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proposod. 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 for intrigue and corruption, and in some cases the detriment to the stato, from the prolonged inaction of men, whose firm and faithful execution of their duty, might have exposed them to tho persocution of an intemperate or designing majority in the houso of roprosentatives. Though this latter supposition may seem harsh, and might not be likely often to be verified; yet it ought not to be forgotton, 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, in this respect, be thought preferable to the plan, 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 commu. nity, in the same judgment of it; and to provail upon one con ceited projector to renounce his infallible criterion, for the fallible criterion of his more conceited neighbour ? To answer the purpose of the adversarios 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.
NEW YORK, MARCH 11, 1788.
THE SAME SUBJECT CONTINUED.
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 unfavourable impressions which may still exist, in regard to this matter.
The first of those objections is, that the provision in question confounds legislative and judiciary authorities in the same body, in violation of that important and well-establishod maxim, which requires a separation between the differont dopartmonts 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 propor, 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 admittod by the ablest adepts in political scionce, to be an indispensable barrier against the encroachments of the latter upon the former. And it may, perhaps, with not less reason, be contended, that the powers relating to impeachments are, as before intimated, an essentinl
check in the hands of that body, upon the encroachments of the executive. The division of them between the two branches of the legislaturo; assigning to one the right of accusing, lo the other the right of judging; avoids the inconvenience of making the same persons both accusers and judges : and gunrds 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 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 stato; while that very constitution makes the sonate, 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 NewYork, 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 culpablo must be the constitution of New-York ?*
A second objection to the sepate, as a court of impeachments, is, that it contributes to an undue accumulation of power in that body, tonding 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 theso prerogatives is added that of determining in all cases of impeachmont, it will give a docided prodominancy to senatorial
* In thnt of New-Jersey, also, the final judiciary authority is in a branch of tho legislnture. In Now-llampshire, Massachusetts, Ponnsylvania, and South-Carolina, ono branch of tho logislaturo is the oourt for the trial of impeachments.
influency. To an objection so little precise in itself, it is not casy to find a very preciso answer. Where is tho mcasure or criterion to which we can appeal, for estimating what will give the sonate 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 inconvenionco?
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 bas been chosen. If this bo truly the case, the hypothetical danger 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 of 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 favourite 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 favour
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 oloctions of the prosidont, which do not unite the suffragos 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 poculiar 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 gov. ernments, 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 caso, that the favouritism of the latter, would always be an asylum for the misbehaviour 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 thoy bave 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, may have proved themselves unworthy of the confidence reposed in them. Though facts may not always