 This is a LibriVox recording. All LibriVox recordings are in the public domain. For more information or to volunteer, please visit LibriVox.org. The Anti-Federalist Papers. Anti-Federalist Number 12. Letters from the Federal Farmer to the Republican. Letter Number 10. January 7, 1788. Dear Sir, it is said that our people have a high sense of freedom, possess power, property, and the strong arm, meaning I presume that the body of the people can take care of themselves, and all their rulers, and therefore particular provision in the Constitution for their security may not be essential. When I come to examine these observations they appear to me too trifling and loose to deserve a serious answer. To palliate for the smallness of the representation, it is observed that the state governments in which the people are fully represented necessarily form a part of the system. This idea ought to be fully examined. We ought to inquire if the convention have made the proper use of these essential parts, the state governments, when we are told they will stand between the arbitrary exercise of power and the people. True they may, but armless and helpless perhaps, with the privilege of making a noise when hurt. This is no more than individuals may do. Does the Constitution provide a single check for a single measure by which the state governments can constitutionally and regularly check the arbitrary measures of Congress? Congress may raise immediately 50,000 men, and 20 millions of dollars in taxes, build a navy, model the militia, etc., and all this constitutionally. Congress may arm on every point, and the state governments can do no more than an individual by petition to Congress, suggest their measures are alarming and not right. I conceive the position to be undeniable that the federal government will be principally in the hands of the natural aristocracy and the state governments principally in the hands of the democracy, the representatives of the body of the people. These representatives in Great Britain hold the purse and have a negative upon all laws. We must yield to circumstances and depart something from this plan and strike out a new medium, so as to give efficacy to the whole system, supply the wants of the union and leave the several states or the people assembled in the state legislatures, the means of defense. It has often been mentioned that the objects of Congress will be few and national and require a small representation, that the objects of each state will be many and local and require a numerous representation. This circumstance has not the weight of a feather in my mind. It is certainly unadvisable to lodge in 65 representatives and 26 senators unlimited power to establish systems of taxation, armies, navies, model the militia, and to do everything that may essentially tend soon to change. Totally, the affairs of the community and to assemble 1500 state representatives and 160 senators to make fence laws and laws to regulate the dissent and conveyance of property, the administration of justice between man and man, to appoint militia officers, and etc. It is not merely the quantity of information I contend for. Two taxing powers may be inconvenient, but the point is Congress, like the Senate of Rome, will have taxing powers and the people no check. When the power is abused, the people may complain and grow angry, so may the state governments. They may remonstrate and counteract by passing laws to prohibit the collection of congressional taxes. But these will be acts of the people, acts of sovereign power, the durnier resort unknown to the constitution, acts operating in terror, acts of resistance, and not the exercise of any constitutional power to stop or check a measure before matured. A check properly is the stopping by one branch in the same legislature, a measure proposed by the other in it. In fact, the constitution provides for the states no check, properly speaking, upon the measures of Congress. Congress can immediately enlist soldiers and apply to the pockets of the people. These few considerations bring us to the very strong distinction between the plan that operates on federal principles and the plan that operates on consolidated principles. A plan may be federal or not as to its organization. Each state may retain its vote or not. The sovereignty of the state may be represented or the people of it. A plan may be federal or not as to its operations, federal when it requires men and monies of the states, and the states as such to make laws for raising the men and monies, not federal when it leaves the state's governments out of the question and operates immediately upon the persons and property of the citizens. The first is the case with the confederation, the second with the new plan, and the first the state governments may be a check, and the last none at all. This distinction I shall pursue further hereafter, under a head before mentioned, of amendments as to internal taxes. And here I shall pursue a species of checks which writers have not often mentioned. To excuse the smallness of the representation, it is said the new Congress will be more numerous than the old one. This is not true and for the facts I refer you to my letter of the fourth instant, to the plan and confederation. Besides, there is no kind of similitude between the two plans. The confederation is a mere league of the states, and Congress is formed with the particular checks and possess the United Powers enumerated in my letter of the 25th. The new plan is totally a different thing, a national government to many purposes administered by men chosen for two, four, and six years, not recallable and among whom there will be no rotation, operating immediately in all money and military matters, on the persons of property and citizens. I think therefore that no part of the confederation ought to be adduced for supporting or injuring the new constitution. It is also said that the constitution gives no more power to Congress than the confederation respecting money and military matters, that Congress under the confederation may require men and monies to any amount, and the states are bound to comply. This is generally true, but I think I shall in a subsequent letter satisfactorily prove that the states have well founded checks for securing their liberties. I admit the force of the observation that all the federal powers by the confederation are lodged in a single assembly. However, I think much more may be said in defense of the leading principles of the confederation. I do not object to the qualifications of the electors of representatives, and I fully agree that the people ought to elect one branch. Further, it may be observed that the present Congress is principally an executive body, which ought not to be numerous, that the House of Representatives will be a mere legislative branch, and being the Democratic one ought to be numerous. It is one of the greatest advantages of a government of different branches that each branch may be conveniently made conformable to the nature of the business assigned it, and all be made conformable to the condition of the several orders of the people. After all the possible checks and limitations we can advise, the powers of the Union must be very extensive. The sovereignty of the Nation cannot produce the object in view, the defense and tranquility of the whole, without such powers, executive, and judicial. I dislike the present Congress a single assembly, because it is impossible to fit it to receive those powers. The executive and judicial powers in the nature of things ought to be lodged in a few hands, the legislature in many hands, therefore want of safety and unavoidable hasty measures out of the question. They never can all be lodged in one assembly properly. It, in its very formation, must imply a contradiction. In objection to increasing the representation, it has also been observed that it is difficult to assemble a hundred men or more without making them tumultuous and a mere mob. Reason and experience do not support this observation. The most respectable assemblies we have any knowledge of and the wisest have been those, each of which consisted of several hundred members, as the Senate of Rome, of Carthage, of Venice, the British Parliament, etc. I think I may, without hazarding much, affirm that our more numerous state assemblies and conventions have universally discovered more wisdom and as much order as the less numerous ones. There must be also a very great difference between the characters of two or three hundred men assembled from a single state, and the characters of the number or half the number assembled from all the United States. It is added that on the proposed plan the House of Representatives in fifty or a hundred years will consist of several hundred members. The plan will begin with sixty-five and we have no certainty that the number ever will be increased for this plain reason. That all the combination of interests and influence which has produced this plan and supported so far will constantly oppose the increase of the representation, knowing that thereby the government will become more free and democratic. But admitting after a few years there will be a member for each thirty thousand inhabitants, the observation is trifling. The government is in a considerable measure to take its tone from its early movements, and by means of a small representation it may in half of fifty or a hundred years get moved from its bases or at least so far as to be incapable of ever being recovered. We ought therefore on every principle now to fix the government on proper principles and fit to our present condition when the representation shall become too numerous, alter it, or we may now make provision that when the representation shall be increased to a given number that there shall be one for each given number of inhabitants. Another observation is that Congress will have no temptations to do wrong. The men that make it must be very uninformed, or suppose they are talking to children. In the first place the members will be governed by all those motives which govern the conduct of men, and have before them all the allurements of offices and temptations to establish unequal burdens before described. In the second place they and their friends probably will find it for their interest to keep up large armies, navies, salaries, and in laying adequate taxes. In the third place we have no good grounds to presume from reason or experience that it will be agreeable to their characters or views that the body of the people should continue to have power effectually to interfere in the affairs of government. But it is confidently added that Congress will not have it in their power to oppress or enslave the people. That the people will not bear it. It is supposed that Congress will act the tyrant immediately and in the face of daylight. It is not supposed Congress will adopt important measures without plausible pretenses, especially those which may tend to alarm or produce opposition. We are to consider the natural progress of things that men unfriendly to Republican equality will go systematically to work, gradually to exclude the body of the people from any share in government, first of the substance and then of the forms. The men who will have these views will not be without their agents and supporters. When we reflect that a few years ago we established Democratic republics and fixed the state governments as the barriers between Congress and the pockets of the people, what great progress has been made in less than seven years to break down those barriers and essentially to change the principles of our governments, even by the armless few. It is comarical to suppose that in 15 or 20 years to come, that much more can be performed, especially after the adoption of the Constitution, when the few will be so much better armed with power and influence to continue the struggle. Probably they will be wise enough never to alarm, but gradually prepare the minds of the people for one specious change after another, till the final object shall be obtained. Say the advocates, these are only possibilities, they are probabilities a wise people ought to guard against, and the address made use of to keep the evils out of sight and means to present them, confirm my opinion. But to obviate all objections to the proposed plan in the last resort, it is said our people will be free so long as they possess the habits of free men, and when they lose them they must receive some other forms of government. To this I shall only observe that this is very humiliating language, and can, I trust, never suit a manly people who have contended nobly for liberty and declared to the world they will be free. I have dwelt much longer than I expected upon the increasing the representation, the democratic interest in the federal system, but I hope the importance of the subject will justify my dwelling upon it. I have pursued it in a manner new, and I have found it necessary to be somewhat prolix to illustrate the point I had in view. My idea has ever been, when the democratic branch is weak and small, the body of the people have no defense and everything to fear. If they expect to find genuine political friends in kings and nobles, in great and powerful men, they deceive themselves. On the one hand, fix a genuine democratic branch in the government solely to hold the purse, and with the power of impeachment, enter proposed negative laws, cautiously limit the king and nobles or the executive in the senate, as the case may be, and the people I conceive have but little to fear and their liberties will always be secure. I think we are now arrived to a new era in the affairs of men, when the true principles of government will be more fully unfolded than here to fore, and a new world, as it were, grow up in America. In contemplating representation, the next thing is the security of elections. Before I proceed to this, I bed leave to observe that the pay of the representatives of the people is essentially connected with their interests. Congress may put the pay of the members unreasonably high, or so low as that none but the rich and opulent can attend. There are very strong reasons for supposing the latter probably will be the case, and a part of the same policy which uniformly and constantly exerts itself to transfer power from the many to the few. Should the pay be well fixed and made alterable by a Congress, with the consent of a majority of the state legislatures, perhaps, all the evils to be feared on this head might in the best practicable manner be guarded against, and proper security introduced. It is said the state legislatures fix their own pay. The answer is that Congress is not, nor can it ever be well formed on those equal principles the state legislatures are. I shall not dwell on this point, but conclude this letter with one general observation, that the checks I can tend for in the system proposed do not, in the least, any of them tend to lessen the energy of it, but giving grounds for the confidence of the people greatly to increase its real energy by ensuring their constant and hardy support. Yours, the Federal Farmer. End of Anti-Federalist No. 12 This is a LibriVox recording. All LibriVox recordings are in the public domain. For more information or to volunteer, please visit LibriVox.org. The Anti-Federalist Papers. Anti-Federalist No. 13. Letter from the Federal Farmer to the Republican. Letter 11. January 10, 1788 Dear Sir. I shall now add a few observations respecting the organization of the Senate, the manner of appointing it, and its powers. The Senate is an assembly of 26 members, two from each state, though the Senators are apportioned on the Federal plan, they will vote individually. They represent the states as bodies politic, sovereign to certain purposes. The states being sovereign and independent are all considered equal, each with the other in the Senate. In this we are governed solely by the ideal equalities of sovereignty, the federal and state governments forming one whole, and the state governments an essential part which ought always to be kept distinctly in view and preserved. I feel more disposed on reflection to acquiesce in making them the basis of the Senate and thereby to make it the interest and duty of the Senators to preserve distinct and to perpetuate the respective sovereignty they shall represent. As to the appointments of Senators, I have already observed that they must be appointed by the Legislatures by concurrent acts and each branch have an equal share of power. As I do not see any probability of amendments if advisable in these points, I shall not dwell upon them. The Senate as a legislative branch is not large, but as an executive branch quite too numerous. It is not to be presumed that we can form a genuine senatorial branch in the United States, a real representation of the aristocracy and balance in the legislature, any more than we can form a genuine representation of the people. Could we separate the aristocratical and democratical interests composed the Senate of the former and the House of Assembly of the latter, they are too unequal in the United States to produce a balance. Form them on pure principles and leave each to be supported by its real weight and connections. The Senate would be feeble and the House powerful. I say on pure principles because I make a distinction between a Senate that derives its weight and influence from a pure source, its numbers and wisdom, its extensive property, its extensive and permanent connections, and a Senate composed of a few men possessing small property, small and unstable connections that derives its weight and influence from a corrupt or pernicious source. That is merely from the power given it by the Constitution and laws to dispose of the public offices and the annexed emoluments and by those means to interest officers and the hungry expectance of office in support of its measures. I wish the proposed Senate may not partake too much of the latter description. To produce a balance and checks, the Constitution proposes two branches in the legislature, but they are so formed that the members of both must be generally the same kind of men. Men having similar interests and views, feelings and connections, men of the same grade and society, and who associate on all occasions, probably if there be any difference, the senators will be the most democratic. Senators and representatives thus circumstance as men, though convened in two rooms to make laws, must be governed generally by the same motives and views and therefore pursue the same system of politics. The partitions between the two branches will be merely those of the building in which they sit. There will not be found in them any of those genuine balances and checks among the real different interests and efforts of the several classes of men in the community we aim at. Nor can any such balances and checks be formed in the present condition of the United States in any considerable degree of perfection. But to give them the greatest degree of perfection practicable, we ought to make the Senate respectable as to numbers, the qualifications of the electors and the elected, to increase the numbers of the representatives, and so to model the elections of them as to always to draw a majority of them substantially from the body of the people. Though I conclude the senators and representatives will not form in the legislature those balances and checks which correspond with the actual state of the people, yet I approve of two branches, because we may notwithstanding derive several advantages from them. The Senate from the mode of its appointment will probably be influenced to support the state governments, and from its periods of service will produce stability in legislation while frequent elections may take place in the other branch. There is generally a degree of competition between two assemblies even composed of the same kind of men, and by this and by means of every laws passing revision in the second branch, caution, coolness and deliberation are produced in the business of making laws. By means of a democratic branch we may particularly secure personal liberty, and by means of a senatorial branch we may particularly protect property. By the division the House becomes the proper body to impeach all officers for misconduct in office and the Senate the proper court to try them, and in a country where limited powers must be lodged in the first magistrate, the Senate perhaps may be the most proper body to be found to have a negative upon him in making treaties and in managing foreign affairs. Though I agree the federal Senate in the form proposed may be useful to many purposes, and that it is not very necessary to alter the organization, modes of appointment, and powers of it in several respects, yet without alterations in others I sincerely believe it will in a very few years become the source of the greatest evils. Some of these alterations I conceive to be absolutely necessary, and some of them at least advisable. 1. By the confederation the members of Congress are chosen annually. By Article I, Section II of the Constitution, the Senators shall be chosen for six years. As the period of service must be, in a considerable degree, matter of opinion on this head, I shall only make a few observations to explain why I think it more advisable to limit it to three or four years. The people of this country have not been accustomed to so long appointments in their state governments. They have generally adopted annual elections. The members of the present Congress are chosen yearly, who, from the nature and multiplicity of their business, ought to be chosen for longer periods than the federal Senators. Men six years in office absolutely contract callous habits, and cease in too great a degree to feel their dependence and for the condition of their constituents. Senators continued in offices three or four years will be in them longer than any popular, erroneous opinion will probably continue to actuate their electors. Men appointed for three or four years will generally be long enough in office to give stability and amply to acquire political information. By a change of legislators as often as circumstances will permit, political knowledge is diffused more extensively among the people, and the attention of the electors and elected more constantly kept alive. Circumstances of infinite importance in a free country. Other reasons might be added, but my subject is too extensive to admit of my dwelling upon less material points. Two. When the confederation was formed it was considered essentially necessary that the members of Congress should at any time be recalled by their respective states. When the states should see fit and others be sent in their room. I do not think it less necessary that this principle should be extended to the members of Congress under the new constitution and especially to the Senators. I have had occasion several times to observe that let us form a federal constitution as extensively and on the best principles in our power. We must after all trust a vast deal to a few men who far removed from their constituents will administer the federal government. There is but little danger these men will feel too great a degree of dependence. The necessary and important object to be attended to is to make them feel dependent enough. Men elected for several years, several hundred miles distant from their states, possessed a very extensive powers and the means of paying themselves will not probably be oppressed with a sense of dependence and responsibility. The Senators will represent sovereignty which generally have and always ought to retain the power of recalling their agents. The principle of responsibility is strongly felt in men who are liable to be recalled and censured for their misconduct and if we may judge from experience the latter will not abuse the power of recalling their members to possess it will at least be a valuable check. It is in the nature of all delegated power that the constituents should retain the right to judge concerning the conduct of their representatives. They must exercise the power and their decision itself, their approving or disapproving that conduct implies a right, a power to continue in office or to remove from it. But whenever the substitute acts under a constitution then it becomes necessary that the power of recalling him be expressed. The reasons for lodging a power to recall are stronger as they respect the Senate than as they respect the representatives. The latter will be more frequently elected and changed of course and being chosen by the people at large it would be more difficult for the people than for the legislatures to take the necessary measures for recalling. But even the people if the powers will be more beneficial to them than injurious ought to possess it. The people are not apt to wrong a man who is steady and true to their interests. They may for a while be misled by party representations and leave a good man out of office unheard. But every recall supposes a deliberate action, an affair hearing, and no man who believes his conduct proper and the result of honest views will be less useful in his public character on account of the examination his actions may be liable to. And a man conscious of the conjury conduct ought to clearly be restrained by the apprehensions of a trial. I repeat it. It is interested combinations and factions we are particularly to guard against in the federal government. And all the rational means that can be put into the hands of the people to prevent them ought to be provided and furnished for them. Where there is a power to recall, trusty sentinels among the people or in the state legislatures will have a fair opportunity to become useful. If the members in Congress from the states join in such combinations or favor them or pursue a pernicious line of conduct, the most attentive among the people or in the state legislatures may formally charge them before their constituents. The very apprehensions of such constitutional charges may prevent many of the evils mentioned, and the recalling the members of a single state, a single senator, or representative may often prevent many more. Nor do I at present discover any danger in such proceedings, as every man who shall move for a recall will put his reputation at stake to show he has reasonable grounds for his motion. And it is not probable such motions will be made unless there be good apparent grounds for succeeding. Nor can the charge or motion be anything more than the attack of an individual or individuals unless the majority of the constituents shall she cause to go into the inquiry. Further, the circumstance of such a power, being lodged in the constituents, will tend continually to keep up their watchfulness as well as the attention and dependence of the federal senators and representatives. Three, by the confederation it is provided that no delegates shall serve more than three years in any term of six years, and thus by the forms of the government a rotation of members is produced. A like principle has been adopted in some of the states, and also in some ancient and modern republics. Whether this exclusion of a man for a given period, after he shall have served a given time, ought to be engrafted into the constitution or not, it is a question the proper decision materially depends upon the leading features of the government. Some governments are so formed as to produce a sufficient fluctuation and change of members of course. In the ordinary course of elections, proper numbers of new members are, from time to time, brought into the legislature, and a proportionate number of old ones go out, mix, and become diffused among the people. This is the case with all numerous representative legislatures, the members of which are frequently elected and constantly within the view of their constituents. This is the case with our state governments, and in them a constitutional rotation is unimportant. But in a government consisting of but a few members, elected for long periods of time, and far removed from the observation of the people, but few changes in the ordinary course of elections take place among the members. They become in some measure a fixed body, and often inattentive to the public good, callous, selfish, and the fountain of corruption. To prevent these evils and to force a principle of pure animation into the federal government, which will be formed much in this last manner mentioned, and to produce a tension, activity, and a diffusion of knowledge in the community, we ought to establish among others the principle of rotation. Even good men in office, in time, imperceptibly lose the sight of the people and gradually fall into measures prejudicial to them. It is only a rotation among the members of the federal legislature I shall contend for. Judges and officers at the heads of the judicial and executive departments are in a very different situation. Their offices and duties require the information and studies of many years for performing them in a manner advantageous to the people. These judges and officers must apply their whole time to the detailed business of their offices, and depend on them for their support. Then they always act under masters or superiors, and may be removed from office from misconduct. They pursue a certain round of executive business. Their offices must be, in all societies, confined to a few men, because but few can become qualified to fill them, and were they, by annual appointments, open to the people at large, they are offices of such a nature as to be of no service to them. They must leave these offices in the possession of the few individuals qualified to fill them, or have them badly filled. In the judicial and executive departments also, the body of the people must possess a large share of power and influence as jurors and subordinate officers, among whom there are many infrequent rotations. But in every free country the legislatures are all on a level, and legislation becomes partial whenever in practice it rests for any considerable time in a few hands. It is the true Republican principle to defuse the power of making laws among the people, and so to modify the forms of the government as to draw and turn the well-informed of every class into the legislature. To determine the propriety or impropriety of this rotation, we must take the inconveniences as well as the advantages attending it into view. On the one hand by this rotation we may sometimes exclude good men from being elected. On the other hand we guard against those pernicious connections, which usually grow up among men left to continue long periods in office. We increase the number of those who make the laws and return to their constituents, and thereby spread information and preserve a spirit of activity and investigation among the people. Hence a balance of interest and exertions are preserved, and the ruinous measures of factions rendered more impracticable. I would not urge the principle of rotation if I believed the consequence would be an uninformed federal legislature. But I have no apprehension of this in this enlightened country. The members of Congress at any one time must be but very few, compared with the respectable well-informed men in the United States. And I have no idea there will be any want of such men for members of Congress, though by a principle of rotation the Constitution should exclude from being elected for two years those federal legislators who may have served the four years immediately proceeding, or any four years in the six preceding years. If we may judge from experience and fair calculations, this principle will never operate to exclude at any one period a fifteenth apart, even of those men who have been members of Congress. Though no man can sit in Congress by the confederation more than three years in any term of six years, yet not more than three, four, or five men in any one state have been made ineligible at any one period. And if a good man happened to be excluded by this rotation, it is only for a short time. All things considered, the inconveniences of the principle must be very inconsiderable compared with the many advantages of it. It will generally be expedient for a man who has served four years in Congress to return home, mix with the people, and reside some time with them. This will tend to reinstate him in the interests, feelings, and views similar to theirs and thereby confirm him in the essential qualifications of a legislator. Even in point of information it may be observed the useful information of legislatures is not acquired merely in studies and offices and in meeting to make laws from day to day. They must learn the actual situation of the people by being among them and when they have made laws return home and observe how they operate. Thus occasionally to be among the people is not only necessary to prevent or banish the callous habits and self-interested views of office and legislatures, but to afford them necessary information and to render them useful, another valuable end is answered by it. Sympathy and the means of communication between them and their constituents is substantially promoted, so that on every principle legislatures at certain periods ought to live among their constituents. Some men of science are undoubtedly necessary in every legislature, but the knowledge generally necessary for men who make laws is a knowledge of the common concerns and particular circumstances of the people. In a Republican government seats in the legislature are highly honorable, I believe but few do and surely none ought to consider them as places of profit and permanent support. Where the people always properly attentive they would at proper periods call their lawmakers home by sending others in their room, but this is not often the case and therefore in making constitutions when the people are attentive they ought cautiously to provide for those benefits, those advantageous changes in the administration of their affairs, which they are often apt to be inattentive to in practice. On the whole to guard against the evils and to secure the advantages I have mentioned with the greatest degree of certainty we ought clearly in my opinion to increase the federal representation to secure elections on proper principles, to establish a right to recall members and a rotation among them. 4. By the article 2, section 2, treaties must be made with the advice and consent of the senate and two-thirds of those present must concur. Also with consent of the senate almost all federal officers, civil and military, must be appointed. As to treaties I have my doubts, but as to the appointments of officers I think we may clearly show the senate to be a very improper body indeed to have anything to do with them. I am not perfectly satisfied that the senate, a branch of the legislature, and court for trying impeachments ought to have a controlling power in making all treaties. Yet I confess I do not discern how a restraint upon the president in this important business can be better or more safely lodged. A power to make and conclude all treaties is too important to be vested in him alone, or in him and an executive council. Only sufficiently numerous for other purposes, and the House of Representatives is too numerous to be concerned in treaties of peace and alliance. This power is now lodged in Congress to be exercised by the consent of nine states. The federal senate, like the delegations in the present congress, will represent the states, and the consent of two-thirds of that senate will bear some similitude in the consent of nine states. It is probable the United States will not make more than one treaty on average in two or three years, and this power may always be exercised with great deliberation. Perhaps the senate is sufficiently numerous to be trusted with this power, sufficiently small to proceed with secrecy and sufficiently permanent to exercise this power with proper consistency and due deliberation. To lodge this power in a less respectable and less numerous body might not be safe. We must place great confidence in the hands that hold it, and we deceive ourselves if we give it under an idea that we can impeach to any valuable purpose the men or men who may abuse it. On a fair construction of the constitution, I think the legislature has a proper control over the president and senate in setting commercial treaties. By article one, section two, the legislature will have power to regulate commerce with foreign nations, and by article two, section two, the president, with the advice and consent of two-thirds of the senate may make treaties. These clauses must be considered together, and we ought never to make one part of the same instrument contradict another, if it can be avoided by any reasonable construction. By the first recited clause, the legislature has the power, that is, as I understand it, the sole power to regulate commerce with foreign nations, or to make all the rules and regulations respecting trade and commerce between our citizens and foreigners. By the second recited clause, the president and senate have power generally to make treaties. There are several kinds of treaties, as treaties of commerce, of peace, of alliance, and I think the words to make treaties may be consistently construed, and yet so as it shall be left to the legislature to confirm commercial treaties, they are in their nature and operation very distinct from treaties of peace and of alliance. The latter generally require security. It is but very seldom they interfere with the laws and internal police of the country. To make them is properly the exercise of executive powers, and the constitution authorizes the president and senate to make treaties, and gives the legislature no power directly or indirectly respecting these treaties of peace and alliance. As to treaties of commerce, they do not generally require secrecy. They almost always involve them in legislative powers, interfere with the laws and internal police of the country, and operate immediately on persons and property, especially in the commercial towns. They have in Great Britain usually been confirmed by parliament. They consist of rules and regulations respecting commerce and to regulate commerce, or to make regulations respecting commerce, the federal legislature by the constitution has the power. I do not see that any commercial regulations can be made in treaties that will not infringe upon this power in the legislature. Therefore I infer that the true construction is that the president and senate shall make treaties, but all commercial treaties shall be subject to be confirmed by the legislature. This construction will render the clauses consistent and make the powers of the president and senate respecting treaties much less exceptionable. Yours, the federal farmer. End of Anti-Federalist No. 13 For more information or to volunteer, please visit LibriVox.org The Anti-Federalist Papers Anti-Federalist No. 14 Letters from the Federal Farmer to the Republican Letter 12 January 12, 1788 Dear Sir On carefully examining the parts of the proposed system respecting the elections of senators and especially of the representatives, they appear to me to be both ambitious and very defective. I shall endeavor to pursue a course of reasoning which shall fairly lead to establishing the impartiality and security of elections and then point out an amendment in this respect. It is well observed by Montesquieu that in Republican governments the forms of elections are fundamental and that it is an essential part of the social compact to ascertain by whom, to whom, when and in what manner suffrages are to be given. Wherever we find the regulation of elections have not been carefully fixed by the constitution or the principles of them, we constantly see the legislatures new modifying its own form and changing the spirit of the government to answer partial purposes. By the proposed plan it is fixed that the qualifications of the electors of the federal representatives shall be the same as those of the electors of state representatives, though these vary some in the several states, the electors are fixed and designated. The qualifications of the representatives are also fixed and designated and no person under 25 years of age, not an inhabitant of the state and not having been seven years a citizen of the United States can be elected. The clear inference is that all persons 25 of age and upwards, inhabitants of the state and having been at any period or periods, seven years citizens of the United States may be elected representatives. They have a right to be elected by the constitution and the electors have a right to choose them. This is fixing the federal representation as to the elected on a very broad basis. It can be no objection to the elected that they are Christians, Pagans, Mohammedans or Jews, that they are of any color, rich or poor, convict or not. Hence men may be elected who cannot be electors. Gentlemen who have commenced so large upon the wisdom of the constitution for excluding from being elected young men under a certain age would have done well to have recollected that it positively makes Pagans, Convicts, and etc. eligible. The people make the constitution, they exclude a few persons by certain descriptions from being elected and all not thus excluded are clearly admitted. Now a man 25 years old and inhabitant of the state and having been a citizen of the state seven years though afterwards convicted may be elected because not within any of the excluding causes the same of a beggar, an absentee, etc. The right of the electors and eligibility of the elected being fixed by the people they cannot be narrowed by the state legislatures or Congress. It is established that a man being among other qualifications and inhabitant of the state shall be eligible. Now it would be narrowing the right of the people to confine them in their choice to a man and inhabitant of a particular county or district in the state. Hence it follows that neither the state legislatures nor Congress can establish district elections, that is, divide the state into districts and confine the electors of each district to the choice of a man resident in it. If the electors could be thus limited in one respect, they might in another be confined to choose a man of a particular religion, of certain property, etc., and thereby half of the persons made eligible by the constitution be excluded. All laws therefore for regulating elections must be made on the broad basis of the constitution. Next we may observe that representatives are to be chosen by the people of the state. What is a choice by the people of the state? If each given district in it choose one, will that be a choice within the meaning of the constitution? Must the choice be by plurality of votes or a majority? In connection with these questions we must take the fourth section, Article I, where it is said, the state legislatures shall prescribe the times, places, and manner of holding elections, but Congress may make or alter such regulations. By this clause I suppose the electors of different towns and districts in the state may be assembled in different places to give their votes. But when so assembled by another clause they cannot by Congress or the state legislatures be restrained from giving their votes for any man and inhabitant of the state, and qualified as to age, and having been a citizen at the time required. But I see nothing in the constitution by which to decide whether the choice shall be by plurality. But I see nothing in the constitution by which to decide whether the choice shall be by a plurality or a majority of votes. This, in my mind, is by far the most important question in the business of elections. When we say a representative shall be chosen by the people, it seems to imply that he shall be chosen by a majority of them, but states which use the same phraseology in this respect practice both ways. I believe a majority of the states choose by pluralities, and I think it probable the Federal House of Representatives will decide that a choice of its members by pluralities is constitutional. A man who has the most votes is chosen in Great Britain. It is this, among other things, that gives every man fair play in the game of influence and corruption. I believe that not much stress was laid upon the objection that Congress may assemble the electors at some out of the way place. However, the advocates seem to think they obtain a victory of no small glory and importance when they can show, with some degree of color, that the evils is rather a possibility than a probability. When I observed that the elections were not secured on proper principles, I had an idea of far more probable and extensive evils, secret mischiefs, and not-so-glaring transgressions, the exclusion of proper district elections, and of the choice by a majority. It is easy to perceive that there is an essential difference between elections by pluralities and by majorities, between choosing a man in a small or limited district and choosing a number of men promiscuously by the people of a large state. And while we are almost secure of judicious, unbiased elections by majorities in such districts, we have no security against deceptions, influence, and corruption in states or large districts in electing by pluralities. When a choice is made by a plurality of votes, it is often made by a very small part of the electors who attend and give their votes, when by a majority, never by so few as half of them. The partialities and improprieties attending the former mode may be illustrated by a case that lately happened in one of the middle states. Several representatives were to be chosen by a large number of inhabitants, compactly settled, among whom there were four or five thousand voters. Previous to the time of election a number of lists of candidates were published to divide and distract the voters in general. About half a dozen men of some influence who had a favorite list to carry met several times, fixed their list and agreed to hand it about among all who could probably be induced to adopt it and to circulate the other lists among their opponents to divide them. The poll was opened and several hundred electors suspecting nothing attended and put in their votes. The list of the half dozen was carried and men were found to be chosen, some of whom were very disagreeable to a large majority of the electors. Though several hundred electors voted, men on that list were chosen who had only forty-five, forty-three, forty-four, etc. votes each. They had a plurality, that is, more than any other persons. The votes generally were scattered and those who made even a feeble combination succeeding in placing highest upon the list. Several very unthought of and very unpopular men. This evil could never have happened in a town where all the voters meet in one place and consider no man as elected unless he have a majority or more than half of all the votes. Clear it is that the men on whom thus but a small part of the votes are bestowed cannot possess the confidence of the people or have any considerable degree of influence over them. But as partial as liable to secret influence and corruption as the choice by pluralities may be, I think we cannot avoid it without essentially increasing the federal representation and adopting the principles of district elections. There is but one case in which the choice by the majority is practicable, and that is where districts are formed of such moderate extent that the electors in each can conveniently meet in one place and at one time and proceed to the choice of a representative. When if no man have a majority or more than half of all the votes, the first time, the voters may examine the characters of those brought forward, accommodate, and proceed to repeat their votes till someone shall have that majority. This, I believe, cannot be a case under the Constitution proposed in its present form. To explain my ideas, take Massachusetts for instance. She is entitled to eight representatives. She has 370,000 inhabitants, about 46,000 to one representative. If the elections be so held that the electors throughout the state meet in their several towns or places, and each elector puts in his vote for eight representatives, the votes of the electors will 99 times in 100 be so scattered that on collecting the votes from the several towns or places, no men will be found, each of whom have a majority of the votes, and therefore the election will not be made. On the other hand, there may be such a combination of votes that in thus attempting to choose eight representatives, the electors may choose even 15. Suppose 10,000 voters attend and give their votes. Each voter will give eight votes, one for each of the eight representatives. In the whole, 80,000 votes will be given. Eight men, each having 5,001 votes, in the whole, 40,008 will have a majority and be chosen. 39,092 votes will be bestowed on other men, and if they all be bestowed on seven men, they may each have a considerable majority and also be chosen. This indeed is a very rare combination, but the bestowing all the votes pretty equally upon nine, ten, or eleven men and choosing them all is an event too probable not to be guarded against. If Massachusetts be divided into eight districts, each having about 46,000 inhabitants and each district directed to choose one representative, it will be found totally impracticable for the electors of it to meet in one place, and when they meet in several towns and places in the district, they will vote for different men, and 19 times in 20 so scatter their votes that no one man will have a majority of the whole and be chosen. We must therefore take the man who has the most votes, whether he has three quarters, one quarter, or one-tenth part of the whole. The inconveniences of scattering votes will be increased as men not of the district, as well as those that are in it, may be voted for. I might add many other observations to evince the superiority and solid advantages of proper district elections in a choice by majority, and to prove that evils attend the contrary practice. These evils we must encounter as the Constitution now stands. I see no way to fix elections on a proper footing and to render tolerably equal and secure the federal representation, but by increasing the representation. So as to have one representative for each district in which the electors may conveniently meet in one place, and at one time, and choose by a majority. Perhaps this might be affected pretty generally by fixing one representative for each 12,000 inhabitants, dividing or fixing the principles for dividing the states into proper districts, and directing the electors of each district to the choice by a majority of some men having a permanent interest in residence in it. I speak of a representation tolerably equal because I am still of opinion that it is impracticable in this extensive country to have a federal representation sufficiently democratic or substantially drawn from the body of the people. The principles just mentioned may be the best practical ones we can expect to establish. By thus increasing the representation, we not only make it more democratical and secure, strengthen the confidence of the people in it, and thereby render it more nervous and energetic, but it will also enable the people essentially to change for the better the principles and forms of elections. To provide for the people's wandering throughout the state for a representative may sometimes enable them to elect a more brilliant or enabler man than by confining them to districts. But generally this latitude will be used to pernicious purposes, especially connected with the choice by plurality. When a man in the remote part of the state perhaps obnoxious at home but ambitious and intriguing may be chosen to represent the people in another part of the state far distant and by a small part of them, or by a faction, or by a combination of some particular description of men among them. This has been long the case in Great Britain. It is the case in several of the states. Nor do I think that such pernicious practices will be merely possible in our federal elections, but highly probable. By establishing district elections we exclude none of the best men from being elected, and we fix what, in my mind, is of far more importance than brilliant talents. I mean a sameness as to residents and interests. By the representative and his constituents, and by the election by a majority, he is sure to be the man the choice of more than half of them. Though it is impossible to put elections on a proper footing as the Constitution stands, yet I think regulations respecting them may be introduced of considerable service. It is not only therefore important to inquire how they may be made, but also what body has the controlling power over them. An intelligent, free, and unbiased choice of representatives by the people is of the last importance. We must then carefully guard against all combinations, secret arts, and influence to the contrary. Various expedients have been adopted in different countries and states to affect genuine elections. As the Constitution now stands, I confess I do not discover any better than those adopted in Connecticut in the choice of counselors before mentioned. The federal representatives are to be chosen every second year, an odd mode of expression. In all the states except South Carolina, the people, the same electors meet twice in that time to elect state representatives. For instance, let the electors in Massachusetts, when they meet to choose state representatives, put in their votes for eight federal representatives, the number that the state may choose. Merely for distinction's sake, we may call these the votes of nomination. And return a list of the men voted for in the several towns and places to the legislature, or some proper body. Let this list be immediately examined and published, and some proper number, say 15 or 20, who shall have the most votes upon the list, be sent out to the people. And when the electors shall meet the next year to choose state representatives, let them put in their votes for the eight federal representatives, confining their votes to the proper number so sent out, and let the eight highest of those thus voted for in the two votes, which we may call by way of distinction votes of election, be the federal representatives. Thus a choice may be made by the people once in two years without much trouble and expense, and I believe with some degree of security. As soon as the votes of nomination shall be collected and made known, the people will know who are voted for, and who are candidates for their votes the succeeding year. The electors will have near a year to inquire into their characters and politics, and also into any undue means, if any were taken, to bring any of them forward. And such as they find to be the best men and agreeable to the people they may vote for in giving the votes of election. By these means the men chosen will ultimately always have a majority or near a majority of the votes of the electors who shall attend and give their votes. The mode itself will lead to the discovery of truth and of political characters and to prevent private combinations by rendering them in a great measure of no effect. As the choice is to be made by the people, all combinations and checks must be confined to their votes. No supplying the want of a majority by the legislatures, as in Massachusetts in the choice of senators, can be admitted. The people generally judge right when informed and in giving their votes the second time they may always correct their former errors. I think we are all sufficiently acquainted with the progress of elections to see that the regulations as to times, places, and the manner merely of holding elections may, under the Constitution, easily be made useful or injurious. It is important then to inquire who has the power to make regulations and who ought to have it. By the Constitution the state legislatures shall prescribe the times, places, and manner of holding elections. But Congress may make or alter such regulations. Power in Congress merely to alter those regulations made by the states could answer no valuable purposes. The states might make and Congress alter them ad infinitum. And when the state should cease to make or should annihilate its regulations, Congress would have nothing to alter. But the states shall make regulations and Congress may make such regulations as the clause stands. The true construction is that when Congress shall see fit to regulate the times, places, and manner of holding elections, Congress may do it and state regulations on this head must cease. For if state regulations could exist after Congress should make a system of regulations, there would or might be two incompatible systems of regulations relative to the same subject. It has been often urged that Congress ought to have power to make these regulations, otherwise the state legislatures, by neglecting to make provision for election or by making improper regulations, may destroy the general government. It is very improbable that any state legislatures will adopt measures to destroy the representation of its own constituents in Congress. Especially when the state must, represented in Congress or not, pay its proportion of the expense of keeping up the government and even of the representatives of the other states and be subject to their laws. Should the state legislatures be disposed to be negligent or to combine to break up Congress, they have a very simple way to do it as the Constitution now stands. They have only to neglect to choose senators or appoint the electors of the President and Vice President. There is no remedy provided against these last evils, nor is it to be presumed that if a sufficient number of state legislatures to break up Congress should, by neglect or otherwise, attempt to do it, that the people who yearly elect those legislatures would elect under the regulations of Congress. These and many other reasons must evince that it was not merely to prevent an annihilation of the federal government that Congress has the power to regulate elections. It has been urged also that the state legislatures choose the federal senators, one branch, and may injure the people who choose the other by improper regulations. That therefore Congress, in which the people will immediately have won the representative branch, ought to have power to interfere in behalf of the people and rectify such improper regulations. The advocates have said much about the opponents dwelling upon possibilities, but to suppose the people will find it necessary to appeal to Congress to restrain the oppressions of the state legislatures is supposing a possibility indeed. Can any man in his senses suppose that the state legislatures, which are so numerous as to almost be the people themselves, all branches of them depending yearly for the most part on the elections of the people will abuse them in regulating federal elections and make it proper to transfer the power to Congress, a body, one branch of which is chosen once in six years by these very legislatures, and the other, biennially, and not half so numerous as even the senatorial branches in those legislatures? Senators are to be chosen by the state legislatures. Where there are two branches, the appointment must be, I presume, by a concurrent resolution, in passing which, as in passing all other legislative acts, each branch will have a negative. This will give the senatorial branch just as much weight in the appointment as the Democratic. The two branches form a legislature only when acting separately, and therefore, whenever the members of the two branches meet, mix, and vote individually in one room for making an election, it is expressly so directed by the constitutions. If the Constitution, by fixing the choice to be made by the legislatures, has given each branch an equal vote, as I think it has, it cannot be altered by any regulations. On the whole, I think, all general principles respecting elections ought to be carefully established by the Constitution, as the qualifications of the electors and of elected. The number of the representatives and the inhabitants of each district called on to choose a man from among themselves by a majority of votes. Leaving it to the legislature only so to regulate from time to time the extent of the districts so as to keep the representatives proportionate to the number of inhabitants in the several parts of the country, and so far as regulations as to elections cannot be fixed by the Constitution, they ought to be left to state legislatures. They coming far nearest the people themselves, at most Congress ought to have the power to regulate elections only where a state shall neglect to make them. Yours, the Federal Farmer. End of Anti-Federalist No. 14 This is a LibriVox recording. All LibriVox recordings are in the public domain. For more information or to volunteer, please visit LibriVox.org. The Anti-Federalist Papers Anti-Federalist No. 15 Letters from the Federal Farmer to the Republican Letter No. 13 January 14, 1788 Dear Sir In this letter I shall further examine two clauses in the proposed Constitution respecting appointments to office. By Article II, Section II, the President shall nominate and by and with the advice and consent of the Senate shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States. Whose appointments and etc. By Article I, Section VI, no senator or representatives shall, during the term for which he was elected, be appointed to any civil office under the authority of the United States, which shall have been created or the emoluments whereof shall have been in Greece during such time. Thus the President must nominate and the Senate concur in the appointment of all federal officers, civil and military, and the senators and representatives are made ineligible only to the few civil offices above mentioned. To preserve the federal government pure and uncorrupt, peculiar precautions relative to appointments of office will be found highly necessary from the very forms and character of the government itself. The honors and emoluments of public offices are the objects in all communities, that ambitious and necessitous men never lose sight of. The honest, the modest, and the industrious part of the community content themselves generally with their private concerns. They do not solicit those offices which are the perpetual source of cabals, intrigues, and contests among men of the former description. Men embarrassed, intriguing, and destitute of modesty. Even in the most happy country and virtuous government, corrupt influence in appointments cannot always be avoided. Perhaps we may boast of our share of virtue as a people, and if we are only sufficiently aware of the influence, biases, and prejudices common to the affairs of men, we may go far towards guarding against the effects of them. We all agree that a large standing army has a strong tendency to depress and enslave the people. It is equally true that a large body of selfish, unfeeling, unprincipled civil officers has a like or a more pernicious tendency to the same point. Military and especially civil establishments are the necessary appendages of society. They are deductions from productive labor and substantial wealth in proportion to the number of men employed in them. They are oppressive where unnecessarily extended and supported by men unfriendly to the people. They are injurious when too small and supported by men too timid and dependent. It is of the last importance to decide well upon the necessary number of officers to fill them with proper characters and to establish efficiently the means of punctually punishing those officers who may do wrong. To discern the nature and extent of this power of appointments we need only to consider the vast number of officers necessary to execute a national system in this extensive country. The prodigious biases, the hopes and expectations of officers have on their conduct and the influence public officers have among the people. These necessary officers as judges, states attorneys, clerks, sheriffs, etc. in the federal supreme and inferior courts, admirals and generals and subordinate officers in the army and navy, ministers, consuls and etc. sent to foreign countries, officers in the federal city, in the revenue, post office departments and etc. must probably amount to several thousands without taking into view the very inferior ones. There can be no doubt that the most active men in politics in and out of congress will be the foremost candidates for the best of these offices. The man or men who shall have the disposal of them beyond dispute will have by far the greatest share of active influence in the government. But appointments must be made and who shall make them? What modes of appointments will be attended with the fewest inconveniences? Is the question. The senators and representatives of the lawmakers create all offices and whenever they see fit they impeach and try officers for misconduct. They ought to be in session but part of the year and as legislators they must be too numerous to make appointments perhaps a few very important ones accepted. In contemplating the necessary officers of the union there appear to be six different modes in which in whole or in part the appointments may be made. One by the legislature, two by the president and senate, three by the president and an executive council, four by the president alone, five by the heads of the departments and six by the state governments. Among these in my opinion there may be an advantageous distribution of the powers of appointments. In considering the legislatures in relation to the subject before us two interesting questions particularly arise. One whether they ought to be eligible to any offices whatever during the period for which they shall be elected to serve and even for some time afterwards. And two how far they ought to participate in the power of appointments. As to the first it is true that legislatures in foreign countries or in state governments are not generally made ineligible to office. There are good reasons for it. In many countries the people have gone on without ever examining the principles of government. There have been but few countries in which the legislatures have been a particular set of men periodically chosen. But the principle reason is that which operates in the several states these the legislatures are so frequently chosen and so numerous compared with the number of offices for which they can reasonably consider themselves as candidates that the choice of any individual members being chosen is too small to raise his hopes or expectations or to have any considerable influence on his conduct. Among the state legislatures one man in twenty may be appointed in some committee business for a month or two. But on a fair computation not one man in a hundred sent to the state legislatures is appointed to any permanent office of profit. Directly the reverse of this will evidently be found true in the federal administration. Throughout the United States about four federal senators and 33 representatives averaging the elections will be chosen in a year. These few men may rationally consider themselves as the fairest candidates for a very great number of lucrative offices. Which must become vacant in the year and pretty clearly a majority of the federal legislatures if not excluded will be mere expectance for public offices. I need not to do further arguments to establish a position so clear. I need only call to your recollection my observation in a former letter wherein I endeavored to show the fallacy of the argument that the members must return home and mix with the people. It is said that men are governed by interested motives and will not attend as legislators unless they can in common with others be eligible to offices of honor and profit. This will undoubtedly be the case with some men but I presume only with such men as never ought to be chosen legislators in a free country. An opposite principle will influence good men virtuous patriots and generous minds and will esteem it a higher honor to be selected as the guardians of a free people. They will be satisfied with the reasonable compensation for their time and service nor will they wish to be within the vortex of influence. The valuable effects of this principle of making legislators ineligible to offices for a given time has never yet been sufficiently attended to or considered. I am assured that it was established by the convention after a long debate and afterwards on an unfortunate change of a few members altered. Could the federal legislators be excluded in the manner proposed I think it would be an important point gained as to themselves they would be left to act much more for motives consistent with the public good. In considering the principle of rotation I had occasion to distinguish the condition of a legislator from that of a mere official man. We acquire certain habits feelings and opinions as men and citizens others and very different ones from a long continuance in office. It is therefore a valuable observation in many bills of rights that rulers ought frequently to return and mix with the people. A legislature in a free country must be numerous. It is in some degree a periodical assemblage of the people frequently formed. The principal officers in the executive and judicial departments must have more permanency in office. Hence it may be inferred that the legislature will remain longer uncorrupted and virtuous longer congenial to the people than the officers of those departments. If it is not therefore in our power to preserve Republican principles for a series of ages in all the departments of government we may a long while preserve them in a well formed legislature. To this end we ought to take every precaution to prevent legislatures from becoming mere office men. Choose them frequently, make them recallable, establish rotation among them, make them ineligible to offices and give them as small a share as possible in the disposal of them. Add to this a legislature in the nature of things is not formed for the detailed business of appointing officers. There is also generally an impropriety in the same men's making offices and filling them, and still a greater impropriety in their impeaching in trying the officers they appoint. For these and other reasons I conclude the legislature is not a proper body for the appointment of officers in general. But having gone through with the different modes of appointment I shall endeavor to show what share in the distribution of power of appointments the legislature must from necessity rather than from propriety take. Officers may be appointed by the president and senate. This mode for general purposes is clearly not defensible. All the reasoning touching the legislature will apply to the senate. The senate is a branch of the legislature which ought to be kept pure and unbiased. It has a part in trying officers for misconduct and in creating offices. It is too numerous for a council of appointment or to feel any degree of responsibility. If it has an advantage of the legislature in being the least numerous it has a disadvantage in being the more unsafe. Add to this the senate is to have a share in the important branch of power respecting treaties. Further this sexennial senate of 26 members representing 13 sovereign states will not in practice be found a body to advise but to order and dictate in fact and the president will be a mere primus interparis. The consequence will be that the senate with these efficient means of influence will not only dictate probably to the president but manage the house as the constitution now stands and under appearances of a balance system in reality govern alone. There may also by this undue connection be particular periods when a very popular president may have a very improper influence upon the senate and upon the legislature. A council of appointment must very probably sit all or near in the year. The senate will be too important and too expensive a body for this. By giving the senate directly or indirectly an undue influence over the representatives and the improper means of feathering embarrassing or controlling the president or executive. We give the government in the very outset a fatal and pernicious tendency to that middle undesirable point aristocracy. When we as a circumstance not well to be avoided admit the senate to a share of power in making treaties and managing foreign concerns. We certainly progress full far enough towards this most undesirable point in a government. For with this power also I believe we must join that of appointing ambassadors other foreign ministers and consuls being powers necessarily connected. In every point of view in which I can contemplate the subject it appears extremely clear to me that the senate ought not generally to be a council of appointment. The legislature after the people is the great fountain of power and ought to be kept as pure and uncorrupt as possible from the hankering's biases and contagion of offices. Then the streams issuing from it will be less tainted with those evils. It is not merely the number of impeachments that are to be expected to make public officers honest and attentive in their business. A general opinion must pervade the community that the house, the body to impeach them for misconduct is disinterested and ever watchful for the public good. And that the judges who shall try impeachments will not feel a shadow of bias. Under such circumstances men will not dare transgress who not deterred by such accusers and judges would repeatedly misbehave. We have already suffered many in extensive evils owing to the defects of confederation and not providing against the misconduct of public officers. When we expect the law to be punctually executed not one man in ten thousand will disobey it. It is the probable chance of escaping punishment that induces men to transgress. It is one important mean to make the government just and honest, rigidly and constantly to hold before the eyes of those who execute it, punishment, and dismission from office for misconduct. These are principles no candid man who has just ideas of the essential features of a free government will controvert. They are to be sure at this period called visionary, speculative, and anti-governmental. But in the true style of courtiers, selfish politicians, and flatterers of despotism, discerning republican men of both parties see their value. They are said to be of no value by empty, boasting advocates for the Constitution who, by their weakness and conduct, in fact, injure its cause much more than most of its opponents. From their high sounding promises men are led to expect a defense of it and to have their doubts removed. When a number of long pieces appear, they, instead of the defense and etc., they expected to see nothing but a parade of names, volumes written without ever coming to the point, cases quoted between which and ours, there is not the least similitude, and partial extracts made from histories and governments merely to serve a purpose. Some of them, like the true admirers of royal and senatorial robes, would fain prove that nations who have thought like free men and philosophers about government, and endeavour to be free, have often been the most miserable. If a single riot in the course of five hundred years happened in a free country, if a salary or the interest of a public or private debt was not paid at the moment, they seem to lay more stress upon these trifles. For trifles they are in a free and happy country, than upon the oppressions of despotic government for ages together. As to the lengthy writer in New York you mention, I have attentively examined his pieces. He appears to be a candid, good-hearted man, to have a good style, and some plausible ideas. But when we carefully examine his pieces to see where the strength of them lies, when the mind endeavours to fix on those material points which ought to be the essence of all volumnious productions, we do not find them. The writer appears constantly to move on a smooth surface. The part of his work, like the parts of a cob house, are all equally strong and equally weak, and all like those works of the boys without an object. His pieces appear to have but little relation to the great question whether the Constitution is fitted to the condition and character of this people or not. But to return. Three. Officers may be appointed by the President and an Executive Council when we have assigned to the legislature the appointment of a few important officers, to the President and Senate the appointment of those concerned in managing foreign affairs, to the state governments the appointment of militia officers and authorize the legislature by legislative acts to assign to the presidency alone, to the heads of the departments and courts of law respectively the appointment of many inferior officers. We shall then want to lodge somewhere a Residium of Power, a power to appoint all other necessary officers as established by law. The fittest receptacle for this Residuary Power is clearly, in my opinion, the first Executive Magistrate, advised and directed by an Executive Council of seven or nine members, periodically chosen from such proportional districts as the Union may for the purpose be divided into. The people may give their votes for twice the number of counselors wanted and the federal legislature take twice the number also from the highest candidates and from among them choose the seven or nine or number wanted. Such a council may be rationally formed for the business of appointments, whereas the Senate created for other purposes never can be. Such councils form a feature in some of the best executives in the Union. They appear to be essential to every first magistrate who may frequently want advice. To authorize the president to appoint his own council would be unsafe. To give the sole appointment of it to the legislature would confer an undue and unnecessary influence upon that branch. Such a council for a year would be less expensive than the Senate for four months. The president may nominate and the counselors always be made responsible for their advice and opinions by recording and signing whatever they advise to be done. They and the president, to many purposes, will properly form an independent executive branch, have an influence unmixed with the legislative which the executive never can have while connected with a powerful branch of the legislature. And yet the influence arising from the power of appointments be less dangerous because in less dangerous hands, hands properly adequate to possess it. Whereas the Senate from its character and situation will add a dangerous weight to the power itself and be far less capable of responsibility than the council proposed. There is another advantage. The residium of power as to appointments which the president and council need possess is less than the president and senators must have. And as such a council would render the sessions of the Senate unnecessary many months in the year. The expenses of the government would not be increased if they would not be lessened by the institution of such a council. I think I need not dwell upon this article as the fitness of this mode of appointment will perhaps amply appear by the evident unfitness of the others. Four. Offices may be appointed by the president alone. It has been almost universally found when a man has been authorized to exercise power alone. He has never done it alone. But generally aided his determinations by and rested on the advice and opinions of others. And it often happens when advice is wanted. The worst men, the most interested creatures, the worst advice is at hand. Obtrude themselves and misdirect the mind of him who would be informed and advised. It is very seldom we see a single executive depend on accidental advice and assistance. But each single executive has almost always formed itself a regular council to be assembled and consulted on important occasions. This proves that a select council of some kind is by experience generally found necessary and useful. But in a free country the exercise of any considerable branch of power ought to be under some checks and controls. As to this point I think the Constitution stands well. The legislature may, when it shall deem it expedient from time to time, authorize the president alone to appoint particular inferior officers and when necessary to take back the power. His power, therefore, in this respect may always be increased or decreased by the legislature, as experience the best instructor shall direct. Always keeping him by the Constitution within certain bounds. Yours, the Federal Farmer. End of Anti-Federalist No. 15 This is a LibriVox recording. All LibriVox recordings are in the public domain. For more information or to volunteer please visit LibriVox.org The Anti-Federalist Papers Anti-Federalist No. 16 Letters from the Federal Farmer to the Republican Letter No. 14 January 17th, 1788 Dear sir, to continue the subject of appointments, officers in the fifth place may be appointed by the heads of departments or courts of law. Article II, Section II, respecting appointments, goes on. But Congress may, by law, vest the appointment of such inferior officers as they think proper in the president alone in the courts of law or in the heads of departments. The probability is, as the Constitution now stands, that the Senate, a branch of the legislature, will be tenacious of the power of appointment and much too sparingly part with a share of it to the courts of law and heads of departments. Here again the impropriety appears of the Senate's having generally a share in the appointment of officers. We may fairly presume that the judges and principal officers in the departments will be able, well informed men in their respective branches of business, that they will, from experience, be best informed as to proper persons to fill inferior offices in them, that they will feel themselves responsible for the execution of their several branches of business and for the conduct of the officers they may appoint therein. From these and other considerations I think we may infer that impartial and judicious appointments of subordinate officers will, generally, be made by the courts of law and the heads of departments. This power of distributing appointments as circumstances may require into several hands in a well-formed and disinterested legislature might be of essential service, not only in promoting beneficial appointments, but also in preserving the balance in government. A feeble executive may be strengthened and supported by placing in its hands more numerous appointments, and executive too influential may be reduced within proper bounds by placing many of the inferior appointments in the courts of law and heads of departments. Nor is there much danger that the executive will be wantonly weakened or strengthened by the legislature, by thus shifting the appointments of inferior officers, since all must be done by legislative acts, which cannot be passed without the consent of the executive or the consent of two-thirds of both branches. A good legislature will use this power to preserve the balance and perpetuate the government. Here again we are brought to our ultimatum. Is the legislature so constructed as to deserve our confidence? 6. Officers may be appointed by the state governments. By Article 1, Section 8, the respective states are authorized exclusively to appoint the militia officers. This not only lodges the appointments in proper places, but it also tends to distribute and lodge in different executive hands the powers of appointing offices, so dangerous when collected into the hands of one or a few men. It is a good general rule that the legislative, executive, and judicial powers ought to be kept distinct. But this, like other general rules, has its exceptions, and without these exceptions we cannot form a good government and properly balance its parts, and we can determine only from reason, experience, and a critical inspection of the parts of the government how far it is proper to intermix those powers. Appointments, I believe, in all mixed governments have been assigned to different hands. Some are made by the executive, some by the legislature, some by the judges, and some by the people. It has been thought advisable by the wisest nations that the legislature should so far exercise the executive and judicial powers as to appoint some officers, judge of the elections of its members, and impeach and try officers for misconduct, that the executives should have a partial share in legislation, that judges should appoint some subordinate officers and regulate so far as to establish rules for their own proceedings. Where the members of government, as the House, the Senate, the executive, and judiciary are strong and complete, each in itself the balance is naturally produced. Each party may take the powers congenial to it, and we have less need to be anxious about checks and the subdivision of powers. If, after making the deductions already alluded to from the general power to appoint federal officers, the residues shall be thought to be too large and unsafe, and to place an undue influence in the hands of the President and Council, a further deduction may be made with many advantages and perhaps with but a few inconveniences, and that is by giving the appointment of a few great officers to the legislature, as of the commissioners of the Treasury, of the comptroller, treasurer, master coiner, and some principal officers in the money department, of the sheriffs or marshals of the United States, of state's attorneys, Secretary of the Home Department and Secretary of War, perhaps of the judges of the Supreme Court, of major generals and admirals. The appointments of these officers who may be at the heads of the great departments of business in carrying into execution the national system involve them in a variety of considerations. They will not often occur and the power to make them ought to remain in safe hands. Officers of the above description are appointed by the legislatures in some of the states, and in some not. We may, I believe, presume that the federal legislature will possess sufficient knowledge and discernment to make judicious appointments. However, as these appointments by the legislature tend to increase amidst the power, to lessen the advantages of impeachments and responsibility, I would by no means contend for them any further than it may be necessary for reducing the power of the executive within the bounds of safety. To determine with propriety how extensive power the executive ought to possess relative to appointments, we must also examine the forms of it and its other powers, and these forms and other powers I shall now proceed to briefly examine. By Article II, Section I, the executive power shall be vested in a president elected for four years. By electors to be appointed from time to time, in such manner as the state legislatures shall direct. The electors to be equal in number to the federal senators and representatives, but Congress may determine the time of choosing electors, and on the day in which they shall give their votes, and if no president shall be chosen by the electors by a majority of votes, the states, as states in Congress, shall elect one of the five highest on the list for president. It is to be observed that in choosing the president, the principle of electing by a majority of votes is adopted, in choosing the vice president that of electing by a plurality. Viewing the principles and checks established in the election of a president, and especially considering the several states may guard the appointments of the electors, as they shall judge best, I confess there appears to be a judicious combination of principles and precautions. Were the electors more numerous than they will be, in case the representation be not increased, I think the system would be improved. Not that I consider the democratic character so important in the choice of the electors as in the choice of representatives. Be the electors more or less democratic, the president will be one of the very few of the most elevated characters. But there is danger that a majority of a small number of electors may be corrupted and influenced, after appointed electors, and before they give their votes, especially if a considerable space of time elapsed between the appointment and voting. I have already considered the advisory council in the executive branch. There are two things further in the organization of the executive, to which I would particularly draw your attention. The first, which, is a single executive. I confess I approve, the second, by which any person from period to period may be re-elected president, I think very exceptionable. Each state in the union has uniformly shown its preference for a single executive, and generally directed the first executive magistrate to act in certain cases by the advice of an executive council. Reason and the experience of enlightened nations seem justly to assign the business of making laws to numerous assemblies and the execution of them principally to the direction and care of one man. Independent of practice, a single man seems to be peculiarly well-circumstanced to superintend the execution of laws with discernment and decision. With promptitude and uniformity, the people usually point out a first man. He is to be seen in civilized as well as uncivilized nations, in republics as well as in other governments. In every large collection of people, there must be a visible point serving as a common center in the government, towards which to draw their eyes and attachments. The constitution must fix a man or a congress of men superior in the opinion of the people. To the most popular men in the different parts of the community, else the people will be apt to divide and follow their respective leaders. Aspiring men, armies, and navies have not often been kept in tolerable order by the decrees of a senate or an executive council. The advocates for lodging the executive power in the hands of a number of equals as an executive council say that much wisdom may be collected in such a council, and that it will be safe, but they agree that it cannot be so prompt and responsible as a single man. They admit that such a council will generally consist of the aristocracy and not stand so indifferent between it and the people as a first magistrate. But the principal objection made to a single man is that when possessed of power he will be constantly struggling for more, disturbing the government, and encroaching on the rights of others. It must be admitted that men from the monarch down to the porter are constantly aiming at power and importance, and this propensity must be constantly guarded against in the forms of the government. Adequate powers must be delegated to those who govern, and our security must be in limiting, defining, and guarding the exercise of them, so that those given shall not be abused or made use of for openly or secretly seizing more. Why do we believe this abuse of power peculiar to a first magistrate? Is it because in the wars and contests of men one man has often established his power over the rest? Or are men naturally fond of accumulating powers in the hands of one man? I do not see any similitude between the cases of those tyrants who have sprung up in the midst of wars and tumults and the cases of limited executives in established governments. Nor shall we, on careful examination, discover much likeness between the executives in Sweden, Denmark, Holland, etc., which have from time to time increased their powers and become more absolute, and the executives whose powers are well ascertained and defined and which remain by the Constitution only for a short and limited period in the hands of any one man or family. A single man or family can long and effectually direct its exertions to one point. There may be many favorable opportunities in the course of a man's life to seize on additional powers, and many more where powers are hereditary, and there are many circumstances favorable to usurpations where the powers of the man or family are undefined, and such as often may be unduly extended before the people discover it. If we examine history attentively, we shall find that such exertions, such opportunities, and such circumstances as these have attended all the executives which have usurped upon the rights of the people and which appear originally to have been in some degree limited. Emitting that moderate and even well-defined powers, long in the hands of the same man or family, will probably be unreasonably increased, it will not follow that even extensive powers placed in the hands of a man only for a few years will be abused. The Roman consuls and Carthidaginians' sephets possessed extensive powers while in office, but being annually appointed they but sell them if ever abused them. The Roman dictators often possessed absolute power while in office, but usually being elected for short periods of time, know one of them for ages usurped upon the rights of the people. The kings of France, Spain, Sweden, Denmark, et cetera have become absolute merely from the encroachments and abuse of power made by the nobles. As to kings and limited monarchs, generally history furnishes many more instances in which their powers have been abridged or annihilated by the nobles or people or both, than in which they have been increased or made absolute. And in almost all the latter cases we find the people were inattentive and fickle, and evidently were not born to be free. I am the more particular respecting this subject because I have heard many mistaken observations relative to it. Men of property and even men who hold powers for themselves in posterity have too much to lose, wantonly to hazard a shock of the political system. The game must be large and the chance of winning great to induce them to risk what they have for the uncertain prospect of gaining more. Our executive may be altogether elective and possess no power, but as the substitute of the people and that well limited and only for a limited time. The great object is, in a republican government, to guard effectually against perpetuating any portion of power great or small in the same man or family. This perpetuation of power is totally uncongenial to the true spirit of republican governments. On the one hand, the first executive magistrate ought to remain in office so long as to avoid instability in the execution of the laws. On the other, not so long as to enable him to take any measures to establish himself. The convention, it seems, first agreed that the president should be chosen for seven years and never after to be eligible. Whether seven years is a period too long or not is rather matter of opinion, but clear it is that this mode is infinitely preferable to the one finally adopted. When a man shall get the chair, who may be re-elected from time to time, for life, his greatest object will be to keep it, to gain friends and votes at any rate to associate some favorite son with himself to take the office after him. When he shall have any prospect of continuing the office in himself and family, he will spare no artifice, no address, and no exertions to increase the powers and importance of it. The servile supporters of his wishes will be placed in all offices and tools constantly employed to aid his views and sound his praise. A man so situated will have no permanent interest in the government to lose, by contests and convulsions in the state, but always much to gain, and frequently the seducing and flattering hope of succeeding. If we reason at all on the subject, we must irresistibly conclude that this will be the case with nine-tenths of the presidents. We may have, for the first president, and perhaps one in a century or two afterwards, if the government should withstand the attacks of others, a great and good man, governed by superior motives, but these are not events to be calculated upon in the present state of human nature. One chosen to this important office for a limited period and always afterwards rendered by the Constitution ineligible will be governed by very different considerations. He can have no rational hopes or expectations of retaining his office after the expiration of a known limited time, or of continuing the office in his family as by the Constitution there must be a constant transfer of it from one man to another, and consequently from one family to another. A man will wish to be a mere cipher at the head of the government. The great object of each president then will be to render his government a glorious period in the annals of his country. When a man constitutionally retires from office, he retires without pain. He is sensible he retires because the law directs it, and not from the success of his rivals, nor with what that public disapprobation, which being left out, when eligible implies. It is said that a man knowing that, at a given period, he must quit his office, will unjustly attempt to take from the public and lay in store the means of support and splendor in his retirement. There can, I think, be but very little in this observation. The same constitution that makes a man eligible for a given period only ought to make no man eligible till he arrives to the age of forty or forty-five years. If he be a man of fortune he will retire with dignity to his estate. If not, he may, like the Roman consuls and other eminent characters in republics, find an honorable support and employment in some respectable office. A man who must, at all events, thus leave his office, will have but few or no temptations to fill its dependent offices with his tools, or any particular set of men, whereas the man constantly looking forward to his future elections and perhaps to the aggrandizement of his family will have every inducement before him to fill all places with his own props and dependence. As to public monies, the president need handle none of them, and he may always rigidly be made to account for every shilling he shall receive. On the whole it would be, in my opinion, almost as well to create a limited monarchy at once, and give some family permanent power and interest in the community, and let it have something valuable to itself to lose in convulsions in the state, and in attempts of usurpation, as to make a first magistrate eligible for life, and to create hopes and expectations in him and his family of obtaining what they have not. In the latter case, we actually tempt them to disturb the state, to foment struggles and contests by laying before them the flattering prospect of gaining much in them without risking anything. The constitution provides only that the president shall hold his office during the term of four years, that at most only implies that one shall be chosen every fourth year. It also provides that in case of the removal, death, resignation, or inability, both of the president and vice president, Congress may declare what officer shall act as president, and that such officer shall act accordingly until the disability be removed or president shall be elected. It also provides that Congress may determine the time of choosing electors, and the day on which they shall give their votes. Considering these clauses together, I submit this question. Whether in case of a vacancy in the office of president, by the removal, death, resignation, or inability of the president and vice president, and Congress should declare that a certain officer, a secretary for foreign affairs, for instance, shall act as president, and suffer such officer to continue several years, or even for his life, to act as president by omitting to appoint the time for choosing electors of another president, it would be any breach of the constitution. This appears to me to be an intended provision for supplying the office of president, not only for any remaining portion of the four years, but in cases of emergency until another president shall be elected, and that at a period beyond the expiration of the four years, we do not know that it is improbable in case a popular officer should be thus declared the acting president, but that he might continue for life, and without any violent act but merely by neglects and delays on the part of Congress. I shall conclude my observations on the organization of the legislature and executive with making some remarks, rather as a matter of amusement on the branch or partial negative in the legislation. The third branch in the legislature may answer three valuable purposes, to impede in their passage hasty and intemperate laws, to occasionally to assist the senate or people, and to prevent the legislature from encroaching upon the executive or judiciary. In Great Britain the king has a complete negative upon all laws, but he very seldom exercises it. This may be well lodged in him who possesses strength to support it, and whose family has independent and hereditary interests and powers, rights and prerogatives in the government, to defend, but in a country where the first executive officer is elected and has no rights, but in common with the people, a partial negative in the legislation, as in Massachusetts and New York, is in my opinion clearly best. In the former state as being before observed, it is lodged in the governor alone. In the latter, in the governor, chancellor and judges of the supreme court, the new constitution lodges it in the president. This is simply a branch of legislative power, and has in itself no relation to executive or judicial powers. The question is, in what hands ought it to be lodged, to answer the questions mentioned the most advantageously? The prevailing opinion seems to be in favor of vesting it in the hands of the first executive magistrate. I will not say this opinion is ill-founded. The negative, in one case, is intended to prevent hasty laws not supported and revised by two-thirds of each of the two branches. In the second, it is to aid the weaker branch, and in the third, to defend the executive and judiciary. To answer the question, we ought therefore to be collected in the hands which hold this negative firmness, wisdom, and strength. The very object of the negative is occasional opposition to the two branches. By lodging it in the executive magistrate, we give him a share in making the laws which he must execute. By associating judges with him, as in New York, we give them a share in making the laws upon which they must decide as judicial magistrates. This may be for excluding judges. However, the negative in New York is certainly well calculated to answer its great purposes. The governor and judges united must possess more firmness and strength, more wisdom and information than either alone, and also more of the confidence of the people. And as to the balance among the departments, why should the executive alone hold the scales and the judicial be left defenseless? I think the negative in New York is found at the bottom of the list. We see it there frequently and wisely put upon the measures of the two branches, whereas in Massachusetts it is hardly ever exercised, and the governor, I believe, has often permitted laws to pass to which he had substantial objections, but did not make them. He, however, it is to be observed, is annually elected. Yours, the Federal Farmer. End of Anti-Federalist Number 16.