 This is a LibriVox recording. All LibriVox recordings are in the public domain. For more information or to volunteer, please visit LibriVox.org. The Federalist Papers Federalist No. 63 by James Madison The Senate continued. For the Independent Journal, Saturday, March 1, 1788. To the People of the State of New York A fifth Decideratum 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, then 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 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 were used by foreign nations or even by the sister states. Whilst it can scarcely be doubted that if the concurrence of a select and stable body had been necessary, a regard to national character alone would have prevented the calamities under which that misguided people is now laboring. I add, as a sixth defect the want, in some important cases, of a due responsibility in the government of the people arising from that frequency of elections which in other cases produces this responsibility. This remark will, perhaps, appear not only new but paradoxical, it must nevertheless be acknowledged when explained to be as undeniable as it is important. Responsibility, in order to be reasonable, must be limited to objects within the power of the responsible party, and in order to be effectual, must relate to operations of that power of which a ready and proper judgment can be formed by the constituents. The objects of government may be divided into two general classes, the one depending on measures which have singly an immediate and sensible operation, the other depending on a succession of well-chosen and well-connected measures, which have a gradual and perhaps unobserved operation. The importance of the latter description to the collective and permanent welfare of every country needs no explanation, and yet it is evident that an assembly elected for so short a term as to be unable to provide more than one or two links in a chain of measures on which the general welfare may essentially depend, ought not to be answerable for the final result any more than a steward or tenant engaged for one year could be justly made to answer for places or improvements which could not be accomplished in less than half a dozen years, nor is it possible for the people to estimate the share of influence which their annual assemblies may respectively have on events resulting from the mixed transactions of several years. It is sufficiently difficult to preserve a personal responsibility in the members of a numerous body for such acts of the body as have an immediate, detached and palpable operation on its constituents. The proper remedy for this defect must be an additional body in the legislative department which, having sufficient permanency to provide for such objects as require a continued attention and a chain 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 defence to the people against their own temporary errors and delusions. As the cool and deliberate sense of the community ought in all governments and actually will in all free governments ultimately prevail over the views of its rulers, so there are particular moments in public affairs when the people, stimulated by some irregular passion or some illicit advantage or misled by the artful misrepresentations of interested men, may call for measures which they themselves will afterwards be the most ready to lament and condemn. In these critical moments how salutary will be the interference of some temperate and respectable body of citizens in order to check the misguided career and to suspend the blow meditated by the people against themselves until reason, justice and truth can regain their authority over the public mind. What bitter anguish would not the people of Athens have often escaped if their government had contained so provident a safeguard against the tyranny of their own passions? Popular liberty might then have escaped the indelible reproach of decreeing to the same citizens the hemlock on one day and statues on the next. It may be suggested that a people spread over an extensive region cannot, like the crowded inhabitants of a small district, be subject to the infection of violent passions or to the danger of combining in pursuit of unjust measures. I am far from denying that this is a distinction of peculiar importance. I have, on the contrary, endeavored in a former paper to show that it is one of the principal recommendations of a confederated republic. At the same time this advantage ought not to be considered as superseding the use of auxiliary precautions. It may even be remarked that the same extended situation which will exempt the people of America from some of the dangers incident to lesser republics would expose them to the inconvenience of remaining for a longer time under the influence of those misrepresentations which the combined industry of interested men may succeed in distributing among them. It adds no small weight to all these considerations to recollect that history informs us of no long-lived republic which had not a senate. Sparta, Rome, and Carthage are, in fact, the only states to whom that character can be applied. In each of the two firsts 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 distinguished 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 reasonings contained in the former papers will have shown that I am disposed neither to deny its existence nor to undervalue its importance. I feel the less restraint therefore in observing that the position concerning the ignorance of the ancient governments on the subject of representation is by no means precisely true in the latitude commonly given to it. Without entering into a disquisition which here would be misplaced I will refer to a few known facts in support of what I advance. In the most pure democracies of Greece many of the executive functions were performed not by the people themselves but by officers elected by the people and representing the people in their executive capacity. Prior to the reform of Solon Athens was governed by nine Archons annually elected by the people at large. The degree of power delegated to them seems to be left in great obscurity. Subsequent to that period we find an assembly first of four and afterwards of six hundred members annually elected by the people and partially representing them in their legislative capacity since they were not only associated with the people in the function of making laws but had the exclusive right of originating legislative propositions to the people. The Senate of Carthage, also whatever might be its power or the duration of its appointment appears to have been elective by the suffrages of the people. Similar instances might be traced in most if not all the popular governments of antiquity. Lastly, in Sparta we meet with the FRI and in Rome with the tribunes. Two bodies, indeed small in numbers but annually elected by the whole body of the people and considered as the representatives of the people almost in their plenipotentiary capacity. The Cosmi of Crete were also annually elected by the people and have been considered by some authors as an institution analogous to those of Sparta and Rome with this difference only that in the election of that representative body the right of suffrage was communicated to a part only of the people. From these facts to which many others might be added it is clear that the principle of representation was neither unknown to the ancients nor wholly overlooked in their political constitutions. The true distinction between these and the American governments lies in the total exclusion of the people in their collective capacity from any share in the latter and not in the total exclusion of 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. An 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 the latter and that the former rather than the latter are apparently most to be apprehended by the United States but a more particular reply may be given. Before such a revolution can be affected the Senate it is to be observed must in the first place corrupt itself must next 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 co-equal 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 aposite example the Senate of that state is elected as the federal Senate will be indirectly by the people and for a term less by one year only than the federal Senate. It is distinguished also by the remarkable prerogative of filling up its own vacancies within the term of its appointment and at the same time is not under the control of any such rotation as is provided for the federal Senate. There are some other lesser distinctions which would expose the former to colorable objections that do not lie against the latter. If the federal Senate therefore really contained the danger which has been so loudly proclaimed some symptoms at least of a like danger ought by this time to have been betrayed by the Senate of Maryland but no such symptoms have appeared. On the contrary the jealousies at first entertained by men of the same description with those who view with terror the correspondent part of the federal Constitution have been gradually extinguished by the progress of the experiment and the Maryland Constitution is daily deriving from the salutary operation of this part of it a reputation in which it will probably not be rivaled 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 for two years and by the whole body of the people is elected for seven years and in very great proportion by a very small proportion of the people. Here unquestionably ought to be seen in full display the aristocratic usurpations and tyranny which are at some future period to be exemplified in the United States. Unfortunately however for the anti-federal argument the British history informs us that this hereditary assembly has not been able to defend itself against the continual encroachments of the House of Representatives and that it no sooner lost the support of the monarch than it was actually crushed by the weight of the popular branch. As far as antiquity can instruct us on this subject its examples support the reasoning which we have employed. In Sparta the FON the annual representatives of the people were found an overmatch for the Senate for life continually gained on its authority and finally drew all power into their own hands. The tribunes of Rome who were the representatives of the people prevailed it is well known in almost every contest with the Senate for life and in the end gained the most complete triumph over it. The fact is the more remarkable as unanimity was required in every act of the tribunes even after their number was augmented to ten. It proves the irresistible force possessed by that branch of a free government which has the people on its side. To these examples might be added that of Carthage whose Senate, according to the testimony of Polybius, instead of drawing all power into its vortex had, at the commencement of the Second Punic War lost almost the whole of its original portion. Besides the conclusive evidence resulting from this assemblage of facts that the Federal Senate will never be able to transform itself by gradual usurpations into an independent and aristocratic body, we are warranted in believing that if such a revolution should ever happen from causes which the foresight of man cannot guard against, the House of Representatives with the people on their side will at all times be able to bring back the Constitution to its primitive form and principles. Against the force of the immediate representatives of the people nothing will be able to maintain even the constitutional authority of the Senate but such a display of enlightened policy and attachment to the public good as will divide with that branch of the legislature the affections and support of the entire body of the people themselves. Publius End of Federalist Number 63 This is a LibriVox recording. All LibriVox recordings are in the public domain. For more information or to volunteer, please visit LibriVox.org The Federalist Papers Federalist Number 64 by John Jay The Powers of the Senate from The Independent Journal Wednesday, March 5th, 1788 to the People of the State of New York It is a just and not a new observation that enemies to particular persons and opponents to particular measures seldom confine their censures to such things only in either as are worthy of blame unless on this principle it is difficult to explain the motives of their conduct who condemn the proposed Constitution in the aggregate and to the treat with severity some of the most unexceptionable articles in it. The second section gives power to the President by and with the advice and consent of the Senate to make treaties provided two-thirds of the Senators present concur. The power of making treaties is an important one especially as it relates to war peace and commerce and it should not be delegated in such a mode and with such precautions as will afford the highest security that it will be exercised by men the best qualified for the purpose and in the manner most conducive to the public good. The convention appears to have been attentive to both these points they have directed the President to be chosen by select bodies of electors to be deputed by the people for that express purpose and they have committed to the Senators to the State Legislatures. This mode has in such cases vastly the advantage of elections by the people in their collective capacity where the activity of parties deal taking the advantage of the sub-pineness, the ignorance and the hopes and fears of the unwary and uninterested often places men in office by the votes of a small proportion of the electors as the select assemblies for choosing the State Legislatures who appoint the Senators will in general be composed of the most enlightened and respectable citizens there is reason to presume that their attention and their votes will be directed to those men only who have become the most distinguished by their abilities and virtue and in whom the people perceive just grounds for confidence. The constitution manifests very particular attention to this object by excluding men under thirty-five from the first office and those under thirty from the second it confines the electors to men of whom the people have had time to form a judgment and with respect to whom they will not be liable to be deceived by those brilliant appearances of genius and patriotism which like transient meteors sometimes mislead as well as dazzle. If the observation be well founded that wise kings will always be served by able ministers it is fair to argue that as an assembly of select electors possess, in a greater degree than kings, the means of extensive and accurate information relative to men and characters, so will their appointments bear at least equal marks of discretion and discernment. The inference which naturally results from these considerations is this, that the President and Senators so chosen will always be of the number of those who best understand our national interests whether considered in relation to the several states or to foreign nations who are best able to promote those interests and whose reputation for integrity inspires and merits confidence with such men the power of making treaties may be safely lodged. Although the absolute necessity of system in the conduct of any business is universally known and acknowledged yet the high importance of it and national affairs has not yet become sufficiently impressed on the public mind. They who wish to commit the power under consideration to a popular assembly composed of members constantly coming and going in quick succession seem not to recollect that such a body must necessarily be inadequate to the attainment of those great objects which require to be steadily contemplated in all their relations and circumstances and which can only be approached and achieved by measures which not include talents but also exact information and often much time are necessary to concert and to execute. It was wise therefore in the convention to provide not only that the power of making treaties should be committed to able and honest men but also that they should continue in place a sufficient time to become perfectly acquainted with our national concerns and to form and introduce a system for the management of them. The duration prescribed is such as will give them an opportunity of greatly extending their political information and of rendering their accumulating experience more and more beneficial to their country. Nor has the convention discovered less prudence in providing for the frequent elections of senators in such a way as to obviate the inconvenience of periodically transferring those great affairs entirely to new men, for by leaving a considerable residue of the old ones in place uniformity and order as well as a constant succession of official information will be preserved. There are a few who will not admit that the affairs of trade and navigation should be regulated by a system cautiously formed and steadily pursued and that both our treaties and our laws should correspond with and be made to promote it. It is of much consequence that this correspondence and conformity be carefully maintained and they who assent to the truth of this position will see and confess that it is well provided for by making concurrence of the Senate necessary both to treaties and to laws. It seldom happens in the negotiation of treaties of whatever nature but that perfect secrecy and immediate dispatch are sometimes requisite. These are cases where the most useful intelligence may be obtained if the persons be relieved from apprehensions of discovery. Those apprehensions will operate on those persons whether they are actuated by mercenary or friendly motives and their doubtless are many of both descriptions who would rely on the secrecy of the President but who would not confide in that of the Senate and still less in that of a large popular assembly. The convention have done well therefore in so disposing of the power of making treaties that although the President must informing them act by the advice and consent of the Senate yet he will be able to manage the business of intelligence in such a manner as prudence may suggest. They who have turned their attention to the affairs of men must have perceived that there are tides in them tides very irregular in their duration strength and direction and seldom found to run twice exactly in the same manner or measure to discern and to profit by these tides and national affairs is the business of those who preside over them and they who have had much experience on this head inform us that their frequently are occasions when days, nay even when hours are precious, the loss of a battle, the death of a prince, the removal of a minister or other circumstances intervening to change the present posture and aspect of affairs may turn the most favorable tide into a course opposite to our wishes. As in the field, so in the cabinet, there are moments to be seized as they pass and they who preside in either should be left in capacity to improve them. So often and so essentially have we here to force suffered from the want of secrecy and despatch that the constitution would have been inexcusably defective if no attention had been paid to those objects. Those matters which in negotiations usually require the most secrecy and the most despatch are those preparatory and auxiliary measures which are not otherwise important in a national view than as they tend to facilitate the attainment of the objects of the negotiation. For these the president will find no difficulty to provide and should any circumstance occur which requires the advice and consent of the senate, he may at any time convene them. Thus we see that the constitution provides that our negotiations for treaties shall have every advantage which can be derived from talents, information, integrity and deliberate investigations on the one hand and from secrecy and despatch on the other. But to this plan as to most others that have ever appeared objections are contrived and urged. Some are displeased with it not on account of any errors or defects in it but because as the treaties when are to have the force of laws they should be made only by men invested with legislative authority. These gentlemen seem not to consider that the judgments of our courts and the commissions constitutionally given by our governor are as valid and as binding on all persons whom they concern as the laws passed by our legislature. All constitutional acts of power whether in the executive or in the judicial department have as much obligation as if they proceeded from the legislature and therefore whatever name be given to the power of making treaties or however obligatory they may be when made certain it is that the people may with much propriety commit the power to a distinct body from the legislature, the executive or the judicial. It surely does not follow that because they have given the power of making laws to the legislature that therefore they should likewise give the power to do every other act of sovereignty by which the citizens are to be bound and affected. Others, though content that treaties should be made in the mode proposed are averse to their being the supreme laws of the land. They insist and profess to believe that treaties like acts of assembly should be repealable at pleasure. This idea seems to be new and peculiar to this country but new errors as well as new truths that often appear. These gentlemen would do well to reflect that a treaty is only another name for a bargain and that it would be impossible to find a nation who would make any bargain with us which should be binding on them absolutely but on us only so long and so far as we may think proper to be bound by it. They who make laws may without doubt amend or repeal them and it will not be disputed that they who make treaties may alter but still let us not forget that treaties are made not by only one of the contracting parties but by both and consequently that as the consent of both was essential to their formation at first so must it ever afterwards be to alter or cancel them. The proposed constitution therefore has not in the least extended the obligation of treaties they are just as binding and just as far beyond the lawful reach of legislative acts now as they will be at any future period or under any form of government. However useful jealousy may be in republics yet when like bile in the natural it abounds too much in the body politic the eyes of both become very liable to be deceived by the delusive appearances which that malady casts on surrounding objects. From this cause probably proceed the fears and apprehensions of some that the president and senate may make treaties without an equal eye to the interests of all states. Others suspect that two-thirds will oppress the remaining third and ask whether those gentlemen are made sufficiently responsible for their conduct whether if they act corruptly they can be punished and if they make disadvantageous treaties how are we to get rid of those treaties. As all the states are equally represented in the senate and by men the most able and the most willing to promote the interests of their constituents they will all have an equal degree of influence in that body especially while they continue to be careful in appointing proper persons and to insist on their punctual attendance. In proportion as the United States assume a national form and a national character so will the good of the whole be more and more an object of attention and the government must be a weak one indeed if it the good of the whole can only be promoted by advancing the good of each of the parts or members which compose the whole. It will not be in the power of the president and senate to make any treaties by which they and their families and estates will not be equally bound unaffected with the rest of the community and having no private interests distinct from that of the nation they will be under no temptations to neglect the latter. As to corruption the case is not supposable. He must either have been very unfortunate in his intercourse with the world or possess a heart very susceptible of such impressions who can think it probable that the president and two-thirds of the senate will ever be capable of such unworthy conduct. The idea is too gross and too invidious to be entertained but in such a case if it should ever happen the treaty so obtained from us would like all other fraudulent contracts be null and void by the law of nations. With respect to their responsibility it is difficult to conceive how it could be increased. Every consideration that can influence the human mind such as honour, oaths, reputation, conscience, the love of country and family affections and attachments afford security for their fidelity. In short as the constitution has taken the utmost care that they shall be men of talents and integrity we have reason to be persuaded that the treaties they make will be as advantageous as all circumstances considered could be made and so far as the fear of punishment and disgrace can operate that motive to good behaviour is amply afforded by the article on the subject of impeachments. End of Federalist number 64 All LibriVox recordings are in the public domain. For more information or to volunteer please visit LibriVox.org The Federalist Papers Federalist number 65 by Alexander Hamilton The powers of the senate continued from the New York packet Friday March 7th 1788 to the people of the state of New York. The remaining powers which the plan of the convention allots to the senate in a distinct capacity are comprised in their participation with the executive in the appointment to offices and in their judicial character as a court for the trial of impeachments. As in the business of appointments the executive will be the principal agent the provisions relating to it will most properly be discussed in the examination of that department. We will therefore conclude this head with a view of the judicial character of the senate. A well constituted court for the trial of impeachments is an object not more to be desired than difficult to be obtained in a government wholly elective. The subjects of its jurisdiction are those offenses which proceed from the misconduct of public men or in other words from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated political as they relate chiefly to injuries done immediately to the society itself. The prosecution of them for this reason will seldom fail to agitate the passions of the whole community and to divide it into parties more or less friendly or inimical to the accused. In many cases it will connect itself with the pre-existing factions and will enlist all their animosities, partialities, influence and interest on one side or 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 least hasty in condemning that opinion and will be most inclined to allow due weight to the arguments 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 powers of originatingly 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 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 still confidence enough in its own situation to preserve, unawed and uninfluenced the necessary impartiality between an individual accused and the representatives of the people, his accusers? Could the Supreme Court have been relied upon as answering this description? It is much to be doubted whether the members of that tribunal would at all times be endowed with so eminent a portion of fortitude as would be called for 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 would only be avoided if at all by rendering that tribunal more numerous than would consist with a reasonable attention to economy. The necessity of a numerous court for the trial of impeachments is equally dictated by the nature of the proceeding. This can never be tied down by such strict rules either in the delineation of the offense by the prosecutors or in the construction of it by the judges, as in common cases serve to limit the discretion of courts in favor of personal security. There will be no jury to stand between the judges who are to pronounce the sentence of the law and the party who is to receive or suffer it. The awful discretion which a court of impeachments must necessarily have to doom to honor or to infamy the most confidential and the most distinguished characters of the community forbids the commitment of the trust to a small number of persons. These considerations seem alone sufficient to authorize a conclusion that the Supreme Court would have been an improper substitute for the Senate as a court of impeachments. There remains a further consideration which will not a little strengthen this conclusion. It is this. The punishment which may be the consequence of conviction upon impeachment is not to terminate the chastisement of the offender after having been sentenced to a perpetual ostracism from the esteem and confidence and honors and emoluments of his country. He will still be liable to prosecution and punishment in the ordinary course of law. Would it be proper that the persons who had disposed of his fame and his most valuable rights as a citizen in one trial should, in another trial, for the same offense be also the disposers of his life and his fortune, would there not be the greatest reason to apprehend an 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 may 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 a state 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, influenced by the opinions of judges. They are sometimes induced to find special verdicts which refer the main question to the decision of the court. Who would be willing to stake his life and his estate upon the verdict of a jury acting under the auspices of judges who had predetermined his guilt? Would it have been an improvement of the plan to have united the Supreme Court with the Senate in the formation of the Court of Impeachments? This union would certainly have been attended with several advantages, but would they not have been overbalanced by the signal disadvantage already stated, arising from the agency of the same judges in the double prosecution to which the offender 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 clamour 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 favour of such a plan. To some minds it will not appear a trivial objection that it could 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 a 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 one 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 opinions of a whole community in the same judgment of it, and to prevail upon one conceited projector to a renounce his infallible criterion for the fallible criterion of his more conceited neighbour? 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 and a Federalist Number 65 This is a LibriVox recording. All LibriVox recordings are in the public domain. For more information or to volunteer please visit LibriVox.org The Federalist Papers Federalist Number 66 by Alexander Hamilton Objections to the power of the Senate to set as a court for impeachments further considered. From the Independent Journal Saturday, March 8th 1788 to the People of the State of New York. 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 of action 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 the partial intermixture of those departments for special purposes, preserving them in the main, distinct and unconnected. This partial intermixture is even 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 ableist adept in political science to be an indispensable barrier against the encroachments of the latter upon the former. And it may, perhaps with no less reason be contended that the powers relating to the speechments 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 rights 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 prevalence of a factious spirit 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 this 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. 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 the 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. Footnote one in that if New Jersey also the final judiciary authority is in a branch of the legislature in New Hampshire, Massachusetts Pennsylvania and South Carolina one branch of the legislature is the court for the trial of impeachments and a footnote. 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 accountants to aristocratic. The senate it is observed is to have concurrent authority with the executive in the formation of treaties and in the appointment 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 remained 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 inquiries. The expediency of the junction of the senate with the executive in the power of appointing to offices will, I trust, be placed in a light not less satisfactory in the disquisitions under the same head. I latter 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 dread of the too great weight of the senate ought to be discarded from our reasonings. But this hypothesis, such as it was computed 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 their 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 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 a mean of influence it will be found to outweigh all 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 two indulgent judges of the conduct of men in whose political 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 offices 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 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 posed 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 towards the objects of that choice strong enough to blind them to the evidences of a guilt so extraordinary as to have induced the representatives of the nation to become its accusers. If any further arguments were necessary to events 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 on the part of the senate they may defeat one choice of the executive and oblige him to make another but they cannot themselves choose 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 its union with the executives 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 have been guilty. 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 the words 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 meditated 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 the 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 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 in the house of representatives impeach themselves? Not better, it is evident, than two-thirds of the senate might try themselves. And yet, what reason is there that a majority of the house of representatives sacrificing the interests of the society by an unjust and tyrannical act of legislation should escape with impunity more 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 provide 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. So 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 invagaled 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 themselves by a ready sacrifice of the authors of their mismanagement and disgrace. Publius End of Federalist Number 66 The Executive Department from the New York packet Tuesday, March 11th, 1788 To the people of the state of New York the constitution of the Executive Department of the proposed government claims next our attention there is hardly any part of the system which could have been attended with greater difficulty in the arrangement of it than this and there is perhaps none which has been invaded against with less candor or criticized with less judgment here the writers against the constitution seem to have taken pains to signalize their talent of misrepresentation calculating upon the aversion of the people to monarchy they have endeavored to enlist all their jealousies and apprehensions in opposition to the intended president of the united states not merely as the embryo but as the full grown progeny of that detested parent to embellish the pretended affinity they have not scrupled to draw resources even from the regions of fiction the authorities of a magistrate in few instances greater in some instances less than those of a governor of New York have been magnified into more than royal prerogatives he has been decorated with attributes superior in dignity and splendor to those of a king of Great Britain he has been shown to us with the diadem sparkling on his brow and the imperial purple flowing in his train he has been seated on a throne surrounded with minions and mistresses giving audience to the envoys of foreign potentates in all the supercilious pomp of majesty the images of asiatic despotism and voluptuousness have scarcely been wanting to crown the exaggerated scene we have been taught to tremble at the terrific visages of murdering janissaries and to blush at the unveiled mysteries of a future serelia attempts so extravagant as these to disfigure or it might rather be said to metamorphose the object render it necessary to take an accurate view of its real nature and form order as well to ascertain its true aspect and genuine appearance as to unmask the disingenuity and expose the fallacy of the counterfeit resemblances which have been so insidiously as well as industriously propagated in the execution of this task there is no man who would not find it an arduous effort either to behold with moderation or to treat with seriousness not less weak than wicked which have been contrived to pervert the public opinion in relation to the subject they so far exceed the usual though unjustifiable licenses of party artifice that even in a disposition the most candid and tolerant they must force the sentiments which favor an indulgent construction of the conduct of political adversaries to give place to a voluntary and unreserved indignation it is impossible not to bestow the imputation of deliberate imposture and deception upon the gross pretense of a similitude between a king of Great Britain and a magistrate of the character marked out for that of the president of the United States it is still more impossible to withhold that imputation from the rash and bare faced expedience employed to give success to the attempted imposition in one instance which I cite as a sample of the general spirit the temerity is preceded so far as to ascribe to the president of the United States a power which by the instrument reported is expressly allotted to the executives of the individual states I mean the power of filling casual vacancies in the senate this bold experiment upon the discernment of his countrymen has been hazarded by a writer who whatever may be his real merit has had no inconsiderable share in the applause of his party footnote C. Cato number 5 and who upon this false and unfounded suggestion has built a series of observations equally false and unfounded let him now be confronted with the evidence of the fact and let him if he be able justify or extenuate the shameful outrage he has offered to the dictates of truth and to the rules of fair dealing the second clause of the second section of the second article empowers the president of the United States to nominate and by and with the advice and consent of the senate other public ministers and consuls judges of the supreme court and all other officers of the United States whose appointments are not in the constitution otherwise provided for and which shall be established by law immediately after this clause follows another in these words the president shall have power to fill up all vacancies that may happen during the recess of the senate granting commissions which shall expire at the end of their next session it is from this last provision that the pretended power of the president to fill vacancies in the senate has been deduced a slight attention to the connection of the clauses and to the obvious meaning of the terms will satisfy us that the deduction is not even colorable the first of these two clauses it is clear only provides for appointing such officers whose appointments are not otherwise provided for in the constitution and which shall be established by law of course it cannot extend to the appointments of senators whose appointments are otherwise provided for in the constitution footnote article one section three clause one and who are established by the constitution and will not require a future law this position will hardly be contested the last of these two clauses it is equally clear cannot be understood to comprehend the power of filling vacancies in the senate for the following reasons first the relation in which that clause stands to the other which declares the general mode of appointing officers of the united states denotes it to be nothing more than a supplement to the other the purpose of establishing an auxiliary method of appointment in cases to which the general method was inadequate the ordinary power of appointment is confined to the president and senate jointly and can therefore only be exercised during the session of the senate but as it would have been improper to oblige this body to be continually in session for the appointment of officers and as vacancies might happen in their recess which it might be necessary for the public service to fill without delay the succeeding clause is evidently intended to authorize the president singly to make temporary appointments during the recess of the senate by granting commissions which shall expire at the end of their next session second if this clause is to be considered as supplementary to the one which proceeds of which it speaks must be construed to relate to the officers described in the proceeding one and this we have seen excludes from its description the members of the senate third the time within which the powers to operate during the recess of the senate and the duration of the appointments to the end of the next session of that body conspire to elucidate the sense of the provision which if it had been intended to comprehend senators would naturally have referred the temporary power of filling vacancies to the recess of the state legislatures who are to make the permanent appointments and not to the recess of the national senate who are to have no concern in those appointments and would have extended the duration and office of the temporary senators to the next session of the legislature of the state in whose representation the vacancies had happened instead of making it to expire at the end of the ensuing session of the national senate the circumstances of the body authorized to make the permanent appointments would of course have governed the modification of a power which related to the temporary appointments and as the national senate is the body whose situation is alone contemplated in the clause upon which the suggestion under examination has been founded the vacancies to which deludes can only be deemed to respect those officers in whose appointment that body has a concurrent agency with the president but last 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 the supposition destitute as it is of even the merit of plausibility must have originated in intention to deceive the people too palpable to be obscured by sophistry to atrocious to be paliated by hypocrisy I have taken the pains to select this instance of misrepresentation and to place it in a clear and strong light as an unequivocal proof of the unwarrantable arts which are practiced to prevent a fair and impartial judgment of the real merits of the constitution submitted to the consideration of the people nor have I scrupled and so flagrant a case to allow myself a severity of animadversion little congenial with the general spirit of these papers I hesitate not to submit it to the decision of any candid and honest adversary of the proposed government whether language can furnish epithets of too much disparity for so shameless and so prostitute an attempt to impose on the citizens of America Publius End of Federalist Number 67 To the people of the State of New York The mode of appointment of the Chief Magistrate of the United States is almost the only part of the system of any consequence which has escaped without severe censure or which has received the slightest mark of approbation from its opponents The most plausible of these who has appeared in print has even deigned to admit that the election of the President is well guarded I venture somewhat further and hesitate not to affirm that if the manner of it be not perfect it is at least excellent it unites in an eminent degree all the advantages the union of which was to be wished for It was desirable that the sense of the people should operate in the choice of the person to whom so important a trust was to be confided This end will be answered by a pre-established body but to men chosen by the people for the special purpose and at the particular conjuncture It was equally desirable that the immediate election should be made by men most capable of analyzing the qualities adapted to the station and acting under circumstances favorable to deliberation and to a judicious combination of all the reasons and inducements which were proper to govern in their choice A small number of persons selected by their fellow citizens from the general mass will be most likely to possess the information and discernment requisite to such complicated investigations It was also particularly desirable to afford as little opportunity as possible to tumult and disorder This evil was not least to be dreaded in the election of a magistrate who was to have so important an agency in the administration of the government as president of the United States But the precautions which have been so happily concerted in the system under consideration promise an effectual security against this mischief The choice of several to form an intermediate body of electors will be much less apt to convulse the community with any extraordinary or violent movements than the choice of one who was himself to be the final object and as the electors chosen in each state are to assemble and vote in the state in which they are chosen this detached and divided situation will expose them much less to heats and ferments which might be communicated from them to the people than if they were all to be convened at one time in one place Nothing was more to be desired than that every practicable obstacle should be opposed to cabal intrigue and corruption These most deadly adversaries of republican government might naturally have been expected to make their approaches from more than one quarter but chiefly from the desire in foreign powers to gain an improper ascendant in our councils How could they better gratify this than by raising a creature of their own to the chief magistracy of the union But the convention have guarded against all danger of this sort of most provident and judicious attention They have not made the appointment of the president to depend on any pre-existing bodies of men who might be tampered with beforehand to prostitute their votes but they have referred it in the first instance to an immediate act of the people of America to be exerted in the choice of persons for the temporary and sole purpose of making the appointment and they have excluded from eligibility to this trust all those who from situation might be suspected of too great devotion to the president in office no senator representative or other person holding a place of trust or profit under the United States can be of the numbers of the electors thus without corrupting the body of the people the immediate agents in the election will at least enter upon the task free from any sinister bias their transient existence and their detached situation already taken notice of afford a satisfactory prospect of their continuing so to the conclusion of it the business of corruption when it is to embrace so considerable a number of men requires time as well as means nor would it be found easy suddenly to embark them dispersed as they would be over 13 states in any combinations founded upon motives which though they could not properly be denominated corrupt might yet be of a nature this lead them from their duty another and no less important desideratum was that the executive should be independent for his continuance in the office on all but the people themselves he might otherwise be tempted to sacrifice his duty to the complacence for those whose favor was necessary to the duration of his official consequence this advantage will also be secured by making his reelection to depend on a special body of representatives deputed by the society for the single purpose of making the important choice all these advantages will happily combine in the plan devised by the convention which is that the people of each state shall choose a number of persons as electors equal to the number of senators and representatives of such state in the national government who shall assemble within the state and vote for some fit person as president their votes thus given are to be transmitted to the seat of national government and the person who may happen to have a majority of the whole number of votes will be the president but as a majority of the votes might not always happen to center in one man and as it might be unsafe to permit less than a majority to be conclusive it is provided that in such a contingency the house of representatives shall select out of the candidates who shall have the five highest number of votes the man who in their opinion may be best qualified for the office the process of election affords a moral certainty that the office of president will never fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications talents for low intrigue and the little arts of popularity may alone suffice to elevate a man to the first honors in a single state but it will require other talents and a different kind of merit to establish him in the esteem and confidence of the whole union or of so considerable a portion of it as would be necessary to make him a successful candidate for the distinguished office of president of the United States it will not be too strong to say that there will be a constant probability of seeing the station filled by characters preeminent for ability and virtue and this will be thought no inconsiderable recommendation of the Constitution by those who are able to estimate the share which the executive in every government must necessarily have in its good or ill administration though we cannot acquiesce in the political heresy of the poet who says for forms of government let fools contest that which is best administered is best yet we may safely pronounce that the true test of a good government is its aptitude and tendency to produce a good administration the vice president is to be chosen in the same manner with the president with this difference that the senate is to do in respect to the former what is to be done by the house of representatives in respect to the latter the appointment of an extraordinary person as vice president has been objected to as superfluous if not mischievous it has been alleged that it would have been preferable to have authorized the senate to elect out of their own body answering that description but two considerations seem to justify the ideas of the convention in this respect one is that to secure at all times the possibility of a definite resolution of the body it is necessary that the president should have only a casting vote and to take the senator of any state from his seat as senator to place him in that of president of the senate would be to exchange in regard to the state from which he came the other consideration is that as the vice president may occasionally become a substitute for the president in the supreme executive majesty all the reasons which recommend the mode of election prescribed for the one apply with great if not with equal force to the manner of appointing the other it is remarkable that in this as in most other instances the objection which is made would lie against the constitution of this state we have a lieutenant governor chosen by the people at large who presides in the senate and is the constitutional substitute for the governor in casualties similar to those which would authorize the vice president to exercise the authorities and discharge the duties of the president Publius end of federalist number 68 this is a LibriVox recording all LibriVox recordings are in the public domain for information or to volunteer please visit LibriVox.org recorded by Greg Bryant the federalist papers federalist number 69 by Alexander Hamilton the real character of the executive from the New York packet Friday March 14 1788 to the people of the state of New York I proceed now to trace the real characters of the proposed executive as they are marked out in the plan of the convention this will serve to place in a strong light the unfairness of the representations which have been made in regard to it the first thing which strikes our attention is that the executive authority with few exceptions is to be vested in a single magistrate this will scarcely however be considered as a point upon which any comparison can be grounded for if in this particular there be a resemblance to the king of Great Britain there is not less a resemblance to the grand senior to the Khan of Tartary to the man of the seven mountains or to the governor of New York that magistrate is to be elected for four years and is to be re-eligible as often as the people of the United States shall think him worthy of their confidence in these circumstances there is a total dissimilitude between him and a hereditary monarch possessing the crown as a patrimony descendable to his heirs forever but there is a close analogy between him and a governor of New York who is elected for three years and is re-eligible without limitation or intermission if we consider how much less time would be requisite for establishing a dangerous influence in a single state than for establishing a like influence throughout the United States we must conclude that a duration of four years for the chief magistrate of the Union is a degree of permanency far less to be dreaded in that office than a duration of three years for a corresponding office in a single state the President of the United States would be liable to be impeached tried and upon conviction of treason, bribery or other high crimes and misdemeanors removed from office and would afterwards be liable for prosecution and punishment under the ordinary course of law the person of the king of Great Britain is sacred and inviolable there is no constitutional tribunal to which he is amenable no punishment to which he can be subjected without involving the crisis of a national revolution in this delicate and important circumstance of personal responsibility the President of Confederated America would stand upon no better ground than a governor of New York and upon worse ground than the governors of Maryland and Delaware the President of the United States is to have power to return a bill which shall have passed the two branches of the legislature for reconsideration and the bill so returned is to become a law if upon that reconsideration it be approved by two thirds of both houses the king of Great Britain on his part has an absolute negative upon the acts of the two houses of parliament the disuse of that power for a considerable time past does not affect the reality of its existence and is to be ascribed wholly to the crowns having found the means of substituting influence to authority or the art of gaining a majority in one or the other of the two houses to the necessity of exerting a prerogative which could seldom be exerted without hazarding some degree of national agitation the qualified negative of the president differs widely from this absolute negative of the British sovereign and tallies exactly with the revisionary authority of the council of revision of this state of which the governor is a constituent part in this respect the power of the president would exceed that of the governor of New York because the former would possess singly what the latter shares with the chancellor and judges but it would be precisely the same as that of the governor of Massachusetts whose constitution as to this article seems to have been the original from which the convention have copied the president is to be the quote commander in chief of the army and navy of the united states and of the militia of the several states when called into the actual service of the united states he is to have the power to grant reprieves and pardons for offenses against the united states except in cases of impeachment to recommend to the consideration of congress such measures as he shall judge necessary and expedient to convene on extraordinary occasions both houses of the legislature or either of them and in case of disagreement between them with respect to the time of adjournment to adjourn them to such time to take care that the laws be faithfully executed and to commission all officers of the united states unquote in most of these particulars the power of the president will resemble equally that of the king of great britain and of the governor of new york the most material points of difference are these first the president will have only the occasional command of such part of the militia of the nation as by legislative provision may be called into the actual service of the union the king of great britain and the governor of new york have at all times the entire command of all the militia within their several jurisdictions in this article therefore the power of the president would be inferior to that of either the monarch or the governor secondly the president is to be commander in chief of the army and navy of the united states in this respect his authority would be nominally the same with that of the king of great britain but in substance much inferior to it it would amount to nothing more than the supreme command and direction of the military and naval forces as first general and admiral of the confederacy while that of the british king extends to the declaring of war and to the raising and regulating of fleets and armies all which by the constitution under consideration would appertain to the legislature footnote a writer in a pennsylvania paper under the signature of tamani has asserted that the king of great britain owes his prerogative as commander in chief to an annual mutiny bill the truth is on the contrary that his prerogative in this respect is immemorial and was only disputed quote contrary to all reason and precedent unquote as black stone volume one page two sixty two expresses it by the long parliament of charles the first but by the statute the thirteenth of charles the second chapter six it was declared to be in the king alone for that the sole supreme government and command of the militia within his majesty's realms and dominions and of all forces by sea and land and of all forts and places of strength ever was and is the undoubted right of his majesty and his royal predecessors kings and queens of england and that both or either house of parliament cannot nor ought to pretend to the same into footnote the governor of new york on the other hand is by the constitution of the state vested only with the command of its militia and navy but the constitutions of several of the states expressly declare their governors to be commanders in chief as well of the army as navy and it may well be a question whether those of new hampshire and massachusetts in particular do not in this instance confer larger powers upon their respective governors than could be claimed by a president of the united states thirdly the power of the president in respect to pardons would extend to all cases except those of impeachment the governor of new york may pardon in all cases even in those of impeachment except for treason and murder is not the power of the governor in this article on a calculation of political consequences greater than that of the president all conspiracies and plots against the government which have not been matured into actual treason may be screened from punishment of every kind by the interposition of the prerogative of pardoning if a governor of new york therefore should be at the head of any such conspiracy until the design had been ripened into actual hostility he could ensure his accomplices and adherents an entire impunity a president of the union on the other hand though he may even pardon treason when prosecuted in the ordinary course of law could shelter no offender in any degree from the effects of impeachment would not the prospect of a total indemnity for all the preliminary steps be a greater temptation to undertake and persevere in an enterprise against the public liberty than the mere prospect of an exemption from death and confiscation if the final execution of the design upon an actual appeal to arms should miscarry would this last expectation have any influence at all when the probability was computed that the person who was to afford that exemption might himself be involved in the consequences of the measure and might be incapacitated by his agency in it from affording the desired impunity the better to judge of this matter it will be necessary to recollect that by the proposed constitution the offensive treason is limited quote to levying war upon the united states and adhering to their enemies giving them aid and comfort unquote and that by the laws of new york it is confined within similar bounds fourthly the president can only adjourn the national legislature in the single case of disagreement about the time of adjournment the british monarch may pro-rogue or even dissolve the parliament the governor of new york may also pro-rogue the legislature at a limited time a power which in certain situations may be employed to very important purposes the president is to have power with the advice and consent of the senate to make treaties provided two-thirds of the senator's present concur the king of great britain is the sole and absolute representative of the nation in all foreign transactions he can of his own accord make treaties of peace with the alliance and of every other description it has been insinuated that his authority in this respect is not conclusive and that his conventions with foreign powers are subject to the revision and stand in need of the ratification of parliament but i believe this doctrine was never heard of until it was broached upon the present occasion every jurist footnote vaidi blackstone's commentaries page 257 publius every jurist of that kingdom and every other man acquainted with its constitution knows as an established fact that the prerogative of making treaties exists in the crown in its utmost plentitude and that the compacts entered into by the royal authority have the most complete legal validity and perfection independent of any other sanction the parliament it is true is sometimes seen employing itself in altering the existing laws to conform them to the stipulations in a new treaty and this may have possibly given birth to the imagination that its cooperation was necessary to the obligatory efficacy of the treaty but this parliamentary interposition proceeds from a different cause from the necessity of adjusting a most artificial and intricate system of revenue and commercial laws to the changes made in them by the operation of the treaty and of adapting new provisions and precautions to the new state of things to keep the machine from running into disorder in this respect therefore there is no comparison between the intended power of the president and the actual power of the British sovereign the one can perform alone what the other can do only with the concurrence of a branch of the legislature it must be admitted that in this instance the power of the federal executive would exceed that of any state executive but this arises naturally from the sovereign power which relates to treaties if the Confederacy were to be dissolved it would become a question whether the executives of the several states were not solely invested with that delicate and important prerogative the president is also to be authorized to receive ambassadors and other public ministers this though it has been a rich theme of declamation is more a matter of dignity than of authority it is a circumstance which will be without consequence in the administration of the government and it was far more convenient that it should be arranged in this manner than that there should be a necessity of convening the legislature or one of its branches upon every arrival of a foreign minister though it were merely to take the place of a departed predecessor the president is to nominate and with the advice and consent of the senate to appoint ambassadors and other public ministers judges of the supreme court and in general all officers of the united states established by law and whose appointments are not otherwise provided for by the constitution the king of great britain is emphatically and truly styled the fountain of honor he not only appoints to all offices but can create offices he can confer titles of nobility at pleasure and has the disposal of an immense number of church preferments there is evidently a great inferiority in the power of the president in this particular to that of the british king nor is it equal to that of the governor of new york if we are to interpret the meaning of the constitution of the state by the practice that has obtained under it the power of appointment is with us lodged in a council composed of the governor and four members of the senate chosen by the assembly the governor claims and has frequently exercised the right of nomination and is entitled to a casting vote in the appointment if he really has the right of nominating his authority is in this respect equal to that of the president and exceeds it a casting vote in the national government if the senate should be divided no appointment could be made in the government of new york if the council should be divided the governor can turn the scale and confirm his own nomination footnote candor however demands an acknowledgement that I do not think the claim of the governor to a right of nomination well founded yet it is always justifiable to the government till its propriety has been constitutionally questioned and independent of this claim when we take into view the other considerations and pursue them through all their consequences we shall be inclined to draw much the same conclusion publius and a footnote if we compare the publicity which must necessarily attend the mode of appointment by the president and an entire branch of the national legislature with the privacy in the mode of appointment by the governor of new york closeted in a secret apartment with at most four and frequently with only two persons and if we at the same time consider how much more easy it must be to influence the small number of which a council of appointment consists then the considerable number of which the national senate would consist we cannot hesitate to pronounce that the power of the chief magistrate of this state in the disposition of offices must in practice be greatly superior to that of the chief magistrate of the union hence it appears that except as to the concurrent authority of the president in the article of treaties it would be difficult to determine whether that magistrate would in the aggregate possess more or less power than the governor of new york and it appears yet more unequivocally that there is no pretense for the parallel which has been attempted between him and the king of great britain but to render the contrast in this respect still more striking it may be of use to throw the principal circumstances of dissimilitude into a closer group the president of the united states would be an officer elected by the people for four years the king of great britain is a perpetual and hereditary prince the one would be amenable to formal punishment and disgrace the person of the other is sacred and inviolable the one would have a qualified negative upon the acts of the legislative body the other has an absolute negative the one would have a right to command the military and naval forces of the nation the other in addition to this right possesses that of declaring war and of raising and regulating fleets and armies by his own authority the one would have a concurrent power with a branch of the legislature in the formation of treaties the other is the sole possessor of the power of making treaties the one would have a like concurrent authority in appointing to offices the other is the sole author of all appointments the one can confer no privileges whatever the other can make denizens of aliens noblemen of commoners can erect corporations with all the rights incident to corporate bodies the one can prescribe no rules concerning the commerce or currency of the nation the other is in several respects the arbiter of commerce and in this capacity can establish markets and fairs can regulate weights and measures can lay embargoes for a limited time can coin money can authorize or prohibit the circulation of foreign coin the one has no particle of spiritual jurisdiction the other is the supreme head and governor of the national church what answer shall we give to those who would persuade us that things so unlike resemble each other the same that ought to be given to those who tell us that a government the whole power of which would be in the hands of the elective and periodical servants of the people is an aristocracy a monarchy and a despotism Publius