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 offences
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 preexisting 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 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 offence
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 offence, be also the disposers of his life and his fortune?
Would there not be the greatest reasons 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 any thing 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.
Signed "PUBLIUS"
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