In the first American Constitution (the Confederation) there was only one Chamber, each State being allowed to send any number of delegates (not less than two or more than seven), the delegates jointly having only one vote; this was considered* one of its most prominent defects, and was one of the chief reasons which led to the Philadelphia Convention, and the Constitution there framed.

†A somewhat similar state of things existed in Switzerland up to 1848, but it did not work satisfactorily, and by the Constitution framed in that year a bi-cameral legislature was adopted.

There is an evident growing impatience in these Colonies over the salutary checks provided by Upper Chambers, a desire to, as it is termed, "make them more amenable to public opinion," but as the cool and deliberate sense of the community ought in all Governments, and actually will in all free Governments, prevail over the views of its rulers, so there are particular moments in public affairs when the people, stimulated by some irregular passion or some illicit advantage, or led by the artful misrepresentations of unprincipled men, may call for measures which they themselves will be afterwards most ready to lament and condemn. In this critical moment how salutary will be the interference of some temperate and respectable body of citizens in order to check the misguided career and to suspend the blow meditated by the people against themselves until reason, justice, and truth can regain their authority over the public mind."

All the reasons and arguments in favour of the bi-cameral system in "Unitarian" Governments hold with increased force and effect when applied to Federal Governments. The problem is then further complicated by the necessity of securing the smaller States from the usurpation or tyranny of the larger, whilst at the same time giving due weight and power to the population and wealth of the larger States. This can only be done by two Houses, in which the one (the Senate) represents the States, each State being represented by the same number of representatives, and the other (the House of Representatives) represents the people in States according to their numbers.

The American Constitution framed on this system has been in existence for over 100 years, and no conflict has ever arisen between the two branches of the Legislature (although they are jealous and combative and frequently come into collision), founded on the difference of their Constitutions.§ The House of Representatives has never become the organ of large States nor prone to act in their interests, so neither has the Senate been the stronghold of the small States. The United States became a Federation in respect of the Senate, a nation in respect of the House of Representatives, and so it has remained, the Constitution providing that "no State can be deprived of its equal suffrage in the Senate without its consent," and, notwithstanding the fact that the Federalist LXIII., 476.

† Adams, 20.

* Story, 49.

population of some States has increased most enormously, whilst that of others has remained comparatively stationary, and that many contests in other matters have arisen between the different States, and between individual States and the Federation, no contest has arisen between the great States and the small ones as such. Another advantage is that this system strongly differentiates the members of the Senate from the members of the House of Representatives by the mode of their choice and character of their representation.

*The population of New York in 1880 was 5,082,871, of Rhode Island 276,531, they both send two representatives to the Senate. Some of the Western States have still smaller populations. Montana was admitted as a State when its population was 39,157, but that was because it was considered certain to rapidly increase.

CHAPTER III.

COMPOSITION OF THE UPPER HOUSE.

"In the United States the Constitution provides that the Senate of United States. the United States shall be composed of two (2) Senators from each State chosen by the Legislature thereof,' and that the times, places, and manner of holding elections for Senators shall be prescribed in each State by the Legislature thereof, but that Congress may at any time by law make or alter such regulations except as to the place of choosing Senators.'

Concerning these two clauses, Kent remarks: The election of the Senate by the States Legislatures is also a recognition of their (the States) separate and independent existence, and renders them absolutely essential to the operation of the National Government. There were difficulties some years ago as to the true construction of the Constitution in the choice of Senators. They were to be chosen by the States Legislatures, and the Legislatures were to prescribe the times, places, and manner for holding elections for Senators, and Congress was authorised to make and alter such regulations, except as to place. As the Legislature may prescribe the manner, it has been considered and settled in New York that the Legislature may prescribe that they shall be chosen by joint vote or ballot of the two Houses, in case the two Houses cannot separately concur in a choice, and then the weight of the Senate is lost and dissipated in the more numerous vote of the Assembly. This construction has become too convenient, and has been too long settled by the recognition of Senators so elected to be now disturbed, though I should think, if the question were a new one, that when the Constitution directed that the Senators should be chosen by the Legislature, it meant not the members of the Legislature per capita, but the Legislature in the true technical sense, being the two Houses acting in their separate and organised capacities with the ordinary Constitutional right of negation on each other's proceedings. This was a contemporary exposition of the clause in question, and was particularly mentioned in the well-known letters of the Federal Farmer, who surveyed the Constitution with a jealous and scrutinising eye.'

The term of office of Senators of the United States is six years but this is limited by an intermediate change in the personality of the Senate as a body. This results from the provisions of Sub-Sec. (2), Sec. 3, Article I of the Constitution which enacts that :

"Immediately after they shall be assembled, in consequence of the first election, they shall be divided as equally as may be into three classes. The seats of the Senators of the first class shall be vacated at the expiration of the second year, of the second class at the expiration of the fourth year, and of the third class at the expiration of the sixth year, so that one-third may be chosen every second year."

No person can be a Senator unless he is thirty years old, has been nine years a citizen of the United States, and is, when elected, an inhabitant of the State which chooses him.

*R. C. Baker: "Manual for use of Convention of 1891," p. 65.

Switzerland.

Canada.

"The Congress shall assemble at least once in every year, and such meeting shall be on the first Monday in December, unless they shall by law appoint a different day. [Sub-sec. (2), Section 4, Article I., Constitution of United States.]"

"The Upper House of the Swiss Federal Assembly [known as the Council of the States] is composed of 44 deputies. Each Canton is equally represented and returns two members. . . In the three cases where Cantons have been split into two, each half Canton returns but one member. . . . . The mode of election of the deputies is determined absolutely by each Canton. In most cases they are chosen by the legislative bodies, but in some by the people. The functions of the majority of these deputies last for a year .. others are chosen for three years like the deputies of the National Council, but the duration of their functions is left entirely in the hands of each Canton. . . . . The deputies are paid by their Cantons, except when they form part of Committees during a recess, and then they receive an allowance out of the Federal chest.'

The composition of the Canadian Upper House is governed by Secs. 21-36 and 147 of the British North America Act. Sec. 21 fixes the number of members at 72, but this is modified by Sec. 147 in case Newfoundland shall become a part of the Dominion.† The Act divides Canada into three divisions, Ontario, Quebec and the Maritime Provinces-i.e., Nova Scotia and New Brunswick. Each of these divisions is represented by 24 Senators. But additional Senators have been added with the adhesion to the Dominion of the Provinces of British Columbia, Manitoba, Prince Edward Island and the North-West Territories, and the total number of Senators is now 87. The qualifications of a Senator are that he shall be 30 years of age; a natural-born or naturalised subject of the Crown; possessed of freehold within the Province which he represents to the value of 4,000 dollars over and above all charges and encumbrances, and of personal property to the value of 4,000 dollars over and above his debts and liabilities; resident in the Province he represents. If that Province is Quebec he must have his real property qualification in the electoral division for which he is appointed or be resident within that division. The Governor-General nominates the members of the Senate, who hold office for life, but may resign by writing addressed to the GovernorGeneral. They also vacate their office if they fail to attend Parliament for two consecutive sessions; if they take an oath or make a declaration of adherence to, or do any act constituting them the subjects of a foreign power; if they are adjudged bankrupt or become public defaulters or apply for the benefit of any law relating to insolvent debtors; if they are attainted for treason or Adams: "The Swiss Confederation," p. 43.

† And vide also Part II, Chap. XVII., “Admission of New States." Vide Part II, Chap. XVI, "The States."

convicted of felony or any infamous crime; and if they cease to be qualified in respect of property or residence. The Governor-General may fill vacancies by nomination, and an attendance of fifteen, including the Speaker (who is appointed and may be removed by the Governor-General), constitutes a quorum. A majority of voices decides; the Speaker has a vote in all cases, and, when the voting is equal, has a casting vote.]

In Australia, the Senate of the Commonwealth is composed of six Australia. Senators for each State which was an original member of the Commonwealth and this number-as far as such original States are concerned cannot be diminished, nor can the equality of senatorial representation be affected. Subject to this, Parliament can make laws increasing or diminishing the number of Senators. The members of the Senate are to be "directly chosen by the people of the State, voting, until the Parliament otherwise provides, as one electorate." [Sec. 7 of the Constitution]. [A special provision is made by this section as to the method of election of the Senators representing Queensland.]

Messrs. Quick and Garran* emphasize very clearly the importance of direct election of Senators. They point out that in the draft Bill of 1891 the United States precedent was followed, and it was provided that the Senators of each State should be elected by the Houses of Parliament of that State; but that in the Convention which drafted the Constitution only a small minority were in favour of this method of election, while not a single member supported a nominated Senate on the Canadian lines.

Sec. 7 also provides that Senators shall be elected for a term of six years, their names being certified by the Governor of each State to the Governor-General. This is modified by Sec. 13, which enacts that " as soon as may be after the Senate first meets, and after each meeting of the Senate following a dissolution thereof, the Senate shall divide the Senators chosen for each State into two classes as nearly equal in numbers as practicable; and the places of the Senators of the first-class shall become vacant at the expiration of the third year, and the places of those of the second-class at the expiration of the sixth year, from the beginning of their term of service; and afterwards the places of Senators shall become vacant at the expiration of six years from the beginning of their term of service." [The "dissolution" referred to in this section is that provided for by Sec. 57, which is fully dealt with in chapter V.] The qualifications of a Senator are the same as those of a member of the House of Representatives. [Vide Chapter IV, "Composition of Lower House."] (Sec. 16.)

The qualification of electors of Senators are the same as those prescribed by the Constitution or by Parliament [acting in accordance with its power under the Constitution to alter the Federal franchise] as the qualification of electors of members of the House of Representatives. "But in the choosing of Senators each elector

*Ann. Const. Aust. Comm., p. 418.

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