FEDERALIST No. 66



Objections to the Power of the Senate To Set as a Court for

Impeachments Further Considered

From the Independent Journal.

Saturday, March 8, 1788.



HAMILTON



To the People of the State of New York:



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 unfavorable impressions which may still

exist in regard to this matter.



The FIRST of these objections is, that the provision in question

confounds legislative and judiciary authorities in the same body, in

violation of that important and wellestablished maxim which requires a

separation between the different departments 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 proper but necessary to the mutual defense 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 admitted, by the ablest adepts in political science, to be an

indispensable barrier against the encroachments of the latter upon the

former. And it may, perhaps, with no less reason be contended, that the

powers relating to impeachments are, as before intimated, an essential

check in the hands of that body upon the encroachments of the executive.

The division of them 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 guards 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 be 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 State; while that

constitution makes the Senate, 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 New

York, 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 culpable

must be the constitution of New York?[1]



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 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 these prerogatives is added that of deciding in all cases

of impeachment, it will give a decided predominancy to senatorial

influence. To an objection so little precise in itself, it is not easy

to find a very precise answer. Where is the measure or criterion to

which we can appeal, for determining what will give the Senate 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

inconvenience?



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 has been chosen. If this be truly the

case, the hypothetical dread 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 in 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

favorite 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 favor 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 elections

of the President, which do not unite the suffrages 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 peculiar 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

governments, 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 case, that the favoritism of

the latter would always be an asylum for the misbehavior 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 they will have 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, shall have

proved themselves unworthy of the confidence reposed in them. Though

facts may not always correspond with this presumption, yet if it be, in

the main, just, it must destroy the supposition that the Senate, who

will merely sanction the choice of the Executive, should feel a bias,

towards the objects of that choice, strong enough to blind them to the

evidences of guilt so extraordinary, as to have induced the

representatives of the nation to become its accusers.



If any further arguments were necessary to evince the improbability of

such a bias, it might be found in the nature of the agency of the Senate

in the business of appointments. It will be the office of the President

to NOMINATE, and, with the advice and consent of the Senate, to APPOINT.

There will, of course, be no exertion of CHOICE on the part of the

Senate. They may defeat one choice of the Executive, and oblige him to

make another; but they cannot themselves CHOOSE -- they can only ratify

or reject the choice of the President. They might even entertain a

preference to some other person, at the very moment they were assenting

to the one proposed, because there might be no positive ground of

opposition to him; and they could not be sure, if they withheld their

assent, that the subsequent nomination would fall upon their own

favorite, or upon any other person in their estimation more meritorious

than the one rejected. Thus it could hardly happen, that the majority of

the Senate would feel any other complacency towards the object of an

appointment than such as the appearances of merit might inspire, and the

proofs of the want of it destroy.



A FOURTH objection to the Senate in the capacity of a court of

impeachments, is derived from its union with the Executive in the power

of making treaties. This, it has been said, would constitute the

senators their own judges, in every case of a corrupt or perfidious

execution of that trust. After having combined with the Executive in

betraying the interests of the nation in a ruinous treaty, what

prospect, it is asked, would there be of their being made to suffer the

punishment they would deserve, when they were themselves to decide upon

the accusation brought against them for the treachery of which they have

been guilty?



This objection has been circulated with more earnestness and with

greater show of reason than any other which has appeared against this

part of the plan; and yet I am deceived if it does not rest upon an

erroneous foundation.



The security essentially intended by the Constitution against corruption

and treachery in the formation of treaties, is to be sought for in the

numbers and characters of those who are to make them. The JOINT AGENCY

of the Chief Magistrate of the Union, and of two thirds of the members

of a body selected by the collective wisdom of the legislatures of the

several States, is designed to be the pledge for the fidelity of the

national councils in this particular. The convention might with

propriety have meditated the punishment of the Executive, for a

deviation from the instructions of the Senate, or a want of integrity in

the conduct of the negotiations committed to him; they might also have

had in view the punishment of a few leading individuals in the Senate,

who should have prostituted their influence in that body as the

mercenary instruments of foreign corruption: but they could not, with

more or with equal propriety, have contemplated the impeachment and

punishment of two thirds of the Senate, consenting to an improper

treaty, than of a majority of that or of the other branch of the

national legislature, consenting to a pernicious or unconstitutional

law -- a principle which, I believe, has never been admitted into any

government. How, in fact, could a majority in the House of

Representatives impeach themselves? Not better, it is evident, than two

thirds of the Senate might try themselves. And yet what reason is there,

that a majority of the House of Representatives, sacrificing the

interests of the society by an unjust and tyrannical act of legislation,

should escape with impunity, more than two thirds of the Senate,

sacrificing the same interests in an injurious treaty with a foreign

power? The truth is, that in all such cases it is essential to the

freedom and to the necessary independence of the deliberations of the

body, that the members of it should be exempt from punishment for acts

done in a collective capacity; and the security to the society must

depend on the care which is taken to confide the trust to proper hands,

to make it their interest to execute it with fidelity, and to make it as

difficult as possible for them to combine in any interest opposite to

that of the public good.



So far as might concern the misbehavior of the Executive in perverting

the instructions or contravening the views of the Senate, we need not be

apprehensive of the want of a disposition in that body to punish the

abuse of their confidence or to vindicate their own authority. We may

thus far count upon their pride, if not upon their virtue. And so far

even as might concern the corruption of leading members, by whose arts

and influence the majority may have been inveigled into measures odious

to the community, if the proofs of that corruption should be

satisfactory, the usual propensity of human nature will warrant us in

concluding that there would be commonly no defect of inclination in the

body to divert the public resentment from themselves by a ready

sacrifice of the authors of their mismanagement and disgrace.



PUBLIUS



1. In that of New Jersey, 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.