were really monarchies, he concludes that nothing but a violent revolution "could be supposed capable of changing this character into its opposite." now true, than that the English constitution answers these questions according to Locke. No man will now say that those doctrines were embodied in the system lately The essential distinction of a monarchy, superseded; nor are they to be found in he finds, in the possession of the sovereignty that under which parliaments are or chief power by the prince; while in a elected. republic it resides in the people. According to this view, it would appear that the transfer of any part of the absolute sovereignty to the people, in any shape, would destroy the monarchical character of any European state. Whatever may be said out of doors, the extreme doctrines of Locke have been repudiated among those whose opinions have hitherto prevailed in the legislature. Universal suffrage is disallowed, and thus the principie of the universal rights of man is disWe cannot agree with Heeren. Re- carded; it is admitted that the right of jecting equally Filmer and Locke, we hold election must be limited, so as to exclude that a nation may be very happy and pros the lower classes. No such limitation is perous, which shall either inherit from an- allowed by Locke. But, granting for a cestors, or constitute by amicable agree- moment that the exclusion of certain classment between prince and people, a govern es is allowable, we will assume that the ment, in which power is shared unequally line has been accurately drawn, and the by the several orders of the state, decided test of property and intelligence which quaaccording to birth, property, or other even lifies a man for an elector fairly and corless definite circumstances; even although rectly chosen. But this line is not drawn, this government may be nick-named a nor is this test applied, to the whole empire, pseudo-monarchy, or a pseudo-republic; nor even to the whole of England. There being something between the two. is no extent of property or possession which, from its extent merely, entitles a man to vote.* And Heeren himself, when he comes to details, appears to be of this opinion. For in proceeding through several pages to de-. It was no doubt of the old English Conscribe a monarchy, with such limitations as stitution that Heeren wrote; but we give he thinks consistent with the monarchical him the advantage of that now in force, principle, he describes, almost exactly, the which at least attempts a nearer approach British Constitution. He is satisfied with to the theory of government. Neither the the inviolability of the king, his power of reformed, nor the ancient Constitution, can convoking and dissolving the chambers, his stand in argument for one moment, withabsolute veto upon their decrees, his un- out the aid of all these considerations, so qualified right to choose his own ministers, hateful to theoretical writers, of working and his necessary participation in all affairs well in practice, virtually representing the of the state. He admits that, in England, people, collecting, by modes irregular, a all his conditions are fulfilled, and the rights of the prince maintained, without infringing the liberties of the nation. The chambers to which our professor here refers, as having preserved in Eng land a just balance of powers and interests, are the old House of Commons and the House of Lords, in unquestioned possession of its share in the legislature. But, neither when he cites the example of England, nor when he states his own views of propriety, is Heeren sufficiently precise in describing the mode in which the chambers are to be formed; though that is in fact the most interesting point upon which the character of the constitution depends. stand," he says, "that both the chambers, or at least one of them, is to consist of deputies chosen by the people." * A man might be qualified to hold a high station in the king's councils, and yet have no representative in the House of Commons. A man may reside in the finest house in London, and yet may be the largest fund-holder in England, he have no vote for a member of parliament. A man may carry on a trade or manufacture in a certain town, may inhabit a house of a given parliament. Another who has been bred in the yearly value, and have a vote for a member of same school, in the same class, at the same time, and profited by it exactly to the same extent, may carry on the same trade, in a house exactly simitown of precisely equal population, in the same lar in size, rent, and all other circumstances, in a county, may keep the same establishment, and pay the same taxes, direct and indirect, and yet have no vote. The first of our cases is not merely a conjecWe under-tural case; and this is one of constant occurrence. Again, the town may be supposed to be three times as large and populous as that in which the supposed trader resides and votes, the trade three times as much, and yet not one man in the may be three times as extensive, the taxes paid town shall have a vote. What is the people, and how are the deputies to be chosen? Nothing can be less set of members fit to legislate. Nay, the cable, and perhaps equally simple form is, one as well as the other, must have recourse the division of the electoral body into equal also to ancient usage,-to peculiar, charter ed privileges.* It is not less true now than when Heeren wrote, that in the country of Locke there is not a direct, but a virtual representaion of the people.t We would here observe, that those, who, holding that the wishes of the people are to be followed, support an incomplete representation, must hold, either that the opinions of the represented necessarily include those of the unrepresented, or that the unrepresented ought not to be represented. Now, if the line of distinction between these two classes is drawn (as it is assuredly not drawn in England) upon correct principles in reference to property or intelligence, the exclusion may be justifiable and wise, but it is not according to Locke. constituencies, each returning one repre- If Supposing, therefore, a chamber to be dissolved with the view of collecting the But it is not only true, that Locke's the- sense ef the people upon a particular meaory has not been realized in England; sure, the election, even in this simple and Locke has not shown that it can be realized arithmetical form, may give effect and powanywhere. He has spoken freely and fa- er to the sense of the smaller number. miliarly of representation, without laying the constituencies be (as is more frequently down the principles upon which repreen- the case) unequal in their own numbers, tation ought to be founded, so as to collect and return an unequal number of members, the opinion of even the majority; a word, the calculation will be more complicated, therefore, upon representation, and majo- but the result will be equally contrary to rity. the principle and intention of the institution. And then too come in compromises, the effect of which may be, to give to the minority an equal weight with the majority. The deficiency of the representative system (we speak generally) will strike the The most simple mode of ascertaining the opinions of a majority (applicable, however, only to a small state,‡) appears to be the election of the whole body of representatives by the whole body of electors; this would express the opinions of the majority, without giving even a hearing in the legis lature to the minority. But a more practi-000, Suppose the electors to be altogether 1,000,- In 251 of these, supporters are In 249 constituencies, oppo nents are returned unani- nents in the majority of con- * For the householders of the towns which enjoy that special favor of electing members, which from other towns of equal or superior importance is withholden, possess it, simply and solely, be- Then the unsuccessful oppocause in some instances they, in more perhaps some other class having another sort of connexion with the town, had enjoyed the privilege for four hundred years, under a grant from the crown, and the consequence undoubtedly is, that the same number of members is sometimes sent to parliament, by two hundred, as by twelve thousand electors; and that of persons possessing test of property, which the new system requires, one-third (perhaps a larger proportion) is disqualified. + An American thus speaks of the inconsistencies which beset a man who abandons things as they are, and yet proposes to carry fresh principles into incomplete effect:-"A moderate reformer can give no answer, he can neither plead tradition, nor the rule of three. He goes at once against the genius of the British constitution, and the four rules of arithmetic. He can stand neither upon Lord Coke, nor Cocker; the jus parliamentarium, nor the multiplication table."North American Review, xxiv. 172. It is thus with the Scotch peerage. 1001X251=........ 249X2000 498,000 251X999-250,749 748,749 1,000,000 In this case, 748,749, being very nearly threefourths of the whole, will be against the measure, and a little more than one-fourth for it, and it will be carried, according to the true and philosophical principles of representation. The bare majority in one set of constituencies, and the unanimity in the other, assume an extreme case; but the numbers may be greatly altered without affecting the result. For a very apt exposition of the anomalies inherent in a representative system, as connected especially with the plurality of votes given to each elector, where more than one member is to be returned, we refer to Mr. Praed's speech in the House of Commons, on the 14th of August, 1831, Parl. Deb. V. 1439. The tyranny of the majority was never more recklessly exercised than in leaving this speech almost without an attempted answer. mind still more forcibly, when there are that the majority must have the predomimore than two sets of opinions to be collect- nance, some writers have held that the mied. Let us suppose that while many of the nority ought, nevertheless, to be represented, people approve of the measure, and many and have found a difficulty in effecting this, oppose it, there are also many who would without giving to the smaller number, what carry it a great deal further. Let there be it certainly ought not to have, equal weight supporters, opponents, and extenders; every with the majority, and it has been successone set having a candidate at a supposed fully argued, that where there are more election. Each set wishes for its own man, than two members to one constituency, the and votes for him; but the opponent would nearesta pproach to right will be in allowing much prefer the supporter to the extender, each elector to vote for two only.† and if he could tell that by voting for the We know not whether we have met with opponent he would in fact bring in an ex- the idea before, but perhaps the most accurate tender, he would rather have given his suf- mode of representation would be to have no frage to the supporter." From the muki- local privileges; but, supposing the million plication of such cases, it may happen that of electors to have five hundred represen in no one constituency has the successful tatives, to let any body of two thousand eleccandidate an absolute majority. But no tors, self-associated, and united in favor of elective system provides sufficiently for the one candidate, have the right of returning case of second preference,† (if we may so that candidate by unanimous vote. term it,) though there are laws of election not prepared to suggest this plan for practi(not in England) where an absolute majo- cal adoption, but it really strikes us as the rity is required. fairest mode of representing a people, whose numbers alone deprive them of personal participation in the legislature. In taking leave of the principle of representation, we will just request our readers to imagine an election where there are three or four While we thus observe upon the inadequate means by which it is attempted to ascertain the opinions of the majority, we do not admit that the absolute power of a majority is consistent with natural right.‡ But admitting * Let the supporters be supposed to be 650, the opponents 600, and the extenders 750. The extenders will come in, though it may be that all the others, (or it is quite enough, a sufficient number of them,) would have joined against him, if they had foreseen the result. This difficulty is susceptible of infinite extension, as we suppose additional shades of opinion. + We have known the following method adopted where the question was, which of six days in the week should be chosen for a board day. Would it answer for political elections? Each member wrote down the six days in the order which he preferred them. The first day in each list told for six, and so down to one. And the day having most numbers was chosen. A day might have been first in the majority of the lists, and still not chosen. Of nine lists, five might have Monday at the head, reckoned at 5X6, 30. Seven might have Tuesday second, 7X5, 35. We are This mode of decision, when wills may be so nearly equal, where, according to circumstances, the smaller number may be the stronger force, and where apparent reason may be all on one side, and on the other little else but impetuous appetite, all this must be the result of a particular and special convention, confirmed afterwards by long habits of obedience, by a sort of discipline in society, and by a strong hand, vested with stationary, permanent power, to enforce this sort of constructive general will. What organ it is that shall declare the corporate mind is so much a matter of positive arrangement, that several states, for the validity of several of their acts have required a proportion of voices much greater than that of a mere majority. These cases are so entirely governed by convention, that in some cases a minority decides; the laws, in many countries, to condemn require more than a mere majority; less than an equal number to acquit. In our judicial trials we require unanimity either to "We are so little affected by things which condemn or to absolve. In some incorporations are habitual, that we consider this idea of the de- one man speaks for the whole; in others, a few. cision of a majority, as if it were a law of our Until the other day, in the Constitution of Poland, original nature; but such constructive whole, unanimity was required to give validity to any residing in a part only, is one of the most act of their national Council or Diet. This apviolent fictions of positive law that ever has been proaches much more nearly to rude nature than the or can be made on the principle of artificial in-constitution of any other country."-Burke's Apcorporation. Out of civil society nature knows peal. It might have been added, that some selfnothing of it," [except, Mr. Burke might have constituted societies require more than a mere said, as the law of the strongest]; "nor are men, majority for particular acts, such as the disposal when arranged according to civil order, other- of money. And a distinction might fairly be wise than by very long training, brought at all to drawn, even in the matter of right, between submit to it. The mind is brought far more questions which must necessarily be decided one easilyto acquiesce in the proceedings of one man, way or the other, and those which may, without a few, who act under a general procuration for general injury, rest in abeyance. the state, than in the vote of a victorious majority * Praed. in councils, in which every man has his share in Where there are only two, if each has only the deliberation. For then the beaten party are one vote, a minority, however small, would reexasperated and soured by the previous conten- turn one member, and have equal weight, in the tion, and mortified by the conclusive defeat. Chamber, with the majority. candidates, of whom two are to be returned. | content that all public affairs, foreign and doA. B. votes for the unsuccessful man; but mestic, shall be regulated by your electors, the votes are so divided, that neither of the told by the head, or, will you give any and successful men has an absolute majority. what power, and in what form, to the upper It is proposed in the Chamber to impose a classes ?* tax. These two members vote against it, but are beaten by a majority. And A. B., according to Lord Chatham, is taxed with his own consent ! We have no time for the question between universal and limited suffrage, or for the principle of limitation, and nothing in Heeren makes it necessary to discuss them. In proceeding then to his remarks upon a second, or upper Chamber, as a part of a constitutional monarchy, we assume it as established, that no perfect representation of the will or opinion, either of a whole people, or of any portion of a people selected for fitness, has hitherto been devised, certainly none exists in England. Professor Heeren (p. 187) overlooks one of the principal grounds, upon which a second Chamber more highly qualified and less dependent upon the people than the first, is recommended. He contemplates such a chamber merely as a support to the Throne, and observes, that it has sometimes been otherwise. Now, one important reason upon which, whether historically or philosophically, we argue for the maintenance of an Upper Chamber* is this-that by controlling the popular Representaitves, it counteracts or mitigates the acknowledged evils of Democracy, and that it represents and invests with a power, out of proportion to their mere numbers, the more highly educated and richer classes of the community, especially those connected with the lands. The principle of an Aristocracy, with an additional power as such, is admitted, the moment we reject universal suffrage; and even if by a very bold fiction, we confine to householders, or other selected classes, the natural rights of man, it is clear that we cannot rely upon those rights, unless the representation of those who possess them is pure and per. fect. The question then of an Upper Chamber is, under actual circumstances, one of expediency, and of degree. Will you be * In almost all national Constitutions, even in those of most recent adoption, two Chambers, and only two Chambers, have been adopted, and an imitation in some sort, of King, Lords, and Commons, has become, almost as it were, the natural form of a Constitution,-in the way in which, as was said some years ago in the House of Commons by a country mem. ber, "Five per cent is the natural interest of money." Bolivar is, so far as we know, the first legislator who, admitting of more than one Chamber, disclaimed this servile imitation, and constituted three Chambers in his little republic of Bolivia.† But in most cases, and even where the republican spirit has been most predominant, there is, in addition to the House of Repre sentatives, an Upper Chamber, of which the members are in some way or other elevated above the mass of the people, or more disconnected from them. Sometimes there is a higher qualification in property, sometimes *These terms of distinction between the seve ral classes of the community are very indefinite. By upper classes, we mean here, not only the nobility, in the confined sense in which that word is used in England, but in addition, the country gentlemen, superior clergy, and persons of old family, even though of little property; the more considerable merchants, and highly educated artists, or men of letters. "The legislative body is so composed as necessarily to be harmonious in its different parts. It will never be found divided for want of an arbitrating judge, which frequently happens where there are only two Chambers. There being three here provided, any disagreement between two of them is decided by the intervention of the third. And a question, investigated and examined by two contending parties, finds a third impartial one to settle it. By this means, no useful law is put aside, or until it has undergone one, two, or three votings, prior to its rejection. dern Congresses, I shall be told, are composed of only two bodies. It is because in England, which country has been taken as a model, the nobility and the people are represented in two Houses, and if the same course has been followed by North America, where there is no nobility, we must suppose that the habit of living under the English government induced the imitation. The fact is, that two deliberate bodies must be in perpetual conflict, and for this reason Sieyes pro Mo By Upper Chamber we mean always, one which sits either by hereditary right, the choice of the crown, or by a higher property qualifi-posed to have only one. Strange absurdity." cation. Bolivar's Address, May 25th 1826. [State papers, "If the mere popular Assembly is some- 1825-6, p. 895.]-We do not know on what ground imes led away, as it is natural it should, by sud- Bolivar expected impartiality in the third Chamden impressions or temporary clamor, this here- ber, nor how his Constitution worked. The quaditary senate may interpose its grave and thought-lification for the several Chambers appears to ful opinions, to suspend the effect of an intem- have differed chiefly as to age. perate vote. "-Lord John Russell on the English As to the representation of property, hear Government, 1823, p. 153.-" That government," a former President of the United States." We he adds, "which some paradoxical men have have hitherto proceeded upon the idea that Rehad the conceit to undervalue." presentation related to persons only, and not at all an hereditary right, sometimes a nomination | ing violent changes. This aristocratic influby the Crown, sometimes an appointment or ence did not operate through the small boan election for life, sometimes an election by roughs only; it belonged in great part to the two degrees a form to which we have had county members, or such of them as were no time to advert, but to which we are much returned principally by the rural districts, inclined.* and who owed their election (except in times of great excitement), more to the confidence reposed in them personally, to their families, and influence as landholders, than to the peculiar political opinions of their constituents. These members were, eminently, the representatives of the gentlemen of England, honest, independent, straightforward men; and moreover, of late years, educated and refined in a degree, which, no less than their permanent interests in the soil, gave them fair claims to a larger share of power, than their mere numbers allowed. The framers of the new constitution have It is quite another question whether, in framing a Constitution for a country which has hitherto been without one, a house of nobles, after our model, is precisely the best to be adopted. We are disposed to think, that where there is an hereditary Crown, it will always be safer when there is also an he. reditary nobility; that where family honors and estates are customarily subject to the law of primogeniture, the holders of these ho nors and estates ought to constitute a great portion of the Upper Chamber; but the pursuit of this topic would require a chapter on the necessity or advantage of a conside. in some sort admitted these claims, under the rable inequality of conditions, for which we head of "the legitimate influence of property;" have no space. As to England, it is enough but this description is not complete. It would that the House of Lords is an ancient part of answer if these county members owed their the Constitution, and that it does in fact per- election to a direct influence exercised over form the functions of an Upper Chamber. the electors; whereas the truth is, that exceptAnd certainly, if Heeren was justified when ing in some particular counties, (and somehe wrote, in deeming the House of Lords an times elsewhere at a time of a popular deluadmirable part of the British Constitution, its sion), the great land-proprietor could not ob utility is more undeniable, now that the other tain his election, without the aid of the other, House of Parliament has become more po- generally smaller, proprietors, who are spread pular. throughout the district;* of whom they are, therefore (as we have said), evidently the representatives; being however, at the same time, the representatives also of the most numerous constituencies. Under the old constitution of England, the superior influence of the upper classes was, in most cases, operative in the House of Commons; there was enough of popular election to ensure an effectual hearing of the voice of the middle classes, in any case in which they were strongly excited; and there was, not always, but usually, enough of aris. tocratic election or nomination, to prevent the too rapidly formed opinion of the public from bringing about rash measures, or effect And yet, although the new constitution has augmented the number of country members, and although they are now more united than they were, perhaps, at any former period, and have with them nearly the whole of the most enlightened clergy in the world, they have not a preponderating share in the Legis. lature. Thanks however to the neglect of the doctrines of Locke, and to those anomato property. But is it a just idea? Government. is instituted no less for protection of the property lies in the Reform Act which we have exthan of the persons of individuals. The one, as posed, the legitimate influence of this body well as the other, may be considered as repre- is great in the House of Commons. All sented by those who are charged with the govern- those interests which are thus in the House of ment. Upon this principle it is, that in several of the states, and particularly in the State of New Commons in a bare minority, possess in York, one branch of the government is intended our Upper Chamber a vast majority. more especially to be the guardian of property, and is accordingly elected by that part of the soci-a constitution, can it possibly perform its ety which is most interested in this object of government." And then he argues, "that a richer state has not the opportunity of influence which a richer individual has, (an admission sanctioning the influence of property), regard always to be paid to wealth (as well as numbers,) in fixing the number of representatives for each state."Federalist, No. 54, by James Madison. *We go no further into the details of the various Constitutions that are before us, because it is probable that some new publications will give us the opportunity of considering the subject practically. And if an upper chamber be admissible in functions more admirably, than when it mo difies and mitigates measures effecting great and irrevocable changes, passed in the other house by a bare majority, against the minority representing the gentry of England, or when it gives that house an opportunity of re con sidering such measures; and even finally re *Let this be considered in reference to the plan of an election by two degrees. |