proposed, are averse to their being the SUPREME laws of the land. They
insist, and profess to believe, that treaties like acts of assembly,
should be repealable at pleasure. This idea seems to be new and
peculiar to this country, but new errors, as well as new truths, often
appear. These gentlemen would do well to reflect that a treaty is only
another name for a bargain, and that it would be impossible to find a
nation who would make any bargain with us, which should be binding on
them ABSOLUTELY, but on us only so long and so far as we may think
proper to be bound by it. They who make laws may, without doubt, amend
or repeal them; and it will not be disputed that they who make treaties
may alter or cancel them; but still let us not forget that treaties are
made, not by only one of the contracting parties, but by both; and
consequently, that as the consent of both was essential to their
formation at first, so must it ever afterwards be to alter or cancel
them. The proposed Constitution, therefore, has not in the least
extended the obligation of treaties. They are just as binding, and just
as far beyond the lawful reach of legislative acts now, as they will be
at any future period, or under any form of government.
However useful jealousy may be in republics, yet when like bile in the
natural, it abounds too much in the body politic, the eyes of both
become very liable to be deceived by the delusive appearances which
that malady casts on surrounding objects. From this cause, probably,
proceed the fears and apprehensions of some, that the President and
Senate may make treaties without an equal eye to the interests of all
the States. Others suspect that two thirds will oppress the remaining
third, and ask whether those gentlemen are made sufficiently
responsible for their conduct; whether, if they act corruptly, they can
be punished; and if they make disadvantageous treaties, how are we to
get rid of those treaties?
As all the States are equally represented in the Senate, and by men the
most able and the most willing to promote the interests of their
constituents, they will all have an equal degree of influence in that
body, especially while they continue to be careful in appointing proper
persons, and to insist on their punctual attendance. In proportion as
the United States assume a national form and a national character, so
will the good of the whole be more and more an object of attention, and
the government must be a weak one indeed, if it should forget that the
good of the whole can only be promoted by advancing the good of each of
the parts or members which compose the whole. It will not be in the
power of the President and Senate to make any treaties by which they
and their families and estates will not be equally bound and affected
with the rest of the community; and, having no private interests
distinct from that of the nation, they will be under no temptations to
neglect the latter.
As to corruption, the case is not supposable. He must either have been
very unfortunate in his intercourse with the world, or possess a heart
very susceptible of such impressions, who can think it probable that
the President and two thirds of the Senate will ever be capable of such
unworthy conduct. The idea is too gross and too invidious to be
entertained. But in such a case, if it should ever happen, the treaty
so obtained from us would, like all other fraudulent contracts, be null
and void by the law of nations.
With respect to their responsibility, it is difficult to conceive how
it could be increased. Every consideration that can influence the human
mind, such as honor, oaths, reputations, conscience, the love of
country, and family affections and attachments, afford security for
their fidelity. In short, as the Constitution has taken the utmost care
that they shall be men of talents and integrity, we have reason to be
persuaded that the treaties they make will be as advantageous as, all
circumstances considered, could be made; and so far as the fear of
punishment and disgrace can operate, that motive to good behavior is
amply afforded by the article on the subject of impeachments.
PUBLIUS.
THE FEDERALIST.
No. LXV.
The Powers of the Senate Continued
From the New York Packet.
Friday, March 7, 1788.
HAMILTON
To the People of the State of New York:
The remaining powers which the plan of the convention allots to the
Senate, in a distinct capacity, are comprised in their participation
with the executive in the appointment to offices, and in their judicial
character as a court for the trial of impeachments. As in the business
of appointments the executive will be the principal agent, the
provisions relating to it will most properly be discussed in the
examination of that department. We will, therefore, conclude this head
with a view of the judicial character of the Senate.
A well-constituted court for the trial of impeachments is an object not
more to be desired than difficult to be obtained in a government wholly
elective. The subjects of its jurisdiction are those offenses which
proceed from the misconduct of public men, or, in other words, from the
abuse or violation of some public trust. They are of a nature which may
with peculiar propriety be denominated POLITICAL, as they relate
chiefly to injuries done immediately to the society itself. The
prosecution of them, for this reason, will seldom fail to agitate the
passions of the whole community, and to divide it into parties more or
less friendly or inimical to the accused. In many cases it will connect
itself with the pre-existing factions, and will enlist all their
animosities, partialities, influence, and interest on one side or on
the other; and in such cases there will always be the greatest danger
that the decision will be regulated more by the comparative strength of
parties, than by the real demonstrations of innocence or guilt.
The delicacy and magnitude of a trust which so deeply concerns the
political reputation and existence of every man engaged in the
administration of public affairs, speak for themselves. The difficulty
of placing it rightly, in a government resting entirely on the basis of
periodical elections, will as readily be perceived, when it is
considered that the most conspicuous characters in it will, from that
circumstance, be too often the leaders or the tools of the most cunning
or the most numerous faction, and on this account, can hardly be
expected to possess the requisite neutrality towards those whose
conduct may be the subject of scrutiny.
The convention, it appears, thought the Senate the most fit depositary
of this important trust. Those who can best discern the intrinsic
difficulty of the thing, will be least hasty in condemning that
opinion, and will be most inclined to allow due weight to the arguments
which may be supposed to have produced it.
What, it may be asked, is the true spirit of the institution itself? Is
it not designed as a method of NATIONAL INQUEST into the conduct of
public men? If this be the design of it, who can so properly be the
inquisitors for the nation as the representatives of the nation
themselves? It is not disputed that the power of originating the
inquiry, or, in other words, of preferring the impeachment, ought to be
lodged in the hands of one branch of the legislative body. Will not the
reasons which indicate the propriety of this arrangement strongly plead
for an admission of the other branch of that body to a share of the
inquiry? The model from which the idea of this institution has been
borrowed, pointed out that course to the convention. In Great Britain
it is the province of the House of Commons to prefer the impeachment,
and of the House of Lords to decide upon it. Several of the State
constitutions have followed the example. As well the latter, as the
former, seem to have regarded the practice of impeachments as a bridle
in the hands of the legislative body upon the executive servants of the
government. Is not this the true light in which it ought to be
regarded?
Where else than in the Senate could have been found a tribunal
sufficiently dignified, or sufficiently independent? What other body
would be likely to feel CONFIDENCE ENOUGH IN ITS OWN SITUATION, to
preserve, unawed and uninfluenced, the necessary impartiality between
an INDIVIDUAL accused, and the REPRESENTATIVES OF THE PEOPLE, HIS
ACCUSERS?
Could the Supreme Court have been relied upon as answering this
description? It is much to be doubted, whether the members of that
tribunal would at all times be endowed with so eminent a portion of
fortitude, as would be called for in the execution of so difficult a
task; and it is still more to be doubted, whether they would possess
the degree of credit and authority, which might, on certain occasions,
be indispensable towards reconciling the people to a decision that
should happen to clash with an accusation brought by their immediate
representatives. A deficiency in the first, would be fatal to the
accused; in the last, dangerous to the public tranquillity. The hazard
in both these respects, could only be avoided, if at all, by rendering
that tribunal more numerous than would consist with a reasonable
attention to economy. The necessity of a numerous court for the trial
of impeachments, is equally dictated by the nature of the proceeding.
This can never be tied down by such strict rules, either in the
delineation of the offense by the prosecutors, or in the construction
of it by the judges, as in common cases serve to limit the discretion
of courts in favor of personal security. There will be no jury to stand
between the judges who are to pronounce the sentence of the law, and
the party who is to receive or suffer it. The awful discretion which a
court of impeachments must necessarily have, to doom to honor or to
infamy the most confidential and the most distinguished characters of
the community, forbids the commitment of the trust to a small number of
persons.
These considerations seem alone sufficient to authorize a conclusion,
that the Supreme Court would have been an improper substitute for the
Senate, as a court of impeachments. There remains a further
consideration, which will not a little strengthen this conclusion. It
is this: The punishment which may be the consequence of conviction upon
impeachment, is not to terminate the chastisement of the offender.
After having been sentenced to a perpetual ostracism from the esteem
and confidence, and honors and emoluments of his country, he will still
be liable to prosecution and punishment in the ordinary course of law.
Would it be proper that the persons who had disposed of his fame, and
his most valuable rights as a citizen in one trial, should, in another
trial, for the same offense, be also the disposers of his life and his
fortune? Would there not be the greatest reason to apprehend, that
error, in the first sentence, would be the parent of error in the
second sentence? That the strong bias of one decision would be apt to
overrule the influence of any new lights which might be brought to vary
the complexion of another decision? Those who know anything of human
nature, will not hesitate to answer these questions in the affirmative;
and will be at no loss to perceive, that by making the same persons
judges in both cases, those who might happen to be the objects of
prosecution would, in a great measure, be deprived of the double
security intended them by a double trial. The loss of life and estate
would often be virtually included in a sentence which, in its terms,
imported nothing more than dismission from a present, and
disqualification for a future, office. It may be said, that the
intervention of a jury, in the second instance, would obviate the
danger. But juries are frequently influenced by the opinions of judges.
They are sometimes induced to find special verdicts, which refer the
main question to the decision of the court. Who would be willing to
stake his life and his estate upon the verdict of a jury acting under
the auspices of judges who had predetermined his guilt?
Would it have been an improvement of the plan, to have united the
Supreme Court with the Senate, in the formation of the court of
impeachments? This union would certainly have been attended with
several advantages; but would they not have been overbalanced by the
signal disadvantage, already stated, arising from the agency of the
same judges in the double prosecution to which the offender would be
liable? To a certain extent, the benefits of that union will be
obtained from making the chief justice of the Supreme Court the
president of the court of impeachments, as is proposed to be done in
the plan of the convention; while the inconveniences of an entire
incorporation of the former into the latter will be substantially
avoided. This was perhaps the prudent mean. I forbear to remark upon
the additional pretext for clamor against the judiciary, which so
considerable an augmentation of its authority would have afforded.
Would it have been desirable to have composed the court for the trial
of impeachments, of persons wholly distinct from the other departments
of the government? There are weighty arguments, as well against, as in
favor of, such a plan. To some minds it will not appear a trivial
objection, that it could tend to increase the complexity of the
political machine, and to add a new spring to the government, the
utility of which would at best be questionable. But an objection which
will not be thought by any unworthy of attention, is this: a court
formed upon such a plan, would either be attended with a heavy expense,
or might in practice be subject to a variety of casualties and
inconveniences. It must either consist of permanent officers,
stationary at the seat of government, and of course entitled to fixed
and regular stipends, or of certain officers of the State governments
to be called upon whenever an impeachment was actually depending. It
will not be easy to imagine any third mode materially different, which
could rationally be proposed. As the court, for reasons already given,
ought to be numerous, the first scheme will be reprobated by every man
who can compare the extent of the public wants with the means of
supplying them. The second will be espoused with caution by those who
will seriously consider the difficulty of collecting men dispersed over
the whole Union; the injury to the innocent, from the procrastinated
determination of the charges which might be brought against them; the
advantage to the guilty, from the opportunities which delay would
afford to intrigue and corruption; and in some cases the detriment to
the State, from the prolonged inaction of men whose firm and faithful
execution of their duty might have exposed them to the persecution of
an intemperate or designing majority in the House of Representatives.
Though this latter supposition may seem harsh, and might not be likely
often to be verified, yet it ought not to be forgotten that the demon
of faction will, at certain seasons, extend his sceptre over all
numerous bodies of men.
But though one or the other of the substitutes which have been
examined, or some other that might be devised, should be thought
preferable to the plan in this respect, reported by the convention, it
will not follow that the Constitution ought for this reason to be
rejected. If mankind were to resolve to agree in no institution of
government, until every part of it had been adjusted to the most exact
standard of perfection, society would soon become a general scene of
anarchy, and the world a desert. Where is the standard of perfection to
be found? Who will undertake to unite the discordant opinions of a
whole community, in the same judgment of it; and to prevail upon one
conceited projector to renounce his INFALLIBLE criterion for the
FALLIBLE criterion of his more CONCEITED NEIGHBOR? To answer the
purpose of the adversaries of the Constitution, they ought to prove,
not merely that particular provisions in it are not the best which
might have been imagined, but that the plan upon the whole is bad and
pernicious.
PUBLIUS.
THE FEDERALIST.
No. LXVI.
Objections to the Power of the Senate To Set as a Court for
Impeachments Further Considered
From the New York Packet.
Tuesday, March 11, 1788.
HAMILTON
To the People of the State of New York:
A review of the principal objections that have appeared against the
proposed court for the trial of impeachments, will not improbably
eradicate the remains of any unfavorable impressions which may still
exist in regard to this matter.
The FIRST of these objections is, that the provision in question
confounds legislative and judiciary authorities in the same body, in
violation of that important and wellestablished maxim which requires a
separation between the different departments of power. The true meaning
of this maxim has been discussed and ascertained in another place, and
has been shown to be entirely compatible with a partial intermixture of
those departments for special purposes, preserving them, in the main,
distinct and unconnected. This partial intermixture is even, in some
cases, not only proper but necessary to the mutual defense of the
several members of the government against each other. An absolute or
qualified negative in the executive upon the acts of the legislative
body, is admitted, by the ablest adepts in political science, to be an
indispensable barrier against the encroachments of the latter upon the
former. And it may, perhaps, with no less reason be contended, that the
powers relating to impeachments are, as before intimated, an essential
check in the hands of that body upon the encroachments of the
executive. The division of them between the two branches of the
legislature, assigning to one the right of accusing, to the other the
right of judging, avoids the inconvenience of making the same persons
both accusers and judges; and guards against the danger of persecution,
from the prevalency of a factious spirit in either of those branches.
As the concurrence of two thirds of the Senate will be requisite to a
condemnation, the security to innocence, from this additional
circumstance, will be as complete as itself can desire.
It is curious to observe, with what vehemence this part of the plan is
assailed, on the principle here taken notice of, by men who profess to
admire, without exception, the constitution of this State; while that
constitution makes the Senate, together with the chancellor and judges
of the Supreme Court, not only a court of impeachments, but the highest
judicatory in the State, in all causes, civil and criminal. The
proportion, in point of numbers, of the chancellor and judges to the
senators, is so inconsiderable, that the judiciary authority of New
York, in the last resort, may, with truth, be said to reside in its
Senate. If the plan of the convention be, in this respect, chargeable
with a departure from the celebrated maxim which has been so often
mentioned, and seems to be so little understood, how much more culpable
must be the constitution of New York?[1]
A SECOND objection to the Senate, as a court of impeachments, is, that
it contributes to an undue accumulation of power in that body, tending
to give to the government a countenance too aristocratic. The Senate,
it is observed, is to have concurrent authority with the Executive in
the formation of treaties and in the appointment to offices: if, say
the objectors, to these prerogatives is added that of deciding in all
cases of impeachment, it will give a decided predominancy to senatorial
influence. To an objection so little precise in itself, it is not easy
to find a very precise answer. Where is the measure or criterion to
which we can appeal, for determining what will give the Senate too
much, too little, or barely the proper degree of influence? Will it not
be more safe, as well as more simple, to dismiss such vague and
uncertain calculations, to examine each power by itself, and to decide,
on general principles, where it may be deposited with most advantage
and least inconvenience?
If we take this course, it will lead to a more intelligible, if not to
a more certain result. The disposition of the power of making treaties,
which has obtained in the plan of the convention, will, then, if I
mistake not, appear to be fully justified by the considerations stated
in a former number, and by others which will occur under the next head
of our inquiries. The expediency of the junction of the Senate with the
Executive, in the power of appointing to offices, will, I trust, be
placed in a light not less satisfactory, in the disquisitions under the
same head. And I flatter myself the observations in my last paper must
have gone no inconsiderable way towards proving that it was not easy,
if practicable, to find a more fit receptacle for the power of
determining impeachments, than that which has been chosen. If this be
truly the case, the hypothetical dread of the too great weight of the
Senate ought to be discarded from our reasonings.
But this hypothesis, such as it is, has already been refuted in the
remarks applied to the duration in office prescribed for the senators.
It was by them shown, as well on the credit of historical examples, as
from the reason of the thing, that the most POPULAR branch of every
government, partaking of the republican genius, by being generally the
favorite of the people, will be as generally a full match, if not an
overmatch, for every other member of the Government.
But independent of this most active and operative principle, to secure
the equilibrium of the national House of Representatives, the plan of
the convention has provided in its favor several important
counterpoises to the additional authorities to be conferred upon the
Senate. The exclusive privilege of originating money bills will belong
to the House of Representatives. The same house will possess the sole
right of instituting impeachments: is not this a complete
counterbalance to that of determining them? The same house will be the
umpire in all elections of the President, which do not unite the
suffrages of a majority of the whole number of electors; a case which
it cannot be doubted will sometimes, if not frequently, happen. The
constant possibility of the thing must be a fruitful source of
influence to that body. The more it is contemplated, the more important
will appear this ultimate though contingent power, of deciding the
competitions of the most illustrious citizens of the Union, for the
first office in it. It would not perhaps be rash to predict, that as a
mean of influence it will be found to outweigh all the peculiar
attributes of the Senate.
A THIRD objection to the Senate as a court of impeachments, is drawn
from the agency they are to have in the appointments to office. It is
imagined that they would be too indulgent judges of the conduct of men,
in whose official creation they had participated. The principle of this
objection would condemn a practice, which is to be seen in all the
State governments, if not in all the governments with which we are
acquainted: I mean that of rendering those who hold offices during
pleasure, dependent on the pleasure of those who appoint them. With
equal plausibility might it be alleged in this case, that the
favoritism of the latter would always be an asylum for the misbehavior
of the former. But that practice, in contradiction to this principle,
proceeds upon the presumption, that the responsibility of those who
appoint, for the fitness and competency of the persons on whom they
bestow their choice, and the interest they will have in the respectable
and prosperous administration of affairs, will inspire a sufficient
disposition to dismiss from a share in it all such who, by their
conduct, shall have proved themselves unworthy of the confidence
reposed in them. Though facts may not always correspond with this
presumption, yet if it be, in the main, just, it must destroy the
supposition that the Senate, who will merely sanction the choice of the
Executive, should feel a bias, towards the objects of that choice,
strong enough to blind them to the evidences of guilt so extraordinary,
as to have induced the representatives of the nation to become its
accusers.