Richmond Hill July 20. 1789
There is a Sense, and a degree, in which the Executive, in our Constitution, is blended with the Legislature: The President, has the power of Suspending a Law; of giving the two Houses an opportunity to pause, to think, to collect themselves, to reconsider a rash step of a Majority; he has the Right to urge all his Reasons against it, by Speech or Message; which being Public is an appeal to the Nation—But the rational Objection here is not that the Executive is <
not> blended with Legislature: but that it is not enough blended; that it is not incorporated with it, and made an essential Part of it.—If it were an integral part of it it might Negative a law, without much Noise, Speculation, or Confusion amoung the People. But as it now stands, I beg you, to consider, it is almost impossible that a President should ever have the courage to make use of his partial negative. what a Situation would a President be in, to maintain a Controversy against a Majority of both Houses, before the Tribunal of the Public. To put a stop to a law, that more than half the Senate and House, and consequently We may Suppose more than half the Nation, had set their hearts upon.? it is moreover possible, that more than two thirds of the Nation, the Senate and House, may in times of Calamity Distress, Misfortune and ill Success of the Measures of Government from the momentary Passion and Enthusiasm, demand a law which will wholly Subvert the Constitution. The Constitution of Athens was overturned in such a moment by Aristides himself.—The Constitution Should guard against a Possibility of its Subversion.—But We may take Stronger ground and assert that it is probable that Such Cases will happen, and that the Constitution will in fact be Subverted in this Way.—May I go further and say, that from the constitution of human nature and the constant Course of human affairs it is certain, that our Constitution will be Subverted, if not amended, and that in a very short time, merely for Want of a decisive negative in the Executive.
There is another Sense, and another Degree, in which the Executive is blended with the legislature, which is liable to great and just objection; which excites alarms, Jealousies and Apprehensions in a very great degree.—I mean 1. the Negative of the Senate, upon appointments to office; 2. the Negative of the Senate upon Treaties, and 3. the Negative of the two Houses upon War.—I shall confine myself at present to the first. The Negative of the Senate upon Appointments, is liable for the following objections. 1. It takes away, or a least it lessens the responsibility of the Executive—our Constitution obliges me to say, that is lessens the Responsibility of the President. The blame of an hasty, injudicious, weak or wicked Appointment, is Shared so much between him and the Senate, that his part of it will be too Small.—Who can censure him, without censuring the Senate, and the legislatures who appoint them? all their Friends will be interested to vindicate the President, in order to Screen them from censure. besides if an Impeachment is brought before him against an officer are they not interested to acquit him, least some part of the odium of his Guilt Should fall upon them, who advised to his appointment.
2. It turns the Minds and attention of the People, to the Senate, a Branch of the legislature, in Executive matters. it interests another Branch of the legislature in the management of the Executive,. it divides the People, between the executive and the Senate: whereas all the People ought to be united to watch the Executive, to oppose its encroachments, and resist its Ambition.—Senators and Representatives, and their Constituents, in short the Aristocratical and Democratical Divisions of Society ought to be united on all occasions to oppose the Executive; or the Monarchical Branch when it attempts to overleap its Limits. But how can this union be effected, when the Aristocratical Branch has pledged its Reputation to the Executive by consenting to an Appointment.
3. It has a natural Tendency, to excite ambition in the Senate,—An active ardent Spirit in that House, who is rich, & able; has a great Reputation and influence; will be solicited by the candidates for office. not to introduce the idea of Bribery, because tho it certainly would force itself in, in other Countries, and will, probably, have when We grow populous and rich, yet it is not yet, I hope to be dreaded.—But Ambition must come in, already.—A Senator of great influence, will be naturally ambitions and desirous of increasing his influence. Will he not be under a Temptation to use his influence with the President as well as his Brother Senators, to appoint persons to office in the several states who will exert themselves in elections to get out his Ennemies or opposers both in Senate and House of Representatives, and to get in his Friends, perhaps his Instruments.? Suppose a Senator, to aim at the Treasury office, for himself, his Brother, Father or son—Suppose him to aim at the President’s Chair, or Vice Presidents, at the next Election, or at the office of War, foreign or domestic affairs, will he not naturally be tempted to make Use of his whole Patronage his whole Influence, in advising to appointments, both with President Senators to get such persons nominated, as will exert themselves for Elections of President Vice President, Senators and H. of Representatives to increase his interest and promote his Views. in this point of View I am very apprehensive that this defect in our Constitution will have an unhappy Tendency to introduce Corruption of the grossest kinds both of Ambition and Avarice into all our Elections. and this will be the worst of Poisons to our Constitution—It will not only destroy the present form of government, but render it almost impossible to substitute into its place any free Government, even a better limited Monarchy, or any other than a Despotism or a Simple Monarchy.
4. To avoid the Evil, under the last head, it will be in danger of dividing the Continent into two or three Nations, a Case that possesses no prospect but of perpetual War.
5. This Negative on appointments, is in danger of involving the Senate in reproach, obloquy, Censure and Suspicion, without doing any good.—Will the Senate use their Negative or not. If not; why should they have it—many will censure them for not using it. many will ridicule them, call them Servile &c—if they do, use it. The very first Instance of it, will expose the Senators, to the Resentment not only of the disappointed Candidate and all his Friends, but of the President and all his Friends; and those will be most of the Officers of Government, through the nation.
6. We shall very soon have parties formed—A Court and Country Party, and these Parties will have names given them. one Party in the House of Representatives will support the President and his Measures and Ministers—the other will oppose them, a Similar Party will be in Senate. These parties will Struggle with all their Art, perhaps with Intrigue—perhaps with Corruption at Every Election to increase their own Friends and diminish their opposers. Suppose Such Parties formed in Senate, and then consider what Factious divisions We shall have there, upon every Nomination
7. The Senate have not time. The Convention & Indian Treaties.
You are of opinion "That the concurrence of the Senate in the Appointment to office, will Strengthen the hands of the Executive and secure the Confidence of the People, much better than a Select Council, and will be less expensive" but in every one of these Ideas, I have the Misfortune to differ from you. 1. it will weaken the hands of the Executive, by lessening the obligation, gratitude and attachment of the Candidate to the President: by dividing his attachment between the Executive and Legislative which are natural Ennemies.—officers of Government instead of having a Single Eye and undivided attachment to the Executive Branch, as they ought to have consistent with Law and the Constitution, will be constantly tempted to be factious with their factious Patrons in the Senate. The Presidents own officers in a thousand Instances will oppose his just and constitutional [Exertions], and Screen themselves under the Wings of their Patrons and Party in the Legislature. Nor will it Secure the Confidence of the People. The People will have more confidence in the Executive, in Executive matters than in the Senate.—The People will be constantly jealous of factious Schemes in the Senators to unduly influence the Executive, and of corrupt bargains between the senate and Executive, to serve each others private Views. The People will also be jealous that the influence of the Senate will be employed to conceal, connive and defend guilt in the Executive officers, instead of being a guard and watch upon them and a terror to them. A Council selected by the President himself at his Pleasure, from among the Senators, Representatives and Nation at large, would be purely responsible. in that Case, the Senate as a Body would not be compromised. The senate would be a Terror to Privy Councillors. its Honour would never be pledged to support any Measure or Instrument of the Executive, beyond Justice, Law, and the Constitution. Nor would a privy Council be more expensive. The whole Senate must now deliberate on every Appointment and, if they ever find time for it, you will find that a great deal of time will be required and consumed in this Service. Then the President might have a constant Executive Council, now he has none.
I said under the Seventh head that the Senate would not have time.—You will find that the whole Business of this Government will be infinitely delayed, by this Negative of the Senate on Treaties and appointments.—Indian Treaties and Consular Conventions have been already waiting for months and the Senate have not been able to find a moment of time to attend to them.—and this Evil must constantly increase. So that the Senate must be constantly sitting, and must be paid as long as they Sit.
but I have tired your Patience. Is there any Truth or Importance in these broken hints and crude Surmises? or not? To me they appear well founded and very important. I am / with usual Affection Yours
MHi: Foster Family Autograph Collection.