The Senate

Having examined the House of Representatives and answered the objections worth notice, I turn now to the Senate. This branch is best considered under five heads: (1) the qualifications of senators; (2) their appointment by the State legislatures; (3) the equality of representation in the Senate; (4) the number of senators and the term for which they are elected; and (5) the powers vested in the Senate.

The qualifications for a senator differ from those of a representative in two respects: a more advanced age and a longer period of citizenship. A senator must be at least thirty years old, while a representative need only be twenty-five; and a senator must have been a citizen for nine years, while seven years suffice for a representative. These distinctions follow from the nature of the senatorial trust. That trust requires greater knowledge and steadiness of character, so it should fall to men who have reached the time of life most likely to supply them; and because the Senate deals directly with foreign nations, it should be exercised by no one not thoroughly weaned from the attachments and habits of foreign birth and education. The nine-year term is a prudent middle course between shutting out adopted citizens whose merits may deserve public confidence, and admitting them so hastily as to open a channel for foreign influence on the national councils.

There is equally little need to expand on the appointment of senators by the State legislatures. Of the various ways this branch might have been constituted, the one the convention proposed is probably the most agreeable to public opinion. It carries a double advantage: it favors a select appointment, and it gives the State governments a role in forming the federal government that secures their own authority and forms a convenient link between the two systems.

The equality of representation in the Senate is plainly the result of a compromise between the opposing claims of the large and small States, and so it does not call for much discussion. Suppose it is right that, among a people fully merged into one nation, every district should have a proportional share in the government; and that, among independent and sovereign States joined by a simple league, the parties, however unequal in size, should have an equal share in the common councils. Then it is not unreasonable that a compound republic, partaking of both the national and federal character, should rest on a mixture of proportional and equal representation. But it is pointless to test by the standard of theory a part of the Constitution that everyone admits is 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 purposes is demanded by the voice, and still more by the political situation, of America. A government framed more to the wishes of the larger States is not likely to be granted by the smaller ones. The only choice left to the larger States, then, lies between the proposed government and one still more objectionable. Under that alternative, prudence advises embracing the lesser evil; and instead of dwelling on the possible mischiefs that may follow, weighing rather the advantages that may offset the sacrifice.

In this spirit, the equal vote allowed to each State is at once a constitutional recognition of the portion of sovereignty that remains in the individual States, and an instrument for preserving that residual sovereignty. To this extent the equality should be no less acceptable to the large States than to the small, since they are no less anxious to guard, by every possible means, against an improper consolidation of the States into one simple republic.

A further advantage of this feature is the added obstacle it raises against improper acts of legislation. No law or resolution can now pass without the agreement 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 at times be harmful as well as helpful; and the special protection it gives the smaller States would be more reasonable if those States had interests of their own, distinct from the others, that would otherwise be exposed to peculiar danger. But the larger States can always defeat unreasonable use of this power by their control over the supplies; and since the readiness and excess of law-making seem to be the diseases our governments are most prone to, it is not impossible that this part of the Constitution may prove more convenient in practice than many now suppose.

The number of senators and the duration of their appointment come next. To judge both points accurately, it is proper to inquire into the purposes a senate is meant to serve; and to determine those, we must review the troubles a republic must suffer from lacking such an institution.

First. It is a misfortune of republican government, though less than of other governments, that those who administer it may forget their obligations to their constituents and prove unfaithful to their trust. In this light, a senate, as a second legislative branch distinct from and sharing power with a first, must always be a wholesome check on the government. It doubles the people’s security by requiring the agreement of two distinct bodies in any scheme of usurpation or treachery, where the ambition or corruption of one alone would otherwise suffice. This precaution rests on principles so clear, and now so well understood in the United States, that it would be more than superfluous to dwell on it. I will only remark that, since the unlikelihood of sinister combinations grows with the difference in character of the two bodies, it is wise to distinguish them by every circumstance consistent with a due harmony in all proper measures and with the genuine principles of republican government.

Second. The need for a senate is shown no less by the tendency of all single and numerous assemblies to give way to sudden and violent passions, and to be led by factious leaders into intemperate and harmful resolutions. Examples could be cited without number, both from proceedings within the United States and from the history of other nations. But a point that will not be disputed need not be proved. All that need be said is that a body meant to correct this weakness should itself be free of it, and therefore should be less numerous; it should, moreover, possess great firmness, and therefore should hold its authority for a considerable term.

Third. Another defect a senate can supply lies in a want of due acquaintance with the objects and principles of legislation. An assembly drawn for the most part from private pursuits, holding office for a short time, and moved by no lasting motive to spend its free intervals studying the laws, the affairs, and the broad interests of the country, cannot, if left wholly to itself, escape a variety of serious errors in exercising its legislative trust. It may be affirmed on the best grounds that no small part of America’s present embarrassments traces to the blunders of our governments, and that these have come from the heads rather than the hearts of most who made them. What indeed are all the repealing, explaining, and amending laws that fill and disgrace our voluminous codes, but so many monuments of deficient wisdom; so many indictments of each session by the one that follows; so many reminders to the people of the value of the aids a well-constituted senate could provide?

A good government implies two things: first, fidelity to the object of government, which is the happiness of the people; and second, a knowledge of the means by which that object can best be attained. Some governments are deficient in both; most are deficient in the first. I do not hesitate to assert that in American governments too little attention has been paid to the second. The federal Constitution avoids this error; and, what deserves particular notice, it provides for the second in a way that increases the security for the first.

Fourth. The instability of the public councils that arises from a rapid turnover of new members, however qualified they may be, points in the strongest way to the need for 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 come 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 holds true in private life, and grows truer and more important in national affairs.

To trace all the mischievous effects of a changeable government would fill a volume. I will note only a few, each of which will be seen to be a source of countless others.

In the first place, it forfeits the respect and confidence of other nations, and all the advantages bound up with national character. An individual seen to be inconstant in his plans, or perhaps to carry on his affairs with no plan at all, is marked at once by all prudent people as a quick victim of his own unsteadiness and folly. His friendlier neighbors may pity him, but all will decline to tie their fortunes to his, and not a few will seize the chance to profit at his expense. One nation is to another what one individual is to another, with this melancholy difference perhaps: that nations, having fewer of the kindly emotions, are also under fewer restraints from taking undue advantage of one another’s indiscretions. Every nation, then, whose affairs betray a want of wisdom and stability may expect every loss that the more systematic policy of its wiser neighbors can inflict. But the best instruction on this subject is unhappily given to America by her own example. 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 with an interest in speculating on her fluctuating councils and embarrassed affairs.

The internal effects of a changeable policy are still more calamitous. It poisons the very blessing of liberty. It will be of little use to the people that the laws are made by men of their own choosing, if the laws are so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they are repealed or revised before they are announced, or undergo such constant changes that no one who knows what the law is today can guess what it will be tomorrow. Law is defined as 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 unfair advantage it gives the shrewd, the enterprising, and the moneyed few over the industrious and uninformed mass of the people. Every new regulation of commerce or revenue, or anything that affects the value of the various kinds of property, offers a fresh harvest to those who watch the change and can trace its consequences, a harvest reaped not by their own labor 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.

From another point of view, great injury results from an unstable government. The want of confidence in the public councils discourages every useful undertaking whose success and profit depend on existing arrangements continuing. What prudent merchant will risk his fortune in a new branch of commerce when he cannot be sure his plans may not be made unlawful before he can carry them out? What farmer or manufacturer will commit himself to encouragement offered for a particular crop or establishment, when he has no assurance that his preparatory labors and outlays will not make him the victim of an inconstant government? In a word, no great improvement or worthy enterprise can go forward that requires the support of a steady system of national policy.

But the most deplorable effect of all is the loss of attachment and reverence that creeps into the hearts of the people toward a political system that shows so many marks of weakness, and disappoints so many of their flattering hopes. No government, any more than an individual, will long be respected without being truly respectable; nor will it be truly respectable without possessing a certain measure of order and stability.

A fifth advantage of a senate is that it supplies what the government otherwise lacks: a due sense of national character. Without a select and stable branch, an unenlightened and shifting policy forfeits the esteem of foreign powers; worse, the national councils lose that sensibility to the opinion of the world which is perhaps no less necessary to deserve its respect than to obtain it.

Attention to the judgment of other nations matters to every government for two reasons. First, quite apart from the merits of any particular measure, a plan should appear to other nations as the offspring of a wise and honorable policy. Second, in doubtful cases, especially 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 one can follow. How much has America lost for want of character abroad, and how many errors and follies would she have avoided if the justice and propriety of her measures had always been tested first by the light in which they would probably appear to the unbiased part of mankind?

Yet however necessary this sense of national character may be, a numerous and changeable body can never sufficiently possess it. It is found only in a number so small that a noticeable degree of the praise and blame of public measures falls on each individual, or in an assembly so durably trusted that the pride of its members is bound up with the reputation and prosperity of the community. The half-yearly representatives of Rhode Island were probably little moved, in weighing that State’s unjust measures, by how those measures would look to foreign nations or even to the sister States; whereas had the concurrence of a select and stable body been required, regard for national character alone would likely have prevented the calamities now afflicting that misguided people.

I add a sixth defect: in some important cases the government lacks a due responsibility to the people, the very responsibility that frequent elections produce in other cases. This will seem not only new but paradoxical. Once explained, it must be admitted to be as undeniable as it is important.

Responsibility, to be reasonable, must be limited to objects within the power of the responsible party; and to be effectual, it must relate to operations on which the constituents can readily and properly judge. The objects of government fall into two classes: those resting on measures with a single immediate and visible effect, and those resting on a succession of well-chosen and connected measures whose effect is gradual and perhaps unnoticed. The importance of this second class to the lasting welfare of every country needs no explanation.

Yet an assembly elected for so short a term that it can supply only one or two links in a chain of measures, on which the general welfare may essentially depend, cannot fairly be held answerable for the final result, any more than a steward or tenant hired for one year could justly answer for improvements that take half a dozen years to accomplish. Nor can the people estimate the share of influence which their annual assemblies have on events arising from the mixed transactions of several years. It is hard enough to preserve a personal responsibility in the members of a numerous body even for acts that operate on its constituents in an immediate and palpable way.

The proper remedy for this defect is an additional body in the legislature, one with enough permanency to attend to objects that require continued attention and a train of measures, and which may therefore be justly and effectually answerable for attaining them.

So far I have considered the necessity of a well-constructed Senate only as it relates to the representatives of the people. To a people as little blinded by prejudice or corrupted by flattery as those I address, I will not hesitate to add that such an institution may sometimes be necessary as a defense of the people against their own temporary errors and delusions. 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; but there are particular moments when the people, stirred by some irregular passion or some illicit advantage, or misled by the artful misrepresentations of interested men, may demand measures they will afterwards be the first to lament and condemn.

In these critical moments, how useful is the interference of some temperate and respectable body of citizens, to check the misguided course and suspend the blow the people are about to aim at themselves, until reason, justice, and truth can regain their authority over the public mind. How much bitter anguish would the people of Athens have often escaped if their government had held 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 objected that a people spread over a wide region cannot, like the crowded inhabitants of a small district, catch the infection of violent passions or combine easily in pursuit of unjust measures. I am far from denying that this is a distinction of peculiar importance; on the contrary, I argued in an earlier paper that it is one of the principal recommendations of a confederated republic. Still, this advantage should not be treated as superseding auxiliary precautions. The same extended situation that exempts America from some dangers of smaller republics also exposes her to the inconvenience of remaining longer under the influence of misrepresentations which the combined industry of interested men may succeed in spreading among the people.

It adds no small weight to all this to recall that history records no long-lived republic without a senate. Sparta, Rome, and Carthage are in fact the only states to which that character applies. In the first two there was a senate for life; the senate of Carthage is less known, but the circumstantial evidence makes it probable that it was no different in this respect, for it certainly had some quality that served as an anchor against popular fluctuations, and a smaller council drawn from it was appointed for life and even filled its own vacancies.

These examples, though as unfit for our imitation as they are repugnant to the genius of America, are nonetheless instructive when set against the fleeting and turbulent existence of other ancient republics; they prove the necessity of some institution that blends stability with liberty. I am well aware of the circumstances that distinguish the American from other popular governments, ancient and modern, and that demand great caution in reasoning from one to the other. But even allowing this its due weight, many points of resemblance remain that make these examples worth our attention.

Many of the defects that only a senatorial institution can supply, as we have seen, are common both to a numerous assembly frequently elected by the people and to the people themselves. Others are peculiar to such an assembly and require the control of such an institution. The people can never willfully betray their own interests, but they may be betrayed by their representatives; and that danger is plainly greater where the whole legislative trust is lodged in one body of men than where the concurrence of separate and dissimilar bodies is required for every public act.

The difference most relied on between the American and other republics is the principle of representation, the pivot on which our government moves and which is supposed to have been unknown to the ancients, or at least to their earlier governments. My use of this difference in earlier papers shows that I neither deny its existence nor undervalue its importance. I feel the freer, then, in observing that the claim about the ancients’ ignorance of representation is by no means precisely true in the broad sense commonly given it. Rather than enter a lengthy discussion, which would be out of place here, I will point to a few known facts in support.

In the purest democracies of Greece, many executive functions were performed not by the people themselves but by officers elected by the people and representing them in their executive capacity.

Before the reform of Solon, Athens was governed by nine Archons, elected annually by the people at large, though the extent of their delegated power remains obscure. After that period we find an assembly, first of four and then of six hundred members, elected annually by the people and partially representing them in their legislative capacity, since they not only joined the people in making laws but held the exclusive right of originating legislative proposals to them. The senate of Carthage, too, whatever its power or term, appears to have been elective by the suffrages of the people; and similar instances could be traced in most, if not all, the popular governments of antiquity.

Lastly, in Sparta we find the Ephori and in Rome the Tribunes: two bodies, small in number, but elected annually by the whole body of the people and regarded as the people’s representatives almost in their plenipotentiary capacity. The Cosmi of Crete were likewise elected annually by the people, and some writers regard them as analogous to the Spartan and Roman bodies, with this difference only, that the right of suffrage in choosing them was given to a part of the people alone.

From these facts, and others that might be added, it is clear that the principle of representation was neither unknown to the ancients nor wholly overlooked in their constitutions. The true distinction between those governments and the American ones 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 people’s representatives from the administration of the former. Even so qualified, the distinction must be admitted to leave a most advantageous superiority on the side of the United States. But to secure for that advantage its full effect, we must not separate it from the other advantage of an extensive territory, for no form of representative government could have succeeded within the narrow limits of the Greek democracies.

In answer to all these arguments, drawn from 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 not chosen immediately by the people, and seated for six years, must gradually acquire a dangerous pre-eminence and at last transform the government into a tyrannical aristocracy.

To this general charge the general reply ought to be enough: 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 the latter; and that the former, rather than the latter, are apparently most to be feared in the United States. But a more particular reply may also be given.

Before such a revolution could be brought about, the Senate must first corrupt itself; then corrupt the State legislatures; then corrupt the House of Representatives; and finally corrupt the people at large. The Senate must be corrupted before it can even attempt tyranny; and without corrupting the State legislatures it cannot pursue the attempt, since the periodical change of its members would otherwise renew the whole body. Without corrupting the House with equal success, the opposition of that coequal branch would defeat it; and without corrupting the people themselves, a succession of new representatives would quickly restore everything to its original order. Is there any man who can seriously persuade himself that the proposed Senate could, by any means within human reach, attain the object of a lawless ambition through all these obstructions?

If reason condemns the suspicion, experience pronounces the same sentence. The constitution of Maryland furnishes the aptest example. Its Senate is elected, as the federal Senate will be, indirectly by the people, and for a term only one year shorter; it is further distinguished by the remarkable power of filling its own vacancies within its term, and is not subject to any such rotation as is provided for the federal Senate. There are also lesser distinctions that would expose the Maryland body to plausible objections which do not lie against the federal one. If the federal Senate really held the danger so loudly proclaimed, some symptoms of a like danger ought by now to have appeared in the Senate of Maryland; but none have. On the contrary, the jealousies first felt by men of the same description as those who now view the corresponding part of the federal Constitution with terror have gradually died away as the experiment progressed, and the Maryland constitution daily gains, from the wholesome working of this very part, a reputation that no State in the Union is likely to rival.

But if anything could silence the jealousies on this subject, it should be the British example. The Senate there, far from being elected for six years and open to any family or fortune, is a hereditary assembly of wealthy nobles. The House of Representatives there, far from being elected for two years by the whole body of the people, is elected for seven years, and in very great part by a very small proportion of the people. Here, surely, ought to be seen in full display the aristocratic usurpations and tyranny said to await the United States. Yet, against the anti-federal argument, British history tells us that this hereditary assembly has not been able to defend itself against the continual encroachments of the House of Representatives, and that the moment it lost the support of the monarch, it was crushed by the weight of the popular branch.

As far as antiquity can instruct us, its examples support the same reasoning. In Sparta the Ephori, the annual representatives of the people, proved 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, representatives of the people, prevailed in almost every contest with the senate for life and in the end triumphed completely over it; the fact is the more striking because unanimity was required in every act of the Tribunes, even after their number rose to ten. This proves the irresistible force of that branch of a free government which has the people on its side. To these may be added Carthage, whose senate, by the testimony of Polybius, far from drawing all power into its own vortex, had by the start of the second Punic War lost almost its whole original share.

Beyond the conclusive evidence of all these facts, that the federal Senate will never be able to transform itself by gradual usurpations into an independent aristocratic body, we may also believe that if such a revolution ever did arise from causes no human foresight could guard against, the House of Representatives, with the people on its side, would always be able to bring the Constitution back to its original form and principles. Against the force of the people’s immediate representatives, nothing could maintain even the constitutional authority of the Senate except such a display of enlightened policy and devotion to the public good as would win for it a share of the affection and support of the whole body of the people themselves.

It is a fair and familiar observation that those who dislike particular men or oppose particular measures rarely limit their criticism to what truly deserves blame. On no other principle can I explain the conduct of those who condemn the proposed Constitution as a whole and then attack with severity some of its least objectionable provisions.

The second section gives the President the power, “by and with the advice and consent of the Senate, to make treaties, provided two-thirds of the senators present concur.” The power to make treaties is an important one, especially where it touches war, peace, and commerce; it should be granted only in a manner, and with such precautions, as give the highest assurance that it will be used by the best-qualified men and in the way most conducive to the public good.

The convention attended to both points. It directed that the President be chosen by select bodies of electors deputed by the people for that express purpose, and it committed the appointment of senators to the State legislatures. In such cases this method has, in such cases, vastly the advantage over elections by the people in their collective capacity, where party zeal, exploiting the apathy, ignorance, and the hopes and fears of the unwary and the self-interested, often places men in office by the votes of only a small portion of the electors.

Because the assemblies that choose the President, and the State legislatures that appoint the senators, will generally consist of the most enlightened and respectable citizens, there is reason to expect that their attention and votes will go only to men distinguished by ability and virtue, men in whom the people see just grounds for confidence. The Constitution shows particular care on this point. By excluding men under thirty-five from the presidency and those under thirty from the Senate, it confines the electors to men of whom the people have had time to form a judgment, men about whom they will not be deceived by those brilliant shows of genius and patriotism that, like passing meteors, sometimes mislead even as they dazzle. If it is true that wise kings are always served by able ministers, it is fair to argue that an assembly of select electors, possessing in a greater degree than kings the means of extensive and accurate information about men and characters, will make appointments that bear at least equal marks of discretion and discernment. The natural inference is that the President and senators so chosen will always be among those who best understand our national interests, whether toward the several States or toward foreign nations, who are best able to advance those interests, and whose reputation for integrity inspires and merits confidence. With such men the treaty power may be safely lodged.

The absolute necessity of system in conducting any business is universally acknowledged, yet its high importance in national affairs is not yet sufficiently fixed in the public mind. Those who would entrust the treaty power to a popular assembly, whose members come and go in quick succession, forget that such a body must be unequal to great objects that require steady study in all their relations and that can be achieved only by measures demanding talent, exact information, and often much time to plan and carry out.

It was therefore wise in the convention to provide not only that the treaty power be given to able and honest men, but also that they remain in place long enough to become thoroughly acquainted with our national concerns and to form and introduce a system for managing them. The term prescribed will let them greatly extend their political knowledge and make their accumulating experience ever more useful to the country. The convention showed equal prudence in arranging frequent elections of senators so as to avoid handing these great affairs over all at once to new men; by leaving a considerable number of the old ones in place, uniformity, order, and a constant succession of official knowledge are preserved.

Few will deny that the affairs of trade and navigation should be governed by a system carefully formed and steadily pursued, and that both our treaties and our laws should agree with it and be made to promote it. It is of much consequence that this agreement be carefully maintained; and those who grant the truth of this will see that it is well provided for by requiring the concurrence of the Senate for both treaties and laws.

In negotiating treaties of every kind, perfect secrecy and immediate dispatch are sometimes required. There are cases where the most useful intelligence may be obtained only if those who hold it can be freed from fear of discovery. Such fears act on these persons whether their motives are mercenary or friendly; and there are doubtless many of both kinds who would rely on the secrecy of the President but would not trust that of the Senate, and still less that of a large popular assembly. The convention has done well, then, in arranging the treaty power so that, although the President must act in forming treaties by the advice and consent of the Senate, he can still manage the business of intelligence as prudence may suggest.

Those who have studied human affairs must have noticed that there are tides in them, tides very irregular in duration, strength, and direction, and seldom running twice in the same way. To discern and profit by these tides in national affairs is the business of those who govern them; and men of much experience tell us that there are often occasions when days, even hours, are precious. The loss of a battle, the death of a prince, the removal of a minister, or other events 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 those who preside in either should be left able to use them. We have so often and so seriously suffered before from the want of secrecy and dispatch that the Constitution would have been inexcusably defective had no attention been paid to these objects. The matters in negotiation that most require secrecy and dispatch are the preparatory and auxiliary measures, important in a national view only as they help attain the objects of the negotiation. For these the President will find no difficulty; and should any circumstance arise requiring the advice and consent of the Senate, he may convene them at any time. So the Constitution provides that our treaty negotiations shall have every advantage from talents, information, integrity, and deliberate inquiry on one side, and from secrecy and dispatch on the other.

As with most plans that have ever appeared, objections are contrived and pressed against this one. Some are displeased not because of any error or defect in it, but because, since treaties when made have the force of laws, they think treaties should be made only by men holding legislative authority. These gentlemen seem not to consider that the judgments of our courts, and the commissions constitutionally granted by our governor, are as valid and binding on those they concern as the laws passed by our legislature.

All constitutional acts of power, whether executive or judicial, have as much legal validity and force as if they came from the legislature. Therefore, whatever name is given to the treaty power, and however binding treaties may be once made, the people may with propriety commit that power to a body distinct from the legislature, the executive, or the judiciary. It surely does not follow that, because they have given the legislature the power to make laws, they must also give it the power to perform every other act of sovereignty by which the citizens are bound and affected.

Others, content that treaties be made in the proposed manner, object to their being the supreme laws of the land. They insist that treaties, like acts of assembly, should be repealable at pleasure. This idea seems new and peculiar to this country, but new errors, like 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 that would make any bargain binding on it absolutely but on us only so long and so far as we chose to be bound.

Those who make laws may of course amend or repeal them, and it will not be disputed that those who make treaties may alter or cancel them; but treaties are made not by one of the contracting parties but by both. Since the consent of both was essential to forming them at first, so must it be ever afterward 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 would be at any future time or under any form of government.

However useful jealousy may be in republics, when, like bile in the body, it abounds too much in the body politic, the eyes of both are very liable to be deceived by the false appearances that this malady casts on surrounding objects. From this cause probably proceed the fears of some that the President and Senate may make treaties without an equal regard for the interests of all the States. Others suspect that two-thirds will oppress the remaining third, and ask whether these men are made sufficiently responsible for their conduct; whether, if they act corruptly, they can be punished; and if they make disadvantageous treaties, how we are to get rid of them.

Since all the States are equally represented in the Senate, and by men most able and willing to promote the interests of their constituents, they will all have an equal degree of influence there, especially while they remain careful in appointing proper persons and insisting on their punctual attendance. As the United States assume a national form and character, the good of the whole will become more and more an object of attention; and the government must be weak indeed if it should forget that the good of the whole can be promoted only by advancing the good of each of its parts. It will not be in the power of the President and Senate to make any treaty by which they, their families, and their estates will not be equally bound and affected with the rest of the community; and, having no private interest distinct from the nation’s, they will be under no temptation to neglect it.

As to corruption, the case is not to be supposed. He must have been very unfortunate in his dealings with the world, or possess a heart very open to 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 odious to be entertained. But should it ever happen, the treaty so obtained from us would, like all other fraudulent contracts, be null and void by the law of nations.

As 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, reputation, conscience, love of country, and family affections, gives security for their fidelity. In short, since the Constitution has taken the utmost care that they be men of talents and integrity, we have reason to be persuaded that the treaties they make will be as advantageous as, all things considered, could be made; and so far as the fear of punishment and disgrace can operate, that motive to good behavior is amply supplied by the article on impeachments.

The remaining powers the plan assigns to the Senate in its own right are two: it shares with the executive in the appointment to offices, and it acts in a judicial capacity as a court for the trial of impeachments. Because the executive is the principal agent in appointments, that subject belongs to the examination of the executive department; here I close by considering the Senate’s judicial character.

A well-constituted court for the trial of impeachments is no less desirable than it is hard to obtain in a government that is wholly elective. Its jurisdiction reaches those offenses that proceed from the misconduct of public men, that is, from the abuse or violation of some public trust. Such offenses may with peculiar propriety be called POLITICAL, since they relate chiefly to injuries done immediately to the society itself. For this reason their prosecution will seldom fail to agitate the passions of the whole community and to divide it into parties more or less friendly or hostile to the accused. In many cases the prosecution will connect itself with pre-existing factions and enlist all their animosities, partialities, influence, and interest on one side or the other. In such cases there will always be the greatest danger that the decision will be governed more by the comparative strength of parties than by the real demonstrations of innocence or guilt.

The delicacy and magnitude of a trust that so deeply concerns the political reputation and very existence of every man engaged in public affairs speak for themselves. The difficulty of placing that trust rightly, in a government resting entirely on periodical elections, is just as plain: the most conspicuous figures in such a government will, for that very reason, too often be the leaders or the tools of the most cunning or the most numerous faction, and so can hardly be expected to possess the neutrality required toward those whose conduct is under scrutiny.

The convention, it appears, judged the Senate the most fit depositary of this important trust. Those who can best discern the intrinsic difficulty of the matter will be the least hasty in condemning that opinion, and the most inclined to allow due weight to the arguments that may be supposed to have produced it.

What 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 that is its design, who can so properly serve as the inquisitors for the nation as the representatives of the nation themselves? It is not disputed that the power of originating the inquiry, that is, of preferring the impeachment, ought to be lodged in one branch of the legislature. The reasons that recommend lodging it there plead just as strongly for admitting the other branch to a share in the inquiry. The model from which this institution was borrowed pointed out that course. 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, and several of the state constitutions have followed the example. Both the British practice and the state practice seem to have regarded impeachment as a bridle in the hands of the legislative body upon the executive servants of the government. Is this not the true light in which it ought to be regarded?

Where else than in the Senate could a tribunal be found that is sufficiently dignified and 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 to answer this description? It is much to be doubted whether its members would at all times possess so eminent a portion of fortitude as so difficult a task demands; and it is still more to be doubted whether they would possess the credit and authority that might, on certain occasions, be indispensable to reconcile the people to a decision clashing with an accusation brought by their immediate representatives. A deficiency in the first would be fatal to the accused; a deficiency in the second, dangerous to the public tranquillity. The hazard in both respects could only be avoided, if at all, by making that tribunal more numerous than a reasonable attention to economy would allow. The nature of the proceeding equally dictates a numerous court. An impeachment can never be tied down by such strict rules, either in the prosecutors’ delineation of the offense or in the judges’ construction of it, as ordinarily limit the discretion of courts in favor of personal security. There will be no jury to stand between the judges who pronounce the sentence and the party who must receive it. The awful discretion such a court must have, to doom to honor or to infamy the most confidential and distinguished characters of the community, forbids committing the trust to a small number of persons.

These considerations alone seem enough to conclude that the Supreme Court would have been an improper substitute for the Senate as a court of impeachments. A further consideration strengthens that conclusion. The punishment that may follow conviction on impeachment does not end the offender’s chastisement: after being sentenced to a perpetual ostracism from the esteem, confidence, honors, and emoluments of his country, he remains 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 also, in another trial for the same offense, be the disposers of his life and his fortune? There would be the greatest reason to fear that error in the first sentence would be the parent of error in the second, and that the strong bias of one decision would overrule any new lights that might vary the complexion of the other. Those who know anything of human nature will answer these questions in the affirmative, and will readily see that making the same persons judges in both cases would, in great measure, deprive the accused of the double security intended by a double trial. The loss of life and estate would often be virtually included in a sentence that, in its terms, imported nothing more than removal from a present office and disqualification for a future one. It may be said that the intervention of a jury in the second instance would remove the danger; but juries are frequently influenced by the opinions of judges, and are sometimes led to find special verdicts that refer the main question to the court. Who would willingly stake his life and his estate on the verdict of a jury acting under judges who had already predetermined his guilt?

Would it have improved the plan to unite the Supreme Court with the Senate in forming the court of impeachments? Such a union would certainly have carried several advantages, but would they not have been overbalanced by the disadvantage already stated, the same judges acting in the double prosecution to which the offender would be liable? The benefits of that union are secured to a certain extent by making the chief justice of the Supreme Court the president of the court of impeachments, as the plan proposes, while the inconveniences of fully incorporating the court into the Senate are substantially avoided. This was perhaps the prudent mean. I forbear to remark on the additional pretext for clamor against the judiciary that so large an increase of its authority would have afforded.

Would it have been desirable to compose the court for the trial of impeachments of persons wholly distinct from the other departments of the government? There are weighty arguments both against and in favor of such a plan. To some minds it will be no trivial objection that it would increase the complexity of the political machine and add a new spring to the government whose usefulness would at best be questionable. But the objection no one will think unworthy of attention is this: a court formed on such a plan would either involve a heavy expense or be subject in practice to a variety of casualties and inconveniences. Such a court must consist either of permanent officers stationed at the seat of government, and therefore entitled to fixed and regular stipends, or of certain officers of the state governments to be summoned whenever an impeachment was pending; no third mode materially different could rationally be proposed. Since the court ought, for the reasons already given, to be numerous, the first scheme will be condemned by every man who compares the extent of the public wants with the means of supplying them. The second will be embraced only with caution by those who seriously consider the difficulty of collecting men dispersed over the whole Union, the injury to the innocent from delayed determination of the charges, the advantage to the guilty from the room delay would give to intrigue and corruption, and in some cases the detriment to the state from the prolonged inaction of men whose firm and faithful execution of their duty might have exposed them to persecution by an intemperate or designing majority in the House of Representatives. Harsh as this last supposition may seem, and unlikely as it may be to occur often, it ought not to be forgotten that the demon of faction will, at certain seasons, extend his sceptre over all numerous bodies of men.

But even if one of these substitutes, or some other that might be devised, should be thought preferable to the plan reported by the convention in this respect, it would not follow that the Constitution ought for that reason to be rejected. If mankind resolved to agree on no institution of government until every part of it had been adjusted to the most exact standard of perfection, society would soon become a general scene of anarchy and the world a desert. Where is the standard of perfection to be found? Who will undertake to unite the discordant opinions of a whole community in one judgment of it, and to prevail upon one conceited projector to give up his INFALLIBLE criterion for the FALLIBLE criterion of his more CONCEITED NEIGHBOR? To serve their purpose, the adversaries of the Constitution must prove not merely that particular provisions in it are not the best that might have been imagined, but that the plan upon the whole is bad and pernicious.

Reviewing the main objections raised against the proposed court for trying impeachments may well clear away whatever unfavorable impressions still linger about it.

The first objection is that placing the trial of impeachments in the Senate mixes legislative and judicial authority in one body, violating the well-established maxim that requires the separate departments of power to be kept apart. The true meaning of that maxim, established elsewhere, is fully compatible with a partial blending of the departments for special purposes, so long as they remain in the main distinct and unconnected. Such partial blending is sometimes not only proper but necessary, so that the branches can defend themselves against one another. The ablest writers on political science admit that an executive veto, absolute or qualified, over the acts of the legislature is an indispensable barrier against legislative encroachment; with no less reason, the impeachment power is an essential check in the legislature’s hands against encroachment by the executive.

Dividing that power between the two houses, giving one the right to accuse and the other the right to judge, avoids making the same persons both accusers and judges and guards against persecution born of a factious spirit in either chamber. Because conviction will require the agreement of two thirds of the Senate, the protection given to the innocent is as complete as innocence itself could wish.

It is striking how fiercely this part of the plan is attacked on the separation principle by men who claim to admire New York’s own constitution without exception. That constitution makes the Senate, together with the chancellor and the judges of the Supreme Court, not only a court of impeachments but the highest court in the State for all causes, civil and criminal. Since the chancellor and judges are so few compared with the senators, the final judicial authority of New York can truly be said to rest in its Senate. If the convention’s plan departs from the celebrated and little-understood maxim, how much more culpable is the constitution of New York? Nor does New York stand alone: New Jersey likewise lodges its final judicial authority in a branch of the legislature, while New Hampshire, Massachusetts, Pennsylvania, and South Carolina each make one branch of the legislature their court for impeachments.

A second objection is that making the Senate a court of impeachments piles up too much power in that body and gives the government too aristocratic a cast. The Senate already shares authority with the executive in making treaties and filling offices; add to these the power to decide all impeachments, the objectors say, and senatorial influence will become decidedly dominant. Yet an objection this imprecise admits no precise answer. What measure or standard tells us when the Senate has too much, too little, or just the right degree of influence? It is safer and simpler to set aside such vague calculations, examine each power on its own, and decide on general principles where it can be lodged with the most advantage and the least inconvenience.

Taking that course leads to a more intelligible result, if not a more certain one. The treaty power, as arranged in the plan, appears fully justified by considerations stated earlier and others that will come up under the next head of inquiry. Joining the Senate with the executive in appointments will be defended just as satisfactorily under that same head. And the observations in the last paper go a long way toward proving that no fitter place could be found for the impeachment power than the one chosen. If that is so, the hypothetical fear of an overweighted Senate should be dropped from our reasoning.

That fear has in any case already been answered in the discussion of the senators’ term of office. There it was shown, both from historical example and from the nature of the thing, that the most popular branch of any republican government, being generally the favorite of the people, will commonly be a full match, if not an overmatch, for every other part of the government.

Beyond that active principle, the plan provides the House of Representatives with several important counterweights to the added authorities given the Senate. The House alone may originate money bills. The House alone holds the power to bring impeachments: is that not a complete counterbalance to the power of deciding them? And the House is the umpire in every presidential election in which no candidate wins a majority of the whole number of electors, a case that cannot be doubted will sometimes, if not frequently, arise. The constant possibility of that duty is a rich source of influence, for the power to settle contests among the Union’s most illustrious citizens for its highest office may, as a means of influence, outweigh all the special attributes of the Senate.

A third objection draws on the Senate’s part in appointments: as judges, senators would be too lenient toward men they helped place in office. But that reasoning would condemn a practice found in all the State governments, and perhaps in every government we know, namely making officeholders who serve at pleasure dependent on the pleasure of those who appointed them. With equal plausibility one might claim that the favoritism of the appointers would always shelter the misconduct of the appointed.

That common practice rests on a different presumption: that those who appoint, being responsible for the fitness of their choices and interested in a respectable and prosperous administration, will be disposed to remove anyone whose conduct proves him unworthy of the trust. Facts may not always match this presumption, but if it is broadly just, it destroys the idea that the Senate, which merely sanctions the executive’s choice, would feel a bias toward that choice strong enough to blind it to guilt so extraordinary that the nation’s representatives became its accusers.

If further argument against such a bias were needed, it lies in the nature of the Senate’s role in appointments. The President nominates, and with the Senate’s advice and consent appoints; the Senate exercises no choice of its own. It may defeat one of the executive’s choices and force him to make another, but it cannot itself choose; it can only ratify or reject the President’s choice. Senators might even prefer some other person at the very moment they consent to the one proposed, since there may be no positive ground to oppose him and no assurance that rejecting him would bring forward their own favorite or anyone they think more deserving. So the Senate’s majority can hardly feel any regard toward an appointee beyond what the appearance of merit inspires and the proof of its absence destroys.

A fourth objection comes from the Senate’s union with the executive in making treaties: this, it is said, would make the senators their own judges in every case of a corrupt or treacherous execution of that trust. After joining the executive in betraying the nation through a ruinous treaty, what prospect would there be of their suffering the punishment they deserved, when they themselves were to decide the accusation brought against them for the treachery of which they had been guilty?

This objection has been urged with more earnestness and a greater show of reason than any other against this part of the plan, and yet I am much mistaken if it does not rest on a false foundation.

The security the Constitution mainly intends against corruption and treachery in making treaties lies in the numbers and characters of those who make them. The joint agency of the President and of two thirds of a body chosen by the collective wisdom of the several State legislatures is meant to pledge the fidelity of the national councils on this point. The convention might properly have provided to punish the executive for departing from the Senate’s instructions or for dishonesty in conducting negotiations entrusted to him; it might also have provided to punish a few leading senators who prostituted their influence as the hired tools of foreign corruption. But it could not, with greater or even equal propriety, have contemplated impeaching and punishing two thirds of the Senate for consenting to a bad treaty than impeaching a majority of either house for consenting to a ruinous or unconstitutional law, a principle I believe no government has ever admitted.

How, in fact, could a majority of the House impeach itself? No better than two thirds of the Senate could try themselves. And what reason is there that a majority of the House, sacrificing society’s interests by an unjust and tyrannical law, should escape with impunity any more than two thirds of the Senate sacrificing the same interests in an injurious treaty? The truth is that in all such cases the freedom and necessary independence of the body’s deliberations require that its members be exempt from punishment for acts done in a collective capacity. The society’s security must instead depend on confiding the trust to proper hands, making it their interest to execute it faithfully, and making it as hard as possible for them to combine in any interest opposed to the public good.

As for misconduct by the executive in twisting or defying the Senate’s instructions, we need not fear that the Senate would lack the will to punish such abuse of its confidence and to vindicate its own authority; here we may count on the Senate’s pride, if not its virtue. And as for the corruption of leading members whose arts lured the majority into measures hateful to the community, if the proof of that corruption is satisfactory, the usual bent of human nature assures us the body would not lack the inclination to turn public resentment away from itself by readily sacrificing the authors of its mismanagement and disgrace.