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the larger House with only one dissenting voice, and be negatived in the smaller House by a majority of one, the event will be, that twenty-seven control and govern two hundred and twenty-three, which is too absurd even for argument, and totally inconsistent with the principles of representative government, which know no difference in the value and importance of its members but what arises from their virtues and talents and not at all from the name of the House or chamber where they sit in."
Meantime the idea had won the favor of Jefferson, who put it into “Notes for a Constitution" that have survived. They are in the rough and without date, but the paper is watermarked 1794. One of them begins: “The Legislature shall form one House only for the verification of their credentials, or for what relates to their privileges. For all other purposes they shall be separated by lot into two chambers."1 This was to be repeated on the first day of each week of the session.
Note that the approval came from a man who had been a member of legislative bodies or in the closest touch with them for thirty years — in the Virginia House of Burgesses, in Congress, as minister plenipotentiary, and as Secretary of State.
A modification of the idea has recently come very near being put to the test in an American State. Oklahoma in 1914 cast 94,986 votes for and 71,742 against an amendment reducing the Legislature to a House of Representatives of eighty members, from which a subordinate body of fifteen Commissioners was to be chosen. The proposition failed by reason of not getting a majority of the votes cast at the election.
REPRESENTATION OF PROPERTY
JEFFERSON must have modified his views in this matter somewhat, for in his “Notes on Virginia” (1782) he had written: "The Senate is by its constitution, too homogeneous with the House of Delegates. Being chosen by the same electors, at the same time, and out of the same subjects, the choice falls of course on men of the same description. The purpose of establishing different houses of legislation is to introduce the influence of different interests or different principles.” And: “In some of the American States, the Delegates and Senators are so chosen as that the first represent the persons, and the second the property of the State. But with us, wealth and wisdom have equal chance for admission into both Houses. We do not therefore derive from the separation by our Legislature into two Houses, those benefits which a proper complication of principles is capable of producing, and those which alone can compensate the evils which may be produced by their dissensions."
1 Writings of Thomas Jefferson (P. L. Ford ed.), vi, 520.
The statesmen who drew up the Federal Constitution were strong believers in the theory that the two branches should be a check on each other as a result of representing different interests. Repeatedly you may find this argued by the authors of "The Federalist.” For instance, Hamilton wrote in No. 34: "It is well known that in the Roman republic the legislative authority, in the last resort, resided for ages in two different political bodies — not as branches of the same legislature, but as distinct and independent legislatures, in each of which an opposite interest prevailed: in one the patrician; in the other, the plebeian. Many arguments might have been adduced to prove the fitness of two such seemingly contradictory authorities, each having power to annul or repeal the acts of the other. But a man would have been regarded as frantic who should have attempted at Rome to disprove their existence. It will be readily understood that I allude to the comitia centuriata and the comitia tributa. The former, in which the people voted by centuries, was so arranged as to give a superiority to the patrician interest; in the latter, in which numbers prevailed, the plebeian interest had an entire predominancy. And yet these two legislatures coexisted for ages, and the Roman republic attained to the utmost height of human greatness.”
It was Hamilton or Madison who wrote in No. 62: "As the improbability of sinister combinations will be in proportion to the dissimilarity in the genius of the two bodies, it must be politic to distinguish them from each other by every circumstance which will consist with a due harmony in all proper measures, and with the genuine principles of republican government."
And in No. 63, after citing the Senates of Sparta, Rome, and Carthage, it was said: “These examples, though as unfit for the imitation, as they are repugnant to the genius, of America, are, notwithstanding, when compared with the fugitive and turbulent existence of other ancient republics, very instructive proofs of the necessity of some institution that will blend stability with liberty.'
A foremost authority of our own time, Woodrow Wilson, thought along the same lines. The Senate, he observed, is valuable in our democracy in proportion as it is undemocratic. “I think that a philosophical analysis of any successful and beneficent system of self-government will disclose the fact that its only effectual checks consist in a mixture of elements, in a combination of seemingly contradictory political principles; that the British Government is perfect in proportion as it is unmonarchical, and ours safe in proportion as it is undemocratic; that the Senate saves us often from headlong popular tyranny."1
To many of the constitution-makers of the Revolutionary period, the possession of property presented itself as the most appropriate test for giving a distinctive character to the upper House. It meant a particular representation for the landed interest. It assured a conservative element in the government. In the Federal Convention, although Gerry of Massachusetts opposed property as a basis of representation, the example of his State in apportioning Senators according to wealth appealed to other members. Abraham Baldwin of Georgia thought the second branch ought to be the representation of property, and therefore that in forming it some reference ought to be had to the relative wealth of the constituents. He cited Massachusetts.3
Pierce Butler of South Carolina urged the same thing," and contended strenuously that property was the only just measure of representation. Yates quotes Butler as saying: "Money is strength; and every State ought to have its weight in the national council in proportion to the quantity it possesses. Dickinson moved to add the words, "according to the taxes and contributions of each State, actually collected and paid into the national treasury."
Yates says Wilson read Franklin's written remarks to the effect "that representation ought to be in proportion to the importance of numbers and wealth in each State.” It is not easy to reconcile this with what Franklin replied two years later to the proposal that there should be an upper branch in the Pennsylvania Legislature, based on property. "Private property,” he said, “is a creature of society, and is subject to the calls of that society, whenever its necessities shall require it, even to its last farthing; its contributions to the public exigencies are not to be considered as conferring a benefit on the public, entitling the contributors to the distinctions of honor and power, but as the return of an obligation previously received, or the payment of a just debt. The combinations are not like those of a set of merchants, who club their property in different proportions for building and freighting a ship, and may therefore have some right to vote in the disposition of the voyage in a greater or less degree according to their respective contributions; but the important ends of civil society, and the personal securities of life and liberty there, remain the same in every member of the society; and the poorest continues to have an equal claim to them with the most opulent, whatever difference time, chance, or industry may occasion in their circumstances.” 1
i Congressional Government, 226. · Elliot's Debates, 1, 406. 3 lbid., v, 260. • Ibid., v, 275, 281. 5 Ibid., 1, 405. 1 Works of Benjamin Franklin (John Bigelow ed.), x, 189.
The matter received particularly thorough discussion in the Massachusetts Convention of 1820. The original Constitution of that State provided there should be forty Senators, elected by districts not less than thirteen in number, with not more than six Senators from any one district; and that "the General Court, in assigning the numbers to be elected by the respective districts, shall govern themselves by the proportion of public taxes paid by the said districts." This last provision led to about one tenth of the debate in the Convention of 1820. The ablest members of that able body shared therein.
General H. A. S. Dearborn opened in behalf of basing senatorial representation on population alone. He did not know whence the principle of the taxation basis had been derived. It was not to be found in the organization of any of the republics, ancient or modern. It did not exist in Greece, Rome, Venice, or Genoa. The only reason he had ever heard to justify it was that the taxes are paid in proportion to property, and that the principle of proportionment was designed for the protection of property. But this protection was not necessary. He appealed to the magnanimity of the rich to yield to the poor their equal proportion of rights. The people would constantly pro
test, and at some time or other it would be necessary to yield to their importunity.
Judge Isaac Parker, President of the Convention and later Chief Justice, took the opposite view. There was, he said, no State in the Union, except Connecticut, Rhode Island, and Maine, that had not established a check by a different mode of representation of the people in the two branches. It might now be considered the unanimous voice of the civilized world that a system of checks and balances in the different departments of government, and between the branches of the Legislature, was essential to the preservation of liberty.
Levi Lincoln of Worcester, who became Governor five years later, held our government to be one of the people, not of property. Representation is founded on the interests of the people. It is because they have rights that they have assumed the power of self-government. Property is incompetent to sustain a free government. In a government of freemen property is valuable only as the people are intelligent. Were it not for a government of the people, the people would be without property. If it was a sound principle that property should confer the right of representation, it ought not to be restricted. Imposing the restriction was admitting that the principle was false and unjust.
The Honorable Richard Sullivan of Brookline pointed out that in a well-balanced republic the personal rights of the citizen are well secured, and rarely in danger; while nine in ten of all the laws relate in some measure to property. As the security of property, next after personal security, is the great end and object of government, its use as the basis of representation in the Senate was the most reasonable and proper.
Judge Samuel S. Wilde declared it was a principle admitted in all private corporations that all persons who have a larger share should have a larger vote. So in the community. That portion which contributes most to the public burdens should have the greatest weight in the government.
James T. Austin held that a representation founded on taxation was a representation of the whole people, and our Senators were elected on popular principles. Rich men alone might be elected if rich men alone had the privilege of voting; but that was not the case.
George Blake objected to the change proposed because, in his