The
Federalist Papers are
a collection of essays written by James Madison, John Jay and
Alexander Hamilton. (1) They are a collection of works published in
several newspapers advocating the ratification by the several states
of the then newly created Constitution
of the United States by
the founding fathers at Philadelphia in the summer of 1787.
Alexander Hamilton, writing under the pseudonym of Publius, wrote in
Federalist
No. 65, the
following concerning impeachments:
“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. The are of a
nature which may with peculiar propriety be denominated POLITICAL,
(2) as they relate chiefly to injuries done immediately to the
society itself. The prosecution for 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 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 the 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 depository of
this important trust. Those who can best discern the intrinsic
difficulty of the thing will be the 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.” (3)
There
are several points to be noted here:
First,
the founders were no idealists lost in innocence. They were well
acquainted with the passions of men. They knew something of
political faction, of the partisan.
They
were, after all, champions of revolution, emerging triumphant from
the cauldron of partisan hostility, of the people against the state;
of revolutionary opposing loyalist, of neighbor against neighbor.
They had no illusions, as Hamilton here reveals, that the nation
would soon enough be organized around faction; and that in this
boiling stew of faction, these questions must be resolved. After
all, impeachment would necessarily be produced by
crisis. Indeed,
innocence or guilt, most likely would, in the end, be determined not
by the merits of the case but by the relative political strength and
cunning of those involved.
Second,
as has been pointed out several times in these columns, impeachments,
as
Hamilton asserts, proceed from the misconduct of public men; from the
violation of some public trust. As noted in these columns, “High
Crimes” do not refer to capital offense but to violations of public
trust, of oaths of office, of abuses of power. These are, Hamilton
assures us, POLITICAL offenses. Political offense demands not legal
remedy but political remedy. They are therefore, by constitution and
definition, not the province of the courts. Other remedy must be
created. In order to do this the founders, as Hamilton points out
later in his essay, turned to the British example of the House of
Lords being the tribunal constituted to hear the arguments and
resolve the issue. (4) We would follow the British example of having
the people, acting through the lower house, investigate and bring
charges and the upper house, representing the several states,
serve as the court in which the matter will be decided.
Hamilton
is here arguing that the Constitutional
Convention hoped
to create Institutions
in
order to dampen the passions of the partisan. For this purpose they
had created the Senate, then to be elected not by popular vote but by
the several state legislatures, accountable to the people once every
six years, so as to grant a measure of stability. They knew
something of unrest, having recently dealt with Shay's Rebellion as
we have in our time with the Teabaggers.
Here
Hamilton asserts that the Senate is best constituted to “discern
the intrinsic difficulty...and will be most inclined to allow due
weight to the arguments which may be supposed to have produced it.”
Translated
from the 18th
century prose this means that Hamilton is here declaring that the
Senate would become what it later claimed to be: The
world's greatest deliberative body. Due
weight to the arguments; the counterweight, it is hoped, to political
strength and cunning. Deliberation.
This
is the primary function of the Senate as charged by the Philadelphia
Convention. Are you paying attention Leningrad Lindsay? Moscow
Mitch?
An
Br'er Putin, he jus' laugh and laugh
Convict
and Imprison
__________
- Madison would later become President of the United States. John Jay would become the first Chief Justice of the Supreme Court. Hamilton the first Secretary of the Treasury whose career would later be cut short after being shot and killed in a famous duel with then Vice President Aaron Burr.
- Emphasis, in bold type, is Hamilton's.
- Hamilton, Alexander (Plubius) “Federalist No. 65” The Federalist Papers. Arlington House, New Rochelle, New York. No date. Pages 396-397
- Ibid. Page 397
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