Antifederalist No. 61
QUESTIONS AND COMMENTS ON THE
CONSTITUTIONAL PROVISIONS REGARDING
THE ELECTION OF CONGRESSMEN
. . . . It is well observed
by Montesquieu, that in republican
governments the forms of elections
are fundamental; and that it is an
essential part of the social
compact, to ascertain by whom, to
whom, when, and in what manner,
suffrages are to be given. Wherever
we find the regulation of elections
have not been carefully fixed by the
constitution, or the principles of
them, we constantly see new
legislatures modifying . . . [their]
own form, and changing the spirit of
the government to answer partial
purposes.
By the proposed plan it is
-fixed, that the qualifications of
the electors of the federal
representatives shall be the same as
those of the electors of state
representatives; though these vary
some in the several states the
electors are fixed and designated.
The qualifications of the
representatives are also fixed and
designated, and no person under 25
years of age, not an inhabitant of
the state, and not having been seven
years a citizen of the United
States, can be elected. The clear
inference is, that all persons 25
years of age, and upwards,
inhabitants of the state, and having
been, at any period or periods,
seven years citizens of the United
States, may be elected
representatives. They have a right
to be elected by the constitution,
and the electors have a right to
choose them. This is fixing the
federal representation, as to the
elected, on a very broad basis. It
can be no objection to the elected,
that they are Christians, Pagans,
Mahometans, or Jews; that they are
of any color, rich or poor, convict
or not. Hence many men may be
elected, who cannot be electors.
Gentlemen who have commented so
largely upon the wisdom of the
constitution, for excluding from
being elected young men under a
certain age, would have done well
to have recollected, that it
positively makes pagans, convicts,
etc., eligible. The people make the
constitution; they exclude a few
persons, by certain descriptions,
from being elected, and all not thus
excluded are clearly admitted. Now
a man 25 years old, an inhabitant of
the state, and having been a citizen
of the states seven years, though
afterwards convicted, may be
elected, because not within any of
the excluding clauses; the same of a
beggar, an absentee, etc.
The right of the electors, and
eligibility of the elected, being
fixed by the people, they cannot be
narrowed by the state legislatures,
or congress. It is established,
that a man being (among other
qualifications) an inhabitant of the
state, shall be eligible. Now it
would be narrowing the right of the
people to confine them in their
choice to a man, an inhabitant of a
particular county or district in the
state. Hence it follows, that
neither the state legislatures nor
congress can establish district
elections; that is, divide the state
into districts, and confine the
electors of each district to the
choice of a man resident in it. If
the electors could be thus limited
in one respect, they might in
another be confined to choose a man
of a particular religion, of certain
property, etc., and thereby half of
the persons made eligible by the
constitution be excluded. All laws,
therefore, for regulating elections
must be made on the broad basis of
the constitution.
Next, we may observe, that
representatives are to be chosen by
the people of the state. What is a
choice by the people of the state?
If each given district in it choose
one, will that be a choice within
the meaning of the constitution?
Must the choice be by plurality of
votes, or a majority? In connection
with these questions, we must take
the 4th Sect., Art I., where it is
said the state legislatures shall
prescribe the times, places, and
manner of holding elections; but
congress may make or alter such
regulations. By this clause, I
suppose, the electors of different
towns and districts in the state may
be assembled in different places, to
give their votes; but when so
assembled, by another clause they
cannot, by congress or the state
legislatures, be restrained from
giving their votes for any man an
inhabitant of the state, and
qualified as to age, and having been
a citizen the time required. But I
see nothing in the constitution by
which to decide, whether the choice
shall be by a plurality or a
majority of votes. This, in my
mind, is by far the most important
question in the business of
elections. When we say a
representative shall be chosen by
the people, it seems to imply that
he shall be chosen by a majority of
them; but states which use the same
phraseology in this respect,
practice both ways. I believe a
majority of the states choose by
pluralities; and, I think it
probable, that the federal house of
representatives will decide that a
choice of its members by pluralities
is constitutional. A man who has
the most votes is chosen in Great
Britain. It is this, among other
things, that gives every man fair
play in the game of influence and
corruption. I believe that not much
stress was laid upon the objection
that congress may assemble the
electors at some out of the way
place. However, the advocates seem
to think they obtain a victory of no
small glory and importance, when
they can show, with some degree of
color, that the evil is rather a
possibility than a probability. . .
It is easy to perceive that there
is an essential difference between
elections by pluralities and by
majorities, between choosing a man
in a small or limited district, and
choosing a number of men
promiscuously by the people of a
large state. And while we are
almost secure of judicious unbiased
elections by majorities in such
districts, we have no security
against deceptions, influence and
corruption in states or large
districts in electing by
pluralities. When a choice is made
by a plurality of votes, it is often
made by a very small part of the
electors, who attend and give their
votes; when by a majority, never by
so few as one half of them. The
partialities and improprieties
attending the former mode may be
illustrated by a case that lately
happened in one of the middle
states. Several representatives
were to be chosen by a large number
of inhabitants compactly settled,
among whom there were four or five
thousand voters. Previous to the
time of election a number of lists
of candidates were published, to
divide and distract the voters in
general. About half a dozen men of
some influence, who had a favorite
list to carry, met several times,
fixed their list, and agreed to hand
it about among all who could
probably be induced to adopt it, and
to circulate the other lists among
their opponents, to divide them.
The poll was opened, and several
hundred electors, suspecting
nothing, attended and put in their
votes. The list of the half dozen
was carried, and men were found to
be chosen, some of whom were very
disagreeable to a large majority of
the electors. Though several
hundred electors voted, men on that
list were chosen who had only 45,
43, 44, etc., votes each. They had
a plurality, that is, more than any
other persons. The votes generally
were scattered, and those who made
even a feeble combination succeeded
in placing highest upon the list
several very unthought of and very
unpopular men. This evil never
could have happened in a town where
all the voters meet in one place,
and consider no man as elected
unless he have a majority, or more
than half of all the votes. Clear
it is, that the man on whom thus but
a small part of the votes are
bestowed cannot possess the
confidence of the people, or have
any considerable degree of influence
over them. But as partial, as liable
to secret influence, and corruption
as the choice by pluralities may be,
I think, we cannot avoid it, without
essentially increasing the federal
representation, and adopting the
principle of district elections.
There is but one case in which the
choice by the majority is
practicable, and that is, where
districts are formed of such
moderate extent that the electors in
each can conveniently meet in one
place, and at one time, and proceed
to the choice of a representative;
when, if no man have a majority or
more than half of all the votes the
first time, the voters may examine
the characters of those brought
forward, accommodate, and proceed to
repeat their votes till some one
shall have that majority. This, I
believe, cannot be a case under the
constitution proposed in its present
form. To explain my ideas, take
Massachusetts, for instance. She is
entitled to eight representatives.
She has 370,000 inhabitants, about
46,000 to one representative. If
the elections be so held that the
electors throughout the state meet
in their several towns or places,
and each elector puts in his vote
for eight representatives, the votes
of the electors will ninety-nine
times in a hundred, be so scattered
that on collecting the votes from
the several towns or places, no
men will be found, each of whom have
a majority of the votes, and
therefore the election will not be
made .... I might add many other
observations to evince the
superiority and solid advantages of
proper district elections, and a
choice by a majority, and to prove
that many evils attend the contrary
practice. These evils we must
encounter as the constitution now
stands. I see no way to fix
elections on a proper footing, and
to render tolerably equal and secure
the federal representation, but by
increasing the representation, so as
to have one representative for each
district in which the electors may
conveniently meet in one place, and
at one time, and choose by a
majority. Perhaps this might be
effected pretty generally, by fixing
one representative for each twelve
thousand inhabitants; dividing, or
fixing the principles for dividing
the states into proper districts;
and directing the electors of each
district to the choice, by a
majority, of some men having a
permanent interest and residence in
it. I speak of a representation
tolerably equal, etc., because I am
still of opinion, that it is
impracticable in this extensive
country to have a federal
representation sufficiently
democratic, or substantially drawn
from the body of the people. The
principles just mentioned may be the
best practical ones we can expect to
establish. By thus increasing the
representation we not only make it
more democratical and secure,
strengthen the confidence of the
people in it, and thereby render it
more nervous and energetic; but it
will also enable the people
essentially to change, for the
better, the principles and forms of
elections. To provide for the
people's wandering throughout
the state for a representative may
sometimes enable them to elect a
more brilliant or an abler man, than
by confining them to districts; but
generally this latitude will be used
to pernicious purposes, especially
connected with the choice by
plurality-when a man in the remote
part of the state, perhaps obnoxious
at home, but ambitious and
intriguing, may be chosen to
represent the people in another part
of the state far distant, and by a
small part of them, or by a faction,
or by a combination of some
particular description of men among
them. This has been long the case
in Great Britain; it is the case in
several states; nor do I think that
such pernicious practices will be
merely possible in our federal
concerns, but highly probable. By
establishing district elections, we
exclude none of the best men from
being elected; and we fix what, in
my mind, is of far more importance
than brilliant talents-I mean a
sameness, as to residence and
interests, between the
representative and his constituents.
And by the election by a majority,
he is sure to be the man, the choice
of more than half of them....
THE FEDERAL FARMER
Antifederalist No. 62
ON THE ORGANIZATION AND POWERS OF
THE SENATE (PART 1)
Taken from the 16th essay of
"Brutus" from The New York Journal
of April 10, 1788.
The following things may be observed
with respect to the constitution of the
Senate.
1st. They are to be elected by the
legislatures of the States and not by the
people, and each State is to be
represented by an equal number.
2d. They are to serve for six years,
except that one third of those first
chosen are to go out of office at the
expiration of two years, one third at the
expiration of four years, and one third at
the expiration of six years, after which
this rotation is to be preserved, but
still every member will serve for
the term of six years.
3d. If vacancies happen by
resignation or otherwise, during the
recess of the legislature of any State,
the executive is authorised to make
temporary appointments until the next
meeting of the legislature.
4. No person can be a senator who
had not arrived to the age of thirty
years, been nine years a citizen of the
United States, and who is not at the time
he is elected an inhabitant of the State
for which he is elected.
The apportionment of members of the
Senate among the States is not according
to numbers, or the importance of the
States, but is equal. This, on the plan
of a consolidated government, is unequal
and improper; but is proper on the system
of confederation - on this principle I
approve of it. It is indeed the only
feature of any importance in the
constitution of a confederated government.
It was obtained after a vigorous struggle
of that part of the Convention who were in
favor of preserving the state governments.
It is to be regretted that they were not
able to have infused other principles into
the plan, to have secured the government
of the respective states, and to have
marked with sufficient precision the line
between them and the general government.
The term for which the senate are to
be chosen, is in my judgment too long, and
no provision being made for a rotation
will, I conceive, be of dangerous
consequence.
It is difficult to fix the precise
period for which the senate should be
chosen. It is a matter of opinion, and
our sentiments on the matter must be
formed, by attending to certain
principles. Some of the duties which are
to be performed by the Senate, seem
evidently to point out the propriety of
their term of service being extended
beyond the period of that of the assembly.
Besides, as they are designed to represent
the aristocracy of the country, it seems
fit they should possess more stability,
and so continue a longer period then that
branch who represent the democracy. The
business of making treaties and some other
which it will be proper to commit to the
senate, requires that they should have
experience, and therefore that they should
remain some time in office to acquire it.
But still it is of equal importance that
they should not be so long in office as to
be likely to forget the hand that formed
them, or be insensible of their interests.
Men long in office are very apt to feel
themselves independent; to form and pursue
interests separate from those who
appointed them. And this is more likely
to be the case with the senate, as they
will for the most part of the time be
absent from the state they represent, and
associate with such company as will
possess very little of the feelings of the
middling class of people. For it is to be
remembered that there is to be a federal
city, and the inhabitants of it will be
the great and the mighty of the earth.
For these reasons I would shorten the term
of their service to four years. Six years
is a long period for a man to be absent
from his home; it would have a tendency to
wean him from his constituents.
A rotation in the senate would also
in my opinion be of great use. It is
probable that senators once chosen for a
state will, as the system now stands,
continue in office for life. The office
will be honorable if not lucrative. The
persons who occupy it will probably wish
to continue in it, and therefore use all
their influence and that of their friends
to continue in office. Their friends will
be numerous and powerful, for they will
have it in their power to confer great
favors-, besides it will before long be
considered as disgraceful not to be
reelected. It will therefore be
considered as a matter of delicacy to the
character of the senator not to return him
again. Everybody acquainted with public
affairs knows how difficult it is to
remove from office a person who is long
been in it. It is seldom done except in
cases of gross misconduct. It is rare
that want of competent ability procures
it. To prevent this inconvenience I
conceive it would be wise to determine,
that a senator should not be eligible
after he had served for the period
assigned by the constitution for a certain
number of years; perhaps three would be
sufficient. A further benefit would be
derived from such an arrangement; it would
give opportunity to bring forward a
greater number of men to serve their
country, and would return those, who
had served, to their state, and afford
them the advantage of becoming better
acquainted with the condition and politics
of their constituents. It further appears
to me proper, that the legislatures should
retain the right which they now hold under
the confederation, of recalling their
members. It seems an evident dictate of
reason that when a person authorises
another to do a piece of business for him,
he should retain the power to displace
him, when he does not conduct according to
his pleasure. This power in the state
legislatures, under confederation, has not
been exercised to the injury of the
government, nor do I see any danger of its
being so exercised under the new system.
It may operate much to the public benefit.
These brief remarks are all I shall
make on the organization of the senate.
The powers with which they are invested
will require a more minute investigation.
This body will possess a strange
mixture of legislative, executive, and
judicial powers, which in my opinion will
in some cases clash with each other.
1. They are one branch of the
legislature, and in this respect will
possess equal powers in all cases with the
house of representatives; for I consider
the clause which gives the house of
representatives the right of originating
bills for raising a revenue as merely
nominal, seeing the senate . . . [has the
power] to propose or concur with
amendments.
2. They are a branch of the executive
in the appointment of ambassadors and
public ministers, and in the appointment
of all other officers, not otherwise
provided for. Whether the forming of
treaties, in which they are joined with
the president, appertains to the
legislative or the executive part of the
government, or to neither, is not
material.
3. They are a part of the judicial,
for they form the court of impeachments.
It has been a long established maxim,
that the legislative, executive and
judicial departments in government should
be kept distinct. It is said, I know,
that this cannot be done. And therefore
that this maxim is not just, or at least
that it should only extend to certain
leading features in a government. I admit
that this distinction cannot be perfectly
preserved. In a due balanced government,
it is perhaps absolutely necessary to give
the executive qualified legislative
powers, and the legislative or a branch of
them judicial powers in the last resort.
It may possibly also, in some special
cases, be advisable to associate the
legislature, or a branch of it, with the
executive, in the exercise of acts of
great national importance. But still the
maxim is a good one, and a separation of
these powers should be sought as far as is
practicable. I can scarcely imagine that
any of the advocates of the system will
pretend, that it was necessary to
accumulate all these powers in the senate.
There is a propriety in the senate's
possessing legislative powers. This is
the principal end which should be held in
view in their appointment. I need not
here repeat what has so often and ably
been advanced on the subject of a division
of the legislative power into two
branches. The arguments in favor of it I
think conclusive. But I think it equally
evident, that a branch of the legislature
should not be invested with the power of
appointing officers. This power in the
senate is very improperly lodged for a
number of reasons - These shall be
detailed in a future number.
BRUTUS
Antifederalist No. 63
ON THE ORGANIZATION AND POWERS OF THE
SENATE (PART 2)
. . . . The senate is an assembly of
26 members, two from each state; though
the senators are apportioned on the
federal plan, they will vote individually.
They represent the states, as bodies
politic, sovereign to certain purposes.
The states being sovereign and
independent, are all considered equal,
each with the other in the senate. In
this we are governed solely by the ideal
equalities of sovereignties; the federal
and state governments forming one whole,
and the state governments an essential
part, which ought always to be kept
distinctly in view, and preserved. I feel
more disposed, on reflection, to acquiesce
in making them the basis of the senate,
and thereby to make it the interest and
duty of the senators to preserve distinct,
and to perpetuate the respective,
sovereignties they shall represent. . . .
The senate, as a legislative branch,
is not large, but as an executive branch
quite too numerous. It is not to be
presumed that we can form a genuine
senatorial branch in the United States, a
real representation of the aristocracy and
balance in the legislature, any more than
we can form a genuine representation of
the people. Could we separate the
aristocratical and democratical interest,
compose the senate of the former, and the
house of assembly of the latter, they are
too unequal in the United States to
produce a balance. Form them on pure
principles, and leave each to be supported
by its real weight and connections, the
senate would be feeble and the house
powerful. I say, on pure principles;
because I make a distinction between a
senate that derives its weight and
influence from a pure source-its numbers
and wisdom, its extensive property, its
extensive and permanent connections
-and a senate composed of a few men,
possessing small property, and small and
unstable connections, that derives its
weight and influence from a corrupt or
pernicious source: that is, merely from
the power given it by the constitution
and laws, to dispose of the public
offices, and the annexed emoluments, and
by those means to interest officers, and
the hungry expectants of offices, in
support of its measures. I wish the
proposed senate may not partake too much
of the latter description.
To produce a balance and checks, the
constitution proposes two branches in the
legislature. But they are so formed, that
the members of both must generally be the
same kind of men-men having similar
interests and views, feelings and
connections - men of the same grade in
society, and who associate on all,
occasions (probably, if there be any
difference, the senators will be the most
democratic.) Senators and representatives
thus circumstanced, as men, though
convened in two rooms to make laws, must
be governed generally by the same motives
and views, and therefore pursue the same
system of politics. The partitions
between the two branches will be merely
those of the building in which they fit.
There will not be found in them any of
those genuine balances and checks, among
the real different interests, and efforts
of the several classes of men in the
community we aim at. Nor can any such
balances and checks be formed in the
present condition of the United States in
any considerable degree of perfection. . .
Though I conclude the senators and
representatives will not form in the
legislature those balances and checks
which correspond with the actual state of
the people, yet I approve of two branches,
because we may notwithstanding derive
several advantages from them. The senate,
from the mode of its appointment, will
probably be influenced to support the
state governments; and, from its periods
of service will produce stability in
legislation, while frequent elections may
take place in the other branch. There is
generally a degree of competition between
two assemblies even composed of the same
kind of men; and by this, and by means of
every law passing a revision in the second
branch, caution, coolness, and
deliberation are produced in the business
of making laws. By means of a democratic
branch we may particularly secure personal
liberty; and by means of a senatorial
branch we may particularly protect
property. By the division, the house
becomes the proper body to impeach all
officers for misconduct in office, and the
senate the proper court to try them; and
in a country where limited powers must be
lodged in the first magistrate, the
senate, perhaps, may be the most proper
body to be found to have a negative upon
him in making treaties, and managing
foreign affairs.
Though I agree the federal senate, in
the form proposed, may be useful to many
purposes, and that it is not very
necessary to alter the organization, modes
of appointment, and powers of it in
several respects; yet, without alterations
in others, I sincerely believe it will, in
a very few years, become the source of the
greatest evils. Some of these
alterations, I conceive, to be absolutely
necessary and some of them at least
advisable.
1. By the confederation the members
of congress are chosen annually. By Art.
1. Sect. 2. of the constitution, the
senators shall be chosen for six years.
As the period of service must be, in a
considerable degree, matter of opinion on
this head, I shall only make a few
observations, to explain why I think it
more advisable to limit it to three or
four years.
The people of this country have not
been accustomed to so long appointments in
their state governments. They have
generally adopted annual elections. The
members of the present congress are chosen
yearly, who, from the nature and
multiplicity of their business, ought to
be chosen for longer periods than the
federal senators. Men six years in office
absolutely contract callous habits, and
cease, in too great a degree, to feel
their dependence, and for the condition of
their constituents. Senators continued in
offices three or four years, will be in
them longer than any popular erroneous
opinions will probably continue to actuate
their electors. Men appointed for three
or four years will generally be long
enough in office to give stability, and
amply to acquire political information.
By a change of legislators, as often as
circumstances will permit, political
knowledge is diffused more extensively
among the people, and the attention of the
electors and elected more constantly kept
alive-circumstances of infinite importance
in a free country. Other reasons might be
added, but my subject is too extensive to
admit of my dwelling upon less material
points.
2. When the confederation was
formed, it was considered essentially
necessary that the members of congress
should at any time be recalled by their
respective states, when the states should
see fit, and others be sent in their room.
I do not think it is less necessary that
this principle should be extended to the
members of congress under the new
constitution, and especially to the
senators. I have had occasion several
times to observe, that let us form a
federal constitution as extensively, and
on the best principles in our power, we
must, after all, trust a vast deal to a
few men, who, far removed from their
constituents, will administer the federal
government. There is but little danger
these men will feel too great a degree of
dependence. The necessary and important
object to be attended to, is to make them
feel dependent enough. Men elected for
several years, several hundred miles
distant from their states, possessed of
very extensive powers, and the means of
paying themselves, will not, probably, be
oppressed with a sense of dependence and
responsibility.
The senators will represent
sovereignties, which generally have, and
always ought to retain, the power of
recalling their agents. The principle of
responsibility is strongly felt in men who
are liable to be recalled and censured for
their misconduct; and, if we may judge
from experience, the latter will not abuse
the power of recalling their members; to
possess it will at least be a valuable
check. It is in the nature of all
delegated power, that the constituents
should retain the right to judge
concerning the conduct of their
representatives. They must exercise the
power, and their decision itself, their
approving or disapproving that conduct
implies a right, a power to continue in
office, or to remove from it. But
whenever the substitute acts under a
constitution, then it becomes necessary
that the power of recalling him be
expressed. The reasons for lodging a
power to recall are stronger, as they
respect the senate, than as they respect
the representatives. The latter will be
more frequently elected, and changed of
course, and being chosen by the people at
large, it would be more difficult for the
people than for the legislatures to take
the necessary measures for recalling. But
even the people, if the powers will be
more beneficial to them than injurious,
ought to possess it. The people are not
apt to wrong a man who is steady and true
to their interests. They may for a while
be misled by party representations, and
leave a good man out of office unheard;
but every recall supposes a deliberate
decision, and a fair hearing. And no man
who believes his conduct proper, and the
result of honest views, will be the less
useful in his public character on account
of the examination his actions may be
liable to. A man conscious of the
contrary conduct ought clearly to be
restrained by the apprehensions of a
trial. I repeat it, it is interested
combinations and factions we are
particularly to guard against in the
federal government, and all the rational
means that can be put into the hands of
the people to prevent them ought to be
provided and furnished for them. Where
there is a power to recall, trusty
sentinels among the people, or in the
state legislatures will have a fair
opportunity to become useful. If the
members in congress from the states join
in such combinations, or favor them, or
pursue a pernicious line of conduct, the
most attentive among the people or in the
state legislatures may formally charge
them before their constituents. The very
apprehensions of such constitutional
charge may prevent many of the evils
mentioned; and the recalling the members
of a single state, a single senator or
representative, may often prevent many
more. Nor do 1, at present, discover any
danger in such proceedings, as every man
who shall move for a recall will put his
reputation at stake, to show he has
reasonable grounds for his motion. It is
not probable such motions will be made
unless there be good apparent grounds for
succeeding. Nor can the charge or motion
be anything more than the attack of an
individual or individuals unless a
majority of the constituents shall see
cause to go into the inquiry. Further,
the circumstances of such a power being
lodged in the constituents will tend
continually to keep up their watchfulness,
as well as the attention and dependence of
the federal senators and representatives.
3. By the confederation it is
provided, that no delegate shall serve
more than three years in any term of six
years; and thus, by the forms of the
government a rotation of members is
produced. A like principle has been
adopted in some of the state governments,
and also in some ancient and modern
republics. Whether this exclusion of a
man for a given period, after he shall
have served a given time, ought to be
ingrafted into a constitution or not is a
question, the proper decision [of which]
materially depends upon the leading
features of the government. Some
governments are so formed as to produce a
sufficient fluctuation and change of
members; in the ordinary course of
elections proper numbers of new members
are from time to time brought into the
legislature, and a proportionate number of
old ones go out, mix, and become diffused
among the people. This is the case with
all numerous representative legislatures,
the members of which are frequently
elected, and constantly within the view of
their constituents. This is the case with
our state governments, and in them a
constitutional rotation is unimportant.
But in a government consisting of but a
few members, elected for long periods, and
far removed from the observation of the
people, but few changes in the ordinary
course of elections take place among the
members. They become in some measure a
fixed body, and often inattentive to the
public good, callous, selfish, and the
fountain of corruption. To prevent these
evils, and to force a principle of pure
animation into the federal government,
which will be formed much in this last
manner mentioned, and to produce
attention, activity, and a diffusion of
knowledge in the community, we ought to
establish among others the principle of
rotation. Even good men in office, in
time, imperceptibly lose sight of the
people, and gradually fall into measures
prejudicial to them. It is only a
rotation among the members of the federal
legislature I shall contend for. Judges
and officers at the heads of the judicial
and executive departments are in a very
different situation. Their offices and
duties require the information and studies
of many years for performing them in a
manner advantageous to the people. These
judges and officers must apply their whole
time to the detail business of their
offices, and depend on them for their
support. Then, they always act under
masters or superiors, and may be removed
from office for misconduct. They pursue a
certain round of executive business; their
offices must be in all societies confined
to a few men, because but few can become
qualified to fill them. And were they, by
annual appointments, open to the people at
large, they are offices of such a nature
as to be of no service to them. They
must leave these offices in the possession
of the few individuals qualified to fill
them, or have them badly filled. In the
judicial and executive departments also,
the body of the people possess a large
share of power and influence, as jurors
and subordinate officers, among whom there
are many and frequent rotations. But in
every free country the legislatures are
all on a level, and legislation becomes
partial whenever, in practice, it rests
for any considerable time in a few hands.
It is the true republican principle to
diffuse the power of making the laws among
the people and so to modify the forms of
the government as to draw in turn the well
informed of every class into the
legislature. To determine the propriety or
impropriety of this rotation, we must take
the inconveniencies as well as the
advantages attending it into view. On the
one hand by this rotation, we may
sometimes exclude good men from being
elected. On the other hand, we guard
against those pernicious connections,
which usually grow up among men left to
continue long periods in office. We
increase the number of those who make the
laws and return to their constituents; and
thereby spread information, and preserve a
spirit of activity and investigation among
the people. Hence a balance of interests
and exertions are preserved, and the
ruinous measures of actions rendered more
impracticable. I would not urge the
principle of rotation, if I believed the
consequence would be an uninformed federal
legislature; but I have no apprehension of
this in this enlightened country. The
members of congress, at any one time, must
be but very few compared with the
respectable well informed men in the
United States; and I have no idea there
will be any want of such men for members
of congress, though by a principle of
rotation the constitution should exclude
from being elected for two years those
federal legislators, who may have served
the four years immediately preceding, or
any four years in the six preceding years.
If we may judge from experience and fair
calculations, this principle will never
operate to exclude at any one period a
fifteenth part even of those men who have
been members of congress. Though no man
can sit in congress by the confederation
more than three years in any term of six
years, yet not more than three, four, or
five men in any one state have been made
ineligible at any one period. And if a
good man happens to be excluded by this
rotation, it is only for a short time.
All things considered, the inconveniencies
of the principle must be very
inconsiderable compared with the many
advantages of it. It will generally be
expedient for a man who has served four
years in congress to return home, mix with
the people, and reside some time with
them. This will tend to reinstate him in
the interests, feelings, and views similar
to theirs, and thereby confirm in him the
essential qualifications of a legislator.
Even in point of information, it may be
observed, the useful information of
legislators is not acquired merely in
studies in offices, and in meeting to make
laws from day to day. They must learn the
actual situation of the people by being
among them, and when they have made laws,
return home and observe how they operate.
Thus occasionally to be among the people,
is not only necessary to prevent or banish
the callous habits and self-interested
views of office in legislators, but to
afford them necessary information, and to
render them useful. Another valuable end
is answered by it, sympathy, and the means
of communication between them and their
constituents, is substantially promoted.
So that on every principle legislators, at
certain periods, ought to live among their
constituents. Some men of science are
undoubtedly necessary in every
legislature; but the knowledge, generally,
necessary for men who make laws, is a
knowledge of the common concerns, and
particular circumstances of the people.
In a republican government seats in the
legislature are highly honorable. I
believe but few do, and surely none ought
to, consider them as places of profit and
permanent support. Were the people always
properly attentive, they would, at proper
periods, call their lawmakers home, by
sending others in their room. But this is
not often the case; and therefore, in
making constitutions, when the people are
attentive, they ought cautiously to
provide for those benefits, those
advantageous changes in the administration
of their affairs, which they are often apt
to be inattentive to in practice. On the
whole, to guard against the evils, and to
secure the advantages I have mentioned,
with the greatest degree of certainty, we
ought clearly in my opinion, to increase
the federal representation, to secure
elections on proper principles, to
establish a right to recall members, and a
rotation among them.
THE FEDERAL FARMER
Antifederalist No. 64
ON THE ORGANIZATION AND POWERS OF THE
SENATE (PART 3)
Taken from the New York Journal, Nov. 22,
1787 by "CINCINNATUS" It appears to have
been written in answer to James Wilson's
Antifederalist # 12)
I come now, sir, to the most
exceptionable part of the Constitution-the
Senate. In this, as in every other part,
you [James Wilson of Pennsylvania] are in
the line of your profession Law], and on
that ground assure your fellow citizens,
that-"perhaps there never was a charge
made with less reason, than that which
predicts the institution of a baneful
aristocracy in the Federal Senate." And
yet your conscience smote you, sir, at the
beginning, and compelled you to prefix a
perhaps to this strange assertion. The
senate, you say, branches into two
characters-the one legislative and the
other executive. This phraseology is
quaint, and the position does not state
the whole truth. I am very sorry, sir, to
be so often obliged to reprehend the
suppression of information at the moment
that you stood forth to instruct your
fellow citizens, in what they were
supposed not to understand. In this
character, you should have abandoned your
professional line, and told them, not only
the truth, but the whole truth. The whole
truth then is, that the same body, called
the senate, is vested with legislative,
executive and judicial powers. The two
first you acknowledge; the last is
conveyed in these words, sec. 3d.: "The
Senate shall have the sole power to try
all impeachments." On this point then we
are to come to issue-whether a senate so
constituted is likely to produce a baneful
aristocracy, which will swallow up the
democratic rights and liberties of the
nation. To judge on this question, it is
proper to examine minutely into the
constitution and powers of the senate; and
we shall then see with what anxious and
subtle cunning it is calculated for the
proposed purpose. 1st. It is removed
from the people, being chosen by the
legislatures-and exactly in the ratio of
their removal from the people do
aristocratic principles constantly infect
the minds of man. 2nd. They endure, two
thirds for four, and one third for six
years, and in proportion to the duration
of power, the aristocratic exercise of it
and attempts to extend it, are invariably
observed to increase. 3rd. From the union
of the executive with the legislative
functions, they must necessarily be longer
together, or rather constantly assembled;
and in proportion to their continuance
together, they will be able to form
effectual schemes for extending their own
power, and reducing that of the democratic
branch. If any one would wish to see this
more fully illustrated, let him turn to
the history of the Decemviri in Rome. 4th.
Their advice and consent being necessary
to the appointment of all the great
officers of state, both at home and
abroad, will enable them to win over any
opponents to their measures in the house
of representatives, and give them the
influence which, we see, accompanies this
power in England; and which, from the
nature of man, must follow it every where.
5th. The sole power of impeachment being
vested in them, they have it in their
power to control the representative in
this democratic right; to screen from
punishment, or rather from conviction, all
high offenders, being their creatures, and
to keep in awe all opponents to their
power in high office. 6th. The union
established between them and the vice
president, who is made one of the corps,
and will therefore be highly animated with
the aristocratic spirit of it, furnishes
them a powerful shield against popular
suspicion and inquiry, he being the second
man in the United States who stands
highest in the confidence and estimation
of the people. And lastly, the right of
altering or amending money-bills, is a
high additional power given them as a
branch of the legislature, which their
analogous branch, in the English
parliament, could never obtain because it
has been guarded by the representatives of
the people there, with the most strenuous
solicitude as one of the vital principles
of democratic liberty.
Is a body so vested with means to
soften and seduce-so armed with power to
screen or to condemn-so fortified against
suspicion and inquiry-so largely trusted
with legislative powers-so independent of
and removed from the people-so tempted to
abuse and extend these powers-is this a
body which freemen ought ever to create,
or which freemen can ever endure? Or is
it not a monster in the political
creation, which we ought to regard with
horror? Shall we thus forget our own
fetters? Shall we set up the idol, before
which we shall soon be obliged, however
reluctantly, to bow? Shall we consent to
see a proud aristocracy erect his
domineering crest in triumph over our
prostrate liberties?
But we shall yet see more clearly,
how highly favored this senate has been,
by taking a similar view of the
representative body. This body is the
true representative of the democratic part
of the system; the shield and defense
of the people. . . . Its transcendent and
incommunicable power of impeachment-that
high source of its dignity and control-in
which alone the majesty of the people
feels his sceptre, and bears aloft his
fasces-is rendered ineffectual, by its
being triable before its rival branch, the
senate, the patron and prompter of the
measures against which it is to sit in
judgment. It is therefore most manifest,
that from the very nature of the
constitution the right of impeachment
apparently given, is really rendered
ineffectual. And this is contrived with
so much art, that to discover it you must
bring together various and distant parts
of the constitution, or it will not strike
the examiner, that the same body that
advises the executive measures of
government which are usually the subject
of impeachment, are the sole judges on
such impeachments. They must therefore be
both party and judge, and must condemn
those who have executed what they advised.
Could such a monstrous absurdity have
escaped men who were not determined, at
all events, to vest all power in this
aristocratic body? Is it not plain, that
the senate is to be exalted by the
humiliation of the democracy? A democracy
which, thus bereft of its powers, and
shorn of its strength, will stand a
melancholy monument of popular impotence.
. . .
"When the legislative and executive
powers are united in the same person, or
in the same corps," [says Montesquieu]
"there can be no liberty. Because, it may
be feared, that the same monarch or senate
will make tyrannical laws, that they may
execute them tyrannically." I am aware
that this great man is speaking of a
senate being the whole legislature;
whereas the one before us is but a branch
of the proposed legislature. But still
the reason applies, inasmuch as the
legislative power of the senate will
enable it to negative all bills that are
meant to control the executive; and from
being secure of preventing any abridgment,
they can watch every pliant hour of the
representative body to promote an
enlargement of the executive powers. One
thing at least is certain, that by making
this branch of the legislature participant
in the executive, you not only prevent the
legislature from being a check upon the
executive, but you inevitably prevent its
being checked or controlled by the other
branch.
To the authority of Montesquieu, I
shall add that of Mr. De Lolme, whose
disquisition on government is allowed to
be deep, solid, and ingenious. . . . "It
is not only necessary," [says he] "to take
from the legislature the executive power
which would exempt them from the laws; but
they should not have even a hope of being
ever able to arrogate to themselves that
power." To remove this hope from their
expectation, it would have been proper,
not only to have previously laid down, in
a declaration of rights, that these powers
should be forever separate and
incommunicable; but the frame of the
proposed constitution should have had that
separation religiously in view, through
all its parts. It is manifest this was
not the object of its framers; but, that
on the contrary there is a studied mixture
of them in the senate as necessary to
erect it into that potent aristocracy
which it must infallibly produce. In
pursuit of this daring object, than which
no greater calamity can be brought upon
the people, another egregious error in
constitutional principles is committed. I
mean that of dividing the executive powers
between the senate and president. Unless
more harmony and less ambition should
exist between these two executives than
ever yet existed between men in power, or
than can exist while human nature is as it
is, this absurd division must be
productive of constant contentions for the
lead, must clog the execution of
government to a mischievous, and sometimes
to a disgraceful degree; and if
they should unhappily harmonize in the
same objects of ambition, their number and
their combined power would preclude all
fear of that responsibility, which is one
of the great securities of good, and
restraints on bad governments. Upon these
principles Mr. DeLolme has foreseen that
"the effect of a division of the executive
power is the establishment of absolute
power in one of continual contention;" he
therefore lays it down, as a general rule
. . . "for the tranquility of the state it
is necessary that the executive power
should be in one." I will add, that this
singlehood of the executive is
indispensably necessary to effective
execution, as well as to the
responsibility and rectitude of him to
whom it is entrusted.
By this time I hope it is evident
from reason and authority, that in the
constitution of the senate there is much
cunning and little wisdom; that we have
much to fear from it, and little to hope,
and then it must necessarily produce a
baneful aristocracy, by which the
democratic rights of the people will be
overwhelmed.
It was probably upon this principle
that a member of the convention, of high
and unexceeded reputation for wisdom and
integrity, is said to have emphatically
declared, that he would sooner lose his
right hand, than put his name to such a
constitution.
CINCINNATUS
Antifederalist No. 65
ON THE ORGANIZATION AND POWERS OF THE
SENATE (PART 4)
(by Gilbert Livingston and John Lansing
delivered on June 24, 1788 to the New York
ratifying convention)
Mr. G[ilbert] LIVINGSTON rose, and
addressed the chair.
He, in the first place, considered
the importance of the Senate as a branch
of the legislature, in three points of
view:-
First, they would possess legislative
powers coextensive with those of the House
of Representatives except with respect to
originating revenue laws; which, however,
they would have power to reject or amend,
as in the case of other bills. Secondly,
they would have an importance, even
exceeding that of the representative
house, as they would be composed of a
smaller number, and possess more firmness
and system. Thirdly, their consequence
and dignity would still further transcend
those of the other branch, from their
longer continuance in office. These
powers, Mr. Livingston contended, rendered
the Senate a dangerous body.
He went on, in the second place, to
enumerate and animadvert on the powers
with which they were clothed in their
judicial capacity, and in their capacity
of council to the President, and in the
forming of treaties. In the last place,
as if too much power could not be given to
this body, they were made, he said, a
council of appointment, by whom
ambassadors and other officers of state
were to be appointed. These are the
powers, continued he, which are vested in
this small body of twenty-six men; in some
cases, to be exercised by a bare quorum,
which is fourteen; a majority of which
number, again, is eight. What are the
checks provided to balance this great mass
of power? Our present Congress cannot
serve longer than three years in six: they
are at any time subject to recall. These
and other checks were considered as
necessary at a period which I choose to
honor with the name of virtuous. Sir, I
venerate the spirit with which every thing
was done at the trying time in which the
Confederation was formed. America had
then a sufficiency of this virtue to
resolve to resist perhaps the first nation
in the universe, even unto bloodshed.
What was her aim? Equal liberty and
safety. What ideas had she of this equal
liberty? Read them in her Articles of
Confederation. True it is, sir, there are
some powers wanted to make this glorious
compact complete. But, sir, let us be
cautious that we do not err more on the
other hand, by giving power too profusely,
when, perhaps, it will be too late to
recall it. Consider, sir, the great
influence which this body, armed at all
points, will have. What will be the
effect of this? Probably a security of
their reelection, as long as they please.
Indeed, in my view, it will amount nearly
to an appointment for life. What will be
their situation in a federal town?
Hallowed ground! Nothing so unclean
as state laws to enter there, surrounded,
as they will be, by an impenetrable wall
of adamant and gold, the wealth of the
whole country flowing into it. [Here a
member, who did not fully understand,
called out to know what WALL the gentleman
meant; on which be turned, and replied, "A
wall of gold-of adamant, which will flow
in from all parts of the continent." At
which flowing metaphor, a great laugh in
the house.] The gentleman continued: Their
attention to their various business will
probably require their constant
attendance. In this Eden will they reside
with their families, distant from the
observation of the people. In such a
situation, men are apt to forget their
dependence, lose their sympathy, and
contract selfish habits. Factions are apt
to be formed, if the body becomes
permanent. The senators will associate
only with men of their own class, and thus
become strangers to the condition of the
common people. They should not only
return, and be obliged to live with the
people, but return to their former rank of
citizenship, both to revive their sense of
dependence, and to gain a knowledge of the
country. This will afford opportunity to
bring forward the genius and information
of the states, and will be a stimulus to
acquire political abilities. It will be
the means of diffusing a more general
knowledge of the measures and spirit of
the administration. These things will
confirm the people's confidence in
government. When they see those who have
been high in office residing among them as
private citizens, they will feel more
forcibly that the government is of their
own choice. The members of this branch
having the idea impressed on their minds,
that they are soon to return to the level
whence the suffrages of the people raised
them,-this good effect will follow: they
will consider their interests as the same
with those of their constituents, and that
they legislate for themselves as well as
others. They will not conceive themselves
made to receive, enjoy, and rule, nor the
people solely to earn, pay, and submit.
Mr. Chairman, I have endeavored, with
as much perspicuity and candor as I am
master of, shortly to state my objections
to this clause. I would wish the
committee to believe that they are not
raised for the sake of opposition,
but that I am very sincere in my
sentiments in this important
investigation. The Senate, as they are
now constituted, have little or no check
on them. Indeed, sir, too much is put
into their hands. When we come to that
part of the system which points out their
powers, it will be the proper time to
consider this subject more particularly.
I think, sir, we must relinquish the
idea of safety under this government, if
the time for services is not further
limited, and the power of recall [not]
given to the state legislatures. I am
strengthened in my opinion by an
observation made yesterday, by an
honorable member from New York, to this
effect"that there should be no fear of
corruption of the members in the House of
Representatives; especially as they are,
in two years, to return to the body of the
people." I therefore move that the
committee adopt the following resolution,
as an amendment to this clause:-
"Resolved, That no person shall be
eligible as a senator for more than six
years in any term of twelve years, and
that it shall be in the power of the
legislatures of the several states to
recall their senators, or either of
them, and to elect others in their stead,
to serve for the remainder of the time for
which such senator or senators, so
recalled, were appointed."
Hon. Mr. [John] LANSING. I beg the
indulgence of the committee, while I offer
some reasons in support of the motion just
made; in doing which, I shall confine
myself to the point, and shall hear with
attention, and examine with candor, the
objections which may be opposed to it. . .
Sir, I am informed by gentlemen who
have been conversant in public affairs,
and who have had seats in Congress, that
there have been, at different times,
violent parties in that body-an evil that
a change of members has contributed, more
than any other thing, to remedy. If,
therefore, the power of recall should be
never exercised, if it should have no
other force than that of a check to the
designs of the bad, and to destroy party
spirit, certainly no harm, but much good,
may result from adopting the amendment.
If my information be true, there have been
parties in Congress which would have
continued to this day, if the members had
not been removed. No inconvenience can
follow from placing the powers of the
Senate on such a foundation as to make
them feel their dependence. It is only a
check calculated to make them more
attentive to the objects for which they
were appointed. Sir, I would ask, Is
there no danger that the members of the
Senate will sacrifice the interest of
their state to their own private views?
Every man in the United States ought to
look with anxious concern to that body.
Their number is so exceedingly small, that
they may easily feel their interests
distinct from those of the community.
This smallness of number also renders them
subject to a variety of accidents, that
may be of the highest disadvantage. If
one of the members is sick, or if one or
both are prevented occasionally from
attending, who are to take care of the
interests of their state?
Sir, we have frequently observed that
deputies have been appointed for certain
purposes, who have not punctually attended
to them, when it was necessary. Their
private concerns may often require their
presence at home. In what manner is this
evil to be corrected? The amendment
provides a remedy. It is the only thing
which can give the states a control over
the Senate. It will be said, there is a
power in Congress to compel the attendance
of absent members; but will the members
from the other states be solicitous to
compel such attendance, except to answer
some particular view, or promote some
interest of their own? If it be the
object of the senators to protect the
sovereignty of their several states, and
if, at any time, it be the design of the
other states to make encroachments on the
sovereignty of any one state, will it be
for their interest to compel the members
from this state to attend, in order to
oppose and check them? This would be
strange policy indeed....
Sir, it is true there have been no
instances of the success of corruption
under the old Confederation; and may not
this be attributed to the power of recall,
which has existed from its first
formation? It has operated effectually,
though silently. It has never been
exercised, because no great occasion has
offered. The power has by no means proved
a discouragement to individuals, in
serving their country. A seat in Congress
has always been considered a distinguished
honor, and a favorite object of ambition.
I believe no public station has been
sought with more avidity. If this power
has existed for so many years, and through
so many scenes of difficulty and danger,
without being exerted, may it not be
rationally presumed that it never will be
put in execution, unless the indispensable
interest of a state shall require it? I
am perfectly convinced that, in many
emergencies, mutual concessions are
necessary and proper; and that, in some
instances, the smaller interests of the
states should be sacrificed to great
national objects. But when a delegate
makes such sacrifices as tend to political
destruction or to reduce sovereignty to
subordination, his state ought to have the
power of defeating his design, and
reverting to the people. It is observed,
that the appropriation of money is not in
the power of the Senate alone; but, sir,
the exercise of certain powers, which
constitutionally and necessarily involve
the disposal of money, belongs to the
Senate. They have, therefore, a right
of disposing of the property of the United
States. If the Senate declare war, the
lower house must furnish the supplies.
It is further objected to this
amendment, that it will restrain the
people from choosing those who are most
deserving of their suffrages, and will
thus be an abridgment of their rights. I
cannot suppose this last inference
naturally follows. The rights of the
people will be best supported by checking,
at a certain point, the current of popular
favor, and preventing the establishment of
an influence which may leave to elections
little more than the form of freedom. The
Constitution of this state says, that no
man shall hold the office of sheriff or
coroner beyond a certain period. Does
any one imagine that the rights of the
people are infringed by this provision?
The gentlemen, in their reasoning on the
subject of corruption, seem to set aside
experience and to consider the Americans
as exempt from the common vices and
frailties of human nature. It is
unnecessary to particularize the numerous
ways in which public bodies are accessible
to corruption. The poison always finds a
channel, and never wants an object.
Scruples would be impertinent arguments
would be in vain, checks would be useless,
if we were certain our rulers would be
good men; but for the virtuous government
is not instituted. Its object is to
restrain and punish vice; and all free
constitutions are for with two views-to
deter the governed from crime, and the
governors from tyranny.
Antifederalist No. 66
From North Carolina
Mr. JOSEPH TAYLOR objected to the
provision made for impeaching. He urged
that there could be no security from it,
as the persons accused were triable by the
Senate, who were a part of the legislature
themselves; that, while men were fallible,
the senators were liable to errors,
especially in a case where they were
concerned themselves. . . .
Mr. [Timothy] BLOODWORTH wished to
be informed, whether this sole power of
impeachment, given to the House of
Representatives, deprived the state of the
power of impeaching any of its members. .
. .
Mr. JOSEPH TAYLOR. Mr. Chairman, the
objection is very strong. If there be but
one body to try, where are we? If any
tyranny or oppression should arise, how
are those who perpetrated such oppression
to be tried and punished? By a tribunal
consisting of the very men who assist in
such tyranny. Can any tribunal be found,
in any community, who will give judgment
against their own actions? Is it the
nature of man to decide against himself?
I am obliged to the worthy member from New
Hanover for assisting me with objections.
None can impeach but the representatives;
and the impeachments are to be determined
by the senators, who are one of the
branches of power which we dread under
this Constitution.... the words "sole
power of impeachment" were so general, and
might admit of such a latitude of
construction, as to extend to every
legislative member upon the continent, so
as to preclude the representatives of the
different states from impeaching....
Mr. [William] PORTER wished to be
informed, if every officer, who was a
creature of that Constitution, was to be
tried by the Senate-whether such officers,
and those who had complaints against them,
were to go from the extreme parts of the
continent to the seat of government, to
adjust disputes. . . .
Mr. J. TAYLOR. Mr. Chairman, I
conceive that, if this Constitution be
adopted, we shall have a large number of
officers in North Carolina under the
appointment of Congress. We shall
undoubtedly, for instance, have a great
number of tax-gatherers. If any of
these officers shall do wrong, when we
come to fundamental principles, we find
that we have no way to punish them but by
going to Congress, at an immense distance,
whither we must carry our witnesses.
Every gentlemen must see, in these cases,
that oppressions will arise. I conceive
that they cannot be tried elsewhere. I
consider that the Constitution will be
explained by the word "sole." If they did
not mean to retain a general power of
impeaching, there was no occasion for
saying the "sole power." I consider
therefore that oppressions will arise. If
I am oppressed, I must go to the House of
Representatives to complain. I consider
that, when mankind are about to part with
rights, they ought only to part with those
rights which they can with convenience
relinquish, and not such as must involve
them in distresses....
I observe that, when these great men
are met in Congress, in consequence of
this power, they will have the power of
appointing all the officers of the United
States. My experience in life shows me
that the friends of the members of the
legislature will get the offices. These
senators and members of the House of
Representatives will appoint their friends
to all offices. These officers will be
great men, and they will have numerous
deputies under them. The receiver-general
of the taxes of North Carolina must be one
of the greatest men in the country. Will
he come to me for his taxes? No. He will
send his deputy, who will have special
instructions to oppress me. How am I to
be redressed? I shall be told that I must
go to Congress, to get him impeached.
This being the case, whom am I to impeach?
A friend of the representatives of North
Carolina. For, unhappily for us, these
men will have too much weight for us; they
will have friends in the government who
will be inclined against us, and thus we
may be oppressed with impunity.
Antifederalist No. 67
VARIOUS FEARS CONCERNING THE EXECUTIVE
DEPARTMENT
From the "CATO" letters of George Clinton,
taken from The New-York Journal of
November 8, 1787.
I shall begin with observations on
the executive branch of this new system;
and though it is not the first in order,
as arranged therein, yet being the chief,
is perhaps entitled by the rules of rank
to the first consideration. The executive
power as described in the 2d article,
consists of a president and vice-
president, who are to hold their offices
during the term of four years; the same
article has marked the manner and time of
their election, and established the
qualifications of the president; it also
provides against the removal, death, or
inability of the president and vice-
president - regulates the salary of the
president, delineates his duties and
powers; and, lastly, declares the causes
for which the president and vice-president
shall be removed from office.
Notwithstanding the great learning
and abilities of the gentlemen who
composed the convention, it may be here
remarked with deference, that the
construction of the first paragraph of the
first section of the second article is
vague and inexplicit, and leaves the
mind in doubt as to the election of a
president and vice-president, after the
expiration of the election for the first
term of four years; in every other case,
the election of these great officers is
expressly provided for; but there is no
explicit provision for their election
which is to set this political machine in
motion; no certain and express terms as in
your state constitution, that statedly
once in every four years, and as often as
these offices shall become vacant, by
expiration or otherwise, as is therein
expressed, an election shall be held as
follows, etc.; this inexplicitness perhaps
may lead to an establishment for life.
It is remarked by Montesquieu, in
treating of republics, that in all
magistracies, the greatness of the power
must be compensated by the brevity of the
duration, and that a longer time than a
year would be dangerous. It is, therefore,
obvious to the least intelligent mind to
account why great power in the hands of a
magistrate, and that power connected with
considerable duration, may be dangerous to
the liberties of a republic. The deposit
of vast trusts in the hands of a single
magistrate enables him in their exercise
to create a numerous train of dependents.
This tempts his ambition, which in a
republican magistrate is also remarked, to
be pernicious, and the duration of his
office for any considerable time favors
his views, gives him the means and time to
perfect and execute his designs; he
therefore fancies that he may be great and
glorious by oppressing his fellow
citizens, and raising himself to permanent
grandeur on the ruins of his country. And
here it may be necessary to compare the
vast and important powers of the
president, together with his continuance
in office, with the foregoing doctrine-his
eminent magisterial situation will attach
many adherents to him, and he will be
surrounded by expectants and courtiers.
His power of nomination and influence on
all appointments; the strong posts in each
state comprised within his
superintendence, and garrisoned by
troops under his direction; his control
over the army, militia, and navy; the
unrestrained power of granting pardons
for treason, which may be used to screen
from punishment those whom he had secretly
instigated to commit the crime, and
thereby prevent a discovery of his own
guilt; his duration in office for four
years-these, and various other principles
evidently prove the truth of the position,
that if the president is possessed of
ambition, he has power and time sufficient
to ruin his country.
Though the president, during the
sitting of the legislature, is assisted by
the senate, yet he is without a
constitutional council in their recess.
He will therefore be unsupported by proper
information and advice, and will generally
be directed by minions and favorites, or a
council of state will grow out of the
principal officers of the great
departments, the most dangerous council in
a free country. . . . The language and the
manners of this court will be what
distinguishes them from the rest of the
community, not what assimilates them to
it; and in being remarked for a behavior
that shows they are not meanly born, and
in adulation to people of fortune and
power.
The establishment of a vice-president
is as unnecessary as it is dangerous.
This officer, for want of other
employment, is made president of the
senate, thereby blending the executive and
legislative powers, besides always giving
to some one state, from which he is to
come, an unjust pre-eminence.
It is a maxim in republics that the
representative of the people should be of
their immediate choice; but by the manner
in which the president is chosen, he
arrives to this office at the fourth or
fifth hand. Nor does the highest vote,
in the way he is elected, determine the
choice-for it is only necessary that he
should be taken from the highest of five,
who may have a plurality of votes. . . .
And wherein does this president,
invested with his powers and prerogatives,
essentially differ from the king of Great
Britain (save as to name, the creation of
nobility, and some immaterial incidents,
the offspring of absurdity and locality)?
The direct prerogatives of the president,
as springing from his political character,
are among the following: It is necessary,
in order to distinguish him from the rest
of the community, and enable him to keep,
and maintain his court, that the
compensation for his services, or in other
words, his revenue, should be such as to
enable him to appear with the splendor of
a prince. He has the power of receiving
ambassadors from, and a great influence on
their appointments to foreign courts; as
also to make treaties, leagues, and
alliances with foreign states, assisted by
the Senate, which when made becomes the
supreme law of land. He is a constituent
part of the legislative power, for every
bill which shall pass the House of
Representatives and Senate is to be
presented to him for approbation. If he
approves of it he is to sign it, if he
disapproves he is to return it with
objections, which in many cases will
amount to a complete negative; and in this
view he will have a great share in the
power of making peace, coining money,
etc., and all the various objects of
legislation, expressed or implied in this
Constitution. For though it may be
asserted that the king of Great Britain
has the express power of making peace or
war, yet he never thinks it prudent to do
so without the advice of his Parliament,
from whom be is to derive his support -and
therefore these powers, in both president
and king, are substantially the same. He
is the generalissimo of the nation, and of
course has the command and control of the
army, navy and militia; he is the general
conservator of the peace of the union-he
may pardon all offenses, except in cases
of impeachment, and the principal fountain
of all offices and employments. Will not
the exercise of these powers therefore
tend either to the establishment of a vile
and arbitrary aristocracy or monarchy?
The safety of the people in a republic
depends on the share or proportion they
have in the government; but experience
ought to teach you, that when a man is at
the head of an elective government
invested with great powers, and interested
in his re-election, in what circle
appointments will be made; by which means
an imperfect aristocracy bordering on
monarchy may be established. You must,
however, my countrymen, beware that the
advocates of this new system do not
deceive you by a fallacious resemblance
between it and your own state government
[New York] which you so much prize; and,
if you examine, you will perceive that the
chief magistrate of this state is your
immediate choice, controlled and checked
by a just and full representation of the
people, divested of the prerogative of
influencing war and peace, making
treaties, receiving and sending embassies,
and commanding standing armies and navies,
which belong to the power of the
confederation, and will be convinced that
this government is no more like a true
picture of your own than an Angel of
Darkness resembles an Angel of Light.
CATO
Antifederalist No. 68
ON THE MODE OF ELECTING THE PRESIDENT
From a speech by William Grayson given to
the Virginia ratifying convention on June
18, 1788.
Mr. [William] GRAYSON. Mr. Chairman,
one great objection with me is this: If we
advert to..... [the] democratical,
aristocratical, or executive branch, we
shall find their powers are perpetually
varying and fluctuating throughout the
whole. Perhaps the democratic branch
would be well constructed, were it not for
this defect. The executive is still
worse, in this respect, than the
democratic branch. He is to be elected by
a number of electors in the country; but
the principle is changed when no person
has a majority of the whole number of
electors appointed, or when more than one
have such a majority, and have an equal
number of votes; for then the lower house
is to vote by states. It is thus changing
throughout the whole. It seems rather
founded on accident than any principle
of government I ever heard of. We know
that there scarcely ever was an election
of such an officer without the
interposition of foreign powers. Two
causes prevail to make them intermeddle in
such cases:-one is, to preserve the
balance of power; the other, to preserve
their trade. These causes have produced
interferences of foreign powers in the
election of the king of Poland. All the
great powers of Europe have interfered in
an election which took place not very long
ago, and would not let the people choose
for themselves. We know how much the
powers of Europe have interfered with
Sweden. Since the death of Charles XII,
that country has been a republican
government. Some powers were willing it
should be so; some were willing her
imbecility should continue; others wished
the contrary; and at length the court of
France brought about a revolution, which
converted it into an absolute government.
Can America be free from these
interferences? France, after losing
Holland, will wish to make America
entirely her own. Great Britain will wish
to increase her influence by a still
closer connection. It is the interest of
Spain, from the contiguity of her
possessions in the western hemisphere to
the United States, to be in an intimate
connection with them, and influence their
deliberations, if possible. I think we
have every thing, to apprehend from such
interferences. It is highly probable the
President will be continued in office for
life. To gain his favor, they will
support him. Consider the means of
importance he will have by creating
officers. If he has a good understanding
with the Senate, they will join to prevent
a discovery of his misdeeds. . . .
This quadrennial power cannot be
justified by ancient history. There is
hardly an instance where a republic
trusted its executive so long with much
power; nor is it warranted by modern
republics. The delegation of power is,
in most of them, only for one year.
When you have a strong democratical
and a strong aristocratical branch, you
may have a strong executive. But when
those are weak, the balance will not be
preserved, if you give the executive
extensive powers for so long a time. As
this government is organized, it would be
dangerous to trust the President with such
powers. How will you punish him if he
abuse his power? Will you call him before
the Senate? They are his counsellors and
partners in crime. Where are your checks?
We ought to be extremely cautious in this
country. If ever the government be
changed, it will probably be into a
despotism. The first object in England
was to destroy the monarchy; but the
aristocratic branch restored him, and of
course the government was organized on its
ancient principles. But were a revolution
to happen here, there would be no means of
restoring the government to its former
organization. This is a caution to us not
to trust extensive powers. I have an
extreme objection to the mode of his
election. I presume the seven Eastern
States will always elect him. As he is
vested with the power of making treaties,
and as there is a material distinction
between the carrying and productive
states, the former will be disposed to
have him to themselves. He will
accommodate himself to their interests in
forming treaties, and they will continue
him perpetually in office. Thus mutual
interest will lead them reciprocally to
support one another. It will be a
government of a faction, and this
observation will apply to every part of
it; for, having a majority, they may do
what they please. I have made an estimate
which shows with what facility they will
be able to reelect him. The number
of electors is equal to the number of
representatives and senators; viz.,
ninety-one. They are to vote for two
persons. They give, therefore, one
hundred and eighty-two votes. Let there
be forty-five votes for four different
candidates, and two for the President. He
is one of the five highest, if he have but
two votes, which he may easily purchase.
In this case, by the 3d clause of the lst
section of the 2d article, the election is
to be by the representatives, according to
states. Let New Hampshire be for him,-a
majority of its . . . . .
3 representatives is 2
Rhode Island 1 1
Connecticut 5 3
New Jersey 4 3
Delaware 1 1
Georgia 3 2
North Carolina 5 3
A majority of seven states is 15
Thus the majority of seven states is but
15, while the minority amounts to 50.
The total number of voices (91 electors
and 65 representatives) is . . 156
Voices in favor of the President
are, 2 state electors and 15
representatives ..... 17
139
So that the President may be reelected by
the voices of 17 against 139.
It may be said that this is an
extravagant case, and will never happen.
In my opinion, it will often happen. A
person who is a favorite of Congress, if
he gets but two votes of electors, may, by
the subsequent choice of 15
representatives, be elected President.
Surely the possibility of such a case
ought to be excluded.
Antifederalist No. 69
THE CHARACTER OF THE EXECUTIVE OFFICE
by Richard Henry Lee
The great object is, in a republican
government, to guard effectually against
perpetuating any portion of power, great
or small, in the same man or family. This
perpetuation of power is totally
uncongenial to the true spirit of
republican governments. On the one
hand the first executive magistrate ought
to remain in office so long as to avoid
instability in the execution of the laws;
on the other, not so long as to enable
]him to take any measures to establish
himself. The convention, it seems, first
agreed that the president should be chosen
for seven years, and never after to be
eligible. Whether seven years is a period
too long or not, is rather a matter of
opinion; but clear it is, that this mode
is infinitely preferable to the one
finally adopted. When a man shall get the
chair, who may be reelected from time to
time, for life, his greatest object
will be to keep it; to gain friends and
votes, at any rate; to associate some
favorite son with himself, to take office
after him. Whenever he shall have any
prospect of continuing the office in
himself and family, he will spare no
artifice, no address, and no exertions, to
increase the powers and importance of it.
The servile supporters of his wishes will
be placed in all offices, and tools
constantly employed to aid his views and
sound his praise. A man so situated will
have no permanent interest in the
government to lose, by contests and
convulsions in the state; but always much
to gain, and frequently the seducing and
flattering hope of succeeding. If we
reason at all on the subject, we must
irresistibly conclude that this will be
the case with nine tenths of the
presidents. We may have, for the first
president, and perhaps, one in a century
or two afterwards (if the government
should withstand the attacks of others) a
great and good man, governed by superior
motives; but these are not events to be
calculated upon in the present state of
human nature. A man chosen to this
important office for a limited period and
always afterwards rendered, by the
constitution, ineligible, will be governed
by very different considerations. He can
have no rational hopes or expectations of
retaining his office after the expiration
of a known limited time, or of continuing
the office in his family, as by the
constitution there must be a constant
transfer of it from one man to another,
and consequently from one family to
another. No man will wish to be a mere
cypher at the bead of the government. The
great object of each president then will
be to render his government a glorious
period in the annals of his country. When
a man constitutionally retires from
office, he retires without pain; he is
sensible he retires because the laws
direct it, and not from the success of his
rivals, nor with that public
disapprobation which being left out, when
eligible, implies. It is said that a man
knowing that at a given period he must
quit his office, will unjustly attempt to
take from the public, and lay in store the
means of support and splendor in his
retirement. There can, I think, be but
very little in this observation. The same
constitution that makes a man eligible for
a given period only, ought to make no man
eligible till he arrive to the age of
forty or forty-five years. If he be a man
of fortune, be will retire with dignity to
his estate; if not, he may, like the
Roman consuls, and other eminent
characters in republics, find an honorable
support and employment in some respectable
office. A man who must, at all events,
thus leave his office, will have but few
or no temptations to fill its dependent
offices with his tools, or any particular
set of men; whereas the man constantly
looking forward to his future elections,
and perhaps, to the aggrandizement of his
family, will have every inducement before
him to fill all places with his own props
and dependents. As to public monies, the
president need handle none of them, and he
may always rigidly be made to account for
every shilling he shall receive.
On the whole, it would be, in my
opinion, almost as well to create a
limited monarchy at once, and give some
family permanent power and interest in the
community, and let it have something
valuable to itself to lose in convulsions
in the state, and in attempts of
usurpation, as to make a first magistrate
eligible for life, and to create hopes and
expectations in him and his family of
obtaining what they have not. In the
latter case, we actually tempt them to
disturb the state, to foment struggles and
contests, by laying before them the
flattering prospect of gaining much
without risking anything.
The constitution provides only that
the president shall hold his office during
the term of four years; that, at most,
only implies, that one shall be chosen
every fourth year. It also provides that
in case of the removal, death,
resignation, or inability, both of the
president and vice-president, congress may
declare what officer shall act as
president; and that such officers shall
act accordingly, until the disability be
removed, or a president shall be elected.
It also provides that congress may
determine the time of choosing electors,
and the day on which they shall give their
votes. Considering these clauses
together, I submit this question-whether
in case of a vacancy in the office of
president, by the removal, death,
resignation, or inability of the president
and vice president, and congress should
declare that a certain officer, as
secretary of foreign affairs, for
instance, shall act as president, and
suffer such officer to continue several
years, or even for his life, to act as
president, by omitting to appoint the time
for choosing electors of another
president, it would be any breach of the
constitution? There appears to me to be
an intended provision for supplying the
office of president-not only for any
remaining portion of the four years, but
in cases of emergency-until another
president shall be elected. . . . [But] we
do not know that it is impossible; we do
not know that it is improbable, in case
a popular officer should thus be declared
the acting president, that he might
continue for life, and without any violent
act, but merely by neglects and delays on
the part of congress. . .
THE FEDERAL FARMER
Antifederalist No. 70
THE POWERS AND DANGEROUS POTENTIALS OF HIS
ELECTED MAJESTY
"AN OLD WHIG's" essay from The New-York
Journal of December 11, 1787.
.... In the first place the office of
president of the United States appears to
me to be clothed with such powers as are
dangerous. To be the fountain of all
honors in the United States-commander in
chief of the army, navy, and militia; with
the power of making treaties and of
granting pardons; and to be vested with an
authority to put a negative upon all laws,
unless two thirds of both houses shall
persist in enacting it, and put their
names down upon calling the yeas and nays
for that purpose-is in reality to be a
king, as much a king as the king of Great
Britain, and a king too of the worst kind:
an elective king. If such powers as these
are to be trusted in the hands of any man,
they ought, for the sake of preserving the
peace of the community, at once to be made
hereditary. Much as I abhor kingly
government, yet I venture to pronounce,
where kings are admitted to rule they
should most certainly be vested with
hereditary power. The election of a king
whether it be in America or Poland, will
be a scene of horror and confusion; and I
am perfectly serious when I declare, that,
as a friend to my country, I shall despair
of any happiness in the United States
until this office is either reduced to a
lower pitch of power, or made perpetual
and hereditary. When I say that our
future president will be as much a king as
the king of Great Britain, I only ask of
my readers to look into the constitution
of that country, and then tell me what
important prerogative the king of Great
Britain is entitled to which does not also
belong to the president during his
continuance in office. The king of Great
Britain, it is true, can create nobility
which our president cannot; but our
president will have the power of making
all the great men, which comes to the same
thing. All the difference is, that we
shall be embroiled in contention about the
choice of the man, while they are at peace
under the security of an hereditary
succession. To be tumbled headlong from
the pinnacle of greatness and be reduced
to a shadow of departed royalty, is a
shock almost too great for human nature to
endure. It will cost a man many struggles
to resign such eminent powers, and ere
long, we shall find some one who will be
very unwilling to part with them. Let us
suppose this man to be a favorite with his
army, and that they are unwilling to part
with their beloved commander in chief-or
to make the thing familiar, let us suppose
a future president and commander in chief
adored by his army and the militia to
as great a degree as our late illustrious
commander in chief; and we have only to
suppose one thing more, that this man is
without the virtue, the moderation and
love of liberty which possessed the mind
of our late general-and this country will
be involved at once in war and tyranny.
So far is it from its being improbable
that the man who shall hereafter be in a
situation to make the attempt to
perpetuate his own power, should want the
virtues of General Washington, that it is
perhaps a chance of one hundred millions
to one that the next age will not furnish
an example of so disinterested a use of
great power. We may also suppose, without
trespassing upon the bounds of
probability, that this man may not have
the means of supporting, in private life,
the dignity of his former station;
that like Caesar, he may be at once
ambitious and poor, and deeply involved in
debt. Such a man would die a thousand
deaths rather than sink from the heights
of splendor and power, into obscurity and
wretchedness. We are certainly about
giving our president too much or too
little; and in the course of less than
twenty years we shall find that we have
given him enough to enable him to take
all. It would be infinitely more prudent
to give him at once as much as would
content him, so that we might be able to
retain the rest in peace, for if once
power is seized by violence, not the least
fragment of liberty will survive the
shock. I would therefore advise my
countrymen seriously to ask themselves
this question: Whether they are prepared
to receive a king? If they are, to say so
at once, and make the kingly office
hereditary; to frame a constitution that
should set bounds to his power, and, as
far as possible, secure the liberty of the
subject. If we are not prepared to
receive a king, let us call another
convention to revise the proposed
constitution, and form it anew on the
principles of a confederacy of free
republics; but by no means, under pretense
of a republic, to lay the foundation for a
military government, which is the worst of
all tyrannies.
AN OLD WHIG