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.

No. LXV

OBJECTIONS TO THE SENATE AS A COURT OF IMPEACHMENT

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? *

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 easy 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

In that of New Jersey, also, the final judiciary authority is in a branch of the Legisla. ture. In New Hampshire, Massachusetts, Pennsylvania, and South Carolina, one branch of the Legislature is the court for the trial of impeachments.

flatter myself the observations in my last paper must have gone no inconsiderable way toward 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 privilege 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 means of influence it will be found to outweigh all the peculiar attributes of the Senate.

The 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 toward 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 toward 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 their union with the executive