THE REMAINING POWERS THE CONSTITUTION allots to the Senate – in a distinct capacity – are comprised in (1) its participation with the executive in the appointment of officers, and (2) its judicial character as a court for the trial of impeachments.
The appointment power is primarily exercised by the President – who selects and nominates potential appointees and – upon favorable advice and consent of the Senate – issues commissions of appointment.
The provisions relating to it are more properly discussed in the examination of the executive department, particularly Federalist 76 and Federalist 77.
The remainder of this paper will focus on the judicial character of the Senate.
Impeachment is a Political Act to Redress Injury Done to Society Itself, and the Judges of the Charges Must Be Those Most Likely to Remain Impartial and Be Readily Available
In a wholly-elective government like that of the United States, a well-constituted court for the trial of impeachments is more easily desirable than obtainable.
Impeachment encompasses those offenses which proceed from the misconduct of a public official in the abuse or violation of some public trust.
Impeachable offenses are of a nature which may with peculiar propriety be denominated political, since they relate chiefly to injuries done immediately to the society itself.
For this reason, the prosecution of an allegedly impeachable offense will seldom fail to agitate the passions of the whole community, and to divide it into parties more or less friendly or opposed to the accused.
The impeachment power encompasses acts of “[t]he President, Vice President and all civil Officers of the United States,” who “shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” Art. II, § 4.
The House of Representatives will possess the sole right of instituting impeachments, Art. I, § 2, cl. 5, and the Senate will have the power of determining them. Art. I, § 3, cl. 6.
Impeachment encompasses those offenses which proceed from the misconduct of a public official in the abuse or violation of some public trust. Impeachable offenses are of a nature which may with peculiar propriety be denominated political, since they relate chiefly to injuries done immediately to the society itself. For this reason, the prosecution of an allegedly impeachable offense will seldom fail to agitate the passions of the whole community, and to divide it into parties more or less friendly or opposed to the accused.
Claims of an Impeachable Act Will Often Connect with Pre-existing Factions
In many cases the claim of an impeachable act will connect itself with preexisting factions, which will enlist all their animosities, partialities, influence, and interests on one side or the other.
The greatest danger in such cases will always be that the decision will be regulated less by real demonstrations of innocence or guilt than by the comparative strength of parties.
The Senate Was Selected as the Most Impartial Tribunal for an Impeachment Trial
The delicacy and magnitude of the trust which so deeply concerns the political reputation and existence of every person engaged in the administration of public affairs speak for themselves.
In a government resting entirely on the basis of periodical elections, the difficulty of placing it rightly is readily perceived upon the realization that the most conspicuous characters in it will too often be the leaders or the tools of the most cunning or the most numerous faction.
On this account, they hardly can be expected to possess the requisite neutrality towards those whose conduct may be the subject of scrutiny.
The Constitutional Convention thought the Senate would be the most fit depositary of this important trust.
Those who can best discern the intrinsic difficulty of an impeachment trial will be least hasty in condemning the Convention’s opinion, and will be most inclined to allow due weight to the arguments which produced it.
Impeachment Is a National Inquest into the Conduct of Public Officials
What is the true spirit of impeachment?
Is it not designed as a method of national inquest into the conduct of public officials?
Since this is the design of it, ought not the proper inquisitors on the nation’s behalf be representatives of the nation itself?
There was no dispute that the power of originating the inquiry into the existence of an impeachable act ought to be lodged in the hands of one branch of the legislative body which is elected directly by the People: the House of Representatives.
Thus, the Constitution specifies: “The House of Representatives . . . shall have the sole Power of Impeachment.” Art. I, § 2, cl. 5.
The reasons demonstrating the propriety of this arrangement strongly pleaded for an admission of the other branch of that body – the Senate – to a share of the inquiry.
Thus, “The Senate shall have the sole Power to try all Impeachments.” Art. I, § 3, cl. 6.
The Mechanism for Impeachment Is Drawn from the British Example and Several State Constitutions Emulating It
In Great Britain, it is the province of the House of Commons to refer the impeachment, and of the House of Lords to decide upon it.
Several of the State constitutions have followed the example. They 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 the accused individual and the representatives of the People, his accusers?
Trial in the Supreme Court Was Rejected as Unsatisfactory
Could the Supreme Court have been relied upon as answering this description?
It is doubtful the members of that tribunal would at all times be endowed with so eminent a portion of fortitude that would be called for in the execution of so difficult a task.
It is still more doubtful whether they would possess the degree of credit and authority which occasionally would be indispensable towards reconciling the People to a decision that clashed with an accusation brought by their immediate representatives.
A deficiency in fortitude would be fatal to the accused.
If the Supreme Court lacked credit or authority, it would be dangerous to the public tranquility.
The hazard in both these respects would be avoidable – if at all – by increasing the size of the Supreme Court.
But this would have rendered that tribunal more numerous than a reasonable attention to economy permits.
The Trial of the Charge of an Impeachable Offense Requires a Numerous Body
The necessity of a numerous court for the trial of impeachments is dictated by the nature of the proceeding. Impeachment can never be tied down by strict rules, either in the delineation of the offense by the prosecutors or in the construction of the offense by the judges of impeachment, which in other cases limits the discretion of courts in favor of the personal security of the judge.
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 are alone sufficient to conclude the Supreme Court would have been an improper substitute for the Senate as a court of impeachments.
In many cases the claim of an impeachable act will connect itself with pre-existing factions, which will enlist all their animosities, partialities, influence, and interests on one side or the other. The greatest danger in such cases will always be that the decision will be regulated less by real demonstrations of innocence or guilt than by the comparative strength of parties.
The Scope of Impeachment Is Limited; Any Subsequent Criminal or Civil Action Must Be Directed to a Different Tribunal
There remains a further consideration which strengthen this conclusion: the punishment which may be the consequence of conviction upon impeachment does not terminate the chastisement of the offender.
After having been sentenced to a perpetual ostracism from the esteem, confidence, honors and emoluments of his country, the person impeached will still be liable to prosecution and punishment in the ordinary course of law.
Would it be proper that the persons who in one trial had disposed of an individual’s fame and most valuable rights as a citizen, also be the disposers of the person’s life and his fortune in a second trial for the same offense?
Would there not be the greatest reason to apprehend that any error in the impeachment proceeding would be the parent of error in the second action?
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 perceive that by making the same persons the judges in both cases, those who might happen to be the objects of prosecution would be deprived (in great measure) of the double security intended to be preserved by a double trial.
Impeachment – which is nothing more than dismissal from a present office and disqualification for a future one – would often virtually include a sentence resulting in loss of life and estate.
The intervention of a jury in the second instance would not obviate the danger. Juries are frequently influenced by the opinions of judges.
While a jury is sometimes induced to find special verdicts – which refer the main question to the decision of the court – would any person be willing to stake his life and estate upon the verdict of a jury acting under the auspices of judges who had predetermined the accused’s liability and guilt?
Combining the Senate and Supreme Court Would Not Alleviate the Risks of Double Punishment
Would it have been an improvement to have united the Supreme Court with the Senate in the formation of the court of impeachments?
This union certainly would have several advantages, but would they have been overbalanced by the signal disadvantage 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 a union of the Supreme Court and the Senate in the trial of impeachments will be obtained from making the Chief Justice of the Supreme Court the president of the court of impeachments, as the Convention decided.
This will substantially avoid the inconveniences of an entire incorporation of the Supreme Court into the Senate, which would also have given additional pretext for clamor against the judiciary.
The Convention Rejected a Wholly Distinct Body to Try Impeachments
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?
Weighty arguments both favored and opposed such a plan.
To some, it was no trivial objection that such a body would tend to increase the complexity of the political machine by adding a new spring to the government, the utility of which would at best be questionable.
Further objections were that 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.
Such a tribunal would either consist of permanent officers stationed 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 pending.
What is the true spirit of impeachment? Is it not designed as a method of national inquest into the conduct of public officials? Since this is the design of it, ought not the proper inquisitors on the nation’s behalf be representatives of the nation itself?
As the court of impeachments ought to be numerous (for reasons stated above), the scheme for a permanent body will be reprobated by every individual who can compare the extent of the public wants with the means of supplying them.
The scheme relying on State officers to assemble and decide impeachment was met with caution by those who seriously considered:
(1) the difficulty of collecting individuals dispersed over the whole United States;
(2) the injury to the innocent, from the procrastinated determination of the charges which might be brought against them;
(3) the advantage to the guilty, from the opportunities which delay would afford to intrigue and corruption; and
(4) in some cases the detriment to the United States, from the prolonged inaction of individuals 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 the supposition of persecution may seem harsh, and difficult to verify, it ought not be forgotten that – at certain seasons – the demon of faction will extend his scepter over all numerous bodies of men.
Even though one or the other of the substitutes examined above (or some other that might be devised) should be thought preferable to the plan reported by the Convention, the Constitution ought not to be rejected for this reason.
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.
Though the supposition of persecution may seem harsh, and difficult to verify, it ought not be forgotten that – at certain seasons – the demon of faction will extend his scepter over all numerous bodies of men.
And where is the standard of perfection to be found?
Who will undertake to unite the discordant opinions of a whole community regarding impeachment, and to prevail upon one conceited projector to renounce his infallible criterion for what he sees as the fallible criterion of his more conceited neighbor?
The adversaries of the Constitution ought to prove – not merely that particular provisions in it are not the best which might have been imagined – but that the plan of the Convention on the whole is bad and pernicious.
Hamilton