convicted, one for habitual drunkenness, and the other for having joined the Secessionists of 1861. We shall see presently that impeachment is the only means by which a Federal judge can be got rid of.

One senator, who was acquitted for want of jurisdiction, the Senate deciding that a senatorship is not a "civil office" within the meaning of Art. iii. § 4 of the Constitution.

One minister, a secretary of war, who resigned before the impeachment was actually preferred, and escaped on the ground that being a private person he was not impeachable.

Rare as this method of proceeding is, it could not be dispensed with, and it is better that the Senate should try cases in which a political element is usually present, than that the impartiality of the Supreme court should be exposed to the criticism it would have to bear, did political questions come before it. Most senators are or have been lawyers of eminence, so that so far as legal knowledge goes they are competent menbers of a court.

CHAPTER XII

THE SENATE: ITS WORKING AND INFLUENCE

THE Americans consider the Senate one of the successes of their Constitution, a worthy monument of the wisdom and foresight of its founders. Foreign observers have repeated this praise, and have perhaps, in their less perfect knowledge, sounded it even more loudly.

The aims with which the Senate was created, the purposes it was to fulfil, are set forth, under the form of answers to objections, in five letters (lxi.-lxv.), all by Alexander Hamilton, in the Federalist. These aims were the five following:

To conciliate the spirit of independence in the several States, by giving each, however small, equal representation with every other, however large, in one branch of the national government.

To create a council qualified, by its moderate size and the experience of its members, to advise and check the President in the exercise of his powers of appointing to office and concluding treaties.

To restrain the impetuosity and fickleness of the popular House, and so guard against the effects of gusts of passion or sudden changes of opinion in the people.

To provide a body of men whose greater experience, longer term of membership, and comparative independence of popular election, would make them an element of stability in the government of the nation, enabling it to maintain its character in the eyes of foreign States, and to preserve a continuity of policy at home and abroad.

To establish a Court proper for the trial of impeachments, a remedy deemed necessary to prevent abuse of power by the executive.

1 See also Hamilton's speeches in the New York Convention. -Elliot's Debates. ii. p. 301 sqq.

All of these five objects have been more or less perfectly attained; and the Senate has acquired a position in the government of the nation which Hamilton scarcely ventured to hope for. In 1788 he wrote: " 'Against the force of the immediate representatives of the people nothing will be able to maintain even the constitutional authority of the Senate, but such a display of enlightened policy, and attachment to the public good, as will divide with the House of Representatives the affections and support of the entire body of the people themselves."

It may be doubted whether the Senate has excelled the House in attachment to the public good; but it has certainly shown greater capacity for managing the public business, and has won the respect, if not the affections, of the people, by its sustained intellectual power.

The Federalist did not think it necessary to state, nor have Americans generally realized, that this masterpiece of the Constitution-makers was in fact a happy accident. No one in the Convention of 1787 set out with the idea of such a Senate as ultimately emerged from their deliberations. It grew up under the hands of the Convention, as the result of the necessity for reconciling the conflicting demands of the large and the small States. The concession of equal representation in the Senate: induced the small States to accept the principle of representation according to population in the House of Representatives; and a series of compromises between the advocates of popular power, as embodied in the House, and those of monarchical power, as embodied in the President, led to the allotment of attributes and functions which have made the Senate what it is. When the work which they had almost unconsciously perfected was finished, the leaders of the Convention perceived its excellence, and defended it by arguments in which we feel the note of sincere conviction. Yet the conception they formed of it differed from the reality which has been evolved. Although they had created it as a branch of the legislature, they thought of it as being first and foremost a body with executive functions. And this, at first, it was. The traditions of the old Congress of the Confederation, in which the delegates of the States voted by States, the still earlier traditions of the executive councils, which advised the governors of the colonies while still subject to the British Crown, clung about the Senate and affected the

minds of the senators. It was a small body, originally of twenty-six, even in 1810 of thirty-four members only, a body not ill fitted for executive work. Its members, regarding themselves as a sort of congress of ambassadors from their respective States, were accustomed to refer for advice and instructions each to his State legislature. So late as 1828, a senator after arguing strongly against a measure declared that he would nevertheless vote for it, because he believed his State to be in its favour.1 For the first five years of its existence, the Senate sat with closed doors, occupying itself chiefly with the confidential business of appointments and treaties, and conferring in private with the ministers of the President. Not till 1816 did it create, in imitation of the House, those Standing Committees which the experience of the House had shown to be, in bodies where the executive ministers do not sit, the necessary organs for dealing with legislative business. Its present character as a legisla tive body, not less active and powerful than the other branch of Congress, is the result of a long process of evolution, a process possible (as will be more fully explained hereafter) even under the rigid Constitution of the United States, because the language of the sections which define the competence of the Senate is very wide and general. But in gaining legislative authority, it has not lost its executive functions, although those which relate to treaties are largely exercised on the advice of the standing Committee on Foreign Relations. And as respects these executive functions it stands alone in the world. No European state, no British colony, entrusts to an elective assembly that direct participation in executive business which the Senate enjoys.

What is meant by saying that the Senate has proved a success?

It has succeeded by effecting that chief object of the Fathers of the Constitution, the creation of a centre of gravity in the government, an authority able to correct and check on the one hand the "democratic recklessness" of the House, on the other the "monarchical ambition" of the President. Placed between the two, it is necessarily the rival and generally the opponent of both. The House can accomplish nothing without its concurrence. The President can be checkmated by its resistance. These are, so to speak, negative or prohibitive successes. It has 1 A similar statement was made in 1883 by a Senator from Arkansas in justifying his vote for a bill he disapproved.

achieved less in the way of positive work, whether of initiating good legislation or of improving the measures which the House sends it. But the whole scheme of the American Constitution tends to put stability above activity, to sacrifice the productive energies of the bodies it creates to their power of resisting changes in the general fabric of the government. The Senate has succeeded in making itself eminent and respected. It has drawn the best talent of the nation, so far as that talent flows to politics, into its body, has established an intellectual supremacy, has furnished a vantage ground from which men of ability may speak with authority to their fellow-citizens.

Hamilton

To what causes are these successes to be ascribed ? assumed that the Senate would be weaker than the House of Representatives, because it would not so directly spring from, speak for, be looked to by, the people. This was a natural view, especially as the analogy between the position of the Senate towards the House of Representatives in America, and that of the House of Lords towards the House of Commons in Great Britain, an analogy constantly present to the men of 1787, seemed to suggest that the larger and more popular chamber must dwarf and overpower the smaller one. But the Senate has proved no less strong, and morally more influential, than its sister House of Congress. The analogy was unsound, because the British House of Lords is hereditary and the Senate representative. In these days no hereditary assembly, be its members. ever so able, ever so wealthy, ever so socially influential, can speak with the authority which belongs to those who speak for the people. Mirabeau's famous words in the Salle des Menus at Versailles, "We are here by the will of the people, and nothing but bayonets shall send us hence," express the whole current of modern feeling; though it is only to-day that the belated political philosophers of England are awakening to perceive that the fault of their House of Lords is not that it is too strong, but that it is too weak, and that no assembly can now be strong unless it is representative. Now the Senate, albeit not chosen by direct popular election, does represent the people; and what it may lose through not standing in immediate contact with the masses, it gains in representing such ancient and powerful commonwealths as the States. A senator from New York or Pennsylvania speaks for, and is responsible to, millions of men. No wonder he has an authority beyond that of the long-descended