>FEDERALIST No. 66 (Hamilton)                                  .



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

 Impeachments Further Considered

From the New York Packet.

Tuesday, March 11, 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 CHOOSEgthey 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,ga 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.

In that of New Jersey, also, the final judiciary authority is in

 a branch of the legislature. In New Hampshire, Massachusetts,

 Pennsylvanis, and South Carolina, one branch of the legislature is

 the court for the trial of impeachments.





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