Of the Division and Limitation of the Civil Powers.

From the manner in which, agreeable to the constitution, the civil powers are to be exercised, and the objects of their exertion, there naturally arises a division into a legislative, an executive, and a judiciary department. The exercise of the legislative power, by a representation of the people, is an improvement of modern times. In all the republics of ancient Greece, in Italy, and in Rome itself, where the people had a share in legislation, every freeman was a member of the legislature, and gave his suffrage personally in the assembly of the people. This brought together This brought together a body too unwieldy, even in the smallest states; in states of greater extent, where the citizens were almost innumerable, as in the Roman commonwealth, they formed a heterogeneous assemblage of sentiments, passions, and interests, that bade defiance to all hope of compromise by means of rational discussion.

Those who are little capable of reasoning, are nevertheless, capable of strong feelings. Accordingly we find in the public speeches of their most celebrated orators, comparatively little attention, to close investigation; all the powers of their eloquence are directed to the passions and sentiments of their audience; the whole vigor of the soul is collected to this point. The instruction contained in their orations, serves principally to mark the state of knowledge, the manners and sentiments of the times. The glow of imagination, which they discover, the propriety and irresistible force of sentiment and expression, which wrap the whole soul in attention, have

justly rendered them the admiration of succeeding ages. All this well accounts for the fluctuation of measures in ancient popular governments. They have, with great propriety, been compared to the fluctuations of the boisterous elements. A republican government upon this model, must always be found rash and vacilating in their counsels, and exposed to violent revolutions.

It has been the opinion of the best writers, that a democracy can be adequate to the government of a small territory only; and that, in this institution, population must be stinted, or the number of citizens, who shall have the right of suffrage, limited. The first is a very discouraging consideration. The latter constitutes a more or less numerous aristocracy. Montesquieu, clearly agrees in the general opinion. He appears to have had no conception of that improvement upon a democracy, in which the people exercise all the powers of government by representation. In his time no instance of this form had existed in any independent state, and which yet wants an appropriate name. The same author, speaking of the representative branch of the English government, observes,-" The great advantage of representatives is their being capable of discussing affairs; for this the people at large are very unfit; which is one of the inconveniencies of a democracy."* Representatives, elected from various parts of the community, agreeable to a just apportionment, are, not only capable of discussing the affairs of the nation, be it ever so extensive or numerous, but they bring to that discussion more knowledge of the general and particular manners, interests, and sentiments of the people whose interest and happiness is alone concerned in their deliberations, and dispositions more congenial to those manners, interests, and sentit ments, than can be found in any other body of men.

The legislative department ought, by the constitution, to be again divided into two co-ordinate branches, one of which, less numerous, we denominate the senate, the other the house of representatives. Both are to be in fact equally representatives of the people; the latter more numerous, to be elected from

Sp. L. B. 1. 184.

smaller districts intended to represent the local and more partial interests of the community; the former, fewer in number, to be elected from larger districts and intended to represent the more general interests. This division of the legislature into two coordinate branches is a very important and necessary provision of the constitution. Public discussion and mature deliberation in the enacting of laws is indispensably necessary. To this end the senate and house of representatives must have equal powers; and no law be suffered to pass without the concurrence of both. Should one body, through the prevalence of some secret influence or particular prejudice, pass too hastily upon measures, the other may calmly arrest the decision, and prevent the danger arising from too transcient or too partial a view of the subject.

There is another advantage accruing from this division of the legislature, in some degree independent of the above consideration. That man or body of men, who have formed any plan, are in some measure incapable of discovering the errors and mistakes that may have intervened. Their ideas when arranged, flow almost unavoidably in the same channel. Those errors and mistakes will be much more readily discovered by others. This is apprehended to be an important consideration in the legislative institution.

The general qualifications, which may be required for members of the legislature, we shall defer until we come to treat of the qualifications of electors, and shall mention but one here which relates to the senators. It is a good idea that the senate should be considered as a national council, and it may be thought a necessary provision in the constitution, that certain executive measures should receive the approbation of that body. This suggests a distinction of age, to add to the respectability of the body, and give maturity to their deliberations. Public measures, before they are adopted, ought to be considered in every light in which they may affect the passions, the morals, sentiments, and interests of the people, both general and particular. While they provide for present accommodation, they ought not to lose sight of future improvements, to secure a more deliberate discussion and a more calm investigation, not only ought the warmth and inexperience of youth to be excluded from the senate, but it is a reason why the members

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should be fewer in number than those of the other branch,→ and thus while the house of representatives, actuated by all the passions and sentiments of the community, in turn give a vigor and national spirit to the measures of government, any precipitation, into which they may be hurried, will be prevented by the calm composure of the senate.

The number of representatives seems not to be capable of any precise limitation. The extremes are very discernible, but they are very distant. Too numerous a representation verges on the inconveniences of an assembly of the people. It encumbers discussion, and gives ascendency to particular passions, which, in a numerous assembly, often with a sympathetic effect, pervade the whole body, and irresistibly influence the decisions of the moment. On the other hand, if the representative body are too few in number, their measures are liable to be dictated by limited views and private interests, Possibly we can go no farther than to say, that it ought to be so numerous, as probably to comprehend all the sentiments and interests that have a national influence. The better to effect this comprehension, and to equalize the representation, the state ought to be divided into as many districts as there shall be representatives to be elected, and the districts should, as near as circumstances will permit, be apportioned by the number of inhabitants. This will in general, secure the most equal representation, and the electors will act more understandingly, and with a personal knowledge of the candidates. Where a number of representatives are assigned to a larger district, and especially, as in that case, a plurality of the votes, not a majority, generally determines the choice, every engine of intrigue is commonly put in motion, and the representatives are chosen by some prevailing interest of the district, in exclusion of every other; and thus it may happen that the interests of the state are but partially represented. There may, however, be found reasons for adopting this mode of electing representatives, that will out-weigh the inconveniences, but they ought to be very powerful...

The senators, who though not in name, yet in fact are no less representatives of the people than the members of the other branch, ought also to be elected by districts, apportioned

in the same manner by the number of inhabitants. And let it be indispensable, that the senators, as well as the representatives, shall be fixed inhabitants of the district for which they are respectfully chosen. As the senate is to be considered in some respects as a national council, and may by the executive, be called to meet at times when the legislature is not in session, it is proper that they always continue an organized body, retaining a portion of that experience which is acquired by the long service of its members. With this view it is a good provision, that the members shall be distributed equally into three or four classes and numbered accordingly; the time of service for each class to expire successively at the periods for the eletion of representatives, and their places to be sups plied by new elections in their respective districts.

It is the province as it is the duty of the legislature to frame such laws and adopt such measures as will in a due proportion, direct the actions of all the citizens to the promotion of the public interest, will unite the forces of the whole and direct them to the attainment of those important objects of public utility, or public necessity, to which the united forces of all are alone adequate. To the legislature it belongs to enact such laws for the regulation of individual conduct as will, as far as possible, prevent clashing interests and secure right and justice to the citi zens in their private intercourse. Under the same head comes a provision for the ascertainment and reparation of injuries, both public and private, and for securing a general observation of the laws by adequate sanctions, by penalties to be inflicted for every violation. It is also the business and duty of the legislature, to devise ways and means of supplying funds for the support of government, for the protection and defence of the state, and the promotion of the common interest and welfare; to determine the amount of contributions necessary to be raised for those ends, to apportion them on the citizens with a due regard to their means of contributing, and to order the collection in a manner the least burdensome; and further to make by law a specific appropriation of the national funds for all the objects required, without which no expenditures can be allowed, no monies drawn from the public treasury. A

There is still another duty of the legislature, which ought