by James Madison, John Jay, and Alexander Hamilton
Generated summaryFive essays on the Senate's design and powers, arguing that a smaller, longer-serving body that represents the states equally gives the government stability, expertise, and a fitness for treaties and impeachments that a large, fast-turnover assembly could never supply.
Federalist 62
Generated summaryThe Senate is built for what a single popular assembly does badly. Senators must be older and longer citizens, the State legislatures choose them, each State votes equally, and a second chamber checks hasty and changeable lawmaking.Key points
The Senate, examined under five heads, is defended as a stabilizing second chamber that cures the defects of a single popular assembly.
Senators need greater age and longer citizenship, thirty years and nine, for a trust requiring knowledge, steadiness, and freedom from foreign attachment.
Appointment by the State legislatures gives a double advantage: a select choice, and a link securing the States’ own authority.
Equal representation of the States is a compromise that recognizes and preserves each State’s residual sovereignty against consolidation.
It adds an obstacle to bad legislation: nothing passes without a majority both of the people and of the States.
The small number and long term answer a republic’s ills: betrayal of trust, sudden passions, want of legislative knowledge, and instability.
A mutable government forfeits foreign respect, and laws too changeable to be known cease to be any rule at all.
Instability enriches the shrewd few at the expense of the many, chills enterprise, and erodes the people’s attachment.
I turn now to the Senate, under five heads: qualifications; appointment by the State legislatures; equal representation; number and term; powers. A senator must be thirty and a citizen nine years; a representative, twenty-five and seven. The senatorial trust needs riper years for knowledge and steadiness. It deals directly with foreign nations, so it suits only men weaned from the habits of foreign birth. Nine years is a prudent middle: it admits worthy adopted citizens without opening a channel to foreign influence. Appointment by the State legislatures probably suits public opinion best. It favors a select appointment and gives the States a hand in forming the federal government, which must secure their authority and may link the systems.
OriginalHAVING 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 stability 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.
Equal representation in the Senate is a compromise between large and small States. If proportional shares suit one incorporated people, and equal shares suit sovereign States in a league, a compound republic partaking of both has some reason to mix them. But all admit this part sprang from amity and mutual concession, not theory. America needs a common government equal to its objects. The smaller States will not grant one shaped to the larger’s wishes. The larger States must choose between this government and a worse one. Prudence bids them take the lesser evil and weigh the advantages that may repay the sacrifice.
OriginalIII. 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.
The equal vote both recognizes and preserves each State’s remaining sovereignty. Large States should welcome it as much as small; they too guard against consolidation into one republic. It also blocks bad laws: nothing passes without a majority of both the people and the States. This check may harm as well as help. But the larger States control the supplies and can defeat its abuse. And since the ease and excess of law-making seem our governments’ likeliest diseases, this part may prove more convenient in practice than many suppose.
OriginalIn 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.
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.
Senators’ number and term turn on a senate’s purposes, seen in the ills a republic suffers without one. First. Even in republican government, those who run it may betray their trust. A senate, a second branch dividing power with the first, is a wholesome check. It doubles the people’s security: usurpation or treachery now needs two bodies, where the ambition or corruption of one would otherwise suffice. Combinations grow less likely as the two bodies differ, so we should distinguish them by every mark consistent with due harmony and genuine republican principles.
OriginalIV. 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.
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.
Second. Single and numerous assemblies yield to sudden passions and factious leaders, and pass harmful measures. The correcting body must be free of the fault: fewer members, longer terms.
Third. Men called mostly from private life, briefly in office, with no motive to study the objects and principles of legislation, will blunder if left wholly to themselves. Much of America’s trouble traces to such blunders, from the head, not the heart. Good government needs fidelity to the people’s happiness and knowledge of the means. We have slighted the second; the Constitution supplies it, and so strengthens the first.
OriginalSecond. 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.
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?
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.
Fourth. A rapid turnover of members, however qualified, shakes the public councils and shows the need for a stable institution. Each State election changes half the representatives; new men bring new opinions, new measures. Constant change even of good measures defies every rule of prudence. Its harms would fill a volume; I note a few.
OriginalFourth. 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.
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.
In the first place, a changeable government forfeits the respect of other nations and every advantage of national character. A nation betraying want of wisdom and stability may count on every loss the more systematic policy of wiser neighbors can inflict. America is her own lesson. She is held in no respect by her friends, derided by her enemies, a prey to every nation that trades on her wavering councils.
OriginalIn 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.
The internal effects of a changeable policy are worse: they poison liberty itself. The people gain little by choosing their lawmakers if the laws cannot be read or understood. Nor if they are revised before they appear, or change so fast none can guess tomorrow’s law. Law is a rule of action; what rule is little known and less fixed?
OriginalThe 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?
Instability also gives the shrewd, enterprising, and moneyed few an unfair advantage over the industrious, uninformed mass. Every new regulation of commerce, revenue, or property is a harvest to those who watch and can trace the change. Here, it may be said with some truth, laws are made for the few, not the many. Want of confidence in the public councils damps every venture depending on lasting arrangements. Worst of all, the people lose their attachment to a system that betrays such weakness. No government is long respected without being respectable, nor respectable without order and stability.
OriginalAnother effect of public instability is the unreasonable advantage it gives to the sagacious, the enterprising, and the moneyed few over the industrious and uninformed 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.
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.
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 63
Generated summaryA stable, select Senate gives the nation a sense of responsibility and a reputation abroad that a fast-changing House cannot. No long-lived republic has lacked one. Critics still fear it could harden into an aristocracy.Key points
A senate supplies still more that a fleeting assembly cannot: a sense of national character, long-term responsibility, and a guard against the people’s passions.
A due sense of national character earns foreign respect and steadies councils that passion or interest might warp.
Some measures bear fruit only over years, and only a stable body can be justly answerable for them.
A senate defends the people against their own temporary errors, so their cool and deliberate sense ultimately prevails.
No long-lived republic has existed without a senate; Sparta, Rome, and Carthage alone prove the need.
Representation was not unknown to the ancients; America’s true distinction is excluding the people in their collective capacity.
The Senate cannot grow into an aristocracy: it could usurp only by corrupting the States, the House, and the people in turn.
Maryland’s like Senate shows no such danger, and in Britain the popular branch has always overmatched the hereditary house.
A fifth gain from a senate is a due sense of national character. Without a select and stable branch, shifting policy costs us foreign esteem. Our councils also lose their feel for world opinion. That judgment matters for two reasons. First, a measure should look abroad like the fruit of wise, honorable policy. Second, in doubtful cases, where passion or momentary interest may warp our councils, the impartial world’s view is the best guide. No large, changing body can hold such a sense. It lives only where praise and blame fall on each member, or in a body trusted long enough to tie its pride to the community’s good name.
OriginalA 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.
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?
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.
I add a sixth defect: in some cases the government owes the people too little responsibility. It springs from the frequency of elections that creates responsibility elsewhere. To be fair, responsibility must reach only what the responsible party controls; to work, only what constituents can judge. Government’s objects are of two kinds. Some act at once and in plain sight. Others are chains of linked measures whose effect is slow and perhaps unseen. An assembly with so short a term adds one or two links to that chain. It cannot answer for the result. The cure is an added legislative body, lasting enough to pursue such objects and answer for them.
OriginalI 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.
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.
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.
So far I have weighed the Senate only against the people’s representatives. I add that such a body may guard the people from their own passing errors and delusions. The community’s cool, settled sense ought to prevail over its rulers, and in free governments it finally will. Yet at times passion, private gain, or the artful false claims of interested men sway the people. They then call for measures they will soon regret. A calm, respected body can check that course and hold back the people’s blow at themselves until reason, justice, and truth regain their hold.
OriginalThus 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.
A widely spread people, it may be objected, cannot catch violent passions or join in unjust measures like a crowded district. I grant it, having called it a chief merit of a confederated republic. Still, it does not remove the need for other guards. The same extent that spares America some dangers of small republics leaves her longer under interested men’s false claims. History also knows no long-lived republic without a senate: Sparta, Rome, and Carthage alone bear that name. The first two had a senate for life; Carthage’s, less known, steadied it against popular swings.
OriginalIt 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.
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 ancient examples are not for us to copy; they clash with America’s genius. Still they prove the need for an institution that blends stability with liberty. Some defects only a senate can cure belong to a large, often-elected assembly and to the people alike. Others belong to the assembly alone. The people never willfully betray their own interests; their representatives may. That danger is greater where one body holds the whole legislative trust. It is less where dissimilar bodies must agree to every public act.
OriginalThese 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.
The difference most relied on between the American and other republics is representation. It is the pivot of our government, and supposed unknown to the ancients. I do not undervalue it. Still, that claim is not precisely true. Athens chose nine Archons yearly, and later an assembly of six hundred that helped make the laws and alone could propose them. Carthage’s senate was elective. Sparta’s Ephori and Rome’s Tribunes were chosen each year by the whole people, and acted almost as their full representatives.
OriginalThe 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.
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.
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.
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.
So the ancients knew representation and used it in their constitutions. The true distinction lies elsewhere. American governments shut the people, in their collective capacity, out of any share in governing. The ancients did not shut out the people’s representatives. That still leaves a great advantage to the United States. But it takes full effect only with an extensive territory. No representative government could have worked within the narrow limits of Greece.
OriginalFrom 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.
The Constitution’s jealous adversary will probably repeat his charge. A Senate not chosen directly by the people, and seated six years, must gradually gain a dangerous upper hand and end in a tyrannical aristocracy. The general reply should be enough. Liberty may be endangered by abuses of liberty as well as by abuses of power, and here the first seems the greater danger. But a more particular reply may be given.
OriginalIn 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.
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.
Before such a revolution, the Senate must corrupt itself, then the State legislatures, then the House of Representatives, then the people at large. Without the legislatures, the regular change of members would renew the whole body. Without the House, that coequal branch would defeat the attempt. Without the people, new representatives would soon restore the old order. Can any man believe the Senate could reach a lawless ambition through all these obstacles?
OriginalBefore 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?
Experience says the same. Maryland’s Senate is chosen indirectly, as the federal Senate will be, for a term only one year shorter; it also fills its own vacancies. Yet no symptom of danger has appeared there, and the early jealousies have died away. The British example is stronger. Its upper house is a hereditary body of nobles, and its Commons sits seven years, chosen largely by a small part of the people. There, if anywhere, aristocratic tyranny should appear. Instead the nobles lost the monarch’s support and were crushed by the popular branch.
OriginalIf 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.
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.
Antiquity agrees. Sparta’s Ephori and Rome’s Tribunes were the people’s yearly representatives. Both overmatched their senates for life and at last prevailed. In a free government, the branch with the people on its side cannot be beaten. So the federal Senate can never usurp its way into an independent aristocratic body. Should such a revolution ever come, the House, with the people behind it, could restore the Constitution. Against the people’s immediate representatives, nothing could uphold the Senate but enlightened policy and devotion to the public good. That alone would win it a share of the people’s affection.
OriginalAs 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.
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 64
Generated summaryThe treaty power rests with the President and Senate. Their mode of choice and long terms bring able men to it, and the President’s command of secret intelligence keeps talks both careful and quick.Key points
The treaty power is safely lodged with the President and Senate, whose mode of choice yields the ablest men and joins deliberation with secrecy.
Select electors and the State legislatures choose more wisely than popular elections, which party zeal exploits.
Age limits confine the choice to men the people have had time to judge.
Long terms let them master our national concerns and form a steady system, while staggered elections preserve continuity.
The President can pursue secrecy and dispatch, seizing the fleeting tides of affairs and convening the Senate only when its consent is needed.
A treaty is a bargain binding both parties, so the legislature alone need not make it, nor may it be repealed at will.
Its makers are bound like all others, have no separate interest, and remain answerable through impeachment.
Enemies of men and measures rarely blame only what deserves it. How else can I explain condemning the whole Constitution, then attacking its least objectionable articles? The second section lets the President make treaties by the Senate’s advice and consent, two-thirds of the senators present concurring. Power over war, peace, and trade needs guards: that it go to the best-qualified men, and serve the public good. The convention met both: electors deputed by the people name the President, the State legislatures the senators. That beats popular election, where party zeal works on the unwary.
OriginalIT 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.
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." 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.
Such electors will in general be our most enlightened citizens. We may presume their votes go only to men marked by ability and virtue. The Constitution bars men under thirty-five from the presidency, under thirty from the Senate, so the people have had time to judge them. The men so chosen will best know and advance our national interests, at home and abroad, and their reputation for integrity merits confidence. With such men the treaty power is safely lodged.
OriginalAs 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.
Some would give the treaty power to a popular assembly whose members come and go. Such a body cannot handle great objects, which need steady study, talent, exact knowledge, and time. The convention therefore gave it to able, honest men, whose term is long enough to master our concerns and form a system. Frequent Senate elections never hand these affairs all at once to new men. Enough of the old stay to preserve uniformity, order, and steady official knowledge.
OriginalAlthough 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 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.
Few deny that trade and navigation need a steady system, which our treaties and laws should match; the Senate’s consent to both secures it. Treaties also sometimes need secrecy and speed. The best intelligence comes only when its holders fear no discovery. Many would trust the President’s secrecy, but not the Senate’s, still less a large assembly’s. So the President forms treaties by the Senate’s advice and consent, yet manages intelligence as prudence suggests.
OriginalThere 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.
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.
Days, even hours, are often precious to those who govern, as experienced men tell us. Want of secrecy and speed has cost us often and dearly; to neglect them would leave the Constitution inexcusably defective. The steps needing most secrecy and speed are preparatory ones. They matter nationally only as they help attain the negotiation’s aims, so the President can take them alone. He can call the Senate whenever its consent is needed. So our negotiations gain talent, knowledge, integrity, and deliberation, with secrecy and speed besides.
OriginalThey 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.
Some find no defect, yet say that treaties, having the force of law, belong to lawmakers only. They forget that our courts’ judgments bind as fully as laws. Every constitutional act, executive or judicial, is as valid. So the people may lodge the treaty power in a body apart from the legislature, the executive, and the judiciary.
OriginalBut to this plan, as to most others that have ever appeared, objections are contrived and urged. 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.
Others accept the mode, but would have treaties repealable at pleasure, not supreme law. Yet a treaty is only another name for a bargain. No nation would bind itself absolutely while we stayed bound only so long as we chose. Treaty-makers may cancel treaties, as lawmakers repeal laws; but both parties made the treaty, and both must consent to change it. The Constitution has therefore not extended the obligation of treaties.
OriginalOthers, 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.
Jealousy may serve republics, yet like bile it can abound and deceive the eyes. Hence some fear the President and Senate may slight some States in treaties; others, that two-thirds will oppress the third. They ask if these men are answerable, if corruption can be punished, and how a bad treaty may be undone.
OriginalHowever 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?
All the States are equally represented in the Senate by able and willing men, so all have equal influence there. As the Union grows national, the whole’s good gains attention, served only by advancing each part’s. No treaty they make can spare them: they, their families, and their estates are bound like the rest. With no private interest apart from the nation’s, they lie under no temptation to neglect it.
OriginalAs 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.
Corruption cannot be supposed of the President and two-thirds of the Senate. Should it happen, the treaty so gained would be void by the law of nations. Their responsibility could hardly be increased. Every motive that sways men secures their fidelity: honor, oaths, reputation, conscience, love of country, and family ties. The Constitution has taken the utmost care that they be men of talents and integrity. So we may trust their treaties will be as good as circumstances allow. The impeachment article supplies the fear of punishment and disgrace.
OriginalAs 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.
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 65
Generated summaryImpeachments belong to the Senate, not the Supreme Court. It is dignified and independent enough to judge fairly between an accused official and the House that accuses him, and large enough for a power bound by no strict rules.Key points
The Senate is the fittest court for trying impeachments, a national inquest best conducted by the nation’s representatives.
Impeachments reach political offenses that agitate the whole community, risking a verdict fixed by party strength rather than guilt.
Britain’s model, the Commons accusing and the Lords judging, treats impeachment as the legislature’s bridle on the executive.
The Supreme Court would serve poorly, wanting the fortitude and credit for a proceeding too grave and unbound to trust to a few judges.
The same judges should not try both the impeachment and the later criminal case, or the double security of two trials is lost.
Making the chief justice preside secures the union’s benefit without incorporating the Court into the Senate.
Perfection is no fair standard; adversaries must prove the whole plan bad, not merely imperfect.
Two Senate powers remain: a share in appointments, and the court of impeachments, with which I close. Appointments belong with the executive department. That court tries the misconduct of public men, the abuse of some public trust. Such offenses are rightly called political, for they chiefly concern injuries to society itself. Their trial will seldom fail to rouse the whole community and split it for or against the accused. In many cases it joins existing factions; then the greatest danger is that party strength, not proof of guilt, decides.
OriginalTHE 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.
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.
This trust touches the political reputation and existence of every public man. It is hard to place in a government built wholly on elections. The most prominent men there are too often leaders or tools of the cunning or numerous faction. They can hardly be expected to hold the neutrality judging requires. The convention, it appears, thought the Senate its fittest keeper.
OriginalThe 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.
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.
If impeachment’s true spirit is a national inquest into the conduct of public men, who should be the nation’s inquisitors but its representatives? None dispute that one branch of the legislature should prefer the impeachment. The same reasons plead for admitting the other branch to a share. The borrowed model treats impeachment as a bridle in the legislature’s hands upon the executive: in Great Britain the Commons prefers and the Lords decides. Where else is a tribunal dignified and independent enough to stay impartial between the accused and his accusers, the people’s representatives?
OriginalWhat, 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?
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?
It is much to be doubted whether the Supreme Court’s members would always have the fortitude this task demands. Still more doubtful is whether their credit could reconcile the people to a decision against their representatives’ charge. The first want is fatal to the accused, the second dangerous to public peace. Both hazards could be avoided only by a court larger than economy allows. The proceeding’s nature demands a large court too. No strict rules bind the charge or its reading, as in common trials. No jury stands between the judges and the accused. Such awful discretion, dooming trusted men to honor or infamy, must not rest with a few.
OriginalCould 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.
These considerations alone seem enough to make the Supreme Court an improper substitute for the Senate; one more strengthens the conclusion. Conviction does not end the punishment. Barred for life from his country’s esteem, honors, and salaries, he may still be tried at ordinary law. Should the men who disposed of his fame dispose of his life and fortune too? Error in the first sentence would be apt to breed error in the second, robbing him of the double security two trials intend. A jury might seem the cure, but juries often follow the judges.
OriginalThese 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 perpetual 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?
Would joining the Supreme Court to the Senate here have improved the plan? Its advantages would be outweighed by the same judges sitting in both trials of the offender. The plan gains part of that benefit by making the chief justice preside over the court of impeachments, without a full merger.
OriginalWould 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.
Would a court wholly apart from the other departments serve better? Complexity is one objection; the graver is heavy expense or many mishaps. Only two forms are easy to imagine: permanent officers on fixed salaries, or state officers called in for each impeachment. The court ought to be large, so anyone weighing public wants against means condemns the first. The second means gathering men scattered over the Union, while delay injures the innocent and helps the guilty. It might also rob a state of good men persecuted by a rash or scheming House majority. Harsh as that seems, the demon of faction rules all large bodies at certain seasons.
OriginalWould 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.
Even if some substitute were better, the Constitution should not for that be rejected. If men agreed to no government until every part were perfect, society would soon fall into anarchy and the world become a desert. Its opponents must prove more than that some parts fall short of the best imaginable; they must prove the whole plan bad and pernicious.
OriginalBut 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 community, 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 66
Generated summaryThe objections to trying impeachments in the Senate do not hold. Partial blending of legislative and judicial power is proper, the House keeps real counterweights, and the Senate’s share in appointments and treaties gives it no motive to shield guilt.Key points
The four main objections to trying impeachments in the Senate all fail on examination.
Blending the powers here is proper: one house accuses and the other judges, and impeachment is the legislature’s check on the executive.
Fears of an over-mighty Senate are met by the House’s counterweights: money bills, the sole power to impeach, and umpiring disputed presidential elections.
Senators would not shield their own appointees, for they merely ratify the President’s choice and are presumed to drop the unworthy.
Nor can senators be their own judges: two-thirds cannot be impeached for a bad treaty any more than a legislative majority for a bad law.
Members must stay exempt for acts done collectively, so security rests on trusting proper hands, not on punishing votes.
Yet a faithless executive, or senators corrupted by foreign gold, remain fully open to punishment.
The first objection: trying impeachments in the Senate mixes legislative and judicial power. That breaks the maxim of separate departments. But the maxim allows partial blending for special purposes, if the departments stay mainly distinct. Such blending is at times needed for their mutual defense. An executive veto bars legislative encroachment. Perhaps, with no less reason, impeachment checks the executive. One house accuses, the other judges, so the same men are never both accusers and judges. That also guards against a factious spirit in either house. Conviction needs two thirds of the Senate, so innocence is safe.
OriginalA 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.
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 well-established 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.
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?
A second objection: the Senate already shares treaties and appointments. Add every impeachment, and its influence would dominate, making the government too aristocratic. The charge is too vague to answer precisely. Better to weigh each power alone, and lodge it where it does most good and least harm. My last paper went far toward proving that no fitter seat exists for impeachments. If that is so, drop the fear of a Senate grown too strong.
OriginalA 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?
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.
In any republican government the most popular branch is generally the people’s favorite. History and reason show it will commonly be a full match for every other part, if not an overmatch. The plan adds counterweights: the House alone originates money bills. It alone brings impeachments, a full counterbalance to deciding them. It also umpires any presidential election no majority of electors settles, a case sure to arise. Deciding contests for the first office may outweigh all the Senate’s special powers.
OriginalBut 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.
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.
A third objection: senators would judge gently the men they helped appoint. But that condemns a practice in every State government, where officers at pleasure depend on those who appoint them. The practice rests on another presumption. Appointers answer for their choices and want affairs well run, so they will remove the unworthy. Facts may not always bear this out, yet if it is broadly just, the fear falls. The President nominates; the Senate only ratifies or rejects, and never chooses. It may defeat one choice and force another, yet senators may consent while preferring someone else. So a majority can favor an appointee only as far as merit appears, and proof of its absence destroys that.
OriginalA 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.
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.
A fourth objection: joining the executive in treaties makes senators their own judges of any corrupt execution of that trust. Suppose they betray the nation in a ruinous treaty. What punishment could follow, when they decide the charge against themselves? It is pressed harder than any other, yet rests, unless I am mistaken, on a false foundation.
OriginalA 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?
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.
The guard against corrupt treaties lies in the numbers and characters of those who make them. A treaty needs the President and two thirds of a Senate the State legislatures choose. The convention might fitly punish the executive, or a few senators bought by foreign corruption. But not two thirds of the Senate for a bad treaty, any more than a majority of either house for a ruinous law. No government, I believe, has ever admitted that principle.
OriginalThe 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.
A majority of the House could no more impeach themselves than two thirds of the Senate could try themselves. Why should the House escape for an unjust law, while the Senate suffers for an injurious treaty? Members must not be punished for acts done as a body; free debate requires it. Safety must rest instead on trusting proper hands, making fidelity their interest, and combination against the public good hard.
OriginalHow, 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.
If the executive perverts the Senate’s instructions, the Senate will not lack the will to punish him and defend its own authority. Count on its pride, if not its virtue. And suppose leading members lure the majority into hateful measures. Clear proof of their corruption would commonly move the body to sacrifice the authors of its disgrace, and so turn public resentment away.
OriginalSo 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
