Full Text Archive logoFull Text Archive — Free Classic E-books

Part 7 out of 10

Adobe PDF icon
Download this document as a .pdf
File size: 1.2 MB
What's this? light bulb idea Many people prefer to read off-line or to print out text and read from the real printed page. Others want to carry documents around with them on their mobile phones and read while they are on the move. We have created .pdf files of all out documents to accommodate all these groups of people. We recommend that you download .pdfs onto your mobile phone when it is connected to a WiFi connection for reading off-line.

requiring uniformity throughout the States, the more simple
objects will be preferred. To be fully sensible of the facility
which will be given to this branch of federal legislation by the
assistance of the State codes, we need only suppose for a moment
that this or any other State were divided into a number of parts,
each having and exercising within itself a power of local
legislation. Is it not evident that a degree of local information
and preparatory labor would be found in the several volumes of
their proceedings, which would very much shorten the labors of
the general legislature, and render a much smaller number of
members sufficient for it? The federal councils will derive great
advantage from another circumstance. The representatives of each
State will not only bring with them a considerable knowledge of
its laws, and a local knowledge of their respective districts,
but will probably in all cases have been members, and may even at
the very time be members, of the State legislature, where all the
local information and interests of the State are assembled, and
from whence they may easily be conveyed by a very few hands into
the legislature of the United States. The observations made on
the subject of taxation apply with greater force to the case of
the militia. For however different the rules of discipline may be
in different States, they are the same throughout each particular
State; and depend on circumstances which can differ but little in
different parts of the same State. The attentive reader will
discern that the reasoning here used, to prove the sufficiency of
a moderate number of representatives, does not in any respect
contradict what was urged on another occasion with regard to the
extensive information which the representatives ought to possess,
and the time that might be necessary for acquiring it. This
information, so far as it may relate to local objects, is
rendered necessary and difficult, not by a difference of laws and
local circumstances within a single State, but of those among
different States. Taking each State by itself, its laws are the
same, and its interests but little diversified. A few men,
therefore, will possess all the knowledge requisite for a proper
representation of them. Were the interests and affairs of each
individual State perfectly simple and uniform, a knowledge of
them in one part would involve a knowledge of them in every
other, and the whole State might be competently represented by a
single member taken from any part of it. On a comparison of the
different States together, we find a great dissimilarity in their
laws, and in many other circumstances connected with the objects
of federal legislation, with all of which the federal
representatives ought to have some acquaintance. Whilst a few
representatives, therefore, from each State, may bring with them
a due knowledge of their own State, every representative will
have much information to acquire concerning all the other States.
The changes of time, as was formerly remarked, on the comparative
situation of the different States, will have an assimilating
effect. The effect of time on the internal affairs of the States,
taken singly, will be just the contrary. At present some of the
States are little more than a society of husbandmen. Few of them
have made much progress in those branches of industry which give
a variety and complexity to the affairs of a nation. These,
however, will in all of them be the fruits of a more advanced
population, and will require, on the part of each State, a fuller
representation. The foresight of the convention has accordingly
taken care that the progress of population may be accompanied
with a proper increase of the representative branch of the
government. The experience of Great Britain, which presents to
mankind so many political lessons, both of the monitory and
exemplary kind, and which has been frequently consulted in the
course of these inquiries, corroborates the result of the
reflections which we have just made. The number of inhabitants in
the two kingdoms of England and Scotland cannot be stated at less
than eight millions. The representatives of these eight millions
in the House of Commons amount to five hundred and fifty-eight.
Of this number, one ninth are elected by three hundred and
sixty-four persons, and one half, by five thousand seven hundred
and twenty-three persons. 1 It cannot be supposed that the half
thus elected, and who do not even reside among the people at
large, can add any thing either to the security of the people
against the government, or to the knowledge of their
circumstances and interests in the legislative councils. On the
contrary, it is notorious, that they are more frequently the
representatives and instruments of the executive magistrate, than
the guardians and advocates of the popular rights. They might
therefore, with great propriety, be considered as something more
than a mere deduction from the real representatives of the
nation. We will, however, consider them in this light alone, and
will not extend the deduction to a considerable number of
others, who do not reside among their constitutents, are very
faintly connected with them, and have very little particular
knowledge of their affairs. With all these concessions, two
hundred and seventy-nine persons only will be the depository of
the safety, interest, and happiness of eight millions that is to
say, there will be one representative only to maintain the rights
and explain the situation OF TWENTY-EIGHT THOUSAND SIX HUNDRED
AND SEVENTY constitutents, in an assembly exposed to the whole
force of executive influence, and extending its authority to
every object of legislation within a nation whose affairs are in
the highest degree diversified and complicated. Yet it is very
certain, not only that a valuable portion of freedom has been
preserved under all these circumstances, but that the defects in
the British code are chargeable, in a very small proportion, on
the ignorance of the legislature concerning the circumstances of
the people. Allowing to this case the weight which is due to it,
and comparing it with that of the House of Representatives as
above explained it seems to give the fullest assurance, that a
representative for every THIRTY THOUSAND INHABITANTS will render
the latter both a safe and competent guardian of the interests
which will be confided to it. PUBLIUS. Burgh's ``Political
Disquisitions. ''

FEDERALIST No. 57

The Alleged Tendency of the New Plan to Elevate the Few at the
Expense of the Many Considered in Connection with Representation
From the New York Packet. Tuesday, February 19, 1788.

HAMILTON OR MADISON

To the People of the State of New York:
THE THIRD charge against the House of Representatives is, that it
will be taken from that class of citizens which will have least
sympathy with the mass of the people, and be most likely to aim
at an ambitious sacrifice of the many to the aggrandizement of
the few. Of all the objections which have been framed against the
federal Constitution, this is perhaps the most extraordinary.
Whilst the objection itself is levelled against a pretended
oligarchy, the principle of it strikes at the very root of
republican government. The aim of every political constitution
is, or ought to be, first to obtain for rulers men who possess
most wisdom to discern, and most virtue to pursue, the common
good of the society; and in the next place, to take the most
effectual precautions for keeping them virtuous whilst they
continue to hold their public trust. The elective mode of
obtaining rulers is the characteristic policy of republican
government. The means relied on in this form of government for
preventing their degeneracy are numerous and various. The most
effectual one, is such a limitation of the term of appointments
as will maintain a proper responsibility to the people. Let me
now ask what circumstance there is in the constitution of the
House of Representatives that violates the principles of
republican government, or favors the elevation of the few on the
ruins of the many? Let me ask whether every circumstance is not,
on the contrary, strictly conformable to these principles, and
scrupulously impartial to the rights and pretensions of every
class and description of citizens? Who are to be the electors of
the federal representatives? Not the rich, more than the poor;
not the learned, more than the ignorant; not the haughty heirs of
distinguished names, more than the humble sons of obscurity and
unpropitious fortune. The electors are to be the great body of
the people of the United States. They are to be the same who
exercise the right in every State of electing the corresponding
branch of the legislature of the State. Who are to be the objects
of popular choice? Every citizen whose merit may recommend him to
the esteem and confidence of his country. No qualification of
wealth, of birth, of religious faith, or of civil profession is
permitted to fetter the judgement or disappoint the inclination
of the people. If we consider the situation of the men on whom
the free suffrages of their fellow-citizens may confer the
representative trust, we shall find it involving every security
which can be devised or desired for their fidelity to their
constituents. In the first place, as they will have been
distinguished by the preference of their fellow-citizens, we are
to presume that in general they will be somewhat distinguished
also by those qualities which entitle them to it, and which
promise a sincere and scrupulous regard to the nature of their
engagements. In the second place, they will enter into the public
service under circumstances which cannot fail to produce a
temporary affection at least to their constituents. There is in
every breast a sensibility to marks of honor, of favor, of
esteem, and of confidence, which, apart from all considerations
of interest, is some pledge for grateful and benevolent returns.
Ingratitude is a common topic of declamation against human
nature; and it must be confessed that instances of it are but too
frequent and flagrant, both in public and in private life. But
the universal and extreme indignation which it inspires is itself
a proof of the energy and prevalence of the contrary sentiment.
In the third place, those ties which bind the representative to
his constituents are strengthened by motives of a more selfish
nature. His pride and vanity attach him to a form of government
which favors his pretensions and gives him a share in its honors
and distinctions. Whatever hopes or projects might be entertained
by a few aspiring characters, it must generally happen that a
great proportion of the men deriving their advancement from their
influence with the people, would have more to hope from a
preservation of the favor, than from innovations in the
government subversive of the authority of the people. All these
securities, however, would be found very insufficient without the
restraint of frequent elections. Hence, in the fourth place, the
House of Representatives is so constituted as to support in the
members an habitual recollection of their dependence on the
people. Before the sentiments impressed on their minds by the
mode of their elevation can be effaced by the exercise of power,
they will be compelled to anticipate the moment when their power
is to cease, when their exercise of it is to be reviewed, and
when they must descend to the level from which they were raised;
there forever to remain unless a faithful discharge of their
trust shall have established their title to a renewal of it. I
will add, as a fifth circumstance in the situation of the House
of Representatives, restraining them from oppressive measures,
that they can make no law which will not have its full operation
on themselves and their friends, as well as on the great mass of
the society. This has always been deemed one of the strongest
bonds by which human policy can connect the rulers and the people
together. It creates between them that communion of interests and
sympathy of sentiments, of which few governments have furnished
examples; but without which every government degenerates into
tyranny. If it be asked, what is to restrain the House of
Representatives from making legal discriminations in favor of
themselves and a particular class of the society? I answer: the
genius of the whole system; the nature of just and constitutional
laws; and above all, the vigilant and manly spirit which actuates
the people of America, a spirit which nourishes freedom, and in
return is nourished by it. If this spirit shall ever be so far
debased as to tolerate a law not obligatory on the legislature,
as well as on the people, the people will be prepared to tolerate
any thing but liberty. Such will be the relation between the
House of Representatives and their constituents. Duty, gratitude,
interest, ambition itself, are the chords by which they will be
bound to fidelity and sympathy with the great mass of the people.
It is possible that these may all be insufficient to control the
caprice and wickedness of man. But are they not all that
government will admit, and that human prudence can devise? Are
they not the genuine and the characteristic means by which
republican government provides for the liberty and happiness of
the people? Are they not the identical means on which every State
government in the Union relies for the attainment of these
important ends? What then are we to understand by the objection
which this paper has combated? What are we to say to the men who
profess the most flaming zeal for republican government, yet
boldly impeach the fundamental principle of it; who pretend to be
champions for the right and the capacity of the people to choose
their own rulers, yet maintain that they will prefer those only
who will immediately and infallibly betray the trust committed to
them? Were the objection to be read by one who had not seen the
mode prescribed by the Constitution for the choice of
representatives, he could suppose nothing less than that some
unreasonable qualification of property was annexed to the right
of suffrage; or that the right of eligibility was limited to
persons of particular families or fortunes; or at least that the
mode prescribed by the State constitutions was in some respect or
other, very grossly departed from. We have seen how far such a
supposition would err, as to the two first points. Nor would it,
in fact, be less erroneous as to the last. The only difference
discoverable between the two cases is, that each representative
of the United States will be elected by five or six thousand
citizens; whilst in the individual States, the election of a
representative is left to about as many hundreds. Will it be
pretended that this difference is sufficient to justify an
attachment to the State governments, and an abhorrence to the
federal government? If this be the point on which the objection
turns, it deserves to be examined. Is it supported by REASON?
This cannot be said, without maintaining that five or six
thousand citizens are less capable of choosing a fit
representative, or more liable to be corrupted by an unfit one,
than five or six hundred. Reason, on the contrary, assures us,
that as in so great a number a fit representative would be most
likely to be found, so the choice would be less likely to be
diverted from him by the intrigues of the ambitious or the
ambitious or the bribes of the rich. Is the CONSEQUENCE from
this doctrine admissible? If we say that five or six hundred
citizens are as many as can jointly exercise their right of
suffrage, must we not deprive the people of the immediate choice
of their public servants, in every instance where the
administration of the government does not require as many of them
as will amount to one for that number of citizens? Is the
doctrine warranted by FACTS? It was shown in the last paper, that
the real representation in the British House of Commons very
little exceeds the proportion of one for every thirty thousand
inhabitants. Besides a variety of powerful causes not existing
here, and which favor in that country the pretensions of rank and
wealth, no person is eligible as a representative of a county,
unless he possess real estate of the clear value of six hundred
pounds sterling per year; nor of a city or borough, unless he
possess a like estate of half that annual value. To this
qualification on the part of the county representatives is added
another on the part of the county electors, which restrains the
right of suffrage to persons having a freehold estate of the
annual value of more than twenty pounds sterling, according to
the present rate of money. Notwithstanding these unfavorable
circumstances, and notwithstanding some very unequal laws in the
British code, it cannot be said that the representatives of the
nation have elevated the few on the ruins of the many. But we
need not resort to foreign experience on this subject. Our own
is explicit and decisive. The districts in New Hampshire in
which the senators are chosen immediately by the people, are
nearly as large as will be necessary for her representatives in
the Congress. Those of Massachusetts are larger than will be
necessary for that purpose; and those of New York still more so.
In the last State the members of Assembly for the cities and
counties of New York and Albany are elected by very nearly as
many voters as will be entitled to a representative in the
Congress, calculating on the number of sixty-five representatives
only. It makes no difference that in these senatorial districts
and counties a number of representatives are voted for by each
elector at the same time. If the same electors at the same time
are capable of choosing four or five representatives, they cannot
be incapable of choosing one. Pennsylvania is an additional
example. Some of her counties, which elect her State
representatives, are almost as large as her districts will be by
which her federal representatives will be elected. The city of
Philadelphia is supposed to contain between fifty and sixty
thousand souls. It will therefore form nearly two districts for
the choice of federal representatives. It forms, however, but
one county, in which every elector votes for each of its
representatives in the State legislature. And what may appear to
be still more directly to our purpose, the whole city actually
elects a SINGLE MEMBER for the executive council. This is the
case in all the other counties of the State. Are not these facts
the most satisfactory proofs of the fallacy which has been
employed against the branch of the federal government under
consideration? Has it appeared on trial that the senators of New
Hampshire, Massachusetts, and New York, or the executive council
of Pennsylvania, or the members of the Assembly in the two last
States, have betrayed any peculiar disposition to sacrifice the
many to the few, or are in any respect less worthy of their
places than the representatives and magistrates appointed in
other States by very small divisions of the people? But there are
cases of a stronger complexion than any which I have yet quoted.
One branch of the legislature of Connecticut is so constituted
that each member of it is elected by the whole State. So is the
governor of that State, of Massachusetts, and of this State, and
the president of New Hampshire. I leave every man to decide
whether the result of any one of these experiments can be said to
countenance a suspicion, that a diffusive mode of choosing
representatives of the people tends to elevate traitors and to
undermine the public liberty. PUBLIUS.

FEDERALIST No. 58
Objection That The Number of Members Will Not Be Augmented as the
Progress of Population Demands Considered

MADISON

To the People of the State of New York:
THE remaining charge against the House of Representatives, which
I am to examine, is grounded on a supposition that the number of
members will not be augmented from time to time, as the progress
of population may demand. It has been admitted, that this
objection, if well supported, would have great weight. The
following observations will show that, like most other objections
against the Constitution, it can only proceed from a partial view
of the subject, or from a jealousy which discolors and disfigures
every object which is beheld. 1. Those who urge the objection
seem not to have recollected that the federal Constitution will
not suffer by a comparison with the State constitutions, in the
security provided for a gradual augmentation of the number of
representatives. The number which is to prevail in the first
instance is declared to be temporary. Its duration is limited to
the short term of three years. Within every successive term of
ten years a census of inhabitants is to be repeated. The
unequivocal objects of these regulations are, first, to readjust,
from time to time, the apportionment of representatives to the
number of inhabitants, under the single exception that each State
shall have one representative at least; secondly, to augment the
number of representatives at the same periods, under the sole
limitation that the whole number shall not exceed one for every
thirty thousand inhabitants. If we review the constitutions of
the several States, we shall find that some of them contain no
determinate regulations on this subject, that others correspond
pretty much on this point with the federal Constitution, and that
the most effectual security in any of them is resolvable into a
mere directory provision. 2. As far as experience has taken place
on this subject, a gradual increase of representatives under the
State constitutions has at least kept pace with that of the
constituents, and it appears that the former have been as ready
to concur in such measures as the latter have been to call for
them. 3. There is a peculiarity in the federal Constitution which
insures a watchful attention in a majority both of the people and
of their representatives to a constitutional augmentation of the
latter. The peculiarity lies in this, that one branch of the
legislature is a representation of citizens, the other of the
States: in the former, consequently, the larger States will have
most weight; in the latter, the advantage will be in favor of the
smaller States. From this circumstance it may with certainty be
inferred that the larger States will be strenuous advocates for
increasing the number and weight of that part of the legislature
in which their influence predominates. And it so happens that
four only of the largest will have a majority of the whole votes
in the House of Representatives. Should the representatives or
people, therefore, of the smaller States oppose at any time a
reasonable addition of members, a coalition of a very few States
will be sufficient to overrule the opposition; a coalition which,
notwithstanding the rivalship and local prejudices which might
prevent it on ordinary occasions, would not fail to take place,
when not merely prompted by common interest, but justified by
equity and the principles of the Constitution. It may be
alleged, perhaps, that the Senate would be prompted by like
motives to an adverse coalition; and as their concurrence would
be indispensable, the just and constitutional views of the other
branch might be defeated. This is the difficulty which has
probably created the most serious apprehensions in the jealous
friends of a numerous representation. Fortunately it is among
the difficulties which, existing only in appearance, vanish on a
close and accurate inspection. The following reflections will,
if I mistake not, be admitted to be conclusive and satisfactory
on this point. Notwithstanding the equal authority which will
subsist between the two houses on all legislative subjects,
except the originating of money bills, it cannot be doubted that
the House, composed of the greater number of members, when
supported by the more powerful States, and speaking the known and
determined sense of a majority of the people, will have no small
advantage in a question depending on the comparative firmness of
the two houses. This advantage must be increased by the
consciousness, felt by the same side of being supported in its
demands by right, by reason, and by the Constitution; and the
consciousness, on the opposite side, of contending against the
force of all these solemn considerations. It is farther to be
considered, that in the gradation between the smallest and
largest States, there are several, which, though most likely in
general to arrange themselves among the former are too little
removed in extent and population from the latter, to second an
opposition to their just and legitimate pretensions. Hence it is
by no means certain that a majority of votes, even in the
Senate, would be unfriendly to proper augmentations in the number
of representatives. It will not be looking too far to add, that
the senators from all the new States may be gained over to the
just views of the House of Representatives, by an expedient too
obvious to be overlooked. As these States will, for a great
length of time, advance in population with peculiar rapidity,
they will be interested in frequent reapportionments of the
representatives to the number of inhabitants. The large States,
therefore, who will prevail in the House of Representatives, will
have nothing to do but to make reapportionments and augmentations
mutually conditions of each other; and the senators from all the
most growing States will be bound to contend for the latter, by
the interest which their States will feel in the former. These
considerations seem to afford ample security on this subject, and
ought alone to satisfy all the doubts and fears which have been
indulged with regard to it. Admitting, however, that they should
all be insufficient to subdue the unjust policy of the smaller
States, or their predominant influence in the councils of the
Senate, a constitutional and infallible resource still remains
with the larger States, by which they will be able at all times
to accomplish their just purposes. The House of Representatives
cannot only refuse, but they alone can propose, the supplies
requisite for the support of government. They, in a word, hold
the purse that powerful instrument by which we behold, in the
history of the British Constitution, an infant and humble
representation of the people gradually enlarging the sphere of
its activity and importance, and finally reducing, as far as it
seems to have wished, all the overgrown prerogatives of the other
branches of the government. This power over the purse may, in
fact, be regarded as the most complete and effectual weapon with
which any constitution can arm the immediate representatives of
the people, for obtaining a redress of every grievance, and for
carrying into effect every just and salutary measure. But will
not the House of Representatives be as much interested as the
Senate in maintaining the government in its proper functions, and
will they not therefore be unwilling to stake its existence or
its reputation on the pliancy of the Senate? Or, if such a trial
of firmness between the two branches were hazarded, would not the
one be as likely first to yield as the other? These questions
will create no difficulty with those who reflect that in all
cases the smaller the number, and the more permanent and
conspicuous the station, of men in power, the stronger must be
the interest which they will individually feel in whatever
concerns the government. Those who represent the dignity of their
country in the eyes of other nations, will be particularly
sensible to every prospect of public danger, or of dishonorable
stagnation in public affairs. To those causes we are to ascribe
the continual triumph of the British House of Commons over the
other branches of the government, whenever the engine of a money
bill has been employed. An absolute inflexibility on the side of
the latter, although it could not have failed to involve every
department of the state in the general confusion, has neither
been apprehended nor experienced. The utmost degree of firmness
that can be displayed by the federal Senate or President, will
not be more than equal to a resistance in which they will be
supported by constitutional and patriotic principles. In this
review of the Constitution of the House of Representatives, I
have passed over the circumstances of economy, which, in the
present state of affairs, might have had some effect in lessening
the temporary number of representatives, and a disregard of which
would probably have been as rich a theme of declamation against
the Constitution as has been shown by the smallness of the number
proposed. I omit also any remarks on the difficulty which might
be found, under present circumstances, in engaging in the federal
service a large number of such characters as the people will
probably elect. One observation, however, I must be permitted to
add on this subject as claiming, in my judgment, a very serious
attention. It is, that in all legislative assemblies the greater
the number composing them may be, the fewer will be the men who
will in fact direct their proceedings. In the first place, the
more numerous an assembly may be, of whatever characters
composed, the greater is known to be the ascendency of passion
over reason. In the next place, the larger the number, the
greater will be the proportion of members of limited information
and of weak capacities. Now, it is precisely on characters of
this description that the eloquence and address of the few are
known to act with all their force. In the ancient republics,
where the whole body of the people assembled in person, a single
orator, or an artful statesman, was generally seen to rule with
as complete a sway as if a sceptre had been placed in his single
hand. On the same principle, the more multitudinous a
representative assembly may be rendered, the more it will partake
of the infirmities incident to collective meetings of the people.
Ignorance will be the dupe of cunning, and passion the slave of
sophistry and declamation. The people can never err more than in
supposing that by multiplying their representatives beyond a
certain limit, they strengthen the barrier against the government
of a few. Experience will forever admonish them that, on the
contrary, AFTER SECURING A SUFFICIENT NUMBER FOR THE PURPOSES OF
SAFETY, OF LOCAL INFORMATION, AND OF DIFFUSIVE SYMPATHY WITH THE
WHOLE SOCIETY, they will counteract their own views by every
addition to their representatives. The countenance of the
government may become more democratic, but the soul that animates
it will be more oligarchic. The machine will be enlarged, but the
fewer, and often the more secret, will be the springs by which
its motions are directed. As connected with the objection against
the number of representatives, may properly be here noticed, that
which has been suggested against the number made competent for
legislative business. It has been said that more than a majority
ought to have been required for a quorum; and in particular
cases, if not in all, more than a majority of a quorum for a
decision. That some advantages might have resulted from such a
precaution, cannot be denied. It might have been an additional
shield to some particular interests, and another obstacle
generally to hasty and partial measures. But these considerations
are outweighed by the inconveniences in the opposite scale. In
all cases where justice or the general good might require new
laws to be passed, or active measures to be pursued, the
fundamental principle of free government would be reversed. It
would be no longer the majority that would rule: the power would
be transferred to the minority. Were the defensive privilege
limited to particular cases, an interested minority might take
advantage of it to screen themselves from equitable sacrifices to
the general weal, or, in particular emergencies, to extort
unreasonable indulgences. Lastly, it would facilitate and foster
the baneful practice of secessions; a practice which has shown
itself even in States where a majority only is required; a
practice subversive of all the principles of order and regular
government; a practice which leads more directly to public
convulsions, and the ruin of popular governments, than any other
which has yet been displayed among us. PUBLIUS.

FEDERALIST No. 59

Concerning the Power of Congress to Regulate the Election of
Members
From the New York Packet. Friday, February 22, 1788.

HAMILTON

To the People of the State of New York:
THE natural order of the subject leads us to consider, in this
place, that provision of the Constitution which authorizes the
national legislature to regulate, in the last resort, the
election of its own members. It is in these words: ``The TIMES,
PLACES, and MANNER of holding elections for senators and
representatives shall be prescribed in each State by the
legislature thereof; but the Congress may, at any time, by law,
make or alter SUCH REGULATIONS, except as to the PLACES of
choosing senators. ''1 This provision has not only been declaimed
against by those who condemn the Constitution in the gross, but
it has been censured by those who have objected with less
latitude and greater moderation; and, in one instance it has been
thought exceptionable by a gentleman who has declared himself the
advocate of every other part of the system. I am greatly
mistaken, notwithstanding, if there be any article in the whole
plan more completely defensible than this. Its propriety rests
upon the evidence of this plain proposition, that EVERY
GOVERNMENT OUGHT TO CONTAIN IN ITSELF THE MEANS OF ITS OWN
PRESERVATION. Every just reasoner will, at first sight, approve
an adherence to this rule, in the work of the convention; and
will disapprove every deviation from it which may not appear to
have been dictated by the necessity of incorporating into the
work some particular ingredient, with which a rigid conformity to
the rule was incompatible. Even in this case, though he may
acquiesce in the necessity, yet he will not cease to regard and
to regret a departure from so fundamental a principle, as a
portion of imperfection in the system which may prove the seed of
future weakness, and perhaps anarchy. It will not be alleged,
that an election law could have been framed and inserted in the
Constitution, which would have been always applicable to every
probable change in the situation of the country; and it will
therefore not be denied, that a discretionary power over
elections ought to exist somewhere. It will, I presume, be as
readily conceded, that there were only three ways in which this
power could have been reasonably modified and disposed: that it
must either have been lodged wholly in the national legislature,
or wholly in the State legislatures, or primarily in the latter
and ultimately in the former. The last mode has, with reason,
been preferred by the convention. They have submitted the
regulation of elections for the federal government, in the first
instance, to the local administrations; which, in ordinary
cases, and when no improper views prevail, may be both more
convenient and more satisfactory; but they have reserved to the
national authority a right to interpose, whenever extraordinary
circumstances might render that interposition necessary to its
safety. Nothing can be more evident, than that an exclusive
power of regulating elections for the national government, in the
hands of the State legislatures, would leave the existence of the
Union entirely at their mercy. They could at any moment
annihilate it, by neglecting to provide for the choice of persons
to administer its affairs. It is to little purpose to say, that
a neglect or omission of this kind would not be likely to take
place. The constitutional possibility of the thing, without an
equivalent for the risk, is an unanswerable objection. Nor has
any satisfactory reason been yet assigned for incurring that
risk. The extravagant surmises of a distempered jealousy can
never be dignified with that character. If we are in a humor to
presume abuses of power, it is as fair to presume them on the
part of the State governments as on the part of the general
government. And as it is more consonant to the rules of a just
theory, to trust the Union with the care of its own existence,
than to transfer that care to any other hands, if abuses of power
are to be hazarded on the one side or on the other, it is more
rational to hazard them where the power would naturally be
placed, than where it would unnaturally be placed. Suppose an
article had been introduced into the Constitution, empowering the
United States to regulate the elections for the particular
States, would any man have hesitated to condemn it, both as an
unwarrantable transposition of power, and as a premeditated
engine for the destruction of the State governments? The
violation of principle, in this case, would have required no
comment; and, to an unbiased observer, it will not be less
apparent in the project of subjecting the existence of the
national government, in a similar respect, to the pleasure of the
State governments. An impartial view of the matter cannot fail
to result in a conviction, that each, as far as possible, ought
to depend on itself for its own preservation. As an objection to
this position, it may be remarked that the constitution of the
national Senate would involve, in its full extent, the danger
which it is suggested might flow from an exclusive power in the
State legislatures to regulate the federal elections. It may be
alleged, that by declining the appointment of Senators, they
might at any time give a fatal blow to the Union; and from this
it may be inferred, that as its existence would be thus rendered
dependent upon them in so essential a point, there can be no
objection to intrusting them with it in the particular case under
consideration. The interest of each State, it may be added, to
maintain its representation in the national councils, would be a
complete security against an abuse of the trust. This argument,
though specious, will not, upon examination, be found solid. It
is certainly true that the State legislatures, by forbearing the
appointment of senators, may destroy the national government. But
it will not follow that, because they have a power to do this in
one instance, they ought to have it in every other. There are
cases in which the pernicious tendency of such a power may be far
more decisive, without any motive equally cogent with that which
must have regulated the conduct of the convention in respect to
the formation of the Senate, to recommend their admission into
the system. So far as that construction may expose the Union to
the possibility of injury from the State legislatures, it is an
evil; but it is an evil which could not have been avoided without
excluding the States, in their political capacities, wholly from
a place in the organization of the national government. If this
had been done, it would doubtless have been interpreted into an
entire dereliction of the federal principle; and would certainly
have deprived the State governments of that absolute safeguard
which they will enjoy under this provision. But however wise it
may have been to have submitted in this instance to an
inconvenience, for the attainment of a necessary advantage or a
greater good, no inference can be drawn from thence to favor an
accumulation of the evil, where no necessity urges, nor any
greater good invites. It may be easily discerned also that the
national government would run a much greater risk from a power in
the State legislatures over the elections of its House of
Representatives, than from their power of appointing the members
of its Senate. The senators are to be chosen for the period of
six years; there is to be a rotation, by which the seats of a
third part of them are to be vacated and replenished every two
years; and no State is to be entitled to more than two senators;
a quorum of the body is to consist of sixteen members. The joint
result of these circumstances would be, that a temporary
combination of a few States to intermit the appointment of
senators, could neither annul the existence nor impair the
activity of the body; and it is not from a general and permanent
combination of the States that we can have any thing to fear. The
first might proceed from sinister designs in the leading members
of a few of the State legislatures; the last would suppose a
fixed and rooted disaffection in the great body of the people,
which will either never exist at all, or will, in all
probability, proceed from an experience of the inaptitude of the
general government to the advancement of their happiness in which
event no good citizen could desire its continuance. But with
regard to the federal House of Representatives, there is intended
to be a general election of members once in two years. If the
State legislatures were to be invested with an exclusive power of
regulating these elections, every period of making them would be
a delicate crisis in the national situation, which might issue in
a dissolution of the Union, if the leaders of a few of the most
important States should have entered into a previous conspiracy
to prevent an election. I shall not deny, that there is a degree
of weight in the observation, that the interests of each State,
to be represented in the federal councils, will be a security
against the abuse of a power over its elections in the hands of
the State legislatures. But the security will not be considered
as complete, by those who attend to the force of an obvious
distinction between the interest of the people in the public
felicity, and the interest of their local rulers in the power and
consequence of their offices. The people of America may be
warmly attached to the government of the Union, at times when the
particular rulers of particular States, stimulated by the natural
rivalship of power, and by the hopes of personal aggrandizement,
and supported by a strong faction in each of those States, may be
in a very opposite temper. This diversity of sentiment between a
majority of the people, and the individuals who have the
greatest credit in their councils, is exemplified in some of the
States at the present moment, on the present question. The
scheme of separate confederacies, which will always multiply the
chances of ambition, will be a never failing bait to all such
influential characters in the State administrations as are
capable of preferring their own emolument and advancement to the
public weal. With so effectual a weapon in their hands as the
exclusive power of regulating elections for the national
government, a combination of a few such men, in a few of the most
considerable States, where the temptation will always be the
strongest, might accomplish the destruction of the Union, by
seizing the opportunity of some casual dissatisfaction among the
people (and which perhaps they may themselves have excited), to
discontinue the choice of members for the federal House of
Representatives. It ought never to be forgotten, that a firm
union of this country, under an efficient government, will
probably be an increasing object of jealousy to more than one
nation of Europe; and that enterprises to subvert it will
sometimes originate in the intrigues of foreign powers, and will
seldom fail to be patronized and abetted by some of them. Its
preservation, therefore ought in no case that can be avoided, to
be committed to the guardianship of any but those whose situation
will uniformly beget an immediate interest in the faithful and
vigilant performance of the trust. PUBLIUS. Ist clause, 4th
section, of the Ist article.

FEDERALIST No. 60

The Same Subject Continued
(Concerning the Power of Congress to Regulate the Election of
Members)
From the New York Packet.
Tuesday, February 26, 1788.

HAMILTON

To the People of the State of New York:
WE HAVE seen, that an uncontrollable power over the elections to
the federal government could not, without hazard, be committed to
the State legislatures. Let us now see, what would be the danger on
the other side; that is, from confiding the ultimate right of
regulating its own elections to the Union itself. It is not
pretended, that this right would ever be used for the exclusion of
any State from its share in the representation. The interest of all
would, in this respect at least, be the security of all. But it is
alleged, that it might be employed in such a manner as to promote
the election of some favorite class of men in exclusion of others,
by confining the places of election to particular districts, and
rendering it impracticable to the citizens at large to partake in
the choice. Of all chimerical suppositions, this seems to be the
most chimerical. On the one hand, no rational calculation of
probabilities would lead us to imagine that the disposition which a
conduct so violent and extraordinary would imply, could ever find
its way into the national councils; and on the other, it may be
concluded with certainty, that if so improper a spirit should ever
gain admittance into them, it would display itself in a form
altogether different and far more decisive.
The improbability of the attempt may be satisfactorily inferred
from this single reflection, that it could never be made without
causing an immediate revolt of the great body of the people, headed
and directed by the State governments. It is not difficult to
conceive that this characteristic right of freedom may, in certain
turbulent and factious seasons, be violated, in respect to a
particular class of citizens, by a victorious and overbearing
majority; but that so fundamental a privilege, in a country so
situated and enlightened, should be invaded to the prejudice of the
great mass of the people, by the deliberate policy of the
government, without occasioning a popular revolution, is altogether
inconceivable and incredible.
In addition to this general reflection, there are considerations
of a more precise nature, which forbid all apprehension on the
subject. The dissimilarity in the ingredients which will compose
the national government, and still more in the manner in which they
will be brought into action in its various branches, must form a
powerful obstacle to a concert of views in any partial scheme of
elections. There is sufficient diversity in the state of property,
in the genius, manners, and habits of the people of the different
parts of the Union, to occasion a material diversity of disposition
in their representatives towards the different ranks and conditions
in society. And though an intimate intercourse under the same
government will promote a gradual assimilation in some of these
respects, yet there are causes, as well physical as moral, which
may, in a greater or less degree, permanently nourish different
propensities and inclinations in this respect. But the circumstance
which will be likely to have the greatest influence in the matter,
will be the dissimilar modes of constituting the several component
parts of the government. The House of Representatives being to be
elected immediately by the people, the Senate by the State
legislatures, the President by electors chosen for that purpose by
the people, there would be little probability of a common interest
to cement these different branches in a predilection for any
particular class of electors.
As to the Senate, it is impossible that any regulation of ``time
and manner,'' which is all that is proposed to be submitted to the
national government in respect to that body, can affect the spirit
which will direct the choice of its members. The collective sense
of the State legislatures can never be influenced by extraneous
circumstances of that sort; a consideration which alone ought to
satisfy us that the discrimination apprehended would never be
attempted. For what inducement could the Senate have to concur in a
preference in which itself would not be included? Or to what
purpose would it be established, in reference to one branch of the
legislature, if it could not be extended to the other? The
composition of the one would in this case counteract that of the
other. And we can never suppose that it would embrace the
appointments to the Senate, unless we can at the same time suppose
the voluntary co-operation of the State legislatures. If we make
the latter supposition, it then becomes immaterial where the power
in question is placed whether in their hands or in those of the
Union.
But what is to be the object of this capricious partiality in
the national councils? Is it to be exercised in a discrimination
between the different departments of industry, or between the
different kinds of property, or between the different degrees of
property? Will it lean in favor of the landed interest, or the
moneyed interest, or the mercantile interest, or the manufacturing
interest? Or, to speak in the fashionable language of the
adversaries to the Constitution, will it court the elevation of
``the wealthy and the well-born,'' to the exclusion and debasement
of all the rest of the society?
If this partiality is to be exerted in favor of those who are
concerned in any particular description of industry or property, I
presume it will readily be admitted, that the competition for it
will lie between landed men and merchants. And I scruple not to
affirm, that it is infinitely less likely that either of them should
gain an ascendant in the national councils, than that the one or the
other of them should predominate in all the local councils. The
inference will be, that a conduct tending to give an undue
preference to either is much less to be dreaded from the former than
from the latter.
The several States are in various degrees addicted to
agriculture and commerce. In most, if not all of them, agriculture
is predominant. In a few of them, however, commerce nearly divides
its empire, and in most of them has a considerable share of
influence. In proportion as either prevails, it will be conveyed
into the national representation; and for the very reason, that
this will be an emanation from a greater variety of interests, and
in much more various proportions, than are to be found in any single
State, it will be much less apt to espouse either of them with a
decided partiality, than the representation of any single State.
In a country consisting chiefly of the cultivators of land,
where the rules of an equal representation obtain, the landed
interest must, upon the whole, preponderate in the government. As
long as this interest prevails in most of the State legislatures, so
long it must maintain a correspondent superiority in the national
Senate, which will generally be a faithful copy of the majorities of
those assemblies. It cannot therefore be presumed, that a sacrifice
of the landed to the mercantile class will ever be a favorite object
of this branch of the federal legislature. In applying thus
particularly to the Senate a general observation suggested by the
situation of the country, I am governed by the consideration, that
the credulous votaries of State power cannot, upon their own
principles, suspect, that the State legislatures would be warped
from their duty by any external influence. But in reality the same
situation must have the same effect, in the primative composition at
least of the federal House of Representatives: an improper bias
towards the mercantile class is as little to be expected from this
quarter as from the other.
In order, perhaps, to give countenance to the objection at any
rate, it may be asked, is there not danger of an opposite bias in
the national government, which may dispose it to endeavor to secure
a monopoly of the federal administration to the landed class? As
there is little likelihood that the supposition of such a bias will
have any terrors for those who would be immediately injured by it, a
labored answer to this question will be dispensed with. It will be
sufficient to remark, first, that for the reasons elsewhere
assigned, it is less likely that any decided partiality should
prevail in the councils of the Union than in those of any of its
members. Secondly, that there would be no temptation to violate the
Constitution in favor of the landed class, because that class would,
in the natural course of things, enjoy as great a preponderancy as
itself could desire. And thirdly, that men accustomed to
investigate the sources of public prosperity upon a large scale,
must be too well convinced of the utility of commerce, to be
inclined to inflict upon it so deep a wound as would result from the
entire exclusion of those who would best understand its interest
from a share in the management of them. The importance of commerce,
in the view of revenue alone, must effectually guard it against the
enmity of a body which would be continually importuned in its favor,
by the urgent calls of public necessity.
I the rather consult brevity in discussing the probability of a
preference founded upon a discrimination between the different kinds
of industry and property, because, as far as I understand the
meaning of the objectors, they contemplate a discrimination of
another kind. They appear to have in view, as the objects of the
preference with which they endeavor to alarm us, those whom they
designate by the description of ``the wealthy and the well-born.''
These, it seems, are to be exalted to an odious pre-eminence over
the rest of their fellow-citizens. At one time, however, their
elevation is to be a necessary consequence of the smallness of the
representative body; at another time it is to be effected by
depriving the people at large of the opportunity of exercising their
right of suffrage in the choice of that body.
But upon what principle is the discrimination of the places of
election to be made, in order to answer the purpose of the meditated
preference? Are ``the wealthy and the well-born,'' as they are
called, confined to particular spots in the several States? Have
they, by some miraculous instinct or foresight, set apart in each of
them a common place of residence? Are they only to be met with in
the towns or cities? Or are they, on the contrary, scattered over
the face of the country as avarice or chance may have happened to
cast their own lot or that of their predecessors? If the latter is
the case, (as every intelligent man knows it to be,1) is it not
evident that the policy of confining the places of election to
particular districts would be as subversive of its own aim as it
would be exceptionable on every other account? The truth is, that
there is no method of securing to the rich the preference
apprehended, but by prescribing qualifications of property either
for those who may elect or be elected. But this forms no part of
the power to be conferred upon the national government. Its
authority would be expressly restricted to the regulation of the
TIMES, the PLACES, the MANNER of elections. The qualifications of
the persons who may choose or be chosen, as has been remarked upon
other occasions, are defined and fixed in the Constitution, and are
unalterable by the legislature.
Let it, however, be admitted, for argument sake, that the
expedient suggested might be successful; and let it at the same
time be equally taken for granted that all the scruples which a
sense of duty or an apprehension of the danger of the experiment
might inspire, were overcome in the breasts of the national rulers,
still I imagine it will hardly be pretended that they could ever
hope to carry such an enterprise into execution without the aid of a
military force sufficient to subdue the resistance of the great body
of the people. The improbability of the existence of a force equal
to that object has been discussed and demonstrated in different
parts of these papers; but that the futility of the objection under
consideration may appear in the strongest light, it shall be
conceded for a moment that such a force might exist, and the
national government shall be supposed to be in the actual possession
of it. What will be the conclusion? With a disposition to invade
the essential rights of the community, and with the means of
gratifying that disposition, is it presumable that the persons who
were actuated by it would amuse themselves in the ridiculous task of
fabricating election laws for securing a preference to a favorite
class of men? Would they not be likely to prefer a conduct better
adapted to their own immediate aggrandizement? Would they not
rather boldly resolve to perpetuate themselves in office by one
decisive act of usurpation, than to trust to precarious expedients
which, in spite of all the precautions that might accompany them,
might terminate in the dismission, disgrace, and ruin of their
authors? Would they not fear that citizens, not less tenacious than
conscious of their rights, would flock from the remote extremes of
their respective States to the places of election, to overthrow
their tyrants, and to substitute men who would be disposed to avenge
the violated majesty of the people?
PUBLIUS.
1 Particularly in the Southern States and in this State.

FEDERALIST No. 61

The Same Subject Continued
(Concerning the Power of Congress to Regulate the Election of
Members)
From the New York Packet.
Tuesday, February 26, 1788.

HAMILTON

To the People of the State of New York:
THE more candid opposers of the provision respecting elections,
contained in the plan of the convention, when pressed in argument,
will sometimes concede the propriety of that provision; with this
qualification, however, that it ought to have been accompanied with
a declaration, that all elections should be had in the counties
where the electors resided. This, say they, was a necessary
precaution against an abuse of the power. A declaration of this
nature would certainly have been harmless; so far as it would have
had the effect of quieting apprehensions, it might not have been
undesirable. But it would, in fact, have afforded little or no
additional security against the danger apprehended; and the want of
it will never be considered, by an impartial and judicious examiner,
as a serious, still less as an insuperable, objection to the plan.
The different views taken of the subject in the two preceding
papers must be sufficient to satisfy all dispassionate and
discerning men, that if the public liberty should ever be the victim
of the ambition of the national rulers, the power under examination,
at least, will be guiltless of the sacrifice.
If those who are inclined to consult their jealousy only, would
exercise it in a careful inspection of the several State
constitutions, they would find little less room for disquietude and
alarm, from the latitude which most of them allow in respect to
elections, than from the latitude which is proposed to be allowed to
the national government in the same respect. A review of their
situation, in this particular, would tend greatly to remove any ill
impressions which may remain in regard to this matter. But as that
view would lead into long and tedious details, I shall content
myself with the single example of the State in which I write. The
constitution of New York makes no other provision for LOCALITY of
elections, than that the members of the Assembly shall be elected in
the COUNTIES; those of the Senate, in the great districts into
which the State is or may be divided: these at present are four in
number, and comprehend each from two to six counties. It may
readily be perceived that it would not be more difficult to the
legislature of New York to defeat the suffrages of the citizens of
New York, by confining elections to particular places, than for the
legislature of the United States to defeat the suffrages of the
citizens of the Union, by the like expedient. Suppose, for
instance, the city of Albany was to be appointed the sole place of
election for the county and district of which it is a part, would
not the inhabitants of that city speedily become the only electors
of the members both of the Senate and Assembly for that county and
district? Can we imagine that the electors who reside in the remote
subdivisions of the counties of Albany, Saratoga, Cambridge, etc.,
or in any part of the county of Montgomery, would take the trouble
to come to the city of Albany, to give their votes for members of
the Assembly or Senate, sooner than they would repair to the city of
New York, to participate in the choice of the members of the federal
House of Representatives? The alarming indifference discoverable in
the exercise of so invaluable a privilege under the existing laws,
which afford every facility to it, furnishes a ready answer to this
question. And, abstracted from any experience on the subject, we
can be at no loss to determine, that when the place of election is
at an INCONVENIENT DISTANCE from the elector, the effect upon his
conduct will be the same whether that distance be twenty miles or
twenty thousand miles. Hence it must appear, that objections to the
particular modification of the federal power of regulating elections
will, in substance, apply with equal force to the modification of
the like power in the constitution of this State; and for this
reason it will be impossible to acquit the one, and to condemn the
other. A similar comparison would lead to the same conclusion in
respect to the constitutions of most of the other States.
If it should be said that defects in the State constitutions
furnish no apology for those which are to be found in the plan
proposed, I answer, that as the former have never been thought
chargeable with inattention to the security of liberty, where the
imputations thrown on the latter can be shown to be applicable to
them also, the presumption is that they are rather the cavilling
refinements of a predetermined opposition, than the well-founded
inferences of a candid research after truth. To those who are
disposed to consider, as innocent omissions in the State
constitutions, what they regard as unpardonable blemishes in the
plan of the convention, nothing can be said; or at most, they can
only be asked to assign some substantial reason why the
representatives of the people in a single State should be more
impregnable to the lust of power, or other sinister motives, than
the representatives of the people of the United States? If they
cannot do this, they ought at least to prove to us that it is easier
to subvert the liberties of three millions of people, with the
advantage of local governments to head their opposition, than of two
hundred thousand people who are destitute of that advantage. And in
relation to the point immediately under consideration, they ought to
convince us that it is less probable that a predominant faction in a
single State should, in order to maintain its superiority, incline
to a preference of a particular class of electors, than that a
similar spirit should take possession of the representatives of
thirteen States, spread over a vast region, and in several respects
distinguishable from each other by a diversity of local
circumstances, prejudices, and interests.
Hitherto my observations have only aimed at a vindication of the
provision in question, on the ground of theoretic propriety, on that
of the danger of placing the power elsewhere, and on that of the
safety of placing it in the manner proposed. But there remains to
be mentioned a positive advantage which will result from this
disposition, and which could not as well have been obtained from any
other: I allude to the circumstance of uniformity in the time of
elections for the federal House of Representatives. It is more than
possible that this uniformity may be found by experience to be of
great importance to the public welfare, both as a security against
the perpetuation of the same spirit in the body, and as a cure for
the diseases of faction. If each State may choose its own time of
election, it is possible there may be at least as many different
periods as there are months in the year. The times of election in
the several States, as they are now established for local purposes,
vary between extremes as wide as March and November. The
consequence of this diversity would be that there could never happen
a total dissolution or renovation of the body at one time. If an
improper spirit of any kind should happen to prevail in it, that
spirit would be apt to infuse itself into the new members, as they
come forward in succession. The mass would be likely to remain
nearly the same, assimilating constantly to itself its gradual
accretions. There is a contagion in example which few men have
sufficient force of mind to resist. I am inclined to think that
treble the duration in office, with the condition of a total
dissolution of the body at the same time, might be less formidable
to liberty than one third of that duration subject to gradual and
successive alterations.
Uniformity in the time of elections seems not less requisite for
executing the idea of a regular rotation in the Senate, and for
conveniently assembling the legislature at a stated period in each
year.
It may be asked, Why, then, could not a time have been fixed in
the Constitution? As the most zealous adversaries of the plan of
the convention in this State are, in general, not less zealous
admirers of the constitution of the State, the question may be
retorted, and it may be asked, Why was not a time for the like
purpose fixed in the constitution of this State? No better answer
can be given than that it was a matter which might safely be
entrusted to legislative discretion; and that if a time had been
appointed, it might, upon experiment, have been found less
convenient than some other time. The same answer may be given to
the question put on the other side. And it may be added that the
supposed danger of a gradual change being merely speculative, it
would have been hardly advisable upon that speculation to establish,
as a fundamental point, what would deprive several States of the
convenience of having the elections for their own governments and
for the national government at the same epochs.
PUBLIUS.

FEDERALIST No. 62

The Senate
For the Independent Journal.

HAMILTON OR MADISON

To the People of the State of New York:
HAVING examined the constitution of the House of
Representatives, and answered such of the objections against it as
seemed to merit notice, I enter next on the examination of the
Senate.
The heads into which this member of the government may be
considered are: I. The qualification of senators; II. The
appointment of them by the State legislatures; III. The equality of
representation in the Senate; IV. The number of senators, and the
term for which they are to be elected; V. The powers vested in the
Senate.
I. The qualifications proposed for senators, as distinguished
from those of representatives, consist in a more advanced age and a
longer period of citizenship. A senator must be thirty years of age
at least; as a representative must be twenty-five. And the former
must have been a citizen nine years; as seven years are required
for the latter. The propriety of these distinctions is explained by
the nature of the senatorial trust, which, requiring greater extent
of information and 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.
III. The equality of representation in the Senate is another
point, which, being evidently the result of compromise between the
opposite pretensions of the large and the small States, does not
call for much discussion. If indeed it be right, that among a
people thoroughly incorporated into one nation, every district ought
to have a PROPORTIONAL share in the government, and that among
independent and sovereign States, bound together by a simple league,
the parties, however unequal in size, ought to have an EQUAL share
in the common councils, it does not appear to be without some reason
that in a compound republic, partaking both of the national and
federal character, the government ought to be founded on a mixture
of the principles of proportional and equal representation. But it
is superfluous to try, by the standard of theory, a part of the
Constitution which is allowed on all hands to be the result, not of
theory, but ``of a spirit of amity, and that mutual deference and
concession which the peculiarity of our political situation rendered
indispensable.'' A common government, with powers equal to its
objects, is called for by the voice, and still more loudly by the
political situation, of America. A government founded on principles
more consonant to the wishes of the larger States, is not likely to
be obtained from the smaller States. The only option, then, for the
former, lies between the proposed government and a government still
more objectionable. Under this alternative, the advice of prudence
must be to embrace the lesser evil; and, instead of indulging a
fruitless anticipation of the possible mischiefs which may ensue, to
contemplate rather the advantageous consequences which may qualify
the sacrifice.
In this spirit it may be remarked, that the equal vote allowed
to each State is at once a constitutional recognition of the portion
of sovereignty remaining in the individual States, and an instrument
for preserving that residuary sovereignty. So far the equality
ought to be no less acceptable to the large than to the small
States; since they are not less solicitous to guard, by every
possible expedient, against an improper consolidation of the States
into one simple republic.
Another advantage accruing from this ingredient in the
constitution of the Senate is, the additional impediment it must
prove against improper acts of legislation. No law or resolution
can now be passed without the concurrence, first, of a majority of
the people, and then, of a majority of the States. It must be
acknowledged that this complicated check on legislation may in some
instances be injurious as well as beneficial; and that the peculiar
defense which it involves in favor of the smaller States, would be
more rational, if any interests common to them, and distinct from
those of the other States, would otherwise be exposed to peculiar
danger. But as the larger States will always be able, by their
power over the supplies, to defeat unreasonable exertions of this
prerogative of the lesser States, and as the faculty and excess of
law-making seem to be the diseases to which our governments are most
liable, it is not impossible that this part of the Constitution may
be more convenient in practice than it appears to many in
contemplation.
IV. The number of senators, and the duration of their
appointment, come next to be considered. In order to form an
accurate judgment on both of these points, it will be proper to
inquire into the purposes which are to be answered by a senate; and
in order to ascertain these, it will be necessary to review the
inconveniences which a republic must suffer from the want of such an
institution.
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.
Secondly. 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.
Thirdly. 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.
Fourthly. 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, 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 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?
Another effect of public instability is the unreasonable
advantage it gives to the sagacious, the enterprising, and the
moneyed few over the industrious and uniformed mass of the people.
Every new regulation concerning commerce or revenue, or in any way
affecting the value of the different species of property, presents a
new harvest to those who watch the change, and can trace its
consequences; a harvest, reared not by themselves, but by the toils
and cares of the great body of their fellow-citizens. This is a
state of things in which it may be said with some truth that laws
are made for the FEW, not for the MANY.
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. No. 63

The Senate Continued
For the Independent Journal.

HAMILTON OR MADISON

To the People of the State of New York:
A FIFTH desideratum, illustrating the utility of a senate, is
the want of a due sense of national character. Without a select and
stable member of the government, the esteem of foreign powers will
not only be forfeited by an unenlightened and variable policy,
proceeding from the causes already mentioned, but the national
councils will not possess that sensibility to the opinion of the
world, which is perhaps not less necessary in order to merit, than
it is to obtain, its respect and confidence.
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, 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.
Thus far I have considered the circumstances which point out the
necessity of a well-constructed Senate only as they relate to the
representatives of the people. To a people as little blinded by
prejudice or corrupted by flattery as those whom I address, I shall
not scruple to add, that such an institution may be sometimes
necessary as a defense to the people against their own temporary
errors and delusions. As the cool and deliberate sense of the
community ought, in all governments, and actually will, in all free
governments, ultimately prevail over the views of its rulers; so
there are particular moments in public affairs when the people,
stimulated by some irregular passion, or some illicit advantage, or
misled by the artful misrepresentations of interested men, may call
for measures which they themselves will afterwards be the most ready
to lament and condemn. In these critical moments, how salutary will
be the interference of some temperate and respectable body of
citizens, in order to check the misguided career, and to suspend the
blow meditated by the people against themselves, until reason,
justice, and truth can regain their authority over the public mind?
What bitter anguish would not the people of Athens have often
escaped if their government had contained so provident a safeguard
against the tyranny of their own passions? Popular liberty might
then have escaped the indelible reproach of decreeing to the same
citizens the hemlock on one day and statues on the next.
It may be suggested, that a people spread over an extensive
region cannot, like the crowded inhabitants of a small district, be
subject to the infection of violent passions, or to the danger of
combining in pursuit of unjust measures. I am far from denying that
this is a distinction of peculiar importance. I have, on the
contrary, endeavored in a former paper to show, that it is one of
the principal recommendations of a confederated republic. At the
same time, this advantage ought not to be considered as superseding
the use of auxiliary precautions. It may even be remarked, that the
same extended situation, which will exempt the people of America
from some of the dangers incident to lesser republics, will expose
them to the inconveniency of remaining for a longer time under the
influence of those misrepresentations which the combined industry of
interested men may succeed in distributing among them.
It adds no small weight to all these considerations, to
recollect that history informs us of no long-lived republic which
had not a senate. Sparta, Rome, and Carthage are, in fact, the only
states to whom that character can be applied. In each of the two
first there was a senate for life. The constitution of the senate
in the last is less known. Circumstantial evidence makes it
probable that it was not different in this particular from the two
others. It is at least certain, that it had some quality or other
which rendered it an anchor against popular fluctuations; and that
a smaller council, drawn out of the senate, was appointed not only
for life, but filled up vacancies itself. These examples, though as
unfit for the imitation, as they are repugnant to the genius, of
America, are, notwithstanding, when compared with the fugitive and
turbulent existence of other ancient republics, very instructive
proofs of the necessity of some institution that will blend
stability with liberty. I am not unaware of the circumstances which
distinguish the American from other popular governments, as well
ancient as modern; and which render extreme circumspection
necessary, in reasoning from the one case to the other. But after
allowing due weight to this consideration, it may still be
maintained, that there are many points of similitude which render
these examples not unworthy of our attention. Many of the defects,
as we have seen, which can only be supplied by a senatorial
institution, are common to a numerous assembly frequently elected by
the people, and to the people themselves. There are others peculiar
to the former, which require the control of such an institution.
The people can never wilfully betray their own interests; but they
may possibly be betrayed by the representatives of the people; and
the danger will be evidently greater where the whole legislative
trust is lodged in the hands of one body of men, than where the
concurrence of separate and dissimilar bodies is required in every
public act.
The difference most relied on, between the American and other
republics, consists in the principle of representation; which is
the pivot on which the former move, and which is supposed to have
been unknown to the latter, or at least to the ancient part of them.
The use which has been made of this difference, in reasonings
contained in former papers, will have shown that I am disposed
neither to deny its existence nor to undervalue its importance. I
feel the less restraint, therefore, in observing, that the position
concerning the ignorance of the ancient governments on the subject
of representation, is by no means precisely true in the latitude
commonly given to it. Without entering into a disquisition which
here would be misplaced, I will refer to a few known facts, in
support of what I advance.
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.
From these facts, to which many others might be added, it is
clear that the principle of representation was neither unknown to
the ancients nor wholly overlooked in their political constitutions.
The true distinction between these and the American governments,
lies IN THE TOTAL EXCLUSION OF THE PEOPLE, IN THEIR COLLECTIVE
CAPACITY, from any share in the LATTER, and not in the TOTAL
EXCLUSION OF THE REPRESENTATIVES OF THE PEOPLE from the
administration of the FORMER. The distinction, however, thus
qualified, must be admitted to leave a most advantageous superiority
in favor of the United States. But to insure to this advantage its
full effect, we must be careful not to separate it from the other
advantage, of an extensive territory. For it cannot be believed,
that any form of representative government could have succeeded
within the narrow limits occupied by the democracies of Greece.
In answer to all these arguments, suggested by reason,
illustrated by examples, and enforced by our own experience, the
jealous adversary of the Constitution will probably content himself
with repeating, that a senate appointed not immediately by the
people, and for the term of six years, must gradually acquire a
dangerous pre-eminence in the government, and finally transform it
into a tyrannical aristocracy.
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 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?
If reason condemns the suspicion, the same sentence is
pronounced by experience. The constitution of Maryland furnishes
the most apposite example. The Senate of that State is elected, as
the federal Senate will be, indirectly by the people, and for a term
less by one year only than the federal Senate. It is distinguished,
also, by the remarkable prerogative of filling up its own vacancies
within the term of its appointment, and, at the same time, is not
under the control of any such rotation as is provided for the
federal Senate. There are some other lesser distinctions, which
would expose the former to colorable objections, that do not lie
against the latter. If the federal Senate, therefore, really
contained the danger which has been so loudly proclaimed, some
symptoms at least of a like danger ought by this time to have been
betrayed by the Senate of Maryland, but no such symptoms have
appeared. On the contrary, the jealousies at first entertained by
men of the same description with those who view with terror the
correspondent part of the federal Constitution, have been gradually
extinguished by the progress of the experiment; and the Maryland
constitution is daily deriving, from the salutary operation of this
part of it, a reputation in which it will probably not be rivalled
by that of any State in the Union.
But if any thing 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.
As far as antiquity can instruct us on this subject, its
examples support the reasoning which we have employed. In Sparta,
the Ephori, the annual representatives of the people, were found an
overmatch for the senate for life, continually gained on its
authority and finally drew all power into their own hands. The
Tribunes of Rome, who were the representatives of the people,
prevailed, it is well known, in almost every contest with the senate
for life, and in the end gained the most complete triumph over it.
The fact is the more remarkable, as unanimity was required in every
act of the Tribunes, even after their number was augmented to ten.
It proves the irresistible force possessed by that branch of a free
government, which has the people on its side. To these examples
might be added that of Carthage, whose senate, according to the
testimony of Polybius, instead of drawing all power into its vortex,
had, at the commencement of the second Punic War, lost almost the
whole of its original portion.
Besides the conclusive evidence resulting from this assemblage
of facts, that the federal Senate will never be able to transform
itself, by gradual usurpations, into an independent and aristocratic
body, we are warranted in believing, that if such a revolution
should ever happen from causes which the foresight of man cannot
guard against, the House of Representatives, with the people on
their side, will at all times be able to bring back the Constitution
to its primitive form and principles. Against the force of the
immediate representatives of the people, nothing will be able to
maintain even the constitutional authority of the Senate, but such a
display of enlightened policy, and attachment to the public good, as
will divide with that branch of the legislature the affections and
support of the entire body of the people themselves.
PUBLIUS.

FEDERALIST No. 64

The Powers of the Senate
From the New York Packet.
Friday, March 7, 1788.

JAY

To the People of the State of New York:
IT IS a just and not a new observation, that enemies to
particular persons, and opponents to particular measures, seldom
confine their censures to such things only in either as are worthy
of blame. Unless on this principle, it is difficult to explain the
motives of their conduct, who condemn the proposed Constitution in
the aggregate, and treat with severity some of the most
unexceptionable articles in it.
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.
As the select assemblies for choosing the President, as well as
the State legislatures who appoint the senators, will in general be
composed of the most enlightened and respectable citizens, there is
reason to presume that their attention and their votes will be
directed to those men only who have become the most distinguished by
their abilities and virtue, and in whom the people perceive just
grounds for confidence. The Constitution manifests very particular
attention to this object. By excluding men under thirty-five from
the first office, and those under thirty from the second, it
confines the electors to men of whom the people have had time to
form a judgment, and with respect to whom they will not be liable to
be deceived by those brilliant appearances of genius and patriotism,
which, like transient meteors, sometimes mislead as well as dazzle.
If the observation be well founded, that wise kings will always be
served by able ministers, it is fair to argue, that as an assembly
of select electors possess, in a greater degree than kings, the
means of extensive and accurate information relative to men and
characters, so will their appointments bear at least equal marks of
discretion and discernment. The inference which naturally results
from these considerations is this, that the President and senators
so chosen will always be of the number of those who best understand
our national interests, whether considered in relation to the
several States or to foreign nations, who are best able to promote
those interests, and whose reputation for integrity inspires and
merits confidence. With such men the power of making treaties may
be safely lodged.
Although the absolute necessity of system, in the conduct of any
business, is universally known and acknowledged, yet the high
importance of it in national affairs has not yet become sufficiently
impressed on the public mind. They who wish to commit the power
under consideration to a popular assembly, composed of members
constantly coming and going in quick succession, seem not to
recollect that such a body must necessarily be inadequate to the
attainment of those great objects, which require to be steadily
contemplated in all their relations and circumstances, and which can
only be approached and achieved by measures which not only talents,
but also exact information, and often much time, are necessary to
concert and to execute. It was wise, therefore, in the convention
to provide, not only that the power of making treaties should be
committed to able and honest men, but also that they should continue
in place a sufficient time to become perfectly acquainted with our
national concerns, and to form and introduce a a system for the
management of them. The duration prescribed is such as will give
them an opportunity of greatly extending their political
information, and of rendering their accumulating experience more and
more beneficial to their country. Nor has the convention discovered
less prudence in providing for the frequent elections of senators in
such a way as to obviate the inconvenience of periodically
transferring those great affairs entirely to new men; for by
leaving a considerable residue of the old ones in place, uniformity
and order, as well as a constant succession of official information
will be preserved.
There are a few who will not admit that the affairs of trade and
navigation should be regulated by a system cautiously formed and
steadily pursued; and that both our treaties and our laws should
correspond with and be made to promote it. It is of much
consequence that this correspondence and conformity be carefully
maintained; and they who assent to the truth of this position will
see and confess that it is well provided for by making concurrence
of the Senate necessary both to treaties and to laws.
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.
They who have turned their attention to the affairs of men, must
have perceived that there are tides in them; tides very irregular
in their duration, strength, and direction, and seldom found to run
twice exactly in the same manner or measure. To discern and to
profit by these tides in national affairs is the business of those
who preside over them; and they who have had much experience on
this head inform us, that there frequently are occasions when days,
nay, even when hours, are precious. The loss of a battle, the death
of a prince, the removal of a minister, or other circumstances
intervening to change the present posture and aspect of affairs, may
turn the most favorable tide into a course opposite to our wishes.
As in the field, so in the cabinet, there are moments to be seized
as they pass, and they who preside in either should be left in
capacity to improve them. So often and so essentially have we
heretofore suffered from the want of secrecy and despatch, that the
Constitution would have been inexcusably defective, if no attention
had been paid to those objects. Those matters which in negotiations
usually require the most secrecy and the most despatch, are those
preparatory and auxiliary measures which are not otherwise important
in a national view, than as they tend to facilitate the attainment
of the objects of the negotiation. For these, the President will
find no difficulty to provide; and should any circumstance occur
which requires the advice and consent of the Senate, he may at any
time convene them. Thus we see that the Constitution provides that
our negotiations for treaties shall have every advantage which can
be derived from talents, information, integrity, and deliberate
investigations, on the one hand, and from secrecy and despatch on
the other.
But to this plan, as to most others that have ever appeared,
objections are contrived and urged.
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, 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.
However useful jealousy may be in republics, yet when like bile
in the natural, it abounds too much in the body politic, the eyes of
both become very liable to be deceived by the delusive appearances
which that malady casts on surrounding objects. From this cause,
probably, proceed the fears and apprehensions of some, that the
President and Senate may make treaties without an equal eye to the
interests of all the States. Others suspect that two thirds will
oppress the remaining third, and ask whether those gentlemen are
made sufficiently responsible for their conduct; whether, if they
act corruptly, they can be punished; and if they make
disadvantageous treaties, how are we to get rid of those treaties?
As all the States are equally represented in the Senate, and by
men the most able and the most willing to promote the interests of
their constituents, they will all have an equal degree of influence
in that body, especially while they continue to be careful in
appointing proper persons, and to insist on their punctual
attendance. In proportion as the United States assume a national
form and a national character, so will the good of the whole be more
and more an object of attention, and the government must be a weak
one indeed, if it should forget that the good of the whole can only
be promoted by advancing the good of each of the parts or members
which compose the whole. It will not be in the power of the
President and Senate to make any treaties by which they and their
families and estates will not be equally bound and affected with the
rest of the community; and, having no private interests distinct
from that of the nation, they will be under no temptations to
neglect the latter.
As to corruption, the case is not supposable. He must either
have been very unfortunate in his intercourse with the world, or
possess a heart very susceptible of such impressions, who can think
it probable that the President and two thirds of the Senate will
ever be capable of such unworthy conduct. The idea is too gross and
too invidious to be entertained. But in such a case, if it should
ever happen, the treaty so obtained from us would, like all other
fraudulent contracts, be null and void by the law of nations.
With respect to their responsibility, it is difficult to
conceive how it could be increased. Every consideration that can
influence the human mind, such as honor, oaths, reputations,
conscience, the love of country, and family affections and
attachments, afford security for their fidelity. In short, as the
Constitution has taken the utmost care that they shall be men of
talents and integrity, we have reason to be persuaded that the
treaties they make will be as advantageous as, all circumstances
considered, could be made; and so far as the fear of punishment and
disgrace can operate, that motive to good behavior is amply afforded
by the article on the subject of impeachments.
PUBLIUS.

FEDERALIST No. 65

The Powers of the Senate Continued
From the New York Packet.
Friday, March 7, 1788.

HAMILTON

To the People of the State of New York:
THE remaining powers which the plan of the convention allots to
the Senate, in a distinct capacity, are comprised in their
participation with the executive in the appointment to offices, and
in their judicial character as a court for the trial of impeachments.
As in the business of appointments the executive will be the
principal agent, the provisions relating to it will most properly be
discussed in the examination of that department. We will,
therefore, conclude this head with a view of the judicial character
of the Senate.
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.
The delicacy and magnitude of a trust which so deeply concerns
the political reputation and existence of every man engaged in the
administration of public affairs, speak for themselves. The
difficulty of placing it rightly, in a government resting entirely
on the basis of periodical elections, will as readily be perceived,
when it is considered that the most conspicuous characters in it
will, from that circumstance, be too often the leaders or the tools
of the most cunning or the most numerous faction, and on this
account, can hardly be expected to possess the requisite neutrality
towards those whose conduct may be the subject of scrutiny.
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.
What, it may be asked, is the true spirit of the institution
itself? Is it not designed as a method of NATIONAL INQUEST into the
conduct of public men? If this be the design of it, who can so
properly be the inquisitors for the nation as the representatives of
the nation themselves? It is not disputed that the power of
originating the inquiry, or, in other words, of preferring the
impeachment, ought to be lodged in the hands of one branch of the
legislative body. Will not the reasons which indicate the propriety
of this arrangement strongly plead for an admission of the other
branch of that body to a share of the inquiry? The model from which
the idea of this institution has been borrowed, pointed out that
course to the convention. In Great Britain it is the province of
the House of Commons to prefer the impeachment, and of the House of
Lords to decide upon it. Several of the State constitutions have
followed the example. As well the latter, as the former, seem to
have regarded the practice of impeachments as a bridle in the hands
of the legislative body upon the executive servants of the
government. Is not this the true light in which it ought to be
regarded?
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?
Could the Supreme Court have been relied upon as answering this
description? It is much to be doubted, whether the members of that
tribunal would at all times be endowed with so eminent a portion of
fortitude, as would be called for in the execution of so difficult a
task; and it is still more to be doubted, whether they would
possess the degree of credit and authority, which might, on certain
occasions, be indispensable towards reconciling the people to a
decision that should happen to clash with an accusation brought by
their immediate representatives. A deficiency in the first, would
be fatal to the accused; in the last, dangerous to the public
tranquillity. The hazard in both these respects, could only be
avoided, if at all, by rendering that tribunal more numerous than
would consist with a reasonable attention to economy. The necessity
of a numerous court for the trial of impeachments, is equally
dictated by the nature of the proceeding. This can never be tied
down by such strict rules, either in the delineation of the offense
by the prosecutors, or in the construction of it by the judges, as
in common cases serve to limit the discretion of courts in favor of
personal security. There will be no jury to stand between the
judges who are to pronounce the sentence of the law, and the party
who is to receive or suffer it. The awful discretion which a court
of impeachments must necessarily have, to doom to honor or to infamy
the most confidential and the most distinguished characters of the
community, forbids the commitment of the trust to a small number of
persons.
These considerations seem alone sufficient to authorize a
conclusion, that the Supreme Court would have been an improper
substitute for the Senate, as a court of impeachments. There
remains a further consideration, which will not a little strengthen
this conclusion. It is this: The punishment which may be the
consequence of conviction upon impeachment, is not to terminate the
chastisement of the offender. After having been sentenced to a
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 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

Book of the day: