THE FEDERALIST PAPERS
Concerning
the Power of Congress to Regulate the Election of Members
From the Independent Journal.
Saturday, February 23, 1788
HAMILTON
TABLE OF CONTENTS
To the People of the State of New York:
FEDERALIST No. 60
WE HAVE seen, that an uncontrollable power over the
elections to the federal government could not, without hazard, be committed to
the State legislatures. Let us now see, what would be the danger on the other
side; that is, from confiding the ultimate right of regulating its own
elections to the Union itself. It is not pretended, that this right would ever
be used for the exclusion of any State from its share in the representation.
The interest of all would, in this respect at least, be the security of all.
But it is alleged, that it might be employed in such a manner as to promote
the election of some favorite class of men in exclusion of others, by
confining the places of election to particular districts, and rendering it
impracticable to the citizens at large to partake in the choice. Of all
chimerical suppositions, this seems to be the most chimerical. On the one
hand, no rational calculation of probabilities would lead us to imagine that
the disposition which a conduct so violent and extraordinary would imply,
could ever find its way into the national councils; and on the other, it may
be concluded with certainty, that if so improper a spirit should ever gain
admittance into them, it would display itself in a form altogether different
and far more decisive.
2 The improbability of the attempt may be
satisfactorily inferred from this single reflection, that it could never be
made without causing an immediate revolt of the great body of the people,
headed and directed by the State governments. It is not difficult to conceive
that this characteristic right of freedom may, in certain turbulent and
factious seasons, be violated, in respect to a particular class of citizens,
by a victorious and overbearing majority; but that so fundamental a privilege,
in a country so situated and enlightened, should be invaded to the prejudice
of the great mass of the people, by the deliberate policy of the government,
without occasioning a popular revolution, is altogether inconceivable and
incredible.
3 In addition to this general reflection, there are
considerations of a more precise nature, which forbid all apprehension on the
subject. The dissimilarity in the ingredients which will compose the national
government, and Õstill more in the manner in which they will be brought into
action in its various branches, must form a powerful obstacle to a concert of
views in any partial scheme of elections. There is sufficient diversity in the
state of property, in the genius, manners, and habits of the people of the
different parts of the Union, to occasion a material diversity of disposition
in their representatives towards the different ranks and conditions in
society. And though an intimate intercourse under the same government will
promote a gradual assimilation in some of these respects, yet there are
causes, as well physical as moral, which may, in a greater or less degree,
permanently nourish different propensities and inclinations in this respect.
But the circumstance which will be likely to have the greatest influence in
the matter, will be the dissimilar modes of constituting the several component
parts of the government. The House of Representatives being to be elected
immediately by the people, the Senate by the State legislatures, the President
by electors chosen for that purpose by the people, there would be little
probability of a common interest to cement these different branches in a
predilection for any particular class of electors.
4 As to the Senate, it is impossible that any
regulation of "time and manner," which is all that is proposed to be
submitted to the national government in respect to that body, can affect the
spirit which will direct the choice of its members. The collective sense of
the State legislatures can never be influenced by extraneous circumstances of
that sort; a consideration which alone ought to satisfy us that the
discrimination apprehended would never be attempted. For what inducement could
the Senate have to concur in a preference in which itself would not be
included? Or to what purpose would it be established, in reference to one
branch of the legislature, if it could not be extended to the other? The
composition of the one would in this case counteract that of the other. And we
can never suppose that it would embrace the appointments to the Senate, unless
we can at the same time suppose the voluntary co-operation of the State
legislatures. If we make the latter supposition, it then becomes immaterial
where the power in question is placed -- whether in their hands or in those of
the Union.
5 But what is to be the object of this capricious
partiality in the national councils? Is it to be exercised in a discrimination
between the different departments of industry, or between the different kinds
of property, or between the different degrees of property? Will it lean in
favor of the landed interest, or the moneyed interest, or the mercantile
interest, or the manufacturing interest? Or, to speak in the fashionable
language of the adversaries to the Constitution, will it court the elevation
of "the wealthy and the well-born," to the exclusion and debasement
of all the rest of the society?
6 If this partiality is to be exerted in favor of those
who are concerned in any particular description of industry or property, I
presume it will readily be admitted, that the competition for it will lie
between landed men and merchants. And I scruple not to affirm, that it is
infinitely less likely that either of them should gain an ascendant in the
national councils, than that the one or the other of them should predominate
in all the local councils. The inference will be, that a conduct tending to
give an undue preference to either is much less to be dreaded from the former
than from the latter.
7 The several States are in various degrees addicted to
agriculture and commerce. In most, if not all of them, agriculture is
predominant. In a few of them, however, commerce nearly divides its empire,
and in most of them has a considerable share of influence. In proportion as
either prevails, it will be conveyed into the national representation; and for
the very reason, that this will be an emanation from a greater variety of
interests, and in much more various proportions, than are to be found in any
single State, it will be much less apt to espouse either of them with a
decided partiality, than the representation of any single State.
8 In a country consisting chiefly of the cultivators of
land, where the rules of an equal representation obtain, the landed interest
must, upon the whole, preponderate in the government. As long as this interest
prevails in most of the State legislatures, so long it must maintain a
correspondent superiority in the national Senate, which will generally be a
faithful copy of the majorities of those assemblies. It cannot therefore be
presumed, that a sacrifice of the landed to the mercantile class will ever be
a favorite object of this branch of the federal legislature. In applying thus
particularly to the Senate a general observation suggested by the situation of
the country, I am governed by the consideration, that the credulous votaries
of State power cannot, upon their own principles, suspect, that the State
legislatures would be warped from their duty by any external influence. But in
reality the same situation must have the same effect, in the primative
composition at least of the federal House of Representatives: an improper bias
towards the mercantile class is as little to be expected from this quarter as
from the other.
9 In order, perhaps, to give countenance to the
objection at any rate, it may be asked, is there not danger of an opposite
bias in the national government, which may dispose it to endeavor to secure a
monopoly of the federal administration to the landed class? As there is little
likelihood that the supposition of such a bias will have any terrors for those
who would be immediately injured by it, a labored answer to this question will
be dispensed with. It will be sufficient to remark, first, that for the
reasons elsewhere assigned, it is less likely that any decided partiality
should prevail in the councils of the Union than in those of any of its
members. Secondly, that there would be no temptation to violate the
Constitution in favor of the landed class, because that class would, in the
natural course of things, enjoy as great a preponderancy as itself could
desire. And thirdly, that men accustomed to investigate the sources of public
prosperity upon a large scale, must be too well convinced of the utility of
commerce, to be inclined to inflict upon it so deep a wound as would result
from the entire exclusion of those who would best understand its interest from
a share in the management of them. The importance of commerce, in the view of
revenue alone, must effectually guard it against the enmity of a body which
would be continually importuned in its favor, by the urgent calls of public
necessity.
10 I the rather consult brevity in discussing the
probability of a preference founded upon a discrimination between the
different kinds of industry and property, because, as far as I understand the
meaning of the objectors, they contemplate a discrimination of another kind.
They appear to have in view, as the objects of the preference with which they
endeavor to alarm us, those whom they designate by the description of
"the wealthy and the well-born." These, it seems, are to be exalted
to an odious pre-eminence over the rest of their fellow-citizens. At one time,
however, their elevation is to be a necessary consequence of the smallness of
the representative body; at another time it is to be effected by depriving the
people at large of the opportunity of exercising their right of suffrage in
the choice of that body.
11 But upon what principle is the discrimination of the
places of election to be made, in order to answer the purpose of the meditated
preference? Are "the wealthy and the well-born," as they are called,
confined to particular spots in the several States? Have they, by some
miraculous instinct or foresight, set apart in each of them a common place of
residence? Are they only to be met with in the towns or cities? Or are they,
on the contrary, scattered over the face of the country as avarice or chance
may have happened to cast their own lot or that of their predecessors? If the
latter is the case, (as every intelligent man knows it to be,[1]) is it not
evident that the policy of confining the places of election to particular
districts would be as subversive of its own aim as it would be exceptionable
on every other account? The truth is, that there is no method of securing to
the rich the preference apprehended, but by prescribing qualifications of
property either for those who may elect or be elected. But this forms no part
of the power to be conferred upon the national government. Its authority would
be expressly restricted to the regulation of the TIMES, the PLACES, the MANNER
of elections. The qualifications of the persons who may choose or be chosen,
as has been remarked upon other occasions, are defined and fixed in the
Constitution, and are unalterable by the legislature.
12 Let it, however, be admitted, for argument sake, that
the expedient suggested might be successful; and let it at the same time be
equally taken for granted that all the scruples which a sense of duty or an
apprehension of the danger of the experiment might inspire, were overcome in
the breasts of the national rulers, still I imagine it will hardly be
pretended that they could ever hope to carry such an enterprise into execution
without the aid of a military force sufficient to subdue the resistance of the
great body of the people. The improbability of the existence of a force equal
to that object has been discussed and demonstrated in different parts of these
papers; but that the futility of the objection under consideration may appear
in the strongest light, it shall be conceded for a moment that such a force
might exist, and the national government shall be supposed to be in the actual
possession of it. What will be the conclusion? With a disposition to invade
the essential rights of the community, and with the means of gratifying that
disposition, is it presumable that the persons who were actuated by it would
amuse themselves in the ridiculous task of fabricating election laws for
securing a preference to a favorite class of men? Would they not be likely to
prefer a conduct better adapted to their own immediate aggrandizement? Would
they not rather boldly resolve to perpetuate themselves in office by one
decisive act of usurpation, than to trust to precarious expedients which, in
spite of all the precautions that might accompany them, might terminate in the
dismission, disgrace, and ruin of their authors? Would they not fear that
citizens, not less tenacious than conscious of their rights, would flock from
the remote extremes of their respective States to the places of election, to
voerthrow their tyrants, and to substitute men who would be disposed to avenge
the violated majesty of the people?
PUBLIUS
1. Particularly in the Southern States and in this
State.
FEDERALIST No. 61
The Same Subject Continued (Concerning
the Power of Congress to Regulate the Election of Members)
From the New York Packet.
Tuesday, February 26, 1788.
HAMILTON
To the People of the State of New York:
THE more candid opposers of the provision respecting
elections, contained in the plan of the convention, when pressed in argument,
will sometimes concede the propriety of that provision; with this
qualification, however, that it ought to have been accompanied with a
declaration, that all elections should be had in the counties where the
electors resided. This, say they, was a necessary precaution against an abuse
of the power. A declaration of this nature would certainly have been harmless;
so far as it would have had the effect of quieting apprehensions, it might not
have been undesirable. But it would, in fact, have afforded little or no
additional security against the danger apprehended; and the want of it will
never be considered, by an impartial and judicious examiner, as a serious,
still less as an insuperable, objection to the plan. The different views taken
of the subject in the two preceding papers must be sufficient to satisfy all
dispassionate and discerning men, that if the public liberty should ever be
the victim of the ambition of the national rulers, the power under
examination, at least, will be guiltless of the sacrifice.
2 If those who are inclined to consult their jealousy
only, would exercise it in a careful inspection of the several State
constitutions, they would find little less room for disquietude and alarm,
from the latitude which most of them allow in respect to elections, than from
the latitude which is proposed to be allowed to the national government in the
same respect. A review of their situation, in this particular, would tend
greatly to remove any ill impressions which may remain in regard to this
matter. But as that view would lead into long and tedious details, I shall
content myself with the single example of the State in which I write. The
constitution of New York makes no other provision for LOCALITY of elections,
than that the members of the Assembly shall be elected in the COUNTIES; those
of the Senate, in the great districts into which the State is or may be
divided: these at present are four in number, and comprehend each from two to
six counties. It may readily be perceived that it would not be more difficult
to the legislature of New York to defeat the suffrages of the citizens of New
York, by confining elections to particular places, than for the legislature of
the United States to defeat the suffrages of the citizens of the Union, by the
like expedient. Suppose, for instance, the city of Albany was to be appointed
the sole place of election for the county and district of which it is a part,
would not the inhabitants of that city speedily become the only electors of
the members both of the Senate and Assembly for that county and district? Can
we imagine that the electors who reside in the remote subdivisions of the
counties of Albany, Saratoga, Cambridge, etc., or in any part of the county of
Montgomery, would take the trouble to come to the city of Albany, to give
their votes for members of the Assembly or Senate, sooner than they would
repair to the city of New York, to participate in the choice of the members of
the federal House of Representatives? The alarming indifference discoverable
in the exercise of so invaluable a privilege under the existing laws, which
afford every facility to it, furnishes a ready answer to this question. And,
abstracted from any experience on the subject, we can be at no loss to
determine, that when the place of election is at an INCONVENIENT DISTANCE from
the elector, the effect upon his conduct will be the same whether that
distance be twenty miles or twenty thousand miles. Hence it must appear, that
objections to the particular modification of the federal power of regulating
elections will, in substance, apply with equal force to the modification of
the like power in the constitution of this State; and for this reason it will
be impossible to acquit the one, and to condemn the other. A similar
comparison would lead to the same conclusion in respect to the constitutions
of most of the other States.
If it should be said that defects in the State
constitutions furnish no apology for those which are to be found in the plan
proposed, I answer, that as the former have never been thought chargeable with
inattention to the security of liberty, where the imputations thrown on the
latter can be shown to be applicable to them also, the presumption is that
they are rather the cavilling refinements of a predetermined opposition, than
the well-founded inferences of a candid research after truth. To those who are
disposed to consider, as innocent omissions in the State constitutions, what
they regard as unpardonable blemishes in the plan of the convention, nothing
can be said; or at most, they can only be asked to assign some substantial
reason why the representatives of the people in a single State should be more
impregnable to the lust of power, or other sinister motives, than the
representatives of the people of the United States? If they cannot do this,
they ought at least to prove to us that it is easier to subvert the liberties
of three millions of people, with the advantage of local governments to head
their opposition, than of two hundred thousand people who are destitute of
that advantage. And in relation to the point immediately under consideration,
they ought to convince us that it is less probable that a predominant faction
in a single State should, in order to maintain its superiority, incline to a
preference of a particular class of electors, than that a similar spirit
should take possession of the representatives of thirteen States, spread over
a vast region, and in several respects distinguishable from each other by a
diversity of local circumstances, prejudices, and interests.
3 Hitherto my observations have only aimed at a
vindication of the provision in question, on the ground of theoretic
propriety, on that of the danger of placing the power elsewhere, and on that
of the safety of placing it in the manner proposed. But there remains to be
mentioned a positive advantage which will result from this disposition, and
which could not as well have been obtained from any other: I allude to the
circumstance of uniformity in the time of elections for the federal House of
Representatives. It is more than possible that this uniformity may be found by
experience to be of great importance to the public welfare, both as a security
against the perpetuation of the same spirit in the body, and as a cure for the
diseases of faction. If each State may choose its own time of election, it is
possible there may be at least as many different periods as there are months
in the year. The times of election in the several States, as they are now
established for local purposes, vary between extremes as wide as March and
November. The consequence of this diversity would be that there could never
happen a total dissolution or renovation of the body at one time. If an
improper spirit of any kind should happen to prevail in it, that spirit would
be apt to infuse itself into the new members, as they come forward in
succession. The mass would be likely to remain nearly the same, assimilating
constantly to itself its gradual accretions. There is a contagion in example
which few men have sufficient force of mind to resist. I am inclined to think
that treble the duration in office, with the condition of a total dissolution
of the body at the same time, might be less formidable to liberty than one
third of that duration subject to gradual and successive alterations.
4 Uniformity in the time of elections seems not less
requisite for executing the idea of a regular rotation in the Senate, and for
conveniently assembling the legislature at a stated period in each year.
5 It may be asked, Why, then, could not a time have
been fixed in the Constitution? As the most zealous adversaries of the plan of
the convention in this State are, in general, not less zealous admirers of the
constitution of the State, the question may be retorted, and it may be asked,
Why was not a time for the like purpose fixed in the constitution of this
State? No better answer can be given than that it was a matter which might
safely be entrusted to legislative discretion; and that if a time had been
appointed, it might, upon experiment, have been found less convenient than
some other time. The same answer may be given to the question put on the other
side. And it may be added that the supposed danger of a gradual change being
merely speculative, it would have been hardly advisable upon that speculation
to establish, as a fundamental point, what would deprive several States of the
convenience of having the elections for their own governments and for the
national government at the same epochs.
PUBLIUS
FEDERALIST No. 62
The Senate For the Independent
Journal.
Wednesday, February 27, 1788
MADISON
To the People of the State of New York:
HAVING examined the constitution of the House of
Representatives, and answered such of the objections against it as seemed to
merit notice, I enter next on the examination of the Senate. The heads into
which this member of the government may be considered are: I. The
qualification of senators; II. The appointment of them by the State
legislatures; III. The equality of representation in the Senate; IV. The
number of senators, and the term for which they are to be elected; V. The
powers vested in the Senate.
I. The qualifications proposed for senators, as
distinguished from those of representatives, consist in a more advanced age
and a longer period of citizenship. A senator must be thirty years of age at
least; as a representative must be twenty-five. And the former must have been
a citizen nine years; as seven years are required for the latter. The
propriety of these distinctions is explained by the nature of the senatorial
trust, which, requiring greater extent of information and tability of
character, requires at the same time that the senator should have reached a
period of life most likely to supply these advantages; and which,
participating immediately in transactions with foreign nations, ought to be
exercised by none who are not thoroughly weaned from the prepossessions and
habits incident to foreign birth and education. The term of nine years appears
to be a prudent mediocrity between a total exclusion of adopted citizens,
whose merits and talents may claim a share in the public confidence, and an
indiscriminate and hasty admission of them, which might create a channel for
foreign influence on the national councils.
II. It is equally unnecessary to dilate on the
appointment of senators by the State legislatures. Among the various modes
which might have been devised for constituting this branch of the government,
that which has been proposed by the convention is probably the most congenial
with the public opinion. It is recommended by the double advantage of favoring
a select appointment, and of giving to the State governments such an agency in
the formation of the federal government as must secure the authority of the
former, and may form a convenient link between the two systems.
III. The equality of representation in the Senate is
another point, which, being evidently the result of compromise between the
opposite pretensions of the large and the small States, does not call for much
discussion. If indeed it be right, that among a people thoroughly incorporated
into one nation, every district ought to have a PROPORTIONAL share in the
government, and that among independent and sovereign States, bound together by
a simple league, the parties, however unequal in size, ought to have an EQUAL
share in the common councils, it does not appear to be without some reason
that in a compound republic, partaking both of the national and federal
character, the government ought to be founded on a mixture of the principles
of proportional and equal representation. But it is superfluous to try, by the
standard of theory, a part of the Constitution which is allowed on all hands
to be the result, not of theory, but "of a spirit of amity, and that
mutual deference and concession which the peculiarity of our political
situation rendered indispensable." A common government, with powers equal
to its objects, is called for by the voice, and still more loudly by the
political situation, of America. A government founded on principles more
consonant to the wishes of the larger States, is not likely to be obtained
from the smaller States. The only option, then, for the former, lies between
the proposed government and a government still more objectionable. Under this
alternative, the advice of prudence must be to embrace the lesser evil; and,
instead of indulging a fruitless anticipation of the possible mischiefs which
may ensue, to contemplate rather the advantageous consequences which may
qualify the sacrifice.
2 In this spirit it may be remarked, that the equal
vote allowed to each State is at once a constitutional recognition of the
portion of sovereignty remaining in the individual States, and an instrument
for preserving that residuary sovereignty. So far the equality ought to be no
less acceptable to the large than to the small States; since they are not less
solicitous to guard, by every possible expedient, against an improper
consolidation of the States into one simple republic.
3 Another advantage accruing from this ingredient in
the constitution of the Senate is, the additional impediment it must prove
against improper acts of legislation. No law or resolution can now be passed
without the concurrence, first, of a majority of the people, and then, of a
majority of the States. It must be acknowledged that this complicated check on
legislation may in some instances be injurious as well as beneficial; and that
the peculiar defense which it involves in favor of the smaller States, would
be more rational, if any interests common to them, and distinct from those of
the other States, would otherwise be exposed to peculiar danger. But as the
larger States will always be able, by their power over the supplies, to defeat
unreasonable exertions of this prerogative of the lesser States, and as the
faculty and excess of law-making seem to be the diseases to which our
governments are most liable, it is not impossible that this part of the
Constitution may be more convenient in practice than it appears to many in
contemplation.
IV. The number of senators, and the duration of their
appointment, come next to be considered. In order to form an accurate judgment
on both of these points, it will be proper to inquire into the purposes which
are to be answered by a senate; and in order to ascertain these, it will be
necessary to review the inconveniences which a republic must suffer from the
want of such an institution.
4 First. It is a misfortune incident to republican
government, though in a less degree than to other governments, that those who
administer it may forget their obligations to their constituents, and prove
unfaithful to their important trust. In this point of view, a senate, as a
second branch of the legislative assembly, distinct from, and dividing the
power with, a first, must be in all cases a salutary check on the government.
It doubles the security to the people, by requiring the concurrence of two
distinct bodies in schemes of usurpation or perfidy, where the ambition or
corruption of one would otherwise be sufficient. This is a precaution founded
on such clear principles, and now so well understood in the United States,
that it would be more than superfluous to enlarge on it. I will barely remark,
that as the improbability of sinister combinations will be in proportion to
the dissimilarity in the genius of the two bodies, it must be politic to
distinguish them from each other by every circumstance which will consist with
a due harmony in all proper measures, and with the genuine principles of
republican government.
5 Second. The necessity of a senate is not less
indicated by the propensity of all single and numerous assemblies to yield to
the impulse of sudden and violent passions, and to be seduced by factious
leaders into intemperate and pernicious resolutions. Examples on this subject
might be cited without number; and from proceedings within the United States,
as well as from the history of other nations. But a position that will not be
contradicted, need not be proved. All that need be remarked is, that a body
which is to correct this infirmity ought itself to be free from it, and
consequently ought to be less numerous. It ought, moreover, to possess great
firmness, and consequently ought to hold its authority by a tenure of
considerable duration.
6 Third. Another defect to be supplied by a senate lies
in a want of due acquaintance with the objects and principles of legislation.
It is not possible that an assembly of men called for the most part from
pursuits of a private nature, continued in appointment for a short time, and
led by no permanent motive to devote the intervals of public occupation to a
study of the laws, the affairs, and the comprehensive interests of their
country, should, if left wholly to themselves, escape a variety of important
errors in the exercise of their legislative trust. It may be affirmed, on the
best grounds, that no small share of the present embarrassments of America is
to be charged on the blunders of our governments; and that these have
proceeded from the heads rather than the hearts of most of the authors of
them. What indeed are all the repealing, explaining, and amending laws, which
fill and disgrace our voluminous codes, but so many monuments of deficient
wisdom; so many impeachments exhibited by each succeeding against each
preceding session; so many admonitions to the people, of the value of those
aids which may be expected from a well-constituted senate?
7 A good government implies two things: first, fidelity
to the object of government, which is the happiness of the people; secondly, a
knowledge of the means by which that object can be best attained. Some
governments are deficient in both these qualities; most governments are
deficient in the first. I scruple not to assert, that in American governments
too little attention has been paid to the last. The federal Constitution
avoids this error; and what merits particular notice, it provides for the last
in a mode which increases the security for the first.
8 Fourth. The mutability in the public councils arising
from a rapid succession of new members, however qualified they may be, points
out, in the strongest manner, the necessity of some stable institution in the
government. Every new election in the States is found to change one half of
the representatives. From this change of men must proceed a change of
opinions; and from a change of opinions, a change of measures. But a continual
change even of good measures is inconsistent with every rule of prudence and
every prospect of success. The remark is verified in private life, and becomes
more just, as well as more important, in national transactions.
9 To trace the mischievous effects of a mutable
government would fill a volume. I will hint a few only, each of which will be
perceived to be a source of innumerable others.
10 In the first place, it forfeits the respect and
confidence of other nations, and all the advantages connected with national
character. An individual who is observed to be inconstant to his plans, or
perhaps to carry on his affairs without any plan at all, is marked at once, by
all prudent people, as a speedy victim to his own unsteadiness and folly. His
more friendly neighbors may pity him, but all will decline to connect their
fortunes with his; and not a few will seize the opportunity of making their
fortunes out of his. One nation is to another what one individual is to
another; with this melancholy distinction perhaps, that the former, with fewer
of the benevolent emotions than the latter, are under fewer restraints also
from taking undue advantage from the indiscretions of each other. Every
nation, consequently, whose affairs betray a want of wisdom and stability, may
calculate on every loss which can be sustained from the more systematic policy
of their wiser neighbors. But the best instruction on this subject is
unhappily conveyed to America by the example of her own situation. She finds
that she is held in no respect by her friends; that she is the derision of her
enemies; and that she is a prey to every nation which has an interest in
speculating on her fluctuating councils and embarrassed affairs.
11 The internal effects of a mutable policy are still
more calamitous. It poisons the blessing of liberty itself. It will be of
little avail to the people, that the laws are made by men of their own choice,
if the laws be so voluminous that they cannot be read, or so incoherent that
they cannot be understood; if they be repealed or revised before they are
promulgated, or undergo such incessant changes that no man, who knows what the
law is to-day, can guess what it will be to-morrow. Law is defined to be a
rule of action; but how can that be a rule, which is little known, and less
fixed?
12 Another effect of public instability is the
unreasonable advantage it gives to the sagacious, the enterprising, and the
moneyed few over the industrious and uniformed mass of the people. Every new
regulation concerning commerce or revenue, or in any way affecting the value
of the different species of property, presents a new harvest to those who
watch the change, and can trace its consequences; a harvest, reared not by
themselves, but by the toils and cares of the great body of their
fellow-citizens. This is a state of things in which it may be said with some
truth that laws are made for the FEW, not for the MANY.
13 In another point of view, great injury results from
an unstable government. The want of confidence in the public councils damps
every useful undertaking, the success and profit of which may depend on a
continuance of existing arrangements. What prudent merchant will hazard his
fortunes in any new branch of commerce when he knows not but that his plans
may be rendered unlawful before they can be executed? What farmer or
manufacturer will lay himself out for the encouragement given to any
particular cultivation or establishment, when he can have no assurance that
his preparatory labors and advances will not render him a victim to an
inconstant government? In a word, no great improvement or laudable enterprise
can go forward which requires the auspices of a steady system of national
policy.
14 But the most deplorable effect of all is that
diminution of attachment and reverence which steals into the hearts of the
people, towards a political system which betrays so many marks of infirmity,
and disappoints so many of their flattering hopes. No government, any more
than an individual, will long be respected without being truly respectable;
nor be truly respectable, without possessing a certain portion of order and
stability.
PUBLIUS
FEDERALIST No. 63
The Senate Continued For the
Independent Journal.
Saturday, March 1, 1788
MADISON
To the People of the State of New York:
A FIFTH desideratum, illustrating the utility of a
senate, is the want of a due sense of national character. Without a select and
stable member of the government, the esteem of foreign powers will not only be
forfeited by an unenlightened and variable policy, proceeding from the causes
already mentioned, but the national councils will not possess that sensibility
to the opinion of the world, which is perhaps not less necessary in order to
merit, than it is to obtain, its respect and confidence.
2 An attention to the judgment of other nations is
important to every government for two reasons: the one is, that, independently
of the merits of any particular plan or measure, it is desirable, on various
accounts, that it should appear to other nations as the offspring of a wise
and honorable policy; the second is, that in doubtful cases, particularly
where the national councils may be warped by some strong passion or momentary
interest, the presumed or known opinion of the impartial world may be the best
guide that can be followed. What has not America lost by her want of character
with foreign nations; and how many errors and follies would she not have
avoided, if the justice and propriety of her measures had, in every instance,
been previously tried by the light in which they would probably appear to the
unbiased part of mankind?
3 Yet however requisite a sense of national character
may be, it is evident that it can never be sufficiently possessed by a
numerous and changeable body. It can only be found in a number so small that a
sensible degree of the praise and blame of public measures may be the portion
of each individual; or in an assembly so durably invested with public trust,
that the pride and consequence of its members may be sensibly incorporated
with the reputation and prosperity of the community. The half-yearly
representatives of Rhode Island would probably have been little affected in
their deliberations on the iniquitous measures of that State, by arguments
drawn from the light in which such measures would be viewed by foreign
nations, or even by the sister States; whilst it can scarcely be doubted that
if the concurrence of a select and stable body had been necessary, a regard to
national character alone would have prevented the calamities under which that
misguided people is now laboring.
4 I add, as a SIXTH defect the want, in some important
cases, of a due responsibility in the government to the people, arising from
that frequency of elections which in other cases produces this responsibility.
This remark will, perhaps, appear not only new, but paradoxical. It must
nevertheless be acknowledged, when explained, to be as undeniable as it is
important.
5 Responsibility, in order to be reasonable, must be
limited to objects within the power of the responsible party, and in order to
be effectual, must relate to operations of that power, of which a ready and
proper judgment can be formed by the constituents. The objects of government
may be divided into two general classes: the one depending on measures which
have singly an immediate and sensible operation; the other depending on a
succession of well-chosen and well-connected measures, which have a gradual
and perhaps unobserved operation. The importance of the latter description to
the collective and permanent welfare of every country, needs no explanation.
And yet it is evident that an assembly elected for so short a term as to be
unable to provide more than one or two links in a chain of measures, on which
the general welfare may essentially depend, ought not to be answerable for the
final result, any more than a steward or tenant, engaged for one year, could
be justly made to answer for places or improvements which could not be
accomplished in less than half a dozen years. Nor is it possible for the
people to estimate the SHARE of influence which their annual assemblies may
respectively have on events resulting from the mixed transactions of several
years. It is sufficiently difficult to preserve a personal responsibility in
the members of a NUMEROUS body, for such acts of the body as have an
immediate, detached, and palpable operation on its constituents.
6 The proper remedy for this defect must be an
additional body in the legislative department, which, having sufficient
permanency to provide for such objects as require a continued attention, and a
train of measures, may be justly and effectually answerable for the attainment
of those objects.
7 Thus far I have considered the circumstances which
point out the necessity of a well-constructed Senate only as they relate to
the representatives of the people. To a people as little blinded by prejudice
or corrupted by flattery as those whom I address, I shall not scruple to add,
that such an institution may be sometimes necessary as a defense to the people
against their own temporary errors and delusions. As the cool and deliberate
sense of the community ought, in all governments, and actually will, in all
free governments, ultimately 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 misled by the artful
misrepresentations of interested men, may call for measures which they
themselves will afterwards be the most ready to lament and condemn. In these
critical moments, 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? What
bitter anguish would not the people of Athens have often escaped if their
government had contained so provident a safeguard against the tyranny of their
own passions? Popular liberty might then have escaped the indelible reproach
of decreeing to the same citizens the hemlock on one day and statues on the
next.
8 It may be suggested, that a people spread over an
extensive region cannot, like the crowded inhabitants of a small district, be
subject to the infection of violent passions, or to the danger of combining in
pursuit of unjust measures. I am far from denying that this is a distinction
of peculiar importance. I have, on the contrary, endeavored in a former paper
to show, that it is one of the principal recommendations of a confederated
republic. At the same time, this advantage ought not to be considered as
superseding the use of auxiliary precautions. It may even be remarked, that
the same extended situation, which will exempt the people of America from some
of the dangers incident to lesser republics, will expose them to the
inconveniency of remaining for a longer time under the influence of those
misrepresentations which the combined industry of interested men may succeed
in distributing among them.
9 It adds no small weight to all these considerations,
to recollect that history informs us of no long-lived republic which had not a
senate. Sparta, Rome, and Carthage are, in fact, the only states to whom that
character can be applied. In each of the two first there was a senate for
life. The constitution of the senate in the last is less known. Circumstantial
evidence makes it probable that it was not different in this particular from
the two others. It is at least certain, that it had some quality or other
which rendered it an anchor against popular fluctuations; and that a smaller
council, drawn out of the senate, was appointed not only for life, but filled
up vacancies itself. These examples, though as unfit for the imitation, as
they are repugnant to the genius, of America, are, notwithstanding, when
compared with the fugitive and turbulent existence of other ancient republics,
very instructive proofs of the necessity of some institution that will blend
stability with liberty. I am not unaware of the circumstances which
distinguish the American from other popular governments, as well ancient as
modern; and which render extreme circumspection necessary, in reasoning from
the one case to the other. But after allowing due weight to this
consideration, it may still be maintained, that there are many points of
similitude which render these examples not unworthy of our attention. Many of
the defects, as we have seen, which can only be supplied by a senatorial
institution, are common to a numerous assembly frequently elected by the
people, and to the people themselves. There are others peculiar to the former,
which require the control of such an institution. The people can never
wilfully betray their own interests; but they may possibly be betrayed by the
representatives of the people; and the danger will be evidently greater where
the whole legislative trust is lodged in the hands of one body of men, than
where the concurrence of separate and dissimilar bodies is required in every
public act.
10 The difference most relied on, between the American
and other republics, consists in the principle of representation; which is the
pivot on which the former move, and which is supposed to have been unknown to
the latter, or at least to the ancient part of them. The use which has been
made of this difference, in reasonings contained in former papers, will have
shown that I am disposed neither to deny its existence nor to undervalue its
importance. I feel the less restraint, therefore, in observing, that the
position concerning the ignorance of the ancient governments on the subject of
representation, is by no means precisely true in the latitude commonly given
to it. Without entering into a disquisition which here would be misplaced, I
will refer to a few known facts, in support of what I advance.
11 In the most pure democracies of Greece, many of the
executive functions were performed, not by the people themselves, but by
officers elected by the people, and REPRESENTING the people in their EXECUTIVE
capacity.
12 Prior to the reform of Solon, Athens was governed by
nine Archons, annually ELECTED BY THE PEOPLE AT LARGE. The degree of power
delegated to them seems to be left in great obscurity. Subsequent to that
period, we find an assembly, first of four, and afterwards of six hundred
members, annually ELECTED BY THE PEOPLE; and PARTIALLY representing them in
their LEGISLATIVE capacity, since they were not only associated with the
people in the function of making laws, but had the exclusive right of
originating legislative propositions to the people. The senate of Carthage,
also, whatever might be its power, or the duration of its appointment, appears
to have been ELECTIVE by the suffrages of the people. Similar instances might
be traced in most, if not all the popular governments of antiquity.
13 Lastly, in Sparta we meet with the Ephori, and in
Rome with the Tribunes; two bodies, small indeed in numbers, but annually
ELECTED BY THE WHOLE BODY OF THE PEOPLE, and considered as the REPRESENTATIVES
of the people, almost in their PLENIPOTENTIARY capacity. The Cosmi of Crete
were also annually ELECTED BY THE PEOPLE, and have been considered by some
authors as an institution analogous to those of Sparta and Rome, with this
difference only, that in the election of that representative body the right of
suffrage was communicated to a part only of the people.
14 From these facts, to which many others might be
added, it is clear that the principle of representation was neither unknown to
the ancients nor wholly overlooked in their political constitutions. The true
distinction between these and the American governments, lies IN THE TOTAL
EXCLUSION OF THE PEOPLE, IN THEIR COLLECTIVE CAPACITY, from any share in the
LATTER, and not in the TOTAL EXCLUSION OF THE REPRESENTATIVES OF THE PEOPLE
from the administration of the FORMER. The distinction, however, thus
qualified, must be admitted to leave a most advantageous superiority in favor
of the United States. But to insure to this advantage its full effect, we must
be careful not to separate it from the other advantage, of an extensive
territory. For it cannot be believed, that any form of representative
government could have succeeded within the narrow limits occupied by the
democracies of Greece.
15 In answer to all these arguments, suggested by
reason, illustrated by examples, and enforced by our own experience, the
jealous adversary of the Constitution will probably content himself with
repeating, that a senate appointed not immediately by the people, and for the
term of six years, must gradually acquire a dangerous pre-eminence in the
government, and finally transform it into a tyrannical aristocracy.
16 To this general answer, the general reply ought to be
sufficient, that liberty may be endangered by the abuses of liberty as well as
by the abuses of power; that there are numerous instances of the former as
well as of the latter; and that the former, rather than the latter, are
apparently most to be apprehended by the United States. But a more particular
reply may be given.
17 Before such a revolution can be effected, the Senate,
it is to be observed, must in the first place corrupt itself; must next
corrupt the State legislatures; must then corrupt the House of
Representatives; and must finally corrupt the people at large. It is evident
that the Senate must be first corrupted before it can attempt an establishment
of tyranny. Without corrupting the State legislatures, it cannot prosecute the
attempt, because the periodical change of members would otherwise regenerate
the whole body. Without exerting the means of corruption with equal success on
the House of Representatives, the opposition of that coequal branch of the
government would inevitably defeat the attempt; and without corrupting the
people themselves, a succession of new representatives would speedily restore
all things to their pristine order. Is there any man who can seriously
persuade himself that the proposed Senate can, by any possible means within
the compass of human address, arrive at the object of a lawless ambition,
through all these obstructions?
18 If reason condemns the suspicion, the same sentence
is pronounced by experience. The constitution of Maryland furnishes the most
apposite example. The Senate of that State is elected, as the federal Senate
will be, indirectly by the people, and for a term less by one year only than
the federal Senate. It is distinguished, also, by the remarkable prerogative
of filling up its own vacancies within the term of its appointment, and, at
the same time, is not under the control of any such rotation as is provided
for the federal Senate. There are some other lesser distinctions, which would
expose the former to colorable objections, that do not lie against the latter.
If the federal Senate, therefore, really contained the danger which has been
so loudly proclaimed, some symptoms at least of a like danger ought by this
time to have been betrayed by the Senate of Maryland, but no such symptoms
have appeared. On the contrary, the jealousies at first entertained by men of
the same description with those who view with terror the correspondent part of
the federal Constitution, have been gradually extinguished by the progress of
the experiment; and the Maryland constitution is daily deriving, from the
salutary operation of this part of it, a reputation in which it will probably
not be rivalled by that of any State in the Union.
19 But if anything could silence the jealousies on this
subject, it ought to be the British example. The Senate there instead of being
elected for a term of six years, and of being unconfined to particular
families or fortunes, is an hereditary assembly of opulent nobles. The House
of Representatives, instead of being elected for two years, and by the whole
body of the people, is elected for seven years, and, in very great proportion,
by a very small proportion of the people. Here, unquestionably, ought to be
seen in full display the aristocratic usurpations and tyranny which are at
some future period to be exemplified in the United States. Unfortunately,
however, for the anti-federal argument, the British history informs us that
this hereditary assembly has not been able to defend itself against the
continual encroachments of the House of Representatives; and that it no sooner
lost the support of the monarch, than it was actually crushed by the weight of
the popular branch.
20 As far as antiquity can instruct us on this subject,
its examples support the reasoning which we have employed. In Sparta, the
Ephori, the annual representatives of the people, were found an overmatch for
the senate for life, continually gained on its authority and finally drew all
power into their own hands. The Tribunes of Rome, who were the representatives
of the people, prevailed, it is well known, in almost every contest with the
senate for life, and in the end gained the most complete triumph over it. The
fact is the more remarkable, as unanimity was required in every act of the
Tribunes, even after their number was augmented to ten. It proves the
irresistible force possessed by that branch of a free government, which has
the people on its side. To these examples might be added that of Carthage,
whose senate, according to the testimony of Polybius, instead of drawing all
power into its vortex, had, at the commencement of the second Punic War, lost
almost the whole of its original portion.
21 Besides the conclusive evidence resulting from this
assemblage of facts, that the federal Senate will never be able to transform
itself, by gradual usurpations, into an independent and aristocratic body, we
are warranted in believing, that if such a revolution should ever happen from
causes which the foresight of man cannot guard against, the House of
Representatives, with the people on their side, will at all times be able to
bring back the Constitution to its primitive form and principles. Against the
force of the immediate representatives of the people, nothing will be able to
maintain even the constitutional authority of the Senate, but such a display
of enlightened policy, and attachment to the public good, as will divide with
that branch of the legislature the affections and support of the entire body
of the people themselves.
PUBLIUS
FEDERALIST No. 64
The Powers of the Senate From the
Independent Journal.
Wednesday, March 5, 1788.
JAY
To the People of the State of New York:
IT IS a just and not a new observation, that enemies
to particular persons, and opponents to particular measures, seldom confine
their censures to such things only in either as are worthy of blame. Unless on
this principle, it is difficult to explain the motives of their conduct, who
condemn the proposed Constitution in the aggregate, and treat with severity
some of the most unexceptionable articles in it.
2 The second section gives power to the President,
"BY AND WITH THE ADVICE AND CONSENT OF THE SENATE, TO MAKE TREATIES,
PROVIDED TWO THIRDS OF THE SENATORS PRESENT CONCUR."
3 The power of making treaties is an important one,
especially as it relates to war, peace, and commerce; and it should not be
delegated but in such a mode, and with such precautions, as will afford the
highest security that it will be exercised by men the best qualified for the
purpose, and in the manner most conducive to the public good. The convention
appears to have been attentive to both these points: they have directed the
President to be chosen by select bodies of electors, to be deputed by the
people for that express purpose; and they have committed the appointment of
senators to the State legislatures. This mode has, in such cases, vastly the
advantage of elections by the people in their collective capacity, where the
activity of party zeal, taking the advantage of the supineness, the ignorance,
and the hopes and fears of the unwary and interested, often places men in
office by the votes of a small proportion of the electors.
4 As the select assemblies for choosing the President,
as well as the State legislatures who appoint the senators, will in general be
composed of the most enlightened and respectable citizens, there is reason to
presume that their attention and their votes will be directed to those men
only who have become the most distinguished by their abilities and virtue, and
in whom the people perceive just grounds for confidence. The Constitution
manifests very particular attention to this object. By excluding men under
thirty-five from the first office, and those under thirty from the second, it
confines the electors to men of whom the people have had time to form a
judgment, and with respect to whom they will not be liable to be deceived by
those brilliant appearances of genius and patriotism, which, like transient
meteors, sometimes mislead as well as dazzle. If the observation be well
founded, that wise kings will always be served by able ministers, it is fair
to argue, that as an assembly of select electors possess, in a greater degree
than kings, the means of extensive and accurate information relative to men
and characters, so will their appointments bear at least equal marks of
discretion and discernment. The inference which naturally results from these
considerations is this, that the President and senators so chosen will always
be of the number of those who best understand our national interests, whether
considered in relation to the several States or to foreign nations, who are
best able to promote those interests, and whose reputation for integrity
inspires and merits confidence. With such men the power of making treaties may
be safely lodged.
5 Although the absolute necessity of system, in the
conduct of any business, is universally known and acknowledged, yet the high
importance of it in national affairs has not yet become sufficiently impressed
on the public mind. They who wish to commit the power under consideration to a
popular assembly, composed of members constantly coming and going in quick
succession, seem not to recollect that such a body must necessarily be
inadequate to the attainment of those great objects, which require to be
steadily contemplated in all their relations and circumstances, and which can
only be approached and achieved by measures which not only talents, but also
exact information, and often much time, are necessary to concert and to
execute. It was wise, therefore, in the convention to provide, not only that
the power of making treaties should be committed to able and honest men, but
also that they should continue in place a sufficient time to become perfectly
acquainted with our national concerns, and to form and introduce a a system
for the management of them. The duration prescribed is such as will give them
an opportunity of greatly extending their political information, and of
rendering their accumulating experience more and more beneficial to their
country. Nor has the convention discovered less prudence in providing for the
frequent elections of senators in such a way as to obviate the inconvenience
of periodically transferring those great affairs entirely to new men; for by
leaving a considerable residue of the old ones in place, uniformity and order,
as well as a constant succession of official information will be preserved.
6 There are a few who will not admit that the affairs
of trade and navigation should be regulated by a system cautiously formed and
steadily pursued; and that both our treaties and our laws should correspond
with and be made to promote it. It is of much consequence that this
correspondence and conformity be carefully maintained; and they who assent to
the truth of this position will see and confess that it is well provided for
by making concurrence of the Senate necessary both to treaties and to laws.
7 It seldom happens in the negotiation of treaties, of
whatever nature, but that perfect SECRECY and immediate DESPATCH are sometimes
requisite. These are cases where the most useful intelligence may be obtained,
if the persons possessing it can be relieved from apprehensions of discovery.
Those apprehensions will operate on those persons whether they are actuated by
mercenary or friendly motives; and there doubtless are many of both
descriptions, who would rely on the secrecy of the President, but who would
not confide in that of the Senate, and still less in that of a large popular
Assembly. The convention have done well, therefore, in so disposing of the
power of making treaties, that although the President must, in forming them,
act by the advice and consent of the Senate, yet he will be able to manage the
business of intelligence in such a manner as prudence may suggest.
8 They who have turned their attention to the affairs
of men, must have perceived that there are tides in them; tides very irregular
in their duration, strength, and direction, and seldom found to run twice
exactly in the same manner or measure. To discern and to profit by these tides
in national affairs is the business of those who preside over them; and they
who have had much experience on this head inform us, that there frequently are
occasions when days, nay, even when hours, are precious. The loss of a battle,
the death of a prince, the removal of a minister, or other circumstances
intervening to change the present posture and aspect of affairs, may turn the
most favorable tide into a course opposite to our wishes. As in the field, so
in the cabinet, there are moments to be seized as they pass, and they who
preside in either should be left in capacity to improve them. So often and so
essentially have we heretofore suffered from the want of secrecy and despatch,
that the Constitution would have been inexcusably defective, if no attention
had been paid to those objects. Those matters which in negotiations usually
require the most secrecy and the most despatch, are those preparatory and
auxiliary measures which are not otherwise important in a national view, than
as they tend to facilitate the attainment of the objects of the negotiation.
For these, the President will find no difficulty to provide; and should any
circumstance occur which requires the advice and consent of the Senate, he may
at any time convene them. Thus we see that the Constitution provides that our
negotiations for treaties shall have every advantage which can be derived from
talents, information, integrity, and deliberate investigations, on the one
hand, and from secrecy and despatch on the other.
But to this plan, as to most others that have ever
appeared, objections are contrived and urged.
9 Some are displeased with it, not on account of any
errors or defects in it, but because, as the treaties, when made, are to have
the force of laws, they should be made only by men invested with legislative
authority. These gentlemen seem not to consider that the judgments of our
courts, and the commissions constitutionally given by our governor, are as
valid and as binding on all persons whom they concern, as the laws passed by
our legislature. All constitutional acts of power, whether in the executive or
in the judicial department, have as much legal validity and obligation as if
they proceeded from the legislature; and therefore, whatever name be given to
the power of making treaties, or however obligatory they may be when made,
certain it is, that the people may, with much propriety, commit the power to a
distinct body from the legislature, the executive, or the judicial. It surely
does not follow, that because they have given the power of making laws to the
legislature, that therefore they should likewise give them the power to do
every other act of sovereignty by which the citizens are to be bound and
affected.
10 Others, though content that treaties should be made
in the mode proposed, are averse to their being the SUPREME laws of the land.
They insist, and profess to believe, that treaties like acts of assembly,
should be repealable at pleasure. This idea seems to be new and peculiar to
this country, but new errors, as well as new truths, often appear. These
gentlemen would do well to reflect that a treaty is only another name for a
bargain, and that it would be impossible to find a nation who would make any
bargain with us, which should be binding on them ABSOLUTELY, but on us only so
long and so far as we may think proper to be bound by it. They who make laws
may, without doubt, amend or repeal them; and it will not be disputed that
they who make treaties may alter or cancel them; but still let us not forget
that treaties are made, not by only one of the contracting parties, but by
both; and consequently, that as the consent of both was essential to their
formation at first, so must it ever afterwards be to alter or cancel them. The
proposed Constitution, therefore, has not in the least extended the obligation
of treaties. They are just as binding, and just as far beyond the lawful reach
of legislative acts now, as they will be at any future period, or under any
form of government.
11 However useful jealousy may be in republics, yet when
like bile in the natural, it abounds too much in the body politic, the eyes of
both become very liable to be deceived by the delusive appearances which that
malady casts on surrounding objects. From this cause, probably, proceed the
fears and apprehensions of some, that the President and Senate may make
treaties without an equal eye to the interests of all the States. Others
suspect that two thirds will oppress the remaining third, and ask whether
those gentlemen are made sufficiently responsible for their conduct; whether,
if they act corruptly, they can be punished; and if they make disadvantageous
treaties, how are we to get rid of those treaties?
12 As all the States are equally represented in the
Senate, and by men the most able and the most willing to promote the interests
of their constituents, they will all have an equal degree of influence in that
body, especially while they continue to be careful in appointing proper
persons, and to insist on their punctual attendance. In proportion as the
United States assume a national form and a national character, so will the
good of the whole be more and more an object of attention, and the government
must be a weak one indeed, if it should forget that the good of the whole can
only be promoted by advancing the good of each of the parts or members which
compose the whole. It will not be in the power of the President and Senate to
make any treaties by which they and their families and estates will not be
equally bound and affected with the rest of the community; and, having no
private interests distinct from that of the nation, they will be under no
temptations to neglect the latter.
13 As to corruption, the case is not supposable. He must
either have been very unfortunate in his intercourse with the world, or
possess a heart very susceptible of such impressions, who can think it
probable that the President and two thirds of the Senate will ever be capable
of such unworthy conduct. The idea is too gross and too invidious to be
entertained. But in such a case, if it should ever happen, the treaty so
obtained from us would, like all other fraudulent contracts, be null and void
by the law of nations.
14 With respect to their responsibility, it is difficult
to conceive how it could be increased. Every consideration that can influence
the human mind, such as honor, oaths, reputations, conscience, the love of
country, and family affections and attachments, afford security for their
fidelity. In short, as the Constitution has taken the utmost care that they
shall be men of talents and integrity, we have reason to be persuaded that the
treaties they make will be as advantageous as, all circumstances considered,
could be made; and so far as the fear of punishment and disgrace can operate,
that motive to good behavior is amply afforded by the article on the subject
of impeachments.
PUBLIUS
FEDERALIST No. 65
The Powers of the Senate Continued
From the New York Packet.
Friday, March 7, 1788.
HAMILTON
To the People of the State of New York:
THE remaining powers which the plan of the convention
allots to the Senate, in a distinct capacity, are comprised in their
participation with the executive in the appointment to offices, and in their
judicial character as a court for the trial of impeachments. As in the
business of appointments the executive will be the principal agent, the
provisions relating to it will most properly be discussed in the examination
of that department. We will, therefore, conclude this head with a view of the
judicial character of the Senate.
2 A well-constituted court for the trial of
impeachments is an object not more to be desired than difficult to be obtained
in a government wholly elective. The subjects of its jurisdiction are those
offenses which proceed from the misconduct of public men, or, in other words,
from the abuse or violation of some public trust. They are of a nature which
may with peculiar propriety be denominated POLITICAL, as they relate chiefly
to injuries done immediately to the society itself. The prosecution of them,
for this reason, will seldom fail to agitate the passions of the whole
community, and to divide it into parties more or less friendly or inimical to
the accused. In many cases it will connect itself with the pre-existing
factions, and will enlist all their animosities, partialities, influence, and
interest on one side or on the other; and in such cases there will always be
the greatest danger that the decision will be regulated more by the
comparative strength of parties, than by the real demonstrations of innocence
or guilt.
3 The delicacy and magnitude of a trust which so deeply
concerns the political reputation and existence of every man engaged in the
administration of public affairs, speak for themselves. The difficulty of
placing it rightly, in a government resting entirely on the basis of
periodical elections, will as readily be perceived, when it is considered that
the most conspicuous characters in it will, from that circumstance, be too
often the leaders or the tools of the most cunning or the most numerous
faction, and on this account, can hardly be expected to possess the requisite
neutrality towards those whose conduct may be the subject of scrutiny.
4 The convention, it appears, thought the Senate the
most fit depositary of this important trust. Those who can best discern the
intrinsic difficulty of the thing, will be least hasty in condemning that
opinion, and will be most inclined to allow due weight to the arguments which
may be supposed to have produced it.
5 What, it may be asked, is the true spirit of the
institution itself? Is it not designed as a method of NATIONAL INQUEST into
the conduct of public men? If this be the design of it, who can so properly be
the inquisitors for the nation as the representatives of the nation
themselves? It is not disputed that the power of originating the inquiry, or,
in other words, of preferring the impeachment, ought to be lodged in the hands
of one branch of the legislative body. Will not the reasons which indicate the
propriety of this arrangement strongly plead for an admission of the other
branch of that body to a share of the inquiry? The model from which the idea
of this institution has been borrowed, pointed out that course to the
convention. In Great Britain it is the province of the House of Commons to
prefer the impeachment, and of the House of Lords to decide upon it. Several
of the State constitutions have followed the example. As well the latter, as
the former, seem to have regarded the practice of impeachments as a bridle in
the hands of the legislative body upon the executive servants of the
government. Is not this the true light in which it ought to be regarded?
6 Where else than in the Senate could have been found a
tribunal sufficiently dignified, or sufficiently independent? What other body
would be likely to feel CONFIDENCE ENOUGH IN ITS OWN SITUATION, to preserve,
unawed and uninfluenced, the necessary impartiality between an INDIVIDUAL
accused, and the REPRESENTATIVES OF THE PEOPLE, HIS ACCUSERS?
7 Could the Supreme Court have been relied upon as
answering this description? It is much to be doubted, whether the members of
that tribunal would at all times be endowed with so eminent a portion of
fortitude, as would be called for in the execution of so difficult a task; and
it is still more to be doubted, whether they would possess the degree of
credit and authority, which might, on certain occasions, be indispensable
towards reconciling the people to a decision that should happen to clash with
an accusation brought by their immediate representatives. A deficiency in the
first, would be fatal to the accused; in the last, dangerous to the public
tranquillity. The hazard in both these respects, could only be avoided, if at
all, by rendering that tribunal more numerous than would consist with a
reasonable attention to economy. The necessity of a numerous court for the
trial of impeachments, is equally dictated by the nature of the proceeding.
This can never be tied down by such strict rules, either in the delineation of
the offense by the prosecutors, or in the construction of it by the judges, as
in common cases serve to limit the discretion of courts in favor of personal
security. There will be no jury to stand between the judges who are to
pronounce the sentence of the law, and the party who is to receive or suffer
it. The awful discretion which a court of impeachments must necessarily have,
to doom to honor or to infamy the most confidential and the most distinguished
characters of the community, forbids the commitment of the trust to a small
number of persons.
8 These considerations seem alone sufficient to
authorize a conclusion, that the Supreme Court would have been an improper
substitute for the Senate, as a court of impeachments. There remains a further
consideration, which will not a little strengthen this conclusion. It is this:
The punishment which may be the consequence of conviction upon impeachment, is
not to terminate the chastisement of the offender. After having been sentenced
to a prepetual ostracism from the esteem and confidence, and honors and
emoluments of his country, he will still be liable to prosecution and
punishment in the ordinary course of law. Would it be proper that the persons
who had disposed of his fame, and his most valuable rights as a citizen in one
trial, should, in another trial, for the same offense, be also the disposers
of his life and his fortune? Would there not be the greatest reason to
apprehend, that error, in the first sentence, would be the parent of error in
the second sentence? That the strong bias of one decision would be apt to
overrule the influence of any new lights which might be brought to vary the
complexion of another decision? Those who know anything of human nature, will
not hesitate to answer these questions in the affirmative; and will be at no
loss to perceive, that by making the same persons judges in both cases, those
who might happen to be the objects of prosecution would, in a great measure,
be deprived of the double security intended them by a double trial. The loss
of life and estate would often be virtually included in a sentence which, in
its terms, imported nothing more than dismission from a present, and
disqualification for a future, office. It may be said, that the intervention
of a jury, in the second instance, would obviate the danger. But juries are
frequently influenced by the opinions of judges. They are sometimes induced to
find special verdicts, which refer the main question to the decision of the
court. Who would be willing to stake his life and his estate upon the verdict
of a jury acting under the auspices of judges who had predetermined his guilt?
9 Would it have been an improvement of the plan, to
have united the Supreme Court with the Senate, in the formation of the court
of impeachments? This union would certainly have been attended with several
advantages; but would they not have been overbalanced by the signal
disadvantage, already stated, arising from the agency of the same judges in
the double prosecution to which the offender would be liable? To a certain
extent, the benefits of that union will be obtained from making the chief
justice of the Supreme Court the president of the court of impeachments, as is
proposed to be done in the plan of the convention; while the inconveniences of
an entire incorporation of the former into the latter will be substantially
avoided. This was perhaps the prudent mean. I forbear to remark upon the
additional pretext for clamor against the judiciary, which so considerable an
augmentation of its authority would have afforded.
10 Would it have been desirable to have composed the
court for the trial of impeachments, of persons wholly distinct from the other
departments of the government? There are weighty arguments, as well against,
as in favor of, such a plan. To some minds it will not appear a trivial
objection, that it could tend to increase the complexity of the political
machine, and to add a new spring to the government, the utility of which would
at best be questionable. But an objection which will not be thought by any
unworthy of attention, is this: a court formed upon such a plan, would either
be attended with a heavy expense, or might in practice be subject to a variety
of casualties and inconveniences. It must either consist of permanent
officers, stationary at the seat of government, and of course entitled to
fixed and regular stipends, or of certain officers of the State governments to
be called upon whenever an impeachment was actually depending. It will not be
easy to imagine any third mode materially different, which could rationally be
proposed. As the court, for reasons already given, ought to be numerous, the
first scheme will be reprobated by every man who can compare the extent of the
public wants with the means of supplying them. The second will be espoused
with caution by those who will seriously consider the difficulty of collecting
men dispersed over the whole Union; the injury to the innocent, from the
procrastinated determination of the charges which might be brought against
them; the advantage to the guilty, from the opportunities which delay would
afford to intrigue and corruption; and in some cases the detriment to the
State, from the prolonged inaction of men whose firm and faithful execution of
their duty might have exposed them to the persecution of an intemperate or
designing majority in the House of Representatives. Though this latter
supposition may seem harsh, and might not be likely often to be verified, yet
it ought not to be forgotten that the demon of faction will, at certain
seasons, extend his sceptre over all numerous bodies of men.
11 But though one or the other of the substitutes which
have been examined, or some other that might be devised, should be thought
preferable to the plan in this respect, reported by the convention, it will
not follow that the Constitution ought for this reason to be rejected. If
mankind were to resolve to agree in no institution of government, until every
part of it had been adjusted to the most exact standard of perfection, society
would soon become a general scene of anarchy, and the world a desert. Where is
the standard of perfection to be found? Who will undertake to unite the
discordant opinions of a whole commuity, in the same judgment of it; and to
prevail upon one conceited projector to renounce his INFALLIBLE criterion for
the FALLIBLE criterion of his more CONCEITED NEIGHBOR? To answer the purpose
of the adversaries of the Constitution, they ought to prove, not merely that
particular provisions in it are not the best which might have been imagined,
but that the plan upon the whole is bad and pernicious.
PUBLIUS
FEDERALIST No. 66
Objections to the Power of the Senate
To Set as a Court for Impeachments Further Considered
From the Independent Journal.
Saturday, March 8, 1788.
HAMILTON
To the People of the State of New York:
A REVIEW of the principal objections that have
appeared against the proposed court for the trial of impeachments, will not
improbably eradicate the remains of any unfavorable impressions which may
still exist in regard to this matter.
2 The FIRST of these objections is, that the provision
in question confounds legislative and judiciary authorities in the same body,
in violation of that important and wellestablished maxim which requires a
separation between the different departments of power. The true meaning of
this maxim has been discussed and ascertained in another place, and has been
shown to be entirely compatible with a partial intermixture of those
departments for special purposes, preserving them, in the main, distinct and
unconnected. This partial intermixture is even, in some cases, not only proper
but necessary to the mutual defense of the several members of the government
against each other. An absolute or qualified negative in the executive upon
the acts of the legislative body, is admitted, by the ablest adepts in
political science, to be an indispensable barrier against the encroachments of
the latter upon the former. And it may, perhaps, with no less reason be
contended, that the powers relating to impeachments are, as before intimated,
an essential check in the hands of that body upon the encroachments of the
executive. The division of them between the two branches of the legislature,
assigning to one the right of accusing, to the other the right of judging,
avoids the inconvenience of making the same persons both accusers and judges;
and guards against the danger of persecution, from the prevalency of a
factious spirit in either of those branches. As the concurrence of two thirds
of the Senate will be requisite to a condemnation, the security to innocence,
from this additional circumstance, will be as complete as itself can desire.
3 It is curious to observe, with what vehemence this
part of the plan is assailed, on the principle here taken notice of, by men
who profess to admire, without exception, the constitution of this State;
while that constitution makes the Senate, together with the chancellor and
judges of the Supreme Court, not only a court of impeachments, but the highest
judicatory in the State, in all causes, civil and criminal. The proportion, in
point of numbers, of the chancellor and judges to the senators, is so
inconsiderable, that the judiciary authority of New York, in the last resort,
may, with truth, be said to reside in its Senate. If the plan of the
convention be, in this respect, chargeable with a departure from the
celebrated maxim which has been so often mentioned, and seems to be so little
understood, how much more culpable must be the constitution of New York?[1]
4 A SECOND objection to the Senate, as a court of
impeachments, is, that it contributes to an undue accumulation of power in
that body, tending to give to the government a countenance too aristocratic.
The Senate, it is observed, is to have concurrent authority with the Executive
in the formation of treaties and in the appointment to offices: if, say the
objectors, to these prerogatives is added that of deciding in all cases of
impeachment, it will give a decided predominancy to senatorial influence. To
an objection so little precise in itself, it is not easy to find a very
precise answer. Where is the measure or criterion to which we can appeal, for
determining what will give the Senate too much, too little, or barely the
proper degree of influence? Will it not be more safe, as well as more simple,
to dismiss such vague and uncertain calculations, to examine each power by
itself, and to decide, on general principles, where it may be deposited with
most advantage and least inconvenience?
5 If we take this course, it will lead to a more
intelligible, if not to a more certain result. The disposition of the power of
making treaties, which has obtained in the plan of the convention, will, then,
if I mistake not, appear to be fully justified by the considerations stated in
a former number, and by others which will occur under the next head of our
inquiries. The expediency of the junction of the Senate with the Executive, in
the power of appointing to offices, will, I trust, be placed in a light not
less satisfactory, in the disquisitions under the same head. And I flatter
myself the observations in my last paper must have gone no inconsiderable way
towards proving that it was not easy, if practicable, to find a more fit
receptacle for the power of determining impeachments, than that which has been
chosen. If this be truly the case, the hypothetical dread of the too great
weight of the Senate ought to be discarded from our reasonings.
6 But this hypothesis, such as it is, has already been
refuted in the remarks applied to the duration in office prescribed for the
senators. It was by them shown, as well on the credit of historical examples,
as from the reason of the thing, that the most POPULAR branch of every
government, partaking of the republican genius, by being generally the
favorite of the people, will be as generally a full match, if not an
overmatch, for every other member of the Government.
7 But independent of this most active and operative
principle, to secure the equilibrium of the national House of Representatives,
the plan of the convention has provided in its favor several important
counterpoises to the additional authorities to be conferred upon the Senate.
The exclusive privilege of originating money bills will belong to the House of
Representatives. The same house will possess the sole right of instituting
impeachments: is not this a complete counterbalance to that of determining
them? The same house will be the umpire in all elections of the President,
which do not unite the suffrages of a majority of the whole number of
electors; a case which it cannot be doubted will sometimes, if not frequently,
happen. The constant possibility of the thing must be a fruitful source of
influence to that body. The more it is contemplated, the more important will
appear this ultimate though contingent power, of deciding the competitions of
the most illustrious citizens of the Union, for the first office in it. It
would not perhaps be rash to predict, that as a mean of influence it will be
found to outweigh all the peculiar attributes of the Senate.
8 A THIRD objection to the Senate as a court of
impeachments, is drawn from the agency they are to have in the appointments to
office. It is imagined that they would be too indulgent judges of the conduct
of men, in whose official creation they had participated. The principle of
this objection would condemn a practice, which is to be seen in all the State
governments, if not in all the governments with which we are acquainted: I
mean that of rendering those who hold offices during pleasure, dependent on
the pleasure of those who appoint them. With equal plausibility might it be
alleged in this case, that the favoritism of the latter would always be an
asylum for the misbehavior of the former. But that practice, in contradiction
to this principle, proceeds upon the presumption, that the responsibility of
those who appoint, for the fitness and competency of the persons on whom they
bestow their choice, and the interest they will have in the respectable and
prosperous administration of affairs, will inspire a sufficient disposition to
dismiss from a share in it all such who, by their conduct, shall have proved
themselves unworthy of the confidence reposed in them. Though facts may not
always correspond with this presumption, yet if it be, in the main, just, it
must destroy the supposition that the Senate, who will merely sanction the
choice of the Executive, should feel a bias, towards the objects of that
choice, strong enough to blind them to the evidences of guilt so
extraordinary, as to have induced the representatives of the nation to become
its accusers.
9 If any further arguments were necessary to evince the
improbability of such a bias, it might be found in the nature of the agency of
the Senate in the business of appointments. It will be the office of the
President to NOMINATE, and, with the advice and consent of the Senate, to
APPOINT. There will, of course, be no exertion of CHOICE on the part of the
Senate. They may defeat one choice of the Executive, and oblige him to make
another; but they cannot themselves CHOOSE -- they can only ratify or reject
the choice of the President. They might even entertain a preference to some
other person, at the very moment they were assenting to the one proposed,
because there might be no positive ground of opposition to him; and they could
not be sure, if they withheld their assent, that the subsequent nomination
would fall upon their own favorite, or upon any other person in their
estimation more meritorious than the one rejected. Thus it could hardly
happen, that the majority of the Senate would feel any other complacency
towards the object of an appointment than such as the appearances of merit
might inspire, and the proofs of the want of it destroy.
10 A FOURTH objection to the Senate in the capacity of a
court of impeachments, is derived from its union with the Executive in the
power of making treaties. This, it has been said, would constitute the
senators their own judges, in every case of a corrupt or perfidious execution
of that trust. After having combined with the Executive in betraying the
interests of the nation in a ruinous treaty, what prospect, it is asked, would
there be of their being made to suffer the punishment they would deserve, when
they were themselves to decide upon the accusation brought against them for
the treachery of which they have been guilty?
11 This objection has been circulated with more
earnestness and with greater show of reason than any other which has appeared
against this part of the plan; and yet I am deceived if it does not rest upon
an erroneous foundation.
12 The security essentially intended by the Constitution
against corruption and treachery in the formation of treaties, is to be sought
for in the numbers and characters of those who are to make them. The JOINT
AGENCY of the Chief Magistrate of the Union, and of two thirds of the members
of a body selected by the collective wisdom of the legislatures of the several
States, is designed to be the pledge for the fidelity of the national councils
in this particular. The convention might with propriety have meditated the
punishment of the Executive, for a deviation from the instructions of the
Senate, or a want of integrity in the conduct of the negotiations committed to
him; they might also have had in view the punishment of a few leading
individuals in the Senate, who should have prostituted their influence in that
body as the mercenary instruments of foreign corruption: but they could not,
with more or with equal propriety, have contemplated the impeachment and
punishment of two thirds of the Senate, consenting to an improper treaty, than
of a majority of that or of the other branch of the national legislature,
consenting to a pernicious or unconstitutional law -- a principle which, I
believe, has never been admitted into any government. How, in fact, could a
majority in the House of Representatives impeach themselves? Not better, it is
evident, than two thirds of the Senate might try themselves. And yet what
reason is there, that a majority of the House of Representatives, sacrificing
the interests of the society by an unjust and tyrannical act of legislation,
should escape with impunity, more than two thirds of the Senate, sacrificing
the same interests in an injurious treaty with a foreign power? The truth is,
that in all such cases it is essential to the freedom and to the necessary
independence of the deliberations of the body, that the members of it should
be exempt from punishment for acts done in a collective capacity; and the
security to the society must depend on the care which is taken to confide the
trust to proper hands, to make it their interest to execute it with fidelity,
and to make it as difficult as possible for them to combine in any interest
opposite to that of the public good.
13 So far as might concern the misbehavior of the
Executive in perverting the instructions or contravening the views of the
Senate, we need not be apprehensive of the want of a disposition in that body
to punish the abuse of their confidence or to vindicate their own authority.
We may thus far count upon their pride, if not upon their virtue. And so far
even as might concern the corruption of leading members, by whose arts and
influence the majority may have been inveigled into measures odious to the
community, if the proofs of that corruption should be satisfactory, the usual
propensity of human nature will warrant us in concluding that there would be
commonly no defect of inclination in the body to divert the public resentment
from themselves by a ready sacrifice of the authors of their mismanagement and
disgrace.
PUBLIUS
1. In that of New Jersey, also, the final judiciary
authority is in a branch of the legislature. In New Hampshire, Massachusetts,
Pennsylvania, and South Carolina, one branch of the legislature is the court
for the trial of impeachments.
FEDERALIST No. 67
The Executive Department From the New
York Packet.
Tuesday, March 11, 1788.
HAMILTON
To the People of the State of New York:
THE constitution of the executive department of the
proposed government, claims next our attention.
2 There is hardly any part of the system which could
have been attended with greater difficulty in the arrangement of it than this;
and there is, perhaps, none which has been inveighed against with less candor
or criticised with less judgment.
3 Here the writers against the Constitution seem to
have taken pains to signalize their talent of misrepresentation. Calculating
upon the aversion of the people to monarchy, they have endeavored to enlist
all their jealousies and apprehensions in opposition to the intended President
of the United States; not merely as the embryo, but as the full-grown progeny,
of that detested parent. To establish the pretended affinity, they have not
scrupled to draw resources even from the regions of fiction. The authorities
of a magistrate, in few instances greater, in some instances less, than those
of a governor of New York, have been magnified into more than royal
prerogatives. He has been decorated with attributes superior in dignity and
splendor to those of a king of Great Britain. He has been shown to us with the
diadem sparkling on his brow and the imperial purple flowing in his train. He
has been seated on a throne surrounded with minions and mistresses, giving
audience to the envoys of foreign potentates, in all the supercilious pomp of
majesty. The images of Asiatic despotism and voluptuousness have scarcely been
wanting to crown the exaggerated scene. We have been taught to tremble at the
terrific visages of murdering janizaries, and to blush at the unveiled
mysteries of a future seraglio.
4 Attempts so extravagant as these to disfigure or, it
might rather be said, to metamorphose the object, render it necessary to take
an accurate view of its real nature and form: in order as well to ascertain
its true aspect and genuine appearance, as to unmask the disingenuity and
expose the fallacy of the counterfeit resemblances which have been so
insidiously, as well as industriously, propagated.
5 In the execution of this task, there is no man who
would not find it an arduous effort either to behold with moderation, or to
treat with seriousness, the devices, not less weak than wicked, which have
been contrived to pervert the public opinion in relation to the subject. They
so far exceed the usual though unjustifiable licenses of party artifice, that
even in a disposition the most candid and tolerant, they must force the
sentiments which favor an indulgent construction of the conduct of political
adversaries to give place to a voluntary and unreserved indignation. It is
impossible not to bestow the imputation of deliberate imposture and deception
upon the gross pretense of a similitude between a king of Great Britain and a
magistrate of the character marked out for that of the President of the United
States. It is still more impossible to withhold that imputation from the rash
and barefaced expedients which have been employed to give success to the
attempted imposition.
6 In one instance, which I cite as a sample of the
general spirit, the temerity has proceeded so far as to ascribe to the
President of the United States a power which by the instrument reported is
EXPRESSLY allotted to the Executives of the individual States. I mean the
power of filling casual vacancies in the Senate.
7 This bold experiment upon the discernment of his
countrymen has been hazarded by a writer who (whatever may be his real merit)
has had no inconsiderable share in the applauses of his party[1]; and who,
upon this false and unfounded suggestion, has built a series of observations
equally false and unfounded. Let him now be confronted with the evidence of
the fact, and let him, if he be able, justify or extenuate the shameful
outrage he has offered to the dictates of truth and to the rules of fair
dealing.
8 The second clause of the second section of the second
article empowers the President of the United States "to nominate, and by
and with the advice and consent of the Senate, to appoint ambassadors, other
public ministers and consuls, judges of the Supreme Court, and all other
OFFICERS of United States whose appointments are NOT in the Constitution
OTHERWISE PROVIDED FOR, and WHICH SHALL BE ESTABLISHED BY LAW."
Immediately after this clause follows another in these words: "The
President shall have power to fill up all VACANCIES that may happen DURING THE
RECESS OF THE SENATE, by granting commissions which shall EXPIRE AT THE END OF
THEIR NEXT SESSION." It is from this last provision that the pretended
power of the President to fill vacancies in the Senate has been deduced. A
slight attention to the connection of the clauses, and to the obvious meaning
of the terms, will satisfy us that the deduction is not even colorable.
9 The first of these two clauses, it is clear, only
provides a mode for appointing such officers, "whose appointments are NOT
OTHERWISE PROVIDED FOR in the Constitution, and which SHALL BE ESTABLISHED BY
LAW"; of course it cannot extend to the appointments of senators, whose
appointments are OTHERWISE PROVIDED FOR in the Constitution[2], and who are
ESTABLISHED BY THE CONSTITUTION, and will not require a future establishment
by law. This position will hardly be contested.
10 The last of these two clauses, it is equally clear,
cannot be understood to comprehend the power of filling vacancies in the
Senate, for the following reasons: First. The relation in which that clause
stands to the other, which declares the general mode of appointing officers of
the United States, denotes it to be nothing more than a supplement to the
other, for the purpose of establishing an auxiliary method of appointment, in
cases to which the general method was inadequate. The ordinary power of
appointment is confined to the President and Senate JOINTLY, and can therefore
only be exercised during the session of the Senate; but as it would have been
improper to oblige this body to be continually in session for the appointment
of officers and as vacancies might happen IN THEIR RECESS, which it might be
necessary for the public service to fill without delay, the succeeding clause
is evidently intended to authorize the President, SINGLY, to make temporary
appointments "during the recess of the Senate, by granting commissions
which shall expire at the end of their next session." Second. If this
clause is to be considered as supplementary to the one which precedes, the
VACANCIES of which it speaks must be construed to relate to the
"officers" described in the preceding one; and this, we have seen,
excludes from its description the members of the Senate. Third. The time
within which the power is to operate, "during the recess of the
Senate," and the duration of the appointments, "to the end of the
next session" of that body, conspire to elucidate the sense of the
provision, which, if it had been intended to comprehend senators, would
naturally have referred the temporary power of filling vacancies to the recess
of the State legislatures, who are to make the permanent appointments, and not
to the recess of the national Senate, who are to have no concern in those
appointments; and would have extended the duration in office of the temporary
senators to the next session of the legislature of the State, in whose
representation the vacancies had happened, instead of making it to expire at
the end of the ensuing session of the national Senate. The circumstances of
the body authorized to make the permanent appointments would, of course, have
governed the modification of a power which related to the temporary
appointments; and as the national Senate is the body, whose situation is alone
contemplated in the clause upon which the suggestion under examination has
been founded, the vacancies to which it alludes can only be deemed to respect
those officers in whose appointment that body has a concurrent agency with the
President. But last, the first and second clauses of the third section of the
first article, not only obviate all possibility of doubt, but destroy the
pretext of misconception. The former provides, that "the Senate of the
United States shall be composed of two Senators from each State, chosen BY THE
LEGISLATURE THEREOF for six years"; and the latter directs, that,
"if vacancies in that body should happen by resignation or otherwise,
DURING THE RECESS OF THE LEGISLATURE OF ANY STATE, the Executive THEREOF may
make temporary appointments until the NEXT MEETING OF THE LEGISLATURE, which
shall then fill such vacancies." Here is an express power given, in clear
and unambiguous terms, to the State Executives, to fill casual vacancies in
the Senate, by temporary appointments; which not only invalidates the
supposition, that the clause before considered could have been intended to
confer that power upon the President of the United States, but proves that
this supposition, destitute as it is even of the merit of plausibility, must
have originated in an intention to deceive the people, too palpable to be
obscured by sophistry, too atrocious to be palliated by hypocrisy.
11 I have taken the pains to select this instance of
misrepresentation, and to place it in a clear and strong light, as an
unequivocal proof of the unwarrantable arts which are practiced to prevent a
fair and impartial judgment of the real merits of the Constitution submitted
to the consideration of the people. Nor have I scrupled, in so flagrant a
case, to allow myself a severity of animadversion little congenial with the
general spirit of these papers. I hesitate not to submit it to the decision of
any candid and honest adversary of the proposed government, whether language
can furnish epithets of too much asperity, for so shameless and so prostitute
an attempt to impose on the citizens of America.
PUBLIUS
1. See CATO, No. V.
2. Article I, section 3, clause 1.
FEDERALIST No. 68
The Mode of Electing the President
From the Independent Journal.
Wednesday, March 12, 1788.
HAMILTON
To the People of the State of New York:
THE mode of appointment of the Chief Magistrate of
the United States is almost the only part of the system, of any consequence,
which has escaped without severe censure, or which has received the slightest
mark of approbation from its opponents. The most plausible of these, who has
appeared in print, has even deigned to admit that the election of the
President is pretty well guarded.[1] I venture somewhat further, and hesitate
not to affirm, that if the manner of it be not perfect, it is at least
excellent. It unites in an eminent degree all the advantages, the union of
which was to be wished for.[E1]
2 It was desirable that the sense of the people should
operate in the choice of the person to whom so important a trust was to be
confided. This end will be answered by committing the right of making it, not
to any preestablished body, but to men chosen by the people for the special
purpose, and at the particular conjuncture.
3 It was equally desirable, that the immediate election
should be made by men most capable of analyzing the qualities adapted to the
station, and acting under circumstances favorable to deliberation, and to a
judicious combination of all the reasons and inducements which were proper to
govern their choice. A small number of persons, selected by their
fellow-citizens from the general mass, will be most likely to possess the
information and discernment requisite to such complicated investigations.
4 It was also peculiarly desirable to afford as little
opportunity as possible to tumult and disorder. This evil was not least to be
dreaded in the election of a magistrate, who was to have so important an
agency in the administration of the government as the President of the United
States. But the precautions which have been so happily concerted in the system
under consideration, promise an effectual security against this mischief. The
choice of SEVERAL, to form an intermediate body of electors, will be much less
apt to convulse the community with any extraordinary or violent movements,
than the choice of ONE who was himself to be the final object of the public
wishes. And as the electors, chosen in each State, are to assemble and vote in
the State in which they are chosen, this detached and divided situation will
expose them much less to heats and ferments, which might be communicated from
them to the people, than if they were all to be convened at one time, in one
place.
5 Nothing was more to be desired than that every
practicable obstacle should be opposed to cabal, intrigue, and corruption.
These most deadly adversaries of republican government might naturally have
been expected to make their approaches from more than one querter, but chiefly
from the desire in foreign powers to gain an improper ascendant in our
councils. How could they better gratify this, than by raising a creature of
their own to the chief magistracy of the Union? But the convention have
guarded against all danger of this sort, with the most provident and judicious
attention. They have not made the appointment of the President to depend on
any preexisting bodies of men, who might be tampered with beforehand to
prostitute their votes; but they have referred it in the first instance to an
immediate act of the people of America, to be exerted in the choice of persons
for the temporary and sole purpose of making the appointment. And they have
excluded from eligibility to this trust, all those who from situation might be
suspected of too great devotion to the President in office. No senator,
representative, or other person holding a place of trust or profit under the
United States, can be of the numbers of the electors. Thus without corrupting
the body of the people, the immediate agents in the election will at least
enter upon the task free from any sinister bias. Their transient existence,
and their detached situation, already taken notice of, afford a satisfactory
prospect of their continuing so, to the conclusion of it. The business of
corruption, when it is to embrace so considerable a number of men, requires
time as well as means. Nor would it be found easy suddenly to embark them,
dispersed as they would be over thirteen States, in any combinations founded
upon motives, which though they could not properly be denominated corrupt,
might yet be of a nature to mislead them from their duty.
6 Another and no less important desideratum was, that
the Executive should be independent for his continuance in office on all but
the people themselves. He might otherwise be tempted to sacrifice his duty to
his complaisance for those whose favor was necessary to the duration of his
official consequence. This advantage will also be secured, by making his
re-election to depend on a special body of representatives, deputed by the
society for the single purpose of making the important choice.
7 All these advantages will happily combine in the plan
devised by the convention; which is, that the people of each State shall
choose a number of persons as electors, equal to the number of senators and
representatives of such State in the national government, who shall assemble
within the State, and vote for some fit person as President. Their votes, thus
given, are to be transmitted to the seat of the national government, and the
person who may happen to have a majority of the whole number of votes will be
the President. But as a majority of the votes might not always happen to
centre in one man, and as it might be unsafe to permit less than a majority to
be conclusive, it is provided that, in such a contingency, the House of
Representatives shall select out of the candidates who shall have the five
highest number of votes, the man who in their opinion may be best qualified
for the office.
8 The process of election affords a moral certainty,
that the office of President will never fall to the lot of any man who is not
in an eminent degree endowed with the requisite qualifications. Talents for
low intrigue, and the little arts of popularity, may alone suffice to elevate
a man to the first honors in a single State; but it will require other
talents, and a different kind of merit, to establish him in the esteem and
confidence of the whole Union, or of so considerable a portion of it as would
be necessary to make him a successful candidate for the distinguished office
of President of the United States. It will not be too strong to say, that
there will be a constant probability of seeing the station filled by
characters pre-eminent for ability and virtue. And this will be thought no
inconsiderable recommendation of the Constitution, by those who are able to
estimate the share which the executive in every government must necessarily
have in its good or ill administration. Though we cannot acquiesce in the
political heresy of the poet who says:
"For forms of government let fools contest --
That which is best administered is best," --
yet we may safely pronounce, that the true test of a
good government is its aptitude and tendency to produce a good administration.
9 The Vice-President is to be chosen in the same manner
with the President; with this difference, that the Senate is to do, in respect
to the former, what is to be done by the House of Representatives, in respect
to the latter.
10 The appointment of an extraordinary person, as
Vice-President, has been objected to as superfluous, if not mischievous. It
has been alleged, that it would have been preferable to have authorized the
Senate to elect out of their own body an officer answering that description.
But two considerations seem to justify the ideas of the convention in this
respect. One is, that to secure at all times the possibility of a definite
resolution of the body, it is necessary that the President should have only a
casting vote. And to take the senator of any State from his seat as senator,
to place him in that of President of the Senate, would be to exchange, in
regard to the State from which he came, a constant for a contingent vote. The
other consideration is, that as the Vice-President may occasionally become a
substitute for the President, in the supreme executive magistracy, all the
reasons which recommend the mode of election prescribed for the one, apply
with great if not with equal force to the manner of appointing the other. It
is remarkable that in this, as in most other instances, the objection which is
made would lie against the constitution of this State. We have a
Lieutenant-Governor, chosen by the people at large, who presides in the
Senate, and is the constitutional substitute for the Governor, in casualties
similar to those which would authorize the Vice-President to exercise the
authorities and discharge the duties of the President.
PUBLIUS
1. Vide federal farmer.
E1. Some editions substitute "desired" for
"wished for".
FEDERALIST No. 69
The Real Character of the Executive
From the New York Packet.
Friday, March 14, 1788.
HAMILTON
To the People of the State of New York:
I PROCEED now to trace the real characters of the
proposed Executive, as they are marked out in the plan of the convention. This
will serve to place in a strong light the unfairness of the representations
which have been made in regard to it.
2 The first thing which strikes our attention is, that
the executive authority, with few exceptions, is to be vested in a single
magistrate. This will scarcely, however, be considered as a point upon which
any comparison can be grounded; for if, in this particular, there be a
resemblance to the king of Great Britain, there is not less a resemblance to
the Grand Seignior, to the khan of Tartary, to the Man of the Seven Mountains,
or to the governor of New York.
3 That magistrate is to be elected for four years; and
is to be re-eligible as often as the people of the United States shall think
him worthy of their confidence. In these circumstances there is a total
dissimilitude between him and a king of Great Britain, who is an hereditary
monarch, possessing the crown as a patrimony descendible to his heirs forever;
but there is a close analogy between him and a governor of New York, who is
elected for three years, and is re-eligible without limitation or
intermission. If we consider how much less time would be requisite for
establishing a dangerous influence in a single State, than for establishing a
like influence throughout the United States, we must conclude that a duration
of four years for the Chief Magistrate of the Union is a degree of permanency
far less to be dreaded in that office, than a duration of three years for a
corresponding office in a single State.
4 The President of the United States would be liable to
be impeached, tried, and, upon conviction of treason, bribery, or other high
crimes or misdemeanors, removed from office; and would afterwards be liable to
prosecution and punishment in the ordinary course of law. The person of the
king of Great Britain is sacred and inviolable; there is no constitutional
tribunal to which he is amenable; no punishment to which he can be subjected
without involving the crisis of a national revolution. In this delicate and
important circumstance of personal responsibility, the President of
Confederated America would stand upon no better ground than a governor of New
York, and upon worse ground than the governors of Maryland and Delaware.
5 The President of the United States is to have power
to return a bill, which shall have passed the two branches of the legislature,
for reconsideration; and the bill so returned is to become a law, if, upon
that reconsideration, it be approved by two thirds of both houses. The king of
Great Britain, on his part, has an absolute negative upon the acts of the two
houses of Parliament. The disuse of that power for a considerable time past
does not affect the reality of its existence; and is to be ascribed wholly to
the crown's having found the means of substituting influence to authority, or
the art of gaining a majority in one or the other of the two houses, to the
necessity of exerting a prerogative which could seldom be exerted without
hazarding some degree of national agitation. The qualified negative of the
President differs widely from this absolute negative of the British sovereign;
and tallies exactly with the revisionary authority of the council of revision
of this State, of which the governor is a constituent part. In this respect
the power of the President would exceed that of the governor of New York,
because the former would possess, singly, what the latter shares with the
chancellor and judges; but it would be precisely the same with that of the
governor of Massachusetts, whose constitution, as to this article, seems to
have been the original from which the convention have copied.
6 The President is to be the "commander-in-chief
of the army and navy of the United States, and of the militia of the several
States, when called into the actual service of the United States. He is to
have power to grant reprieves and pardons for offenses against the United
States, except in cases of impeachment; to recommend to the consideration of
Congress such measures as he shall judge necessary and expedient; to convene,
on extraordinary occasions, both houses of the legislature, or either of them,
and, in case of disagreement between them with respect to the time of
adjournment, to adjourn them to such time as he shall think proper; to take
care that the laws be faithfully executed; and to commission all officers of
the United States." In most of these particulars, the power of the
President will resemble equally that of the king of Great Britain and of the
governor of New York. The most material points of difference are these: --
First. The President will have only the occasional command of such part of the
militia of the nation as by legislative provision may be called into the
actual service of the Union. The king of Great Britain and the governor of New
York have at all times the entire command of all the militia within their
several jurisdictions. In this article, therefore, the power of the President
would be inferior to that of either the monarch or the governor. Second. The
President is to be commander-in-chief of the army and navy of the United
States. In this respect his authority would be nominally the same with that of
the king of Great Britain, but in substance much inferior to it. It would
amount to nothing more than the supreme command and direction of the military
and naval forces, as first General and admiral of the Confederacy; while that
of the British king extends to the declaring of war and to the raising and
regulating of fleets and armies -- all which, by the Constitution under
consideration, would appertain to the legislature.[1] The governor of New
York, on the other hand, is by the constitution of the State vested only with
the command of its militia and navy. But the constitutions of several of the
States expressly declare their governors to be commanders-in-chief, as well of
the army as navy; and it may well be a question, whether those of New
Hampshire and Massachusetts, in particular, do not, in this instance, confer
larger powers upon their respective governors, than could be claimed by a
President of the United States. Third. The power of the President, in respect
to pardons, would extend to all cases, except those of impeachment. The
governor of New York may pardon in all cases, even in those of impeachment,
except for treason and murder. Is not the power of the governor, in this
article, on a calculation of political consequences, greater than that of the
President? All conspiracies and plots against the government, which have not
been matured into actual treason, may be screened from punishment of every
kind, by the interposition of the prerogative of pardoning. If a governor of
New York, therefore, should be at the head of any such conspiracy, until the
design had been ripened into actual hostility he could insure his accomplices
and adherents an entire impunity. A President of the Union, on the other hand,
though he may even pardon treason, when prosecuted in the ordinary course of
law, could shelter no offender, in any degree, from the effects of impeachment
and conviction. Would not the prospect of a total indemnity for all the
preliminary steps be a greater temptation to undertake and persevere in an
enterprise against the public liberty, than the mere prospect of an exemption
from death and confiscation, if the final execution of the design, upon an
actual appeal to arms, should miscarry? Would this last expectation have any
influence at all, when the probability was computed, that the person who was
to afford that exemption might himself be involved in the consequences of the
measure, and might be incapacitated by his agency in it from affording the
desired impunity? The better to judge of this matter, it will be necessary to
recollect, that, by the proposed Constitution, the offense of treason is
limited "to levying war upon the United States, and adhering to their
enemies, giving them aid and comfort"; and that by the laws of New York
it is confined within similar bounds. Fourth. The President can only adjourn
the national legislature in the single case of disagreement about the time of
adjournment. The British monarch may prorogue or even dissolve the Parliament.
The governor of New York may also prorogue the legislature of this State for a
limited time; a power which, in certain situations, may be employed to very
important purposes.
7 The President is to have power, with the advice and
consent of the Senate, to make treaties, provided two thirds of the senators
present concur. The king of Great Britain is the sole and absolute
representative of the nation in all foreign transactions. He can of his own
accord make treaties of peace, commerce, alliance, and of every other
description. It has been insinuated, that his authority in this respect is not
conclusive, and that his conventions with foreign powers are subject to the
revision, and stand in need of the ratification, of Parliament. But I believe
this doctrine was never heard of, until it was broached upon the present
occasion. Every jurist[2] of that kingdom, and every other man acquainted with
its Constitution, knows, as an established fact, that the prerogative of
making treaties exists in the crown in its utomst plentitude; and that the
compacts entered into by the royal authority have the most complete legal
validity and perfection, independent of any other sanction. The Parliament, it
is true, is sometimes seen employing itself in altering the existing laws to
conform them to the stipulations in a new treaty; and this may have possibly
given birth to the imagination, that its co-operation was necessary to the
obligatory efficacy of the treaty. But this parliamentary interposition
proceeds from a different cause: from the necessity of adjusting a most
artificial and intricate system of revenue and commercial laws, to the changes
made in them by the operation of the treaty; and of adapting new provisions
and precautions to the new state of things, to keep the machine from running
into disorder. In this respect, therefore, there is no comparison between the
intended power of the President and the actual power of the British sovereign.
The one can perform alone what the other can do only with the concurrence of a
branch of the legislature. It must be admitted, that, in this instance, the
power of the federal Executive would exceed that of any State Executive. But
this arises naturally from the sovereign power which relates to treaties. If
the Confederacy were to be dissolved, it would become a question, whether the
Executives of the several States were not solely invested with that delicate
and important prerogative.
8 The President is also to be authorized to receive
ambassadors and other public ministers. This, though it has been a rich theme
of declamation, is more a matter of dignity than of authority. It is a
circumstance which will be without consequence in the administration of the
government; and it was far more convenient that it should be arranged in this
manner, than that there should be a necessity of convening the legislature, or
one of its branches, upon every arrival of a foreign minister, though it were
merely to take the place of a departed predecessor.
9 The President is to nominate, and, with the advice
and consent of the Senate, to appoint ambassadors and other public ministers,
judges of the Supreme Court, and in general all officers of the United States
established by law, and whose appointments are not otherwise provided for by
the Constitution. The king of Great Britain is emphatically and truly styled
the fountain of honor. He not only appoints to all offices, but can create
offices. He can confer titles of nobility at pleasure; and has the disposal of
an immense number of church preferments. There is evidently a great
inferiority in the power of the President, in this particular, to that of the
British king; nor is it equal to that of the governor of New York, if we are
to interpret the meaning of the constitution of the State by the practice
which has obtained under it. The power of appointment is with us lodged in a
council, composed of the governor and four members of the Senate, chosen by
the Assembly. The governor claims, and has frequently exercised, the right of
nomination, and is entitled to a casting vote in the appointment. If he really
has the right of nominating, his authority is in this respect equal to that of
the President, and exceeds it in the article of the casting vote. In the
national government, if the Senate should be divided, no appointment could be
made; in the government of New York, if the council should be divided, the
governor can turn the scale, and confirm his own nomination.[3] If we compare
the publicity which must necessarily attend the mode of appointment by the
President and an entire branch of the national legislature, with the privacy
in the mode of appointment by the governor of New York, closeted in a secret
apartment with at most four, and frequently with only two persons; and if we
at the same time consider how much more easy it must be to influence the small
number of which a council of appointment consists, than the considerable
number of which the national Senate would consist, we cannot hesitate to
pronounce that the power of the chief magistrate of this State, in the
disposition of offices, must, in practice, be greatly superior to that of the
Chief Magistrate of the Union.
10 Hence it appears that, except as to the concurrent
authority of the President in the article of treaties, it would be difficult
to determine whether that magistrate would, in the aggregate, possess more or
less power than the Governor of New York. And it appears yet more
unequivocally, that there is no pretense for the parallel which has been
attempted between him and the king of Great Britain. But to render the
contrast in this respect still more striking, it may be of use to throw the
principal circumstances of dissimilitude into a closer group.
11 The President of the United States would be an
officer elected by the people for four years; the king of Great Britain is a
perpetual and hereditary prince. The one would be amenable to personal
punishment and disgrace; the person of the other is sacred and inviolable. The
one would have a qualified negative upon the acts of the legislative body; the
other has an absolute negative. The one would have a right to command the
military and naval forces of the nation; the other, in addition to this right,
possesses that of declaring war, and of raising and regulating fleets and
armies by his own authority. The one would have a concurrent power with a
branch of the legislature in the formation of treaties; the other is the sole
possessor of the power of making treaties. The one would have a like
concurrent authority in appointing to offices; the other is the sole author of
all appointments. The one can confer no privileges whatever; the other can
make denizens of aliens, noblemen of commoners; can erect corporations with
all the rights incident to corporate bodies. The one can prescribe no rules
concerning the commerce or currency of the nation; the other is in several
respects the arbiter of commerce, and in this capacity can establish markets
and fairs, can regulate weights and measures, can lay embargoes for a limited
time, can coin money, can authorize or prohibit the circulation of foreign
coin. The one has no particle of spiritual jurisdiction; the other is the
supreme head and governor of the national church! What answer shall we give to
those who would persuade us that things so unlike resemble each other? The
same that ought to be given to those who tell us that a government, the whole
power of which would be in the hands of the elective and periodical servants
of the people, is an aristocracy, a monarchy, and a despotism.
PUBLIUS
1. A writer in a Pennsylvania paper, under the
signature of TAMONY, has asserted that the king of Great Britain oweshis
prerogative as commander-in-chief to an annual mutiny bill. The truth is, on
the contrary, that his prerogative, in this respect, is immenmorial, and was
only disputed, "contrary to all reason and precedent," as Blackstone
vol. i., page 262, expresses it, by the Long Parliament of Charles I. but by
the statute the 13th of Charles II., chap. 6, it was declared to be in the
king alone, for that the sole supreme government and command of the militia
within his Majesty's realms and dominions, and of all forces by sea and land,
and of all forts and places of strength, EVER WAS AND IS the undoubted right
of his Majesty and his royal predecessors, kings and queens of England, and
that both or either house of Parliament cannot nor ought to pretend to the
same.
2. Vide Blackstone's Commentaries, Vol I., p. 257.
3. Candor, however, demands an acknowledgment that I
do not think the claim of the governor to a right of nomination well founded.
Yet it is always justifiable to reason from the practice of a government, till
its propriety has been constitutionally questioned. And independent of this
claim, when we take into view the other considerations, and pursue them
through all their consequences, we shall be inclined to draw much the same
conclusion.
1. 1st clause, 4th section, of the 1st article.
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