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