§ 570. THE second section of the first article contains the structure and organization of the house of representatives. The first clause is as follows:

"The house of representatives shall be composed of members chosen every second year by the people of the several states; and the electors in each state shall have the qualifications requisite for electors of the most numerous branch of the state legislature."

§ 572. First; the principle of representation. The American people had long been in the enjoyment of the privilege of electing, at least, one branch of the legislature; and, in some of the colonies, of electing all the branches composing the legislature. A house of representatives, under various denominations, such as a house of delegates, a house of commons, or, simply, a house of representatives, emanating directly from, and responsible to, the people, and possessing a distinct and independent legislative authority, was familiar to all the colonies, and was held by them in the highest rever- 

ence and respect. They justly thought, that as the government in general should always have a common interest with the people, and be administered for their good; so it was essential to their rights and liberties, that the most numerous branch should have an immediate dependence upon, and sympathy with the people.¹ There was no novelty in this view. It was not the mere result of a state of colonial dependence in which their jealousy was awake to all the natural encroachments of power in a foreign realm. They had drawn their opinions and principles from the practice of the parent country. They knew the inestimable value of the house of commons, as a component branch of the British parliament; and they believed, that it had at all times furnished the best security against the oppressions of the crown, and the aristocracy. While the power of taxation, of revenue, and of supplies, remained in the hands of a popular branch, it was difficult for usurpation to exist for any length of time without check; and prerogative must yield to that necessity which controlled at once the sword and the purse. No reasoning, therefore, was necessary to satisfy the American people of the advantages of a house of representatives, which should emanate directly from themselves; which should guard their interests, support their rights, express their opinions, make known their wants, redress their grievances, and introduce a pervading popular influence throughout all the operations of the government. Experience, as well as theory, had settled it in their minds, as a fundamental principle of a free government, and especially of a republican government, that no laws
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1. The Federalist, No. 52; 1 Black. Comm. 158, 159; Paley's Moral Philosophy, B. 6, ch. 7; I Wilson's Law Lect. 429 to 433; 2 Wilson's Law Lect. 122 to 133. 

ought to be passed without the co-operation and consent of the representatives of the people; and that these representatives should be chosen by themselves without the intervention of any other functionaries to intercept, or vary their responsibility.¹

§ 473. The principle, however, had been hitherto applied to the political organization of the state legislatures only; and its application to that of the federal government was not without some diversity of opinion. This diversity had not its origin in any doubt of the correctness of the principle itself, when applied to simple republics; but, the propriety of applying it to cases of confederated republics was affected by other independent considerations. Those, who might wish to retain a very large portion of state sovereignty, in its representative character, in the councils of the Union, would naturally desire to have the house of representatives elected by the state in its political character, as under the old confederation. Those, on the other hand, who wished to impart to the government a national character, would as naturally desire an independent election by the people themselves in their primary meetings. Probably these circumstances had some operation upon the votes given on the question in the convention itself. For it appears, that upon the original proposition in the convention, "That the members of the first branch of the national legislature ought to be elected by the people of the several states, six states voted for it, two against it, and two were divided.² And upon a subsequent motion to strike out the word "people," and insert in its place the word "legislatures,"
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1. 1 Tucker's Black. Comm. App. 28.
2. Journal of Convention, May 31, 1787, p. 85, 86, 135; 4 Elliot's Debates, (Yates's Minutes,) 58. 

three states voted in the affirmative and eight in the negative.¹ At a subsequent period a motion, that the representatives should be appointed in such manner as the legislature of each state should direct, was negatived, six states voting in the affirmative, three in the negative, and one being divided; and the final vote in favour of an election by the people was decided by the vote of nine states in the affirmative, one voting in the negative, and one being divided.² The result was not therefore obtained without much discussion and argument; though at last an entire unanimity prevailed.³ It is satisfactory to know, that a fundamental principle of public liberty has been thus secured to ourselves and our posterity, which will for ever indissolubly connect the interests of the people with the interests of the Union.⁴ Under the confederation, though the delegates to congress might have been elected by the people, they were, in fact, in all the states except two, elected by the state legislature.⁵
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1. Journal of Convention, May 31,1 787, p. 103, 104; 4 Elliot's Debates, (1 Yates's Minutes,) 62, 63, 90, 91.
2. Journal of Convention, June 21, 1787, p. 140, 141, 215; 4 Elliot's Debates, 90, 91, (Yates's Minutes.)
3. Journal of Convention, p. 216, 233.
4. Mr. Burke, in his Reflections on the French Revolution, has treated the subject of the mischiefs of an indirect choice only by the people of their representative in a masterly manner. He has demonstrated, that such a system must remove all real responsibility to the people from the representative. Mr. Jefferson has expressed his approbation of the principle of a direct choice in a very qualified manner. He says, "I approve of the greater house being chosen by the people directly. For, though I think a house so chosen will be very inferior to the present congress, will be very ill qualified to legislate for the Union, for foreign nations, &c;.; yet this evil does not weigh against the good of preserving inviolate the fundamental principle, that the people ought not to be taxed but by representatives chosen immediately by themselves." 2 Jefferson's Corresp. p. 273.
5. The Federalist, No. 40. 

§574. We accordingly find, that in the section under consideration, the house of representatives is required to be composed of representatives chosen by the people of the several states. The choice, too, is to be made immediately by them; so that the power is direct; the influence direct; and the responsibility direct. If any intermediate agency had been adopted, such as a choice through an electoral college, or by official personages, or by select and specially qualified functionaries pro hac vice, it is obvious, that the dependence of the representative upon the people, and the responsibility to them, would have been far less felt, and far more obstructed. Influence would have naturally grown up with patronage; and here, as in many other cases, the legal maxim would have applied, causa proxima, non remota, spectalur. The select body would have been at once the patrons and the guides of the representative; and the people themselves have become the instruments of subverting their own rights and power.

§ 575. The indirect advantages from this immediate agency of the people in the choice of their representatives are of incalculable benefit, and deserve a brief mention in this place, because they furnish us with matter for most serious reflection, in regard to the actual operations and influences of republican governments. In the first place, the right confers an additional sense of personal dignity and duty upon the mass of the people. It gives a strong direction to the education, studies, and pursuits of the whole community. It enlarges the sphere of action, and contributes, in a high degree, to the formation of the public manners, and national character. It procures to the common people courtesy and sympathy from their superiors, and diffuses a common confidence, as well as a 

common interest, through all the ranks of society. It awakens a desire to examine, and sift, and debate all public proceedings, and thus nourishes a lively curiosity to acquire knowledge, and, at the same time, furnishes the means of gratifying it. The proceedings and debates of the legislature; the conduct of public officers from the highest to the lowest; the character and conduct of the executive and his ministers; the struggles, intrigues, and conduct of different parties; and the discussion of the great public measures and questions, which agitate and divide the community, are not only freely canvassed, and thus improve and elevate conversation; but they gradually furnish the mind with safe and solid materials for judgment upon all public affairs; and check that impetuosity and rashness, to which sudden impulses might otherwise lead the people, when they are artfully misguided by selfish demagogues, and plausible schemes of change.¹

§ 576. But this fundamental principle of an immediate choice by the people, however important, would alone be insufficient for the public security, if the right of choice had not many auxiliary guards and accompaniments. It was indispensable, secondly, to provide for the qualifications of the electors. It is obvious, that even when the principle is established, that the popular branch of the legislature shall emanate directly from the people, there still remains a very serious question, by whom and in what manner the choice shall be made. It is a question vital to the system, and in a practical sense decisive, as to the durability and efficiency of the powers of government. Here, there is much room for doubt, and ingenious speculation, and theoretical inqui-
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1. I have borrowed these views from Dr. Paley, and fear only, that by abridging them I have lessened their force. Paley's Moral Philosophy, B. 6, ch. 6. See also 2 Wilson's Law Lect. 124 to 128.  

ry; upon which different minds may arrive, and indeed have arrived, at very different results. To whom ought the right of suffrage, in a free government, to be confided? Or, in other words, who ought to be permitted to vote in the choice of the representatives of the people? Ought the right of suffrage to be absolutely universal? Ought it to be qualified and restrained? Ought it to belong to many, or few? If there ought to be restraints and qualifications, what are the true boundaries and limits of such restraints and qualifications?

§ 577. These questions are sufficiently perplexing and disquieting in theory; and in the practice of different states, and even of free states, ancient as well as modern, they have assumed almost infinite varieties of form and illustration. Perhaps they do not admit of any general, much less of any universal answer, so as to furnish an unexceptionable and certain rule for all ages and all nations. The manners, habits, institutions, characters, and pursuits of different nations; the local position of the territory, in regard to a nations; the actual organizations and classes of society; the influences of peculiar religious, civil, or political institutions; the dangers, as well as the difficulties, of the times; the degrees of knowledge or ignorance pervading the mass of society; the national temperament, and even the climate and products of the soil; the cold and thoughtful gravity of the north; and the warm and mercurial excitability of tropical or southern regions; all these may, and probably will, introduce modifications of principle, as well as of opinion, in regard to the right of suffrage, which it is not easy either to justify or to overthrow.¹
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1. 1 Black.Comm. 171, 172. -- Mr.Justice Blackstone^* has remarked,

* 1 Black. Comm. 171.  

§ 578. The most strenuous advocate for universal suffrage has never yet contended, that the right should be absolutely universal. No one has ever been sufficiently visionary to hold, that all persons, of every age, degree, and character, should be entitled to vote in all elections of all public officers. Idiots, infants, minors, and persons insane or utterly imbecile, have been, without scruple, denied the right, as not having the sound judgment and discretion fit for its exercise. In many countries, persons guilty of crimes have also been denied the right, as a personal punishment, or as a security to society. In most countries, females, whether married or single, have been purposely excluded from voting, as interfering with sound policy, and the harmony of social life. In the few cases in which they have been permitted to vote, experience has not justified the conclusion, that it has been attended with any correspondent advantages, either to the public, or to themselves. And yet it would be extremely difficult, upon any mere theoretical reasoning, to establish any satisfactory principle,
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"That the true reason of requiring any qualification with regard to property in voters is to exclude such persons, as are in so mean a situation, that they are esteemed to have no will of their own. If these persons had votes, they would be tempted to dispose of them under some undue influence or other. This would give a great, an artful, or a wealthy man a larger share in elections, than is consistent with general liberty. If it were probable, that every man would give his vote freely and without influence of any kind, then, upon the true theory and genuine principles of liberty, every member of the community, however poor, should have a vote in election those delegates, to whose charge is committed the disposal of his property, his liberty, and his live. But since that can hardly be expected in persons of indigent fortunes, or such as the under the immediate dominion of others, all popular states have been obliged to establish certain qualifications, thereby some, who are suspected to have no will of their own, are excluded from voting, in order to set other individuals, whose will bay be supposed independent, more thoroughly upon a level with each other." Similar reasoning might be employed to justify other exclusions, besides those founded upon a want of property.  

upon which the one half of every society has thus been systematically excluded by the other half from all right of participating in government, which would not, at the same time, apply to and justify many other exclusions. If it be said, that all men have a natural, equal, and unalienable right to vote, because they are all born free and equal; that they all have common rights and interests entitled to protection, and therefore have an equal right to decide, either personally or by their chosen representatives, upon the laws and regulations, which shall control, measure, and sustain those rights and interests; that they cannot be compelled to surrender, except by their free consent, what, by the bounty and order of Providence, belongs to them in common with all their race; -- what is there in these considerations, which is not equally applicable to females, as free, intelligent, moral, responsible beings, entitled to equal rights, and interests, and protection, and having a vital stake in all the regulations and laws of society? And if an exception, from the nature of the case, could be felt in regard to persons, who are idiots, infants, and insane; how can this apply to persons, who are of more mature growth, and are yet deemed minors by the municipal law? Who has an original right to fix the time and period of pupilage, or minority? Whence was derived the right of the ancient Greeks and Romans to declare, that women should be deemed never to be of age, but should be subject to perpetual guardianship? Upon what principle of natural law did the Romans, in after times, fix the majority of females, as well as of males, at twentyfive years?¹ Who has a right to say that in England it shall, for some purposes, be at fourteen, for others, at seventeen, and for all, at twenty-one years; while, in
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1. 1 Black. Comm. 463, 464.  

France, a person arrives, for all purposes, at majority, only at thirty years, in Naples at eighteen, and in Holland at twenty-five?¹ Who shall say, that one man is not as well qualified, as a voter, at eighteen years of age, as another is at twenty-five, or third at forty; and far better, than most men are at eighty? And if any society is invested with authority to settle the matter of the age and sex of voters, according to its own view of its policy, or convenience, or justice, who shall say, that it has not equal authority, for like reasons, to settle any other matter regarding the rights, qualifications, and duties of voters?²

§ 579. The truth seems to be, that the right of voting, like many other rights, is one which, whether it has a fixed foundation in natural law or not, has always been treated in the practice of nations, as a strictly civil right, derived from, and regulated by each society, according to its own circumstances and interests.³ It is difficult, even in the abstract, to conceive how it could have otherwise been treated. The terms and conditions, upon which any society is formed and organized, must essentially depend upon the will of those, who are associated; or at least of those, who constitute a majority, actually controlling the rest. Originally, no man could have any right but to act for himself; and the power to choose a chief magistrate or other officer to exercise dominion or authority over others, as well as himself, could arise only upon a joint consent of the others to such appointment; and their consent might be qualified exactly according, to their
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1. 1 Black. Comm. 463, 464;
2. Id. 171.
3. 1 Black. Comm. 171; 2 Wilson's Law Lect. 130; Montesquieu's Spirit of Laws, B. 11. ch. 6; 1 Tucker's Black. Comm. App. 52, 53.  

own interests, or power, or policy. The choice of representatives to act in a legislative capacity is not only a refinement of much later stages of actual association and civilization, but could scarcely occur, until the society had assumed to itself the right to introduce such institutions, and to confer such privileges, as it deemed conducive to the public good, and to prohibit the existence of any other. In point of fact, it is well known, that representative legislative bodies, at least in the form now used, are the peculiar invention of modern times, and were unknown to antiquity. If, then, every well organized society has the right to consult for the common good of the whole, and if, upon the principles of natural law, this right is conceded by the very union of society, it seems difficult to assign any limit to this right, which is compatible with the due attainment of the end proposed. If, therefore, any society shall deem the common good and interests of the whole society best promoted under the particular circumstances, in which it is placed, by a restriction of the right of suffrage, it is not easy to state any solid ground of objection to its exercise of such an authority. At least, if any society has a clear right to deprive females, constituting one half of the whole population, from the right of suffrage, (which, with scarcely an exception, has been uniformly maintained,) it will require some astuteness to find upon what ground this exclusion can bevindicated, which does justify, or at least excuse, many other exclusions.¹ Government (to use the pithy language of Mr. Burke) has been deemed a practical thing, made for the, happiness of mankind,
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1. See Paley's Moral Philosophy, B. 6, ch. 7, p. 392; 1 Black. Comm. 171; Montesquieu's Spirit of Laws, B. 11. ch. 6.  

and not to furnish out a spectacle of uniformity to gratify the schemes of visionary politicians.¹

§ 580. Without laying any stress upon this theoretical reasoning, which is brought before the reader, not so much because it solves all doubts and objections, as because it presents a view of the serious difficulties attendant upon the assumption of an original and unalienable right of suffrage, as originating in natural law, and independent of civil law, it may be proper to state, that every civilized society has uniformly fixed, modified, and regulated the right of suffrage for itself, according to its own free will and pleasure. Every constitution of government in these United States has assumed, as a fundamental principle, the right of the people of the state to alter, abolish, and modify the form of its own government, according, to the sovereign pleasure of the people.² In fact, the people of each state have gone much farther, and settled a far more critical question, by deciding, who shall be the voters, entitled to approve and reject the constitution framed by a delegated body under their direction. In the adoption of no state constitution has the assent been asked of any but the qualified voters; and women, and minors, and other persons, not recognized as voters by existing laws, have been studiously excluded. And yet the constitution has been deemed entirely obligatory upon them, as well as upon the minority, who voted against it. From this it will be seen, how little, even in the most free of republican governments, any abstract right of suffrage, or any original and indefeasible privilege, has been recognized in practice. If this consideration
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1. Burke's Letter to the Sheriffs of Bristol in 1777.
2. See Locke on Government, p. 2, § 149, 227.  

does not satisfy our minds, it at least will prepare us to presume, that there may be an almost infinite diversity in the established right of voting, without any state being able to assert, that its own mode is exclusively founded in natural justice, or is most conformable to sound policy, or is best adapted to the public security. It will teach us, that the question is necessarily complex and intricate in its own nature, and is scarcely susceptible of any simple solution, which shall rigidly apply to the circumstances and conditions, the interests and the feelings, the institutions and the manners of all nations.¹ What may best promote the public weal, and secure the public liberty, and advance the public prosperity in one age or nation, may totally fail of similar results under local, physical, or moral predicaments essentially different.

§ 581. It would carry us too far from the immediate object of these Commentaries to take a general survey Or the various modifications, under which the right of suffrage, either in relation to laws, or magistracy, or even judicial controversies, has appeared in different nations in ancient and modern times. The examples of Greece and Rome, in ancient times, and of England in modern times, will be found most instructive.² In England, the qualifications of voters, as also the modes of representation, are various, and framed upon no common principle. The counties are represented by knights, elected by the proprietors of lands, who are freeholders;³ the boroughs and cities are represented
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1. Dr. Lieber's Encyclopedia Americana, art. Constitution.
2. See 3 Adams's Amer. Constitut. Letter 6, p. 263, &c;. p. 440, &c;. 1 Black. Comm. 171, 172, 173; Montesquieu's Spirit of Laws, Book 11, ch. 13; Id. B. 2, ch. 2.
3. 1 Black. Comm. 172, 173; Paley's Moral Philosophy, B. 6, ch. 7; The Federalist, No. 57.  

by citizens and burgesses, or others chosen by the citizens or burgesses, according to the qualifications prescribed by custom, or by the respective charters and by-laws of each borough, or city.¹ In these, the right of voting is almost infinitely varied and modified.² In the American colonies, under their charters and laws, no uniform rules in regard to the right of suffrage existed. In some of the colonies the course of the parent country was closely followed, so that freeholders alone were voters;³ in others a very near approach was made to universal suffrage among the males of competent age; and in others, again, a middle principle was adopted, which made taxation and voting dependent upon each other, or annexed to it the qualification of holding some personal estate, or the privilege of being a freeman, or the eldest son of a freeholder of the town or corporation.⁴ When the revolution brought about the separation of the colonies, and they formed themselves into independent states, a very striking diversity was observable in the original constitutions adopted by them;⁵ and a like diversity has pervaded all the constitutions of the new states, which have since grown up, and all the revised constitutions of the old states, which have received the final ratification of the people. In some of the states the right of suffrage
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1. 1 Black. Comm. 172 to 175; 1 Tuck. Black. Comm. App. 209 to 212. See also Burke's Reflections on the French Revolution.
2. See Dr. Lieber's Encyclopedia Americana, art. Election; Great Britain, Constitution of.
3. See Jefferson's Notes on Virginia, 191; 1 Tucker's Black. Comm. App. 96 to 100.
4. See Charter of Rhode-Island, 1663; and Rhode-Island Laws, (edit 1789,) p. 114. See also Connecticut Charter, 1662, and Massachusetts Charters. 1628 and 1692.
5. 2 Wilson's Law Lect. 132 to 138; 2 Pitkin's Hist. ch. 19, p. 294 to 316.  

depends upon a certain length of residence, and payment of taxes; in others, upon mere citizenship and residence; in others, upon the possession of a freehold, or some estate of a particular value, or upon the payment of taxes, or performance of some public duty, such as service in the militia, or on the highways.¹ In no two of these state constitutions will it be found, that the qualifications of the voters are settled upon the same uniform basis.² So that we have the most abundant proofs, that among a free and enlightened people, convened for the purpose of establishing their own forms of government, and the rights of their own voters, the question, as to the due regulation of the qualifications, has been deemed a matter of mere state policy, and varied to meet the wants, to suit the prejudices, and to roster the interests of the majority. An absolute, indefeasible right to elect or be elected, seems never to have been asserted on one side, or denied on the other; but the subject has been freely canvassed, as one of mere civil polity, to be arranged upon such a basis, as the majority may deem expedient with reference to the moral, physical, and intellectual condition of the particular state.³

§ 582. It was under this known diversity of constitutional provisions in regard to state elections, that the convention, which framed the constitution of the Union,
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1. 2 Wilson's Law Lect. 132 to 138. -- Mr. Hume, in his Idea of a Perfect Commonwealth, proposes, that the representatives should be freeholders of 20L a year, and householders worth 500L. 1 Hume's Essays, Essay 16, p. 526.
2. See The Federalist, No. 54; 2 Wilson's Law Lectures, 132 to 138; 2 Pitkin's Hist. 294 to 316.
3. Dr. Lieber's Encyclopedia Americana, art. Constitution of the United States. The Federalist, No. 52 to 54.  

was assembled. The definition of the right of suffrage is very justly regarded, as a fundamental article of a republican government. It was incumbent on the convention, therefore, to define and establish this right in the constitution. To have left it open for the occasional regulation of congress would have been improper, for the reason just mentioned. To have submitted it to the legislative discretion of the states, would have been improper, for the same reason; and for the additional reason, that it would have rendered too dependent on the state governments, that branch of the federal government, which ought to be dependent on the people alone.¹ Two modes of providing for the right of suffrage in the choice of representatives were presented to the consideration of that body. One was to devise some plan, which should operate uniformly in all the states, on a common principle; the other was to conform to the existing diversities in the states, thus creating a mixed mode of representation. In favour of the former course, it might be urged, that all the states ought, upon the floor of the house of representatives, to be represented equally; that this could be accomplished only by the adoption of a uniform qualification of the voters, who would thus express the same public opinion of the same body of citizens throughout the Union; that if freeholders alone in one state chose the representatives; and in another all male citizens of competent age; and in another all freemen of particular towns or corporations; and in another all taxed inhabitants; it would be obvious, that different interests and classes would obtain exclusive representations in different states; and thus the great objects of the
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1. The Federalist, No. 52.  

constitution, the promotion of the general welfare and common defence, might be unduly checked and obstructed; that a uniform principle would at least have this recommendation, that it could create no wellfounded jealousies among the different states, and would be most likely to satisfy the body of the people by its perfect fairness, its permanent equality of operation, and its entire independence of all local legislation, whether in the shape of state laws; or of amendments to state constitutions.

§ 583. On the other hand, it might be urged in favour of the latter course, that the reducing of the different qualifications, already existing in the different states, to one uniform rule, would have been a very difficult task, even to the convention itself, and would be dissatisfactory to the people of different states.¹ It would not be very easy for the convention to frame any rule, which would satisfy the scruples, the prejudices, or the judgments of a majority of its own members. It would not be easy to induce Virginia to give up the exclusive right of freeholders to vote; or Rhode-Island, or Connecticut, the exclusive right of freemen to vote; or Massachusetts, the right of persons possessing a given value of personal property to vote; or other states, the right of persons paying taxes, or having a fixed residence, to vote. The subject itself was not susceptible of any very exact limitations upon any general reasoning. The circumstances of different states might create great diversities in the practical operation of any uniform system. And the natural attachments, which long habit and usage had sanctioned, in regard to the exercise of the
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1. The Federalist, No. 52.

right, would enlist all the feelings, and interests, and opinions of every state against any substantial change in its own institutions. A great embarrassment would be thus thrown in the way of the adoption of the constitution itself, which perhaps would be thus put at hazard, upon the mere ground of theoretical propriety.¹

§584. Besides; it might be urged, that it is far from being clear, upon reasoning or experience, that uniformity in the composition of a representative body is either more promotive of the general good, than a mixed system, embracing, and representing, and combining distinct interests, classes, and opinions.² In England the house of commons, as a representative body, is founded upon no uniform principle, either of numbers, or classes, or
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1. Rawle on the constitution, ch. 4, p. 40.
2. Mr. Burke manifestly thought, that no system of representative government could be safe without a large admixture of different persons and interests. "Nothing," say he, "is a due and adequate representation of a state, that does not represent its ability, as well as is property. But as ability is a vigorous and active principle, and as property is sluggish, inert, and timid, it can never be safe from the invasion of ability, unless it be, out of all proportion, predominant in the representation."^* In a subsequent page of his Reflections on the French Revolution, be discussed the then favorite theory of representation proposed for the constitution of France, upon the triple basis of territory, population, and taxation, and demonstrates, with great clearness, its inconvenience, inequality, and inconsistency. The representatives, too, were to be chosen indirectly, by electors appointed by electors, who were again chosen by other electors. " The member," says Mr. Burke, "who goes to the National Assembly, is not chosen by the people, nor accountable to them. There are three elections before he is chosen; two sets of magistrates intervene between him and the primary assembly, so as to render him, as I have said, an ambassador of a state, and not the representative of the people within a state." So much for mere theory in the hands of visionary end speculative statesmen.

* Burke's Reelections on the French Revolution. See also Paley's Philosophy, B. 6, ch. 7.

places.¹ The representation is made up of persons chosen by electors having, very different, and sometimes very discordant qualifications; in some cases, property is exclusively represented; in others, particular trades and pursuits; in others, inhabitancy and corporate privileges; in others, the reverse. In some cases, the representatives are chosen by very numerous voters; in others, by very few; in some cases, a single patron possesses the exclusive power of choosing representatives, as in nomination boroughs; in others, very populous cities have no right to choose any representatives at all; in some cases, a select body, forming a very small part of the inhabitants, has the exclusive right of choice; in others, non-residents can control the whole election; in some places a half million of inhabitants possess the right to choose no more representatives, than are assigned to the most insignificant borough, with scarcely an inhabitant to point out its local limits.² Yet this inequality has never, of itself, been deemed an exclusive evil in Great Britain.³ And in every system of reform, which has found public favour in that country, many of these diversities have been embodied from choice, as important checks upon undue legislation, as facilitating the representation of different interests, and
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1. Paley's Moral Philosophy, B. 6, ch. 7, p. 380, 381 to 394; DeLolme, Const. of England, B. 1, ch. 4, p. 61, 62; 1 Kent's Comm. 219; 1 Tuck. Black. App. 209, 210, 211; 1 Wilson's Law Lect. 431.
2. Mr. Jefferson, in his Notes on Virginia, insists with great earnestness upon the impropriety of allowing to different counties in that state, the same number of representatives, without any regard to their relative population.* And yet in the new constitution adopted in 1830-1831, Virginia has adhered to the save system in principle, and her present representation is apportioned upon an arbitrary and unequal basis.
3. Burke's Reflections on the French Revolution.
 

* Jefferson's Notes, 192.

different opinions; and as thus securing, by a well-balanced and intelligent representation of all the various classes of society, a permanent protection of the public liberties of the people, and a firm security of the private rights of persons and property.¹ Without, therefore, asserting, that such a mixed representation is absolutely, and under all circumstances, the best, it might be safely affirmed, that the existence of various elements in the composition of the representative body is not necessarily inexpedient, unjust, or insecure; and, in many cases, may promote a wholesome restraint upon partial plans of legislation, and ensure a vigorous growth to the general interests of the Union. The planter, the farmer, the mechanic, the merchant, and the manufacturer might thus be brought to act together, in a body representing each; and thus superior intelligence, as well as mutual good-will and respect, be diffused through the whole of the collective body.²

§ 585. In the judgment of the convention, this latter reasoning seems to have obtained a decisive influence,
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1. Mr. Wilson in his Lectures, considers the inequality of representation in the house of commons, as a prominent defect in the British government. But his objections are mainly urged against the mode of apportioning the representation, and not against the qualifications of the voters.^* In the reform now under the consideration of parliament, there is a very great diversity of electoral qualifications allowed, and apparently supported by all parties. Mr. Burke in his Reflections on the French Revolution, holds doctrine essentially different in many points from Mr. Wilson. See also in Winne's Eunomus, Dialogue 3, § 18, 19, 20, an ingenious defence of the existing system in Great-Britain.
2. See Paley's Moral Philosophy, B. 6, ch. 7, p. 380; Id. 394. See also Franklin's Remarks; 2 Pitk. Hist. 242.--Dr. Paley has placed the inequalities of representation in the house of commons in a strong light; and he has attempted a vindication of it, which, whether satisfactory or not, is at least urged with great skill and ingenuity of reasoning. Paley's Moral Philosophy, B. 6, ch, 7, p. 391 to 400. See also 2 Pitk. Hist. 242.

* 1 Wilson's Lect. 430 to 433.

and to have established the final result; and it was accordingly declared, in the clause under consideration, that " the electors in each state shall have the qualifications requisite for electors of the most numerous branch of the state legislature."¹ Upon this clause (which was finally adopted by a unanimous vote) the Federalist has remarked, "the provision made by the convention appears to be the best, that lay within their option. It must be satisfactory to every state, because it is conformable to the standard already established by the state itself. It will be safe to the United States, because, being fixed by the state constitutions, it is not alterable by the state governments; and it cannot be feared, that the people of the states will alter this part of their constitutions in such a manner, as to abridge the rights secured to them by the federal constitution."² The remark, in a general sense, is true; but the provision has not, in fact, and may not have, all the security against alteration by the state governments, which is so confidently affirmed. At the time, when it was made, Connecticut and Rhode-Island were acting under the royal charters of 1662 and 1663; and their legislatures possessed the power of modifying, from time to time, the right of suffrage. Rhode-Island yet continues without any written constitution, unless the charter of 1663 is to be deemed such. In Maryland successive legislatures may change the form of government; and in other states amendments may be, and indeed have been adopted,
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1. Journal of Convention, 216, 233. -- The clause, however, did not pass without opposition; a motion to strike out was made and negatived, seven states voting in the negative, one in the affirmative, and one being divided. Journ. of Convention, 7 Aug. p. 233.
2. The Federalist, No. 52. See also 2 Elliot's Debates, 38; 2 Wilson's Law Lect. 123, 130, 131.

materially varying the rights of suffrage.¹ So that absolute stability is not to be predicated of the existing modes of suffrage; though there is little practical danger of any changes, which would work unfavourably to popular rights.

§ 586. In the third place, the term of service of representatives. In order to ensure permanent safety to the liberties of the people, other guards are indispensable, besides those, which are derived from the exercise of the right of suffrage and representation. If, when the legislature is once chosen, it is perpetual, or may last during the life of the representatives; and in case of death, or resignation only, the vacancy is to be supplied by the election of new representatives; it is easy to perceive, that in such cases there will be but a very slight check upon their acts, on the part of the people. In such cases, if the legislative body should be once corrupted, the evil would be past all remedy, at least without some violent revolution, or extraordinary calamity.² But, when different legislative bodies are to succeed each other at short intervals, if the people disapprove of the present, they may rectify its faults, by the silent exercise of their power in the succeeding election. Besides, a legislative assembly, which is sure to be separated again, and its members soon return to private life, will feel its own interests, as well as duties, bound up with those of the community at large.³ It may, therefore, be safely laid down, as a fundamental axiom of republican governments, that there must be a dependence on, and responsibility to, the people, on the part of the representative, which shall constantly exert an influence upon
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1. See 2 Wilson's Law Lect. note (d,) 136, 137.
2. 1 Black. Comm. 189; Montesquieu's Spirit of Laws, B. 11, ch. 6.
3. 1 Black. Comm. 189.

his acts and opinions, and produce a sympathy between him and his constituents.¹ If, when he is once elected, he holds his place for life, or during good behaviour, or for a long period of years, it is obvious, that there will be little effective control exercised upon him; and he will soon learn to disregard the wishes, the interests, and even the rights of his constituents, whenever they interfere with his own selfish pursuits and objects. When appointed, he may not, indeed, consider himself, as exclusively their representative, bound by their opinions, and devoted to their peculiar local interests, although they may be wholly inconsistent with the good of the Union. He ought rather to deem himself a representative of the nation, and bound to provide for the general welfare, and to consult for the general safety.² But still; in a just sense, he ought to feel his responsibility to them, and to act for them in common wish the rest of the people; and to deem himself, in an emphatic manner, their defender, and their friend.³

§ 587. Frequent elections are unquestionably the soundest, if not the sole policy, by which this depend-
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1. The Federalist, No. 52, 57.
2. 1 Black. Comm. 159. See also Dr. Franklin's Remarks; 2 Pitk. Hist. 242; Rawle on Const. 38, 39. But see 1 Tucker's Black. Comm. App. 193; 4 Elliot's Debates, 209 -- Mr. Burke in his, Speech to the Electors of Bristol, in 1774, has treated this subject with great candour, and dignity, and ability. "Parliament," said he, "is not a congress of ambassadors from different and hostile interests, which interests each must maintain, as an agent and advocate, against other agents and advocates. But parliament is a deliberative assembly of one nation with one interest, that of the whole; where not local purposes, not local prejudices, ought to guide; but the general good, resulting from the general reason of the whole. You choose a member indeed; but then you have chosen him, he is not a member of Bristol, but he is a member of parliament." See, on this subject, 1 Tuck. Black. Comm. App. 193; 2 Lloyd's Deb. in 1789, p. 199 to 217.
3. See Burke's Speech to the Electors of Bristol in 1774.

ence and sympathy and responsibility can he effectually secured.¹ But the question, what degree of frequency is best calculated to accomplish that object is not susceptible of any precise and universal answer, and must essentially depend upon very different considerations in different nations, and vary with their size, their age, their conditions, their institutions, and their local peculiarities.²

§ 588. It has been a current observation, that " where annual elections end, tyranny begins."³ But this remark, like many others of a general nature, is open to much question. There is no pretence, that there is any natural connexion between the period of a year, or any other exact revolution of time, and the political changes fit for governments or magistrates. Why is the election of a magistrate or representative more safe for one year, than for two years? For one year, more than for six months? For six months, more than for three months? It is certainly competent for a state to elect its own rulers, daily, or weekly, or monthly, or annual-
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1. The Federalist, No. 52, 57.
2. Dr. Paley, with his usual practical sense, has remarked, in regard to the composition, and tenure of office, of the British house of commons, that, "the number, the fortune, and quality of the members; the variety of interests and characters among them; above all, the temporary duration of their power, and the change of men, which every new election produces, are so many securities to the public, as well against the subjection of their judgments to any external dictation, as against the formation of a junto in their won body, sufficiently powerful to govern their decisions. The representatives are so intermixed with the constituents, and the constituents with the rest of the people, that they cannot, without a partiality too flagrant to be endured, impose any burthen upon the subject, in which they do not share themselves. Nor scarcely can they adopt an advantageous regulation, in which their own interests will not participate of the advantage." Paley's Moral Philosophy, B. 6, ch. 7.
3. The Federalist, No. 53. See Montesquieu's Spirit of Laws, B. 2, ch. 3.

ly, or for a longer period, if it is deemed expedient. In this respect, it must be, or ought to be, governed by its own convenience, interests, and safety. It is, therefore, a question of sound policy, dependent upon circumstances, and not resolvable into any absolute elements dependent upon the revolution or return of natural seasons.¹ The aim of every political constitution is, or ought to be, first to obtain for rulers men, who possess most wisdom to discern, and most virtue to pursue the common good of the society; and, in the next place, to take the most effectual precautions for keeping them virtuous, whilst they continue their public trust.² Various means may be resorted to for this purpose; and doubtless one of the most efficient is the frequency of elections. But who is there, that will not perceive, upon the slightest examination of the subject, what a wide space there is for the exercise of discretion, and for diversity of judgment.

§ 589. Without pretending to go into a complete survey of the subject, in all its bearings, the frequency of elections may be materially affected, as matter of policy, by the extent of the population and territory of a country, the concentration or sparseness of the population, the nature of the pursuits, and employments, and engagements of the people; and by the local and political situation of the nation in regard to contiguous nations. If the government be of small extent, or be concentrated in a single city, it will be far more easy for the citizens to choose their rulers frequently, and to change them without mischief, than it would be, if the territory were large, the population sparse, and the means
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1. The Federalist, No. 52, 53; Montesquieu's Spirit of Laws, B. 2, ch. 3; 1 Elliot's Debates, 30, 31, 39.
2. The Federalist, No. 57; 2 Elliot's Debates, 42.

of intercourse few and liable to interruption. If all the inhabitants, who are to vote, reside in towns and villages there will be little inconvenience in assembling together at a short notice to make a choice. It will be far otherwise, if the inhabitants are scattered over a large territory, and are engaged in agricultural pursuits, like the planters and farmers of the southern and western states, who must meet at a distance from their respective homes, and at some common place of assembling. In cases of this sort, the sacrifice of time necessary to accomplish the object, the expenses of the journey, the imperfect means of communication, the slow progress of interchanges of opinion, would naturally diminish the exercise of the right of suffrage. There would be great danger, under such circumstances, that there would grow up a general indifference or inattention to elections, it they were frequent, since they would create little interest, and would involve heavy charges and burthens. The nature of the pursuits and employments of the people must also have great influence in settling the question. If the mass of the citizens are engaged in employments, which take them away for a long period from home, such as employments in the whale and cod fisheries, in the fur-trade, in foreign and distant commerce, in periodical caravans, or in other pursuits, which require constant attention, or long continued labours at particular seasons; it is obvious, that frequent elections, which should interfere with their primary interests and objects, would be at once inconvenient, oppressive, and unequal. They would enable the few to obtain a complete triumph and ascendency in the affairs of the state over the many. Besides, the frequency of elections must be subject to other considerations, affecting the general comfort and convenience, as well

of rulers, as of electors. In the bleak regions of Lapland, and the farther north, and in the sultry and protracted heats of the south, a due regard must be had to the health of the inhabitants, and to the ordinary means of travelling. If the territory be large, the representatives must come from great distances, and are liable to be retarded by all the varieties of climate, and geological features of the country; by drifts of impassable snows; by sudden inundations; by chains of mountains; by extensive prairies; by numerous streams; by sandy deserts.¹

§ 590. The task of legislation, too, is exceedingly different in a small state, from what it is in a large one; in a state engaged in a single pursuit, or living in pastoral simplicity, from what it is in a state engaged in the infinitely varied employments of agriculture, manufacture, and commerce, where enterprise and capital rapidly circulate; and new legislation is constantly required by the new fortunes of society. A single week might suffice for the ordinary legislation of a state of the territorial extent of Rhode-Island; while several months would scarcely suffice for that of New-York. In Great-Britain a half year is consumed in legislation for its diversified interests and occupations; while a week would accomplish all, that belongs to that of Lapland or Greenland, of the narrow republic of Geneva, or of the subordinate principalities of Germany. Athens might legislate, without obstructing the daily course of common business, for her own meagre territory; but when Rome had become the mistress of the world, the year seemed too short for all the exigencies of her sovereignty. When she deliberated for a world, she
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1. 1 Elliot's Debates, 33, Ames's Speech.

felt, that legislation, to be wise or safe, must be slow and cautious; that knowledge, as well as power, was indispensable for the true government of her provinces.

§ 591. Again; the local position of a nation in regard to other nations may require very different courses of legislation, and very different intervals of elections, from what would be dictated by a sense of its own interest and convenience under other circumstances. If it is surrounded by powerful and warlike neighbours, its own government must be invested with proportionately prompt means to act, and to legislate, in order to repel aggressions, and secure its own rights. Frequent changes in the public councils might not only leave it exposed to the hazard of having no efficient body in existence to act upon any sudden emergency, but also, by the fluctuations of opinion, necessarily growing out of these changes, introduce imbecility, irresolution, and the want of due information into those councils. Men, to act with vigour and effect, must have time to mature measures, and judgment and experience, as to the best method of applying them. They must not be hurried on to their conclusions by the passions, or the fears of the multitude. They must deliberate, as well as resolve. If the power drops from their hands before they have an opportunity to carry any system into full effect, or even to put it on its trial, it is impossible, that foreign nations should not be able, by intrigues, by false alarms, and by corrupt influences, to defeat the wisest measures of the best patriots.

§ 592. One other consideration of a general nature deserves attention. It is, that while, on the one hand, constantly recurring elections afford a great security to public liberty, they are not, on the other hand, without some dangers and inconveniences of a formidable

nature. The very frequency of elections has a tendency to create agitations and dissensions in the public mind; to nourish factions, and encourage restlessness, to favour rash innovations in domestic legislation and public policy; and to produce violent and sudden changes in the administration of public affairs, founded upon temporary excitements and prejudices.¹

§ 593. It is plain, that some of the considerations, which have been stated, must apply with very different force to the condition and interests of different states; and they demonstrate, if not the absurdity, at least the impolicy of laying down any general maxim, as to the frequency of elections to legislative, or other offices.² There is quite as much absurdity in laying down, as a general rule, that where annual elections end, tyranny begins, as there is in saying, that the people are free only while they are choosing their representatives, and slaves during the whole period of their service.

§ 594. If we examine this matter by the light of history, or at least of that portion of it, which is best entitled to instruct us on the point, it will be found, that there is no uniformity of practice, or principle, among free nations in regard to elections. In England it is not easy to trace out any very decided course. The history of parliament, after magna charta, proves, that that body had been accustomed usually to assemble once a year; but, as these sessions were dependent upon the good pleasure and discretion of the crown, very long and inconvenient intermissions occasionally
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1. See Mr. Ames's Speech, 1 Elliot's Debates, 31, 33; Ames's Works, 20, 24.
2. Montesquieu's Spirit of Laws, B. 2, ch. 3; l Elliot's Debates, 30 to 42.

occurred, from royal contrivance, ambition, or policy.¹ But, even when parliament was accustomed to sit every year, the members were not chosen every year. On the contrary, as the dissolution of parliament was solely dependent on the will of the crown, it might, and formerly it sometimes did happen, that a single parliament lasted through the whole life of the king, who convened it.² To remedy these grievances, it was provided by a statute, passed in the reign of Charles the Second, that the intermissions should not be protracted beyond the period of three years; and by a subsequent statute of William and Mary, that the same parliament should not sit longer than three years, but be, at the end of that period, dissolved, and a new one elected. This period was, by a statute of George the First, prolonged to seven years, after an animated debate; and thus septennial became a substitute for triennial parliaments.³ Notwithstanding the constantly increasing influence of the house of commons, and its popular cast of opinion and action, more than a century has elapsed without any successful effort, or even any general desire, to change the duration of parliament. So that, as the English constitution now stands, the parliament must expire, or die a natural death, at the end of the seventh year, and not sooner, unless dissolved by the royal prerogative.⁴ Yet no man, tolerably well acquainted with the history of Great Britain for the last century, would venture to affirm, that the people had not enjoyed a higher degree of liberty and
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1. The Federalist, No. 52.
2. 1 Black. Comm. 189, and note.
3. 1 Black. Comm. 189; The Federalist, No. 52, 53; 1 Elliot's Debates, 37, 39; 2 Elliot's Debates, 42.
4. 1 Black. Comm. 189; The Federalist, No. 52.

influence in all the proceedings of the government, than ever existed in any antecedent period.

§ 595. If we bring, our inquiries nearer home, it will be found, that the history of the American colonies before the revolution affords an equally striking proof of the diversity of opinion and usage. It is very well known, that the principle of representation in one branch of the legislature was (as has been already stated) established in all the colonies. But the periods of election of the representatives were very different. They varied from a half-year to seven years. In Virginia the elections were septennial; in North and SouthCarolina, biennial; in Massachusetts, annual; in Connecticut and Rhode-Island, semi-annual.¹ It has been very justly remarked by the Federalist, that there is not any reason to infer, from the spirit and conduct of the representatives of the people prior to the revolution, that biennial elections would have been dangerous to the public liberties. The spirit, which every where displayed itself at the commencement of the struggle, and which vanquished the obstacles to independence, is the best of proofs, that a sufficient portion of liberty had been every where enjoyed to inspire both a sense of its worth, and a zeal for its proper enlargement. This remark holds good, as well with regard to the then colonies, whose elections were least frequent, as to those, whose elections were most frequent. Virginia was the colony, which stood first in resisting the parliamentary encroachments of Great Britain; it was the first also in espousing, by a public act, the resolution of independence. Yet her house of representatives
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1. The Federalist, No. 52; 1 Elliot's Debates, 41, 42; 2 Elliot's Debates, 42; 3 Elliot's Debates, 40.

was septennial.¹ When, after the revolution, the states freely framed and adopted their own constitutions of government, a similar, though not so marked a diversity of opinion, was exhibited. In Connecticut, until her recent constitution, the representatives were chosen semi-annually; in Rhode-Island they are still chosen semi-annually; in South-Carolina, Tennessee, Missouri, Illinois, and Louisiana they are chosen biennially; and in the rest of the states annually.² And it has been justly observed in the Federalist,³ that it would not be easy to show, that Connecticut or Rhode-Island is better governed, or enjoys a greater share of rational liberty, than South-Carolina, (or any of the other states having biennial elections;) or, that either the one or the other of these states is distinguished, in these respects, and by those causes, from the states, whose elections are different from both.

§ 596. These remarks are sufficient to establish the futility of the maxim alluded to, respecting the value of annual elections. The question, how frequent elections should be, and what should be the term of service of representatives, cannot be answered in any universal form, applicable to all times, and all nations.⁴ It is very complex in its nature, and must ultimately resolve itself into a question of policy and sound, discretion, with reference to the particular condition and circumstances of each nation, to which it is sought to be applied. The same fundamental principles of government may require very different, if not entirely opposite practices in different states. There is great wis-
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1. The Federalist, No. 52.
2. Dr. Lieber's Encycl. Americana, art. Constitutions of the United States; 3 Elliot's Debates, 260; l Kent. Comm. 215.
3. The Federalist, No. 53; 3 Elliot's Debates, 260.
4. 1 Elliot's Debates, 40, 41, 42.

dom in the observations of one of our eminent statesmen on this subject. "It is apparent," said he, "that a delegation for a very short period, as for a single day, would defeat the design of representation. The election in that case would not seem to the people to be of any importance, and the person elected would think as lightly of his appointment. The other extreme is equally to be avoided. An election for a long term of years, or for life, would remove the member too far from the control of the people, would be dangerous to liberty, and in fact repugnant to the purposes of the delegation. The truth, as usual, is placed somewhere between the extremes, and, I believe, is included in this proposition; the term of election must be so long, that the representative may understand the interests of the people; and yet so limited, that his fidelity may be secured by a dependence upon their approbation."¹

§ 597. The question, then, which was presented to the consideration of the convention, was, what duration of office, on the part of the members of the house of representative, was, with reference to the structure of the other branches of the legislative department of the general government, best adapted to preserve the public liberty and to promote the general welfare. I say, with reference to the structure of the other branches of the legislative department of the general government, because it is obvious, that the duration of office of the president and senate, and the nature and extent of the powers to be confided to congress, must most materially affect the decision upon this point. Absolute unanimity upon such a subject could hardly be expected; and accordingly it will be found, that no
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1. Mr. Ames's Speech, 1 Elliot's Debates, 30, 31; Ames's Works, 21; 2 Elliot's Debates, 44, 46

inconsiderable diversity of opinion was exhibited in the discussions in the convention. It was, in the first instance, decided in a committee of the whole, that the period should be three years, seven states voting in the affirmative, and four in the negative.¹ That period was afterwards struck out by a vote of the convention, seven states voting in the affirmative, three in the negative, and one being divided, and the word " two" was unanimously inserted in its stead.² In the subsequent revision the clause took the shape, in which it now stands in the constitution.

§ 598. The reasons, which finally prevailed in the convention and elsewhere in favour of biennial elections in preference to any other period, may be arranged under the following heads:

§ 599. In the first place, an argument might properly be drawn from the extent of the country to be governed. The territorial extent of the United States would require the representatives to travel from great distances, and the arrangements, rendered necessary by that circumstance, would furnish much more serious objections with men fit for this service, if limited to a single year, than if extended to two years.³ Annual elections might be very well adapted to the state legislatures from the facility of convening the members, and from the familiarity of the people with all the general objects of local legislation, when they would be highly inconvenient for the legislature of the Union. If, when convened, the term of congress was of short duration, there would scarcely be time properly to examine and mature
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1. Journal of the Convention, p. 67, 115, 116, 135; 4 Elliot's Debates, (Yate's Minutes,) 70, 71.
2. Journal of the Convention, p. 141, 207, 216; 1 Elliot's Debates, 30; 4 Elliot's Debates, (Yate's Minutes,) 91, 92.
3. The Federalist, No. 53; 1 Elliot's Debates, 30, 40, 41, 42.

measures. A new election might intervene before there had been an opportunity to interchange opinions and acquire the information indispensable for wise and salutary action.¹ Much of the business of the national legislature must necessarily be postponed beyond a single session; and if new men are to come every year, a great part of the information already accumulated will be lost, or be unavoidably open for re-examination before any vote can be properly had.

§ 600. In the next place, however well founded the maxim might be, that where no other circumstances affect the case, the greater the power is, the shorter ought to be its duration; and conversely, the smaller the power, the more safely its duration may be protracted;² that maxim, if it applied at all to the government of the Union, was favourable to the extension of the period of service beyond that of the state legislatures. The powers of congress are few and limited, and of a national character; those of the state legislatures are general, and have few positive limitations. If annual elections are safe for a state; biennial elections would not be less safe for the United States. No just objection, then, could arise from this source, upon any notion, that there would be a more perfect security for public liberty in annual than in biennial elections.

§ 601. But a far more important consideration grows out of the nature and objects of the powers of congress. The aim of every political constitution is, or ought to be, first, to obtain for rulers men, who possess most wisdom to discern, and most virtue to pursue, the common good of society; and, in the next place, to take the most effectual precautions for keeping, them virtu-
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1. The Federalist, No. 53; 1 Elliot's Debates, 40, 41, 42.
2. The Federalist, No. 52; Montesquieu's Spirit of Laws, B. 2, ch. 3.

ous, whilst they continue to hold their public trust. Frequent elections have, without question, a tendency to accomplish the latter object. But too great a frequency will, almost invariably, defeat the former object, and, in most cases, put at hazard the latter. As has been already intimated, it has a tendency to introduce faction, and rash counsels, and passionate appeals to the prejudices, rather than to the sober judgment of the people. And we need not to be reminded, that faction and enthusiasm are the instruments, by which popular governments are destroyed.² It operates also, as a great discouragement upon suitable candidates offering themselves for the public service. They can have little opportunity to establish a solid reputation, as statesmen or patriot, when their schemes are liable to be suddenly broken in upon by demagogues, who may create injurious suspicions, and even displace them from office, before their measures are fairly tried.³ And they are apt to grow weary of continued appeals to vindicate their character and conduct at the polls, since success, however triumphant, is of such short duration, and confidence is so easily loosened. These considerations, which are always of some weight, are especially applicable to services in a national legislature, at a distance from the constituents, and in cases, where a great variety of information, not easily accessible, is indispensable to a right understanding of the conduct and votes of representatives.

§ 602. But the very nature and objects of the national government require far more experience and knowledge, than what may be thought requisite in the
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1. The Federalist, No. 57; 1 Kent's Comm. 215.
2. Ames's Speech; 1 Elliot's Debates, 33.
3. 1 Kent's Comm. 215.

members of a state legislature. For the latter a knowledge of local interests and opinions may ordinarily suffice. But it is far different with a member of congress. He is to legislate for the interest and welfare, not of one state only, but of all the states. It is not enough, that he comes to the task with an upright intention and sound judgment, but he must have a competent degree of knowledge of all the subjects, on which he is called to legislate; and he must have skill, as to the best mode of applying it. The latter can scarcely be acquired, but by long experience and training in the national councils. The period of service ought, therefore, to bear some proportion to the variety of knowledge and practical skill, which the duties of the station demand.¹

§ 603. The most superficial glance at the relative duties of a member of a state legislature and of those of a member of congress, will put this matter in a striking light. In a single state, the habits, manners, institutions, and laws, are uniform, and all the citizens are more or less conversant with them. The relative bearings of the various pursuits and occupations of the people are well understood, or easily ascertained. The general affairs of the state lie in a comparatively narrow compass, and are daily discussed and examined by those, who have an immediate interest in them, and by frequent communication with each other can interchange opinions.² It is very different with the general government. There, every measure is to be discussed with reference to the rights, interests, and pursuits of all the states. When the constitution was adopted, there were thirteen, and there are now twenty-four
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1. The Federalist, No. 53; 1 Elliot's Debates, 30, 37, 39, 40, 41; Id. 220; 2 Elliot's Debates, 42; I Kent's Comm. 215.
2. The Federalist, No. 53, 56.

states, having different laws, institutions, employments, products, and climates, and many artificial, as well as natural differences in the structure of society, growing out of these circumstances. Some of them are almost wholly agricultural; some commercial; some manufacturing; some have a mixture of all; and in no two of them are there precisely the same relative adjustments of all these interests. No legislation for the Union can be safe or wise, which is not founded upon an accurate knowledge of these diversities, and their practical influence upon public measures. What may be beneficial and politic, with reference to the interests of a single state, may be subversive of those of other states. A regulation of commerce, wise and just for the commercial states, may strike at the foundation of the prosperity of the agricultural or manufacturing states. And, on the other hand, a measure beneficial to agriculture or manufactures, may disturb, and even overwhelm the shipping interest. Large and enlightened views, comprehensive information, and a just attention to the local peculiarities, and products, and employments of different states, are absolutely indispensable qualifications for a member of congress. Yet it is obvious, that if very short periods of service are to be allowed to members of congress, the continual fluctuations in the public councils, and the perpetual changes of members will be very unfavourable to the acquirement of the proper knowledge, and the due application of it for the public welfare. One set of men will just have mastered the necessary information, when they will be succeeded by a second set, who are to go over the same grounds, and then are to be succeeded by a third. So, that inexperience, instead of practical wisdom, hasty legislation, instead of sober deliberation, and imperfect projects,

instead of well constructed systems, would characterize the national government.¹

§ 604. Congress has power to regulate commerce with foreign nations and among, the several states. How can foreign trade be properly regulated by uniform laws without (I do not say some acquaintance, but) a large acquaintance with the commerce, ports, usages, and regulations of foreign states, and with the pursuits and products of the United States? How can trade between the different states be duly regulated, without an accurate knowledge of their relative situation, and climate, and productions, and facilities of intercourse.² Congress has power to lay taxes and imposts; but how can taxes be judiciously imposed, and effectively collected, unless they are accommodated to the local circumstances of the several states? The power of taxation, even with the purest and best intentions, might, without a thorough knowledge of the diversified interests of the states, become a most oppressive and ruinous engine of power.³ It is true, that difficulties of this sort, will occur more frequently in the first operations of the government, than afterwards.⁴ But in a growing community, like that of the United States, whose population has already increased from three to thirteen millions within forty years, there must be a perpetual change of measures to suit the new exigencies of agriculture, commerce, and manufactures, and to ensure the vital objects of the constitution. And, so far is it from being true, that the national government has by its familiarity become more simple and facile in its machinery and operations, that it may be affirmed, that a
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1. The Federalist, No. 53, 56.
2. Id.
3. Id.
4. Id.

far more exact and comprehensive knowledge is now necessary to preserve its adjustments, and to carry on its daily operations, than was required, or even dreamed of, at its first institution. Its very success, as a plan of government, has contributed, in no small degree, to give complexity to its legislation. And the important changes in the world during its existence has required very many developments of its powers and duties, which could hardly have occurred, as practical truths to its enlightened founders.

§ 605. There are other powers belonging to the national government, which require qualifications of a high character. They regard our foreign intercourse and diplomatic policy. Although the house of representatives does not directly participate in foreign negotiations and arrangements; yet, from the necessary connexion between the several branches of public affairs, its cooperation with the other departments of the government will be often indispensable to carry them into full effect. Treaties with foreign nations will often require the sanction of laws, not merely by way of appropriations of money to comply with their stipulations; but also to provide suitable regulations to give them a practical operation. Thus, a purchase of territory, like that of Louisiana, would not only require the house of representatives to vote an appropriation of money; and a treaty, containing clauses of indemnity, like the British treaty of 1794, in like manner require an appropriation to give it effect; but commercial treaties, in an especial manner would require many variations and additions to the existing laws in order to adjust them to the general system, and produce, where it is intended, a just reciprocity.¹ It is hardly necessary to say, that a com-
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1. The Federalist, No. 53.

petent knowledge of the law of nations is indispensable to every statesman; and, that ignorance may not only involve the nation in embarrassing controversies with other nations; but may also involve it in humiliating sacrifices. Congress alone is entrusted with the power to declare war. What would be said of representatives called upon to exercise this ultimate appeal of sovereignty, who were ignorant of the just rights and duties of belligerent and neutral nations?¹

§ 606. Besides; the whole diplomacy of the executive department, and all those relations with independent powers, which connect themselves with foreign intercourse, are so intimately blended with the proper discharge of legislative duties, that it is impossible, that they should not be constantly brought under review in the public debates. They must frequently furnish matter for censure or praise; for accusation or vindication; for legislative checks, or legislative aids; for powerful appeals to popular favour, or popular resentment; for the ardent contests of party; and even for the graver exercise of the power of impeachment.

§ 607. And this leads us naturally to another remark; and that is, that a due exercise of some of the powers confided to the house of representatives, even in its most narrow functions, require, that the members should at least be elected for a period of two years. The power of impeachment could scarcely be exerted with effect by any body, which had not a legislative life of such a period. It would scarcely be possible, in ordinary cases, to begin and end an impeachment at a single annual session. And the effect of change of members during its prosecution would be attended with no inconsiderable embarrassment and inconvenience. If the power
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1. The Federalist, No. 53.

is ever to be exerted, so as to bring great offenders to justice, there must be a prolonged legislative term of office, so as to meet the exigency. One year will not suffice to detect guilt, and to pursue it to conviction.¹

§ 608. Again; the house of representatives is to be the sole judge of the elections of its own members. Now, if but one legislative session is to be held in a year, and more than one cannot ordinarily be presumed convenient or proper, spurious elections cannot be investigated and annulled in time to have a due effect The sitting member must either hold his seat during the whole period of the investigation, or he must be suspended during the same period. In either case the public mischief will be very great. The uniform practice has been to allow the member, who is returned, to hold his seat and vote, until he is displaced by the order of the house, after full investigation. If, then, a return can be obtained, no matter by what means, the irregular member is sure of holding his seat, until a long period has elapsed, (for that is indispensable to any thorough investigation of facts arising at great distances;) and thus a very pernicious encouragement is given to the use of unlawful means for obtaining irregular returns, and fraudulent elections.²

§ 609. There is one other consideration, not without its weight in all questions of this nature. Where elections are very frequent, a few of the members, as happens in all such assembles, will possess superior talents; will, by frequent re-elections, become members of long standing; will become thoroughly masters of the public business; and thus will acquire a preponderating and undue influence, of which they will naturally be dis-
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1. 1 Elliot's Debates, 34; Mr. Ames's Speech.
2. The Federalist, No. 53.

posed to avail themselves. The great bulk of the house will be composed of new members, who will necessarily be inexperienced, diffident, and undisciplined, and thus be subjected to the superior ability and information of the veteran legislators. If biennial elections would have no more cogent effect, than to diminish the amount of this inequality; to guard unsuspecting confidence against the snares, which may be set for it; and to stimulate a watchful and ambitious responsibility, it would have a decisive advantage over mere annual elections.¹

§ 610. Such were some of the reasons, which produced, on the part of the framers of the constitution, and ultimately of the people themselves, an approbation of biennial elections. Experiencehas demonstrated the sound policy and wisdom of the provision. But looking back to the period, when the constitution was upon its passage, one cannot but be struck with the alarms, with which the public mind was on this subject attempted to be disturbed. It was repeatedly urged in and out of the state conventions, that biennial elections were dangerous to the public liberty; and that congress might perpetuate itself, and reign with absolute power over the nation.²

§ 611. In the next place, as to the qualifications of the elected. The constitution on this subject is as follows:³ "No person shall be a representative, who "shall not have attained to the age of twenty-five years, and been seven years a citizen of the United States;
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1. The Federalist, No. 53. See also 1 Tucker's Black. Comm. App. 229; 2 Wilson's Law Lectures, 151.
2. 1 Elliot's Debates, 28, 37, 38, 43; Id. 217.
3. Art. J, §2, paragraph 3.

"and who shall not, when elected, be an inhabitant of that state, in which he shall be chosen."

§ 612. It is obvious, that the inquiry, as to the due qualifications of representatives, like that, as to the due qualifications of electors in a government, is susceptible, in its own nature, of very different answers, according to the habits, institutions, interests, and local peculiarities of different nations. It is a point, upon which we can arrive at no universal rule, which will accommodate itself to the welfare and wants of every people, with the same proportionate advantages. The great objects are, or ought to be, to secure, on the part of the representatives, fidelity, sound judgment, competent information, and incorruptible independence. The best modes, by which these objects can be attained, are matters of discussion and reasoning, and essentially dependent upon a large and enlightened survey of the human character and passions, as developed in the different stages of civilized society. There is great room, therefore, for diversities of judgment and opinion upon a subject so comprehensive and variable in its elements. It would be matter of surprise, if doctrines essentially different, nay, even opposite to each other, should not, under such circumstances, be maintained by political writers, equally eminent and able. Upon questions of civil policy, and the fundamental structure of governments, there has hitherto been too little harmony of opinion among the greatest men to encourage any hope, that the future will be less fruitful in dissonances, than the past. In the practice of governments, a very great diversity of qualifications has been insisted on, as prerequisites of office; and this alone would demonstrate, that there was not admitted to exist any common stan-

dard of superior excellence, adapted to all ages, and all nations.

§ 613. In Great-Britain, besides those negative qualifications, which are founded in usage, or positive law, such as the exclusion of persons holding certain offices and pensions, it is required, that every member for a county, or knight of a shire, (as he is technically called,) shall have a clear estate of freehold, or copyhold, to the value of 600 sterling per annum; and every member for a city or borough, to the value of 300, except the eldest sons of peers, and of persons qualified to be knights of shires, and except the members of the two universities.¹

§ 614. Among the American colonies antecedent to the revolution, a great diversity of qualifications existed; and the state constitutions, subsequently formed, by no means lessen that diversity. Some insist upon a freehold, or other property, of a certain value; others require a certain period of residence, and citizenship only; others require a freehold only; others a payment of taxes, or an equivalent; others, again, mix up all the various qualifications of property, residence, citizenship, and taxation, or substitute some of these, as equivalents for others.²

§ 615. The existing qualifications in the states being then so various, it may be thought, that the best course would have been, to adopt the rules of the states respectively, in regard to the most numerous branch of their own legislatures. And this course might not have been open to serious objections. But, as the qualifications of members were thought to be less carefully defined in the state constitutions, and more susceptible of
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1. 1 Black. Comm. 176. See 4 Instit. 46 to 48.
2. Dr. Lieber's Encycl. Americana, art. Constitutions of the United States.

uniformity, than those of the electors, the subject was thought proper for regulation by the convention.¹ And it is observable, that the positive qualifications are few and simple. They respect only age, citizenship, and inhabitancy.²

§ 616. First, in regard to age. The representative must have attained twenty-five years. And certainly to this no reasonable objection can be made.³ If experience, or wisdom, or knowledge be of value in the national councils, it can scarcely be pretended, that an earlier age could afford a certain guaranty for either. That some qualification of age is proper, no one will dispute. No one will contend, that persons, who are minors, ought to be eligible; or, that those, who have not attained manhood, so as to be entitled by the common law to dispose of their persons, or estates, at their own will, would be fit depositaries of the authority to dispose of the rights, persons, and property of others. Would the mere attainment of twenty-one years of age be a more proper qualification? All just reasoning would be against it. The characters and passions of young men can scarcely be understood at the moment of their majority. They are then new to the rights of self-government; warm in their passions; ardent in their expectations; and, just escaping from pupilage, are strongly tempted to discard the lessons of caution, which riper years inculcate. What they will become, remains to be seen; and four years beyond that period is but a very short space, in which to try their virtues, develope their talents, enlarge their resources, and give them a practical insight into the business of life ade-
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1. The Federalist, No. 295.
2. 1 Tucker's Black. Comm. App. 197.
3. 1 Tucker's Black. Comm. App. 213, 214; 2 Wilson's Law Lect. 139, 140.

quate to their own immediate wants and duties. Can the interests of others be safely confided to those, who have yet to learn how to take care of their own? The British constitution has, indeed, provided only for the members of the house of commons not being minors;¹ and illustrious instances have occurred to show, that great statesmen may be formed even during their minority. But such instances are rare, they are to be looked at as prodigies, rather than as examples; as the extraordinary growth of a peculiar education and character, and a hot-bed precocity in a monarchy, rather than as the sound and thrifty growth of the open air, and the bracing hardihood of a republic. In the convention this qualification, as to age, did not pass without a struggle. It was originally carried by a vote of seven states against three, one being divided; though it was ultimately adopted without a division.² In the state conventions it does not seem to have formed any important topic of debate.³
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1. Black. Comm. 162, 173, 175; 4 Instit. 46, 47.
2. Journal of Convention, June 22, p. 143; Id. Aug. 8, p 235; 4 Elliot's Debates, (Yates's Minutes,) 94.
3. Lork Coke has with much gravity enumerated the proper qualifications of a parliament-man, drawing the resemblances from the properties of the elephant. First, that he should be without gall; that is, without malice, rancour, heat, and envy. Secondly, that he should be constant, inflexible, and not to be bowed, or turned from the right, either for fear, reward, or favour, nor in judgment respect persons. Thirdly, that he should be of a rip e memory, that remembering perils past, he might remember dangers to come. Fourthly, that though he be of the greatest strength and understanding, yet he be sociable, and go in companies; and fifthly, that he philanthropic, showing the way to every man.^* Whatever one may now think of this quaint analogy, these qualities would not, in our day, be thought a bad enumeration of the proper qualities of a good modern member of parliament, or congress.

* 4 Instit. 3.

§ 617. Secondly, in regard to citizenship. It is required, that the representative shall have been a citizen of the United States seven years. Upon the propriety of excluding aliens from eligibility, there could scarcely be any room for debate; for there could be no security for a due administration of any government by persons, whose interests and connexions were foreign, and who owed no permanent allegiance to it, and had no permanent stake in its measures or operations. Foreign influence, of the most corrupt and mischievous nature, could not fail to make its way into the public councils, if there was no guard against the introduction of alien representatives.¹ It has accordingly been a fundamental policy of most, if not of all free states, to exclude all foreigners from holding offices in the state. The only practical question would seem to be, whether foreigners, even after naturalization, should be eligible as representatives; and if so, what was a suitable period of citizenship for the allowance of the privilege. In England, all aliens born, unless naturalized, were originally excluded from a seat in parliament; and now, by positive legislation, no alien, though naturalized, is capable of being a member of either house of parliament.² A different course, naturally arising from the circumstances of the country, was adopted in the American colonies antecedent to the revolution, with a view to invite emigrations, and settlements, and thus to facilitate the cultivation of their wild and waste lands. A similar policy had since pervaded the state governments, and had been attended with so many advantages, that it would hare been
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1. The Federalist, No. 62.
2. 1 Black. Comm. 162, 175; 4 Inst. 46.

impracticable to enforce any total exclusion of naturalized citizens from office. In the convention it was originally proposed, that three years' citizenship should constitute a qualification; but that was exchanged for seven years by a vote of ten states to one.¹ No objection seems even to have been suggested against this qualification; and hitherto it has obtained a general acquiescence or approbation. It certainly subserves two important purposes. 1. That the constituents have a full opportunity of knowing the character and merits of their representative. 2. That the representative has a like opportunity of learning the character, and wants, and opinions of his constituents.²

§ 618. Thirdly, in regard to inhabitancy. It is required, that the representative shall, when elected, be an inhabitant of the state, in which he shall be chosen. The object of this clause, doubtless, was to secure an attachment to, and a just representation of, the interests of the state in the national councils. It was supposed, that an inhabitant would feel a deeper concern, and possess a more enlightened view of the various interests of his constituents, than a mere stranger. And, at all events, he would generally possess more entirely their sympathy and confidence. It is observable, that the inhabitancy required is within the state, and not within any particular district of the state, in which the member is chosen. In England, in former times, it was required, that all the members of the house of commons should be inhabitants of the places, for which they were chosen. But this was for a long time wholly disregarded in practice, and was at length repealed by
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1. Journal of the Convention, 8 August, 233, 234.
2. 2 Wilson's Law Lectures, 141.

statute of 14 Geo. 3, ch. 58.¹ This circumstance is not a little remarkable in parliamentary history; and it establishes, in a very striking manner, how little mere theory can be regarded in matters of government. It was found by experience, that boroughs and cities were often better represented by men of eminence, and known patriotism, who were strangers to them, than by those chosen from their own vicinage. And to this very hour some of the proudest names in English History, as patriots and statesmen, have been the representatives of obscure, and, if one may so say, of ignoble boroughs.

§ 619. An attempt was made in the convention to introduce a qualification of one year's residence before the election; but it failed, four states voting in favour of it, six against it, and one being divided.² The omission to provide, that a subsequent non-residence shall be a vacation of the seat, may in some measure defeat the policy of the original limitation. For it has happened, in more than one instance, that a member, after his election, has removed to another state, and thus ceased to have that intimate intercourse with, and dependence upon his constituents, upon which so much value has been placed in all his discussions on this subject.

§ 620. It is observable, that no qualification, in point of estate, has been required on the part of members of the house of representatives.³ Yet such a qualification is insisted on, by a considerable number of the states, as a qualification for the popular branch of the
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1. 1 Black. Comm. 175; 2 Wilson's Law Lect. 142.
2. Journal of Convention, 8 August, p. 224, 225.
3. Journal of Convention, 26 July, p. 204, 205; Id. 212; Id. 241, 242.

state legislature.¹ The probability is, that it was not incorporated into the constitution of the Union from the difficulty of framing a provision, that would be generally acceptable. Two reasons have, however, been assigned by a learned commentator for the omission, which deserve notice. First, that in a representative government the people have an undoubted right to judge for themselves of the qualification of their representative, and of their opinion if his integrity and ability will supply the want of estate, there is better reason for contending, that it ought not prevail. Secondly, that by requiring a property qualification, it may happen, that men, the best qualified in other respects, might be incapacitated from serving their country.² There is, doubtless, weight in each of these considerations. The first, however, is equally applicable to all sorts of qualifications whatsoever; and proceeds upon art inadmissible foundation; and that is, that the society has no just right to regulate for the common good, what a portion of the community may deem for their special good. The other reason has a better foundation in theory; though, generally speaking, it will rarely occur in practice. But it goes very far towards overturning another fundamental guard, which is deemed essential to public liberty; and that is, that the representative should have a common interest in measures with his constituents. Now, the power of taxation, one of the most delicate and important in human society, will rarely be exerted oppressively by those, who are to share the common burthens. The possession of property has in this respect a great value
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1. Dr. Lieber's Encyclopedia Americana, art. Constitutions of the United States.
2. 1 Tucker's Black. Comm. App. 212, 213; 1 Elliot's Debates, 55, 56.

among the proper qualifications of a representative; since it will have a tendency to check any undue impositions, or sacrifices, which may equally injure his own, as well as theirs.¹

§ 621. In like manner there is a total absence of any qualification founded on religious opinions. However desirable it may be, that every government should be administered by those, who have a fixed religious belief, and feel a deep responsibility to an infinitely wise and eternal Being; and however strong may be our persuasion of the everlasting value of a belief in Christianity for our present, as well as our immortal welfare; the history of the world has shown the extreme dangers, as well as difficulties, of connecting the civil power with religious opinions. Half the calamities, with which the human race have been scourged, have arisen from the union of church and state; and the people of America, above all others, have too largely partaken of the terrors and the sufferings of persecution for conscience' sake, not to feel an excessive repugnance to the introduction of religious tests. Experience has demonstrated the folly, as well as the injustice, of exclusions from office, founded upon religious opinions. They have aggravated all other evils in the political organization of societies. They carry in their train discord, oppression, and bloodshed.² They perpetuate a savage ferocity, and insensibility to human rights and sufferings. Wherever they have been abolished, they have introduced peace and moderation, and enlightened legislation. Wherever they have been perpetuated, they have always checked, and in many
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1. 1 Tucker's Black. Comm. App. 212, 213.
2. See 4 Black. Comm. 44, 45, 46, 47.

cases have overturned all the securities of public liberty. The right to burn heretics survived in England almost to the close of the reign of Charles the Second;¹ and it has been asserted, (but I have not been able to ascertain the fact by examination of the printed journals,) that on that occasion the whole bench of bishops voted against the repeal. We all know how slowly the Roman Catholics have recovered their just rights in England and Ireland. The triumph has been but just achieved, after a most painful contest for a half century. In the catholic countries, to this very hour, protestants are, for the most part, treated with a cold and reluctant jealousy, tolerated perhaps, but never cherished. In the actual situation of the United States a union of the states would have been impractible from the known diversity of religious sects, if any thing more, than a simple belief in Christianity in the most general form of expression, had been required. And even to this some of the states would have objected, as inconsistent with the fundamental policy of their own charters, constitutions, and laws. Whatever, indeed, may have been the desire of many persons, of a deep religious reeling, to have embodied some provision on this subject in the constitution, it may be safely affirmed, that hitherto the absence has not been felt, as an evil; and that while Christianity continues to be the belief of the enlightened, and wise, and pure, among the electors, it is impossible, that infidelity can find an easy home in the house of representatives.

§ 622. It has been justly observed, that under the reasonable qualifications established by the constitution, the door of this part of the federal government is open
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1. 4 Black. Comm. 49.

to merit of every description, whether native or adoptive, whether young or old, and without regard to poverty or wealth, or any particular profession of religious faith.¹

§ 623. A question, however, has been suggested upon this subject, which ought not to be passed over without notice. And that is, whether the states can superadd any qualifications to those prescribed by the constitution of the United States. The laws of some of the states have already required, that the representative should be a freeholder, and be resident within the district, for which he is chosen.² If a state legislature has authority to pass laws to this effect, they may impose any other qualifications beyond those provided by the constitution, however inconvenient, restrictive, or even mischievous they may be to the interests of the Union. The legislature of one state may require, that none but a Deist, a Catholic, a Protestant, a Calvinist, or a Universalist, shall be a representative. The legislature of another state may require, that none shall be a representative but a planter, a farmer, a mechanic, or a manufacturer. It may exclude merchants, and divines, and physicians, and lawyers. Another legislature may require a high monied qualification, a freehold of great value, or personal estate of great amount. Another legislature may require, that the party shall have been born, and always lived in the state, or district; or that he shall be an inhabitant of a particular town or city, free of a corporation, or eldest son. In short, there is no end to the varieties of qualifications, which, without insisting upon extravagant cases, may be imagined. A state may, with the
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2. 1 Tucker's Black. Comm. App. 213.

sole object of dissolving the Union, create qualifications so high, and so singular, that it shall become impracticable to elect any representative.

§ 624. It would seem but fair reasoning upon the plainest principles of interpretation, that when the constitution established certain qualifications, as necessary for office, it meant to exclude all others, as prerequisites. From the very nature of such a provision, the affirmation of these qualifications would seem to imply a negative of all others. And a doubt of this sort seems to have pervaded the mind of a learned commentator.¹ A power to add new qualifications is certainly equivalent to a power to very them. It adds to the aggregate, what changes the nature of the former requisites. The house of representatives seems to have acted upon this interpretation, and to have held, that the state legislatures have no power to prescribe new qualifications, unknown to the constitution of the United States.² A celebrated American statesman,³ however, with his avowed devotion to state power, has intimated a contrary doctrine. "If," says he, "whenever the constitution assumes a single power out of many, which belong to the same subject, we should consider it as assuming the whole, it would vest the general government with a mass of powers never contemplated. On the contrary, the assumption of particular powers seems an exclusion of all not assumed. This reasoning appears to me to be sound, but on so recent a change of view, caution requires us not to be over confident."⁴ He intimates, however, that unless the case be either
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1. 1 Tucker's Black. Comm. App. 213.
2. 4 Jefferson's Correspondence, 238.
3. Mr. Jefferson.
4. Jefferson's Correspondence, 239.

clear or urgent, it would be better to let it lie undisturbed.¹

§ 625. It does not seem to have occurred to this celebrated statesman, that the whole of this reasoning, which is avowedly founded upon that amendment to the constitution, which provides, that "the powers not delegated nor prohibited to the states, are reserved to the states respectively, or to the people," proceeds upon a basis, which is inapplicable to the case. In the first place, no powers could be reserved to the states, except those, which existed in the states before the constitution was adopted. The amendment does not profess, and, indeed, did not intend to confer on the states any new powers; but merely to reserve to them, what were not conceded to the government of the Union. Now, it may properly be asked, where did the states get the power to appoint representatives in the national government? Was it a power, that existed at all before the constitution was adopted? If derived from the constitution, must it not be derived exactly under the qualifications established by the constitution, and none others? If the constitution has delegated no power to the states to add new qualifications, how can they claim any such power by the mere adoption of that instrument, which they did not before possess?

§ 626. The truth is, that the states can exercise no powers whatsoever, which exclusively spring out of the existence of the national government, which the constitution does not delegate to them. They have just as much right, and no more, to prescribe new qualifications for a representative, as they have for a president. Each is an officer of the Union, deriving his
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1. 4 Jefferson's Correspondence, p. 239.

powers and qualifications from the constitution, and neither created by, dependent upon, nor controllable by, the states. It is no original prerogative of state power to appoint a representative, a senator, or president for the Union. Those officers owe their existence and functions to the united voice of the whole, not of a portion, of the people. Before a state can assert the right, it must show, that the constitution has delegated and recognised it. No state can say, that it has reserved, what it never possessed.

§ 627. Besides; independent of this, there is another fundamental objection to the reasoning. The whole scope of the argument is, to show, that the legislature of the state has a right to prescribe new qualifications. Now, if the state in its political capacity had it, it would not follow, that the legislature possessed it. That must depend upon the powers confided to the state legislature by its own constitution. A state, and the legislature of a state, are quite different political beings. Now it would be very desirable to know, in which part of any state constitution this authority, exclusively of a national character, is found delegated to any state legislature. But this is not all. The amendment does not reserve the powers to the states exclusively, as political bodies; for the language of the amendment is, that the powers not delegated, &c;. are reserved to the states, or to the people. To justify, then, the exercise of the power by a state, it is indispensable to show, that it has not been reserved to the people of the state. The people of the state, by adopting the constitution, have declared what their will is, as to the qualifications for office. And here the maxim, if ever, must apply, Expressio unius est exclusio alterius. It might further be urged, that the constitution, being the act of the whole

people of the United States, formed and fashioned according to their own views, it is not to be assumed, as the basis of any reasoning, that they have given any control over the functionaries created by it, to any state, beyond what is found in the text of the instrument. When such a control is asserted, it is matter of roof, not of assumption; it is matter to be established, as of right, and not to be exercised by usurpation, until it is displaced. The burthen of proof is on the state, and not on the government of the Union. The affirmative is to be established; the negative is not to be denied, and the denial taken for a concession.

§ 628. In regard to the power of a state to prescribe the qualification of inhabitancy or residence in a district, as an additional qualification, there is this forcible reason for denying it, that it is undertaking to act upon the very qualification prescribed by the constitution, as to inhabitancy in the state, and abridging its operation. It is precisely the same exercise of power on the part of the states, as if they should prescribe, that a representative should be forty years of age, and a citizen for ten years. In each case, the very qualification fixed by the constitution is completely evaded, and indirectly abolished.

§ 629. The next clause of the second section of the first article respects the apportionment of the representatives among the states. It is as follows: "Representatives and direct taxes shall be apportioned among the several states, which may be included in this Union, 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. The actual enumeration

shall be made within three years after the first meeting of the congress of the United States, and within every subsequent term of ten years, in such manner, as they shall, by law, direct. The number of representatives shall not exceed one for every thirty thousand; but each state shall have at least one representative. And until such enumeration shall be made, the state of New-Hampshire shall be entitled to choose three, Massachusetts eight, Rhode-Island and Providence Plantations one, Connecticut five, New-York six, NewJersey four, Pennsylvania eight, Delaware one, Maryland six, Virginia ten, North-Carolina five, South Carolina five, and Georgia three."

§ 630. The first apportionment thus made, being of a temporary and fugacious character, requires no commentary.¹ The basis assumedwas probably very nearly the same, which the constitution pointed out for all future apportionments, or, at least, of all the free persons in the states.²

It is obvious, that the question, how: the apportionment should be made, was one, upon which a considerable diversity of judgment might, and probably would, exist. Three leading principles of apportionment would, at once, present themselves. One was to adopt the rule already existing, under the confederation; that is, an equality of representation and vote by each state, thus giving each state a right to send not less than two, nor more than seven representatives, and in the determination of questions, each state to have one vote.³ This would naturally receive encouragement from all those, who were attached to the confederation, and preferred
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1. Journ. of Convention, 10th July, 165, 166, 167, 171, 172, 179, 216.
2. Journ. of Convention, 159, note. But see The Federalist, No. 55.
3. Confederation, Art. 5.

a mere league of states, to a government in any degree national.¹ And accordingly it formed, as it should seem, the basis of what was called the New-Jersey Plan.² This rule of apportionment met, however, with a decided opposition, and was negatived in the convention at an early period, seven states voting against it, three being in its favour, and one being divided.³

§ 631. Another principle might be, to apportion the representation of the states according to the relative property of each, thus making property the basis of representation. This might commend itself to some persons, because it would introduce a salutary check into the legislature in regard to taxation, by securing, in some measure, an equalization of the public burthens, by the voice of those, who were called to give most towards the common contributions.⁴ That taxation ought to go hand in hand with representation, bad been a favourite theory of the American people. Under the confederation, all the common expenses were required to be borne by the states in proportion to the value of the land within each state.⁵ But it has been already seen, that this mode of contribution was extremely difficult and embarrassing, and unsatisfactory in practice, under the confederation.⁶ There do not, indeed,

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1. Journ. of Convention, 111, 153, 159.
2. Mr. Patterson's Plan, Journ. of Convention, 123; 4 Elliot's Debates, (Yates's Minutes,) 74; Id. 81; Id. 107 to 113, 116; 2 Pitk. Hist. 228, 229, 232.
3. Journ. of Convention. 11th June, 111. See also Id. 153, 154; 4 Elliot's Debates, (Yates's Minutes,) 68.
4.. 4 Elliot's Debates, (Yates's Minutes,) 68, 69; Journ. of Convention, 11th June, 111; Id. 5th July, 158; Id. 11th July, 169.
5 Confederation, Art. 8.
6. Journals of Congress, 17th Feb 1783, vol. 8, p. 129 to 133; Id. 27th Sept. 1785, vol. 10, p. 238; Id. 18th April, 1783, vol. 8, p. 188; 1 Elliot's Debates, 56; 2 Elliot's Debates, 113; 1 Tuck. Black. Comm. App. 235, 236, 243 to 246; The Federalist, No. 30; Id. No. 21.

seem to be any traces in the proceedings of the convention, that this scheme had an exclusive influence with any persons in that body. It mixed itself up with other considerations, without acquiring any decisive preponderance. In the first place, it was easy to provide a remedial check upon undue direct taxation, the only species, of which there could be the slightest danger of unequal and oppressive levies. And it will be seen, that this was sufficiently provided for, by declaring, that representatives and direct taxes should be apportioned by the same ratio.

§ 632. In the next place, although property may not be directly aimed at, as a basis in the representation, provided for by the constitution, it cannot, on the other hand, be deemed to be totally excluded, as will presently be seen. In the next place, it is not admitted, that property alone can, in a free government, safely be relied on, as the sole basis of representation. It may be true, and probably is, that in the ordinary course of affairs, it is not the interest, or policy of those, who possess property, to oppress those, who want it. But, in every well ordered commonwealth, persons, as well as property, should possess a just share of influence. The liberties of the people are too dear, and too sacred to be entrusted to any persons, who may not, at all times, have a common sympathy and common interest with the people in the preservation of their public rights, privileges, and liberties. Checks and balances, if not indispensable to, are at least a great conservative in, the operations of all free governments. And, perhaps, upon mere abstract theory, it cannot be justly affirmed, that either persons or property, numbers or wealth, can safely be trusted, as the final repositaries of the dele-

gated powers of government.¹ By apportioning influence among each, vigilance, caution, and mutual checks are naturally introduced, and perpetuated.

§ 633. The third and remaining principle was, to apportion the representatives among the states according to their relative numbers. This had the recommendation of great simplicity and uniformity in its operation, of being generally acceptable to the people, and