Chapter XXVIII.

Nature of the Union under the Const.i.tution.

--1. Having given, in the preceding chapter, a sketch of the union under the confederation, we shall next show the nature of the union under the present const.i.tution, commencing with a brief comparison of the leading features of the two systems of government.

--2. The former union was a mere confederacy. A _confederacy_ is a league, a federal compact. The word _federal_ is from the Latin _fadus_, a league, or alliance. Hence a confederacy is a combination or union of two or more parties, whether persons or states, for their mutual benefit and a.s.sistance. And let it be here particularly noted, that this union was a union of states, _as states_. The articles of confederation were framed by congress, whose members were appointed by the state legislatures, and, when framed, were submitted to the state legislatures for ratification.

--3. On the other hand, the union under the const.i.tution is a union, not of the states, as such, but of the _people of the states_. Thus it is expressed in the preamble to the const.i.tution: "We, the people of the United States, in order to form a more perfect union, ... do ordain and establish this const.i.tution for the United States of America." And the const.i.tution was submitted for ratification, not to the state legislatures, but to conventions whose members were elected by the people for that purpose.

--4. The states under the confederation were independent, not only of each other, but of the general government. True, they agreed, for their common defense and mutual welfare, to do certain things; and certain other things they agreed not to do, but delegated to congress the power to do them; but, as we have seen, congress had not the power to compel the states to obey its requisitions. By the const.i.tution, the states have given up a greater portion of their sovereignty to the general government, which has power, in certain cases, to control the state governments, and to enforce its laws upon them and upon individuals.

--5. Again, under the confederation, as in confederacies generally, the states were equal. They were ent.i.tled to an equal number of delegates in the congress, in which they voted by states, each state having one vote; that is, if a majority of the delegates of a state voted in favor of or against a proposed measure, the vote of the state was so counted; and a proposition having in its favor a majority of the states, was carried.

Every state was ent.i.tled to seven delegates; but there must be at least two delegates present and voting, in order to give a state vote; and if an equal number of the delegates of a state voted for and against a proposition, the state was said to be divided, and to have no vote.

--6. Under the const.i.tution there are two branches of congress, in one of which the number of representatives of each state is in proportion to its population; in the other, (the senate,) the states are equally represented, on the principle of the confederation, though by two senators only. But the vote in both is taken, not by states as under the confederation, but _per capita_, that is, by the head or poll, the vote of each member counting one.

--7. The articles of confederation were framed by congress, the members of which were appointed by the state legislatures; and the articles, when framed, were submitted for ratification to the state legislatures.

The const.i.tution was framed by a convention of delegates from the states appointed for that purpose; and was ratified, not by the state legislatures, but by state conventions whose members were elected by the people of the several states.

--8. The former union, as has been remarked, was a mere Confederacy, composed of independent states, and united simply for purposes of defense and their mutual safety. In most respects they had no more political connection than so many different nations. The people of a state were not, properly speaking, citizens of the United States, but only citizens of the state in which they lived. But by the const.i.tution, the people of the states were incorporated into a nation; and a citizen of a state is also a citizen of the United States. The government of the confederation, although sometimes called the national government, was not really such, nor was it generally so regarded, as appears from the proceedings of the convention that framed the const.i.tution.

--9. Among the earliest proceedings of the convention was the offering of a resolution, declaring that "a national government ought to be formed, consisting of legislative, judiciary, and executive." This resolution was strongly opposed by a large portion of the delegates, because it proposed to establish a _national_ government. They were in favor of continuing the confederation with a slight enlargement of the powers of congress, so as to give that body the power to lay and collect taxes, and to regulate commerce. But the friends of a national government prevailed; and we have now a complete government, consisting of the three departments, legislative, executive, and judicial.

--10. Under the confederation, there was no executive to execute the ordinances of congress; nor a national judiciary, the state courts being used for all judicial purposes. There was only a legislature; and that consisted of a single body, called the congress, appointed by the state legislatures, and having scarcely power enough to ent.i.tle it to the name of legislature.

--11. But, although the present government, with these three departments of power, and controlling, in matters of general concern, the action of the state governments and of individuals, is properly a national government; yet it is not wholly such, but partly national and partly federal; some of the federal features of the confederation having been retained in the const.i.tution, as will appear on a further examination of this instrument. Hence the union is still called, with propriety, the _federal union_, and the government the _federal government_.

Chapter XXIX.

Legislative Department. House of Representatives.

--1. The first article of the const.i.tution describes the manner in which the legislature is formed, and prescribes its princ.i.p.al powers. It declares, "All legislative powers herein granted shall be vested in a congress of the United States, which shall consist of a senate and house of representatives." Members of the old congress were appointed by the state legislatures for one year, and might be recalled by them at any time. Representatives are now chosen for two years. It was thought that a single session was too short a term for men in general to acquire the knowledge and experience necessary to a right performance of the responsible duties of a representative. Besides, measures are often left unfinished at the close of a session; and those who have once examined their merits and demerits, can dispose of them more promptly than new members.

--2. The same clause declares that "the electors in each state shall have the qualifications requisite for electors of the most numerous branch of the state legislature." The qualifications of electors were various in the different states. (Chap. VI, --8.) In some of them, owners of property, or tax-payers, in others, freeholders only, were voters. In some, only the latter voted for the higher officers; in a few, suffrage was almost universal. It was presumed that no state would object to its own rule for electing the popular branch of its legislature. It is proper that a representative should be chosen directly by those whose wants he is to make known, and whose rights he is to guard.

--3. A representative must, at the time of his election, "have attained the age of twenty-five years; and have been seven years a citizen of the United States;" and he must "be an inhabitant of the state in which he is chosen." Few young men, on attaining the age of majority, have the knowledge, or experience, or wisdom, which is requisite to qualify them for the responsible duties of a representative. Nor is it to be presumed that an alien, at the earliest period at which he may become a naturalized citizen, would be sufficiently familiar with our inst.i.tutions and the wants of our people to be a competent representative.

--4. The next clause prescribes the rule of apportionment.

"Representatives and direct taxes shall be apportioned among the several states, according to their respective numbers, which shall 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." To the younger cla.s.s of readers, this part of the clause needs explanation.

--5. The convention found it very difficult to agree upon a rule of apportionment. In the first place, the states, as will be recollected, were ent.i.tled to an equal number of delegates in the old congress; and each state had one vote. But as each member of the house of representatives was to have a vote, the small states opposed a representation according to numbers, while the large states as strenuously insisted upon it.

--6. In the next place, the slaveholding states claimed a representation according to numbers including slaves; the non-slaveholding states insisted on a representation according to the number of free persons. It may here be observed, that slavery then existed in all the states except Ma.s.sachusetts; but as the slaves were so few in the northern states, in which slavery has been since abolished, the latter are generally spoken of as if they were at that time non-slaveholding states. The controversy on this point rose so high, and the parties were for a long time so unyielding, that fears were entertained of a sudden dissolution of the convention.

--7. It became evident that the question could be settled only by compromise. The northern states consented that in ascertaining the number of persons to be taken as the basis of apportionment, three-fifths of the slaves should be added to the number of free persons. And as these states had opposed the computation of any slaves in fixing a rule of apportionment, on the ground that slaves are property, and that no property in these states ent.i.tled its owners to representation, the southern states consented, on their part, that _direct taxes_ should be apportioned on the same basis as representatives.

--8. To ill.u.s.trate this rule by an example: Suppose a state to contain 600,000 free persons, and 500,000 slaves. Adding three-fifths of the number of slaves, (300,000) to the number of free persons, gives 900,000 as the number of the representative population: and the state would be ent.i.tled to _three_ representatives for every _two_ that a state would have which contained 600,000 free inhabitants and no slaves. So in apportioning taxes according to population, the state in the case we have supposed, would have to raise _three_ dollars for every _two_ that it would raise if no slaves were counted.

--9. But the advantages of this arrangement are more unequal than may at first sight appear, or than was antic.i.p.ated by the framers of the const.i.tution. The benefits are chiefly on the side of the slaveholding states. In the first place, two-fifths of a large cla.s.s of property in these states is exempt from taxation, while _all_ the property in the free states is liable to taxation. Of this the framers were aware. But they did not foresee the fact, that the laying of direct taxes would be unnecessary, and that the slave states would consequently escape taxation for their slaves. Only three direct taxes have been laid; and it is not probable that another will become necessary; the treasury being supplied from other sources, chiefly by duties on imports.

--10. Now, although nothing is gained by the slave states, nor is anything lost by the free states, by the exemption of the two-fifths of the slaves from taxation, since direct taxes are unnecessary; there is a great gain to the slave states, which have between thirty and forty representatives for what their laws hold to be "property to all intents and purposes whatsoever," for which the free states have nothing in return.

--11. The const.i.tution does not limit the house to any definite number of representatives; it only declares that the number shall not exceed one for every 30,000 inhabitants. It requires an enumeration of the inhabitants every ten years; and the next congress thereafter determines the ratio of representation and the number of representatives, and apportions them among the states. The word _ratio_ signifies rate, or proportion. It here means the number or portion of the inhabitants ent.i.tled to a representative.

--12. But as a representative for every 30,000 inhabitants, after the population became very numerous, would have made the house too large to transact business with due dispatch, and would have unnecessarily increased the public expense, the ratio of representation has from time to time been increased. But to whatever number the ratio may be raised, the const.i.tution expressly declares, that "each state shall have at least one representative." Neither Delaware nor Florida had, in 1850, a population equal to the present ratio; and without the above const.i.tutional provision, these states would have been deprived of a representation in the house, unless congress had adopted a smaller ratio.

--13. It will be seen by reference to the const.i.tution, that the number of representatives was for the time fixed at sixty-five. After the first census, taken in 1790, the ratio was fixed at 33,000, which gave the house 106 members. After the census of 1800, the same ratio was adopted, and the number of members was 142.

After 1810, the ratio was 35,000; number of members 182.

After 1820, the ratio was 40,000; number of members 213.

After 1830, the ratio was 47,700; number of members 240.

After 1840, the ratio was 70,680; number of members 233.

After 1850, the ratio was 93,000 and a fraction, making the number of members 233, of which California had one; but in view of her rapid increase in population, she was allowed an additional member, making, in all, 234. Minnesota has since been admitted into the Union (1858) with two members, and Oregon (1859) with one member.

--14. Representatives are chosen by districts. Each state is divided by the legislature into as many districts as there are representatives to be elected in the state; and one representative is chosen in each district. In most of the states, representatives are chosen at the general state election; in the others, there are special elections for choosing representatives.

--15. By an act of congress, every territory belonging to the United States in which a government has been established, is ent.i.tled to send a delegate to congress, who has a right to take a part in the debates of the house, but not the right of voting.

Chapter x.x.x.

The Senate.

--1. "The senate of the United States shall be composed of two senators from each state; chosen by the legislature thereof, for six years; and each senator shall have one vote." (Art. I, sec. 3.) The convention readily agreed upon dividing congress into two branches; but, as has been observed, it was difficult to settle the mode of representation.

The delegates from the large states insisted upon a representation in proportion to numbers, in the senate as well as in the house; and the small states contended for equality in both branches. The debate was long and animated; and it became apparent that, as in the case of slave representation in the house, there must be a compromise. This was at length effected; the small states consenting to a proportional representation in the house, and the large states to an equal representation in the senate.

--2. It has been remarked, that the federative principle of the old system has been to some extent retained in the const.i.tution. Both the equality of representation in the senate, and the election of senators by the state legislatures, are in strict conformity with the plan of the confederation, and of simple confederacies generally. Different modes of electing senators were proposed; but the one adopted by the convention seems preferable to any other.

--3. There is, however, in one particular, a material difference between the plan of the old congress and that of the senate. It is in the manner of voting. In the former, the vote was taken by states, each state having but one vote; (Chap. XXVIII, --5,) in the latter, the senators vote separately, the vote of each senator counting one, as in the house; and a question is decided by the united votes of a majority of the members, and not by the vote of a majority of the states. Nor is the vote of a state lost if but one of its senators is present, as formerly.

If, however, the two senators vote on different sides of a question, the effect is the same as when, in the old congress, the members from a state were equally divided.

--4. There were also various opinions as to the proper term of office of senators. Terms were proposed differing in length from three to nine years; and a proposition was even made by one distinguished member to make the term continue during good behavior, which is practically for life. There appear to be sound objections both to long and short terms.

It is urged by those in favor of the latter, that an officer elected for a short term, especially if he desires a reelection, will have a strong inducement to please and faithfully serve those who are to elect or appoint him.

--5. Others, however, while they admit that short terms tend to insure responsibility on the part of a representative, consider this argument more than counterbalanced by the objections to which a short term is liable. Looking to a reelection, he may act with a view to his popularity rather than to the public good. Again, the oftener a legislature is changed, the more changeable and uncertain will be the laws. Men having invested their capital in a business enterprise, and made a successful beginning under existing laws, may be ruined by a sudden and unexpected change of governmental policy.

--6. In view of these objections to both long and short terms, a medium term of six years was adopted. This was believed to be short enough to keep up in a senator a feeling of responsibility, and yet long enough to insure his acting independently and with a regard to the general interests of the nation. Although a bad senator may occasionally be kept too long in office by a six years' term, cases also occur in which the act of a senator, especially in time of public excitement, is strongly condemned, but upon calm and mature reflection meets the public approbation.