Antifederalist No. 64 

ON THE ORGANIZATION AND POWERS OF THE SENATE    (PART 3) 



Taken from the New York Journal, Nov. 22, 1787 by "CINCINNATUS"  
It appears to have been written in answer to James Wilson's 
Antifederalist # 12) 


     I come now, sir, to the most exceptionable part of the 
Constitution-the Senate.  In this, as in every other part, you 
[James Wilson of Pennsylvania] are in the line of your profession 
Law], and on that ground assure your fellow citizens, that-
"perhaps there never was a charge made with less reason, than 
that which predicts the institution of a baneful aristocracy in 
the Federal Senate." And yet your conscience smote you, sir, at 
the beginning, and compelled you to prefix a perhaps to this 
strange assertion.  The senate, you say, branches into two 
characters-the one legislative and the other executive.  This 
phraseology is quaint, and the position does not state the whole 
truth.  I am very sorry, sir, to be so often obliged to reprehend 
the suppression of information at the moment that you stood forth 
to instruct your fellow citizens, in what they were supposed not 
to understand.  In this character, you should have abandoned your 
professional line, and told them, not only the truth, but the 
whole truth.  The whole truth then is, that the same body, called 
the senate, is vested with legislative, executive and judicial 
powers.  The two first you acknowledge; the last is conveyed in 
these words, sec. 3d.: "The Senate shall have the sole power to 
try all impeachments." On this point then we are to come to 
issue-whether a senate so constituted is likely to produce a 
baneful aristocracy, which will swallow up the democratic rights 
and liberties of the nation.  To judge on this question, it is 
proper to examine minutely into the constitution and powers of 
the senate; and we shall then see with what anxious and subtle 
cunning it is calculated for the proposed purpose.  1st.  It is 
removed from the people, being chosen by the legislatures-and 
exactly in the ratio of their removal from the people do 
aristocratic principles constantly infect the minds of man. 2nd.  
They endure, two thirds for four, and one third for six years, 
and in proportion to the duration of power, the aristocratic 
exercise of it and attempts to extend it, are invariably observed 
to increase. 3rd.  From the union of the executive with the 
legislative functions, they must necessarily be longer together, 
or rather constantly assembled; and in proportion to their 
continuance together, they will be able to form effectual schemes 
for extending their own power, and reducing that of the 
democratic branch.  If any one would wish to see this more fully 
illustrated, let him turn to the history of the Decemviri in 
Rome. 4th. Their advice and consent being necessary to the 
appointment of all the great officers of state, both at home and 
abroad, will enable them to win over any opponents to their 
measures in the house of representatives, and give them the 
influence which, we see, accompanies this power in England; and 
which, from the nature of man, must follow it every where. 5th.  
The sole power of impeachment being vested in them, they have it 
in their power to control the representative in this democratic 
right; to screen from punishment, or rather from conviction, all 
high offenders, being their creatures, and to keep in awe all 
opponents to their power in high office. 6th.  The union 
established between them and the vice president, who is made one 
of the corps, and will therefore be highly animated with the 
aristocratic spirit of it, furnishes them a powerful shield 
against popular suspicion and inquiry, he being the second man in 
the United States who stands highest in the confidence and 
estimation of the people.  And lastly, the right of altering or 
amending money-bills, is a high additional power given them as a 
branch of the legislature, which their analogous branch, in the 
English parliament, could never obtain because it has been 
guarded by the representatives of the people there, with the most 
strenuous solicitude as one of the vital principles of democratic 
liberty. 
     Is a body so vested with means to soften and seduce-so armed 
with power to screen or to condemn-so fortified against suspicion 
and inquiry-so largely trusted with legislative powers-so 
independent of and removed from the people-so tempted to abuse 
and extend these powers-is this a body which freemen ought ever 
to create, or which freemen can ever endure?  Or is it not a 
monster in the political creation, which we ought to regard with 
horror?  Shall we thus forget our own fetters?  Shall we set up 
the idol, before which we shall soon be obliged, however 
reluctantly, to bow?  Shall we consent to see a proud aristocracy 
erect his domineering crest in triumph over our prostrate 
liberties? 
     But we shall yet see more clearly, how highly favored this 
senate has been, by taking a similar view of the representative 
body.  This body is the true representative of the democratic 
part of the system; the shield and defense of the people. . . . 
Its transcendent and incommunicable power of impeachment-that 
high source of its dignity and control-in which alone the majesty 
of the people feels his sceptre, and bears aloft his fasces-is 
rendered ineffectual, by its being triable before its rival 
branch, the senate, the patron and prompter of the measures 
against which it is to sit in judgment.  It is therefore most 
manifest, that from the very nature of the constitution the right 
of impeachment apparently given, is really rendered ineffectual.  
And this is contrived with so much art, that to discover it you 
must bring together various and distant parts of the 
constitution, or it will not strike the examiner, that the same 
body that advises the executive measures of government which are 
usually the subject of impeachment, are the sole judges on such 
impeachments.  They must therefore be both party and judge, and 
must condemn those who have executed what they advised. Could 
such a monstrous absurdity have escaped men who were not 
determined, at all events, to vest all power in this aristocratic 
body?  Is it not plain, that the senate is to be exalted by the 
humiliation of the democracy?  A democracy which, thus bereft of 
its powers, and shorn of its strength, will stand a melancholy 
monument of popular impotence. . . . 
     "When the legislative and executive powers are united in the 
same person, or in the same corps," [says Montesquieu] "there can 
be no liberty.  Because, it may be feared, that the same monarch 
or senate will make tyrannical laws, that they may execute them 
tyrannically." I am aware that this great man is speaking of a 
senate being the whole legislature; whereas the one before us is 
but a branch of the proposed legislature.  But still the reason 
applies, inasmuch as the legislative power of the senate will 
enable it to negative all bills that are meant to control the 
executive; and from being secure of preventing any abridgment, 
they can watch every pliant hour of the representative body to 
promote an enlargement of the executive powers.  One thing at 
least is certain, that by making this branch of the legislature 
participant in the executive, you not only prevent the 
legislature from being a check upon the executive, but you 
inevitably prevent its being checked or controlled by the other 
branch. 
     To the authority of Montesquieu, I shall add that of Mr. De 
Lolme, whose disquisition on government is allowed to be deep, 
solid, and ingenious. . . . "It is not only necessary," [says he] 
"to take from the legislature the executive power which would 
exempt them from the laws; but they should not have even a hope 
of being ever able to arrogate to themselves that power." To 
remove this hope from their expectation, it would have been 
proper, not only to have previously laid down, in a declaration 
of rights, that these powers should be forever separate and 
incommunicable; but the frame of the proposed constitution should 
have had that separation religiously in view, through all its 
parts.  It is manifest this was not the object of its framers; 
but, that on the contrary there is a studied mixture of them in 
the senate as necessary to erect it into that potent aristocracy 
which it must infallibly produce.  In pursuit of this daring 
object, than which no greater calamity can be brought upon the 
people, another egregious error in constitutional principles is 
committed.  I mean that of dividing the executive powers between 
the senate and president.  Unless more harmony and less ambition 
should exist between these two executives than ever yet existed 
between men in power, or than can exist while human nature is as 
it is, this absurd division must be productive of constant 
contentions for the lead, must clog the execution of government 
to a mischievous, and sometimes to a disgraceful degree; and if 
they should unhappily harmonize in the same objects of ambition, 
their number and their combined power would preclude all fear of 
that responsibility, which is one of the great securities of 
good, and restraints on bad governments.  Upon these principles 
Mr. DeLolme has foreseen that "the effect of a division of the 
executive power 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. 
     By this time I hope it is evident from reason and authority, 
that in the constitution of the senate there is much cunning and 
little wisdom; that we have much to fear from it, and little to 
hope, and then it must necessarily produce a baneful aristocracy, 
by which the democratic rights of the people will be overwhelmed. 
     It was probably upon this principle that a member of the 
convention, of high and unexceeded reputation for wisdom and 
integrity, is said to have emphatically declared, that he would 
sooner lose his right hand, than put his name to such a 
constitution. 
                        CINCINNATUS