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 perpetual 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 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.









THE FEDERALIST.