Letters from The Federal Farmer to The Republican
(Richard Henry Lee ?)

XI.

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
sovereignties; 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
sovereignties 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; compose 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 expectants
of offices, 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
generally be the same kind of men—men having similar interests and
views, feelings and connections—men of the same grade in society, and
who associate on all occasions (probably, if there by any difference, the
senators will be the most democratic.) Senators and representatives thus
circumstanced, 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 of the elected; to increase the
numbers of the representatives, and so to model the elections of them, as
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 law’s passing a 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
art. 1. sect. 2. 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 multip[l]icity 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
dependance, and for the condition of their constituents. Senators continued in
offices three or four years, will be in them longer than any popular erroneous
opinions 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.

2. 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 dependance: the necessary and
important object to be attended to, is to make them feel dependant enough. Men
elected for several years, several hundred miles distant from their states,
possessed of very extensive powers, and the means of paying themselves, will
not, probably, be oppressed with a sense of dependance and responsibility.

The senators will represent sovereignties, 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
decision, and a fair hearing; and no man who believes his conduct proper, and
the result of honest views, will be the less useful in his public character, on
account of the examination his actions may be liable to; and a man conscious of
the contrary conduct, ought clearly to 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
centinels 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 favour 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 shew 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 any thing more than the attack of
an individual or individuals, unless a majority of the constituents shall see
cause to go into the enquiry. 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 dependance of the federal senators
and representatives.

3. By the confederation it is provided, that no delegate 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 state governments, and also in some antient and modern
republics. Whether this exclusion of a man for a given period, after he shall
have served a given time, ought to be ingraf[t]ed into a constitution or not,
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, 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 attention, 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 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 detail
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 for
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 possess a large share of
power and influence, as jurors and subordinate officers, among whom there are
many and frequent 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
diffuse the power of making the laws among the people, and so to modify the
forms of the government as to draw in turn the well informed of every class
into the legislature.

To determine the propriety or impropriety of this rotation, we must take
the inconveniencies 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 interests 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 preceding, 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
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 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 happen to be excluded by
this rotation, it is only for a short time. All things considered, the
inconveniencies 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 in him the essential
qualifications of a legislator. Even in point of information, it may be
observed, the useful information of legislators is not acquired merely in
studies in 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 in legislators, 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
legislators, 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. Were the people always properly attentive, they would, at
proper periods, call their law-makers 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 art. 2. sect. 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 shew the senate to be a very improper body
indeed to have any thing 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 controuling 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 purpose[s], and the house of
representatives is too numerous to be concerned in treaties of peace and of
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 to the consent of nine states. It is probable
the United States will not make more than one treaty, on an 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 man
or men who may abuse it.

On a fair construction of the constitution, I think the legislature has
a proper controul over the president and senate in settling commercial
treaties. By art. 1. sect. 2. the legislature will have power to regulate
commerce with foreign nations, &c. By art. 2. sect. 2. 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, &c. 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 secrecy, 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 authorises 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 in them 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.