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FEDERALIST No. 66

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 CHOOSEτthey 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,τa 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.