Chapter IX (2)

It is now time to turn to the examination of that great scheme of separate and concurrent powers, which it had been proposed to confer upon the Senate, and the suggestion of which influenced to a great degree the qualifications of the members, their term of office, and indeed the entire construction of this branch of the legislature. The primary purpose of a Senate was that of a second legislative chamber, having equal authority in all acts of legislation with the first, the action of both being necessary to the passage of a law. As the formation of the Constitution proceeded, from the single idea of such a second chamber, without any special character of representation to distinguish it from the first, up to the plan of an equal representation of the States, there was a strong disposition manifested to accumulate power in the body for which this peculiar character had been gained. It had been made the depositary of a direct and equal State influence; and this feature of the system had become fixed and irrevocable before the powers of the other departments, or their origin or relations, had been finally settled. The consequence was, that for a time, wherever jealousy was felt with regard to the executive or the judiciary,--wherever there was a doubt about confiding in the direct action of the people,--wherever a chasm presented itself, and the right mode of filling it did not occur,--there was a tendency to resort to the Senate.

Thus, when the committee of detail were charged with the duty of preparing the Constitution according to the resolutions agreed upon in the Convention, the Senate had not only been made a legislative body, with authority co-ordinate to that of the House, but it had received the separate power of appointing the judges, and the power to give a separate vote in the election of the executive. The power to make war and treaties, the appointment of ambassadors, and the trial of impeachments, had not been distinctly given to any department; but the general intention to be inferred from the resolutions was, that these matters should be vested in one or both of the two branches of the legislature. To the executive, the duty had been assigned, which the name of the office implies, of executing the laws; to which had been added a revisionary check upon legislation, and the appointment to offices in cases not otherwise provided for. The judicial power had been described in general and comprehensive terms, which required a particular enumeration of the cases embraced by the principles laid down; but it had not been distinctly foreseen, that one of the cases to which those principles must lead would be an alleged conflict between an act of legislation and the fundamental law of the Constitution. The system thus marked out was carried into detail by the committee, by vesting in the Senate the power to make treaties, to appoint ambassadors and judges of the Supreme Court, and to adjudicate questions of boundary between the States; by giving to the two branches of the legislature the power to declare war; by assigning the trial of impeachments to the Supreme Court, and enumerating the other cases of which it was to have cognizance; and by providing for the election of the executive by the legislature, and confining its powers and duties to those prescribed for it by the resolutions.

It is scarcely necessary to pause for the purpose of commenting on the practical inconveniences of some of these arrangements. However proper it may be, in a limited and republican government, to vest the power of declaring war in the legislative department, the negotiation of treaties by a numerous body had been found, in our own experience, and in that of other republics, extremely embarrassing. However wise may be a jealousy of the executive department, it is difficult to say that the same authority that is intrusted with the appointment to all other offices should not be permitted to make an ambassador or a judge. However august may be a proceeding that is to determine a boundary between sovereign States, it is nothing more and nothing less than a strictly judicial controversy, capable of trial in the ordinary forms and tribunals of judicature, besides being one that ought to be safely removed from all political influences. However necessary it may be that an impeachment should be conducted with the solemnities and safeguards of allegation and proof, it is not always to be decided by the rules with which judges are most familiar, or to be determined by that body of law which it is their special duty to administer. However desirable it may be, that an elective chief magistracy should be filled with the highest capacity and fitness, and that popular tumults should be avoided, no government has yet existed, in which the election of such a magistrate by the legislative department has afforded any decided advantage over an election directly or indirectly by the people; and to give a body constituted as the American Senate is a negative in the choice of the executive, would be certainly inconvenient, probably dangerous.

But the position of the Senate as an assembly of the States, and certain opinions of its superior fitness for the discharge of some of these duties, had united to make it far too powerful for a safe and satisfactory operation of the government. It was found to be impossible to adjust the whole machine to the quantity of power that had been given to one of its parts. It was eminently just and necessary that the States should have an equal and direct representation in some branch of the government; but that a majority of the States, containing a minority of the people, should possess a negative in the appointment of the executive, and in the question of peace or war, and the sole voice in the appointment of judges and ambassadors, was neither necessary nor proper. Theoretically, it might seem appropriate that a question of boundary between any two of the States represented in it should be committed to the Senate, as a court of the peers of the sovereign parties to the dispute; but practically, this would be a tribunal not well fitted to try a purely judicial question. It became necessary, therefore, to discover the true limit of that control which the nature of the representation in the Senate was to be allowed to give to a majority of the States. There had been some effort, in the progress of the controversy respecting the representative system, to confine the equal power of the States, in matters of legislation, to particular questions or occasions; but it had turned out to be impracticable thus to divide or limit the ordinary legislative authority of the same body. If the Senate, as an equal assembly of the States, was to legislate at all, it must legislate upon all subjects by the same rule and method of suffrage. But when the question presented itself as to the separate action of this assembly,--how far it should be invested with the appointment of other functionaries, how far it should control the relations of the country with foreign nations, how far it should partake both of executive and judicial powers,--it was much less difficult to draw the line, and to establish proper limits to the direct agency of the States. Those limits could not indeed be ascertained by the mere application of theoretical principles. They were to be found in the primary necessity for reposing greater powers in other departments, for adjusting the relations of the system by a wider distribution of authority, and for confiding more and more in the intelligence and virtue of the people; and therefore it is, that, in these as in other details of the Constitution, we are to look for the clew that is to give us the purpose and design, quite as much to the practical compromises which constantly took place between opposite interests, as to any triumph of any one of opposite theories.

The first experiment that was made towards a restriction of the power of the Senate, and an adjustment of its relations to the other departments, was the preparation of a plan, by which the President was to have the making of treaties, and the appointment of ambassadors, judges of the Supreme Court, and all other officers not otherwise provided for, by and with, the advice and consent of the Senate. The trial of impeachments, of the President included, was transferred to the Senate, and the trial of questions of boundary was placed, like other controversies between States, within the scope of the judicial power. The choice of the President was to be made in the first instance by electors appointed by each State, in such manner as its legislature might direct, each State to have a number of electors equal to the whole number of its senators and representatives in Congress; but if no one of the persons voted for should have a majority of all the electors, or if more than one person should have both a majority and an equal number of votes, the Senate were to choose the President from the five highest candidates voted for by the electors. In this plan, there was certainly a considerable increase of the power of the President; but there was not a sufficient diminution of the power of the Senate. The President could nominate officers and negotiate treaties; but he must obtain the consent of the body by whom he might have been elected, and by whom his re-election might be determined, if he were again to become a candidate. It appeared, therefore, to be quite necessary, either to take away the revisionary control of the Senate over treaties and appointments, or to devise some mode by which the President could be made personally independent of that assembly. He could be made independent only by taking away all agency of the Senate in his election, or by making him ineligible to the office a second time. There were two serious objections to the last of these remedies,--the country might lose the services of a faithful and experienced magistrate, whose continuance in office would be highly important; and even in a case where no pre-eminent merit had challenged a re-election, the effect of an election by the Senate would always be pernicious, and must be visible throughout the whole term of the incumbent who had been successful over four other competitors.

And after all, what necessity was there for confiding this vast power to the Senate, opening the door of a small body to the corruption and intrigue for which the magnitude of the prize to be gained and to be given, and the facility for their exercise, would furnish an enormous temptation? Was it so necessary that the States should force their equality of privilege and of power into every department of the Constitution, making it felt not only in all acts of legislation, but in the whole administration of the executive and judicial duties? Was nothing due to the virtue and sense and patriotism of a majority of the people of the United States? Might they not reasonably be expected to constitute a body of electors, who, chosen for the express purpose, and dissolved as soon as their function had been discharged, would be able to make an upright and intelligent choice of a chief magistrate from among the eminent citizens of the Union?

Questions like these, posterity would easily believe, without the clear record that has descended to them, must have anxiously and deeply employed the framers of the Constitution. They were to consider, not only what was theoretically fit and what would practically work with safety and success, but what would be accepted by the people for whom they were forming these great institutions. That people undoubtedly detested everything in the nature of a monarchy. But there was another thing which they hated with equal intensity, and that was an oligarchy. Their experience had given them quite as much reason for abhorring the one as the other. Such, at least, was their view of that experience. A king, it is true, was the chief magistrate of the mother country against which they had rebelled, against which they had fought successfully for their independence. The measures that drove them into that resistance were executed by the monarch; but those measures were planned, as they believed, by a ministry determined to enslave them, and were sanctioned by a Parliament in which even the so-called popular branch was then but another phase of the aristocracy which ruled the empire. The worst enemy our grandfathers supposed they had in England, throughout their Revolution, was the ministerial majority of that House of Commons, made up of placemen sitting for rotten boroughs, the sons of peers, and the country gentlemen, who belonged to a caste as much as their first-cousins who sat by titles in the House of Lords. Our ancestors did not know--they went to their graves without knowing--that in the hard, implacable temper of the king, made harder and more implacable by a narrow and bigoted conscientiousness, was the real cause for the persistency in that fatal policy which severed these Colonies from his crown.

That long struggle had been over for several years, and its result was certainly not to be regretted by the people of America. But it had left them, as it naturally must have left them, with as strong prejudices and jealousies against every aristocratic, as against every monarchical institution. Public liberty in England they knew might consist with an hereditary throne, and with a privileged and powerful aristocracy. But public liberty in America could consist with neither. The people of the United States could submit to restraints; they could recognize the necessity for checks and balances in the distribution of authority; and they understood as much of the science of government as any people then alive. But an institution,--however originating and however apparently necessary its peculiar construction might be,--embracing but a small number of persons, with power to elect the chief magistrate, with power to revise every appointment from a chief justice down to a tidewaiter, with power to control the President through his subordinate agents, with power to reject every treaty that he might negotiate, and with power to sit in judgment on his impeachment, they would not endure. "We have, in some revolutions of this plan of government," said Randolph, "made a bold stroke for monarchy. We are now doing the same for an aristocracy."

How to attain the true intermediate ground, to avoid the substance of a monarchy and the substance of an aristocracy, and yet not to found the system on a mere democracy, was a problem not easy of solution. All could see, that a government extended over a country so large, which was to have the regulation of its commerce, the collection of great revenues, the care of a vast public domain, the superintendence of intercourse with hordes of savage tribes, the control of relations with all the nations of the world, the administration of a peculiar jurisprudence, and the protection of the local constitutions from violence, must have an army and a navy, and great fiscal, administrative, and judicial establishments, embracing a very numerous body of public officers. To give the appointment of such a multitude of public servants, invested with such functions, to the unchecked authority of the President, would be to create an executive with power not less formidable and real than that of some monarchs, and far greater than that of others. No one desired that a sole power of appointment should be vested in the President alone; it was universally conceded that there must be a revisionary control lodged somewhere, and the only question was where it should be placed. That it ought to be in a body independent of the executive, and not in any council of ministers that might be assigned to him, was apparent; and there was no such body, excepting the Senate, which united the necessary independence with the other qualities needful for a right exercise of this power.

The negotiation of treaties was obviously a function that should be committed to the executive alone. But a treaty might undertake to dismember a State of part of its territory, or might otherwise affect its individual interests; and even where it concerned only the general interests of all the States, there was a great unwillingness to intrust the treaty-making power exclusively to the President. Here, the States, as equal political sovereignties, were unwilling to relax their hold upon the general government; and the result was that provision of the Constitution which makes the consent of two thirds of the Senators present necessary to the ratification of a treaty.

But if it was to have these great overruling powers, the Senate must have no voice in the appointment of the executive. There were two modes in which the election might be arranged, so as to prevent a mutual connection and influence between the Senate and the President. The one was, to allow the highest number of electoral votes to appoint the President;[164] the other was, to place the eventual election--no person having received a majority of all the electoral votes--in the House of Representatives. The latter plan was finally adopted, and the Senate was thus effectually severed from a dangerous connection with the executive.

This separation having been effected, the objections which had been urged against the length of the senatorial term became of little consequence. In the preparation of the plan marked out in the resolutions sent to the committee of detail, the Senate had been considered chiefly with reference to its legislative function; and the purpose of those who advocated a long term of office was to establish a body in the government of sufficient wisdom and firmness to interpose against the impetuous counsels and levelling tendencies of the democratic branch.[165] Six years was adopted as an intermediate period between the longest and the shortest of the terms proposed; and in order that there might be an infusion of different views and tendencies from time to time, it was provided that one third of the members should go out of office biennially.[166] Still, in the case of each individual senator, the period of six years was the longest of the limited terms of office created by the Constitution. Under the Confederation, the members of the Congress had been chosen annually, and were always liable to recall. The people of the United States were in general strongly disposed to a frequency of elections. A term of office for six years would be that feature of the proposed Senate most likely, in the popular mind, to be regarded as of an aristocratic tendency. If united with the powers that have just passed under our review, and if to those powers it could be said that an improper influence over the executive had been added, the system would in all probability be rejected by the people. But if the Senate were deprived of all agency in the appointment of the President, it would be mere declamation to complain of their term of office; for undoubtedly the peculiar duties assigned to the Senate could be best discharged by those who had had the longest experience in them. The solid objection to such a term being removed, the complaint of aristocratic tendencies would be confined to those who might wish to find plausible reasons for opposition, and might not wish to be satisfied with the true reasons for the provision.

Having now described the formation and the special powers of the two branches of the legislature, I proceed to inquire into the origin and history of the disqualifications to which the members were subjected.

The Constitution of the United States was framed and established by a generation of men, who had observed the operation upon the English legislature of that species of influence, by the crown or its servants, which, from the mode of its exercise, not seldom amounting to actual bribery, has received the appropriate name of parliamentary corruption. That generation of the American people knew but little--they cared less--about the origin of a method of governing the legislative body, which implies an open or a secret venality on the part of its members, and a willingness on the part of the administration to purchase their consent to its measures. What they did know and what they did regard was, that for a long succession of years the votes of members of Parliament had been bought, with money or office, by nearly every minister who had been at the head of affairs; that, if this practice had not been introduced under the prince who was placed upon the throne by the revolution of 1688, it had certainly grown to a kind of system in the hands of the statesmen by whom that revolution was effected, and had attained its greatest height under the first two princes of the house of Hanover; that it was freely and sometimes shamefully applied throughout the American war; and that, down to that day, no British statesman had had the sagacity to discover, and the virtue to adopt, a purer system of administration.[167] Whether this was a necessary vice of the English constitution; whether it was inherent or temporary; or whether it was only a stage in the development of parliamentary government, destined to pass away when the relations of the representative body to the people had become better settled,--could not then be seen even in England. But to our ancestors, when framing their Constitution, it presented itself as a momentous fact; whose warning was not the less powerful, because it came from the centre of institutions with which they had been most familiar, and from the country to which they traced their origin,--a country in which parliamentary government had had the fairest chances for success that the world had witnessed.

Yet it would not have been easy at that time, as it is not at the present, and as it may never be, to define with absolute precision the true limits which executive influence with the legislative body should not be suffered to pass. Still less is it easy to say that such influence ought not to exist at all;[168] although it is not difficult to say that there are methods in which it should not be suffered to be exercised. The more elevated and more clear-sighted public morality of the present age, in England and in America, condemns with equal severity and equal justice both the giver and the receiver in every transaction that can be regarded as a purchase of votes upon particular measures or occasions, whatever may have been the consideration or motive of the bargain. But whether that morality goes, or ought to go, farther,--whether it includes, or ought to include, in the same condemnation, every form of influence by which an administration can add extrinsic weight to the merits of its measures,--is a question that admits of discussion.

It may be said, assuming the good intentions of an administration, and the correctness of its policy and measures, that its policy and its measures should address themselves solely to the patriotism and sense of right of the members of the legislative department. But an ever active patriotism and a never failing sense of right are not always, if often, to be found; the members of a legislative body are men, with the imperfections, the failings, and the passions of men; and if pure patriotism and right perceptions of duty are alone relied upon, they may, and sometimes inevitably will be, found wanting. On the other hand, it is just as true, that the persons composing every administration are mere men, and that it will not do to assume their wisdom and good intentions as the sole foundations on which to rest the public security, leaving them at liberty to use all the appliances that may be found effectual for gaining right ends, and overlooking the character of the means. One of the principal reasons for the establishment of different departments, in the class of governments to which ours belongs, is, that perfect virtue and unerring wisdom are not to be predicated of any man in any station. If they were, a simple despotism would be the best and the only necessary form of government.

All correct reasoning on this subject, and all true construction of governments like ours, must commence with two propositions, one of which embraces a truth of political science, and the other a truth of general morals. The first is, that, while the different functions of government are to be distributed among different persons, and to be kept distinctly separated, in order that there may be both division of labor and checks against the abuse of power, it is occasionally necessary that some room should be allowed for supplying the want of wisdom or virtue in one department by the wisdom or virtue of another. In matters of government depending on mere discretion, unlimited confidence cannot with safety be placed anywhere.[169] The other proposition is the very plain axiom in morals, that, while in all human transactions there may be bad means employed to effect a worthy object, the character of those means can never be altered, nor their use justified, by the character of the end. With these two propositions admitted, what is to be done is to discover that arrangement of the powers and relations of the different departments whose acts involve, more or less, the exercise of pure discretion, which will give the best effect to both of these truths; and as all government and all details of government, to be useful, must be practically adapted to the nature of man, it will be found that an approximation in practice to a perfect theory is all that can be attained.

Thus the general duties and powers of the legislative and the executive departments are capable of distinct separation. The one is to make, the other is to execute the laws. But execution of the laws of necessity involves administration, and administration makes it necessary that there should be an executive policy. To carry out that policy requires new laws; authority must be obtained to do acts not before authorized; and supplies must be perpetually renewed. The executive stands therefore in a close relation to the legislative department;--a relation which makes it necessary for the one to appeal frequently, and indeed constantly, to the discretion of the other. If the executive is left at liberty to purchase what it believes or alleges to be the right exercise of that discretion, by the inducements of money or office applied to a particular case, the rule of common morals is violated; conscience becomes false to duty, and corruption, having once entered the body politic, may be employed to effect bad ends as well as good. Nay, as bad ends will stand most in need of its influence, it will be applied the most grossly where the object to be attained is the most culpable. On the other hand, if the members of the legislative body, by being made incapable of accepting the higher or more lucrative offices of state, are cut off from those inducements to right conduct and a true ambition which the imperfections of our nature have made not only powerful, but sometimes necessary, aids to virtue, the public service may have no other security than their uncertain impulses or imperfect judgments. In the midst of such tendencies to opposite mischiefs, all that human wisdom and foresight can do is, to anticipate and prevent the evils of both extremes, by provisions which will guard both the interests of morality and the interests of political expediency as completely as circumstances will allow.

I am persuaded it was upon such principles as I have thus endeavored to state, that the framers of our national Constitution intended to regulate this very difficult part of the relations between the executive and the legislature. During a considerable period, however, of their deliberations on the disabilities to which it would be proper to subject the members of the latter department, they had another example before them besides that afforded by the history of parliamentary corruption in England. The Congress of the Confederation had of course the sole power of appointment to offices under the authority of the United States; and although there is no reason to suppose that body at any time to have been justly chargeable with corrupt motives, there were complaints of the frequency with which it had filled the offices which it had created with its own members. In these complaints, the people overlooked the justification. They forgot that the nature of the government, and the circumstances of the country, rendered it difficult for an assembly which both made and filled the offices, and which exercised its functions at a time when the State governments absorbed by far the greater part of the interests and attention of their citizens, to find suitable men out of its own ranks. In that condition of things, it might have been expected,--and it implies no improper purpose,--that offices would be sometimes framed or regulated with a view to their being filled by particular persons. But the complaints existed;[170] the evil was one that tended constantly to become worse; and, in framing the new government, this was the first aspect in which the influence of office and its emoluments presented itself to the Convention.

For when the Virginia members, through Edmund Randolph, brought forward their scheme of government, they not only gave the executive no power of appointment to any office, but they proposed to vest the appointment of both the executive and the judiciary in the legislature. Hence they felt the necessity of guarding against the abuse that might follow, if the members of the legislature were to be left at liberty to appoint each other to office,--an abuse which they knew had been imputed to the Congress, and which they declared had been grossly practised by their own legislature.[171] They proposed, therefore, to go beyond the Confederation, and to make the members of both branches ineligible to any office established under the authority of the United States, (excepting those peculiarly belonging to their own functions,) during their term of service and for one year after its expiration. This provision passed the committee of the whole; but in the Convention, on a motion made by Mr. Gorham to strike it out, the votes of the States were divided. An effort was then made by Mr. Madison to find a middle ground, between an eligibility in all cases and an absolute disqualification. If the unnecessary creation of offices and the increase of salaries was the principal evil to be anticipated, he believed that the door might be shut against that abuse, and might properly be left open for the appointment of members to places not affected by their own votes, as an encouragement to the legislative service. But there were several of the stern patriots of the Convention who insisted on a total exclusion, and who denied that there was any such necessity for holding out inducements to enter the legislature.[172] This was a question on which different minds, of equal sagacity and equal purity, would naturally arrive at different conclusions. Still, it is apparent that the mischiefs most apprehended at the time of Mr. Madison's proposition would be in a great degree prevented, by taking from the legislature the power of appointing to office; and that this modification of the system was what was needed, to make his plan a true remedy for the abuses that had been displayed in our own experience. The stigma of venality cannot properly be applied to the laudable ambition of rising into the honorable offices of a free government; and if the opportunity to create places, or to increase their emoluments, and then to secure those places, is taken away, by vesting the appointment in the executive, the question turns mainly on the relations that ought to exist between that department and the legislature. But Mr. Madison's suggestion was made before it was ascertained that the executive would have any power of appointment, and it was accordingly rejected;--a majority of the delegations considering it best to retain the ineligibility in all cases, as proposed by the Virginia plan.[173] In this way, the disqualification became incorporated into the first draft of the Constitution, prepared by the committee of detail.[174]

But by this time it was known that a large part of the patronage of the government must be placed in the hands of the President; for it had been settled that he was to appoint to all offices not otherwise provided for, and the cases thus excepted were those of judges and ambassadors, which stood, in this draft of the Constitution, vested in the Senate. A strong opposition to this arrangement, however, had already manifested itself, and the result was very likely to be,--as it in fact turned out,--that nearly the whole of the appointments would be made on the nomination of the President, even if the Senate were to be empowered to confirm or reject them. Accordingly, when this clause came under consideration, the principle of an absolute disqualification for office was vigorously attacked, and as vigorously defended. The inconvenience and impolicy of excluding officers of the army and navy from the legislature; of rendering it impossible for the executive to select a commander-in-chief from among the members, in cases of pre-eminent fitness; of refusing seats to the heads of executive departments; and of closing the legislature as an avenue to other branches of the public service,--were all strenuously urged and denied.[175] At length, a middle course became necessary, to reconcile all opinions. By a very close vote, the ineligibility was restrained to cases in which the office had been created, or the emolument of it increased, during the term of membership;[176] and a seat in the legislature was made incompatible with any other office under the United States.[177]

Some at least of the probable sources of corruption were cut off by these provisions. The executive can make no bargain for a vote, by the promise of an office which has been acted upon by the member whose vote is sought for; and there can be no body of placemen, ready at all times to sell their votes as the price for which they are permitted to retain their places. At the same time, the executive is not deprived of the influence which attends the power of appointing to offices not created, or the emoluments of which have not been increased, by any Congress of which the person appointed has been a member. This influence is capable of abuse; it is also capable of being honorably and beneficially exerted. Whether it shall be employed corruptly or honestly, for good or for bad purposes, is left by the Constitution to the restraints of personal virtue and the chastisements of public opinion.

A serious question, however, has been made, whether the interests of the public service, involved in the relations of the two departments, would not have been placed upon a better footing, if some of the higher officers of state had been admitted to hold seats in the legislature. Under the English constitution, there is no practical difficulty, at least in modern times, in determining the general principle that is to distinguish between the class of officers who can, and those who cannot, be usefully allowed to have seats in the House of Commons. The principle which, after much inconsistent legislation and many abortive attempts to legislate, has generally been acted on since the reign of George II., is, that it is both necessary and useful to have in that House some of the higher functionaries of the administration; but that it is not at all necessary, and not useful, to allow the privilege of sitting in Parliament to subordinate officers.[178] The necessity of the case arises altogether from the peculiar relations of the ministry to the crown, and of the latter to the Commons. If the executive government were not admitted, through any of its members, to explain and vindicate its measures, to advocate new grants of authority, or to defend the prerogatives of the crown, the popular branch of the legislature would either become the predominant power in the state, or sink into insignificance. This is conceded by the severest writers on the English government.

But when we pass from a civil polity which it has taken centuries to produce, and which has had its departments adjusted much less by reference to exact principles than by the results of their successive struggles for supremacy over each other, and when we come to an original distribution of powers, in the arrangements of a constitution made entire and at once by a single act of the national will, we must not give too much effect to analogies which after all are far from being complete. In preparing the Constitution of the United States, its framers had no prerogative, in any way resembling that of the crown of England, to consider and provide for. The separate powers to be conferred on the chief magistracy--aside from its concurrence in legislation--were simply executive and administrative; the office was to be elective, and not hereditary; and its functions, like those of the legislature, were to be prescribed with all the exactness of which a written instrument is capable. There was, therefore, little of such danger that the one department would silently or openly encroach on the rights or usurp the powers of the other, as there is where there exists hereditary right on the one side and customary right on the other, and where the boundaries between the two departments are to be traced by the aid of ancient traditions, or collected from numerous and perhaps conflicting precedents. There was no such necessity, therefore, as there is in England, for placing members of the administration in the legislature, in order to preserve the balance of the Constitution. The sole question with us was, whether the public convenience required that the administration should be able to act directly upon the course of legislation. The prevailing opinion was that this was not required. This opinion was undoubtedly formed under the fear of corruption and the jealousy of executive power, chiefly produced--and justly produced--by the example of what had long existed in England. That the error, if any was committed, lay on the safer side, none can doubt. It is possible that the chances of a corrupt influence would not have been increased, and that the opportunities for a salutary influence might have been enlarged,--as it is highly probable that the convenience of communication would have been promoted,--if some of the higher officers of state could have been allowed to hold seats in either house of Congress. But it is difficult to see how this could have been successfully practised, under the system of representation and election which the framers of the Constitution were obliged to establish: and perhaps this is a decisive answer to the objection.[179]

Among the powers conceded by the Constitution to the legislature of each State is that of prescribing the time, place, and manner of holding the elections of its senators and representatives in Congress. This provision[180] originated with the committee of detail; but, as it was reported by them, there was no other authority reserved to Congress itself than that of altering the regulations of the States; and this authority extended as well to the place of choosing the senators, as to all the other circumstances of the election.[181] In the Convention, however, the authority of Congress was extended beyond the alteration of State regulations, so as to embrace a power to make rules, as well as to alter those made by the States. But the place of choosing the senators was excepted altogether from this restraining authority, and left to the States.[182] Mr. Madison, in his minutes, adds the explanation, that the power of Congress to _make_ regulations was supplied, in order to enable them to regulate the elections, if the States should fail or refuse to do so.[183] But the text of the Constitution, as finally settled, gives authority to Congress at "any time" to "make or alter such regulations"; and this would seem to confer a power, which, when exercised, must be paramount, whether a State regulation exists at the time or not.

There is one other peculiarity of the American legislature, of which it is proper in this connection to give a brief account; namely, the compensation of its members for their public services. In the plan presented by the Virginia delegation, it was proposed that the members of both branches should receive "liberal stipends"; but it was not suggested whether they were to be paid by the States, or from the national treasury. The committee of the whole determined to adopt the latter mode of payment; and as the representation in both branches, according to the first decision, was to be of the same character, no reason was then suggested for making a difference in the source of their compensation. But when the construction of the Senate was considered in the Convention, the idea was suggested that this body ought in some way to represent wealth; and it was apparently under the influence of this suggestion, that, after a refusal to provide for a payment of the senators by their States, payment out of the national treasury was stricken from the resolution under debate.[184] There was thus introduced into the resolutions sent to the committee of detail, a discrepancy between the modes of compensating the members of the two branches; for while the members of the House were to be paid "an adequate compensation" out of "the public treasury," the Senate were to receive "a compensation for the devotion of their time to the public service," but the source of payment was not designated. But when the whole body of those resolutions had been acted on, the character of the representation in the Senate had been settled, and the idea of its being made a representation of wealth, in any sense, had been rejected. The committee of detail had, therefore, in giving effect to the decisions of the Convention, to consider merely whether the members of the two branches should be paid by their States, or from the national treasury; and for the purpose of making the same provision as to both, and in order to avoid the question whether the Constitution should establish the amount, or should leave it to be regulated by the Congress itself, they provided that the members of each house should receive a compensation for their services, to be ascertained and paid by the State in which they should be chosen.[185]

This, however, was to encounter far greater evils than it avoided. If paid by their States, the members of the national legislature would not only receive different compensations, but they would be directly subjected to the prejudices, caprices, and political purposes of the State legislatures. Whatever theory might be maintained with respect to the relations between the representatives, in either branch, and the State in which they were chosen, or the people of the States, to subject one class of public servants to the power of another class could not fail to produce the most mischievous consequences. A large majority of the States, therefore, decided upon payment out of the national treasury,[186] and it was finally determined that the rate of compensation should not be fixed by the Constitution, but should be left to be ascertained by law.[187]

Among the separate functions assigned by the Constitution to the houses of Congress are those of presenting and trying impeachments. An impeachment, in the report of the committee of detail, was treated as an ordinary judicial proceeding, and was placed within the jurisdiction of the Supreme Court. That this was not in all respects a suitable provision, will appear from the following considerations. Although an impeachment may involve an inquiry whether a crime against any positive law has been committed, yet it is not necessarily a trial for crime; nor is there any necessity, in the case of crimes committed by public officers, for the institution of any special proceeding for the infliction of the punishment prescribed by the laws, since they, like all other persons, are amenable to the ordinary jurisdiction of the courts of justice, in respect of offences against positive law. The purposes of an impeachment lie wholly beyond the penalties of the statute or the customary law. The object of the proceeding is to ascertain whether cause exists for removing a public officer from office. Such a cause may be found in the fact, that, either in the discharge of his office, or aside from its functions, he has violated a law, or committed what is technically denominated a crime. But a cause for removal from office may exist, where no offence against positive law has been committed, as where the individual has, from immorality or imbecility or maleadministration, become unfit to exercise the office. The rules by which an impeachment is to be determined are therefore peculiar, and are not fully embraced by those principles or provisions of law which courts of ordinary jurisdiction are required to administer.

From considerations of this kind, especially when applied to the impeachment of a President of the United States, the Convention found it expedient to place the trial in the Senate. In fact, the whole subject of impeachments, as finally settled in the Constitution, received its impress in a great degree from the attention that was paid to the bearing of this power upon the executive. Few members of the Convention were willing to constitute a single executive, with such powers as were proposed to be given to the President, without subjecting him to removal from office on impeachment; and when it was perceived to be necessary to confer upon him the appointment of the judges, it became equally necessary to provide some other tribunal than the Supreme Court for the trial of his impeachment. There was no other body already provided for in the government, with whom this jurisdiction could be lodged, excepting the Senate; and the only alternative to this plan was to create a special tribunal for the sole purpose of trying impeachments of the President and other officers. This was justly deemed a manifest inconvenience; and although there were various theoretical objections suggested against placing the trial in the Senate, on the question being stated there were found to be but two dissentient States.[188] This point having been settled, in relation to impeachments of the President, the trial of impeachments of all other civil officers of the United States was, for the sake of uniformity, also confided to the Senate.[189] The power of impeachment was confined, as originally proposed, to the House of Representatives.[190]

The number of members of each house that should be made a _quorum_ for the transaction of business gave rise to a good deal of difference of opinion. The controlling reason why a smaller number than a majority of the members of each house should not be permitted to make laws, was to be found in the extent of the country and the diversity of its interests. The central States, it was said, could always have their members present with more convenience than the distant States; and after some discussion, it was determined to establish a majority of each house as its quorum for the transaction of business, giving to a smaller number power to adjourn from day to day, and to compel the attendance of absent members.[191]

Provisions making each house the judge of the elections, returns, and qualifications of its own members; that for any speech, or debate in either house no member shall be questioned in any other place; and that in all cases, except treason, felony, or breach of the peace, the members shall be privileged from arrest during their attendance at, and in going to and returning from, the sessions of their respective houses,--were agreed to without any dissent.[192]

The power of each house to determine the rules of its proceedings, to punish its members for disorderly behavior, and to expel with the concurrence of two thirds, was agreed to with general assent.[193] Each house was also directed to keep a journal of its proceedings, and from time to time to publish the same, excepting such parts as may in their judgment require secrecy; and one fifth of the members present in either house were empowered to require the yeas and nays to be entered on its journal.[194]

The report of the committee of detail had made no provision for such an officer as the Vice-President of the United States, and had therefore declared that the Senate, as well as the House, should choose its own presiding officer. This feature of their report received the sanction of the Convention; but subsequently, when it became necessary to create an officer to succeed the President of the United States, in case of death, resignation, or removal from office, the plan was adopted of making the former _ex officio_ the presiding officer of the Senate, giving him a vote only in cases where the votes of the members are equally divided.[195] To this was added the further provision, that the Senate shall choose, besides all its other officers, a President _pro tempore_, in the absence of the Vice-President, or when he shall exercise the office of President of the United States.[196] The House of Representatives were empowered to choose their own Speaker, and other officers, as originally proposed.[197]

The mode in which laws were to be enacted was the last topic concerning the action of the legislature which required to be dealt with in the Constitution. The principle had been already settled, that the negative of the President should arrest the passage of a law, unless, after he had refused his concurrence, it should be passed by two thirds of the members of each house. In order to give effect to this principle, the committee of detail made the following regulations, which were adopted into the Constitution;--that every bill, which shall have passed the two houses, shall, before it become a law, be presented to the President of the United States; that, if he approve, he shall sign it, but if not, he shall return it, with his objections, to the house in which it originated, who shall enter the objections at large on their journal, and proceed to reconsider it; that if, after such reconsideration, two thirds of that house agree to pass the bill, it is to be sent with the objections to the other house, by which it is likewise to be reconsidered, and, if approved by two thirds of that house, it is to become a law; but in all such cases, the votes of both houses are to be determined by yeas and nays entered upon the journal. If any bill be not returned by the President within ten days (Sundays excepted) after it has been presented to him, it is to become a law, in like manner as if he had signed it, unless the Congress by adjourning prevent its return, in which case it is not to become a law. All orders, resolutions, and votes to which the concurrence of both houses is necessary, (except on a question of adjournment,) are subject to these provisions.[198]