Expert: Mary E Webster - 9/9/2007

Question
can i please have a summary and analysis of Federalist Papers #66 and 74? thank you.

Answer
This is not a summary--it is an easier-to-read version of the Papers.  If you pay attention to the titles and the paragraph subtitles, it will help you understand the subject discussed.
Mary Webster
http://Mary.Webster.org

from:
The Federalist Papers: In Modern Language
copyright 1999 by Mary E Webster

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 countenance.

  The Senate will have concurrent authority with the Executive in forming treaties and appointing 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 criterion 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 inconvenience?

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 offices 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’ 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

# 74:  Commander-in-Chief, Reprieves, Pardons

 The President of the United States is to be “commander-in-chief of the army and navy of the United States, and the militia of the several States when called into the actual service of the United States.”

  The propriety of this provision is so evident and is, at the same time, so consistent with the precedent of the State constitutions in general, little need be said to explain or enforce it.  Most of the people who have, in other areas, coupled the chief executive with a council, have concentrated the military authority in him alone.

  Of all the cares or concerns of government, the direction of war specifically demands qualities that distinguish the exercise of power by a single hand.  The direction of war implies the direction of the common strength.  And the power of directing and employing the common strength forms an essential part in the definition of the executive authority.

[2]   Reports from Executive Departments
2    “The President may require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective officers.”

  I consider this a mere redundancy in the Constitution since the right it provides would result, anyway, from the office.

[3]   Reprieves, Pardons
3   He is also to be authorized to grant “reprieves and pardons for offenses against the United States, except in cases of impeachment.”

   Humanity and good policy dictate that the benign prerogative of pardoning should be as little as possible fettered or embarrassed.  Every country’s criminal code is so necessarily severe that, without easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too vicious and cruel.

  Feelings of responsibility are stronger as fewer people are involved.  Therefore, it may be inferred that a single man would most carefully study the motives that might plead for a mitigation of the rigor of the law, and least apt to yield to considerations calculated to shelter a proper target of its vengeance.  The reflection that the fate of a fellow creature depended on his sole fiat would naturally inspire scrupulousness and caution.  Equal caution, though of a different kind, would arise from the dread of being accused of weakness or connivance.

  On the other hand, since men generally derive confidence from their numbers, a group of men with this power might often encourage each other’s inflexibility and might be less attuned to suspicious apprehensions or censure for an injudicious or affected clemency.  For these reasons, one man appears to be a more eligible dispenser of the government’s mercy than a body of men.

[4]   Pardons for Treason
4   The expediency of vesting the power of pardoning in the President has been only contested, if I’m not mistaken, in relation to the crime of treason.  It has been urged that this should depend on the assent of one or both houses of the legislature.

  There are strong reasons for requiring this concurrence.  Since treason is a crime against the society, when the guilt of the offender has been determined, it seems fit to refer the expediency of an act of mercy towards him to the judgment of the legislature.  And this ought to be the case, as the supposition of the connivance of the Chief Executive ought not to be entirely excluded.

  But there are also strong objections to such a plan.  There is no doubt that a single man of prudence and good sense is better fitted, in delicate conjunctures, to balance the motives that may plead for and against a pardon, than any numerous body whatever.

  It deserves particular attention that treason will often be connected with seditious acts embracing a large proportion of the community, as recently happened in Massachusetts.  In every such case, we might expect to see the people’s representatives tainted with the same spirit that had given birth to the offense.  And when parties are pretty equally matched, the secret sympathy of friends of the condemned person, working on the good nature and weakness of others, might frequently bestow impunity where the terror of an example was necessary.

   On the other hand, when the sedition proceeded from causes that inflamed the resentments of the majority party, they might often be found obstinate and inexorable when policy demands forbearance and clemency.

  But the principal argument for reposing the power of pardoning in this case to the Chief Executive is this: in seasons of insurrection or rebellion, there are often critical moments when a well-timed offer of pardon to the insurgents or rebels may restore the tranquility of the nation.  And if the time passed with no action, it may never be possible afterwards to recall.  The lengthy process of convening the legislature or one of its houses for the purpose of obtaining its sanction to the measure would frequently be the occasion of letting slip the golden opportunity.  The loss of a week, a day, an hour, may sometimes be fatal.

If it is suggested that a discretionary power might occasionally be conferred on the President in such a situation, it may be answered in two ways.  First, it is questionable whether, in a limited Constitution, the power could be delegated by law.  Second, it would generally be unwise to take any step before hand that might hold out the prospect of impunity.  A proceeding of this kind, out of the usual course, would be construed into an argument of timidity or of weakness, and would have a tendency to embolden guilt.      
  Pulbius

* In the New Jersey constitution, also, the final judiciary authority is in a branch of the legislature.  In New Hampshire, Massachusetts, Pennsylvania, and South Carolina, one branch of the legislature is the court for the trial of impeachments.—Publius