The Federalist Papers
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