1787 Federalist 66 · Founding Made Plain

11787 Federalist No. 66

2Objections to the Power of the Senate

3To Set as a Court for Impeachments

4Further Considered

5From the New York Packet.

6Tuesday, March 11, 1788.

7HAMILTON

8To the People of the State of New York:

9A REVIEW of the principal objections

10 that have appeared against the proposed court

11 for the trial of impeachments,

12 will not improbably eradicate the remains

13 of any unfavorable impressions

14 which may still exist in regard to this matter.

15The FIRST of these objections is,

16 that the provision in question

17 confounds legislative and judiciary authorities

18 in the same body,

19 in violation of that important

20 and wellestablished maxim

21 which requires a separation

22 between the different departments of power.

23The true meaning of this maxim

24 has been discussed and ascertained in another place,

25 and has been shown to be entirely compatible

26 with a partial intermixture of those departments

27 for special purposes,

28 preserving them, in the main,

29 distinct and unconnected.

30This partial intermixture is even, in some cases,

31 not only proper but necessary

32 to the mutual defense of the several members

33 of the government against each other.

34An absolute or qualified negative in the executive

35 upon the acts of the legislative body,

36 is admitted, by the ablest adepts in political science,

37 to be an indispensable barrier

38 against the encroachments

39 of the latter upon the former.

40And it may, perhaps, with no less reason be contended,

41 that the powers relating to impeachments are,

42 as before intimated,

43 an essential check in the hands of that body

44 upon the encroachments of the executive.

45The division of them between the two branches

46 of the legislature,

47 assigning to one the right of accusing,

48 to the other the right of judging,

49 avoids the inconvenience of making the same persons

50 both accusers and judges;

51 and guards against the danger of persecution,

52 from the prevalency of a factious spirit

53 in either of those branches.

54As the concurrence of two thirds of the Senate

55 will be requisite to a condemnation,

56 the security to innocence,

57 from this additional circumstance,

58 will be as complete as itself can desire.

59It is curious to observe,

60 with what vehemence this part of the plan is assailed,

61 on the principle here taken notice of,

62 by men who profess to admire, without exception,

63 the constitution of this State;

64 while that constitution makes the Senate,

65 together with the chancellor

66 and judges of the Supreme Court,

67 not only a court of impeachments,

68 but the highest judicatory in the State,

69 in all causes, civil and criminal.

70The proportion, in point of numbers,

71 of the chancellor and judges to the senators,

72 is so inconsiderable,

73 that the judiciary authority of New York,

74 in the last resort,

75 may, with truth, be said to reside in its Senate.

76If the plan of the convention be, in this respect,

77 chargeable with a departure

78 from the celebrated maxim

79 which has been so often mentioned,

80 and seems to be so little understood,

81 how much more culpable must be

82 the constitution of New York? 1

83A SECOND objection to the Senate,

84 as a court of impeachments, is,

85 that it contributes to an undue accumulation of power

86 in that body,

87 tending to give to the government

88 a countenance too aristocratic.

89The Senate, it is observed,

90 is to have concurrent authority with the Executive

91 in the formation of treaties

92 and in the appointment to offices:

93 if, say the objectors,

94 to these prerogatives is added

95 that of deciding in all cases of impeachment,

96 it will give a decided predominancy

97 to senatorial influence.

98To an objection so little precise in itself,

99 it is not easy to find a very precise answer.

100Where is the measure or criterion to which we can appeal,

101 for determining what will give the Senate

102 too much, too little,

103 or barely the proper degree of influence?

104Will it not be more safe, as well as more simple,

105 to dismiss such vague and uncertain calculations,

106 to examine each power by itself,

107 and to decide, on general principles,

108 where it may be deposited with most advantage

109 and least inconvenience?

110If we take this course,

111 it will lead to a more intelligible,

112 if not to a more certain result.

113The disposition of the power of making treaties,

114 which has obtained in the plan of the convention,

115 will, then, if I mistake not,

116 appear to be fully justified

117 by the considerations stated in a former number,

118 and by others which will occur

119 under the next head of our inquiries.

120The expediency of the junction of the Senate

121 with the Executive,

122 in the power of appointing to offices,

123 will, I trust, be placed in a light

124 not less satisfactory,

125 in the disquisitions under the same head.

126And I flatter myself

127 the observations in my last paper

128 must have gone no inconsiderable way

129 towards proving that it was not easy,

130 if practicable,

131 to find a more fit receptacle

132 for the power of determining impeachments,

133 than that which has been chosen.

134If this be truly the case,

135 the hypothetical dread of the too great weight

136 of the Senate

137 ought to be discarded from our reasonings.

138But this hypothesis, such as it is,

139 has already been refuted

140 in the remarks applied to the duration in office

141 prescribed for the senators.

142It was by them shown,

143 as well on the credit of historical examples,

144 as from the reason of the thing,

145 that the most POPULAR branch of every government,

146 partaking of the republican genius,

147 by being generally the favorite of the people,

148 will be as generally a full match,

149 if not an overmatch,

150 for every other member of the Government.

151But independent of this most active

152 and operative principle,

153 to secure the equilibrium

154 of the national House of Representatives,

155 the plan of the convention has provided in its favor

156 several important counterpoises

157 to the additional authorities

158 to be conferred upon the Senate.

159The exclusive privilege of originating money bills

160 will belong to the House of Representatives.

161The same house will possess

162 the sole right of instituting impeachments:

163 is not this a complete counterbalance

164 to that of determining them?

165The same house will be the umpire

166 in all elections of the President,

167 which do not unite the suffrages

168 of a majority of the whole number of electors;

169 a case which it cannot be doubted

170 will sometimes, if not frequently, happen.

171The constant possibility of the thing

172 must be a fruitful source of influence to that body.

173The more it is contemplated,

174 the more important will appear

175 this ultimate though contingent power,

176 of deciding the competitions

177 of the most illustrious citizens of the Union,

178 for the first office in it.

179It would not perhaps be rash to predict,

180 that as a mean of influence

181 it will be found to outweigh

182 all the peculiar attributes of the Senate.

183A THIRD objection to the Senate

184 as a court of impeachments,

185 is drawn from the agency they are to have

186 in the appointments to office.

187It is imagined that they would be too indulgent judges

188 of the conduct of men,

189 in whose official creation they had participated.

190The principle of this objection would condemn a practice,

191 which is to be seen in all the State governments,

192 if not in all the governments

193 with which we are acquainted:

194 I mean that of rendering those

195 who hold offices during pleasure,

196 dependent on the pleasure

197 of those who appoint them.

198With equal plausibility might it be alleged in this case,

199 that the favoritism of the latter

200 would always be an asylum

201 for the misbehavior of the former.

202But that practice, in contradiction to this principle,

203 proceeds upon the presumption,

204 that the responsibility of those who appoint,

205 for the fitness and competency of the persons

206 on whom they bestow their choice,

207 and the interest they will have

208 in the respectable and prosperous administration

209 of affairs,

210 will inspire a sufficient disposition

211 to dismiss from a share in it all such

212 who, by their conduct,

213 shall have proved themselves unworthy

214 of the confidence reposed in them.

215Though facts may not always correspond

216 with this presumption,

217 yet if it be, in the main, just,

218 it must destroy the supposition

219 that the Senate,

220 who will merely sanction

221 the choice of the Executive,

222 should feel a bias,

223 towards the objects of that choice,

224 strong enough to blind them

225 to the evidences of guilt so extraordinary,

226 as to have induced the representatives

227 of the nation

228 to become its accusers.

229If any further arguments were necessary

230 to evince the improbability of such a bias,

231 it might be found in the nature of the agency

232 of the Senate in the business of appointments.

233It will be the office of the President to NOMINATE,

234 and, with the advice and consent

235 of the Senate, to APPOINT.

236There will, of course, be no exertion of CHOICE

237 on the part of the Senate.

238They may defeat one choice of the Executive,

239 and oblige him to make another;

240 but they cannot themselves CHOOSE,

241 they can only ratify or reject

242 the choice of the President.

243They might even entertain a preference

244 to some other person,

245 at the very moment they were assenting

246 to the one proposed,

247 because there might be no positive ground of opposition

248 to him;

249 and they could not be sure,

250 if they withheld their assent,

251 that the subsequent nomination

252 would fall upon their own favorite,

253 or upon any other person in their estimation

254 more meritorious than the one rejected.

255Thus it could hardly happen,

256 that the majority of the Senate

257 would feel any other complacency

258 towards the object of an appointment

259 than such as the appearances of merit

260 might inspire,

261 and the proofs of the want of it destroy.

262A FOURTH objection to the Senate

263 in the capacity of a court of impeachments,

264 is derived from its union with the Executive

265 in the power of making treaties.

266This, it has been said,

267 would constitute the senators their own judges,

268 in every case of a corrupt or perfidious execution

269 of that trust.

270After having combined with the Executive

271 in betraying the interests of the nation

272 in a ruinous treaty,

273 what prospect, it is asked,

274 would there be of their being made to suffer

275 the punishment they would deserve,

276 when they were themselves to decide

277 upon the accusation brought against them

278 for the treachery of which they have been guilty?

279This objection has been circulated

280 with more earnestness

281 and with greater show of reason

282 than any other which has appeared

283 against this part of the plan;

284 and yet I am deceived

285 if it does not rest upon an erroneous foundation.

286The security essentially intended by the Constitution

287 against corruption and treachery

288 in the formation of treaties,

289 is to be sought for in the numbers and characters

290 of those who are to make them.

291The JOINT AGENCY of the Chief Magistrate of the Union,

292 and of two thirds of the members of a body

293 selected by the collective wisdom

294 of the legislatures of the several States,

295 is designed to be the pledge

296 for the fidelity of the national councils

297 in this particular.

298The convention might with propriety have meditated

299 the punishment of the Executive,

300 for a deviation from the instructions

301 of the Senate,

302 or a want of integrity

303 in the conduct of the negotiations

304 committed to him;

305 they might also have had in view

306 the punishment of a few leading individuals

307 in the Senate,

308 who should have prostituted their influence

309 in that body

310 as the mercenary instruments of foreign corruption:

311 but they could not, with more or with equal propriety,

312 have contemplated the impeachment and punishment

313 of two thirds of the Senate,

314 consenting to an improper treaty,

315 than of a majority of that

316 or of the other branch of the national legislature,

317 consenting to a pernicious or unconstitutional law,

318 a principle which, I believe,

319 has never been admitted into any government.

320How, in fact, could a majority

321 in the House of Representatives impeach themselves?

322Not better, it is evident,

323 than two thirds of the Senate might try themselves.

324And yet what reason is there,

325 that a majority of the House of Representatives,

326 sacrificing the interests of the society

327 by an unjust and tyrannical act of legislation,

328 should escape with impunity,

329 more than two thirds of the Senate,

330 sacrificing the same interests

331 in an injurious treaty with a foreign power?

332The truth is, that in all such cases

333 it is essential to the freedom

334 and to the necessary independence

335 of the deliberations of the body,

336 that the members of it should be

337 exempt from punishment

338 for acts done in a collective capacity;

339 and the security to the society must depend

340 on the care which is taken

341 to confide the trust to proper hands,

342 to make it their interest

343 to execute it with fidelity,

344 and to make it as difficult as possible

345 for them to combine

346 in any interest opposite

347 to that of the public good.

348So far as might concern the misbehavior of the Executive

349 in perverting the instructions

350 or contravening the views of the Senate,

351 we need not be apprehensive

352 of the want of a disposition

353 in that body to punish

354 the abuse of their confidence

355 or to vindicate their own authority.

356We may thus far count upon their pride,

357 if not upon their virtue.

358And so far even as might concern

359 the corruption of leading members,

360 by whose arts and influence the majority

361 may have been inveigled

362 into measures odious to the community,

363 if the proofs of that corruption

364 should be satisfactory,

365 the usual propensity of human nature

366 will warrant us in concluding

367 that there would be commonly

368 no defect of inclination

369 in the body to divert the public resentment

370 from themselves

371 by a ready sacrifice of the authors

372 of their mismanagement and disgrace.

373PUBLIUS.

3741 In that of New Jersey, also,

375 the final judiciary authority

376 is in a branch of the legislature.

377In New Hampshire, Massachusetts, Pennsylvanis,

378 and South Carolina,

379 one branch of the legislature

380 is the court for the trial of impeachments.