ANSWER.

Mr. Mason here reprobates the omission of a particular Council for

the President, as a thing contrary to the example of all safe and

regular governments. Perhaps there are very few governments now in

being deserving of that character, if under the idea of safety he means

to include safety for a proper share of personal freedom, without

which their safety and regularity in other respects would be of little

consequence to a people so justly jealous of liberty as I hope the

people in America ever will be. Since however Mr. Mason refers us to

such authority, I think I cannot do better than to select for the

subject of our inquiry in this particular, a government which must

be universally acknowledged to be the most safe and regular of any

considerable government now in being (though I hope America will soon

be able to dispute that pre-eminence). Every body must know I speak

of Great Britain, and in this I think I give Mr. Mason all possible

advantage, since in my opinion it is most probable he had Great

Britain principally in his eye when he made this remark, and in the

very height of our quarrel with that country, so wedded were our ideas

to the institution of a Council, that the practice was generally if

not universally followed at the formation of our governments, though

we instituted Councils of a quite different nature, and so far as

the little experience of the writer goes, have very little benefited

by it. My inquiry into this subject shall not be confined to the

actual present practice of Great Britain; I shall take the liberty

to state the Constitutional ideas of Councils in England, as derived

from their ancient law subsisting long before the Union, not omitting

however to show what the present practice really is. By the laws of

England(71) the King is said to have four Councils,—1, The High Court

of Parliament; 2, The Peers of the realm; 3, His Judges; 4, His Privy

Council. By the first, I presume is meant, in regard to the making

of laws; because the usual introductory expressions in most acts

of Parliament, viz., “By the King’s most excellent Majesty, by and

with the advice and consent of the Lords spiritual and temporal, and

Commons,” &c., show that in a constitutional sense, they are deemed the

King’s laws, after a ratification in Parliament. The Peers of the realm

are by their birth hereditary Counsellors of the Crown, and may be

called upon for their advice, either in time of Parliament, or when

no Parliament is in being: They are called in some law books _Magnum

Concilium Regis_ (the King’s Great Council). It is also considered the

privilege of every particular Peer to demand an audience of the King,

and to lay before him anything he may deem of public importance. The

Judges, I presume, are called “Council of the King,” upon the same

principle as the Parliament is, because the administration of justice

is in his name, and the Judges are considered as his instruments in

the distribution of it. We come now to the Privy Council, which I

imagine, if Mr. Mason had any particular view towards England when

he made this objection, was the one he intended as an example of a

_Constitutional Council_ in that kingdom. The Privy Council in that

country is undoubtedly of very ancient institution, but it has one

fixed property invariably annexed to it, that it is a mere creature

of the Crown, dependent on its will both for number and duration,

since the King may, whenever he thinks proper, discharge any member,

or the whole of it, and appoint another.(72) If this precedent is of

moment to us, merely as a precedent, it should be followed in all its

parts, and then what would there be in the regulation to prevent the

President being governed by “minions and favorites?” It would only be

the means of riveting them on constitutional ground. So far as the

precedents in England apply, the Peers being constitutionally the

_Great Council_ of the King, though also a part of the legislature, we

have reason to hope that there is by no means such a gross impropriety

as has been suggested in giving the Senate, though a branch of the

legislature, a strong control over the Executive. The only difference

in the two cases is, that the Crown in England may or may not give

this consequence to the Peers at its own pleasure, and accordingly

we find that for a long time past this great Council has been very

seldom consulted; under our constitution the President is allowed no

option in respect to certain points wherein he cannot act without the

Senate’s concurrence. But we cannot infer from any example in England,

that a concurrence between the Executive and a part of the legislative

is contrary to the maxims of their government, since their government

allows of such a concurrence whenever the Executive pleases. The rule,

therefore, from the example of the freest government in Europe, that

the Legislative and Executive powers must be altogether distinct,

is liable to exceptions; it does not mean that the Executive shall

not form a part of the Legislative (for the King, who has the whole

Executive authority, is one entire branch of the legislature, and

this Montesquieu, who recognizes the general principle, declares is

necessary); neither can it mean (as the example above evinces) that the

Crown must consult neither House as to any exercise of the Executive

power. But its meaning must be, that one power shall not include _both

authorities_. The King, for instance, shall not have the sole Executive

and sole Legislative authority also. He may have the former, but must

participate the latter with the two Houses of Parliament. The rule

also would be infringed were the three branches of the legislature

to share jointly the Executive power. But so long as the people’s

representatives are altogether distinct from the Executive authority,

the liberties of the people may be deemed secure. And in this point

surely, there can be no manner of comparison between the provisions by

which the independence of our House of Representatives is guarded, and

the condition in which the British House of Commons is left exposed to

every species of corruption. But Mr. Mason says, for want of a Council,

the President may become “a tool of the Senate.” Why? Because he cannot

act without their concurrence. Would not the same reason hold for

his being “a tool to the Council,” if he could not act without their

concurrence, supposing a Council was to be imposed upon him without his

own nomination (according to Mr. Mason’s plan)? As great care is taken

to make him independent of the Senate as I believe human precaution

can provide. Whether the President will be a tool to any persons will

depend upon the man, and the same weakness of mind which would make

him pliable to one body of control, would certainly attend him with

another. But Mr. Mason objects, if he is not directed by minions and

favorites, nor becomes a tool of the Senate, “a Council of State will

grow out of the principal officers of the great departments; the worst

and most dangerous of all ingredients for such a Council in a free

country; for they may be induced to join in any dangerous or oppressive

measures, to shelter themselves, and prevent an inquiry into their

own misconduct in office.” I beg leave to carry him again to my old

authority, England, and ask him, what efficient Council they have there

but one formed of their great officers. Notwithstanding their important

_Constitutional Council_, everybody knows that the whole movements of

their Government, where a Council is consulted at all, are directed by

their _Cabinet Council_, composed entirely of the principal officers

of the great departments; that when a Privy Council is called, it is

scarcely ever for any other purpose than to give a formal sanction

to the previous determinations of the other, so much so that it is

notorious that not one time in a thousand one member of the Privy

Council, except a known adherent of administration, is summoned to it.

But though the President under our constitution may have the aid of

the “principal officers of the great departments,” he is to have this

aid, I think, in the most unexceptionable manner possible. He is not

to be assisted by a Council summoned to a jovial dinner perhaps, and

giving their opinions according to the nod of the President; but the

opinion is to be given with the utmost solemnity _in writing_. No after

equivocation can explain it away. It must for ever afterwards speak

for itself, and commit the character of the writer, in lasting colors,

either of fame or infamy, or neutral insignificance, to future ages, as

well as the present. From those _written reasons_, weighed with care,

surely the President can form as good a judgment, as if they had been

given by a dozen formal characters, carelessly met together on a slight

appointment; and this further advantage would be derived from the

proposed system (which would be wanting if he had constitutional advice

to screen him), that the President must be _personally responsible_

for everything—for though an ingenious gentleman has proposed, that

a Council should be responsible for _their opinions_, and the same

sentiment of justice might be applied to these opinions of the great

officers, I am persuaded it will in general be thought infinitely more

_safe_, as well as more _just_, that the President who _acts_ should

be responsible for his _conduct_, following advice at his peril, than

that there should be a danger of punishing any man for an erroneous

opinion which might possibly be sincere. Besides the morality of this

scheme, which may well be questioned, its inexpediency is glaring,

since it would be so plausible an excuse and the insincerity of it

so difficult to detect, the hopes of impunity this avenue to escape

would afford would nearly take away all dread of punishment. As to the

temptation mentioned to the officers joining in dangerous or oppressive

measures to shelter themselves, and prevent an inquiry into their

own misconduct in office, this proceeds upon a supposition that the

President and the great officers may form a very wicked combination

to injure their country, a combination that in the first place it

is utterly improbable, in a strong respectable government should be

formed for that purpose, and in the next, with such a government as

this constitution would give us, could have little chance of being

successful, on account of the great superior strength and natural and

jealous vigilance of one at least, if not both the weighty branches

of legislation. This evil, however, of the possible depravity of _all

public officers_, is one that can admit of no cure, since in every

institution of government the same danger in some degree or other must

be risked; it can only be guarded against by strong checks, and I

believe it be difficult for the objectors to our new Constitution to

provide stronger ones against any abuse of the Executive authority than

will exist in that. As to the Vice President, it appears to me very

proper he should be chosen much in the same manner as the President,

in order that the States may be secure, upon any accidental loss by

death or otherwise of the President’s service, of the services in the

same important station of the man in whom they repose their second

confidence. The complicated manner of election wisely prescribed would

necessarily occasion a considerable delay in the choice of another,

and in the mean time the President of the Council, though very fit for

the purpose of advising, might be very ill qualified, especially in a

critical period, for an active Executive department. I am concerned

to see, among Mr. Mason’s other reasons, so trivial a one as the

little advantage one State might accidentally gain by a Vice President

of their country having a seat, with merely a casting vote, in the

Senate. Such a reason is utterly unworthy of that spirit of amity, and

rejection of local views, which can alone save us from destruction.

It was the glory of the late Convention, that by discarding such they

formed a general government upon principles that did as much honor to

their hearts as to their understandings. God grant, that in all our

deliberations, we may consider America as _one_ body, and not divert

our attention from so able a prospect to small considerations of

partial jealousy and distrust. It is in vain to expect upon any system

to secure an exact equilibrium of power for all the States. Some will

occasionally have an advantage from the superior abilities of its

members; the field of emulation is however open to all. Suppose any

one should now object to the superior influence of Virginia (and the

writer of this is not a citizen of that State), on account of the high

character of General Washington, confessedly the greatest man of the

present age, and perhaps equal to any that has existed in any period of

time; would this be a reason for refusing a union with her, though the

other States can scarcely hope for the consolation of ever producing

his equal?