10 April 1788
When great and extraordinary powers are vested in any man, or body of men,
which in their exercise, may operate to the oppression of the people, it is
of high importance that powerful checks should be formed to prevent the
abuse of it.
Perhaps no restraints are more forcible, than such as arise from
responsibility to some superior power. -- Hence it is that the true policy
of a republican government is, to frame it in such manner, that all persons
who are concerned in the government, are made accountable to some superior
for their conduct in office. -- This responsibility should ultimately rest
with the People. To have a government well administered in all its parts, it
is requisite the different departments of it should be separated and lodged
as much as may be in different hands. The legislative power should be in one
body, the executive in another, and the judicial in one different from
either -- But still each of these bodies should be accountable for their
conduct. Hence it is impracticable, perhaps, to maintain a perfect
distinction between these several departments -- For it is difficult, if not
impossible, to call to account the several officers in government, without
in some degree mixing the legislative and judicial. The legislature in a
free republic are chosen by the people at stated periods, and their
responsibility consists, in their being amenable to the people. When the
term, for which they are chosen, shall expire, who will then have
opportunity to displace them if they disapprove of their conduct -- but it
would be improper that the judicial should be elective, because their
business requires that they should possess a degree of law knowledge, which
is acquired only by a regular education, and besides it is fit that they
should be placed, in a certain degree in an independent situation, that they
may maintain firmness and steadiness in their decisions. As the people
therefore ought not to elect the judges, they cannot be amenable to them
immediately, some other mode of amenability must therefore be devised for
these, as well as for all other officers which do not spring from the
immediate choice of the people: this is to be effected by making one court
subordinate to another, and by giving them cognizance of the behaviour of
all officers; but on this plan we at last arrive at some supreme, over whom
there is no power to controul but the people themselves. This supreme
controling power should be in the choice of the people, or else you
establish an authority independent, and not amenable at all, which is
repugnant to the principles of a free government. Agreeable to these
principles I suppose the supreme judicial ought to be liable to be called to
account, for any misconduct, by some body of men, who depend upon the people
for their places; and so also should all other great officers in the State,
who are not made amenable to some superior officers. This policy seems in
some measure to have been in view of the framers of the new system, and to
have given rise to the institution of a court of impeachments -- How far
this Court will be properly qualified to execute the trust which will be
reposed in them, will be the business of a future paper to investigate. To
prepare the way to do this, it shall be the business of this, to make some
remarks upon the constitution and powers of the Senate, with whom the power
of trying impeachments is lodged.
The following things may be observed with respect to the constitution of the
Senate.
1st. They are to be elected by the legislatures of the States and not by the
people, and each State is to be represented by an equal number.
2d. They are to serve for six years, except that one third of those first
chosen are to go out of office at the expiration of two years, one third at
the expiration of four years, and one third at the expiration of six years,
after which this rotation is to be preserved, but still every member will
serve for the term of six years.
3d. If vacancies happen by resignation or otherwise, during the recess of
the legislature of any State, the executive is authorised to make temporary
appointments until the next meeting of the legislature.
4. No person can be a senator who has not arrived to the age of thirty
years, been nine years a citizen of the United States, and who is not at the
time he is elected an inhabitant of the State for which he is elected.
The apportionment of members of Senate among the States is not according to
numbers, or the importance of the States; but is equal. This, on the plan of
a consolidated government, is unequal and improper; but is proper on the
system of confederation -- on this principle I approve of it. It is indeed
the only feature of any importance in the constitution of a confederated
government. It was obtained after a vigorous struggle of that part of the
Convention who were in favor of preserving the state governments. It is to
be regretted, that they were not able to have infused other principles into
the plan, to have secured the government of the respective states, and to
have marked with sufficient precision the line between them and the general
government.
The term for which the senate are to be chosen, is in my judgment too long,
and no provision being made for a rotation will, I conceive, be of dangerous
consequence.
It is difficult to fix the precise period for which the senate should be
chosen. It is a matter of opinion, and our sentiments on the matter must be
formed, by attending to certain principles. Some of the duties which are to
be performed by the senate, seem evidently to point out the propriety of
their term of service being extended beyond the period of that of the
assembly. Besides as they are designed to represent the aristocracy of the
country, it seems fit they should possess more stability, and so continue a
longer period than that branch who represent the democracy. The business of
making treaties and some other which it will be proper to commit to the
senate, requires that they should have experience, and therefore that they
should remain some time in office to acquire it. -- But still it is of equal
importance that they should not be so long in office as to be likely to
forget the hand that formed them, or be insensible of their interests. Men
long in office are very apt to feel themselves independent [and] to form and
pursue interests separate from those who appointed them. And this is more
likely to be the case with the senate, as they will for the most part of the
time be absent from the state they represent, and associate with such
company as will possess very little of the feelings of the middling class of
people. For it is to be remembered that there is to be a federal city, and
the inhabitants of it will be the great and the mighty of the earth. For
these reasons I would shorten the term of their service to four years. Six
years is a long period for a man to be absent from his home, it would have a
tendency to wean him from his constituents.
A rotation in the senate, would also in my opinion be of great use. It is
probable that senators once chosen for a state will, as the system now
stands, continue in office for life. The office will be honorable if not
lucrative. The persons who occupy it will probably wish to continue in it,
and therefore use all their influence and that of their friends to continue
in office. -- Their friends will be numerous and powerful, for they will
have it in their power to confer great favors; besides it will before long
be considered as disgraceful not to be re-elected. It will therefore be
considered as a matter of delicacy to the character of the senator not to
return him again. -- Every body acquainted with public affairs knows how
difficult it is to remove from office a person who is [has?] long been in
it. It is seldom done except in cases of gross misconduct. It is rare that
want of competent ability procures it. To prevent this inconvenience I
conceive it would be wise to determine, that a senator should not be
eligible after he had served for the period assigned by the constitution for
a certain number of years; perhaps three would be sufficient. A farther
benefit would be derived from such an arrangement; it would give opportunity
to bring forward a greater number of men to serve their country, and would
return those, who had served, to their state, and afford them the advantage
of becoming better acquainted with the condition and politics of their
constituents. It farther appears to me proper, that the legislatures should
retain the right which they now hold under the confederation, of recalling
their members. It seems an evident dictate of reason, that when a person
authorises another to do a piece of business for him, he should retain the
power to displace him, when he does not conduct according to his pleasure.
This power in the state legislatures, under confederation, has not been
exercised to the injury of the government, nor do I see any danger of its
being so exercised under the new system. It may operate much to the public
benefit.
These brief remarks are all I shall make on the organization of the senate.
The powers with which they are invested will require a more minute
investigation.
This body will possess a strange mixture of legislative, executive and
judicial powers, which in my opinion will in some cases clash with each
other.
1. They are one branch of the legislature, and in this respect will possess
equal powers in all cases with the house of representatives; for I consider
the clause which gives the house of representatives the right of originating
bills for raising a revenue as merely nominal, seeing the senate be
authorised to propose or concur with amendments.
2. They are a branch of the executive in the appointment of ambassadors and
public ministers, and in the appointment of all other officers, not
otherwise provided for; whether the forming of treaties, in which they are
joined with the president, appertains to the legislative or the executive
part of the government, or to neither, is not material.
3. They are part of the judicial, for they form the court of impeachments.
It has been a long established maxim, that the legislative, executive and
judicial departments in government should be kept distinct. It is said, I
know, that this cannot be done. And therefore that this maxim is not just,
or at least that it should only extend to certain leading features in a
government. I admit that this distinction cannot be perfectly preserved. In
a due ballanced government, it is perhaps absolutely necessary to give the
executive qualified legislative powers, and the legislative or a branch of
them judicial powers in the last resort. It may possibly also, in some
special cases, be adviseable to associate the legislature, or a branch of
it, with the executive, in the exercise of acts of great national
importance. But still the maxim is a good one, and a separation of these
powers should be sought as far as is practicable. I can scarcely imagine
that any of the advocates of the system will pretend, that it was necessary
to accumulate all these powers in the senate.
There is a propriety in the senate's possessing legislative powers; this is
the principal end which should be held in view in their appointment. I need
not here repeat what has so often and ably been advanced on the subject of a
division of the legislative power into two branches -- The arguments in
favor of it I think conclusive. But I think it equally evident, that a
branch of the legislature should not be invested with the power of
appointing officers. This power in the senate is very improperly lodged for
a number of reasons -- These shall be detailed in a future number.
Brutus.