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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.