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In anticipation of the possibility of some future attack upon the independence of the judges of the Supreme Court of the United States, who are appointed by the Constitution. as its defenders in the last resort, Mr. Justice Story urges very forcibly the necessity of those “additional guards,” which can alone "protect this department from the absolute dominion of the others." Yet, he adds, "rarely have these guards been applied; and every attempt to introduce them has been resisted with a pertinacity which demonstrates how slow popular leaders are to introduce checks upon their own power; and how slow the people are to believe that the judiciary is the real bulwark of their liberties."*

* § 540.

CHAPTER VII.

THE SENATE.

THE policy of dividing the legislature into two distinct branches, is one upon which there can be no difference of opinion among wellinformed persons, either in this country or in the United States, in the present day. It was not so, however, in the latter country, at the time of the Revolution; and the question of the propriety of establishing a second legislative chamber, there termed the Senate, was not determined without a careful review of all the arguments in support of such a measure.

A very brief recapitulation of them is necessary, as an introduction to what follows on the subject of the Senate itself.

The value of an Upper House or Senate was insisted on "as a security against hasty,

rash, and dangerous legislation; allowing errors and mistakes to be corrected, before they have produced public mischief."* The second chamber "being organised upon different principles, and actuated by different motives," will operate as "a preventive against attempts to carry into effect private, personal, or party objects, not connected with the common good." It secures "an independent review" of measures that are to act upon the whole community, and which may affect interests "of vast difficulty and complexity," and therefore "require nice adjustments and comprehensive enactments." It is of great importance that such proposed Acts of legislation should be reviewed by different minds, "acting under different and sometimes opposite opinions and feelings."

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Whatever, therefore, naturally and necessarily awakens doubt, solicits caution, attracts inquiry, or stimulates vigilance and industry, is of value to aid us against precipitancy in framing or altering laws, as well as against yielding to the suggestions of indolence, the selfish projects of ambition, or the cunning devices of corrupt and hollow demagogues." +

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In the next place, there can scarcely be any other adequate security against encroachments upon the constitutional rights and liberties of the people. Algernon Sidney has said "that all governments have a tendency to arbitrary power, but those that are well constituted place this power so as it may be beneficial to the people, and set such rules as are hardly to be transgressed."* The legislative power derives this constant tendency to overleap its proper boundaries, from passion, from ambition, from inadvertence, from the prevalence of faction, or from the overwhelming influence of private interests. Under such circumstances, the only effectual barrier against oppression, accidental or intentional, is to separate its operations, to balance interest against interest, ambition against ambition, the opinions and sympathies of one body against the opinions and sympathies of the other. "And it is obvious," says Mr. Justice Story, "that the more various the elements which enter into the actual composition of each body, the greater the security will be."+

* Discourse on Government, c. 3. § 45. + § 558.

It will be observed that the policy of making an Upper House, or Senate, a part of the Constitution of the United States, is justified by precisely the same arguments that are used in this country in favour of the existence of the House of Lords as an integral part of our Constitution. And the learned commentator's argument, "that the more various the elements that enter into the composition of each body, the greater the security will be," is much more applicable to our two Houses of Parliament than to the Senate and House of Representatives of the United States.

The propriety of having an Upper House having been determined upon, the following more detailed reasons, stated as having influenced the framers of the Constitution in giving to the Senate its actual structure, place in a stronger light the efforts made by them to assimilate that body to the House of Lords, in its character and functions, to as great an extent as was compatible with institutions from which the hereditary principle was excluded.

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