FEDERALIST No. 65

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

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.