Now, these are very kind gentlemen who insist upon doing so much good for us,whether we will or not. Idiots and maniacs ought certainly to be restrainedfrom doing themselves mischief, and ought to be compelled to that which is fortheir own good. Whether the people of America are to be considered in thislight and treated accordingly, is a question which deserves, perhaps, moreconsideration than it has yet received. A contest between the patients andtheir doctors, which are mad or which are fools, might possibly be a veryunhappy one. I hope at least that we shall be able to settle this importantbusiness without so preposterous a dispute. What then would you have us do, itmay be asked? Would you have us adopt the proposed constitution or reject it? The method I would propose is this:
The present is an active period. Europe is in a ferment breaking theirconstitutions; America is in a similar state, making a constitution. For thisvaluable purpose a convention was appointed, consisting of such as excelled inwisdom and knowledge, who met in Philadelphia last May. For my own part, I wasso smitten with the character of the members, that I had assented to theirproduction, while it was yet in embryo. And I make no doubt but every goodrepublican did so too. But how great was my surprise, when it appeared withsuch a venerable train of names annexed to its tail, to find some of the peopleunder different signatures - such as Centinel, Old Whig, Brutus, etc. - daring tooppose it, and that too with barefaced arguments, obstinate reason and stubborntruth. This is certainly a piece of the most extravagant impudence to presumeto contradict the collected wisdom of the United States; or to suppose a body,who engrossed the whole wisdom of the continent, was capable of erring. Iexpected the superior character of the convention would have secured it fromprofane sallies of a plebeian's pen; and its inherent infallibility debarred theinterference of impertinent reason or truth. It was too great an act ofcondescension to permit the people, by their state conventions, "to assentand ratify," what the grand convention prescribed to them; but to inquireinto its principles, or investigate its properties, was a presumption too daringto escape resentment. Such licentious conduct practised by the people, is astriking proof of our feeble governments, and calls aloud for the pruning knife,i. e. , the establishment of some proper plan of discipline. This the convention,in the depth of their united wisdom hath prescribed, which when established,will certainly put a stop to the growing evil. A consciousness of this, is, nodoubt, the cause which stimulates the people to oppose it with so muchvehemence. They deprecate the idea of being confined within their propersphere; they cannot endure the thought of being obliged to mind their ownbusiness, and leave the affairs of government to those whom nature hath destinedto rule. I say nature, for it is a fundamental principle, as clear as an axiom,that nature hath placed proper degrees and subordinations amongst mankind andordained a few(1) to rule, and many to obey. I am not obliged to prove thisprinciple because it would be madness in the extreme to attempt to prove a self-evident truth.
The great reason assigned, why the judges in Britain ought to becommissioned during good behavior, is this, that they may be placed in asituation, not to be influenced by the crown, to give such decisions as wouldtend to increase its powers and prerogatives. While the judges held theirplaces at the will and pleasure of the king, on whom they depended not only fortheir offices, but also for their salaries, they were subject to every undueinfluence. If the crown wished to carry a favorite point, to accomplish whichthe aid of the courts of law was necessary, the pleasure of the king would besignified to the judges. And it required the spirit of a martyr for the judgesto determine contrary to the king's will. They were absolutely dependent uponhim both for their offices and livings. The king, holding his office duringlife, and transmitting it to his posterity as an inheritance, has much strongerinducements to increase the prerogatives of his office than those who hold theiroffices for stated periods or even for life. Hence the English nation gained agreat point, in favor of liberty, when they obtained the appointment of thejudge, during good behavior. They got from the crown a concession whichdeprived it of one of the most powerful engines with which it might enlarge theboundaries of the royal prerogative and encroach on the liberties of the people.
I do not object to the judges holding their commissions during goodbehavior. I suppose it a proper provision provided they were made properlyresponsible. But I say, this system has followed the English government inthis, while it has departed from almost every other principle of theirjurisprudence, under the idea, of rendering the judges independent; which, inthe British constitution, means no more than that they hold their places duringgood behavior, and have fixed salaries . . . [the authors of the constitution]have made the judges independent, in the fullest sense of the word. There is nopower above them, to control any of their decisions. There is no authority thatcan remove them, and they cannot be controlled by the laws of the legislature. In short, they are independent of the people, of the legislature, and of everypower under heaven. Men placed in this situation will generally soon feelthemselves independent of heaven itself. Before I proceed to illustrate thetruth of these reflections, I beg liberty to make one remark. Though in myopinion the judges ought to hold their offices during good behavior, yet I thinkit is clear, that the reasons in favor of this establishment of the judges inEngland, do by no means apply to this country.
2. Officers may be appointed by the president and senate. This mode, forgeneral purposes, is clearly not defensible. All the reasoning touching thelegislature will apply to the senate. The senate is a branch of thelegislature, which ought to be kept pure and unbiased. It has a part in tryingofficers for misconduct, and in creating offices it is too numerous for acouncil of appointment, or to feel any degree of responsibility. If it has anadvantage of the legislature, in being the least numerous, it has a disadvantagein being more unsafe; add to this, the senate is to have a share in theimportant branch of power respecting treaties. Further, this sexennial senateof 26 members, representing 13 sovereign states, will not in practice be foundto be a body to advise, but to order and dictate in fact; and the president willbe a mere primus inter pares. The consequence will be that the senate, withthese efficient means of influence, will not only dictate, probably, to thepresident, but manage the house, as the constitution now stands; and underappearances of a balanced system, in reality govern alone. There may also, bythis undue connection, be particular periods when a very popular president mayhave a very improper influence upon the senate and upon the legislature. Acouncil of appointment must very probably sit all, or near all, the year. Thesenate will be too important and too expensive a body for this. By giving thesenate, directly or indirectly, an undue influence over the representatives, andthe improper means of fettering, embarrassing, or controlling the president orexecutive, we give the government in the very outset a fatal and pernicioustendency to . . . aristocracy. When we, as a circumstance not well to beavoided, admit the senate to a share of power in making treaties, and inmanaging foreign concerns, we certainly progress full far enough towards thismost undesirable point in government. For with this power, also, I believe, wemust join that of appointing ambassadors, other foreign ministers, and consuls,being powers necessarily connected. In every point of view, in which I cancontemplate this subject, it appears extremely clear to me, that the senateought not generally to be a council of appointment. The legislature, after thepeople, is the great fountain of power, and ought to be kept as pure anduncorrupt as possible, from the hankerings, biases, and contagion of offices. Then the streams issuing from it will be less tainted with those evils. It isnot merely the number of impeachments, that are to be expected to make publicofficers honest and attentive in their business. A general opinion must pervadethe community, that the house, the body to impeach them for misconduct, isdisinterested, and ever watchful for the public good; and that the judges whoshall try impeachments, will not feel a shadow of bias. Under suchcircumstances men will not dare transgress, who, not deterred by such accusersand judges, would repeatedly misbehave. We have already suffered many andextensive evils, owing to the defects of the confederation, in not providingagainst the misconduct of public officers. When we expect the law to bepunctually executed, not one man in ten thousand will disobey it. It is theprobable chance of escaping punishment that induces men to transgress. It isone important means to make the government just and honest, rigidly andconstantly to hold before the eyes of those who execute it, punishment anddismissal from office for misconduct. These are principles no candid man whohas just ideas of the essential features of a free government will controvert. They are, to be sure, at this period, called visionary, speculative andanti-governmental-but in the true style of courtiers, selfish politicians, andflatterers of despotism. Discerning republican men of both parties see theirvalue. They are said to be of no value by empty boasting advocates for theconstitution, who, by their weakness and conduct, in fact, injure its cause muchmore than most of its opponents. From their high sounding promises, men are ledto expect a defense of it, and to have their doubts removed. When a number oflong pieces appear, they, instead of the defense, etc., they expected, seenothing 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; andpartial extracts made from histories and governments, merely to serve a purpose.
To the authority of Montesquieu, I shall add that of Mr. De Lolme, whosedisquisition on government is allowed to be deep, solid, and ingenious. . . . Itis not only necessary, [says he] to take from the legislature theexecutive power which would exempt them from the laws; but they should not haveeven a hope of being ever able to arrogate to themselves that power. Toremove this hope from their expectation, it would have been proper, not only tohave previously laid down, in a declaration of rights, that these powers shouldbe forever separate and incommunicable; but the frame of the proposedconstitution should have had that separation religiously in view, through allits parts. It is manifest this was not the object of its framers; but, that onthe contrary there is a studied mixture of them in the senate as necessary toerect it into that potent aristocracy which it must infallibly produce. Inpursuit of this daring object, than which no greater calamity can be broughtupon the people, another egregious error in constitutional principles iscommitted. I mean that of dividing the executive powers between the senate andpresident. Unless more harmony and less ambition should exist between these twoexecutives than ever yet existed between men in power, or than can exist whilehuman nature is as it is, this absurd division must be productive of constantcontentions for the lead, must clog the execution of government to amischievous, and sometimes to a disgraceful degree; and if they should unhappilyharmonize in the same objects of ambition, their number and their combined powerwould preclude all fear of that responsibility, which is one of the greatsecurities of good, and restraints on bad governments. Upon these principlesMr. DeLolme has foreseen that the effect of a division of the executivepower is the establishment of absolute power in one of continual contention; he therefore lays it down, as a general rule . . . for the tranquility of the state it is necessary that the executive power should be in one. I will add, that this singlehood of the executive is indispensably necessary to effective execution, as well as to the responsibility and rectitude of him to whom it is entrusted.
The senators will represent sovereignties, which generally have, and alwaysought to retain, the power of recalling their agents. The principle ofresponsibility is strongly felt in men who are liable to be recalled andcensured for their misconduct; and, if we may judge from experience, the latterwill not abuse the power of recalling their members; to possess it will at leastbe a valuable check. It is in the nature of all delegated power, that theconstituents should retain the right to judge concerning the conduct of theirrepresentatives. They must exercise the power, and their decision itself, theirapproving or disapproving that conduct implies a right, a power to continue inoffice, or to remove from it. But whenever the substitute acts under aconstitution, then it becomes necessary that the power of recalling him beexpressed. The reasons for lodging a power to recall are stronger, as theyrespect the senate, than as they respect the representatives. The latter willbe more frequently elected, and changed of course, and being chosen by thepeople at large, it would be more difficult for the people than for thelegislatures to take the necessary measures for recalling. But even the people,if the powers will be more beneficial to them than injurious, ought to possessit. The people are not apt to wrong a man who is steady and true to theirinterests. They may for a while be misled by party representations, and leave agood man out of office unheard; but every recall supposes a deliberate decision,and a fair hearing. And no man who believes his conduct proper, and the resultof honest views, will be the less useful in his public character on account ofthe examination his actions may be liable to. A man conscious of the contraryconduct ought clearly to be restrained by the apprehensions of a trial. Irepeat it, it is interested combinations and factions we are particularly toguard against in the federal government, and all the rational means that can beput into the hands of the people to prevent them ought to be provided andfurnished for them. Where there is a power to recall, trusty sentinels amongthe people, or in the state legislatures will have a fair opportunity to becomeuseful. 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 amongthe people or in the state legislatures may formally charge them before theirconstituents. The very apprehensions of such constitutional charge may preventmany of the evils mentioned; and the recalling the members of a single state, asingle senator or representative, may often prevent many more. Nor do 1, atpresent, discover any danger in such proceedings, as every man who shall movefor a recall will put his reputation at stake, to show he has reasonable groundsfor his motion. It is not probable such motions will be made unless there begood apparent grounds for succeeding. Nor can the charge or motion be anythingmore than the attack of an individual or individuals unless a majority of theconstituents shall see cause to go into the inquiry. Further, the circumstancesof such a power being lodged in the constituents will tend continually to keepup their watchfulness, as well as the attention and dependence of the federalsenators and representatives.
But this provision is by no means sufficient to prevent an evil of thatnature. For will any reasonable man suppose - that when the legislature of anystate, who are annually chosen, are so corrupt as to break thro' that governmentwhich they have formed, and refuse to appoint time, place and manner of choosingrepresentatives - I say, can any person suppose, that a state so corrupt would notbe full as likely to neglect, or even refuse, to choose representatives at thetime and place and in the manner prescribed by Congress? Surely they would. Soit could answer no good national purpose on that account; and I have not heardany other national advantage proposed thereby.
Whether this exclusion of a man for a given period, after he shall have serveda given time, ought to be ingrafted into a constitution or not is a question,the proper decision [of which] materially depends upon the leading features ofthe government. Some governments are so formed as to produce a sufficientfluctuation and change of members; in the ordinary course of elections propernumbers of new members are from time to time brought into the legislature, and aproportionate number of old ones go out, mix, and become diffused among thepeople. This is the case with all numerous representative legislatures, themembers of which are frequently elected, and constantly within the view of theirconstituents. This is the case with our state governments, and in them aconstitutional rotation is unimportant. But in a government consisting of but afew members, elected for long periods, and far removed from the observation ofthe people, but few changes in the ordinary course of elections take place amongthe members. They become in some measure a fixed body, and often inattentive tothe public good, callous, selfish, and the fountain of corruption. To preventthese evils, and to force a principle of pure animation into the federalgovernment, which will be formed much in this last manner mentioned, and toproduce attention, activity, and a diffusion of knowledge in the community, weought to establish among others the principle of rotation. Even good men inoffice, in time, imperceptibly lose sight of the people, and gradually fall intomeasures prejudicial to them. It is only a rotation among the members of thefederal legislature I shall contend for. Judges and officers at the heads ofthe judicial and executive departments are in a very different situation. Theiroffices and duties require the information and studies of many years forperforming them in a manner advantageous to the people. These judges andofficers must apply their whole time to the detail business of their offices,and depend on them for their support. Then, they always act under masters orsuperiors, and may be removed from office for misconduct. They pursue a certainround of executive business; their offices must be in all societies confined toa few men, because but few can become qualified to fill them. And were they, byannual appointments, open to the people at large, they are offices of such anature as to be of no service to them. They must leave these offices in thepossession of the few individuals qualified to fill them, or have them badlyfilled. In the judicial and executive departments also, the body of the peoplepossess a large share of power and influence, as jurors and subordinateofficers, among whom there are many and frequent rotations. But in every freecountry the legislatures are all on a level, and legislation becomes partialwhenever, in practice, it rests for any considerable time in a few hands. It isthe true republican principle to diffuse the power of making the laws among thepeople and so to modify the forms of the government as to draw in turn the wellinformed of every class into the legislature. To determine the propriety orimpropriety of this rotation, we must take the inconveniencies as well as theadvantages attending it into view. On the one hand by this rotation, we maysometimes exclude good men from being elected. On the other hand, we guardagainst those pernicious connections, which usually grow up among men left tocontinue long periods in office. We increase the number of those who make thelaws and return to their constituents; and thereby spread information, andpreserve a spirit of activity and investigation among the people. Hence abalance of interests and exertions are preserved, and the ruinous measures ofactions rendered more impracticable. I would not urge the principle ofrotation, if I believed the consequence would be an uninformed federallegislature; 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 therespectable well informed men in the United States; and I have no idea therewill be any want of such men for members of congress, though by a principle ofrotation the constitution should exclude from being elected for two years thosefederal legislators, who may have served the four years immediately preceding,or any four years in the six preceding years. If we may judge from experienceand fair calculations, this principle will never operate to exclude at any oneperiod a fifteenth part even of those men who have been members of congress. Though no man can sit in congress by the confederation more than three years inany term of six years, yet not more than three, four, or five men in any onestate have been made ineligible at any one period. And if a good man happens tobe excluded by this rotation, it is only for a short time. All thingsconsidered, the inconveniencies of the principle must be very inconsiderablecompared with the many advantages of it. It will generally be expedient for aman 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 theinterests, feelings, and views similar to theirs, and thereby confirm in him theessential qualifications of a legislator. Even in point of information, it maybe observed, the useful information of legislators is not acquired merely instudies in offices, and in meeting to make laws from day to day. They mustlearn the actual situation of the people by being among them, and when they havemade laws, return home and observe how they operate. Thus occasionally to beamong the people, is not only necessary to prevent or banish the callous habitsand self-interested views of office in legislators, but to afford them necessaryinformation, and to render them useful. Another valuable end is answered by it,sympathy, and the means of communication between them and their constituents, issubstantially promoted. So that on every principle legislators, at certainperiods, ought to live among their constituents. Some men of science areundoubtedly necessary in every legislature; but the knowledge, generally,necessary for men who make laws, is a knowledge of the common concerns, andparticular circumstances of the people. In a republican government seats in thelegislature are highly honorable. I believe but few do, and surely none oughtto, consider them as places of profit and permanent support. Were the peoplealways properly attentive, they would, at proper periods, call their lawmakershome, by sending others in their room. But this is not often the case; andtherefore, in making constitutions, when the people are attentive, they oughtcautiously to provide for those benefits, those advantageous changes in theadministration of their affairs, which they are often apt to be inattentive toin practice. On the whole, to guard against the evils, and to secure theadvantages I have mentioned, with the greatest degree of certainty, we oughtclearly in my opinion, to increase the federal representation, to secureelections on proper principles, to establish a right to recall members, and arotation among them.