REC #1 HATONN
WED., MAY 25, 1994 1:31 P.M. YEAR 7, DAY 282
WED., MAY 25, 1994
CONSTITUTION: ARTICLE 1,
SECTION 2, PARAGRAPH 4
When vacancies happen in the representation from any State, the Executive authority thereof shall issue writs of election to fill such vacancies.
CONSTITUTION: ARTICLE 1
SECTION 2, PARAGRAPH 5
The House of Representatives shall choose their Speaker and other officers; and shall have the sole power of impeachment.
Federalist Papers, Excerpts:
No. 79, Par. 4, Alexander Hamilton:
The precautions for their responsibility are comprised in the article respecting impeachments. They are liable to be impeached for malconduct by the House of Representatives and tried by the Senate; and, if convicted, may be dismissed from office and disqualified for holding any other. This is the only provision on the point which is consistent with the necessary independence of the judicial character, and is the only one which we find in our own Constitution in respect to our own judges.
The want of a provision for removing the judges on account of inability has been a subject of complaint. But all considerate men will be sensible that such a provision would either not be practiced upon or would he more liable to abuse than calculated to answer any good purpose. The mensuration of the faculties of the mind has, I believe, no place in the catalogue of known arts. An attempt to fix the boundary between the regions of ability and inability would much oftener give scope to personal and party attachments and enmities than advance the interests of justice or the public good. The result, except in the case of insanity, must for the most part be arbitrary; and insanity, without any formal or express provision, may be safely pronounced to be a virtual disqualification.
[H: I can't see where this has anything to do with anything other than that there is an expectation that you will always have honorable judges within the judicial system and honorable men in public office. It would seem that ALL of that assumption has most certainly gone by the wayside. You now live in a nation wherein the JUDGES protect and harbor the criminals and investigate "themselves". Perhaps it is not so much the lack of intent in the beginning as the deterioration of the judicial system as a whole in all facets of that system AND the governing bodies politic. Not particularly applicable in point to the Constitution is the next paragraph in the Federalist Papers wherein Hamilton makes reference to New York and term limitation for judges and it is interesting enough to present it here.]
The constitution of New York, to avoid investigations that must forever be vague and dangerous, has taken a particular age as the criterion of inability. No man can be a judge beyond sixty. I believe there are few at present who do not disapprove of this provision. There is no station in relation to which it is less proper than to that of a judge. The deliberating and comparing faculties generally preserve their strength much beyond that period in men who survive it; and when, in addition to this circumstance, we consider how few there are who outlive the season of intellectual vigor and how improbable it is that any considerable portion of the bench, whether more or less numerous, should be in such a situation at the same time, we shall be ready to conclude that limitations of this sort have little to recommend them. In a republic where fortunes are not affluent and pensions not expedient, the dismission of men from stations in which they have served their country long and usefully, on which they depend for subsistence, and from which it will be too late to resort to any other occupation for a livelihood, ought to have some better apology to humanity than is to be found in the imaginary danger of a super-annuated bench. [H: Only the first paragraph above is actually applicable to the House of Representatives and to impeachment but the other references to the judicial benches (judges) is most interesting--for in this one category you have digressed into the literal trash-can, good readers.]
CONSTITUTION: ARTICLE 1,
SECTION 3. PARAGRAPH 1
The Senate of the United States shall be composed of two Senators from each State, chosen by the legislature thereof, for six years; and each Senator shall have one vote.
Federalist Papers, Excerpts:
No, 39, Par. 5, James Madison:
....The Senate, like the present Congress and the Senate of Maryland, derives its appointment indirectly from the people. The President is indirectly derived from the choice of the people, according to the example in most of the States. Even the judges, with all other officers of the Union, will, as in the several States, be the choice, though a remote choice, of the people themselves...
No. 39, Par. 12, James Madison:
....The Senate, on the other hand, will derive its powers from the States as political and coequal societies; and these will be represented on the principle of equality in the Senate, as they now are in the existing Congress. So far the government is federal, not national. The executive power will be derived from a very compound source. The immediate....
No, 45, Par.9, James Madison:
....The Senate will be elected absolutely and exclusively by the State legislatures.... [H: Does ANYBODY see anything gone wrong here???]
....As to the Senate, it is impossible that any regulation of "time and manner", which is all that is proposed to be submitted to the national government in respect to that body, can affect the spirit which will direct the choice of its members. The collective sense of the State legislature can never be influenced by extraneous circumstances of that sort; a consideration which alone ought to satisfy us that the discrimination apprehended would never be attempted. For what inducement could the Senate have to concur in a preference in which itself would not be included? Or to what purpose would it be established, in reference to one branch of the legislature, if it could not be extended to the other? The composition of the one would in this case counteract that of the other. And we can never suppose that it would embrace the appointments to the Senate unless we can at the same time suppose the voluntary co-operation of the State legislatures. If we make the latter supposition, it then becomes immaterial where the power in question in placed--whether in their hands or in those of the Union....
No. 62, Par. 4, Probably done by Madison:
III: The equality of representation in the Senate is another point which, being evidently the result of compromise between the opposite pretensions of the large and the small States, does not call for much discussion. If indeed it be right that among a people thoroughly incorporated into one nation every district ought to have a proportional share in the government and that among independent and sovereign States, bound together by a simple league, the parties, however unequal in size, ought to have an equal share in the common councils, it does not appear to be without some reason that a compound republic, partaking both of the national and federal character, the government ought to be founded on a mixture of the principles of proportional and equal representation. But it is superfluous to try, by the standard of theory, a part of the Constitution which is allowed on all hands to be the result, not of theory, but "of a spirit of amity, and that mutual deference and concession which the peculiarity of our political situation rendered indispensable." A common government, with powers equal to its objects, is called for by the voice, and still more loudly by the political situation, of America. A government founded on principles more consonant to the wishes of the larger States is not likely to be obtained from the smaller States. The only option, then, for the former lies between the proposed government and government still more objectionable. Under this alternative, the advice of prudence must be to embrace the lesser evil; and instead of indulging a fruitless anticipation of the possible mischiefs which may ensue, to contemplate rather the advantageous consequences which may qualify the sacrifice.
In this spirit it may be remarked that the equal vote allowed to each State is at once a constitutional recognition of the portion of sovereignty remaining in the individual States and an instrument for preserving the residuary sovereignty. So far the equality ought to be no less acceptable to the large than to the small States, since they are not less solicitous to guard, by every possible expedient, against an improper consolidation of the States into one simple republic.
Another advantage accruing from this ingredient in the constitution of the Senate is the additional impediment it must prove against improper acts of legislation. No law or resolution can now be passed without the concurrence, first, of a majority of the people, and then of a majority of the States. It must be acknowledged that this complicated check on legislation may in some instances be injurious as well as beneficial; and that the peculiar defense which it involves in favor of the smaller States would be more rational if any interests common to them and distinct from those of the other States would otherwise be exposed to peculiar danger. But as the larger States will always be able, by their power over the supplies, to defeat unreasonable exertions of this prerogative of the lesser States, and as the facility and excess of lawmaking seem to be the diseases to which our governments are most liable, it is not impossible that this part of the Constitution may be more convenient in practice than it appears to many in contemplation.
IV. The number of senators and the duration of their appointment come next to be considered. In order to form an accurate judgment on both these points it will be proper to inquire into the purposes which are to be answered by a Senate; and in order to ascertain these it will be necessary to review the inconveniences which a republic must suffer from the want of such an institution.
First. It is a misfortune incident to republican government, though in a less degree than to other governments, that those who administer it may forget their obligations to their constituents and prove unfaithful to their important trust. In this point of view a Senate, as a second branch of the legislative assembly distinct from and dividing the power with a first, must be in all cases a salutary check on the government. It doubles the security to the people by requiring the concurrence of two distinct bodies in schemes of usurpation or perfidy, where the ambition or corruption of one would otherwise be sufficient. This is a precaution founded on such clear principles, and now so well understood in the United States, that it would be more than superfluous to enlarge on it. I will barely remark that as the improbability of sinister combinations will be in proportion to the dissimilarity in the genius of the two bodies, it must be polite to distinguish them from each other by every circumstance which will consist with a due harmony in all proper measures, and with the genuine principles of republican government.
Secondly. The necessity of a Senate is not less indicated by the propensity of all single and numerous assemblies, to yield to the impulse of sudden and violent passions, and to be seduced by factious leaders, into intemperate and pernicious resolutions. Examples on this subject might be cited without number; and from proceedings within the United States, as well as from the history of other nations. But a position that will not be contradicted need not be proved. All that need be remarked is that a body which is to correct this infirmity ought itself be free from it, and consequently ought to be less numerous. It ought moreover to possess great firmness, and consequently ought to hold its authority by a tenure of considerable duration.
Thirdly. Another defect to be supplied by a Senate lies in a want of due acquaintance with the objects and principles of legislation. It is not possible that an assembly of men called for the most part from pursuits of a private nature, continued in appointment for a short time, and led by no permanent motive to devote the intervals of public occupation to a study of the laws, the affairs and the comprehensive interests of their country, should, if left wholly to themselves, escape a variety of important errors in the exercise of their legislative trust. It may be affirmed, on the best grounds, that no small share of the present embarrassments of America is to be charged on the blunders of our governments; and that these have proceeded from the heads rather than the hearts of most of the authors of them. What indeed are all the repealing, explaining and amending laws, which fill and disgrace our voluminous codes, but so many monuments of deficient wisdom; so many impeachments exhibited by each succeeding, against each preceding session; so many admonitions to the people of the value of those aids which may be expected from a well constituted Senate?
A good government implies two things; first, fidelity to the object of government, which is the happiness of the people; secondly, a knowledge of the means by which that object can be best attained. Some governments are deficient in both these qualities: Most governments are deficient in the first. I scruple not to assert that in the American governments, too little attention has been paid to the last. The federal Constitution avoids this error; and what merits particular notice, it provides for the last in a mode which increases the security for the first.
Fourthly. The mutability in the public councils, arising from a rapid succession of new members, however qualified they may be, points out in the strongest manner, the necessity of some stable institution in the government. Every new election in the states, is found to change one half of the representatives. From this change of men must proceed a change of opinions; and from a change of opinions, a change of measures. But a continual change even of good measures is inconsistent with every rule of prudence, and every prospect of success. The remark is verified in private life, and becomes more just as well as more important, in national transactions.
To trace the mischievous effects of a mutable government would fill a volume. I will hint a few only, each of which will be perceived to be a source of innumerable others.
In the first place it forfeits the respect and confidence of other nations, and all the advantages connected with national character. An individual who is observed to be inconstant to his plans, or perhaps to carry on his affairs without any plan at all, is marked at once by all prudent people as a speedy victim to his own unsteadiness and folly. His more friendly neighbors may pity him; but all will decline to connect their fortunes with his; and not a few will seize the opportunity of making their fortunes out of his. One nation is to another what one individual is to another, with the melancholy distinction, perhaps, that the former with fewer of the benevolent emotions than the latter, are under fewer restraints also from taking undue advantage of the indiscretions of each other. Every nation consequently whose affairs betray a want of wisdom and stability, may calculate on every loss which can be sustained from the more systematic policy of its wiser neighbors. But the best instruction on this subject is unhappily conveyed to America by the example of her own situation. She finds that she is held in no respect by her friends; that she is the derision of her enemies; and that she is a prey to every nation which has an interest in speculating on her fluctuating councils and embarrassed affairs. [H: This should disturb you so greatly that you are compelled to read it again and again: "but the best instruction on this subject is unhappily conveyed to America by the example of her own situation. She finds that she is held in no respect by her friends; that she is the derision of her enemies; and that she is a prey to every nation which has an interest in speculating on her fluctuating councils and embarrassed affairs. Is this not SHOCKING to you to see that even as your Constitution was being written you wondrous Americans had already been stripped of honor and respect? Freedom? Dear ones--no freedom and no liberty--even then and yet you had, as a nation, an opportunity to become that which would endure through the eons of time as a beacon of truth and "how-to" and you blew it again. How long will it be until, if we get it all cleaned up and you again into freedom and sovereignty, you have allowed the rats aboard the ship? How long can you blame another for that which YOU have allowed to come to be?]
The internal effects of a mutable policy are still more calamitous. It poisons the blessings of liberty itself. It will be of little avail to the people that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man who knows what the law is to-day can guess what it will be to-morrow. Law is defined to be a rule of action; but how can that be a rule, which is little known and less fixed?
Another effect of public instability is the unreasonable advantage it gives to the sagacious, the enterprising, and the moneyed few, over the industrious and uninformed mass of the people. Every new regulation concerning commerce or revenue, or in any manner affecting the value of the different species of property, presents a new harvest to those who watch the change, and can trace its consequences; a harvest reared not by themselves but by the toils and cares of the great body of their fellow citizens. This is a state of things in which it may be said with some truth that laws are made for the few, not for the many.
In another point of view, great injury results from an unstable government. The want of confidence in the public councils damps every useful undertaking; the success and profit of which may depend on a continuance of existing arrangements. What prudent merchant will hazard his fortunes in any new branch of commerce, when he knows not but that his plans may be rendered unlawful before they can be executed? What farmer or manufacturer will lay himself out for the encouragement given to any particular cultivation or establishment, when he can have no assurance that his preparatory labors and advances will not render him a victim to an inconstant government? In a word, no great improvement or laudable enterprise can go forward which requires the auspices of a steady system of national policy.
But the most despicable effect of all is that diminution of attachment and reverence, which steals into the hearts of the people, towards a political system which betrays so many marks of infirmity, and disappoints so many of their flattering hopes. No government any more than an individual will long be respected, without being truly respectable, nor be truly respectable without possessing a certain portion of order and stability. PUBLIUS
No. 63, Par. 1, James Madison:
(March 1, 1788)
A fifth desideratum, illustrating the utility of a Senate, is the want of a due sense of national character. Without a select and stable member of the government, the esteem of foreign powers will not only be forfeited by an unenlightened and variable policy, proceeding from the causes already mentioned; but the national councils will not possess that sensibility to the opinion of the world, which is perhaps not less necessary in order to merit, than it is to obtain, its respect and confidence.
An attention to the judgment of other nations is important to every government for two reasons: The one is, that independently of the merits of any particular plan or measure, it is desirable on various accounts, that it should appear to other nations as the offspring of a wise and honorable policy; the second is, that in doubtful cases, particularly where the national councils may be warped by some strong passion, or momentary interest, the presumed or known opinion of the impartial world may be the best guide that can be followed. What has not America lost by her want of character with foreign nations? And how many errors and follies would she not have avoided, if the justice and propriety of her measures had in every instance been previously tried by the light in which they would probably appear to the unbiased part of mankind?
Yet however requisite a sense of national character may be, it is evident that it can never be sufficiently possessed by a numerous and changeable body. It can only be found in a number so small that a sensible degree of the praise and blame of public measures may be the portion of each individual; or in an assembly so durably invested with public trust that the pride and consequence of its members may be sensibly incorporated with the reputation and prosperity of the community. The half-yearly representatives of Rhode-Island would probably have been little affected in their deliberations on the iniquitous measures of that State by arguments drawn from the light in which such measures would be viewed by foreign nations, or even by the sister States; whilst it can scarcely be doubted that if the concurrence of a select and stable body had been necessary, a regard to national character alone would have prevented the calamities under which that misguided people is now labouring.
I add as a sixth defect, the want in some important cases of a due responsibility in the government to the people, arising from that frequency of election, which in other cases produces this responsibility. This remark will perhaps appear not only new but paradoxical. It must nevertheless be acknowledged, when explained, to be as undeniable as it is important.
Responsibility in order to be reasonable must be limited to objects within the power of the responsible party; and in order to be effectual, must relate to operations of that power, of which a ready and proper judgment can be formed by the constituents. The objects of government may be divided into two general classes; the one depending on measures which have singly an immediate and sensible operation; the other depending on a succession of well chosen and well connected measures, which have a gradual and perhaps unobserved operation. The importance of the latter description to the collective and permanent welfare of every country needs no explanation. And yet it is evident that and 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 at any rate 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 the 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 shew 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 those 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 willfully 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 reasoning's 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 government on the subject of representation is by no means precisely true in the latitude commonly given to it. Without entering into a disquisition which 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 number, 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 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 ensure 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 preeminence 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 this latter; and that the former rather than the latter is 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 operations 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 anything 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 even 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, that 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. This 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. [H: Boy, you better be praying that this is so...!] 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
END OF CHAPTER FOUR
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My recommendation to you readers is that you go right back to the beginning of this and reread it and reread it until it is locked into your brains. Had you followed and continued to follow the original plan--you would never have allowed such atrocities to have occurred within the halls of government and justice.
I may well concur with the patriots who have recently noted the guillotines brought forth into your nation and scattered into the various "concentration" points set forth for you-the-people--perhaps the dirty bounders who have continued to corrupt and usurp power and honor, integrity and all the wealth of all of you, HAD BETTER GET NERVOUS ABOUT THEIR NECKS! Salu.
REC #1 HATONN
THU., MAY 26, 1994 9:58 A.M. YEAR 7, DAY 283
THU., MAY 26, 1994
CONSTITUTION: ARTICLE 1
SECTION 3, PARAGRAPH 2
Immediately after they shall be assembled in consequence of the first election, they shall be divided as equally as may be into three classes. The seats of the Senators of the first class shall be vacated at the expiration of the second year, of the second class at the expiration of the fourth year, and of the third class at the expiration of the sixth year, so that one-third may be chosen every second year; and if vacancies happen by resignation, or otherwise, during the recess of the legislature of any State, the Executive thereof may make temporary appointments until the next meeting of the legislature, which shall then fill such vacancies.
Federalist Papers, Excerpts:
No. 59, Par. 8, Alexander Hamilton:
It may easily be discerned also that the national government would run a much greater risk from a power in the State legislatures over the elections of its House of Representatives than from their power of appointing the members of its Senate. The senators are to be chosen for the period of six years; there is to be a rotation, by which the seats of a third part of them are to be vacated and replenished every two years; and no State is to be entitled to more than two senators; a quorum of the body is to consist of sixteen members. The joint result of these circumstances would be that a temporary combination of a few States to intermit the appointment of senators could neither annul the existence nor impair the activity of the body; and it is not from a general or permanent combination of the States that we can have anything to fear. The first might proceed from sinister designs in the leading members of a few of the State legislatures; the last would suppose a fixed and rooted disaffection in the great body of the people which will either never exist at all, or will, in all probability, proceed from an experience of the inaptitude of the general government to the advancement of their happiness--in which event no good citizen could desire its continuance.
No. 68, Par. Last 1/3rd of 10, Alexander Hamilton:
....But lastly, the first and second clauses of the third section of the first article not only obviate all possibility of doubt, but destroy the pretext of misconception. The former provides that "the Senate of the United States shall be composed of two senators from each State, chosen by the legislature thereof for six years"; and the latter directs that "if vacancies in that body should happen by resignation or otherwise, during the recess of the legislature of ANY STATE, the executive THEREOF may make temporary appointments until the next meeting of the legislature, which shall then fill such vacancies." Here is an express power given, in clear and unambiguous terms, to the State executives to fill casual vacancies in the Senate by temporary appointments; which not only invalidates the supposition that the clause before considered could have been intended to confer that power upon the President of the United States, but proves that this supposition, destitute as it is even of the merit of plausibility, must have originated in an intention to deceive the people, too palpable to be obscured by sophistry, too atrocious to be palliated by hypocrisy.
CONSTITUTION: ARTICLE 1
SECTION 3. PARAGRAPH 3
No Person shall be a Senator who shall not have attained to the age of thirty years, and been nine years a citizen of the United States, and who shall not, when elected, be an inhabitant of that State for which he shall be chosen.
Federalist Papers, Excerpts:
No. 62. Par. 2, James Madison:
I. The qualifications proposed for senators, as distinguished from those of representatives, consist in a more advanced age and a longer period of citizenship. A senator must be thirty years of age at least; as a representative must be twenty-five. And the former must have been a citizen nine years; as seven years are required for the latter. The propriety of these distinctions is explained by the nature of the senatorial trust, which, requiring greater extent of information and stability of character, requires at the same time that the senator should have reached a period of life most likely to supply these advantages; and which, participating immediately in transactions with foreign nations, ought to be exercised by none who are not thoroughly weaned from the prepossessions and habits incident to foreign birth and education. The term of nine years appears to be a prudent mediocrity between a total exclusion of adopted citizens, whose merits and talents may claim a share in the public confidence, and an indiscriminate and hasty admission of them, which might create a channel for foreign influence on the national councils.
No. 64. Par. 4, John Jay:
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. [H: Please note that you have come full tilt--back to treaties (which rank highest in command for honoring) now being made by "advisors", "cabinet members", members of the U.N.--almost EVERYTHING except who SHOULD make them. After treaties and new laws are made they are NOW "ratified" by some two or three persons in the middle of some dark night in closets. People--you had better get your lessons in good repair according to TRUTH or you haven't a chance! How many classes such as this are ALLOWED in your schools and colleges? I thought not.]
CONSTITUTION: ARTICLE 1
SECTION 3. PARAGRAPH 4
The Vice President of the United States shall be President of the Senate, but shall have no vote, unless they be equally dividd.
CONSTITUTION: ARTICLE 1
SECTION 3. PARAGRAPH 5
The Senate shall choose their other officers, and also a President pro tempore, in the absence of the Vice President, or when he shall exercise the office of President of the United States.
[H: How many of you even know VVII0 that might be TODAY?]
CONSTITUTION: ARTICLE 1
SECTION 3. PARAGRAPH 6
The Senate shall have the sole power to try all impeachments. When sitting for that purpose, they shall be on oath or affirmative. When the President of the United States is tried, the Chief Justice shall preside; and no persons shall be convicted without the concurrence of two-thirds of the members present.
Federalist Papers, Excerpts:
No. 39, Par. 5, (near end), James Madison:
....The President of the United States is impeachable at any time during his continuance in office. The tenure by which the judges are to hold their places is, as it unquestionably ought to be, that of good behavior. The tenure of the ministerial offices generally will be a subject of legal regulation, conformably to the reason of the case and the example of the State constitutions.
No. 65, Par. 1, Alexander Hamilton:
The remaining powers which the plan of the convention allots to the Senate, in a distinct capacity, are comprised in their participation with the executive in the appointment to offices, and in their judicial character as a court for the trial of impeachments. As in the business of appointments the executive will be the principal agent, the provisions relating to it will most properly be discussed in the examination of that department. We will, therefore, conclude this head with a view of the judicial character of the Senate.
A well-constituted court for the trial of impeachments is an object not more to be desired than difficult to be obtained in a government wholly elective. The subjects of its jurisdiction are those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself. The prosecution of them, for this reason, will seldom fail to agitate the passions of the whole community, and to divide it into parties more or less friendly or inimical to the accused. In many cases it will connect itself with the pre-existing factions, and will enlist all their animosities, partialities, influence, and interest on one side or on the other; and in such cases there will always be the greatest danger that the decision will be regulated more by the comparative strength of parties than by the real demonstrations of innocence or guilt.
The delicacy and magnitude of a trust which so deeply concerns the political reputation and existence of every man engaged in the administration of public affairs speak for themselves. The difficulty of placing it rightly in a government resting entirely on the basis of periodical elections will as readily be perceived, when it is considered that the most conspicuous characters in it will, from that circumstance, be too often the leaders or the tools of the most cunning or the most numerous faction, and on this account can hardly be expected to possess the requisite neutrality towards those whose conduct may be the subject of scrutiny.
The convention, it appears, thought the Senate the most fit depository of this important trust. Those who can best discern the intrinsic difficulty of the thing will be the least hasty in condemning that opinion, and will be most inclined to allow due weight to the arguments which may be supposed to have produced it.
What, it may be asked, is the true spirit of the institution itself? Is it not designed as a method of NATIONAL INQUEST into the conduct of public men? If this be the design of it, who can so properly be the inquisitors for the nation as the representatives of the nation themselves? It is not disputed that the power of originating the inquiry, or, in other words, of preferring the impeachment, ought to be lodged in the hands of one branch of the legislative body. Will not the reasons which indicate the propriety of this arrangement strongly plead for an admission of the other branch of that body to a share of the inquiry? The model from which the idea of this institution has been borrowed pointed out that course to the convention. In Great Britain it is the province of the House of Commons to prefer the impeachment, and of the House of Lords to decide upon it. Several of the State constitutions have followed the example. As well the latter as the former seem to have regarded the practice of impeachments as a bridle in the hands of the legislative body upon the executive servants of the government. Is not this the true light in which it ought to be regarded?
Where else than in the Senate could have been found a tribunal sufficiently dignified, or sufficiently independent? What other body would be likely to feel confidence enough in its own situation to preserve, unawed and uninfluenced, the necessary impartiality between an individual accused and the representatives of the people, his accusers? [H: How FAR HAVE YOU DETERIORATED here?]
Could the Supreme Court have been relied upon as answering this description? It is much to be doubted whether the members of that tribunal would at all times be endowed with so eminent a portion of fortitude as would be called for in the execution of so difficult a task; and it is still more to be doubted whether they would possess the degree of credit and authority which might, on certain occasions, be indispensable towards reconciling the people to a decision that should happen to clash with an accusation brought by their immediate representatives. A deficiency in the first would be fatal to the accused; in the last, dangerous to the public tranquility. The hazard, in both these respects, could only be avoided, if at all, by rendering that tribunal more numerous than would consist with a reasonable attention to economy. The necessity of a numerous court for the trial of impeachments is equally dictated by the nature of the proceeding. This can never be tied down by such strict rules, either in the delineation of the offense by the prosecutors or in the construction of it by the judges, as in common cases serve to limit the discretion of courts in favor of personal security. There will be no jury to stand between the judges who are to pronounce the sentence of the law and the party who is to receive or suffer it. The awful discretion which a court of impeachments must necessarily have to doom to honor or to infamy the most confidential and most distinguished characters of the community forbids the commitment of the trust to a small number of persons.
These considerations seem alone sufficient to authorize a conclusion, that the Supreme Court would have been an improper substitute for the Senate, as a court of impeachments. There remains a further consideration, which will not a little strengthen this conclusion. It is this: the punishment which may be the consequence of conviction upon impeachment is not to terminate the chastisement of the offender. [H: PAY ATTENTION!] After having been sentenced to a perpetual ostracism from the esteem and confidence and honors and emoluments of his country, he will still be liable to prosecution and punishment in the ordinary course of law. Would it be proper that the persons who had disposed of his fame, and his most valuable rights as a citizen, in one trial, should, in another trial, for the same offense, be also the disposers of his life and his fortune? Would there not be the greatest reason to apprehend that error, in the first sentence, would be the parent of error in the second sentence? That the strong bias of one decision would be apt to overrule the influence of any new lights which might be brought to vary the complexion of another decision? Those who know anything of human nature will not hesitate to answer these questions in the affirmative; and will be at no loss to perceive that by making the same persons judges in both cases, those who might happen to be the objects of prosecution would, in a great measure, be deprived of the double security intended them by a double trial. The loss of life and estate would often be virtually included in a sentence which, in its terms, imported nothing more than dismission from a present and disqualification for a future office. It may be said that the intervention of a jury, in the second instance, would obviate the danger. But juries are frequently influenced by the opinions of judges. They are sometimes induced to find special verdicts, which refer the main question to the decision of the court. Who would be willing to stake his life and his estate upon the verdict of a jury acting under the auspices of judges who had predetermined his guilt? [H: Well, you have it EVERY DAY! This IS THE WAY IT WORKS IN THIS DAY!]
Would it have been an improvement of the plan to have united the Supreme Court with the Senate in the formation of the court of impeachments? This union would certainly have been attended with several advantages; but would they not have been overbalanced by the signal disadvantage, already stated, arising from the agency of the same judges in the double prosecution to which the offender would be liable? To a certain extent, the benefits of that union will be obtained from making the chief justice of the Supreme Court the president of the court of impeachments, as is proposed to be done in the plan of the convention; while the inconveniences of an entire incorporation of the former into the latter will be substantially avoided. This was perhaps the prudent mean. I forbear to remark upon the additional pretext for clamor against the judiciary, which so considerable an augmentation of its authority would have afforded.
Would it have been desirable to have composed the court for the trial of impeachments of persons wholly distinct from the other departments of the government? There are weighty arguments, as well against as in favor of such a plan. To some minds it will not appear a trivial objection that it would tend to increase the complexity of the political machine, and to add a new spring to the government, the utility of which would at best be questionable. But an objection which will not be thought by any unworthy of attention is this: a court formed upon such a plan would either be attended with heavy expense, or might in practice be subject to a variety of casualties and inconveniences. It must either consist of permanent officers, stationary at the seat of government, and of course entitled to fixed and regular stipends, or of certain officers of the State governments, to be called upon whenever an impeachment was actually depending. It will not be easy to imagine any third mode materially different which could rationally be proposed. As the court, for reasons already given, ought to be numerous, the first scheme will be reprobated by every man who can compare the extent of the public wants with the means of supplying them. The second will be espoused with caution by those who will seriously consider the difficulty of collecting men dispersed over the whole Union; the injury to the innocent, from the procrastinated determination of the charges which might be brought against them; the advantage to the guilty, from the opportunities which delay would afford 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 the persecution of an intemperate or designing majority in the House of Representatives. Though this latter supposition may seem harsh and might not be likely often to be verified, yet it ought not to be forgotten that the demon of faction will, at certain seasons, extend his scepter over all numerous bodies of men.
But, though one or the other of the substitutes which have been examined or some other that might be devised should be thought preferable to the plan, in this respect reported by the convention, it will not follow that the Constitution ought for this reason to be rejected. If mankind were to resolve to agree in 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 opinion of a whole community in the same judgement of it; and to prevail upon one conceited projector to renounce his infallible criterion for the fallible criterion of his more conceited neighbor? To answer the purpose of the adversaries of the Constitution, they ought to prove, not merely that particular provisions in it are not the best which might have been imagined, but that the plan upon the whole is bad and pernicious. PUBLIUS
Please, readers, do not just browse through this material and toss it aside as a bother. IT IS THE DIFFERENCE BETWEEN FREEDOM, SUPERB GOVERNMENT, CITIZEN SOVEREIGNTY, STATE SOVEREIGNTY--AND HOW TO GET THE CRIMINALS OUT--AND OF ANY OPPORTUNITY TO EVER HAVE THIS OPPORTUNITY AGAIN! WHETHER OR NOT YOU LIKE TO REALIZE IT--GOD IS GIVING YOU THIS LAST OPPORTUNITY TO SEE, TO HEAR AND TO ACT TO RECLAIM THAT WHICH YOU HAVE THROWN AWAY, IGNORED AND ALLOWED TO BE DESTROYED BY THE CRIMINALS YOU ALSO "ALLOWED" TO TAKE CONTROL. So be it.
No. 66, Par. 1, Alexander Hamilton:
(March 8, 1788)
A review of the principal objections that have appeared against the proposed court for the trial of impeachments will not improbably eradicate the remains of any unfavorable impressions, which may still exist, in regard to this matter.
The first of these objections is that the provision in question confounds legislative and judiciary authorities in the same body; in violation of that important and well established maxim which requires a separation between the different departments of power. The true meaning of this maxim has been discussed and ascertained in another place and has been shown to be entirely compatible with a partial intermixture of those departments for special purposes, preserving them, in the main, distinct and unconnected. This partial intermixture is even in some cases not only proper, but necessary to the mutual defense of the several members of the government, against each other. An absolute or qualified negative in the executive, upon the acts of the legislative body is admitted, by the ablest adepts in political science, to be an indefensible barrier against the encroachments of the latter upon the former. And it may perhaps with not less reason be contended that the powers relating to impeachments are as before intimated, an essential check in the hands of that body upon the encroachments of the executive. The division of them between the two branches of the legislature, assigning to one the right of accusing, to the other the right of judging, avoids the inconvenience of making the same persons both accusers and judges; and guards against the danger of persecution from the prevalency of a factious spirit in either of these branches. As the concurrence of two-thirds of the Senate will be requisite to a condemnation, the security to innocence, from this additional circumstance, will be as complete as itself can desire.
It is curious to observe with what vehemence this part of the plan is assailed, on the principle here taken notice of, by men who profess to admire without exception the constitution of the State; while that constitution makes the Senate, together with the chancellor and judges of the supreme court, not only a court of impeachments, but the highest judiciary in the State in all causes, civil and criminal. [H: So, it really DOES pay the President to appoint whomever he KNOWS WILL PROTECT HIS ASSETS IN ALL INSTANCES! You-the-people are talking right now about the possibility of impeachment of your President, Clinton--be very sure of HOW you go about such a thing should it come to be for upon history and true constitutional fundamentals should that act be accomplished. If you continue with the false and deceitful practices as now perpetuated by the ones in power--you will only have taken backward steps and the Elite will eat you alive!] The proportion, in point of numbers, of the chancellor and judges to the senators, is so inconsiderable, that the judiciary authority of New York in the last resort may, with truth, be said to reside in its senate. If the plan of the convention be in this respect chargeable with a departure from the celebrated maxim which has been so often mentioned, and seems to be so little understood, how much more culpable must be the constitution of New York? [H: Keep in mind that these papers were being run in the New York Times and were, in this instance, addressed to the People of the State of New York. We are talking about year 1788. But where better to get your information about intent of, and actual writing of, the CONSTITUTION than from the ones who WROTE IT?]
A second objection to the Senate, as a court of impeachments, is, that it contributes to an undue accumulation of power in that body, tending to give to the government a countenance too aristocratic. The Senate, it is observed, is to have concurrent authority with the executive in the formation of treaties, and in the appointment to offices: If, say the objectors, to these prerogatives is added that of deciding in all cases of impeachment, it will give a decided predominancy to senatorial influence. To an objection so little precise in itself, it is not easy to find a very precise answer. Where is the measure or criterion to which we can appeal, for determining what will give the Senate too much, too little, or barely the proper degree of influence? Will it not be more safe, as well as more simple, to dismiss such vague and uncertain calculations, to examine each power by itself, and to decide on general principles where it may be deposited with most advantage and least inconvenience?
If we take this course it will lead to a more intelligible, if not to a more certain result. The disposition of the power of making treaties, which has obtained in the plan of the convention, will then, if I mistake not, appear to be fully justified by the considerations stated in a former number, and by others which will occur under the next head of our enquiries. The expediency of the junction of the Senate with the executive will, I trust, be placed in a light not less satisfactory, in the disquisitions under the same head. And I flatter myself the observations in my last paper must have gone no inconsiderable way towards proving that it was not easy, if practicable, to find a more fit receptacle for the power of determining impeachments, than that which has been chosen. If this be truly the case, the hypothetical danger of the too great weight of the Senate ought to be discarded from our reasonings.
But this hypothesis, such as it is, has already been refuted in the remarks applied to the duration in office prescribed for the senators. It was by them shown, as well on the credit of historical examples, as from the reason of the thing, that the most popular branch of every government, partaking of the republican genius, by being generally the favorite of the people, will be as generally a full match, if not an overmatch, for every other member of the government.
But independent of this most active and operative principle; to secure the equilibrium of the national house of representatives, the plan of the convention has provided in its favor, several important counterpoises to the additional authorities to be conferred upon the Senate. The exclusive privilege of originating money bills will belong to the house of representatives. The same house will possess the sole right of instituting impeachments: Is not this a complete counterbalance to that of determining them? The same house will be the umpire in all elections of the President, which do not unite the suffrages of a majority of the whole number of electors; a case which it cannot be doubted will sometimes, if not frequently, happen. The constant possibility of the thing must be a fruitful source of influence to that body. The more it is contemplated, the more important will appear this ultimate, though contingent, power of deciding the competitions of the most illustrious citizens of the union for the first office in it. It would not perhaps be rash to predict that as the mean influence it will be found to outweigh all the peculiar attributes of the Senate.
A third objection to the Senate as a court of impeachments is drawn from the agency they are to have in the appointments to office. It is imagined that they would be too indulgent judges of the conduct of men in whose official creation they had participated. The principle of this objection would condemn a practice, which is to be seen in all the State governments, if not in all the governments, with which we are acquainted: I mean that of rendering those, who hold office during pleasure, dependent on the pleasure of those, who appoint them. With equal plausibility might it be alleged in this case that the favoritism of the latter would always be an asylum for the misbehavior of the former. But that practice, in contradiction to this principle, proceeds upon the presumption that the responsibility of those who appoint, for the fitness and competency of the persons on whom they bestow their choice, and the interest they will have in the respectable and prosperous administration of affairs will inspire a sufficient disposition to dismiss from a share in it, all such, who, by their conduct, shall have proved themselves unworthy of the confidence reposed in them. Though facts may not always correspond with this presumption, yet if it be, in the main, just, it must destroy the supposition that the Senate, who will merely sanction the choice of the executive, should feel a bias toward the objects of that choice strong enough to blind them to the evidences of guilt so extraordinary as to have induced the representatives of the nation to become its accusers.
If any further argument were necessary to evince the improbability of such a bias, it might be found in the nature of the agency of the Senate, in the business of appointments. It will be the office of the president to nominate, and with the advice and consent of the Senate to appoint. There will of course be no exertion of choice--they can only ratify, or reject, the choice of the president. They might even entertain a preference to some other person at the very moment they were assenting to the one proposed; because there might be no positive ground of opposition to him; and they could not be sure, if they withheld their assent, that the subsequent nomination would fall upon their own favorite, or upon any other person in their estimation more meritorious than the one rejected. Thus it could hardly happen that the majority of the Senate would feel any other complacency towards the object of an appointment, than such as the appearances of merit might inspire, and the proofs of the want of it, destroy.
A fourth objection to the Senate, in the capacity of a court of impeachments, is derived from their union with the executive in the power of making treaties. This, it has been said, would constitute the senators their own judges, in every case of a corrupt or perfidious execution of that trust. After having combined with the executive in betraying the interests of the nation in a ruinous treaty, what prospect, it is asked, would there be of their being made to suffer the punishment, they would deserve, when they were themselves to decide upon the accusation brought against them for the treachery of which they had been guilty? [H: I would guess that if you followed through with GUILTY parties to this kind of treachery--you would convict and hang all the surviving PRESIDENTS and leaders--along with a written denouncement of the last many presidents as well, having become deceased. Your nation has been totally destroyed through the use of these heinous TREATIES, even unto that with the United Nations!]
This objection has been circulated with more earnestness and with greater show of reason than any other which has appeared against this part of the plan; and yet I am deceived if it does not rest upon an erroneous foundation.
The security essentially intended by the Constitution against corruption and treachery in the formation of treaties, is to be sought for in the numbers and characters of those who are to make them. The JOINT AGENCY of the chief magistrate of the union, and of two-thirds of the members of a body selected by the collective wisdom of the legislatures of the several States, is designed to be the pledge for the fidelity of the national councils in this particular. The convention might with propriety have mediated the punishment of the executive for a deviation from the instructions of the Senate, or a want of integrity in the conduct of the negotiations committed to him: They might also have had in view the punishment of a few leading individuals in the Senate, who should have prostituted their influence in that body, as the mercenary instruments of foreign corruption: But they could not with more or with equal propriety have contemplated the impeachment and punishment of two-thirds of the Senate, consenting to an improper treaty, than of a majority of that or of the other branch of the national legislature, consenting to a pernicious or unconstitutional law; a principle which I believe has never been admitted into any government. How in fact could a majority of the house of representatives impeach themselves? Not better, it is evident, than two-thirds of the Senate, sacrificing the same interests in an injurious treaty with a foreign power? The truth is, that in all such cases it is essential to the freedom and to the necessary independence of the deliberations of the body, that the members of it should be exempt from punishment for acts done in a collective capacity; and the security to the society must depend on the care which is taken to confide the trust to proper hands, to make it their interest to execute it with fidelity, and to make it as difficult as possible for them to combine in any interest opposite to that of the public good.
So far as might concern the misbehavior of the executive in perverting the instructions, or contravening the views of the Senate, we need not be apprehensive of the want of a disposition in that body to punish the abuse of their confidence, or to vindicate their own authority. We may thus far count, upon their pride, if not upon their virtue. And so far even as might concern the corruption of leading members by whose arts and influence the majority may have been inveigled into measures odious to the community, if the proofs of that corruption should be satisfactory, the usual propensity of human nature will warrant us in concluding that there would be commonly no defect of inclination in the body to divert the public resentment from themselves by a ready sacrifice of the authors of their mismanagement and disgrace. PUBLIUS
END OF CHAPTER FIVE