[Volume 1, Page 377]
CHAPTER 12|Document 26
James Wilson, Of Government, The Legislative Department, Lectures on Law1791Works 1:290--92, 414--15
The first remark, which I shall make on the structure of the legislative power, is, that it ought to be divided. In support of this position, which is, indeed, one of the most important in both the theory and the practice of government, many arguments may be advanced. Let me introduce one, by the declaration of an admired judge, whose manly candour must charm every generous mind. "It is the glory and happiness of our excellent constitution, that, to prevent any injustice, no man is concluded by the first judgment; but that, if he apprehends himself to be aggrieved, he has another court, to which he may resort for relief. For my part, I can say, that it is a consideration of great comfort to me, that, if I do err, my judgment is not conclusive to the party; but my mistake may be rectified, and so no injustice be done." Is less skill required--should less caution be observed--in making laws, than in explaining them? Are mistakes less likely to happen--are they less dangerous--is it less necessary to prevent or rectify them, in the former case, than in the latter? Which is most necessary? to preserve the streams, or to preserve the fountain from becoming turbid?
But the danger arising from mistakes and inaccuracies is not the only nor the greatest one, to be apprehended from a single body possessed of legislative power. It is impossible to restrain it in its operations. No other power in government can arrest the proceedings of that which makes the laws. Let us suppose, that this single body, in a lucky moment, should pass a law to restrain itself: in the next moment, an unlucky one, it might repeal the restraining law. Any mounds, which it might raise to confine itself, would still be within the sphere of its own motion; and whatever force should impel it, would necessarily impel those mounds along with it. To stop and to check, as well as to produce motion in this political globe, we must possess--what Archimedes wanted--another globe to stand upon.
A single legislature is calculated to unite in it all the pernicious qualities of the different extremes of bad government. It produces general weakness, inactivity, and confusion; and these are intermixed with sudden and violent fits of despotism, injustice, and cruelty.
But I will take the subject a little deeper: it is of the utmost consequence that it be fully discussed. In private life, how often and how fatally are we seduced, by our passions and by our prejudices, from those paths, which would lead us to our true interests? But are passions and prejudices less frequently to be found in publick bodies, than in individuals? Are they less powerful? Do they not become inflamed by mutual imitation and example? Will they not, if unrestrained, produce the most mischievous effects? Ye, who are versed in the science of human nature--ye, who have viewed it in the faithful mirrour of history--tell us, for you know, what answer should be given to these questions. Cannot you point out instances, in which the people have become the miserable victims of passions, operating upon their government without restraint? Cannot you point out other instances, in which the violence of one part of the government has been happily controlled by the constitutional interposition of another part?
There is not in the whole science of politicks a more solid or a more important maxim than this--that of all governments, those are the best, which, by the natural effect of their constitutions, are frequently renewed or drawn back to their first principles. When a single legislature is determined to depart from the principles of the constitution--and its incontrollable power may prompt the determination--there is no constitutional authority to arrest its progress. It may proceed, by long and hasty strides, in violating the constitution, till nothing but a revolution can stop its career. Far different will the case be, when the legislature consists of two branches. If one of them should depart, or attempt to depart from the principles of the constitution; it will be drawn back by the other. The very apprehension of the event will prevent the departure or the attempt.
In all the most celebrated governments both of ancient and of modern times, we find the legislatures composed of distinct bodies. Such was that formed at Athens by Solon. Such was that instituted at Sparta by Lycurgus. Such was that, which so long flourished at Rome. In our sister states, [Volume 1, Page 378] their legislatures consist of distinct bodies of men. Similar, upon this subject, is the constitution of the United States. And we can now happily say, that Pennsylvania no longer exhibits an instance to the contrary--that she no longer holds out to view a beacon to be avoided, instead of an example deserving imitation.
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Between the senate of the United States, and that of Pennsylvania, there is one remarkable point of difference, of which it will be proper, in this place, to take particular notice. According to the constitution of the United States, two senators are chosen by the legislature of each state: while the members of the house of representatives are chosen by the people. According to the constitution of Pennsylvania, the senators are chosen by the citizens of the state, at the same time, in the same manner, and at the same place where they shall vote for representatives.
To choose the senators by the same persons, by whom the members of the house of representatives are chosen, is, we are told, to lose the material distinction, and, consequently, all the benefits which would result from the material distinction, between the two branches of the legislature.
If this, indeed, should be the necessary consequence of electing both branches by the same persons; the objection, it is confessed, would operate with a force irresistible. But many and strong reasons, we think, may be assigned, why all the advantages, to be expected from two branches of a legislature, may be gained and preserved, though those two branches derive their authority from precisely the same source.
A point of honour will arise between them. The esprit du corps will soon be introduced. The principle, and direction, and aim of this spirit will, we presume, be of the best and purest kind in the two houses. They will be rivals in duty, rivals in fame, rivals for the good graces of their common constituents.
Each house will be cautious, and careful, and circumspect, in those proceedings, which, they know, must undergo the strict and severe criticism of judges, whose inclination will lead them, and whose duty will enjoin them, not to leave a single blemish unnoticed or uncorrected. After all the caution, all the care, and all the circumspection, which can be employed, strict and severe criticism, led by inclination and enjoined by duty, will find something to notice and correct. Hence a double source of information, precision, and sagacity in planning, digesting, composing, comparing, and finishing the laws, both in form and substance. Every bill will, in some one or more steps of its progress, undergo the keenest scrutiny. Its relations, whether near or more remote, to the principles of freedom, jurisprudence, and the constitution will be accurately examined: and its effects upon the laws already existing will be maturely traced. In this manner, rash measures, violent innovations, crude projects, and partial contrivances will be stifled in the attempt to bring them forth. These effects of mutual watchfulness and mutual control between the two houses, will redound to the honour of each, and to the security and advantage of the state.
The Works of James Wilson. Edited by Robert Green McCloskey. 2 vols. Cambridge: Belknap Press of Harvard University Press, 1967.
© 1987 by The University of Chicago