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The Powers of the Senate Continued
To the People of the State of New York:
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.
Hamilton From the New York Packet.
Friday, March 7, 1788.
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.