve this method of voting, in order to complete the idea of State representation, and to enable the States to protect their individual rights.[162] But it is obvious that, for this purpose, the question had lost its real importance, when an equal number of Senators was a.s.signed to each State; since, upon every measure that can touch the separate rights and interests of a State, the unanimity which is certain to prevail among its representatives makes the vote of the State as efficient as it could be if it were required to be cast as a unit, while the chances for its protection are increased by the opportunity of gaining single votes from the delegations of other States.

These and similar considerations ultimately led a large majority of the States to prefer a union of the plan of an equal number of senators from each State with that which would allow them to vote _per capita_.[163] The number of two was adopted as the most convenient, under all the circ.u.mstances, because most likely to unite the despatch of business with the constant presence of an equal number from every State.

With this peculiar character, the outline of the inst.i.tution went to the committee of detail. On the consideration of their report, these provisions, as we have seen, became complicated with the restriction of "money bills" to the House of Representatives, and the choice of the executive. The mode in which those controversies were finally settled being elsewhere stated, it only remains here to record the fact that the particular nature and form of the representation in the Senate was generally acquiesced in, when its relations to the other branches of the government had been determined.

The difference of origin of the two branches of the legislature made it necessary to provide for different modes of supplying the vacancies that might occur in them. The obvious way of effecting this in the case of a vacancy in the office of a representative was to order a new election by the people, who can readily a.s.semble for such a purpose; and the duty of ordering such elections was imposed on the executives of the States, because those functionaries would be best informed as to the convenience of their meeting. But the State legislatures, to whom the choice of senators was to be confided, would be in session for only a part of the year; and to summon them for the special purpose of filling a vacancy in the Senate might occasion great inconvenience. The committee of detail, therefore, provided that vacancies in the Senate might be supplied by the executive of the State until the next meeting of its legislature.

It is now time to turn to the examination of that great scheme of separate and concurrent powers, which it had been proposed to confer upon the Senate, and the suggestion of which influenced to a great degree the qualifications of the members, their term of office, and indeed the entire construction of this branch of the legislature. The primary purpose of a Senate was that of a second legislative chamber, having equal authority in all acts of legislation with the first, the action of both being necessary to the pa.s.sage of a law. As the formation of the Const.i.tution proceeded, from the single idea of such a second chamber, without any special character of representation to distinguish it from the first, up to the plan of an equal representation of the States, there was a strong disposition manifested to acc.u.mulate power in the body for which this peculiar character had been gained. It had been made the depositary of a direct and equal State influence; and this feature of the system had become fixed and irrevocable before the powers of the other departments, or their origin or relations, had been finally settled. The consequence was, that for a time, wherever jealousy was felt with regard to the executive or the judiciary,--wherever there was a doubt about confiding in the direct action of the people,--wherever a chasm presented itself, and the right mode of filling it did not occur,--there was a tendency to resort to the Senate.

Thus, when the committee of detail were charged with the duty of preparing the Const.i.tution according to the resolutions agreed upon in the Convention, the Senate had not only been made a legislative body, with authority co-ordinate to that of the House, but it had received the separate power of appointing the judges, and the power to give a separate vote in the election of the executive. The power to make war and treaties, the appointment of amba.s.sadors, and the trial of impeachments, had not been distinctly given to any department; but the general intention to be inferred from the resolutions was, that these matters should be vested in one or both of the two branches of the legislature. To the executive, the duty had been a.s.signed, which the name of the office implies, of executing the laws; to which had been added a revisionary check upon legislation, and the appointment to offices in cases not otherwise provided for. The judicial power had been described in general and comprehensive terms, which required a particular enumeration of the cases embraced by the principles laid down; but it had not been distinctly foreseen, that one of the cases to which those principles must lead would be an alleged conflict between an act of legislation and the fundamental law of the Const.i.tution. The system thus marked out was carried into detail by the committee, by vesting in the Senate the power to make treaties, to appoint amba.s.sadors and judges of the Supreme Court, and to adjudicate questions of boundary between the States; by giving to the two branches of the legislature the power to declare war; by a.s.signing the trial of impeachments to the Supreme Court, and enumerating the other cases of which it was to have cognizance; and by providing for the election of the executive by the legislature, and confining its powers and duties to those prescribed for it by the resolutions.

It is scarcely necessary to pause for the purpose of commenting on the practical inconveniences of some of these arrangements. However proper it may be, in a limited and republican government, to vest the power of declaring war in the legislative department, the negotiation of treaties by a numerous body had been found, in our own experience, and in that of other republics, extremely embarra.s.sing. However wise may be a jealousy of the executive department, it is difficult to say that the same authority that is intrusted with the appointment to all other offices should not be permitted to make an amba.s.sador or a judge.

However august may be a proceeding that is to determine a boundary between sovereign States, it is nothing more and nothing less than a strictly judicial controversy, capable of trial in the ordinary forms and tribunals of judicature, besides being one that ought to be safely removed from all political influences. However necessary it may be that an impeachment should be conducted with the solemnities and safeguards of allegation and proof, it is not always to be decided by the rules with which judges are most familiar, or to be determined by that body of law which it is their special duty to administer. However desirable it may be, that an elective chief magistracy should be filled with the highest capacity and fitness, and that popular tumults should be avoided, no government has yet existed, in which the election of such a magistrate by the legislative department has afforded any decided advantage over an election directly or indirectly by the people; and to give a body const.i.tuted as the American Senate is a negative in the choice of the executive, would be certainly inconvenient, probably dangerous.

But the position of the Senate as an a.s.sembly of the States, and certain opinions of its superior fitness for the discharge of some of these duties, had united to make it far too powerful for a safe and satisfactory operation of the government. It was found to be impossible to adjust the whole machine to the quant.i.ty of power that had been given to one of its parts. It was eminently just and necessary that the States should have an equal and direct representation in some branch of the government; but that a majority of the States, containing a minority of the people, should possess a negative in the appointment of the executive, and in the question of peace or war, and the sole voice in the appointment of judges and amba.s.sadors, was neither necessary nor proper. Theoretically, it might seem appropriate that a question of boundary between any two of the States represented in it should be committed to the Senate, as a court of the peers of the sovereign parties to the dispute; but practically, this would be a tribunal not well fitted to try a purely judicial question. It became necessary, therefore, to discover the true limit of that control which the nature of the representation in the Senate was to be allowed to give to a majority of the States. There had been some effort, in the progress of the controversy respecting the representative system, to confine the equal power of the States, in matters of legislation, to particular questions or occasions; but it had turned out to be impracticable thus to divide or limit the ordinary legislative authority of the same body. If the Senate, as an equal a.s.sembly of the States, was to legislate at all, it must legislate upon all subjects by the same rule and method of suffrage.

But when the question presented itself as to the separate action of this a.s.sembly,--how far it should be invested with the appointment of other functionaries, how far it should control the relations of the country with foreign nations, how far it should partake both of executive and judicial powers,--it was much less difficult to draw the line, and to establish proper limits to the direct agency of the States. Those limits could not indeed be ascertained by the mere application of theoretical principles. They were to be found in the primary necessity for reposing greater powers in other departments, for adjusting the relations of the system by a wider distribution of authority, and for confiding more and more in the intelligence and virtue of the people; and therefore it is, that, in these as in other details of the Const.i.tution, we are to look for the clew that is to give us the purpose and design, quite as much to the practical compromises which constantly took place between opposite interests, as to any triumph of any one of opposite theories.

The first experiment that was made towards a restriction of the power of the Senate, and an adjustment of its relations to the other departments, was the preparation of a plan, by which the President was to have the making of treaties, and the appointment of amba.s.sadors, judges of the Supreme Court, and all other officers not otherwise provided for, by and with, the advice and consent of the Senate. The trial of impeachments, of the President included, was transferred to the Senate, and the trial of questions of boundary was placed, like other controversies between States, within the scope of the judicial power. The choice of the President was to be made in the first instance by electors appointed by each State, in such manner as its legislature might direct, each State to have a number of electors equal to the whole number of its senators and representatives in Congress; but if no one of the persons voted for should have a majority of all the electors, or if more than one person should have both a majority and an equal number of votes, the Senate were to choose the President from the five highest candidates voted for by the electors. In this plan, there was certainly a considerable increase of the power of the President; but there was not a sufficient diminution of the power of the Senate. The President could nominate officers and negotiate treaties; but he must obtain the consent of the body by whom he might have been elected, and by whom his re-election might be determined, if he were again to become a candidate. It appeared, therefore, to be quite necessary, either to take away the revisionary control of the Senate over treaties and appointments, or to devise some mode by which the President could be made personally independent of that a.s.sembly. He could be made independent only by taking away all agency of the Senate in his election, or by making him ineligible to the office a second time. There were two serious objections to the last of these remedies,--the country might lose the services of a faithful and experienced magistrate, whose continuance in office would be highly important; and even in a case where no pre-eminent merit had challenged a re-election, the effect of an election by the Senate would always be pernicious, and must be visible throughout the whole term of the inc.u.mbent who had been successful over four other compet.i.tors.

And after all, what necessity was there for confiding this vast power to the Senate, opening the door of a small body to the corruption and intrigue for which the magnitude of the prize to be gained and to be given, and the facility for their exercise, would furnish an enormous temptation? Was it so necessary that the States should force their equality of privilege and of power into every department of the Const.i.tution, making it felt not only in all acts of legislation, but in the whole administration of the executive and judicial duties? Was nothing due to the virtue and sense and patriotism of a majority of the people of the United States? Might they not reasonably be expected to const.i.tute a body of electors, who, chosen for the express purpose, and dissolved as soon as their function had been discharged, would be able to make an upright and intelligent choice of a chief magistrate from among the eminent citizens of the Union?

Questions like these, posterity would easily believe, without the clear record that has descended to them, must have anxiously and deeply employed the framers of the Const.i.tution. They were to consider, not only what was theoretically fit and what would practically work with safety and success, but what would be accepted by the people for whom they were forming these great inst.i.tutions.

That people undoubtedly detested everything in the nature of a monarchy. But there was another thing which they hated with equal intensity, and that was an oligarchy. Their experience had given them quite as much reason for abhorring the one as the other. Such, at least, was their view of that experience. A king, it is true, was the chief magistrate of the mother country against which they had rebelled, against which they had fought successfully for their independence. The measures that drove them into that resistance were executed by the monarch; but those measures were planned, as they believed, by a ministry determined to enslave them, and were sanctioned by a Parliament in which even the so-called popular branch was then but another phase of the aristocracy which ruled the empire.

The worst enemy our grandfathers supposed they had in England, throughout their Revolution, was the ministerial majority of that House of Commons, made up of placemen sitting for rotten boroughs, the sons of peers, and the country gentlemen, who belonged to a caste as much as their first-cousins who sat by t.i.tles in the House of Lords.

Our ancestors did not know--they went to their graves without knowing--that in the hard, implacable temper of the king, made harder and more implacable by a narrow and bigoted conscientiousness, was the real cause for the persistency in that fatal policy which severed these Colonies from his crown.

That long struggle had been over for several years, and its result was certainly not to be regretted by the people of America. But it had left them, as it naturally must have left them, with as strong prejudices and jealousies against every aristocratic, as against every monarchical inst.i.tution. Public liberty in England they knew might consist with an hereditary throne, and with a privileged and powerful aristocracy. But public liberty in America could consist with neither.

The people of the United States could submit to restraints; they could recognize the necessity for checks and balances in the distribution of authority; and they understood as much of the science of government as any people then alive. But an inst.i.tution,--however originating and however apparently necessary its peculiar construction might be,--embracing but a small number of persons, with power to elect the chief magistrate, with power to revise every appointment from a chief justice down to a tidewaiter, with power to control the President through his subordinate agents, with power to reject every treaty that he might negotiate, and with power to sit in judgment on his impeachment, they would not endure. "We have, in some revolutions of this plan of government," said Randolph, "made a bold stroke for monarchy. We are now doing the same for an aristocracy."

How to attain the true intermediate ground, to avoid the substance of a monarchy and the substance of an aristocracy, and yet not to found the system on a mere democracy, was a problem not easy of solution.

All could see, that a government extended over a country so large, which was to have the regulation of its commerce, the collection of great revenues, the care of a vast public domain, the superintendence of intercourse with hordes of savage tribes, the control of relations with all the nations of the world, the administration of a peculiar jurisprudence, and the protection of the local const.i.tutions from violence, must have an army and a navy, and great fiscal, administrative, and judicial establishments, embracing a very numerous body of public officers. To give the appointment of such a mult.i.tude of public servants, invested with such functions, to the unchecked authority of the President, would be to create an executive with power not less formidable and real than that of some monarchs, and far greater than that of others. No one desired that a sole power of appointment should be vested in the President alone; it was universally conceded that there must be a revisionary control lodged somewhere, and the only question was where it should be placed. That it ought to be in a body independent of the executive, and not in any council of ministers that might be a.s.signed to him, was apparent; and there was no such body, excepting the Senate, which united the necessary independence with the other qualities needful for a right exercise of this power.

The negotiation of treaties was obviously a function that should be committed to the executive alone. But a treaty might undertake to dismember a State of part of its territory, or might otherwise affect its individual interests; and even where it concerned only the general interests of all the States, there was a great unwillingness to intrust the treaty-making power exclusively to the President. Here, the States, as equal political sovereignties, were unwilling to relax their hold upon the general government; and the result was that provision of the Const.i.tution which makes the consent of two thirds of the Senators present necessary to the ratification of a treaty.

But if it was to have these great overruling powers, the Senate must have no voice in the appointment of the executive. There were two modes in which the election might be arranged, so as to prevent a mutual connection and influence between the Senate and the President.

The one was, to allow the highest number of electoral votes to appoint the President;[164] the other was, to place the eventual election--no person having received a majority of all the electoral votes--in the House of Representatives. The latter plan was finally adopted, and the Senate was thus effectually severed from a dangerous connection with the executive.

This separation having been effected, the objections which had been urged against the length of the senatorial term became of little consequence. In the preparation of the plan marked out in the resolutions sent to the committee of detail, the Senate had been considered chiefly with reference to its legislative function; and the purpose of those who advocated a long term of office was to establish a body in the government of sufficient wisdom and firmness to interpose against the impetuous counsels and levelling tendencies of the democratic branch.[165] Six years was adopted as an intermediate period between the longest and the shortest of the terms proposed; and in order that there might be an infusion of different views and tendencies from time to time, it was provided that one third of the members should go out of office biennially.[166] Still, in the case of each individual senator, the period of six years was the longest of the limited terms of office created by the Const.i.tution. Under the Confederation, the members of the Congress had been chosen annually, and were always liable to recall. The people of the United States were in general strongly disposed to a frequency of elections. A term of office for six years would be that feature of the proposed Senate most likely, in the popular mind, to be regarded as of an aristocratic tendency. If united with the powers that have just pa.s.sed under our review, and if to those powers it could be said that an improper influence over the executive had been added, the system would in all probability be rejected by the people. But if the Senate were deprived of all agency in the appointment of the President, it would be mere declamation to complain of their term of office; for undoubtedly the peculiar duties a.s.signed to the Senate could be best discharged by those who had had the longest experience in them. The solid objection to such a term being removed, the complaint of aristocratic tendencies would be confined to those who might wish to find plausible reasons for opposition, and might not wish to be satisfied with the true reasons for the provision.