Chapter: 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 well-established 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.

 Hamilton responds to four further objections raised against the powers granted to the Senate as a court for the trial of impeachment. The first objection is that the provision "confounds legislative and judiciary authorities in the same body." Hamilton argues that this is necessary and proper since the congress must be able to hold the executive accountable. He further notes that the role of accusing and judging is split between the two houses of Congress and that similar systems have been used in the states without deleterious effect. The second objection is that the Senate will have so much power as to become aristocratic in a nature. Hamilton argues that the house will have sufficient powers to counter the influence of the senate. The third objection is that the senators will not be able to impartially judge presidential appointees who they once voted to confirm. Hamilton argues that the Senate will not be so biased as to be blind to the "evidences of guilt so extraordinary" as to have induced the representatives in the House to have impeached the official. The fourth objection is that senators will not be able to impartially judge themselves for the role they play in the ratification of foreign treaties. The critics imagine a situation in which senators act corruptly in ratifying a certain treaty. These critics claim that in such a situation the senators would end up being their own judges. Hamilton dismisses this on the basis that it would likely be only a few corrupt leaders in the senate who manipulated the treaty and that these men could be impeached and tried. He furthermore points out the rather obvious impossibility of fashioning a system in which a legislative body could impeach or convict itself by majority vote.

