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
FEDERALIST No. 66
Objections to the Power of the Senate To Set as a Court for Impeachments
Further Considered.
From The Independent Journal. Saturday, March 8, 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 well-established 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.
If any further arguments were necessary to evince the improbability of
such a bias, it might be found in the nature of the agency of the Senate
in the business of appointments. It will be the office of the President
to NOMINATE, and, with the advice and consent of the Senate, to APPOINT.
There will, of course, be no exertion of CHOICE on the part of the
Senate. They may defeat one choice of the Executive, and oblige him to
make another; but they cannot themselves CHOOSE--they can only ratify
or reject the choice of the President. They might even entertain a
preference to some other person, at the very moment they were assenting
to the one proposed, because there might be no positive ground of
opposition to him; and they could not be sure, if they withheld their
assent, that the subsequent nomination would fall upon their own
favorite, or upon any other person in their estimation more meritorious
than the one rejected. Thus it could hardly happen, that the majority
of the Senate would feel any other complacency towards the object of an
appointment than such as the appearances of merit might inspire, and the
proofs of the want of it destroy.
A FOURTH objection to the Senate in the capacity of a court of
impeachments, is derived from its union with the Executive in the
power of making treaties. This, it has been said, would constitute the
senators their own judges, in every case of a corrupt or perfidious
execution of that trust. After having combined with the Executive
in betraying the interests of the nation in a ruinous treaty, what
prospect, it is asked, would there be of their being made to suffer the
punishment they would deserve, when they were themselves to decide upon
the accusation brought against them for the treachery of which they have
been guilty?
This objection has been circulated with more earnestness and with
greater show of reason than any other which has appeared against this
part of the plan; and yet I am deceived if it does not rest upon an
erroneous foundation.
The security essentially intended by the Constitution against corruption
and treachery in the formation of treaties, is to be sought for in the
numbers and characters of those who are to make them. The JOINT AGENCY
of the Chief Magistrate of the Union, and of two thirds of the members
of a body selected by the collective wisdom of the legislatures of the
several States, is designed to be the pledge for the fidelity of
the national councils in this particular. The convention might with
propriety have meditated the punishment of the Executive, for a
deviation from the instructions of the Senate, or a want of integrity in
the conduct of the negotiations committed to him; they might also have
had in view the punishment of a few leading individuals in the Senate,
who should have prostituted their influence in that body as the
mercenary instruments of foreign corruption: but they could not, with
more or with equal propriety, have contemplated the impeachment and
punishment of two thirds of the Senate, consenting to an improper
treaty, than of a majority of that or of the other branch of the
national legislature, consenting to a pernicious or unconstitutional
law--a principle which, I believe, has never been admitted into
any government. How, in fact, could a majority in the House of
Representatives impeach themselves? Not better, it is evident, than two
thirds of the Senate might try themselves. And yet what reason is
there, that a majority of the House of Representatives, sacrificing the
interests of the society by an unjust and tyrannical act of legislation,
should escape with impunity, more than two thirds of the Senate,
sacrificing the same interests in an injurious treaty with a foreign
power? The truth is, that in all such cases it is essential to the
freedom and to the necessary independence of the deliberations of the
body, that the members of it should be exempt from punishment for acts
done in a collective capacity; and the security to the society must
depend on the care which is taken to confide the trust to proper hands,
to make it their interest to execute it with fidelity, and to make it
as difficult as possible for them to combine in any interest opposite to
that of the public good.
So far as might concern the misbehavior of the Executive in perverting
the instructions or contravening the views of the Senate, we need not
be apprehensive of the want of a disposition in that body to punish the
abuse of their confidence or to vindicate their own authority. We may
thus far count upon their pride, if not upon their virtue. And so far
even as might concern the corruption of leading members, by whose arts
and influence the majority may have been inveigled into measures
odious to the community, if the proofs of that corruption should be
satisfactory, the usual propensity of human nature will warrant us in
concluding that there would be commonly no defect of inclination in
the body to divert the public resentment from themselves by a ready
sacrifice of the authors of their mismanagement and disgrace.
PUBLIUS
1. In that of New Jersey, also, the final judiciary authority is in
a branch of the legislature. In New Hampshire, Massachusetts,
Pennsylvania, and South Carolina, one branch of the legislature is the
court for the trial of impeachments.
FEDERALIST No. 67
The Executive Department
From the New York Packet. Tuesday, March 11, 1788.
HAMILTON
To the People of the State of New York:
THE constitution of the executive department of the proposed government,
claims next our attention.
There is hardly any part of the system which could have been attended
with greater difficulty in the arrangement of it than this; and there
is, perhaps, none which has been inveighed against with less candor or
criticised with less judgment.