THE ABSURD TIMES
Hamilton, Federalist 65
Reprinted by the Times
It has become rather ridiculous to hear repeatedly that an
actual crime has to have been committed in order for it to fall under the
category of “high crimes and misdemeanors.”
There was actually no such concept whatsoever when the Constitution,
written by us, “We the People,” was adopted.
When I was very young, in elementary school, grammar school,
or whatever they want to call K-7 these days, I took a look at a copy of my
Dad’s book titled simply the Federalist Papers. I found it not only very dull, but also
difficult to read. Now it is not so
dull.
It can be found online, but the most accurate version is
reproduced in about 5 or 6 point type.
For comparison, this is in 14 point, our usual size is 16, standard
letters are in 12 point or, for longer letters, even 10. But 5 or 6 is almost impossible, even for
those with extreme myopia. In addition,
it is also presented end to end with no margins whatsoever and this means that
almost what would be a standard paragraph these days would fit on one or two
lines. That is another reason for
reproducing it here, but in a more readable form. Nothing else is changed whatsoever.
It has become one of the most looked up items online but,
again, it is not very readable. We
reproduce it here so that you can have it available as the “Republican”
servants and cult members in support of Orange leader will probably use that
argument about actuall crimes and it will be handy for you to have it. Also, who knows, those of them that can or
will actually read may find it of value.
So, here it is, unexpurgated and uncensored the entire item, along with
it’s suppliment.
FEDERALIST PAPERS
Federalist No. 65
The Powers of the Senate Continued
From the New York Packet.
Friday, March 7, 1788.
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Author: Alexander 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.
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FEDERALIST PAPERS
Federalist No. 66
Objections to the Power of the Senate
To Set as a Court for Impeachments Further Considered
From the New York Packet.
Tuesday, March 11, 1788.
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Author: Alexander Hamilton
To the People of the State of New York:
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 defense 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? [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 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
considerations 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.
PUBLIUS.
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