1787 Federalist 65 · Founding Made Plain

11787 Federalist No. 65

2The Powers of the Senate Continued

3From the New York Packet.

4Friday, March 7, 1788.

5HAMILTON

6To the People of the State of New York:

7THE remaining powers which the plan of the convention

8 allots to the Senate, in a distinct capacity,

9 are comprised in their participation with the executive

10 in the appointment to offices,

11 and in their judicial character

12 as a court for the trial of impeachments.

13As in the business of appointments

14 the executive will be the principal agent,

15 the provisions relating to it

16 will most properly be discussed

17 in the examination of that department.

18We will, therefore, conclude this head

19 with a view of the judicial character of the Senate.

20A well-constituted court for the trial of impeachments

21 is an object not more to be desired

22 than difficult to be obtained

23 in a government wholly elective.

24The subjects of its jurisdiction

25 are those offenses which proceed

26 from the misconduct of public men,

27 or, in other words,

28 from the abuse or violation of some public trust.

29They are of a nature

30 which may with peculiar propriety

31 be denominated POLITICAL,

32 as they relate chiefly to injuries done immediately

33 to the society itself.

34The prosecution of them, for this reason,

35 will seldom fail to agitate the passions

36 of the whole community,

37 and to divide it into parties

38 more or less friendly or inimical to the accused.

39In many cases it will connect itself

40 with the pre-existing factions,

41 and will enlist all their animosities, partialities,

42 influence, and interest

43 on one side or on the other;

44 and in such cases there will always

45 be the greatest danger

46 that the decision will be regulated

47 more by the comparative strength of parties,

48 than by the real demonstrations

49 of innocence or guilt.

50The delicacy and magnitude of a trust

51 which so deeply concerns the political reputation

52 and existence of every man

53 engaged in the administration of public affairs,

54 speak for themselves.

55The difficulty of placing it rightly,

56 in a government resting entirely

57 on the basis of periodical elections,

58 will as readily be perceived,

59 when it is considered

60 that the most conspicuous characters in it will,

61 from that circumstance,

62 be too often the leaders or the tools

63 of the most cunning or the most numerous faction,

64 and on this account,

65 can hardly be expected to possess

66 the requisite neutrality towards those

67 whose conduct may be the subject of scrutiny.

68The convention, it appears,

69 thought the Senate the most fit depositary

70 of this important trust.

71Those who can best discern

72 the intrinsic difficulty of the thing,

73 will be least hasty in condemning that opinion,

74 and will be most inclined to allow due weight

75 to the arguments which may be supposed

76 to have produced it.

77What, it may be asked,

78 is the true spirit of the institution itself?

79Is it not designed as a method of NATIONAL INQUEST

80 into the conduct of public men?

81If this be the design of it,

82 who can so properly be the inquisitors for the nation

83 as the representatives of the nation themselves?

84It is not disputed

85 that the power of originating the inquiry,

86 or, in other words, of preferring the impeachment,

87 ought to be lodged in the hands

88 of one branch of the legislative body.

89Will not the reasons which indicate the propriety

90 of this arrangement

91 strongly plead for an admission

92 of the other branch of that body

93 to a share of the inquiry?

94The model from which the idea of this institution

95 has been borrowed,

96 pointed out that course to the convention.

97In Great Britain it is the province

98 of the House of Commons to prefer the impeachment,

99 and of the House of Lords to decide upon it.

100Several of the State constitutions

101 have followed the example.

102As well the latter, as the former,

103 seem to have regarded the practice of impeachments

104 as a bridle in the hands of the legislative body

105 upon the executive servants of the government.

106Is not this the true light

107 in which it ought to be regarded?

108Where else than in the Senate

109 could have been found a tribunal

110 sufficiently dignified,

111 or sufficiently independent?

112What other body would be likely to feel

113 CONFIDENCE ENOUGH IN ITS OWN SITUATION,

114 to preserve, unawed and uninfluenced,

115 the necessary impartiality

116 between an INDIVIDUAL accused,

117 and the REPRESENTATIVES OF THE PEOPLE,

118 HIS ACCUSERS?

119Could the Supreme Court have been relied upon

120 as answering this description?

121It is much to be doubted,

122 whether the members of that tribunal

123 would at all times be endowed

124 with so eminent a portion of fortitude,

125 as would be called for

126 in the execution of so difficult a task;

127 and it is still more to be doubted,

128 whether they would possess

129 the degree of credit and authority,

130 which might, on certain occasions,

131 be indispensable towards reconciling the people

132 to a decision that should happen to clash

133 with an accusation brought

134 by their immediate representatives.

135A deficiency in the first, would be fatal to the accused;

136 in the last, dangerous to the public tranquillity.

137The hazard in both these respects,

138 could only be avoided, if at all,

139 by rendering that tribunal more numerous

140 than would consist with a reasonable attention

141 to economy.

142The necessity of a numerous court

143 for the trial of impeachments,

144 is equally dictated by the nature of the proceeding.

145This can never be tied down by such strict rules,

146 either in the delineation of the offense

147 by the prosecutors,

148 or in the construction of it by the judges,

149 as in common cases serve to limit the discretion

150 of courts in favor of personal security.

151There will be no jury to stand between the judges

152 who are to pronounce the sentence of the law,

153 and the party who is to receive or suffer it.

154The awful discretion which a court of impeachments

155 must necessarily have,

156 to doom to honor or to infamy

157 the most confidential

158 and the most distinguished characters

159 of the community,

160 forbids the commitment of the trust

161 to a small number of persons.

162These considerations seem alone sufficient

163 to authorize a conclusion,

164 that the Supreme Court would have been

165 an improper substitute for the Senate,

166 as a court of impeachments.

167There remains a further consideration,

168 which will not a little strengthen this conclusion.

169It is this: The punishment which may be the consequence

170 of conviction upon impeachment,

171 is not to terminate the chastisement of the offender.

172After having been sentenced to a prepetual ostracism

173 from the esteem and confidence,

174 and honors and emoluments of his country,

175 he will still be liable to prosecution and punishment

176 in the ordinary course of law.

177Would it be proper that the persons

178 who had disposed of his fame,

179 and his most valuable rights as a citizen

180 in one trial,

181 should, in another trial, for the same offense,

182 be also the disposers of his life and his fortune?

183Would there not be the greatest reason to apprehend,

184 that error, in the first sentence,

185 would be the parent of error

186 in the second sentence?

187That the strong bias of one decision

188 would be apt to overrule the influence

189 of any new lights

190 which might be brought to vary

191 the complexion of another decision?

192Those who know anything of human nature,

193 will not hesitate to answer these questions

194 in the affirmative;

195 and will be at no loss to perceive,

196 that by making the same persons

197 judges in both cases,

198 those who might happen to be

199 the objects of prosecution

200 would, in a great measure, be deprived

201 of the double security intended them

202 by a double trial.

203The loss of life and estate would often

204 be virtually included

205 in a sentence which, in its terms,

206 imported nothing more than dismission

207 from a present,

208 and disqualification for a future, office.

209It may be said,

210 that the intervention of a jury,

211 in the second instance,

212 would obviate the danger.

213But juries are frequently influenced

214 by the opinions of judges.

215They are sometimes induced to find special verdicts,

216 which refer the main question

217 to the decision of the court.

218Who would be willing to stake his life and his estate

219 upon the verdict of a jury

220 acting under the auspices of judges

221 who had predetermined his guilt?

222Would it have been an improvement of the plan,

223 to have united the Supreme Court with the Senate,

224 in the formation of the court of impeachments?

225This union would certainly have been attended

226 with several advantages;

227 but would they not have been overbalanced

228 by the signal disadvantage, already stated,

229 arising from the agency of the same judges

230 in the double prosecution

231 to which the offender would be liable?

232To a certain extent, the benefits of that union

233 will be obtained from making the chief justice

234 of the Supreme Court

235 the president of the court of impeachments,

236 as is proposed to be done

237 in the plan of the convention;

238 while the inconveniences of an entire incorporation

239 of the former into the latter

240 will be substantially avoided.

241This was perhaps the prudent mean.

242I forbear to remark upon the additional pretext

243 for clamor against the judiciary,

244 which so considerable an augmentation of its authority

245 would have afforded.

246Would it have been desirable

247 to have composed the court

248 for the trial of impeachments,

249 of persons wholly distinct

250 from the other departments of the government?

251There are weighty arguments,

252 as well against, as in favor of, such a plan.

253To some minds it will not appear a trivial objection,

254 that it could tend to increase the complexity

255 of the political machine,

256 and to add a new spring to the government,

257 the utility of which would at best be questionable.

258But an objection which will not be thought

259 by any unworthy of attention, is this:

260 a court formed upon such a plan,

261 would either be attended with a heavy expense,

262 or might in practice be subject

263 to a variety of casualties and inconveniences.

264It must either consist of permanent officers,

265 stationary at the seat of government,

266 and of course entitled

267 to fixed and regular stipends,

268 or of certain officers of the State governments

269 to be called upon whenever an impeachment

270 was actually depending.

271It will not be easy to imagine any third mode

272 materially different,

273 which could rationally be proposed.

274As the court, for reasons already given,

275 ought to be numerous,

276 the first scheme will be reprobated by every man

277 who can compare the extent of the public wants

278 with the means of supplying them.

279The second will be espoused with caution

280 by those who will seriously consider

281 the difficulty of collecting men

282 dispersed over the whole Union;

283 the injury to the innocent,

284 from the procrastinated determination

285 of the charges which might be brought against them;

286 the advantage to the guilty,

287 from the opportunities which delay would afford

288 to intrigue and corruption;

289 and in some cases the detriment to the State,

290 from the prolonged inaction of men

291 whose firm and faithful execution of their duty

292 might have exposed them to the persecution

293 of an intemperate or designing majority

294 in the House of Representatives.

295Though this latter supposition may seem harsh,

296 and might not be likely often to be verified,

297 yet it ought not to be forgotten

298 that the demon of faction will, at certain seasons,

299 extend his sceptre over all numerous bodies of men.

300But though one or the other of the substitutes

301 which have been examined,

302 or some other that might be devised,

303 should be thought preferable

304 to the plan in this respect,

305 reported by the convention,

306 it will not follow

307 that the Constitution ought for this reason

308 to be rejected.

309If mankind were to resolve to agree

310 in no institution of government,

311 until every part of it had been adjusted

312 to the most exact standard of perfection,

313 society would soon become a general scene of anarchy,

314 and the world a desert.

315Where is the standard of perfection to be found?

316Who will undertake to unite the discordant opinions

317 of a whole commuity, in the same judgment of it;

318 and to prevail upon one conceited projector

319 to renounce his INFALLIBLE criterion

320 for the FALLIBLE criterion

321 of his more CONCEITED NEIGHBOR?

322To answer the purpose of the adversaries

323 of the Constitution,

324 they ought to prove,

325 not merely that particular provisions in it

326 are not the best which might have been imagined,

327 but that the plan upon the whole

328 is bad and pernicious.

329PUBLIUS.