A REVIEW of the principal objections that have appeared against the
proposed court for the trial of impeachments, will not improbably
eradicate the remains of any unfavorable impressions which may still
exist in regard to this matter.
The first of these objections is, that the provision in question
confounds legislative and judiciary authorities in the same body, in
violation of that important and well-established maxim which
requires a separation between the different departments of power.
The true meaning of this maxim has been discussed and ascertained in
another place, and has been shown to be entirely compatible with a
partial intermixture of those departments for special purposes,
preserving them, in the main, distinct and unconnected. This partial
intermixture is even, in some cases, not only proper but necessary
to the mutual defence of the several members of the government
against each other. An absolute or qualified negative in the
executive upon the acts of the legislative body, is admitted, by the
ablest adepts in political science, to be an indispensable barrier
against the encroachments of the latter upon the former. And it may,
perhaps, with no less reason be contended, that the powers relating
to impeachments are, as before intimated, an essential check in the
hands of that body upon the encroachments of the executive. The
division of them between the two branches of the legislature,
assigning to one the right of accusing, to the other the right of
judging, avoids the inconvenience of making the same persons both
ACCUSERS and judges; and guards against the danger of persecution,
from the prevalency of a factious spirit in either of those
branches. As the concurrence of two thirds of the Senate will be
requisite to a condemnation, the security to innocence, from this
additional circumstance, will be as complete as itself can desire.
It is curious to observe, with what vehemence this part of the plan
is assailed, on the principle here taken notice of, by men who
profess to admire, without exception, the constitution of this
State; while that constitution makes the Senate, together with the
chancellor and judges of the Supreme Court, not only a court of
impeachments, but the highest judicatory in the State, in all
causes, civil and criminal. The proportion, in point of numbers, of
the chancellor and judges to the senators, is so inconsiderable,
that the judiciary authority of New York, in the last resort, may,
with truth, be said to reside in its Senate. If the plan of the
convention be, in this respect, chargeable with a departure from the
celebrated maxim which has been so often mentioned, and seems to be
so little understood, how much more culpable must be the
constitution of New York? (footnote 1.)
A second objection to the Senate, as a court of impeachments, is,
that it contributes to an undue accumulation of power in that body,
tending to give to the government a countenance too aristocratic.
The Senate, it is observed, is to have concurrent authority with the
Executive in the formation of treaties and in the appointment to
offices: if, say the objectors, to these prerogatives is added that
of deciding in all cases of impeachment, it will give a decided
predominancy to senatorial influence. To an objection so little
precise in itself, it is not each to find a very precise answer.
Where is the measure or criterion to which we can appeal, for
determining what will give the Senate too much, too little, or
barely the proper degree of influence? Will it not be more safe, as
well as more simple, to dismiss such vague and uncertain
calculations, to examine each power by itself, and to decide, on
general principles, where it may be deposited with most advantage
and least inconvenience?
If we take this course, it will lead to a more intelligible, if not
to a more certain result. The disposition of the power of making
treaties, which has obtained in the plan of the convention, will,
then, if I mistake not, appear to be fully justified by the
consideration stated in a former number, and by others which will
occur under the next head of our inquiries. The expediency of the
junction of the Senate with the Executive, in the power of
appointing to offices, will, I trust, be placed in a light not less
satisfactory, in the disquisitions under the same head. And I
flatter myself the observations in my last paper must have gone no
inconsiderable way towards proving that it was not easy, if
practicable, to find a more fit receptacle for the power of
determining impeachments, than that which has been chosen. If this
be truly the case, the hypothetical dread of the too great weight of
the Senate ought to be discarded from our reasonings.
But this hypothesis, such as it is, has already been refuted in the
remarks applied to the duration in office prescribed for the
senators. It was by them shown, as well on the credit of historical
examples, as from the reason of the thing, that the most popular
branch of every government, partaking of the republican genius, by
being generally the favorite of the people, will be as generally a
full match, if not an overmatch, for every other member of the
Government.
But independent of this most active and operative principle, to
secure the equilibrium of the national House of Representatives, the
plan of the convention has provided in its favor several important
counterpoises to the additional authorities to be conferred upon the
Senate. The exclusive privilege of originating money bills will
belong to the House of Representatives. The same house will possess
the sole right of instituting impeachments: is not this a complete
counterbalance to that of determining them? The same house will be
the umpire in all elections of the President, which do not unite the
suffrages of a majority of the whole number of electors; a case
which it cannot be doubted will sometimes, if not frequently,
happen. The constant possibility of the thing must be a fruitful
source of influence to that body. The more it is contemplated, the
more important will appear this ultimate though contingent power, of
deciding the competitions of the most illustrious citizens of the
Union, for the first office in it. It would not perhaps be rash to
predict, that as a mean of influence it will be found to outweigh
all the peculiar attributes of the Senate.
A third objection to the Senate as a court of impeachments, is drawn
from the agency they are to have in the appointments to office. It
is imagined that they would be too indulgent judges of the conduct
of men, in whose official creation they had participated. The
principle of this objection would condemn a practice, which is to be
seen in all the State governments, if not in all the governments
with which we are acquainted: I mean that of rendering those who
hold offices during pleasure, dependent on the pleasure of those who
appoint them. With equal plausibility might it be alleged in this
case, that the favoritism of the latter would always be an asylum
for the misbehavior of the former. But that practice, in
contradiction to this principle, proceeds upon the presumption, that
the responsibility of those who appoint, for the fitness and
competency of the persons on whom they bestow their choice, and the
interest they will have in the respectable and prosperous
administration of affairs, will inspire a sufficient disposition to
dismiss from a share in it all such who, by their conduct, shall
have proved themselves unworthy of the confidence reposed in them.
Though facts may not always correspond with this presumption, yet if
it be, in the main, just, it must destroy the supposition that the
Senate, who will merely sanction the choice of the Executive, should
feel a bias, towards the objects of that choice, strong enough to
blind them to the evidences of guilt so extraordinary, as to have
induced the representatives of the nation to become its accusers.
If any further arguments were necessary to evince the improbability
of such a bias, it might be found in the nature of the agency of the
Senate in the business of appointments.
It will be the office of the President to nominate, and, with the
advice and consent of the Senate, to appoint. There will, of course,
be no exertion of choice on the part of the Senate. They may defeat
one choice of the Executive, and oblige him to make another; but
they cannot themselves choose--they can only ratify or reject the
choice of the President. They might even entertain a preference to
some other person, at the very moment they were assenting to the one
proposed, because there might be no positive ground of opposition to
him; and they could not be sure, if they withheld their assent, that
the subsequent nomination would fall upon their own favorite, or
upon any other person in their estimation more meritorious than the
one rejected. Thus it could hardly happen, that the majority of the
Senate would feel any other complacency towards the object of an
appointment than such as the appearances of merit might inspire, and
the proofs of the want of it destroy.
A fourth objection to the Senate, in the capacity of a court of
impeachments, is derived from its union with the Executive in the
power of making treaties. This, it has been said, would constitute
the senators their own judges, in every case of a corrupt or
perfidious execution of that trust. After having combined with the
Executive in betraying the interests of the nation in a ruinous
treaty, what prospect, it is asked, would there be of their being
made to suffer the punishment they would deserve, when they were
themselves to decide upon the accusation brought against them for
the treachery of which they have been guilty?
This objection has been circulated with more earnestness and with
greater show of reason than any other which has appeared against
this part of the plan; and yet I am deceived if it does not rest
upon an erroneous foundation.
The security essentially intended by the Constitution against
corruption and treachery in the formation of treaties, is to be
sought for in the numbers and characters of those who are to make
them. The JOINT AGENCY of the Chief Magistrate of the Union, and of
two thirds of the members of a body selected by the collective
wisdom of the legislatures of the several States, is designed to be
the pledge for the fidelity of the national councils in this
particular. The convention might with propriety have meditated the
punishment of the Executive, for a deviation from the instructions
of the Senate, or a want of integrity in the conduct of the
negotiations committed to him; they might also have had in view the
punishment of a few leading individuals in the Senate, who should
have prostituted their influence in that body as the mercenary
instruments of foreign corruption: but they could not, with more or
with equal propriety, have contemplated the impeachment and
punishment of two thirds of the Senate, consenting to an improper
treaty, than of a majority of that or of the other branch of the
national legislature, consenting to a pernicious or unconstitutional
law,--a principle which, I believe, has never been admitted into any
government. How, in fact, could a majority in the House of
Representatives impeach themselves? Not better, it is evident, than
two thirds of the Senate might try themselves. And yet what reason
is there, that a majority of the House of Representatives,
sacrificing the interests of the society by an unjust and tyrannical
act of legislation, should escape with impunity, more than two
thirds of the Senate, sacrificing the same interests in an injurious
treaty with a foreign power? The truth is, that in all such cases it
is essential to the freedom and to the necessary independence of the
deliberations of the body, that the members of it should be exempt
from punishment for acts done in a collective capacity; and the
security to the society must depend on the care which is taken to
confide the trust to proper hands, to make it their interest to
execute it with fidelity, and to make it as difficult as possible
for them to combine in any interest opposite to that of the public
good.
So far as might concern the misbehavior of the Executive in
perverting the instructions or contravening the views of the Senate,
we need not be apprehensive of the want of a disposition in that
body to punish the abuse of their confidence, or to vindicate their
own authority. We may thus far count upon their pride, if not upon
their virtue. And so far even as might concern the corruption of
leading members, by whose arts and influence the majority may have
been inveigled into measures odious to the community, if the proofs
of that corruption should be satisfactory, the usual propensity of
human nature will warrant us in concluding that there would be
commonly no defect of inclination in the body to divert the public
resentment from themselves by a ready sacrifice of the authors of
their mismanagement and disgrace.
Signed "PUBLIUS"
Footnotes Explained:
Footnote Number 1. In that of New Jersey, also, the final judiciary
authority is in a branch of the legislature. In New Hampshire,
Massachusetts, Pennsylvania, and South Carolina, one branch of the
legislature is the court for the trial of inpeachments.
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