excerpts about impeachment from: The Federalist Papers: In Modern Language Indexed for Today's Political Issues copyright 1999 by Mary E. Webster Number 39: National vs. Federal Republic paragraph 5: Constitution: Republic Form . . . The President is to continue in office for the period of four years. In New York and Delaware, the chief magistrate is elected for three years, and in South Carolina for two years. The other States have annual elections. Several States, however, have no constitutional provision for impeachment of the chief magistrate. And in Delaware and Virginia he is not impeachable until out of office. The President of the United States is impeachable at any time during his continuance in office. . . Number 64: President, with Advice and Consent of Senate, Makes Treaties paragraph 15: Integrity, Fear Guarantee Responsibility With respect to their responsibility, it is difficult to conceive how it could be increased. Every possible influence on the human mind, such as honor, oaths, reputations, conscience, love of country, and family affections and attachments, afford security for their fidelity. In short, since the Constitution has taken the utmost care that they shall be men of talents and integrity, we have reason to believe that the treaties they make will be as advantageous as could be made, all circumstances considered. And so far as the fear of punishment and disgrace can operate, the motive for good behavior is amply supplied by the article on the subject of impeachments. [The complete text of #65 and #66 are presented.] Number 65: Senate as Court for Trial of Impeachments The remaining powers that the Constitution allots only to the Senate are its participation, with the executive, in the appointment to offices and its judicial character as a court for the trial of impeachments. Since the executive branch is the principle agent in regard to appointments, the provisions relating to it will be discussed in the examination of that branch. We will, therefore, conclude this topic with a study of the judicial character of the Senate. Political Passions => Biased Opinions 2 A well-constituted court for the trial of impeachments is a difficult, but important, objective in a totally elected government. Their jurisdiction extends to offenses proceeding from the misconduct of public men. Or, in other words, from the abuse or violation of some public trust. The offenses may properly be called POLITICAL, since they relate chiefly to injuries done immediately to society itself. For this reason, the prosecution of them will seldom fail to agitate the passions of the whole community, and divide it into parties more or less friendly or hostile to the accused. In many cases, the division will align with the preexisting factions, enlisting 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 the parties, than by the real demonstration of innocence or guilt. Political Reputations 3 The delicacy and magnitude of trust deeply concerns the political reputation and existence of every man engaged in the administration of public affairs. In a government entirely based on periodic elections, the difficulty of correctly placing trust is quickly understood when we consider that the most conspicuous people in government will often be, from that circumstances, the leaders or the tools of the most cunning or the most numerous faction. Because of this, they can hardly be expected to possess the required neutrality towards those people whose conduct may be the subject of scrutiny. Senate as Court of Impeachment 4 The constitutional convention, it appears, thought the Senate the most fit depository of this important trust. Those people who can best discern the intrinsic difficulty of the problem will be the least hasty in condemning this decision and most inclined to seriously consider the arguments that have produced it. House Impeaches, Senate Tries 5 What, it may be asked, is the true spirit of an impeachment court? Isn't it designed as a method of NATIONAL INQUEST into the conduct of public men? If this is its design, who can more properly be the inquisitors for the nation than the representatives of the nation themselves? It is not disputed that one house of the legislative body should have the power to originate the inquiry or, in other words, prefer the impeachment. Don't the same reasons that indicate this is proper strongly argue that the other house should share the inquiry? The convention borrowed this model from Great Britain. The House of Commons prefers the impeachment; the House of Lords decides it. Several State constitutions follow the example. Those States and Great Britain seem to regard the practice of impeachments as a bridle in the hands of the legislative body on the executive servants of the government. Isn't this the true light in which it ought to be regarded? Senators Act as Independent Judges 6 Where else than in the Senate could be found a tribunal sufficiently dignified or 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 accuser? Impeachment Court Needs to be Large 7 Could we rely on the Supreme Court to fit this description? It is doubtful that the members of that tribunal would, at all times, be endowed with the great fortitude needed to execute so difficult a task. And they probably wouldn't possess the degree of credibility and authority essential to reconcile the people on those occasions when their decision clashes with an accusation brought by the people's representatives. A deficiency in fortitude would be fatal to the accused; a deficiency in credibility, would be dangerous to the public tranquility. In both these respects, the problems could only be avoided, if at all, by making the Supreme Court more numerous than consistent with a reasonable attention to economy. The nature of an impeachment trial requires a numerous court. In common cases, the discretion of courts is limited in favor of personal security. An impeachment trial can never be tied down by strict rules, either in the delineation of the offense by the prosecutors or in the construction of it by the judges. No jury will stand between the judges, who pronounce the sentence of the law and the party who is to receive or suffer it. The awful discretion that a court of impeachments must necessarily have, to doom to honor or infamy the most trusted and distinguished people of the community, forbids committing the responsibility to a small number of persons. Separate Court for Ordinary Prosecution 8 These considerations, alone, seem sufficient to support the conclusion that the Supreme Court, as a court of impeachments, would have been an improper substitute for the Senate. Another consideration strengthens this conclusion. It is this: the punishment that may be the consequence of conviction upon impeachment is not the last chastisement of the offender. After being sentenced to perpetual ostracism from the esteem, confidence, honors, and emoluments of his country, he can be prosecuted and punished 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, also be the people to dispose of his life and his fortune? Wouldn't it be reasonable to fear that an error in the first trial would be the parent of error in the second? That the strong bias of the first decision would probably overrule the influence of any new information that might change the second? Those who know anything about human nature will not hesitate to answer these questions in the affirmative. They understand that, if the same people are judges in both cases, those being prosecuted would, in great measure, be deprived of the double security intended by a double trial. If the same judges preside in both trials, when the first sentence of nothing more than dismissal from current office and disqualification from future offices is declared, the loss of life and estate would often be virtually included. It may be argued that the intervention of a jury, at the second trial, would obviate the danger. But juries are frequently influenced by the opinions of judges. They are sometimes induced to find special verdicts that refer the main question to the decision of the court. Who would be willing to stake his life and his estate on the verdict of a jury acting under the auspices of judges who had predetermined his guilt? Chief Justice, Senate Good Compromise 9 Would the plan have been improved by uniting the Supreme Court with the Senate to form the court of impeachment? This union would have had several advantages. But wouldn't they be overbalanced by the significant disadvantage, already stated, arising from the same judges presiding in the double prosecution to which the offender would be liable? To a certain extent, the benefits of uniting the Supreme Court and the Senate will be obtained from making the chief justice of the Supreme Court the president of the court of impeachment, as proposed in the Constitution. At the same time, the inconveniences of an entire incorporation of the former into the latter will be substantially avoided. This was, perhaps, the prudent compromise. I restrain form commenting on how increasing the authority of the judiciary by the Supreme Court hearing impeachments trials would provide an additional pretext for clamor against the judiciary. Court of "Outsiders" 10 Would it have been desirable to have composed the court for the trial of impeachments of persons who are completely distinct from the other departments of the government? There are weighty arguments in favor and against such a plan. This would increase the complexity of the political machine, not a trivial objection to some people. It would add a new department to the government, the utility of which would, at best, be questionable. But an objection worthy of attention is this: such a court would either be very expensive or, in practice, subject to a variety of casualties and inconveniences. It must either have permanent officers based at the seat of government and, of course, entitled to fixed and regular stipends, or specific officers of the State governments who would be called upon whenever an impeachment was actually pending. It isn't easy to imagine any third mode materially different that could be rationally proposed. Since the court, for reasons already given, should be numerous, every man who can compare the extent of the public wants with the means of supplying them will reject the first scheme. The second will receive only cautious support after the following problems are seriously considered. The difficulty of collecting men dispersed over the whole Union. The injury to an innocent person from delayed decisions on the charges brought against them. The advantage of a delay to a guilty person, with its opportunities for 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 expose them to the persecution of an intemperate or designing majority in the House of Representatives. Though this latter supposition may seem harsh, and might rarely happen, it should not be forgotten that the demon of faction will, at certain times, extend his scepter over all numerous bodies of men. Government Will Never Be Perfect 11 But even if one of the substitutes, or some other, might be thought preferable to this part of the Constitution, it doesn't follow that the entire Constitution should be rejected for this reason. If mankind agreed that there could be no government until every part of it had been adjusted to an exact standard of perfection, society would soon become an anarchy, and the world a desert. Where is the standard of perfection to renounce his infallible criterion for the fallible criterion of his more conceited neighbor? Adversaries to the Constitution should prove, not merely that particular provisions are not the best that might be imagined, but that the whole plan is bad and pernicious. PUBLIUS Number 66: Senate as Court of Impeachments A review of the principal objections against the proposed court for the trial of impeachments will probably remove any unfavorable impression still existing in regard to this matter. Objection: Gives Legislature Judicial Power 2 The first objection is that the provision intermingles legislative and judiciary authority in the same body, in violation of the important, well- established maxim requiring a separation between the different branches of power. The true meaning of this maxim has been discussed and ascertained in another place. It has been shown to be entirely compatible with a partial intermixture of those branches for special purposes, but usually keeping them distinct and unconnected. In some cases, this partial intermixture is not only proper but also necessary to the mutual defense of the members of the government against each other. The executive authority to absolutely or partially negate legislative acts [presidential veto] is considered, by the best minds in political science, an indispensable barrier against the encroachments of the latter upon the former. It can be equally argued that impeachment powers are, as suggested before, an essential check in the hands of the legislature on the encroachments of the executive. The division of impeachment powers 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 it guards against the danger of prosecution from a prevalent factious spirit in either one. Since the concurrence of two-thirds of the Senate will be required to condemn, the security to the innocent, from this addition circumstance, will be as complete as can be desired. Senate Acts as Supreme Court in NY 3 The vehemence with which this part of the proposed Constitution is assailed on the principle of separation of power is curious because it is done by men who profess to admire, without exception, New York's constitution. It makes the Senate, together with the chancellor and judges of the Supreme Court, not only a court of impeachments, but also the highest judicatory in the State in all civil and criminal cases. The number of the chancellor and judges in proportion to the number of senators is so inconsiderable that the New York judiciary authority may be honestly said to reside in its Senate. If the proposed Constitution is accused of departing form the celebrated maxim, so often mentioned but seemingly so little understood, how much more culpable must be the constitution of New York? Objection: Makes Senate Too Powerful 4 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 too aristocratic a counte-nance. The Senate will have concurrent authority with the Executive in forming treaties and ap-pointing to offices. The objectors say that if the authority of deciding impeachments is added to the others, it will give a decided predominance to senatorial influence. It isn't easy to find a precise answer to such an imprecise objection. To what measure or cri-terion can we appeal to determine what will give the Senate too much, too little, or barely the proper degree of influence? Won't it be safer, as well as simpler, to dismiss such vague, uncertain calculations, to examine each power by itself, and to decide, on general principles, where it may be held with most advantage and least inconven-ience? Treaties, Appointments, Impeachments 5 If we take this course, it will lead to a more understandable, if not to a more certain result. If I am not mistaken, the disposition of the power to make treaties will appear to be fully justified by considerations stated in a former paper and in others to come. The expediency of joining the Senate with the Executive in the power of appointing to of-fices will, I trust, be placed in a satisfactory light in future papers. And I flatter myself that the observations in my last paper must have gone a ways to proving that it wasn't easy, if practical, to find a more fitting receptacle for the power of determining impeachments, than that which has been chosen. If this is truly the case, the hypothetical dread of the Senate having too great a weight ought to be discarded from our reasoning. House is Stronger Legislative Body 6 But this hypothesis, such as it is, has already been refuted by the remarks about the senators' term in office. It was shown, with historical examples and reasoning, that the part of every republican government with the representatives most directly elected by the people will be, generally, the favorite of the people and a full match, if not an overmatch, for every other part of government. House Powers that Senate Won't Have 7 But independent of this active, operative principle, to secure the equilibrium of the House of Representatives, the Constitution provides it several important counterbalances to the additional authorities conferred on the Senate. The exclusive privilege of originating money bills will belong to the House of Representatives. It will possess the sole right of instituting impeachments. Isn't this a complete counterbalance to that of determining them? It will umpire all Presidential elections in which no one candidate gets a majority of the total number of electors, a case that will sometimes, if not frequently, happen. This constant possibility must be a fruitful source of influence to that body. The more contemplated, the more important this ultimate, though contingent, power-deciding the competitions of the most illustrious citizens of the Union for the first office in it. It is perhaps not rash to predict that as an influence, it will outweigh all the specific Senate attributes. Critics: Senate Approves Appointments 8 A third objection to the Senate as a court of impeachments is drawn from its role in the appointments to office. It is imagined that because it participated in an appointment, it would be too indulgent when judging the office holder's conduct. This objection would condemn a practice seen in all the State governments, if not in all governments that we know about. By this I mean, making those who hold offices during pleasure dependent on the pleasure of those who appoint them. It could be alleged, with equal plausibility, that the favoritism of the people who make appointments to offices would always be an asylum for the misbehavior of the people appointed to them. But that idea contradicts the presumption that those who make appointments will feel responsible for the fitness and competency of appointees. And that their interest in the respectable and prosperous administration of affairs will make them want to dismiss from participating in it anyone who has proved, by their conduct, unworthy of the confidence placed in them. This presumption may not always be supported by facts. But if it is fundamentally sound, it destroys the supposition that the Senate, which will only sanction executive choices, would feel such a bias towards appointees that it would blind them to such extraordinary evidence of guilt that it induces the Representatives of the nation to become his accusers. Senate's Minor Role in Appointments 9 If further arguments are necessary to show the improbability of such a bias, they might be found in the nature of the Senate's part in the business of appointments. The President will nominate and, with the advice and consent of the Senate, appoint. Of course, the Senate will have no part in the choice. They may defeat one choice by the Executive, forcing him to make another, but they cannot choose. The Senate can only ratify or reject the choice of the President. The Senate may even prefer someone else at the very moment they assent to the one proposed, because there might be no specific grounds to oppose him. Additionally, they couldn't be sure that if they withheld their assent, the subsequent nomination would be their own favorite, or any other person who in their estimation was more meritorious than the one rejected. Thus, the majority of the Senate would hardly feel any deeper satisfaction towards the appointee than as appearances of merit might inspire and the lack of proof will destroy. Objection: Senate Ratifies Treaties 10 A fourth objection to the Senate as a court of impeachments derives from its union with the Executive in the power of making treaties. It has been said that this would make the senators their own judges in every case of a corrupt or perfidious executive of that trust. That is, after they combined with the Executive to betray the interests of the nation in a ruinous treaty, it is asked whether there would be any hope of their suffering the punishment they deserved, when they were to decide themselves on the accusation brought against them for the treachery of which they have been guilty? Argument Based on False Foundation 11 This objection has been circulated with more earnestness and a greater show of reason than any other appearing against this part of the Constitution. Yet I am deceived if it doesn't rest on an erroneous foundation. Senate, House Exempt from Punishment for Acts Done as Collective Bodies 12 The security in the Constitution against corruption and treachery when forming treaties is in the numbers and characters of those who are to make them. The JOINT AGENCY of the President and two-thirds of the members of the Senate, a body selected by the collective wisdom of the legislatures of the States, is designed to be the pledge for fidelity of the national councils in this matter. The convention might have, with propriety, included the Executive's punishment for deviating from the Senate's instructions or a lack of integrity in his conduct during the negotiations. They might also have had in view the punishment of a few leading individuals in the Senate, if they prostituted their influence in that body as the mercenary instruments of foreign corruption. But they could not, with more or equal propriety, contemplate impeaching and punishing two-thirds of the Senate consenting to an improper treaty, any more than it could contemplate punishing a majority of the Senate, or any branch of the national legislature, consenting to a pernicious or unconstitutional law-a principle that, I believe, has never been admitted into any government. How could a majority in the House of Representatives impeach themselves? It is evident that this is no better than two thirds of the Senate putting themselves on trial. Yet why should the majority of the House of Representatives, after sacrificing the interests of the society by an unjust and tyrannical act of legislation, escape with impunity, any more than two thirds of a Senate that sacrifices the same interests in an injurious treaty with a foreign power? The truth is, in all such cases it is essential to the freedom and the necessary independence of the body's deliberations that the members be exempt form punishment for acts done in a collective capacity. Society's security depends on the care taken to confide the trust in proper hands, make it their interest to execute it with fidelity, and make it as difficult as possible for them to combine in any interest opposite to that of the public good. Senate Will Punish Abusers of Power 13 If the Executive misbehaves by perverting the instructions or contravening the views of the Senate, we need not worry that that body will not be disposed to punish the abuse of their confidence or vindicate their own authority. For this, we can count on their pride, if not their virtue. And as far as it might even involve the corruption of leading Senators, by whose influence the majority may have been lured into measures odious to the community, if corruption can be proved, the psychology of human nature will lead us to conclude that the body will want to divert the public resentment from themselves by sacrificing the authors of their mismanagement and disgrace. PUBLIUS Number 69: President's Constitutional Authority paragraph 4: President Liable for Misdeeds The President of the United States can be impeached, tried, and, on conviction of treason, bribery, or other high crimes or misdemeanors, removed from office. Afterwards he would be liable to prosecution and punishment in the ordinary course of law. The king of Great Britain is sacred and inviolable. He is not accountable to any constitutional tribunal. And a national revolution is the only way he can be punished. In the delicate and important area of personal responsibility, the President of the United States will stand on no better ground than the governor of New York. And he will have more personal liability than the governors of Massachusetts and Delaware. Number 77: Executive Appoints Administration Officers paragraph 11: Safety of Executive We have completed a survey of the structure and powers of the executive department. I have endeavored to show that it combines all the requisites to energy, as far as republican principles will permit. The remaining inquiry is does it also combine the required safeties, in a republican sense-a due dependence on the people, a due responsibility? The answer has been anticipated in the investigation of its other characteristics and is satisfactorily deduced from these circumstances: The President is elected once in four years by persons immediately chosen by the people for that purpose. He will be at all times liable to impeachment, trial, dismissal from office, incapacity to serve in any other, and forfeiture of life and estate by subsequent prosecution in the common course of law. But these precautions, great as they are, are not the only ones provided in favor of the public security in the Constitution. In the only instances in which the abuse of executive authority may materially to be feared, the Chief Executive of the United States will, by the Constitution, be subjected to the control of a house of the legislative body. What more could be desired by an enlightened and reasonable people?