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| To understand the American Political system it is essential to read the Federalist Papers by Alexander Hamilton, James Madison and John Jay. These essays were meant to persuade all states to accept the new Constitution by explaining and justifying our ruling Constitution. |
The Federalist Papers: No. 65
The Powers of the Senate Continued
From the New York Packet.
Friday, March 7, 1788.
By Publius [Alexander
Hamilton for this Essay]
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.
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SUMMARY OF #65
* * * * * *
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 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?
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.
AUTHORS OF THE FEDERALIST PAPERS, who published under the name Publius, who were:
John Jay
[1745-1829] John Jay was an American statesman, Patriot, diplomat, one of the
Founding Fathers of the United States, negotiator and signatory of the Treaty
of Paris of 1783, second Governor of New York, and the first Chief Justice of
the United States.
Alexander Hamilton [1755-1804] Alexander Hamilton was an American statesman and one of
the Founding Fathers of the United States. He was an influential interpreter
and promoter of the U.S. Constitution, as well as the founder of the nation's
financial system, the Federalist Party, the United States Coast Guard, and the
New York Post newspaper. First Secretary
of the Treasury of the United States.
Hamilton is the author of Federalist Paper #65.
James Madison
[1751-1836 ] James Madison Jr. was an American statesman, lawyer, diplomat,
philosopher, and Founding Father who served as the fourth President of the
United States from 1809 to 1817.
