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 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,

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

 court for the trial of impeachments.









THE FEDERALIST.