Note D, Structure of the Federal Government

II. I shall now proceed to the second branch of our inquiry; namely; the structure and organization of the federal government of the United States, with its powers, jurisdiction, and rights, as established by the constitution of the United States, either independent of, or connected with, those of the state governments, respectively; together with the mutual relation which subsists between the federal and state governments in virtue of that instrument.

And, here, we may be permitted shortly to repeat some former observations: That, when the whole body of the people are possessed of the supreme power in the state, it is a democracy. That in such a government, the people are in some respects the sovereign, and in others, the subject. That, in the establishment of the constitution or fundamental law by which the state is to be governed, and in the appointment of magistrates, they are the sovereign: when the constitution of the state is fixed, the government organized, and the magistrates are appointed, every citizen is bound to obedience to the sovereign will thus expressed, and consequently becomes a subject.

That, in a democracy, the people ought to do, themselves, whatever they conveniently can; that, what they can not do of themselves, must be committed to the management of ministers chosen by themselves; that they are their trustees and agents; and that a government thus formed and organized, may be styled a REPRESENTATIVE DEMOCRACY. That, the choice of ministers may be made, either, personally, by the whole body of the people; or by their deputies, chosen for that especial purpose, and in whom they can repose a proper confidence.

That, a number of independent states may unite themselves by one common bond or confederacy, for the purposes of common defense and safety, and for the more perfect preservation of amity between themselves, without any of them ceasing to be a perfect, independent, and sovereign state, retaining every power, jurisdiction and right, which it has not expressly agreed shall be exercised in common by the confederacy of the states; and not by any individual state of the confederacy.

In the commonwealth of Virginia, the constitution, which is the fundamental law of the republic, has been shown to be the act of the people.³³ The establishment of this constitution was an immediate act of sovereignty by them. They declared, that all power is vested in, and consequently derived from the people. That magistrates are their trustees and servants, and at all times amenable to them. That government is instituted for the common benefit, protection, and security of the people. That no man or set of men are entitled to exclusive or separate emoluments or privileges but in consideration of public services. That the people have a right to uniform government; and, that no free government, or the blessings of liberty, can be preserved to any people but by a firm adherence to justice, moderation, temperance, frugality, and virtue; and by frequent recurrence to fundamental principles.³⁴ This is the principle of democracy.

By the establishment of this constitution, without any dependence upon any foreign power, Virginia became an independent and sovereign state:³⁵ her rights were naturally the same as any other state’s. She might, therefore, perform every act, which any other sovereign state, however constituted, could perform: she was also equal to any other state, or nation, being sovereign and independent.³⁶

In becoming a member of the federal alliance established between the American states, by the articles of confederation, she expressly retained her sovereignty and independence.³⁷ The constraints put upon the exercise of that sovereignty, by those articles, did not destroy its existence.³⁸

We have already shown that this system was defective in not providing the means, for a certain and regular revenue and, that the inefficiency of the system, in that, and perhaps in some other respects, gave rise to the new constitution.³⁹ Of the immediate causes, and the particular motives and reasons which may be supposed to have led to the adoption of this important measure, together with a short history of its origin, progress, and final consummation; as also, of the foundation, and general nature of the new instrument of union between the states, a short explanation has likewise been attempted;⁴⁰ nevertheless, we shall not unfrequently have occasion to recur to, and perhaps to repeat, the same points, already touched upon; that the student may more perfectly understand, and bear in mind the reasons for the several provisions contained in the constitution, and the subsequent amendments to it, which have been proposed and ratified, and now form a part of it.

In the new instrument of union, there is no express reservation, as in the former, of the sovereignty of the several states; a subject of considerable alarm, and discussion, among those who were opposed to every thing that resembled, or might hazard, a consolidation of them. The advocates of the constitution answered, that “an entire consolidation of the states into one complete national sovereignty, would imply a complete subordination of all the parts; and whatever power might remain in them would be altogether dependent on the general will. But as the plan of the convention aims only at a partial union, the state governments will clearly retain all the rights of sovereignty, which they had before, and which are not by that act exclusively delegated to the United States. That this exclusive delegation, or rather this alienation of state sovereignty, would only exist in three cases; where the constitution in express terms grants an exclusive authority to the union; where it grants in one instance an authority to the union, and in another prohibits the states from exercising the like authority; and where it grants an authority to the union, to which a similar authority in the states, would be absolutely, and totally contradictory, and repugnant⁴¹ The same writer elsewhere adds, “that it is not a mere possibility of inconvenience in the exercise of some powers, but an immediate and constitutional repugnancy that can by implication alienate and extinguish a pre-existing right of sovereignty.” And further, that “the necessity of a concurrent jurisdiction in certain cases, results from the division of the sovereign power; and the rule that all authorities of which the states are not explicitly divested in favor of the union, remain with them in full vigor, is not only a theoretical consequence of that division, but is clearly admitted by the whole tenor of the instrument.”⁴² And this constitution, as we have already had occasion to remark, is now confirmed by the subsequent amendments to the constitution, Art. 12. The right of sovereignty, therefore, in all cases not expressly ceded to the United States by the constitution, or prohibited by it to the several states, remains inviolably, with the states; respectively. What powers are comprehended under this reservation, will form a part of our present inquiry.

The institutions of all well constructed governments, as we have before had occasion to remark, have regard to two distinct objects; their connections, intercourse, and commerce with other states, and nations; and, the administration of justice between individuals, the preservation of their own domestic peace, and that of their citizens, and the advancement and promotion of the general happiness and prosperity of all who put themselves under their protection. Where the form of government is national it is the duty of the body politic of the state to attend to all these objects. But where the government is not national, but federal, a division of power necessarily results from such a form of government; and the connections, intercourse and commerce of the confederate republic, with foreign states and nations; and with each other, as sovereign and independent states, naturally fall under the jurisdiction of the federal government, whilst the administration of all their other concerns, whatsoever, as naturally, remains with the states forming the confederacy.

This distinction may be considered as marking out the grand boundary between the limits of federal and of state jurisdiction; but a more intimate union between the states, in certain respects, being thought desirable, this grand boundary has not been strictly adhered to in the federal constitution, but in some few instances the authority of the federal government has been extended beyond it; a remarkable instance of which occurs in the power granted to congress to make uniform laws on the subject of bankruptcies, throughout the United States; a regulation in the strictest sense, municipal, and not federal. These instances are, however, few, and being in derogation of the municipal jurisdiction of the several states, ought for reasons already given to be strictly construed.

With regard to the principles of the organization, and structure of the federal government, whenever it departs from those of a confederate republic, it appears to conform to those of a representative democracy. The representatives in congress are chosen immediately by the people: the president may be chosen in a manner very nearly approaching a popular election, as in this state; though in some others, the election is farther removed from the people; or rather, may be considered as taken away from them by their own legislatures, as in some of the northern states. All officers of the government, including the president, are impeachable for misconduct in office, and on conviction may be removed, and otherwise punished. These are prominent features of a representative democracy. In the appointment of senators it’s type is federal: in the mode of appointing the judges, it has been regarded as “squinting at monarchy”.⁴³

The grand boundary which was noticed above, as marking the obvious limits between the federal and state jurisdictions, may be considered as allotting to the former, jurisdiction in all eases arising under the political laws of the confederacy, or such as relate to its general concerns with foreign nations, or to the several states, as members of the confederacy; and to the latter the cognizance of all matters of a civil nature, or such as properly belong to the head of municipal law; except in some few cases, where, by a special provision contained in the constitution, either concurrent, or exclusive, jurisdiction is granted to the federal government. Of this distribution we shall endeavor to take a nearer survey.

The objects of the political laws of a state as mentioned by eminent writer, are, first, to provide for the necessities of the nation.

To encourage labor and industry, to provide necessary workmen, to promote agriculture, to advance commerce, to establish an easy communication between the different parts of the state, to regulate the rates of money, are ranked among the first objects of a good government. To encourage education, the liberal arts, and sciences, justice and polity, and to fortify itself against attacks from without; to preserve peace, to support the dignity and equality of the nation, and to form advantageous connections, and a beneficial intercourse with other states and nations, may be considered as forming the aggregate of the political laws of a nation.⁴⁴ I say nothing of the advancement of piety and religion; the present age seems to doubt of the necessity of any connection between church and state.

The powers delegated to congress by art. 1. sect. 8, of the new constitution; to the president and senate by art. 2. sect. 2. and 3. and to the judiciary by art. 3. sect. 2. may severally be arranged under one, or the other of these heads.

Of these powers some appear to be exclusively vested in congress, or some other department of the federal government; in others, the states certainly have concurrent, though perhaps subordinate, powers; in a third class it is not easy to determine, the limits of either the state, or federal authority. The administration of justice between the citizens of the same state, appears to be left without reserve, (except in a few instances which will be particularly noticed, in the sequel) to the jurisdiction and control of the state governments.

Thus have we endeavored to trace the line of separation between the jurisdictions of the federal and the state governments, ….it is however a broad line, extending like the ecliptic, sometimes on one side, and sometimes on the other, of our political equator: but let us examine it more minutely.

All the powers delegated by the people of the United States to the government, whether the federal, or that of the state, must fall under one of the four following heads.

I. Those exclusively granted to the federal government.

II. Those in which the state has unquestionably concurrent, though perhaps subordinate powers with the federal government.

III. Those where the concurrent authority of the state government is questionable; or controlable by congress.

IV. Those reserved to the states, exclusively.

These powers are either legislative, executive, or judiciary: we shall examine them under their respective heads.

I. The powers exclusively granted to the federal government. Of these,

A. The legislative: or those vested in congress; that body being empowered,
1. To borrow money on the credit of the United States.

2. To regulate commerce
a. With foreign nations;

b. Among the several states; and

c. With the Indian tribes.

The commerce between the individuals of the same state, being reserved to the state governments.

3. To coin money, regulate the value thereof, and the value of foreign coin.

4. To fix the standard of weights and measures. These last powers seem to be a necessary appendage to that of regulating commerce.

5. To provide for the punishment of counterfeiting the securities and current coin of the United States.

6. To constitute tribunals, under the federal government, inferior to the supreme court

7. To define and punish,

a. Piracies;

b. Felonies on the high seas;

c. Offenses against the law of nations.

8. And to declare the punishment of treason against the United States.

9. To declare war; grant letters of marque and reprisal; and make rules concerning captures on land and water.

10. To provide and maintain a navy, [in time of peace.]
11. To make rules for the regulation and government of the land and naval forces.

12. To raise and support armies, [in time of peace.] It is at least doubtful whether any such power as that last mentioned, was intended to be entrusted to the government, except in case of eminent danger of hostility: at least beyond the necessary guards for forts, magazines, arsenals, etc. and even in these cases the constitution seems to have provided that the service should be performed by the militia of the United States.

13. To provide for calling forth the militia, when necessary to be employed in the service of the United States.

14. And for governing them when so employed.

15. To provide for organizing and disciplining the militia.

16. To exercise exclusive jurisdiction within the ten miles square, where the seat of government shall be permanently established; and in forts, magazines, arsenals, dock-yards, and other places ceded for the use of the federal government.

17. To prescribe the manner in which the public acts, records and judicial proceedings of the states shall be proved, in order to their obtaining faith and credit in other states, and the effect thereof.

18. To establish an uniform rule of naturalization.

19. And to make all laws necessary and proper for carrying the powers vested in the federal government into execution.

B. The powers vested in the executive department of the government of the United States, are all exclusive of the authority of the state government.

1. To make treaties.

2. To appoint ambassadors, ministers, and consuls.

3. Judges of the supreme courts, and all other officers of the United States, except such as are vested by congress in the president alone, in the courts of law of the United States, or, in the heads of departments.

C. The judicial power of the United States seems to be exclusively vested in the tribunals of the federal government.

1. In all cases affecting ambassadors, other public ministers and consuls.

2. In all cases, of admiralty and maritime jurisdiction.

3. In controversies between two or more states.

4. In controversies between a state, and any foreign state.

5. In all cases of impeachment against an officer of the federal government.     To which I shall add,

6. In controversies to which the United States are a party, and

7. In all trials for offenses against the constitution, or law, of the federal government.

In which two last cases, I am inclined to suppose, that congress are not restrained from vesting the cognizance of any case, comprehended under those heads, in the state courts, should they find it advisable so to do, especially in fiscal proceedings,⁴⁵ and lesser offenses against the peace.

The preceding enumeration seems to comprehend all the cases applicable to our first head: we shall now proceed to consider.

II. Those in which the state has unquestionably concurrent, though perhaps subordinate powers, with the federal government. Of these,

A. The legislature has unquestionable power.
1. To impose taxes, and duties;

2. Excises, for the support of its own domestic establishment.

3. Imposts, or duties on exports, if absolutely necessary for the purpose of executing its inspection laws.

4. To establish post-offices, and

5. Post roads, within its own precincts or territory, so that they do not contravene the establishments of the federal government.

6. To promote the progress of science, and useful arts by securing to the authors and inventors the exclusive right, within the state, to their respective writings and discoveries.

7. To provide for arming the militia of the state; and to call them forth when necessary for their internal defense.

8. To train and keep troops, [in time of war] and

9. Ships of war [in time of war].

10. And to engage in war, when actually invaded; or in such imminent danger as will not admit of delay.

11. And to propose amendments to the federal constitution.

B. To these we may add, that the judicial power of the state must be presumed to possess concurrent, though perhaps subordinate powers with the courts of the United States in the following cases:

1. In controversies between the state, and
a. The citizens of another state,

b. Foreign citizens, or subjects.⁴⁶

2. Between citizens of different states; if the defendant reside within the state claiming jurisdiction.

3. Between citizens of the same state claiming lands within the state, under grants from different states.

In all which cases, there are neither express words, nor any necessary implication that the states should be abridged of the powers in these respects, which as states they must have possessed…. we must therefore refer these powers to the twelfth article of the amendments to the constitution of the United States.

It is no less true, that the federal government possessing powers of deciding in these cases, the decision of the federal judiciary, is according to the principles and nature of our government, paramount to that of the state judiciary. Causes instituted in the state courts are therefore liable to re-examination in the federal courts; and, perhaps in all these cases to removal in the manner pointed out by the act of congress.⁴⁷

III. Let us now take a short view of those powers, where the concurrent authority of the state government, either is questionable; or subject to the control of congress.

A. Congress being authorized to establish an uniform rule of naturalization, and uniform laws on the subject of bankruptcies throughout the United States, it may well be questioned how far the states can possess any concurrent authority, on these subjects.

If, however, a doubt should arise respecting the former, it might be presumed, that the rights intended to be conferred by this uniform rule of naturalization, should be, in general, confined to such as might be derived from the federal government, without infringing those rights which peculiarly appertain to the states. Thus a person naturalized pursuant to the laws of the United States, would undoubtedly acquire every right that any other citizen possesses, as a citizen of the United States, except such as the constitution expressly denies, or defers the enjoyment of; and such as the constitution or laws of the individual states require on the part of those who are candidates for office under the authority of the states. Five years residence, for example, is required by the laws of Virginia, before any naturalized foreigner is capable of being elected to any office under the state. It is presumable that his being naturalized under the laws of the United States would not supercede the necessity of this qualification.

In respect to bankruptcies it may be questioned whether the power of congress extends to cases arising between citizen and citizen of the same state, since their power does not extend to the internal or domestic commerce of the state, as we have already shown. Yet, on the other hand it may with great strength of reasoning be insisted, that here is a special case in which the power of the federal government extends to internal as well as foreign commerce; and that a contrary construction would probably defeat the constitution, which could not prescribe an uniform rule, without comprehending such cases as well as others.

B. The following powers appear to be vested in the federal government, but may be also exercised by the states, with the consent of the congress, viz.

1. To lay imposts or duties on goods imported into any state, from a foreign state.

2. To lay any duty of tonnage.

3. To keep troops, or

4. Ships of war, in time of peace.

5. To enter into any compact or agreement with any other state, or,

6. With any foreign power.

7. To engage in war when not actually invaded, or in such imminent danger as will not admit of delay.

This finishes the actual enumeration of the powers granted to the federal government, except what relates to the ceded territory, and the erection of new states, and some of the provisions which do not seem necessary to be recapitulated here, though we shall have occasion to notice them hereafter. There remains only to mention,

IV. The powers reserved to the states exclusively.⁴⁸

The twelfth article of the amendments to the constitution of the United States, declares, that the powers not delegated to the United States by the constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

The powers absolutely prohibited to the states by the constitution, are, shortly, contained in article 1. section 10. viz.

1. No state shall enter into any treaty, alliance or confederation.

2. Nor grant letters of marque and reprisal.

3. Nor coin money.

4. Nor emit bills of credit.

5. Nor make any thing but gold and silver coin a tender in payment of debts.

6. Nor pass any bill of attainder.

7. Nor any ex post facto law.

8. Nor any law impairing the obligation of contracts.

9. Nor grant any title of nobility…. Concerning all which, we shall make some few observations hereafter.

All other powers of government whatsoever, except these, and such as fall properly under the first or third heads above mentioned, consistent with the fundamental laws, nature, and principle of a democratic state, are therefore reserved to the state governments.⁴⁹

From this view of the powers delegated to the federal government, it will clearly appear, that those exclusively granted to it have no relation to the domestic economy of the state. The right of property, with all it’s train of incidents, except in the case of authors, and inventors, seems to have been left exclusively to the state regulations; and the rights of persons appear to be no further subject to the control of the federal government, than may he necessary to support the dignity and faith of the nation in it’s federal or foreign engagements, and obligations; or it’s existence and unity as the depositary and administrator of the political councils and measures of the united republics…. Crimes and misdemeanors, if they affect not the existence of the federal government; or those objects to which it’s jurisdiction expressly extends, however heinous in a moral light, are not cognizable by the federal courts; unless committed within certain fixed and determinate territorial limits, to which the exclusive legislative power granted to congress, expressly extends.⁵⁰ Their punishment, in all other cases, exclusively, belongs to the state jurisprudence.

The federal government then, appears to be the organ through which the united republics communicate with foreign nations, and with each other. Their submission to it’s operation is voluntary: it’s councils, it’s engagements, it’s authority are theirs, modified, and united. It’s sovereignty is an emanation from theirs, not a flame by which they have been consumed, nor a vortex in which they are swallowed up. Each is still a perfect state, still sovereign, still independent,⁵¹ and still capable, should the occasion require, to resume the exercise of it’s functions, as such, in the most unlimited extent.

But until the time shall arrive when the occasion requires a resumption of the rights of sovereignty by the several states (and far be that period removed when it shall happen) the exercise of the rights of sovereignty by the states individually, is wholly suspended, or discontinued, in the cases before mentioned: nor can that suspension ever be removed, so long as the present constitution remains unchanged, but by the dissolution of the bonds of union. An event which no good citizen can wish, and which no good, or wise administration will ever hazard.

Let us now take a view of the federal and state constitutions, and examine the structure and organization of the government, arising from their mutual connection, and the distribution of power among the several branches or departments of each, respectively.

The powers of government, both by the federal and state constitutions, are distributed under three heads, the Legislative, Executive, and Judiciary; and these three departments the state constitution⁵² expressly declares shall be separate and distinct, so that neither exercise the powers properly belonging to the other. We shall nevertheless find that the constitution itself has in many respects blended them; assigning to the legislative body, duties, which, in strictness, belong to the executive; as in the appointment of the officers of government, etc. Yet this is undoubtedly conformable to the nature of a democracy in this, that the appointment is vested in the immediate representatives of the people. The constitution of the United States seems upon the same principle to have vested congress, in whom the legislative power is reposed, with powers absolutely foreign from the exercise of legislation, strictly speaking; but which will appear upon a scrutiny to have been more safely and beneficially entrusted to that department, than they could have been to any other whatsoever. Yet these deviations from the fundamental maxims of the government are to be construed strictly, and not made use of as precedents to justify others, where the constitution by its silence must be presumed to have referred it to that head under which it properly falls.

In the course of this investigation, we shall have occasion to inquire into the constituent parts of these several departments; with the mode of constituting them; the periods for which they are chosen; their respective qualifications, duties, and privileges; with the manner of removing them from, and punishing them for, any misconduct in office.

We shall begin with the federal government.

I. Of the congress.

1. The first article or the federal constitution, declares, that all legislative powers therein granted shall be vested in a congress of the United States, which shall consist of a senate and house of representatives. These, therefore, are the constituent parts of the federal legislature.

2. & 3. The next section prescribes the manner in which the last of these bodies shall be chosen,⁵³ that is to say, every second year, by the people of the several states; the qualifications of the electors being the same as that of electors of the most numerous branch of the state legislature.⁵⁴

The same article provides that representatives and direct taxes shall be apportioned among the several states according to their respective numbers, to be determined by adding to the whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxed, three fifths of all other persons; according to an actual enumeration to be made every ten years:⁵⁵ but the number of representatives is limited to one for every thirty thousand persons.⁵⁶

This mode of ascertaining the number of representatives, and the inseperable connection thereby established between the benefits and burdens of the state, seems to be more consonant with the true principles of representation than any other which has hitherto been suggested.⁵⁷ For every man, in his individual capacity, has an equal right to vote in matters which concern the whole community: no just reason therefore can be assigned why ten men in one part of the community should have greater weight in it’s councils, than one hundred in a different place, as is the case in England, where a borough composed of half a dozen freeholders, sends perhaps as many representatives to parliament, as a county which contains as many thousands; this unreasonable disparity appears to be happily guarded against by our constitution. It may be doubted indeed how the apportionment of the numbers, as it respects slaves, is founded upon the principles of perfect equality; and if it be not, it may be a further question whether the advantage preponderates on the side of the states that have the most, or the fewest slaves amongst them; for, if on the one hand it be urged, that slaves are not in the rank of persons,⁵⁸ being no more than goods or chattels, according to the opinion of the Roman jurists, and consequently not entitled to representation, it may be answered that the ratio of representation and taxation being the same, this additional weight in council is purchased at an expense which secures the opposite party from the abuse of it in the imposition of burdens on the government. On the other hand, it must be remembered, that the two fifths of this class of people who are not represented, are by that means exempted from taxation. An exemption which probably took its rise from the unprofitable condition of that proportion of the number of slaves.

The times, places and manner of holding elections for representatives and senators, shall be prescribed in each state by the legislature; subject nevertheless to such alterations as congress may make, except as to the places of choosing senators.⁵⁹

It cannot be denied, that this article vests a power in congress, the exercise of which, if not really dangerous to the liberties of the states,⁶⁰ may at least interrupt their tranquility, unless dictated by the utmost wisdom and discretion. In some of the states the vote is conducted by ballot, in others viva voce. In some the members are chosen by a general ticket or ballot of the whole state; in others the representatives are chosen by districts. Without entering into the discussion of the preference due to either of these modes, we may venture to pronounce that the states respectively will be tenacious of that to which their own constitution or laws may have given the preference: any attempt to render the manner of election uniform must therefore inevitably produce discontents among the states. Hitherto the congress has wisely left this article to the direction of the state governments. The manner of proceeding in this state, as established by the act of 1788, (V. L.) c. 2. amended by the act of 1792. c. 1,⁶¹ is shortly, as follows.

The act divides the states into as many districts, as there are representatives to be chosen, and directs that the persons qualified by law to vote for members to the house of delegates, in each county composing a district, shall assemble at their respective court houses, on the third Monday in March, (now altered by the act of 1798. c. 14. to the fourth Wednesday in April) in every second year, and then and there vote for a proper person as a representative in congress. The election to be conducted by the high sheriff, or in case of sickness or inability to attend, one of his deputies, in the same manner as the elections for delegates, except that as no determination is to be had by view, but only by the polls, the votes being publicly taken viva voce. Immediately after the closing of the poll, the clerk having first signed the same and made oath to the truth thereof, is to deliver it to the sheriff; the sheriffs of the respective counties in the district shall within seven days thereafter, assemble at the court house of the county first named in the district, compare their respective polls, and return the person having the greater number of votes, or in case of an equality of votes, giving their own votes. Duplicates of such return under the hands and seals of the sheriffs are to be sent one to the governor, the other to the representative elected, within ten days thereafter under the penalty of 100, and the poll book under a similar penalty are to be returned again to the clerk of the counties respectively. The governor is moreover required to transmit to congress without delay the returns made to him. The act further provides that no person shall, during the same election, vote more than once for the same candidate; under the penalty of one hundred dollars. This provision was made to prevent persons voting in several counties within the same district.

The representatives by this bill are chosen immediately by the people, in a public manner, by the electors within an aggregate number of counties composing a district. The person chosen seems to be strictly the delegate of those by whom he is chosen, and bound by their instructions whenever they think proper to exercise the right. This principle has been denied by the British writers⁶² on their own government, and a deference to the maxims of that government probably prevented the decision of the question, when agitated in congress in the form of am article to a proposed bill of rights: but if the maxim be true, that all power is derived from the people; that magistrates are their trustees and servants, and at all times amenable to them for their conduct, it seems impossible to withhold our assent from the proposition, that in a popular government the representative is bound to speak the sense of his constituents upon every subject, where he is informed of it. The difficulty of collecting the sense of the people upon any question, forms no argument against their right to express that sense when they shall think proper so to do. Otherwise, by whatever denomination the government may be called, it is a confined aristocracy, in which the people have nothing more to do than to choose their rulers, over whose proceedings, however despotic, and repugnant to the nature and principles of the fundamental laws of the state, they have no control.⁶³ It will be answered, that the power of removing and punishing is not denied by this doctrine. I answer, that the power of preventing offenses against the commonwealth, is to be preferred to that of punishing offenders: and if the government is virtually in the people, it ought to be so organized, that whenever they choose to exercise the right of governing, they may do it without destroying it’s existence. Corruption and mal-administration, unchecked, may drive them to a resumption of all the powers which they have entrusted to the government, and bring on tumults and disturbances which will end only with it’s final dissolution: an event to be apprehended in all governments, but particularly in democracies, since dissatisfaction towards the administration may produce a desire of change in the constitution itself; and every change by which the government is in the smallest degree removed from its republican nature and principle, must be for the worse. This danger is effectually avoided by the principle here contended for. The aggregate of mankind understand their own interest and their own happiness better than any individual: they never can he supposed to have resigned the right of judging for themselves to any set of men whatsoever; it is a right which can never be voluntarily resigned, though it may be wrested from their hands by tyranny, or violated by the infidelity and perfidy of their servants.

When vacancies happen in the representation from any state, the executive authority thereof, shall issue writs of election to fill the vacancies.⁶⁴

The manner of electing senators is much shorter, being vested in the legislatures of the several states; each state being entitled to two senators, whose periods of service are six years, and each senator is entitled to one vote.⁶⁵

The election of representatives we have seen; is by a mode strictly popular. Had the distinction of states been entirely done away, there could have been no good reason assigned, perhaps, why the elections of senators should not have been assimilated thereto, at least in respect to numbers, since in a government where all parts are equal, no preference under any pretext whatsoever ought to be allowed to any one part, over the rest. Why then should Rhode Island and Delaware have as many representatives in the senate as Virginia and Massachusetts, which contain ten times their respective numbers? It has been answered, the senate are chosen to represent the states in their sovereign capacity, as moral bodies, who as such, are all equal; the smallest republic, as a sovereign state, being equal to the most powerful monarchy upon earth.⁶⁶ As states, then, Rhode Island and Delaware are entitled to an equal weight in council on all occasions, where that weight does not impose a burden upon the other states in the union. Now as the relation between taxation and representation, in one branch of the legislature, was fixed by an invariable standard, and as that branch of the legislature possesses the exclusive right of originating bills on the subject of revenue, the undue weight of the smaller states is guarded against, effectually, in the imposition of burdens. In all other cases their interests, as states, are equal, and deserve equal attention from the confederate government. This could no way he so effectually provided for, as in giving them equal weight in the second branch of the legislature; and in the executive whose province it is to make treaties, etc…. Without this equality, somewhere, the union could not, under any possible view, have been considered as an equal alliance between equal states. The disparity which must have prevailed, had the apportionment of representation been the same in the senate as in the other house, would have been such as to have submitted the smaller states to the most debasing dependence, I cannot, therefore, but regard this particular in the constitution, as one of the happiest traits in it, and calculated to cement the union equally with any other provision that it contains.

This body is not, like the former, dissolved at the end of the period for which it’s members were ejected; it is a permanent, perpetual body; the members, indeed, are liable to a partial change every two years, the senate being divided into three classes, one of which is vacated every second year, so that a total change in the members may be made in six years, but cannot possibly be effected, without the intervention of death, in less time…. According to the arrangements of the classes actually made, both the senators from the same state shall never vacate their seats at the same time; a provision which certainly has it’s advantages, as no state is thereby in danger of being not represented at any time.

This mode of constituting the senate, seems liable to some important objections.⁶⁷ The perpetuity of the body is favorable to every stride it may be disposed to make towards extending power and influence in the government: a tendency to be discovered in all bodies, however constituted, and to which no effectual check can be opposed, but frequent dissolutions and elections. It is no satisfactory answer to this objection, that the members are removable, though the body itself be perpetual. The change, even were the members ineligible a second time, would be too gradual, to effect any counterpoise to this prevailing principle.

It has been insisted that the perpetuity of this body, is the only security to be found in the constitution against that instability of councils and of measures which has marked the proceedings of those States, where no such check is provided by the constitution.⁶⁸ To which it may be answered, that every newly established government must be a government of experiment…. The design of a machine may appear correct, the model perfect, and adapted to all the purposes which the original inventor proposed: yet a thousand defects may be discovered when the actual application of it’s powers is made, and, many useful improvements, in time, become obvious, to the eyes of a far less skilful mechanic. Their success and perfection must, however, still depend upon actual experiment, and that experiment may suggest still further improvement. Are we to reject these because they did not occur to the first projector, though evidently growing out of his original design? Or, if on the other hand we have unwarily adopted that as an improvement, which experiment shall evince to he a defect, shall we be so wedded to error as to persist in the practice of it, for no better reason than that we have once fallen into it.

In case of vacancies in the office of senator, the executive of the state are authorized to make a temporary appointment until the next meeting of the legislature, who are then to fill the vacancy.⁶⁹

4. The qualifications of the members of these bodies respectively, are, that both senators and representatives should have been citizens of the United States, the former nine, and the latter seven years⁷⁰ and be citizens also of that state for which they shall be chosen, at the time of their election; to which the law of the state adds, that a representative should be a freeholder and resident of the district for which he is chosen:⁷¹ a wise provision and perfectly consonant with the principles of representation, which should be made from the body of the people with whom the representative must be presumed to have a common interest, but which perhaps may be rendered nugatory, by the constitution which imposes no such condition, and which makes each house the judge of the qualifications, as well as of the elections and returns of its own members. The constitution further requires that a representative should be twenty-five, and a senator thirty years of age;⁷² to which may be added that no person holding any office under the United States shall be a member of either house during his continuance in office.⁷³

So much for the qualifications of the members of congress, to which we may subjoin their incapacities, as individuals, during the period for which they are elected; these are shortly an incapacity of being appointed to any civil office under the United States, which shall have been created or the emoluments thereof increased during their time.⁷⁴ An admirable provision against venality, but which, it is to be feared, is not sufficiently guarded to prevent evasion. And to preclude undue influence on the part of the federal government over that of the commonwealth, it is provided by a law of the state,⁷⁵ that the members of congress shall be ineligible to, and incapable of holding any seat in either house of assembly, or any legislative, executive, or judicial office, or other lucrative office whatsoever, under the government of this commonwealth: and this last provision is by the same act extended to all persons holding any legislative, executive, judicial or other lucrative office whatsoever under the United States, with a proviso in favor of militia officers, and county court magistrates.

5. Senators and representatives during their attendance in congress, as also in travelling to and returning from the place of their session, are privileged from arrest in all cases, except treason, felony, and breach of the peace;⁷⁶ and no speech or debate in either house can be questioned in any other place. They are also entitled to a compensation for their services, to be ascertained by law, and paid out of the treasury of the United States.⁷⁷

These are all the personal privileges which the constitution gives to the members of the federal legislature. And here I shall transcribe the words of one of it’s former members on a similar occasion…. “The members of the legislature ought certainly to have no privilege but what is demonstrably essential to the freedom, and welfare of their constituents. The state is not made to dignify it’s officers, but the officers to serve the state. The dignity of a commonwealth does not consist in the elevation of one, or a few, but in the equal freedom of the whole. The privileges of the legislature ought to be defined by the constitution, and should be fixed as low as is consistent with the public welfare.”…. This is the point which the constitution appears to have had in view, and very happily to have attained; and it is to be sincerely wished, the question may never arise whether they ought to have been more, or less, limited.

Thus much for the privileges of the members; each house has moreover it’s own distinct privileges and powers; those of the house of representatives are,

1. To choose their own speaker, and other officers.⁷⁸

2. To originate all bills for raising a revenue; but the senate may propose, or concur with amendments, as on other bills.⁷⁹

3. This house also possesses the sole power of impeachment.⁸⁰

These are all it’s exclusive privileges.

The vice-president of the United States is, by virtue of his office, president of the senate; but has no vote unless they be equally divided.⁸¹

This power may at first view appear to be of no great consequence: it is however of the utmost importance; and the occasions on which it is said to have been exercised, will demonstrate the necessity of leaving it, as seldom as possible, to it’s full scope.⁸²

In fact this part of the constitution gives a decided influence in the legislature to that part of the United States from which the vice-president shall be elected. He has eventually a veto, without being obliged to assign his reasons for it; it is otherwise with the president. But to return to the senate.

1. In case of the absence of the vice-president, or of his exercising the office of president of the United States, they may choose a president pro tempore…. they have also a right of choosing all their other officers.⁸³

2. The senate have the sole power of trying impeachments.⁸⁴ A most inordinate power, and, in some instances, utterly incompatible with their other functions, as we shall hereafter have occasion more fully to demonstrate.

3. The senate likewise constitute a part of the executive department⁸⁵ …. the examination of which part of their constitution we shall take up under its proper head.

Exclusive of these privileges which the two houses possess, as contradistinguished from each other, each house possesses the right of determining the rules of it’s own proceedings; of punishing it’s members for disorderly behavior; and of expulsion, provided two-thirds concur therein.⁸⁶

Each house is moreover the judge of the elections, returns, and qualifications of it’s own members,⁸⁷ as we have before observed; a majority of each is requisite to form a quorum to do business; a provision of no small importance, since otherwise it is possible that the concerns of the nation might be decided by a very small portion of it’s representatives; if; as has been done in other assemblies, the quorum were left to the decision of the body itself. In England, where there are near six hundred members in the house of commons, the number of 45 constitutes a quorum to do business. Is it possible that the nation can be represented by that number, whilst the elections stand upon their present footing? But although it requires a majority of the house of representatives, or the senate, to do the business of the nation, a smaller number may adjourn from day to day,⁸⁸ and compel the attendance of absent members.

Each house is moreover required to keep a journal of its proceedings,⁸⁹ and from time to time to publish the same; excepting such parts as may in their judgments require secrecy; a provision evidently calculated to defeat the salutary purposes of the former part of the rule; since every measure which intrigue may dictate, or cabal enforce, may thus be hid from the public eye, by being consigned to the secret journals an expedient too obvious to be neglected whenever it may be found advisable.

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.⁹⁰ Any member of the house of lords in England may enter his protest on the journals of the house, but the commons possess no such privilege. In a representative government, it is of the utmost consequence that the people should be informed of the conduct of their delegates individually, as well as collectively. This purpose is fully answered by the rule here spoken of. But to prevent a call of the yeas and nays too frequently, as is said to have been practiced in the former congress, the constitution has set some reasonable limits to the exercise of this power, by requiring that at least one-fifth of the members present should concur in the expediency of it.

To prevent those inconveniencies which might arise from the national legislatures omitting to assemble as often as the affairs of the nation require, the constitution provides, that congress shall assemble,⁹¹ at least once a year, and fixes the period of assembling to the first Monday of December, unless they shall by law appoint another day. It likewise vests the president of the United States with the power of convening them, or either house, on extraordinary occasions.⁹²

Lastly, to prevent the evils which might result from the want of a proper concert and good understanding between the houses, it is provided,⁹³ that neither house, during the session of congress shall, without 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. And further to guard against any inconvenience which might result from their disagreement, it is provided,⁹⁴ that in such case the president may adjourn them to any time he shall think proper. This is the only instance in which the constitution permits an interference, with the duration of the session, on the part of the executive; and we have already seen, that though the power of convening the congress is entrusted, on extraordinary occasions, to the president of the United States, yet he has none to prevent, or even retard their assembling, at any time, by their own adjournment, or at certain stated periods fixed by law, or by the constitution.

The duration of congress is necessarily limited to two years, the period for which the house of representatives is chosen. The period of its commencement seems to have been fixed to the fourth day of March, the day on which the first congress assembled, and that of it’s expiration to the third of that month biennially …. It is incapable of any other mode of termination, their being no power in any part of the government to dissolve it. By these wise and salutary provisions; it is effectually guarded against every possible encroachment on it’s independence. Very different from the constitution of the British parliament, since the crown may, at any time, put an end to a session by a prorogation, or to the existence of a parliament by a dissolution.

The president of the United States may be considered sub modo, as one of the constituent parts of congress,⁹⁵ since the constitution requires that every bill, order, resolution, or vote, to which the concurrence of the senate and house of representatives may be necessary (except on a question of adjournment) shall be presented to him: if he approve he shall sign it, but if not he shall return it with his objections to that house in which it shall have originated, who shall enter the objections at large on their journal, and proceed to reconsider it. If after such reconsideration two thirds of that house agree to pass it, it shall be sent, together with the objections to the other house, by which it shall likewise be reconsidered, and if approved by two thirds of that house shall become a law. In all such cases the yeas and nays shall be entered on the journals of both houses. If any bill, etc. be not returned by the president within ten days, Sundays excepted, unless in case of adjournment, whereby the return is prevented, it shall nevertheless be a law etc.

This closes our hasty sketch of the constituent parts of the congress of the United States, with a short view of the duration and the outlines of the distinct powers, and privileges of both houses, as also of the individuals who compose them. Before we proceed to the investigation of the powers of the whole body thus formed, let us compare some of it’s most distinguished features, with those of the two houses of the British parliament, long held in idolatrous veneration, as a palladium of political freedom which some partial deity had bestowed upon that favorite nation, and presenting a model of perfection which the combined wisdom of nations, and of ages, could but faintly imitate, and never equal. We shall occasionally resume this comparison at different periods of our inquiry, in order to assist the student in the application of what he will meet with in authors on the subject of that far famed constitution, to the more recent institutions of our own.