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.
THE FEDERALIST.
No. LXIV.
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.