The Works of the Honourable James Wilson, L. L. D.
Lectures
Delivered in the College of Philadelphia
1790-1791
Volume II, Part II, Chapter I.
Lorenzo Press, 1804
IN my plan, I mentioned, that I would
consider our municipal law under two great divisions; that, under the first, I
would treat of the law, as it relates to persons; and that, under the second, I
would treat of it, as it relates to things. I pursue those two great divisions;
and begin with persons.
Persons are divided into two kinds ―
natural and artificial. Natural persons are formed by the great Author of
nature. Artificial persons are the creatures of human sagacity and contrivance;
and are framed and intended for the purposes of government and society.
When we contemplate the constitution
and the laws of the United States and of the commonwealth of Pennsylvania; the
mighty object, which first arrests our attention, is ― the people. In the laws
of England, as they have been imposed or received during the last seven
centuries, the "people" is a title, which has scarcely found a place, or, if it
has found a place occasionally it has attracted but a very disproportionate
degree of notice or regard. Of the prerogative of the king, frequent and
respectful mention is made: he is considered and represented as the fountain of
authority, of honour, of justice, and even of the most important species of
property. Of the majesty of the people, little is said in the books of our law.
When they are introduced upon the legal stage, they are considered as the body,
of which the king is the head, and are viewed as the subjects of his crown and
government.
This has not been the case in all
countries; it has not been the case in England at all times. It has, indeed,
been the case too often and too generally; but the pages of literature will
furnish us with a few brilliant exceptions. Of one permit me to take a very
particular notice; for of a very particular notice it is highly deserving.
At the mention of Athens, a thousand
refined and endearing associations rush immediately into the memory of the
scholar, the philosopher, the statesman, and the patriot. When Homer, one of the
most correct, as well as the oldest and one of the most respectable, of human
authorities, enumerates the other nations of Greece, whose forces acted in the
siege of Troy; he arranges them under the names of their different kings: but
when he comes to the Athenians, he distinguishes them by the peculiar
appellation of "the people"420 of Athens.
Let it not surprise you, that I cite
Homer as a very respectable authority. That celebrated writer was not more
remarkable for the elegance and sublimity, than he was for the truth and
precision, of his compositions. The geographer, who could, not relish the
exquisite beauties of his poetry, felt, however, uncommon satisfaction in
ascertaining, by the map, the severe accuracy of his geographical descriptions.
But let me mention what is still more to my present purpose and justification.
From one of the orations of æschines it appears highly probable,421
that in the Athenian courts of justice, the poems of Homer, as well as the laws
of Athens, were always laid upon the table before the judges; and that the clerk
was frequently applied to, by the orator, to read passages from the former, as
well as from the latter. On the authority of two lines from Homer's catalogue of
the Grecian fleet, was determined a controversy between the Athenians and the
inhabitants of Salamis. His immortal poems, like a meteor in the gloom of night,
brighten the obscure antiquities of his country?422
By some of the most early accounts,
which have been transmitted to us concerning Britain, we are informed, that "the
people held the helm of government in their own power."423 This
spirit of independence was a ruling principle among the Saxons likewise.
Concerning their original, it is both needless and fruitless ― I use the
expressions of the very learned Selden424 ― to enter the lists;
whether they were natives from the northern parts of Germany, or the relicks of
the army under Alexander. But their government, adds he, was, in general, so
suitable to that of the Grecians, that it cannot be imagined but much of the
Grecian wisdom was derived into those parts. The people were a free people,
governed bylaws which they themselves made; and, for this reason, they were
denominated free. This, he subjoins, was like unto the manner of the Athenians.
The Saxons were called freemen,
because they were born free from all yoke of arbitrary power, and from all laws
of compulsion, except those which were made by their voluntary consent: for all
freemen have votes in making and executing the general laws.425 The
freedom of a Saxon consisted in the three following particulars. 1. In the
ownership of what he had. 2. In voting upon any law, by which his person or
property could be affected. 3. In possessing a share in that judiciary power, by
which the laws were applied.426
By this time, we clearly perceive the
exquisite propriety, historical as well as political, with which the people
appear in the foreground of the national constitution and of that of
Pennsylvania. "We, the people of the United States, ordain and establish this
constitution for the United States of America." "We, the people of the
commonwealth of Pennsylvania, ordain and establish this constitution for its
government."
In free states, the people form an
artificial person or body politick, the highest and noblest that can be known.
They form that moral person, which, in one of my former lectures,427
I described as a complete body of free natural persons, united together for
their common benefit; as having an understanding and a will; as deliberating,
and resolving, and acting; as possessed of interests which it ought to manage;
as enjoying rights which it ought to maintain; and as lying under obligations
which it ought to perform. To this moral person, we assign, by way of eminence,
the dignified appellation of state.
In discussing the rights and duties of
a state, I observed, that it is its right, and that, generally, it is its duty,
to form a constitution, to institute civil government, and to establish laws.
The general principles, on which constitutions should be formed, government
should be instituted, and laws should be established, were treated at large
then, and will not be repeated now. It is my present business to trace the
application of those principles, as that application has been practically made
by the people of the United States, and, in particular, by the people of
Pennsylvania.
I mention the people of Pennsylvania
in particular; because, in discussing this system, it is necessary that I should
select the constitution, and government, and laws of some one of the states in
the Union; and because it is natural, for many reasons, that Pennsylvania should
be the state, whose constitution, and government, and laws are selected for this
discussion. The observations, however, which I shall have occasion to make with
regard to Pennsylvania, will, in the greatest number of instances, apply to her
sister states, with an equal degree of propriety. Whenever any very striking
difference or coincidence shall occur to me, I shall distinguish it by an
especial notice.
The people of the United States must
be considered attentively in two very different views ― as forming one nation,
great and united; and as forming, at the same time, a number of separate states,
to that nation subordinate, but independent as to their own interiour
government. This very important distinction must be continually before our eyes.
If it be properly observed, every thing will appear regular and proportioned: if
it be neglected, endless confusion and intricacy will unavoidably ensue.
The constitution of the United States
is arranged, as we have formerly seen it ought to be, under three great
divisions ― the legislative department, the executive department, and the
judicial department.
The legislative power is divided
between two different bodies, a senate, and a house of representatives. The
reasons and the importance of this division were explained in a former part of
my lectures.428
In discoursing farther concerning the
legislature of the United States, I shall regulate myself by the following
order. I shall treat, I. of the election of its members; II. of their number;
III. of the term, for which they are elected; IV. of the laws, and rules, and
powers of the two houses; V. of the manner of passing laws; VI. of the powers of
congress.
I. I am first to treat concerning the
election of members of congress. Many of the remarks, which I shall make on this
subject, will be applicable to the election of members of the general assembly
of this commonwealth; for the assembly of Pennsylvania, like the. congress of
the United States, consists of two bodies, a senate and a house of
representatives. Some important articles of discrimination will be noticed in
their proper places.
The constitution of the United States
and that of Pennsylvania rest solely, and in all their parts, on the great
democratical principle of a representation of the people; in other words, of the
moral person, known by the name of the state. This great principle necessarily
draws along with it the consideration of another principle equally great ― the
principle of free and equal elections. To maintain, in purity and in vigour,
this important principle, whose energy should pervade the most distant parts of
the government, is the first duty, and ought to be the first care, of every free
state. This is the original fountain, from which all the streams of
administration flow. If this fountain is poisoned, the deleterious influence
will extend to the remotest corners of the state: if this fountain continues
pure and salubrious, the benign operation of its waters will diffuse universal
health and soundness.
Let me, by the way, be indulged with
repeating a remark, which was made and fully illustrated in a former lecture429
― that government, founded solely on representation, made its first appearance
on this, and not on the European side of the Atlantick.
Of the science of just and equal
government, the progress, as we have formerly seen, has been small and slow.
Peculiarly small and slow has it been, in the discovery and improvement of the
interesting doctrines of election and representation. If, with regard to other
subjects, government may be said, as it has been said, to be still in its
infancy; we may, with regard to this subject, consider it as only in its
childhood. And yet this is the subject, which must form the basis of every
government, that is, at once, efficient, respectable, and free.
The pyramid of government ― and a
republican government may well receive that beautiful and solid form ― should be
raised to a dignified altitude: but its foundations must, of consequence, be
broad, and strong, and deep. The authority, the interests, and the affections of
the people at large are the only foundation, on which a superstructure, proposed
to be at once durable and magnificent, can be rationally erected.
Representation is the chain of
communication between the people and those, to whom they have committed the
exercise of the powers of government. If the materials, which form this chain,
are sound and strong, it is unnecessary to be solicitous about the very high
degree, to which they are polished. But in order to impart to them the true
republican lustre, I know no means more effectual, than to invite and admit the
freemen to the right of suffrage, and to enhance, as much as possible, the value
of that right. Its value cannot, in truth, be enhanced too highly. It is a right
of the greatest import, and of the most improving efficacy. It is a right to
choose those, who shall be intrusted with the authority and with the confidence
of the people: and who may employ that authority and that confidence for the
noblest interests of the commonwealth, without the apprehension of
disappointment or control.
This surely must have a powerful
tendency to open, to enlighten, to enlarge, and to exalt the mind. I cannot,
with sufficient energy, express my own conceptions of the value and the dignity
of this right. In real majesty, an independent and unbiassed elector stands
superiour to princes, addressed by the proudest titles, attended by the most
magnificent retinues, and decorated with the most splendid regalia. Their
sovereignty is only derivative, like the pale light of the moon: his is
original, like the beaming splendour of the sun.
The benign influences, flowing from
the possession and exercise of this right, deserve to be clearly and fully
pointed out. I wish it was in my power to do complete justice to the important
subject. Hitherto those benign influences have been little understood; they have
been less valued; they have been still less experienced. This part of the
knowledge and practice of government is yet, as has been observed, in its
childhood. Let us, however, nurse and nourish it. In clue time, it will repay
our care and our labour; for, in due time, it will grow to the strength and
stature of a full and perfect man.
The man, who enjoys the right of
suffrage, on the extensive scale which is marked by our constitutions, will
naturally turn his thoughts to the contemplation of publick men and publick
measures. The inquiries he will make, the information he will receive, and his
own reflections on both, will afford a beneficial and amusing employment to his
mind. I am far from insinuating, that every citizen should be an enthusiast in
politicks, or that the interests of himself, his family, and those who depend on
him for their comfortable situation in life, should be absorbed in Quixote
speculations about the management or the reformation of the state. But there is
surely a golden mean in things; and there can be no real incompatibility between
the discharge of one's publick, and that of his private duty. Let private
industry receive the warmest encouragement; for it is the basis of publick
happiness. But must the bow of honest industry be always bent? At no moment
shall a little relaxation be allowed? That relaxation, if properly directed, may
prove to be instructive as well as agreeable. It may consist in reading a
newspaper, or in conversing with a fellow citizen. May not the newspaper convey
some interesting intelligence, or contain some useful essay? May not the
conversation take a pleasing and an improving turn? Many hours, I believe, are
every where spent, in talking about the unimportant occurrences of the day, or
in the neighbourhood; and, perhaps, the frailties or the imperfections of a
neighbour form, too often, one of the sweet but poisoned ingredients of the
discourse. Would it be any great detriment to society or to individuals, if
other characters, and with different views, were more frequently brought upon
the carpet?
Under our constitutions, a number of
important appointments must be made at every election. To make them is, indeed,
the business only of a day. But it ought to be the business of much more than a
day, to be prepared for making them well. When a citizen elects to office ― let
me repeat it ― he performs an act of the first political consequence. He should
be employed, on every convenient occasion, in making researches after proper
persons for filling the different departments of power; in discussing, with his
neighbours and fellow citizens, the qualities, which ought to he possessed by
those, who enjoy places of publick trust; and in acquiring information, with the
spirit of manly candour, concerning the manners and characters of those, who are
likely to be candidates for the publick choice.
A habit of conversing and reflecting
on these subjects, and of governing his actions by the result of his
deliberations, would produce, in the mind of the citizen, a uniform, a strong,
and a lively sensibility to the interests of his country. The same causes will
effectuate a warm and enlightened attachment to those, who are best fitted, and
best disposed, to support and promote those interests. By these means and in
this manner, pure and genuine patriotism, that kind, which consists in liberal
investigation and disinterested conduct, is produced, cherished, and
strengthened in the mind: by these means and in this manner, the warm and
generous emotion glows and is reflected from breast to breast.
Investigations of this nature are
useful and improving, not to their authors only; they are so to their objects
likewise. The love of honest and well earned fame is deeply rooted in honest and
susceptible minds. Can there be a stronger incentive to the operations of this
passion, than the hope of becoming the object of well founded and distinguishing
applause? Can there be a more complete gratification of this passion, than the
satisfaction of knowing that this applause is given ― that it is given upon the
most honourable principles, and acquired by the most honourable pursuits? To
souls truly ingenuous, indiscriminate praise, misplaced praise, flattering
praise, interested praise have no bewitching charms. But when publick
approbation is the result of publick discernment, it must be highly pleasing to
those who give, and to those who receive it.
If the foregoing remarks and
deductions be just; and I believe they are so; the right of suffrage, properly
understood, properly valued, and properly exercised, in a free and well
constituted government, is an abundant source of the most rational, the most
improving, and the most endearing connexion among the citizens.
All power is originally in
the people;
and should be exercised by them in person, if that could be done with
convenience, or even with little difficulty.
In some of the small republicks of Greece, and in the first ages of the
commonwealth of Rome, the people voted in their aggregate capacity. Among the
ancient Germans also, this was done upon great occasions. "De minoribus
consultant principes," says Tacitus,430 "de majoribus omnes:" From
their practices, some of the finest principles of modern governments are drawn.
But in large
states, the people cannot assemble together. As they cannot, therefore, act by
themselves, they must act by their representatives.
And, indeed, in point of right, there is no difference between that which is
done by the people in their own persons, and that which is clone by their
deputies, acting agreeably to the powers received from them. In point of
utility, there is as little difference; for there is no advantage, which may not
be obtained from a free and adequate representation, in as effectual a manner,
as if every citizen were to deliberate and vote in person.
To the legitimate energy and weight of
true representation, two things are essentially necessary. 1. That the
representatives should express the same sentiments, which the represented, if
possessed of equal information, would express. 2. That the sentiments of the
representatives, thus expressed, should have the same weight and influence, as
the sentiments of the constituents would have, if expressed personally.
To accomplish the first object, all
elections ought to be free. If a man is under no external bias, when he votes
for a representative, he will naturally choose such as, he imagines, will, on
the several subjects which may come before them, speak and act in the same
manner as himself. Every one, who is not the slave of voluntary errour, supposes
that his own opinions and sentiments are right: he must likewise suppose, that
the sentiments and opinions of those who think with him are right also. Every
other man, equally free from bias, will vote with similar views. When,
therefore, the votes generally or unanimously centre in the same
representatives, it is a satisfactory proof, that the sentiments of the
constituents are generally or altogether in unison, with regard to the matters,
which, they think, will be brought under the consideration of their
representatives; and also, that the sentiments of the representatives will be,
with regard to those matters, in unison with those of all, or of a majority of
their constituents.
To accomplish the second object, all
elections ought to be equal. Elections are equal, when a given number of
citizens, in one part of the state, choose as many representatives, as are
chosen by the same number of citizens, in any other part of the state. In this
manner, the proportion of the representatives and of the constituents will
remain invariably the same.
If both the requisites are established
and preserved, such counsels will be given, such resolutions will be taken, and
such measures will be pursued, by the representative body, as will receive the
concurrence, the approbation, and the support of the community at large.
In a free government, it is of
essential importance to ascertain the right of suffrage, and those inhabitants
who are entitled to the exercise of that right. To vote for members of a
legislature, is to perform an act of original sovereignty. No person unqualified
should, therefore, be permitted to assume the exercise of such preeminent power.
We are told, that, among the Athenians, exquisitely sensible to all the rights
of citizenship, a stranger who interfered in the assemblies of the people, was
punished with death. Such dangerous interference was considered as a species of
treason against their rights of sovereignty.
A momentous question now occurs ― who
shall be entitled to suffrage? This darling privilege of freemen should
certainly be extended as far as considerations of safety and order will possibly
admit. The correct theory and the true principles of liberty require, that every
citizen, whose circumstances do not render him necessarily dependent on the will
of another, should possess a vote in electing those, by whose conduct his
property, his reputation, his liberty, and his life, may be all most materially
affected.
By the constitution of the United
States,431 the members of the house of representatives shall be
chosen by the people of the several states. The electors, in each state, shall
have the qualifications requisite for electors of the most numerous branch of
the state legislature.
This regulation is generous and wise.
It is generous; for it intrusts to the constitutions or to the legislatures of
the several states, the very important power of ascertaining and directing the
qualifications of those, who shall be entitled to elect the most numerous branch
of the national legislature. This unsuspicious confidence evinces, in the
national constitution, the most friendly disposition towards the governments of
the several states. For how can such a proper disposition be evinced more
strongly, than by providing that its legislature, so far as respects the most
numerous branch of it, should stand upon the same foundation with theirs; and by
providing farther, that this foundation should be continued or altered by the
states themselves?
This regulation is wise as well as
generous. An attention to its genuine principle and tendency must have a strong
effect, in preventing or destroying the seeds of jealousy, which might otherwise
spring up, with regard to the genius and views of the national government. It
has embarked itself on the same bottom with the governments of the different
states: can a stronger proof be given of its determination to sink or swim with
them? Can proof be given of a stronger desire to live in mutual harmony and
affection? This is an object of the last importance; for, to adopt an expression
used by my Lord Bacon, "the uniting of the hearts and affections of the people
is the life and true end of this work."432
The remarks which I have made on this
subject place, in a clear and striking point of view, the propriety, and indeed
the political necessity, of a regulation made in another part of this
constitution. In the fourth section of the fourth article it is provided, that,
"the United States shall guaranty to every state in this Union a republican form
of government." Its own existence, as a government of this description, depends
on theirs.
As the doctrine concerning elections
and the qualifications of electors is, in every free country, a doctrine of the
first magnitude; and as the national constitution has, with regard to this
doctrine, rested itself on the governments of the several states; it will be
highly proper to take a survey of those provisions, which, on a subject so
interesting, have been made by the different state constitutions: for every
state has justly deemed the subject to be of constitutional importance.
In the constitution of Pennsylvania,
the great principle, which animates and governs this subject, is secured by an
explicit declaration, that "elections shall be free and equal."433
This is enumerated among the great points, which are "excepted out of the
general powers of government, and shall for ever remain inviolate."434
The practical operation of this great and inviolable principle is thus specified
and directed: "In elections by the citizens, every freeman of the age of twenty
one years, having resided in the state two years next before the election, and
within that time paid a state or county tax, which shall have been assessed at
least six months before the election, shall enjoy the rights of an elector."435
It well deserves, in this place, to be
remarked, how congenial, upon this great subject, the principles of the
constitution of Pennsylvania are to those adopted by the government of the
Saxons. The Saxon freemen, as we have already seen, had votes in making their
general laws.436 The freemen of Pennsylvania, as we now see, enjoy
the rights of electors. This right, it has been shown, is equivalent, and, in a
state of any considerable extent, must, on every principle of order and
convenience, be substituted to the other. This is far from being the only
instance, in which we shall have the pleasure of finding the old Saxon maxims of
government renewed in the American constitutions. Particular attention will be
paid to them, as they present themselves.
By the constitution of New Hampshire,
"every male inhabitant, with town privileges, of twenty one years of age, paying
for himself a poll tax, has a right to vote, in the town or parish wherein he
dwells, in the election of representatives."437
In Massachussetts, this right is,
under the constitution, enjoyed by "every male person, being twenty one years of
age, and resident in any particular town in the commonwealth for the space of
one year next preceding, having a freehold estate within the same town, of the
annual income of three pounds, or any estate of the value of sixty pounds."
Every one so qualified may "vote in the choice of a representative for the said
town."438
The right to choose representatives in
Rhode Island is vested in "the freemen of the respective towns or places." This
regulation is specified in the charter of Charles the second. The state of Rhode
Island and Providence Plantations has not assumed a form of government different
from that, which is contained in the above mentioned charter.439
The qualifications requisite, in the
state of Connecticut, to entitle a person to vote at elections, are, maturity in
years, quiet and peaceable behaviour, a civil conversation, and forty shillings
freehold, or forty pounds personal estate: if the selectmen of the town certify
a person qualified in those respects, he is admitted a freeman, on his taking an
oath of fidelity to the state.440
It ought to be observed, by the way,
that this power to admit persons to be freemen, or to exclude them from being
freemen, according to the sentiments which others entertain concerning their
conversation and behaviour, is a power of a very extraordinary nature; and is
certainly capable of being exercised for very extraordinary purposes.
The constitution of New York ordains,
"that every male inhabitant of full age, who shall have personally resided
within one of the counties of the state, for six months immediately preceding
the day of election, shall, at such election, be entitled to vote for
representatives of the said county in assembly; if during the time aforesaid he
shall have been a freeholder, possessing a freehold of the value of twenty
pounds, within the said county, or have rented a tenement therein of the yearly
value of forty shillings; and been rated and actually paid taxes to the state."441
"All inhabitants of New Jersey, of
full age, who are worth fifty pounds, proclamation money, clear estate within
that government, and have resided within the county, in which they shall claim a
vote, for twelve months immediately preceding the election, shall be entitled to
vote for representatives in assembly."442
The right of suffrage is not specified
in the constitution of Delaware;443 but it is provided, that, in the
election of members of the legislature, it "shall remain as exercised by law at
present."
In Maryland, "all freemen above twenty
one years of age, having a freehold of fifty acres of land in the county, in
which they offer to vote, and residing therein; and all freemen having property
in the state above the value of thirty pounds current money, and having resided
in the county, in which they offer to vote, one whole year next preceding the
election, shall have a right of suffrage in the election of delegates for such
county."444
We find, in the constitution of
Virginia, no specification of the right of suffrage: it is declared, however,
that this right shall remain as it was exercised at the time when that
constitution was made.445
It is provided by the constitution of
North Carolina, "that all freemen of the age of twenty one years, who have been
inhabitants of any county within the state twelve months immediately preceding
the day of any election, and shall have paid publick taxes, shall be entitled to
vote for members of the house of commons, for the county in which they reside."446
According to the constitution of South
Carolina, "every free white man, of the age of twenty one years, being a citizen
of the state, and having resided in it two years previous to the day of
election, and who has a freehold of fifty acres of land, or a town lot, of which
he hath been legally seized and possessed at least six months before such
election, or, not having such freehold or lot, has resided within the election
district, in which he offers to give his vote, six months before the election,
and has, the preceding year, paid a tax of three shillings sterling towards the
support of government, shall have a right to vote for members of the house of
representatives for the election district, in which he holds such property, or
is so resident."447
I am not possessed of the present
constitution of Georgia. By its late constitution, it was provided, that "all
male white inhabitants, of the age of twenty one years, and possessed, in their
own right, of ten pounds value, and liable to pay tax in the state, or being of
any mechanick trade, and shall have been a resident six months in the state,
shall have a right to, vote at all elections for448 representatives."449
From the foregoing enumeration ― its
length and its minuteness will be justified by its importance ― from the
foregoing enumeration of the provisions, which have been made, in the several
states, concerning the right of suffrage, we are well warranted, I think, in
drawing this broad and general inference ― that, in the United States, this
right is extended to every freeman, who, by his residence, has given evidence of
his attachment to the country, who, by having property, or by being in a
situation to acquire property, possesses a common interest with his fellow
citizens; and who is not in such uncomfortable circumstances, as to render him
necessarily dependent, for his subsistence, on the will of others.
By the same enumeration, we are
enabled, with conscious pleasure, to view and to display the close
approximation, which, on this great subject, the constitutions of the American
States have made, to what we have already seen to be the true principles and the
correct theory of freedom.
Again; the same enumeration places in
the strongest and most striking light, the wisdom and the generous confidence,
which rested one of the principal pillars of the national government upon the
foundation prepared for it by the governments of the several states.
With this sentiment I began ― with
this sentiment I conclude my remarks concerning the qualifications required from
those, who elect the house of representatives of the United States.
We now proceed to examine the
qualifications requi. red from those, who are elected to that dignified trust.
1. A representative must have attained
the age of twenty five years.450
It is amusing enough to consider the
different ages, at which persons have been deemed qualified or disqualified for
different purposes, both in private and in publick life.
A woman, as we learn from my ford Coke
and others, has seven ages for several purposes appointed to her by the law. At
seven years of age, her father, if a feudal superiour, was entitled to demand
from his vassals an aid to marry her: at nine, she may have dower: at twelve,
she may consent to marriage: at fourteen, she may choose a guardian: at sixteen,
marriage might be tendered to her by her lord: at seventeen, she may act as
executrix: at twenty one, she may alienate her lands and goods.451 A
man, also, has different ages assigned to him for different purposes. At twelve
years of age, he was formerly obliged to take the oath of allegiance: at
fourteen, he can consent to marriage: at the same age he can choose his
guardian: at twenty one, he may convey his personal and real estate.452
The foregoing are the different ages
allowed for different purposes in private life. In publick life, there has, with
regard to age, been a similar variety of assignments; the reasons of some of
which it is hard to conjecture; for the propriety of others, it is equally hard
to account.
In the government of the United
States, it is supposed, that no one is fit to be a member of the house of
representatives, till he is twenty five years of age; to be a senator, till he
is thirty;453 to be a president, till he is thirty five.454
The duration assigned by nature to
human life is often complained of as very short; that assigned to it b y some
politicians is much shorter. For some political purposes, a man cannot breathe
before he numbers thirty five years: as to other political purposes, his breath
is extinguished the moment he reaches sixty. By the constitution of New York,455
"the chancellor, the judges of the supreme court, and the first judge of the
county court in every county, hold their offices until they shall respectively
have attained the age of sixty years."
How differently is the same object
viewed at different times and in different countries! In New York, a man is
deemed unfit for the first offices of the state after he is sixty: in
Sparta, a man was deemed unfit for the first offices of the state till he
was sixty. Till that age, no one was entitled to a seat in the senate, the
highest honour of the chiefs.456 How convenient it would be, if a
politician possessed the power, so finely exercised by the most beautiful of
poets! Virgil could, with the greatest ease imaginable, bring Æneas and Dido
together; though, in fact, some centuries elapsed between the times, in which
they lived. Why cannot some politician, by the same or some similar enchanting
art, produce an ancient and a modern government as cotemporaries? The effect
would be admirable. The moment that a gentleman of sixty would be disqualified
from retaining his seat as a judge of New York, he would be qualified for taking
his seat as a senator of Sparta.
2. Before one can be a representative,
he must have been seven years a citizen of the United States.457
Two reasons may be assigned for this
provision. 1. That the constituents might have a full and mature opportunity of
knowing the character and merit of their representative. 2. That the
representative might have a full and mature opportunity of knowing the
dispositions and interests of his constituents.
3. The representative must, when
elected, be an inhabitant of that state, in which he is chosen.458
The qualification of residence we have
found to be universally insisted on with regard to those who elect: here the
same qualification is insisted on with regard to those who are elected. The same
reasons, which operated in favour of the former qualification, operate with
equal, indeed, with greater force, in favour of this. A provision, almost
literally the same with the present one, was made in England three centuries and
a half ago. By a statute made in the first year of Henry the fifth, it was
enacted, that "the knights of the shires, which from henceforth shall be chosen
in every shire, be not chosen, unless they be resident within the shire where
they shall be chosen, the day of the date of the writ of the summons of the
parliament" ― "And moreover it is ordained and established, that the citizens
and burgesses of the cities and boroughs be chosen men, citizens and burgesses,
resiant, dwelling, and free in the same cities and boroughs, and no other in any
wise."459 To this moment, this statute continues unrepealed ― a
melancholy proof, how far degenerate and corrupted manners will overpower the
wisest and most wholesome laws. From Sir Bulstrode Whitlocke we learn, that,
above a century ago, noncompliance with this statute was "connived at."460
The statute itself has been long and openly disregarded. The consequences of
this disregard may be seen in the present state of the representation in
England.
Thus far concerning the election of
the house of representatives, and the qualifications of the members and of the
electors. It remains to speak concerning the election and the qualifications of
the senators.
The senators are chosen by the
legislatures of the several states. Every senator must have attained to the age
of thirty years; he must have been nine years a citizen of the United States;
and he must, when elected, be an inhabitant of that state, for which he shall be
chosen.461
Some have considered the senators as
immediately representing the sovereignty, while the members of the other house
immediately represent the people, of the several states. This opinion is founded
on a doctrine which I considered and, I believe, refuted very fully in a former
lecture:462 the doctrine is this ― that the legislative power is the
supreme power of the state. The supreme power I showed to reside in the people.
By the constitution of the United
States, the people have delegated to the several legislatures the choice of
senators, while they have retained in their own hands the choice of
representatives. It would be unwise, however, to infer from this, that either
the dignity or the importance of the senate is inferiour to the dignity or the
importance of the house of representatives. One may intrust to another the
management of an equal or even superiour business, while he chooses to transact
personally a business of an equal or even an inferiour kind.
Between the senate of the United
States, and that of Pennsylvania, there is one remarkable point of difference,
of which it will be proper, in this place, to take particular notice. According
to the constitution of the United States, two senators are chosen by the
legislature of each state: while the members of the house of representatives are
chosen by the people. According to the constitution of Pennsylvania,463
the senators are chosen by the citizens of the state, at the same time, in the
same manner, and at the same place. where they shall vote for representatives.
To choose the senators by the same
persons, by whom the members of the house of representatives are chosen, is, we
are told, to lose the material distinction, and, consequently, all the benefits
which would result from the material distinction, between the two branches of
the legislature.
If this, indeed, should be the
necessary consequence of electing both branches by the same persons; the
objection, it is confessed, would operate with a force irresistible. But many
and strong reasons, we think, may be assigned, why all the advantages, to be
expected from two branches of a legislature, may be gained and preserved, though
those two branches derive their authority from precisely the same source.
A point of honour will arise between
them. The esprit du corps will soon be introduced. The principle, and direction,
and aim of this spirit will, we presume, be of the best and purest kind in the
two houses. They will be rivals in duty, rivals in fame, rivals for the good
graces of their common constituents.
Each house will be cautious, and
careful, and circumspect, in those proceedings, which, they know, must undergo
the strict and severe criticism of judges, whose inclination will lead them, and
whose duty will enjoin them, not to leave a single blemish unnoticed or
uncorrected. After all the caution, all the care, and all the circumspection,
which can be employed, strict and severe criticism, led by inclination and
enjoined by duty, will find something to notice and correct. Hence a double
source of information, precision, and sagacity in planning, digesting,
composing, comparing, and finishing the laws, both in form and substance. Every
bill will, in some one or more steps of its progress, undergo the keenest
scrutiny. Its relations, whether near or more remote, to the principles of
freedom, jurisprudence, and the constitution will be accurately examined: and
its effects upon the laws already existing will be maturely traced. In this
manner, rash measures, violent innovations, crude projects, and partial
contrivances will be stifled in the attempt to bring them forth. These effects
of mutual watchfulness and mutual control between the two houses, will redound
to the honour of each, and to the security and advantage of the state.
The very circumstance of sitting in
separate houses will be the cause of emulous and active separate exertion. The
era, when the commons of England met in an apartment by themselves, is, with
reason, considered, by many writers, as a memorable era in the history of
English liberty. "After the formation of the two houses of parliament," says Mr.
Millar, in his historical view of the English constitution,464 "each
of them came to be possessed of certain peculiar privileges; which, although
probably the objects of little attention in the beginning, have since risen to
great political importance. The house of commons obtained the sole power of
bringing in money bills." This subject will, by and by, come under our more
immediate view.
Rivals for character, as we have seen
the, two houses to be, they will be rivals in all pursuits, by which character
can be acquired, established, and exalted. To these laudable pursuits the crown
of success will best be obtained, by vigour and alacrity in the discharge of the
business committed to their care.
A difference in the posts assigned to
the two houses, and in the number and duration of their members, will produce a
difference in their sense of the duties required and expected from them. The
house of representatives, for instance, form the grand inquest of the state.
They will diligently inquire into grievances, arising both from men and things.
Their commissions will commence or be renewed at short distances of time. Their
sentiments, and views, and wishes, and even their passions, will have received a
deep and recent tincture from the sentiments, and views, and wishes, and
passions of their constituents. Into their counsels, and resolutions, and
measures, this tincture will be strongly transfused. They will know the evils
which exist, and the means of removing them: they will know the advantages
already discovered, and the means of increasing them. As the term of their
commission and trust will soon expire, they will be desirous, while it lasts, of
seeing the publick business put, at least, in a train of accomplishment. From
all these causes, a sufficient number of overtures and propositions will
originate in the house of representatives. These overtures and propositions will
come, in their proper course, before the senate. Those, which shall appear
premature, will be postponed till a more convenient season. Those, which shall
appear crude, will be properly digested and formed. Those, which shall appear to
he calculated upon .too narrow a scale, will be enlarged in their operation and
extent. Those, which shall appear to be dictated by local views, inconsistent
with the general welfare, will be either rejected altogether, or altered in such
a manner, as that the interest of the whole shall not be sacrificed, or rendered
subservient, to the interest of a part.
Articles of information, detached and
seemingly unconnected, introduced by the house of representatives, at different
times, from different places, with different motives, and for different
purposes, will, in the senate, be collected, compared, methodised, and
consolidated. Under their plastick hands, those materials will be employed in
forming systems and laws, for the prosperity and happiness of the commonwealth.
If, at any time, the passions or
prejudices of the people should he ill directed or too strong; and the house of
representatives should meet, too highly charged with the transfusion; it will be
the business and the duty of the senate to allay the fervour; and, before it
shall give a sanction to the bills or resolutions of the other house, to
introduce into them the requisite ingredients of mildness and moderation.
Extremes, on one hand, are often the
forerunners of extremes on the other. If a benumbing torpor should appear in the
body politick, after the effects of violent convulsions have subsided; and if
the contagious apathy should spread itself over the house of representatives; it
will then become the business and the duty of the senate, to infuse into the
publick councils and publick measures the proper portion of life, activity, and
vigour.
In seasons of prosperity, it will
become the care of the senate to temper the extravagance, or repress the
insolence, of publick joy. In seasons of adversity, the senate will be employed
in administering comfort and cure to the publick despondency.
In fine; the senate will consider
itself, and will be considered by the people, as the balance wheel in the great
machine of government; calculated and designed to retard its movements, when
they shall be too rapid, and to accelerate them, when they shall be too slow.
These reflections, which seem to arise
naturally from the subject before us, will, we hope, be sufficient to convince
you, that the most beneficial purposes may be rationally expected from the
senate of Pennsylvania, though the senators, as well as the members of the house
of representatives, be elected immediately by the citizens of the commonwealth.
Another circumstance, not yet
mentioned, deserve& to be added to this account. The districts for the election
of senators, are to be formed by the legislature. In forming those districts,
the legislature are empowered to include in them such a number of taxable
inhabitants as shall be entitled to elect four senators.465 An
enlarged and judicious exercise of this power will have a strong tendency to
increase the dignity and usefulness of the senate. It may, I believe, be assumed
as a general maxim, of no small importance in democratical governments, that the
more extensive the district of election is, the choice will be the more wises
and enlightened. Intrigue and cunning are the bane of elections by the people,
who are unsuspicious, because they are undesigning: but intrigue and cunning are
most dangerous, because they are most successful, in a contracted sphere.
II. I am now to consider the number of
members of which the legislature of the United States consists.
The representatives are apportioned
among the several states according to their numbers. The number of
representatives shall not exceed one for every thirty thousand.466
The senate shall be composed of two senators from each state.467
The Union consists now of fourteen,
and will soon consist of fifteen states. Of consequence, the senate is composed
now of twenty eight, and will be composed soon of thirty members.
A census of the United States has been
taken, agreeably to the constitution, and the returns of that census are nearly
completed. By these it appears, that, allowing one representative for every
thirty thousand returned on the census, the house of representatives will
consist of one hundred and twelve members.468
Every one has heard of the saying of
the famous Cardinal de Retz ― that every publick assembly, consisting of more
than one hundred members, was a mere mob. It is not improbable, that the
Cardinal drew his conclusion from what he had seen and experienced. He lived in
a turbulent season; and, in that turbulent season, was distinguished as a most
turbulent actor. Of consequence, he was much conversant with mere mobs. But
surely no good reason can be give, why the number one hundred should form the
precise boundary, on one side of which, order may be preserved, and on the other
side of which, confusion must unavoidably prevail. The political qualities of
publick bodies, it is, in all likelihood, impossible to ascertain and
distinguish with such numerical exactness. Besides; the publick bodies, most
celebrated for the decency and dignity, as well as for the importance, of their
proceedings, have far exceeded, in number, the bounds prescribed by the Cardinal
for the existence of those respectable qualities: witness the senate of Rome,
and the parliament of Great Britain.
There is, however, with regard to this
point, an extreme on one hand, as well as on the other. The number of a
deliberative body may be too great, as well as too small. In a great and a
growing country, no precise number could, with propriety, be fixed by the
constitution. A power, in some measure discretionary, was, therefore,
necessarily given to the legislature, to direct that number from time to time.
If the spirit of the constitution be observed in other particulars, it will not
be violated in this.
III. I proceed, in the third place, to
treat of the term, for which the members of the national legislature are chosen.
In the greatest part of the states,
the members of the most numerous branch of their legislature are chosen
annually; in some, every half year. The members of the least numerous branch are
generally chosen for a longer term. By the constitution of the United States,469
the members of the house of representatives are chosen "every second year."
When we consider the nature and the
extent of the general government, we shall be satisfied, I apprehend, that
biennial elections are as well proportioned to it, as annual elections are
proportioned to the individual states, and half yearly elections to some of the
smallest of them.
The senators of the United States are
chosen for six years; but are so classed, that the seats of one third part of
them are vacated at the expiration of every second year; so that one third part
may be chosen every second year.470
In Pennsylvania, the senators are
chosen for four years but are so classed, that the seats of one fourth part of
them are vacated at the expiration of every year; so that one fourth part may be
chosen every year.471
The intention, in assigning different
limitations to the terms, for which the members of the different houses are
chosen, and in establishing a rotation in the senate, is obviously to obtain and
secure the different qualities, by which a legislature ought to be
distinguished. These qualities are, stability, consistency, and minute
information. All these qualities may be expected, in some degree, from each
house; but not in equal proportions. For minute information, the principal
reliance will be placed on the house of representatives; because that house is
the most numerous; and because its members are most frequently chosen. The
qualities of stability and consistency will be expected chiefly from the senate;
because the senators continue longer in office; and because only a part of them
can be changed at any one time.
IV. I proceed to treat concerning the
laws, and rules, and powers of the two houses of congress.
The parliament of Great Britain has
its peculiar law; a law, says my Lord Coke,472 with which few are
acquainted, but which deserves to be investigated by all. The maxims, however,
upon which the parliament proceeds, are not, it seems, defined and ascertained
by any particular stated law: they rest entirely in the breast of the parliament
itself. The dignity and independence of the two houses, we are told, are
preserved, in a great measure, by keeping their privileges indefinite.473
Very different is the case with regard
to the legislature of the United States, and to that of Pennsylvania. The great
maxims, upon which our law of parliament is founded, are defined and ascertained
in our constitutions. The arcana of privilege, and the arcana of prerogative,
are equally unknown to our system of jurisprudence.
By the constitution of the United
States,474 each house of the legislature shall be the judge of the
qualifications and returns, and also of the elections, of its own members. By
the constitution of Pennsylvania,475 each house shall judge of the
qualifications of its members: but contested elections shall be determined by a
committee to be selected, formed, and regulated in such manner as shall be
directed by law. With regard to this subject, the constitution of Pennsylvania
has, I think, improved upon that of the United States. Contested elections, when
agitated in the house itself, occasion much waste of time, and, too often, a
considerable degree of animosity among the members. These inconveniences will
be, in a great measure, avoided by the proceedings and decision of a committee,
directed and governed by a standing law.
It is proper, in this place, to take
notice, that the house of representatives in congress have appointed a standing
committee of elections. It is the duty of this committee, to examine the
certificates of election, or other credentials of the members returned; to take
into their consideration every thing referred to them concerning returns and
elections; and to report their opinions and proceedings to the house.476
In the United States and in
Pennsylvania, the legislature has a right to sit upon its own adjournments: but
neither house shall, without the consent of the other, adjourn for more than
three days, nor to any other place, than that in which the two houses shall be
sitting.477 In England, the sole right of convening, proroguing, and
dissolving the parliament forms a part, and, obviously, a very important part,
of the prerogative of the king.478 Here we discover, in our new
constitutions, another renovation of the old Saxon customs. The original
meetings of the wittenagemote in England were held regularly at two seasons of
the year; at the end of spring, and at the beginning of autumn.479
Afterwards there came to be two sorts of wittenagemote; one held by custom, and
at the stated periods; the other called occasionally,480 and by a
special summons from the king. Under the princes of the Norman and Plantagenet
limes, the ancient and regular meetings of the national legislature were more
and more disregarded. The consequence was, that, in progress of time, the whole
of the parliamentary business was transacted in extraordinary meetings, which
were called at the pleasure of the sovereign.481 Principiis obsta.
In consequence of acquiring the power to call the parliament together, that of
putting a negative upon its meetings, in other words, of proroguing or
dissolving it, was, in all cases, vested in the crown.482
The constitution of the United States
provides,483 that the senators and representatives shall, in all
cases, except treason, felony, and breach of the peace, be privileged from
arrest during their attendance at the session of their respective houses, and in
going to and returning from them. The constitution of Pennsylvania484
contains a similar provision, excepting in one particular. The members are not
entitled to privilege, if their conduct has been such, as to give reasonable
cause of fear that they will break the peace; in the same manner as they are not
entitled to it, if, by their conduct, the peace has been actually broken. This
necessary privilege has continued substantially the same, since the time of the
Saxons. The grand assembly of the wittenagemote, as we are told by Mr. Selden,
was holden sacred; and all the members were under the publick faith, both in
going and coming, unless the party were fur probatus. This privilege of
safe pass, being thus ancient and fundamental, and not by any law taken away,
resteth still in force.485
The members of the national
legislature, and those also of the legislature of Pennsylvania, shall not, for
any speech or debate in either house, he questioned in any other place.486
In England, the freedom of speech is, at the opening of every new parliament,
particularly demanded of the king in person, by the speaker of the house of
commons.487 The liberal provision, which is made, by our
constitutions, upon this subject, may be justly viewed as a very considerable
improvement in the science and the practice of government. In order to enable
and encourage a representative of the publick to discharge his publick trust
with firmness and success, it is indispensably necessary, that he should enjoy
the fullest liberty of speech, and that he should be protected from the
resentment of every one, however powerful, to whom the exercise of that liberty
may occasion offence.
When it is mentioned, that the members
shall not be questioned in any other place; the implication is strong,
that, for their speeches in either house, they may be questioned and censured by
that house, in which they are spoken. Besides; each house, both in the United
States and in Pennsylvania, has an express power given it to "punish its members
for disorderly behaviour."488 Under the protection of privilege, to
use indecency or licentiousness of language, in the course of debate, is
disorderly behaviour, of a kind peculiarly base and ungentlemanly.
Each house may not only punish, but,
with the concurrence of two thirds, it may expel a member.489 This
regulation is adopted by the constitution of Pennsylvania:490 "but,"
it is added, "not a second time for the same cause." The reason for the addition
evidently is ― that the member, who has offended, cannot be an object of a
second expulsion, unless, since the offence given and punished by the first
expulsion, he has been either reelected by his former constituents, or elected
by others. In both cases, his election is a proof, that, in the opinion of his
constituents, he either has not offended at all, or has been already
sufficiently punished for his offence. The language of each opinion is, that he
ought not to be expelled again: and the language of the constituents is a law to
the house.
Each house may determine the rules of
its proceedings. This power is given, in precisely the same terms, by the
constitution of the United States, and by that of Pennsylvania.491
Its propriety is selfevident.
The constitution of the United States
directs,492 that each house shall keep a journal of its proceedings,
and, from time to time, publish them, except such parts as may require secrecy:
it directs further, that the yeas and nays of the members of either house, on
any question, shall, at the desire of one fifth of those present, be entered on
the journal. The constitution of Pennsylvania493 goes still further
upon these points: it directs, that the journals shall be published weekly; that
the yeas and nays shall be entered on them, at the desire of any two members;
and that the doors of each house, and of committees of the whole, shall be open,
unless when the business shall be such as ought to be kept secret.
That the conduct and proceedings of
representatives should be as open as possible to the inspection of those whom
they represent, seems to be, in republican government, a maxim, of whose truth
or importance the. smallest doubt cannot be entertained. That, by a necessary
consequence, every measure, which will facilitate or secure this open
communication of the exercise of delegated power, should be adopted and
patronised by the constitution and laws of every free state, seems to be another
maxim, which is the unavoidable result of the former. For these reasons, I feel
myself necessarily and unavoidably led to consider the additional regulations
made, upon this subject, by the constitution of Pennsylvania, as improvements
upon those made by the constitution of the United States. The regulation ― that
the doors of each house, and of committees of the whole, shall be open ― I view
as an improvement highly beneficial both in its nature and in its consequences ―
both to the representatives and to their constituents. "In the house of
commons," says Sir William Blackstone, "the conduct of every member is subject
to the future censure of his constituents, and therefore should be openly
submitted to their inspection."494 But I forbear to enter more
largely into this interesting topick.
The house of representatives in
congress shall choose their speaker and other officers.495 The like
provision is made by the constitution of Pennsylvania,496 with
respect to both houses of the general assembly.
The speaker of the house of commons
cannot give his opinion, nor can he argue any question in the house.497
From this view of the matter, one would be apt to imagine, that as the Latins
assigned to a grove the name of lucus, a non lucendo, so the English
distinguished the first officer of the house of commons by the appellation of
speaker, because, by the rules of that house, he could say neither yes nor no.
But if we trace things to their origin, we shall be led to discover the reason
of this denomination.
The first mode of passing a bill
through parliament was by a petition to the king. This petition represented the
grievance or inconvenience, concerning which complaint was made, and requested
that it should be removed. When a petition was offered by the commons, after
they sat in a separate house, it was necessary to appoint some person to
intimate their views and wishes to the king. This person, chosen by themselves,
and approved by the king, whom they would not address by the mouth of a person
disagreeable to him, was denominated their speaker.498
To discharge this part of his duty in
the dignified, and, at the same time, in the respectful manner, in which it
ought to be discharged, was frequently considered as a business of a very
arduous nature. It will not be unentertaining, to learn, from one of the
speakers of the house of commons, the qualities, which, in his opinion, were
necessary for the proper performance of the speaker's office.
"Whence," said Serjeant Yelverton,
"your unexpected choice of me to be your mouth or speaker should proceed, I am
utterly ignorant. Neither from my person nor nature loth this choice arise: for
he that supplieth this place ought to be a man big and comely, stately and well
spoken, his voice great, his carriage majestical, his nature haughty. But,
contrarily, the stature of my body is small, myself not so well spoken, my voice
low, my carriage lawyerlike and of the common fashion, my nature soft and
bashful. If Demosthenes, being so learned and so eloquent as he was, trembled to
speak before Phocion at Athens; how much more shall I, being, unlearned and
unskilful, supply this place of dignity, to speak before the unspeakable majesty
and sacred personage of our dread and dear sovereign, the terrour of whose
countenance" (he speaks of Queen Elizabeth) "will appal and abase even the
stoutest heart."499
All bills for raising revenue shall
originate in the house of representatives; but the senate may propose amendments
as in other bills. This provision is common to the United States and
Pennsylvania.500
In a former lecture,501
this subject was considered under one aspect, under which it then made its
appearance. It now claims consideration in other respects and ought to be
examined with a greater degree of minuteness.
In England, all grants of aids by
parliament begin in the house of commons. Of that house, this is an ancient,502
and, now, an indisputable privilege. With regard to it, the commons are so
jealous, that, over money bills, they will not suffer the other house to exert
any powers, except simply those of concurrence or rejection. From the lords, no
alteration or amendment will be received on this delicate subject. The
constitutions of the United States and Pennsylvania have, on this head, adopted
the parliamentary law of England in part; but they have not adopted it
altogether. They have directed, that money bills shall originate in the house of
representatives; but they have directed also, that the senate may propose
amendments in these, as well as in other bills. It will be proper to investigate
the reasons of each part of the direction. This will best be done by tracing the
matter historically, and attending to the difference between the institution of
the house of lords in England, and that of the senates of the United States and
Pennsylvania.
During a considerable time after the
establishment of the house of commons as a separate branch of the legislature,
it appears, that the members of that house were, with regard to taxes and
assessments, governed altogether by the instructions, which they received from
their constituents. Each county and borough seems to have directed its
representatives, concerning the amount of the rates to which they might give
their assent. By adding together the sums contained in those particular
directions, it was easy to ascertain, in the house of commons, the sum total,
which the commonalty of the kingdom were willing to grant. To the extent of this
sum, the commons conceived themselves empowered and directed to go; but no
farther.
According to this mode of proceeding,
the imposition of taxes produced no interchange of communication between the two
houses of parliament. To introduce a money bill, or an amendment to a money
bill, into the house of lords ― to deliberate upon the bill or amendment in that
house ― after agreeing to it there, to submit it to the deliberation of the
house of commons ― all this would have been perfectly nugatory, Let us suppose,
that the bill or amendment had undergone the most full and careful examination
in the house of lords, who, acting only for themselves, could examine it under
every aspect, unfettered by exteriour direction and control: let us suppose it
then transmitted to the house of commons, for their concurrence: what could the
house of commons do? They could not deliberate upon the bill or the amendment:
they could only compare it with their instructions: if they found it consistent
with them, they could give, if inconsistent, they must refuse, their consent.
The only course, therefore, in which this business could be transacted, was,
that the commons should begin by mentioning the sum, which they were empowered
to grant, and that what they proposed should be sent to the house of lords, who,
upon all the circumstances, might deliberate and judge for themselves.503
In this manner, and for these reasons,
the house of commons became possessed of this important privilege, which is now
justly regarded by them, as one of the strongest pillars of their freedom and
power. Once possessed of this privilege, they were far from relinquishing it,
when the first reasons for its possession had ceased. Other reasons, stronger
than the first, succeeded to them. In the flux of time and things, the revenue
and influence of the crown became so great, and the property of the peerage,
considered with relation to the general property of the kingdom, became
comparatively so small, that it was judged unwise to permit that body to model,
or even to alter, the general system of taxation. This is the aspect, under
which this subject was viewed in the lecture, to which I have alluded; and I
will not repeat now what was observed then.
From this short historical deduction,
it appears, that the provision, which we now consider, is far from being so
important here, as it is in England. In the United States and in Pennsylvania,
both houses of the legislature draw their authority, either immediately, or, at
least, not remotely, from the same common fountain. In England, one of the
houses acts entirely in its private and separate right.
But though this regulation is by no
means so necessary here, as it is in England; yet it may have its use, so far as
it has been adopted into our constitutions. Our houses of representatives are
much more numerous than our senates: the members of the former are chosen much
more frequently, than are the members of the latter. For these reasons, an
information more local and minute may be expected in the houses of
representatives, than can be expected in the senates. This minute and local
information will be of service, in suggesting and in collecting materials for
the laws of revenue. After those materials are collected and prepared, the
wisdom and the patriotism of both houses will be employed in forming them into a
proper system.
The house of representatives shall
have the sole power of impeaching. All impeachments shall be tried by the
senate. These regulations are found both in the constitution of the United
States504 and in that of Pennsylvania.505
The doctrine of impeachments is of
high import in the constitutions of free states. On one hand, the most powerful
magistrates should be amenable to the law: on the other hand, elevated
characters should not be sacrificed merely on account of their elevation. No one
should be secure while he violates the constitution and the laws: every one
should be secure while he observes them.
Impeachments were known in Athens.
They were prosecuted for great and publick offences, by which the commonwealth
was brought into danger. They were not referred to any court of justice, but
were prosecuted before the popular assembly, or before the senate of five
hundred.506
Among the ancient Germans also, we
discover the traces of impeachments: for we are informed by Tacitus, in his
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