The
Federalist Papers : No. 65
The Powers of the Senate Continued
From the New York Packet.
Friday, March 7, 1788.
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(Written by Alexander Hamilton)
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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. Present minority position of Republicans in the
House.
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. Reasons for the Constitution's not letting the more democratically
elected House do the whole job. Then, who must make the final decision?
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.
In the proposed Constitution,
Senate was not elected, but appointed by the State Legislatures.
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? (The House of Representatives) - Hamilton was not dealing with a directly elected Senate, which we have
today and DOES NOT HAVE CONFIDENCE IN ITS OWN SITUATION, BECAUSE, UNLIKE IN
1789, IT HAS TO RUN FOR RE-ELECTION. What would Hamilton had written if the Senate were elected as it is today?
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 prepetual 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? Reasons for not letting the Supreme Court have the
final word. And today, this may be applicable to the Senate as well.
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 commuity, 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.
