Federalist Papers Nos. 62–66 complete the examination of the legislative branch by focusing on the Senate—the smaller, more stable body designed to check the House of Representatives and handle the nation’s most delicate responsibilities.
- Federalist 62 (Madison) explains the basic structure of the Senate: equal representation of the states, six-year terms, higher age and citizenship requirements, and selection by state legislatures. These features create a body that is more deliberative, experienced, and resistant to sudden popular passions than the House.
- Federalist 63 (Madison) continues the defense of the Senate, emphasizing its role in providing stability, continuity, and a necessary check on the more numerous and frequently elected House of Representatives. A smaller, longer-serving body is essential for wise legislation and national character.
- Federalist 64 (Jay) marks the return of John Jay after a long absence. Drawing on his extensive diplomatic experience as former Secretary for Foreign Affairs and negotiator of the Treaty of Paris (which concluded the Revolutionary War with Britain), Jay defends giving the Senate a share in the treaty-making power. He argues that treaties require secrecy, maturity, and careful deliberation—qualities best supplied by the combination of the President and a two-thirds vote of the Senate.
- Federalist 65 (Hamilton) begins the defense of the Senate’s power to try impeachments. He explains why the Senate is better suited than the Supreme Court or any other body to serve as a court of impeachment for high officers of the government.
- Federalist 66 (Hamilton) answers the remaining Anti-Federalist objections to the Senate acting as a court of impeachment, reinforcing the wisdom of the constitutional arrangement.
Taken together, these five papers present the Senate as an indispensable element of the constitutional design: a stabilizing force within the legislature, a guardian of the states’ equal voice, and the proper body to share the solemn powers of treaty-making and impeachment.
Federalist 62: Overview of the Senate
HAVING EXAMINED the constitution of the House of Representatives – and answered the principal objections against it – I next examine the Senate. There are five areas of inquiry:
(1) The qualification of senators;
(2) The appointment of them by the State legislatures;
(3) The equality of representation in the Senate;
(4) The number of senators, and the term for which they are to be elected; and
(5) The powers vested in the Senate.
The first four are discussed herein, while the powers of the Senate are discussed in Federalist 63 through Federalist 66.
Qualifications for the Senate
The qualifications for senators consist in a more advanced age – and a longer period of citizenship – than those eligible to be representatives.
While a representative must be 25 years old and a citizen for at least 7 years, a senator must be 30 years of age at least and a citizen for at least 9 years.
The propriety of these distinctions is explained by the nature of the senatorial trust, which requires a greater extent of information and stability of character. By the age of 30, a senator ought to have reached a period of life most likely to supply these advantages.
Since a senator is likely to participate immediately in transactions with foreign nations, the nine-year citizenship threshold helps ensure senatorial power is exercised by one who is thoroughly weaned from the prepossessions and habits incident to foreign birth and education.
The nine-year requirement is a prudent mediocrity between a total exclusion of adopted citizens – whose merits and talents may claim a share in the public confidence – and a hasty and indiscriminate admission of a new citizen of foreign birth, which might create a channel for foreign influence on the national councils.
The method of having State legislatures appoint senators will refine the selection process more than would direct election by individual citizens. To this advantage must be added the agency of the States in forming the Federal government – which itself will secure the independent authorities of the States – and by linking the two systems.
Senators Will Be Chosen by State Legislatures
Among the various modes which might have been devised for constituting the Senate, the one selected is probably the most congenial with public opinion: “The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof, for six Years; and each Senator shall have one Vote.” Art. I, § 3, cl. 1.
The method of having State legislatures appoint senators will refine the selection process more than would direct election by individual citizens.
To this advantage must be added the agency of the States in forming the Federal government – which itself will secure the independent authorities of the States – and by linking the two systems.
Each State Is to Be Equally Represented in the Senate
Among a People thoroughly incorporated into one nation, every district ought to have a proportional share in the government.
Among independent and sovereign states bound together by a simple league, the parties – however unequal in size – ought to have an equal share in the common councils.
In a compound republic like the United States – which partakes both of the national and federal character – the Federal government ought to be founded on a mixture of the principles of proportional and equal representation.
But it is superfluous to examine the Senate on a theoretical standard, since all agreed its structure was not the result of theory – but of a spirit of amity – and that mutual deference and concession which the peculiarity of our political situation rendered indispensable.
A common government – with powers equal to its objects – is called for by the voice, and still more loudly by the political situation of America.
The equality of representation in the Senate evidently resulted from compromise between the opposite pretensions of the large and the small States.
A government founded on principles more consonant to the wishes of the larger States would not likely have been obtained from the smaller States.
The only alternatives for the larger States were to agree to equality of representation in the Senate or to a government still more objectionable.
Of these, the advice of prudence was to embrace equality of representation among the States, whether large or small.
Instead of indulging a fruitless anticipation of the possible mischiefs which may ensue from equality of representation, it is better to contemplate the advantages which flow from the sacrifice by the larger States.
No law or resolution can now be passed without the concurrence, first, of a majority of the People (through House approval), and then of a majority of the States (through Senate approval). This complicated check on legislation may in some instances be injurious as well as beneficial. If exercised rationally, it is a defense the smaller States may utilize if any interests common to them – and distinct from those of the other States – would otherwise be exposed to a peculiar danger.
Equality of Senatorial Power Acknowledges and Preserves Residuary State Sovereign Powers
The equal vote allowed to each State is at once a constitutional recognition of the portion of sovereignty remaining in the individual States, and an instrument for preserving that residual sovereignty.
This equality ought to be no less acceptable to the large than to the small States, since they are not less solicitous to guard against – by every possible expedient – an improper consolidation of the States into one simple republic.
A Majority of the Senate also Is a Majority of the States, which May Block Improper Legislation
Another advantage accruing from the ingredient of State representation in the Senate is the additional impediment it must prove against improper acts of legislation.
No law or resolution can now be passed without the concurrence, first, of a majority of the People (through House approval), and then of a majority of the States (through Senate approval).
This complicated check on legislation may in some instances be injurious as well as beneficial.
If exercised rationally, it is a defense the smaller States may utilize if any interests common to them – and distinct from those of the other States – would otherwise be exposed to a peculiar danger.
But the larger States will always be able – by their power over supplies – to defeat unreasonable exertions of this prerogative by the lesser States.
And as the faculty and excess of lawmaking seem to be the diseases to which our governments are most liable, it is not impossible that this part of the Constitution may be more convenient in practice than it appears to many in contemplation.
In order to form an accurate judgment on both of these points, it is proper to inquire into the purposes which are to be answered by a Senate.
In order to ascertain these, it will be necessary to review the inconveniences which a republic must suffer from the want of such an institution.
It is a misfortune incident to republican government – though in a less degree than to other governments – that those who administer it may forget their obligations to their constituents, and prove unfaithful to their important trust.
A Senate – as a second and distinct branch of the legislative assembly – must be in all cases a salutary check on the government.
It doubles the security to the People by requiring the concurrence of two distinct bodies in schemes of usurpation or perfidy, where the ambition or corruption of one would otherwise be sufficient.
This precaution is founded on such clear principles – so well understood in the United States – that it would be superfluous to enlarge on it.
The improbability of sinister combinations will be in proportion to the dissimilarity in the genius of the two bodies.
Thus, it is politic to distinguish them from each other by every circumstance which will consist with a due harmony in all proper measures, and with the genuine principles of republican government.
It is a misfortune incident to republican government – though in a less degree than to other governments – that those who administer it may forget their obligations to their constituents, and prove unfaithful to their important trust. A senate – as a second and distinct branch of the legislative assembly – must be in all cases a salutary check on the government.
A Single and Numerous Assembly Is Susceptible to Sudden and Violent Passions, which a Senate Can Hinder
The necessity of a senate is also indicated by the propensity of all single and numerous assemblies to yield to the impulse of sudden and violent passions, and to be seduced by factious leaders into intemperate and pernicious resolutions, as explained in Federalist 58.
Examples on this subject might be cited without number from proceedings within the United States as well as from the history of other nations.
Representatives Will Be Less Acquainted than Senators with the Objects and Principles of Legislation
Another defect to be supplied by a senate lies in a typical representative’s want of a due acquaintance with the objects and principles of legislation.
For the most part, representatives are called from pursuits of a private nature, continued in appointment for a short time, and led by no permanent motive to study of the laws, affairs, and comprehensive interests of their country.
It is impossible that such an assembly of individuals – if left wholly to themselves – should escape a variety of important errors in the exercise of their legislative trust.
No small share of the present embarrassments of America is to be charged on the blunders of our governments, though most have proceeded from the heads rather than the hearts of their authors.
What indeed are all the repealing, explaining, and amending of laws – which fill and disgrace our voluminous codes – but so many monuments of deficient wisdom, so many impeachments by a succeeding session against a preceding session, and ultimately so many admonitions to the People of the value of a well-constituted senate?
In order to correct the infirmities of the representative assembly, a senate ought itself to (1) be free from it, (2) be less numerous, (3) possess great firmness, and (4) hold its authority by a tenure of considerable duration.
Senators Will Have Greater Knowledge of the Best Means to Promote the Happiness of the People
A good government requires two things: first, fidelity to the object of government, which is the happiness of the People; and second, a knowledge of the means by which that object can be best attained.
Some governments are deficient in both these qualities.
Most governments are deficient in fidelity to the happiness of the People.
In our State governments, however, too little attention has been paid to the knowledge of the means of attaining that happiness.
The Federal Constitution avoids this error. By creating the Senate, the Constitution adds to knowledge of the means by which the happiness of the People can be best attained, in a mode which increases the security for that object.
As Mutability of Government Increases, the Respect and Confidence of Other Nations Decreases
The mutability in public councils arising from a rapid succession of new members – however qualified they may be – points out the necessity of some stable institution in the government.
In the States, every new election appears to change half the representatives.
From this change of individuals must proceed a change of opinions, and from a change of opinions, a change of measures.
Yet a continual change of measures – even good measures – is inconsistent with every rule of prudence and every prospect of success.
Experience verifies this in private life. Constancy is more just – and more important – in national transactions.
A good government requires two things: first, fidelity to the object of government, which is the happiness of the People; and second, a knowledge of the means by which that object can be best attained. Some governments are deficient in both these qualities. Most governments are deficient in fidelity to the happiness of the People. In our State governments, however, too little attention has been paid to the knowledge of the means of attaining that happiness.
To trace the mischievous effects of a mutable government would fill a volume.
I refer to a few only, each of which will remind us of innumerable others.
In the first place, mutability forfeits the respect and confidence of other nations, and all the advantages connected with national character.
An individual who is observed to be inconstant to his plans – or perhaps to carry on his affairs without any plan at all – is marked at once by all prudent people as a speedy victim to his own unsteadiness and folly.
His more friendly neighbors may pity him, but all will decline to connect their fortunes with his; and not a few will seize the opportunity of making their fortunes out of his.
One nation is to another what one individual is to another, with this melancholy distinction perhaps, that a nation (having fewer of the benevolent emotions of an individual) is under fewer restraints from also taking undue advantage from the indiscretions of another nation.
Consequently, a nation whose affairs betray a want of wisdom and stability may calculate its losses resulting from the more systematic policy of its wiser neighbors.
The best instruction on this subject is unhappily conveyed to America by the example of her own situation.
She finds she is held in no respect by her friends; she is derided by her enemies; and she is a prey to every nation which has an interest in speculating on her fluctuating councils and embarrassed affairs.
An individual who is observed to be inconstant to his plans – or perhaps to carry on his affairs without any plan at all – is marked at once by all prudent people as a speedy victim to his own unsteadiness and folly. His more friendly neighbors may pity him, but all will decline to connect their fortunes with his; and not a few will seize the opportunity of making their fortunes out of his.
The internal effects of a mutable policy are still more calamitous, for it poisons the blessing of liberty itself.
It will be of little solace to the People that the laws are made by individuals of their own choice, if the laws be so voluminous they cannot be read, or so incoherent they cannot be understood; or if the laws are repealed or revised before they are promulgated, or undergo such incessant changes that no person knowing what the law is today can guess what it will be tomorrow.
Law is defined to be a rule of action.
But how can law be a rule, when it little known, and less fixed?
Public Instability Favors the Sagacious, the Enterprising, and the Monied
Another effect of public instability is the unreasonable advantage it gives to the sagacious, the enterprising, and the monied few over the industrious and uniformed mass of the People.
Every new regulation concerning commerce or revenue – or in any way affecting the value of the different species of property – presents a new harvest to those who watch the change, and can trace its consequences – a harvest not reared by themselves, but by the toils and cares of the great body of their fellow-citizens.
This is a state of things in which it may be said with some truth that laws are made for the few, not for the many.
What prudent merchant will hazard his fortunes in any new branch of commerce when he knows not but that his plans may be rendered unlawful before they can be executed? What farmer or manufacturer will lay himself out for the encouragement given to any particular cultivation or establishment, when he can have no assurance that his preparatory labors and advances will not render him a victim to an inconstant government? In a word, no great improvement or laudable enterprise can go forward which requires the auspices of a steady system of national policy.
In another point of view, great injury results from an unstable government.
The want of confidence in the public councils damps every useful undertaking, the success and profit of which may depend on a continuance of existing arrangements.
What prudent merchant will hazard his fortunes in any new branch of commerce when he knows not but that his plans may be rendered unlawful before they can be executed?
What farmer or manufacturer will lay himself out for the encouragement given to any particular cultivation or establishment, when he can have no assurance that his preparatory labors and advances will not render him a victim to an inconstant government?
In a word, no great improvement or laudable enterprise can go forward which requires the auspices of a steady system of national policy.
But the most deplorable effect of all is that diminution of attachment and reverence which steals into the hearts of the People, towards a political system which betrays so many marks of infirmity, and disappoints so many of their flattering hopes.
No government – any more than an individual – will long be respected without being truly respectable; nor be truly respectable without possessing a certain portion of order and stability.
Madison or Hamilton
Federalist 63: The Necessity of a Senate
The Senate Will Aid in the Development and Stability of Our National Character
A FIFTH DESIDERATUM illustrating the utility of the Senate is our want of a due sense of national character.
Without a select and stable member of the government, the esteem of foreign powers will be forfeited by an unenlightened and variable policy, which will proceed from the causes already mentioned.
Furthermore, our national councils will not possess that sensibility to the opinion of the world, an opinion which is initially necessary to merit – and thereafter to obtain – its respect and confidence.
The Judgment of Other Nations
Attention to the judgment of other nations is important to every government for two reasons.
First – and independently of the merits of any particular plan or measure – it is desirable on various accounts that it should appear to other nations as the offspring of a wise and honorable policy.
The second reason is the presumed or known opinion of the impartial world may be the best guide that can be followed in doubtful cases, particularly where our national councils may be warped by some strong passion or momentary interest.
How many errors and follies would America have avoided if the justice and propriety of all of her measures had been previously tried by the light in which they would probably appear to the unbiased part of mankind?
The Example of Rhode Island
In Rhode Island, its half-yearly representatives would have been little affected in their deliberations of various iniquitous measures by arguments drawn from the light in which such would be viewed by foreign nations, or even by sister States.
It can scarcely be doubted that if the concurrence of a select and stable body had been necessary, a regard to national character alone would have prevented the calamities under which that misguided State is now laboring.
Attention to the judgment of other nations is important to every government for two reasons. First – and independently of the merits of any particular plan or measure– it is desirable on various accounts that it should appear to other nations as the offspring of a wise and honorable policy.
The second reason is the presumed or known opinion of the impartial world may be the best guide that can be followed in doubtful cases, particularly where our national councils may be warped by some strong passion or momentary interest.
A Numerous and Changeable Body Cannot Supply the Requisite Stability
However requisite a sense of national character may be, it can never be sufficiently possessed by a numerous and changeable body like the House of Representatives.
The requisite stability can be found only in a number so small that a sensible degree of the praise and blame of public measures may be the portion of each individual, or in an assembly so durably invested with public trust that the pride and consequence of its members may be sensibly incorporated with the reputation and prosperity of the community.
The Senate Will Foster and Sustain a Due Responsibility of the Federal Government to the People
A sixth reason favoring creation of a Senate is that the Federal government may lack a due responsibility to the People in some important cases.
This lack of responsibility can arise as a result of the frequency of elections.
Since elections establish a due responsibility in the first place, this remark may appear not only new, but paradoxical. When explained, it must nevertheless be acknowledged to be as undeniable as it is important.
However requisite a sense of national character may be, it can never be sufficiently possessed by a numerous and changeable body like the House of Representatives.
Legislative Responsibility to the Objects of Government
The objects of government may be divided into two general classes.
In the first class are measures which singly have an immediate and sensible operation.
The second class of governmental objectives requires a succession of well-chosen and well-connected measures, which have a gradual and perhaps unobserved operation.
The importance of the second class of measures to the collective and permanent welfare of every country needs no explanation.
It is evident that an assembly elected for a term of two years will be unable to provide more than one or two links in a chain of measures on which the general welfare may essentially depend.
The membership of the House ought not to be answerable for the final result, any more than a steward or tenant for a one-year period could be justly made to answer for places or improvements which could not be accomplished in less than half a dozen years.
Since it is sufficiently difficult to preserve a personal responsibility in the members of a numerous body for acts of the first class – those having an immediate, detached, and palpable operation on constituents – it is practically impossible for citizens to estimate the share of influence which their annual or biennial assemblies may have on events resulting from the mixed transactions of several years.
Responsibility – in order to be reasonable – must be limited to objects within the power of the responsible party.
In order to be effectual, responsibility must relate to operations of that power, of which a ready and proper judgment can be formed by constituents.
What bitter anguish would not the people of Athens have often escaped if their government had contained so provident a safeguard against the tyranny of their own passions? Popular liberty might then have overcome the indelible reproach of decreeing to the same citizens hemlock on one day and statues on the next.
The Senate Will Be a Check on House Excesses
Thus far I have considered the circumstances which point out the necessity of a well-constructed Senate only insofar as they relate to the House of Representatives.
As the cool and deliberate sense of the community ought to prevail in all governments – and actually will, in all free governments – so too are there particular moments in public affairs when the People themselves – stimulated by some irregular passion, seeking some illicit advantage, or having been misled by the artful misrepresentations of interested persons – may call for measures which they themselves will afterwards be the most ready to lament and condemn.
In these critical moments, the interference of some temperate and respectable body of citizens may suspend the blow meditated by the People against themselves, until reason, justice, and truth have regained their authority over the public mind.
To this I will add that an institution such as the Senate sometimes may be necessary as a defense to the People against their own temporary errors and delusions.
What bitter anguish would not the people of Athens have often escaped if their government had contained so provident a safeguard against the tyranny of their own passions?
Popular liberty might then have overcome the indelible reproach of decreeing to the same citizens hemlock on one day and statues on the next.
To this I will add that an institution such as the Senate sometimes may be necessary as a defense to the People against their own temporary errors and delusions. As the cool and deliberate sense of the community ought to prevail in all governments – and actually will, in all free governments – so too are there particular moments in public affairs when the People themselves – stimulated by some irregular passion, seeking some illicit advantage, or having been misled by the artful misrepresentations of interested persons – may call for measures which they themselves will afterwards be the most ready to lament and condemn.
The Geographical Size of the United States Will Not Prevent Popular Delusions
Some may suggest that – unlike the crowded inhabitants of a small district – a people spread over an extensive region like the United States cannot be subject to the infection of violent passions or to the danger of combining in pursuit of unjust measures.
I do not deny that this is a distinction of peculiar importance, and in Federalist 10, I endeavored to show it is one of the principal recommendations of a confederated republic.
At the same time, this advantage ought not be considered as superseding the use of auxiliary precautions.
The same extended situation which will exempt the People of America from some of the dangers incident to lesser republics, also will expose the People to the inconvenience of remaining for a longer time under the influence of those misrepresentations which the combined industry of interested individuals may succeed in distributing among them.
The same extended situation which will exempt the People of America from some of the dangers incident to lesser republics, also will expose the People to the inconvenience of remaining for a longer time under the influence of those misrepresentations which the combined industry of interested individuals may succeed in distributing among them.
The Senate Will Add Longevity to Our Republic
It adds no small weight to all these considerations that history informs us of no long-lived republic which did not have a senate.
Sparta, Rome, and Carthage are the only states to whom that character can be applied.
In both Sparta and Rome there was a senate for life.
The constitution of the senate in Carthage is less known.
Circumstantial evidence makes it probable that it was not different in this particular from the two others.
It is at least certain that it had some quality or other which rendered it an anchor against popular fluctuations. In addition, a smaller council – drawn out of the senate itself – was appointed not only for life, but filled up its own vacancies.
Although these examples are unfit for imitation, as they are repugnant to the genius of America, they are very instructive proofs of the necessity of some institution that will blend stability with liberty, especially when compared with the fugitive and turbulent existence of other ancient republics.
Although the People can never willfully betray their own interests, they may possibly be betrayed by their representatives.
The circumstances which distinguish the American from other popular governments – ancient as well as modern – render extreme circumspection necessary in reasoning from the one case to the other.
But after allowing due weight to this consideration, there are many points of similitude which render these examples not unworthy of our attention.
As we have seen, many of the defects common to a numerous assembly frequently elected by the People – and to the People themselves – can only be remedied by a senatorial institution.
There are others peculiar to a numerous assembly which require the control of such an institution.
Although the People can never willfully betray their own interests, they may possibly be betrayed by their representatives.
The danger will be evidently greater where the whole legislative trust is lodged in the hands of only one body of individuals, than where the concurrence of separate and dissimilar bodies is required in every public act.
The Principle of Representation Was Present in Long-Lived Republics
Those who question the analogy of our own republic to ancient ones assert the principle of representation was unknown in those ancient states. But this is by no means precisely true in the latitude commonly given to it.
Without entering into a disquisition which here would be misplaced, I will refer to a few known facts.
The Archons of Athens
In the most pure democracies of Greece, many of the executive functions were performed, not by the people themselves, but by officers elected by the people, and representing the People in their executive capacity.
Prior to the reform of Solon, Athens was governed by nine Archons, annually elected by the people at large.
The degree of power delegated to them seems to be left in great obscurity.
Subsequent to that period, we find an assembly – first of four hundred members, later increased to six – annually elected by the people; and partially representing the people in their legislative capacity.
The Archons were not only associated with the people in the function of making laws, but had the exclusive right of originating legislative propositions to the people.
The Senate of Carthage
The senate of Carthage – whatever the scope of its power or duration of appointments – appears to have been elective by the suffrages of the people.
Similar instances might be traced in most (if not all) the popular governments of antiquity.
The Ephori of Sparta, the Tribunes of Rome, and the Cosmi of Crete
Lastly, in Sparta we meet with the Ephori, and in Rome with the Tribunes; two bodies, small indeed in numbers, but annually elected by the whole body of the people, and considered as the representatives of the people, almost in their plenipotentiary capacity.
The Cosmi of Crete were also annually elected by the people, and have been considered by some authors as an institution analogous to those of Sparta and Rome, with this difference only: that in the election of that representative body the right of suffrage was communicated only to a part of the people.
From these facts, to which many others might be added, it is clear that the principle of representation was neither unknown to the ancients nor wholly overlooked in their political constitutions.
The representatives of the people were not totally excluded from the administration of ancient republics.
The true distinction between these and our Federal government lies in the total exclusion of the People – in their collective capacity – from any share in the Federal government, and not in the total exclusion of the representatives of the people from the administration of the government in the ancient republics.
This distinction leaves a most advantageous superiority in favor of the United States. But to insure to this advantage its full effect, we must be careful not to separate it from our other advantage: an extensive territory.
For it is unbelievable that any form of representative government could have succeeded within the narrow limits occupied by the democracies of Greece.
In answer to all these arguments – suggested by reason, illustrated by examples, and enforced by our own experience – the jealous adversary of the Constitution will probably be content repeating that a Senate – not appointed immediately by the People and for the term of six years – must gradually acquire a dangerous preeminence in the government, and finally transform it into a tyrannical aristocracy.
From these facts, to which many others might be added, it is clear that the principle of representation was neither unknown to the ancients nor wholly overlooked in their political constitutions. The representatives of the people were not totally excluded from the administration of ancient republics.
To this general answer, a general reply is sufficient: that liberty may be endangered by the abuses of liberty as well as by the abuses of power; history offers numerous instances of both; and that abuses of liberty (rather than of power) are most to be apprehended by the United States.
But a more particular reply may be given.
Before such a revolution can be effected, the Senate must in the first place corrupt itself. In the next place it must corrupt the State legislatures.
The Senate must then corrupt the House of Representatives, and finally it must corrupt the voting public.
It is evident that the Senate must be first corrupted before it can attempt an establishment of tyranny.
Without corrupting the State legislatures, it cannot prosecute the attempt, because the periodical change of members would otherwise regenerate the whole body.
Without exerting the means of corruption with equal success on the House of Representatives, the opposition of that coequal branch of the government would inevitably defeat the attempt; and without corrupting the People themselves, a succession of new representatives would speedily restore all things to their pristine order.
Is there anyone who can be persuaded to believe the Senate can arrive (by any possible means within the compass of human address) at the object of a lawless ambition, through all these obstructions?
The Experience of the Senate of Maryland Disproves Fears of Tyranny
If reason condemns the suspicion of potential tyranny, the same sentence is pronounced by experience.
The constitution of Maryland furnishes the most apposite example.
The Senate of Maryland is elected indirectly by the People, for a five-year term, which is only one year less than the Federal Senate.
It is also distinguished by the remarkable prerogative of filling up its own vacancies within the term of its appointment.
At the same time, it is not under the control of any such rotation as is provided for the Federal Senate.
If the Federal Senate really contained the danger which has been so loudly proclaimed, some symptoms at least of a like danger ought by this time to have been betrayed by the Senate of Maryland, but no such symptoms have appeared.
On the contrary, the jealousies at first entertained by individuals of the same description with those who view with terror the correspondent part of the Federal Constitution, have been gradually extinguished by the progress of the experiment.
From the salutary operation of this part of it, the Maryland constitution is daily deriving a reputation which will probably not be rivaled by that of any State in the Union.
It is evident that the Senate must be first corrupted before it can attempt an establishment of tyranny.
The British Example of an Upper House
But if any thing could silence the jealousies on this subject, it ought to be the British example of the House of Lords, which is that nation’s equivalent to the Federal Senate.
Instead of being elected for a term of six years and of being unconfined to particular families or fortunes (as with our Federal Senate), the House of Lords is a hereditary assembly of opulent nobles.
The British popular assembly – its House of Commons – instead of being elected for two years and by the whole body of the people (as in the United States) – is elected for seven years, and often by a very small proportion of the people.
In these circumstances, we ought to see on full display the aristocratic usurpations and tyranny which are predicted to be exemplified in the United States at some future period.
British history, on the contrary, informs us that this hereditary assembly has been unable to defend itself against the continual encroachments of the House of Commons, and that it no sooner lost the support of the monarch, than it was actually crushed by the weight of the popular branch.
As far as antiquity can instruct us, its examples support the reasoning we have employed. In Sparta, the Ephori – the annual representatives of the people – were found an overmatch for the senate for life, and continually gained on its authority and finally drew all power into their own hands.
British history, on the contrary, informs us that this hereditary assembly has been unable to defend itself against the continual encroachments of the House of Commons, and that it no sooner lost the support of the monarch, than it was actually crushed by the weight of the popular branch.
It is well known that the Tribunes of Rome – the representatives of the people – prevailed in almost every contest with the senate for life, and in the end gained the most complete triumph over it.
This fact is the more remarkable because unanimity was required in every act of the Tribunes, even after their number was augmented to ten. It proves the irresistible force possessed by that branch of a free government, which has the people on its side.
To these examples might be added that of Carthage, whose senate – according to the testimony of Polybius – instead of drawing all power into its vortex, had lost almost the whole of its original portion by the commencement of the second Punic War.
The Senate Will Never Become an Aristocracy
The conclusive evidence presented above establishes the Senate will never be able to transform itself – by gradual usurpations – into an independent and aristocratic body.
If such a revolution should ever happen – from causes against which the foresight of man cannot guard – we are warranted in believing the House of Representatives – with the People on their side – will at all times be able to bring back the Constitution to its primitive form and principles.
Against the force of the immediate representatives of the People, nothing will be able to maintain the constitutional authority of the Senate except a display of enlightened policy and attachment to the public good as will divide with that branch of the legislature the affections and support of the entire body of the People themselves.
Madison or Hamilton
Federalist 64: Why Approval of Treaties Is Delegated to the Senate
ENEMIES OF PARTICULAR PERSONS and opponents to particular measures seldom confine their censures to things worthy of blame.
This principle alone can explain the motives of those who condemn the Constitution in the aggregate and treat with severity some of its most unexceptionable articles.
The Presidential Power to Make Treaties with the Concurrence of Two Thirds of the Senators Present Is Essential
One such provision of the Constitution gives power to the President, “by and with the advice and consent of the Senate, to make treaties, provided two thirds of the senators present concur.” Art. II, § 2, cl. 2 (emphasis added).
The power of making treaties is an important one – especially as it relates to war, peace and commerce – and it should be delegated in a mode that includes precautions to afford the highest security for its exercise by individuals best qualified for the purpose and in the manner most conducive to the public good.
The Staggered Terms of Senatorial Appointments Establishes a Superior System for Promoting and Protecting Our Trade and Navigation
In the conduct of any business, the absolute necessity of a system is universally known and acknowledged. The Constitution not only wisely commits the power of making treaties to able and honest individuals, it also ensures they continue in office a sufficient time to become perfectly acquainted with our national concerns, and to form and introduce a system for the management of them.
The Value of the Accumulated Knowledge of Senators
A term of six years gives a senator the opportunity to accumulate the political information and experience to benefit the country.
And by staggering the terms of senators, the Constitution leaves a considerable residue of the old ones in place, thereby promoting uniformity and order while reserving a constant succession of official information.
In the conduct of any business, the absolute necessity of a system is universally known and acknowledged. The Constitution not only wisely commits the power of making treaties to able and honest individuals, it also ensures they continue in office a sufficient time to become perfectly acquainted with our national concerns, and to form and introduce a system for the management of them.
Political information developed over time is particularly important in the affairs of trade and navigation.
These should be regulated by a system cautiously formed and steadily pursued. Our treaties and laws should correspond with and promote this system.
The Constitution strengthens the conformity of treaties and laws by requiring Senate concurrence for the approval of both.
Those with the Power to Negotiate and Approve Treaties Must Be Allowed to Proceed with Speed and Secrecy
In the negotiation of treaties of any nature, perfect secrecy and immediate dispatch are sometimes required.
For instance, one may obtain the most useful intelligence if the person possessing it can be relieved from apprehension of discovery, which operates whether the person is a mercenary or a friend.
Many of both descriptions would choose to rely upon the secrecy offered by the President, but decline to confide in a Senator, and still less so to a member of a popular assembly like the House of Representatives.
This consideration alone sufficiently explains why the power of making treaties must not be committed to a popular assembly composed of members constantly coming and going in quick succession.
Such a body must necessarily be inadequate to the attain those great objects requiring steady contemplation in all their relations and circumstances.
Those objects can only be approached and achieved with talents, exact information, and time.
The affairs of humans are marked by tides of irregular duration, strength, and direction, seldom running twice exactly in the same manner or measure.
To discern and profit by these tides in national affairs is the business of those who preside over them.
The most experienced negotiators inform us there are frequent occasions when days or hours are precious.
The loss of a battle, death of a prince, removal of a minister, or other circumstances can intervene to change the present posture and aspect of affairs and turn the most favorable tide against our wishes.
As in the field, so in the cabinet, with moments to be seized as they pass. Those who preside in either should be given the capacity to improve the situation.
The affairs of humans are marked by tides of irregular duration, strength, and direction, seldom running twice exactly in the same manner or measure. To discern and profit by these tides in national affairs is the business of those who preside over them.
The People May Delegate the Power to Negotiate and Approve Treaties on the Federal Government’s Behalf to a Select Body of Citizens
Some are displeased that treaties are to have the force of law, and say treaties should be made only by individuals invested with legislative authority.
The provision in question states: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” Art. VI, cl. 2.
All constitutional acts of power – whether in the executive or the judicial department – have as much legal validity and obligation as if they proceeded from the legislature itself.
The Constitution of New York, for instance, declares the judgments issued by its courts (the judicial authority) and the commissions issued by its governor (the executive authority) are as valid as and binding as the laws passed by its legislature (the legislative authority).
To put it another way, the People’s delegation of the power to make laws to a legislative authority does not authorize the legislature to do every other act of sovereignty by which the citizens are to be bound and affected.
Whatever name be given to the power of making treaties – or however obligatory the treaties may be when made – it is certain the People may properly commit that power to a body distinct from the legislative, executive, or judicial branches.
All constitutional acts of power – whether in the executive department or the judicial department – have as much legal validity and obligation as if they proceeded from the legislature itself.
Treaties Have Always Superseded National Laws
Some oppose the provision that declares treaties are to be the supreme law of the land.
They profess to believe treaties are repealable at pleasure, like the acts of the legislature.
This idea seems to be new and peculiar to this country. But just as new truths often appear, so too do new errors.
A treaty is only another name for a bargain.
What nation would make any bargain with us if it binds them absolutely, but us only for as long and far as we think to be bound?
Laws may be amended or repealed, as treaties may be altered or cancelled.
But treaties are not made by one party alone.
Two parties are required, and at first the consent of both is essential to formation of the treaty.
As the consent of both parties is required at the outset, so it must afterwards be to alter or cancel the agreement.
The Constitution does not change in the least the obligations of treaties.
Treaties remain just as binding and beyond the lawful reach of legislative acts now as they will be at any future period under any form of government.
Jealousy of one’s rights or the rights of others can be useful in a republic, but when jealousy abounds in the body politic, it can become like bile in the natural body, which clouds the eyes with delusive appearances.
Fears of Tyranny and Corruption Are Unfounded
Jealousy of one’s rights or the rights of others can be useful in a republic, but when jealousy abounds in the body politic, it can become like bile in the natural body, which clouds the eyes with delusive appearances.
Jealousy can produce the fears and apprehensions of those who contend the President and Senate will make treaties without an equal eye to the interests of all the States, or that two thirds of them will oppress the remaining third.
The opponents ask: who shall punish individual corruption, and how are we to scuttle disadvantageous treaties?
The possibility of a tyranny by the majority is negated by several facts.
First, the States are equally represented in the Senate, and by individuals the most able and the most willing to promote the interests of their constituents.
So long as the States continue to be careful in appointing proper persons – and insisting on their punctual attendance – they will all have an equal degree of influence in that body.
Second, as the United States assumes more of a national form and character, so will the good of the whole be more and more an object of attention.
A government must be a weak one indeed if it should forget the good of the whole can only be promoted by advancing the good of each of its parts or members.
Neither a president nor a senator will possess the power to make any treaty which does not equally bind or affect their families and estates together with the rest of the community.
Since their private interests are indistinct from those of the nation, neither will be tempted to neglect the community.
As to corruption, a person must either have been very unfortunate in his intercourse with the world – or possess a heart susceptible to such impressions – who can think it probable the president and two thirds of the Senate would ever be capable of such unworthy conduct.
It is difficult even to entertain so gross and invidious a thought. But if such a case should ever happen, the treaty so obtained from us would be – like all other fraudulent contracts – null and void by the law of nations.
Neither a president nor a senator will possess the power to make any treaty which does not equally bind or affect their families and estates together with the rest of the community. Since their private interests are indistinct from those of the nation, neither will be tempted to neglect the community.
With respect to their responsibility, how can it be increased?
Every influence on the human mind – such as the love of country, family affections and attachments, reputations, oaths, honor, and conscience – afford security for their fidelity.
The Constitution has taken the utmost care to ensure presidents and senators shall be individuals of talents and integrity.
I am persuaded the treaties they make will be as advantageous as could be made under the circumstances.
And to the extent the fear of punishment and disgrace can operate, that motive to good behavior is amply afforded by the article on impeachments. Art. II, § 4.
Jay
Federalist 65: The Power to Judge Articles of Impeachment Is Properly Vested in the Senate
THE REMAINING POWERS THE CONSTITUTION allots to the Senate – in a distinct capacity – are comprised in (1) its participation with the executive in the appointment of officers, and (2) its judicial character as a court for the trial of impeachments.
The appointment power is primarily exercised by the President – who selects and nominates potential appointees and – upon favorable advice and consent of the Senate – issues commissions of appointment.
The provisions relating to it are more properly discussed in the examination of the executive department, particularly Federalist 76 and Federalist 77.
The remainder of this paper will focus on the judicial character of the Senate.
Impeachment is a Political Act to Redress Injury Done to Society Itself, and the Judges of the Charges Must Be Those Most Likely to Remain Impartial and Be Readily Available
In a wholly-elective government like that of the United States, a well-constituted court for the trial of impeachments is more easily desirable than obtainable.
Impeachment encompasses those offenses which proceed from the misconduct of a public official in the abuse or violation of some public trust.
Impeachable offenses are of a nature which may with peculiar propriety be denominated political, since they relate chiefly to injuries done immediately to the society itself.
For this reason, the prosecution of an allegedly impeachable offense will seldom fail to agitate the passions of the whole community, and to divide it into parties more or less friendly or opposed to the accused.
The impeachment power encompasses acts of “[t]he President, Vice President and all civil Officers of the United States,” who “shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” Art. II, § 4.
The House of Representatives will possess the sole right of instituting impeachments, Art. I, § 2, cl. 5, and the Senate will have the power of determining them. Art. I, § 3, cl. 6.
Impeachment encompasses those offenses which proceed from the misconduct of a public official in the abuse or violation of some public trust. Impeachable offenses are of a nature which may with peculiar propriety be denominated political, since they relate chiefly to injuries done immediately to the society itself. For this reason, the prosecution of an allegedly impeachable offense will seldom fail to agitate the passions of the whole community, and to divide it into parties more or less friendly or opposed to the accused.
Claims of an Impeachable Act Will Often Connect with Pre-existing Factions
In many cases the claim of an impeachable act will connect itself with preexisting factions, which will enlist all their animosities, partialities, influence, and interests on one side or the other.
The greatest danger in such cases will always be that the decision will be regulated less by real demonstrations of innocence or guilt than by the comparative strength of parties.
The Senate Was Selected as the Most Impartial Tribunal for an Impeachment Trial
The delicacy and magnitude of the trust which so deeply concerns the political reputation and existence of every person engaged in the administration of public affairs speak for themselves.
In a government resting entirely on the basis of periodical elections, the difficulty of placing it rightly is readily perceived upon the realization that the most conspicuous characters in it will too often be the leaders or the tools of the most cunning or the most numerous faction.
On this account, they hardly can be expected to possess the requisite neutrality towards those whose conduct may be the subject of scrutiny.
The Constitutional Convention thought the Senate would be the most fit depositary of this important trust.
Those who can best discern the intrinsic difficulty of an impeachment trial will be least hasty in condemning the Convention’s opinion, and will be most inclined to allow due weight to the arguments which produced it.
Impeachment Is a National Inquest into the Conduct of Public Officials
What is the true spirit of impeachment?
Is it not designed as a method of national inquest into the conduct of public officials?
Since this is the design of it, ought not the proper inquisitors on the nation’s behalf be representatives of the nation itself?
There was no dispute that the power of originating the inquiry into the existence of an impeachable act ought to be lodged in the hands of one branch of the legislative body which is elected directly by the People: the House of Representatives.
Thus, the Constitution specifies: “The House of Representatives . . . shall have the sole Power of Impeachment.” Art. I, § 2, cl. 5.
The reasons demonstrating the propriety of this arrangement strongly pleaded for an admission of the other branch of that body – the Senate – to a share of the inquiry.
Thus, “The Senate shall have the sole Power to try all Impeachments.” Art. I, § 3, cl. 6.
The Mechanism for Impeachment Is Drawn from the British Example and Several State Constitutions Emulating It
In Great Britain, it is the province of the House of Commons to refer the impeachment, and of the House of Lords to decide upon it.
Several of the State constitutions have followed the example. They seem to have regarded the practice of impeachments as a bridle in the hands of the legislative body upon the executive servants of the government.
Is not this the true light in which it ought to be regarded?
Where else than in the Senate could have been found a tribunal sufficiently dignified – or sufficiently independent?
What other body would be likely to feel confidence enough in its own situation, to preserve – unawed and uninfluenced – the necessary impartiality between the accused individual and the representatives of the People, his accusers?
Trial in the Supreme Court Was Rejected as Unsatisfactory
Could the Supreme Court have been relied upon as answering this description?
It is doubtful the members of that tribunal would at all times be endowed with so eminent a portion of fortitude that would be called for in the execution of so difficult a task.
It is still more doubtful whether they would possess the degree of credit and authority which occasionally would be indispensable towards reconciling the People to a decision that clashed with an accusation brought by their immediate representatives.
A deficiency in fortitude would be fatal to the accused.
If the Supreme Court lacked credit or authority, it would be dangerous to the public tranquility.
The hazard in both these respects would be avoidable – if at all – by increasing the size of the Supreme Court.
But this would have rendered that tribunal more numerous than a reasonable attention to economy permits.
The Trial of the Charge of an Impeachable Offense Requires a Numerous Body
The necessity of a numerous court for the trial of impeachments is dictated by the nature of the proceeding. Impeachment can never be tied down by strict rules, either in the delineation of the offense by the prosecutors or in the construction of the offense by the judges of impeachment, which in other cases limits the discretion of courts in favor of the personal security of the judge.
There will be no jury to stand between the judges who are to pronounce the sentence of the law and the party who is to receive or suffer it.
The awful discretion which a court of impeachments must necessarily have – to doom to honor or to infamy the most confidential and the most distinguished characters of the community – forbids the commitment of the trust to a small number of persons.
These considerations are alone sufficient to conclude the Supreme Court would have been an improper substitute for the Senate as a court of impeachments.
In many cases the claim of an impeachable act will connect itself with pre-existing factions, which will enlist all their animosities, partialities, influence, and interests on one side or the other. The greatest danger in such cases will always be that the decision will be regulated less by real demonstrations of innocence or guilt than by the comparative strength of parties.
The Scope of Impeachment Is Limited; Any Subsequent Criminal or Civil Action Must Be Directed to a Different Tribunal
There remains a further consideration which strengthen this conclusion: the punishment which may be the consequence of conviction upon impeachment does not terminate the chastisement of the offender.
After having been sentenced to a perpetual ostracism from the esteem, confidence, honors and emoluments of his country, the person impeached will still be liable to prosecution and punishment in the ordinary course of law.
Would it be proper that the persons who in one trial had disposed of an individual’s fame and most valuable rights as a citizen, also be the disposers of the person’s life and his fortune in a second trial for the same offense?
Would there not be the greatest reason to apprehend that any error in the impeachment proceeding would be the parent of error in the second action?
The strong bias of one decision would be apt to overrule the influence of any new lights which might be brought to vary the complexion of another decision.
Those who know anything of human nature will perceive that by making the same persons the judges in both cases, those who might happen to be the objects of prosecution would be deprived (in great measure) of the double security intended to be preserved by a double trial.
Impeachment – which is nothing more than dismissal from a present office and disqualification for a future one – would often virtually include a sentence resulting in loss of life and estate.
The intervention of a jury in the second instance would not obviate the danger. Juries are frequently influenced by the opinions of judges.
While a jury is sometimes induced to find special verdicts – which refer the main question to the decision of the court – would any person be willing to stake his life and estate upon the verdict of a jury acting under the auspices of judges who had predetermined the accused’s liability and guilt?
Combining the Senate and Supreme Court Would Not Alleviate the Risks of Double Punishment
Would it have been an improvement to have united the Supreme Court with the Senate in the formation of the court of impeachments?
This union certainly would have several advantages, but would they have been overbalanced by the signal disadvantage arising from the agency of the same judges in the double prosecution to which the offender would be liable?
To a certain extent, the benefits of a union of the Supreme Court and the Senate in the trial of impeachments will be obtained from making the Chief Justice of the Supreme Court the president of the court of impeachments, as the Convention decided.
This will substantially avoid the inconveniences of an entire incorporation of the Supreme Court into the Senate, which would also have given additional pretext for clamor against the judiciary.
The Convention Rejected a Wholly Distinct Body to Try Impeachments
Would it have been desirable to have composed the court for the trial of impeachments of persons wholly distinct from the other departments of the government?
Weighty arguments both favored and opposed such a plan.
To some, it was no trivial objection that such a body would tend to increase the complexity of the political machine by adding a new spring to the government, the utility of which would at best be questionable.
Further objections were that a court formed upon such a plan would either be attended with a heavy expense, or might in practice be subject to a variety of casualties and inconveniences.
Such a tribunal would either consist of permanent officers stationed at the seat of government (and of course entitled to fixed and regular stipends), or of certain officers of the State governments to be called upon whenever an impeachment was actually pending.
What is the true spirit of impeachment? Is it not designed as a method of national inquest into the conduct of public officials? Since this is the design of it, ought not the proper inquisitors on the nation’s behalf be representatives of the nation itself?
As the court of impeachments ought to be numerous (for reasons stated above), the scheme for a permanent body will be reprobated by every individual who can compare the extent of the public wants with the means of supplying them.
The scheme relying on State officers to assemble and decide impeachment was met with caution by those who seriously considered:
(1) the difficulty of collecting individuals dispersed over the whole United States;
(2) the injury to the innocent, from the procrastinated determination of the charges which might be brought against them;
(3) the advantage to the guilty, from the opportunities which delay would afford to intrigue and corruption; and
(4) in some cases the detriment to the United States, from the prolonged inaction of individuals whose firm and faithful execution of their duty might have exposed them to the persecution of an intemperate or designing majority in the House of Representatives.
Though the supposition of persecution may seem harsh, and difficult to verify, it ought not be forgotten that – at certain seasons – the demon of faction will extend his scepter over all numerous bodies of men.
Even though one or the other of the substitutes examined above (or some other that might be devised) should be thought preferable to the plan reported by the Convention, the Constitution ought not to be rejected for this reason.
If mankind were to resolve to agree in no institution of government until every part of it had been adjusted to the most exact standard of perfection, society would soon become a general scene of anarchy, and the world a desert.
Though the supposition of persecution may seem harsh, and difficult to verify, it ought not be forgotten that – at certain seasons – the demon of faction will extend his scepter over all numerous bodies of men.
And where is the standard of perfection to be found?
Who will undertake to unite the discordant opinions of a whole community regarding impeachment, and to prevail upon one conceited projector to renounce his infallible criterion for what he sees as the fallible criterion of his more conceited neighbor?
The adversaries of the Constitution ought to prove – not merely that particular provisions in it are not the best which might have been imagined – but that the plan of the Convention on the whole is bad and pernicious.
Hamilton
Federalist 66: Refutation of Remaining Objections to the Senate as a Court of Impeachments
THE OBSERVATIONS in Federalist 65 prove it was not easy to find a more fit receptacle for the power of determining impeachments than the Senate, and the hypothetical dread of it having excessive power ought to be discarded from our reasonings.
A review of the principal objections urged against the Senate as the court for the trial of impeachments will not improbably eradicate any remaining unfavorable impression regarding this matter.
The ablest adepts at political science admit that an absolute or qualified negative in the executive upon the acts of the legislative body is an indispensable barrier against the encroachments of the legislature upon the executive. By the same reasoning, the powers relating to impeachments are an essential check in the hands of the legislature upon the encroachments of the executive.
The Separation of Powers Doctrine Is No Bar to the Senate Deciding Impeachments
The first objection is that the provision governing impeachments confounds legislative and judicial 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 was discussed and ascertained in Federalist 47 and Federalist 48, and has been shown to be entirely compatible with a partial intermixture of those departments for special purposes, in the main preserving them as distinct and unconnected.
This partial intermixture is not only proper, but necessary in some cases to the mutual defense of the several members of the government against each other.
Impeachment Is a Legislative Check on Executive Abuses
The ablest adepts at political science admit that an absolute or qualified negative in the executive upon the acts of the legislative body is an indispensable barrier against the encroachments of the legislature upon the executive.
By the same reasoning, the powers relating to impeachments are an essential check in the hands of the legislature upon the encroachments of the executive.
The decision to divide the powers of impeachment between the two branches of the legislature – assigning to the House of Representatives the right of accusing and to the Senate the right of judging – avoids the inconvenience of making the same persons both accusers and judges.
It further guards against the danger of persecution from the prevalence of a factious spirit in either legislative chamber.
These securities to innocence will be enhanced by requiring two thirds of the senators present to convict.
New Yorkers Overlook their Own Constitution regarding Impeachments Resembles the Federal One
It was curious to observe the vehemence with which the plan for impeachments was assailed – as violating separation of powers – by those who professed to admire – without exception – the constitution of New York.
But that constitution makes the New York Senate – together with the chancellor and judges of its highest court – the ultimate tribunal in the entire State, in all causes, both civil and criminal.
Since the chancellor and judges in New York are only an inconsiderable number when compared to senators, it may be said with truth the judicial authority of New York in the last resort resides in its Senate.
If the Federal Constitution in this respect be chargeable with a departure from the maxim of separation of powers – so often mentioned yet so little understood – how much more culpable must be the constitution of New York?
The same can be said of New Jersey, in which the final judicial authority is in a branch of the legislature, as in New York.
Similarly, one branch of the legislature is the court for the trial of impeachments in New Hampshire, Massachusetts, Pennsylvania, and South Carolina.
Delegation to the Senate of the Power to Try Impeachments Will Not Lead to an Aristocratic Senate
A second objection to the Senate as a court of impeachments is that it will contribute to an undue accumulation of power in that body, tending to give to the Federal government a countenance too aristocratic.
Since the Senate is already to have concurrent authority with the executive in the formation of treaties and in the appointment to offices, the argument proceeds, adding to these prerogatives the power of deciding all cases of impeachment will give a decided predominance 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?
With respect to impeachments, the House will possess the sole right of instituting them. Is this not a complete counterbalance to the Senate’s power of determining them?
Will it not be more safe – as well as more simple – to dismiss such vague and uncertain calculations, and instead examine each power by itself, using general principles to decide where it may be deposited with most advantage and least inconvenience?
This course will lead to a more intelligible and more certain result.
The hypothesis of excessive power has already been refuted by my remarks in Federalist 62 concerning the duration of Senators in office.
It was there shown – with the credit of historical examples supporting the reason of the thing – that the most popular branch of every republican government (the House of Representatives, in our case) – being generally the favorite of the People – will be a full match (if not an overmatch) for every other member of the Federal government.
More importantly, the exclusive privilege of originating money bills will belong to the House of Representatives. 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. It cannot be doubted this will sometimes happen, if not frequently.
The Powers Granted to the House Balance Those Given to the Senate
But independently of the active and operative principle that the national House of Representatives will generally be a match to every other member of the Federal government, the Constitutional Convention provided the House with several important counterpoises to the additional authorities conferred upon the Senate, in order to secure the equilibrium of the legislative bodies.
With respect to impeachments, the House will possess the sole right of instituting them.
Is this not a complete counterbalance to the Senate’s power of determining them?
More importantly, the exclusive privilege of originating money bills will belong to the House of Representatives.
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.
It cannot be doubted this will sometimes happen, if not frequently.
The constant possibility of the thing will 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 United States for the first office in it.
As a mean of influence, some will find it outweighs all the peculiar attributes of the Senate.
The Senate’s Agency in Appointments Will Not Undermine Its Duty to Impeach When Appropriate
A third objection to the Senate as a court of impeachments is drawn from the agency they are to have in appointments to office, discussed in more detail in Federalist 76 and Federalist 77.
Some may imagine that senators would be too indulgent in judging the conduct of individuals in whose official creation they had participated. But the premise of this objection would condemn a practice seen in all of the State governments: that of rendering those who hold office during pleasure dependent on the pleasure of those who appoint them.
With equal plausibility it might be alleged that the favoritism of the appointing senators would always be an asylum for the misbehavior of the persons appointed.
But if that were to occur, it would be contrary to 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.
Although facts may not always correspond with it, if this presumption be in the main just, it must destroy the supposition that the Senate, who will merely sanction the choice of the President, 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.
The Senate’s Lack of Choice over Appointments Negates Any Latent Bias
If any further argument was necessary to evince the improbability of a bias in favor of an appointee charged with impeachment, it would 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 be no exertion of choice on the part of the Senate.
They may defeat one choice of the chief executive, and oblige the choice of another; but they cannot themselves choose.
The Senate can only ratify or reject the choice of the President.
The Senate 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 the nominee; 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 towards the object of an appointment anything other than as appearances of merit might inspire, or proofs of the want of it destroy.
It will be the office of the President to nominate – and, with the advice and consent of the Senate – to appoint. There will be no exertion of choice on the part of the Senate. They may defeat one choice of the chief executive, and oblige the choice of another; but they cannot themselves choose.
The Senate’s Role in Making Treaties Will Not Undermine Impeachment
A fourth objection to the Senate in the capacity of a court of impeachments is derived from its union with the President in the power of making treaties.
I examined this union in Federalist 64.
Those who object say that bestowing the power to impeach to the Senate would constitute the senators as their own judges in every case of a corrupt or perfidious execution of that trust.
They ask: what prospect would there be – after having combined with the President in betraying the interests of the nation in a ruinous treaty – of the betraying senators 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 was circulated with more earnestness and greater reason than any other which appeared against this part of the plan; and yet I am deceived if it does not rest upon an erroneous foundation.
The security the Constitution provides against corruption and treachery in the formation of treaties is to be sought in the numbers and characters of those who are to make them.
The joint agency of the President – and two thirds of the members of the Senate – which is 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.
With propriety, the Convention might have meditated punishing a President who deviated from the Senate’s instructions, or lacked integrity in the conduct of negotiations committed to the President.
The Convention 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 the Convention could not have contemplated with equal propriety the impeachment and punishment of two thirds of a Senate that consented to an improper treaty, any more than it could have contemplated impeachment of a majority of the members of either chamber for the act of consenting to a pernicious or unconstitutional law.
This principle, I believe, has never been admitted into any government.
In fact, how could a majority in the House of Representatives impeach themselves?
Evidently, not better than two thirds of the Senate might try themselves.
And what reason is there to believe a majority of the House of Representatives – after sacrificing the interests of the society by an unjust and tyrannical act of legislation – should escape with impunity, while two thirds of the Senate – sacrificing the same interests in an injurious treaty with a foreign power – should not?
The truth is: it is essential to the freedom and to the necessary independence of the deliberations of a legislative body, that in all cases the members of it should be exempt from punishment for acts done in a collective capacity.
The security to society must depend on the care which is taken to confide the trust to proper hands – as well as making it in 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.
If the President were to pervert the instructions of the Senate or to contravene its views, 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 count upon the pride of senators, if not upon their virtue.
The truth is: it is essential to the freedom and to the necessary independence of the deliberations of a legislative body, that in all cases the members of it should be exempt from punishment for acts done in a collective capacity.
Human Nature Will Tend to Expose the Perpetrators of Misconduct
Even as might concern the corruption of leading senators – by whose arts and influence the majority may have been inveigled into measures odious to the community – if the proofs of that corruption are satisfactory, the usual propensity of human nature will lead us to conclude there would be commonly no defect of inclination of members of the Senate to divert the public resentment from themselves by a ready sacrifice of the authors of their mismanagement and disgrace.
Hamilton
Federalist 66: Refutation of Remaining Objections to the Senate as a Court of Impeachments
THE OBSERVATIONS in Federalist 65 prove it was not easy to find a more fit receptacle for the power of determining impeachments than the Senate, and the hypothetical dread of it having excessive power ought to be discarded from our reasonings.
A review of the principal objections urged against the Senate as the court for the trial of impeachments will not improbably eradicate any remaining unfavorable impression regarding this matter.
The ablest adepts at political science admit that an absolute or qualified negative in the executive upon the acts of the legislative body is an indispensable barrier against the encroachments of the legislature upon the executive. By the same reasoning, the powers relating to impeachments are an essential check in the hands of the legislature upon the encroachments of the executive.
The Separation of Powers Doctrine Is No Bar to the Senate Deciding Impeachments
The first objection is that the provision governing impeachments confounds legislative and judicial 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 was discussed and ascertained in Federalist 47 and Federalist 48, and has been shown to be entirely compatible with a partial intermixture of those departments for special purposes, in the main preserving them as distinct and unconnected.
This partial intermixture is not only proper, but necessary in some cases to the mutual defense of the several members of the government against each other.
Impeachment Is a Legislative Check on Executive Abuses
The ablest adepts at political science admit that an absolute or qualified negative in the executive upon the acts of the legislative body is an indispensable barrier against the encroachments of the legislature upon the executive.
By the same reasoning, the powers relating to impeachments are an essential check in the hands of the legislature upon the encroachments of the executive.
The decision to divide the powers of impeachment between the two branches of the legislature – assigning to the House of Representatives the right of accusing and to the Senate the right of judging – avoids the inconvenience of making the same persons both accusers and judges.
It further guards against the danger of persecution from the prevalence of a factious spirit in either legislative chamber.
These securities to innocence will be enhanced by requiring two thirds of the senators present to convict.
New Yorkers Overlook their Own Constitution regarding Impeachments Resembles the Federal One
It was curious to observe the vehemence with which the plan for impeachments was assailed – as violating separation of powers – by those who professed to admire – without exception – the constitution of New York.
But that constitution makes the New York Senate – together with the chancellor and judges of its highest court – the ultimate tribunal in the entire State, in all causes, both civil and criminal.
Since the chancellor and judges in New York are only an inconsiderable number when compared to senators, it may be said with truth the judicial authority of New York in the last resort resides in its Senate.
If the Federal Constitution in this respect be chargeable with a departure from the maxim of separation of powers – so often mentioned yet so little understood – how much more culpable must be the constitution of New York?
The same can be said of New Jersey, in which the final judicial authority is in a branch of the legislature, as in New York.
Similarly, one branch of the legislature is the court for the trial of impeachments in New Hampshire, Massachusetts, Pennsylvania, and South Carolina.
Delegation to the Senate of the Power to Try Impeachments Will Not Lead to an Aristocratic Senate
A second objection to the Senate as a court of impeachments is that it will contribute to an undue accumulation of power in that body, tending to give to the Federal government a countenance too aristocratic.
Since the Senate is already to have concurrent authority with the executive in the formation of treaties and in the appointment to offices, the argument proceeds, adding to these prerogatives the power of deciding all cases of impeachment will give a decided predominance 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?
With respect to impeachments, the House will possess the sole right of instituting them. Is this not a complete counterbalance to the Senate’s power of determining them?
Will it not be more safe – as well as more simple – to dismiss such vague and uncertain calculations, and instead examine each power by itself, using general principles to decide where it may be deposited with most advantage and least inconvenience?
This course will lead to a more intelligible and more certain result.
The hypothesis of excessive power has already been refuted by my remarks in Federalist 62 concerning the duration of Senators in office.
It was there shown – with the credit of historical examples supporting the reason of the thing – that the most popular branch of every republican government (the House of Representatives, in our case) – being generally the favorite of the People – will be a full match (if not an overmatch) for every other member of the Federal government.
More importantly, the exclusive privilege of originating money bills will belong to the House of Representatives. 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. It cannot be doubted this will sometimes happen, if not frequently.
The Powers Granted to the House Balance Those Given to the Senate
But independently of the active and operative principle that the national House of Representatives will generally be a match to every other member of the Federal government, the Constitutional Convention provided the House with several important counterpoises to the additional authorities conferred upon the Senate, in order to secure the equilibrium of the legislative bodies.
With respect to impeachments, the House will possess the sole right of instituting them.
Is this not a complete counterbalance to the Senate’s power of determining them?
More importantly, the exclusive privilege of originating money bills will belong to the House of Representatives.
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.
It cannot be doubted this will sometimes happen, if not frequently.
The constant possibility of the thing will 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 United States for the first office in it.
As a mean of influence, some will find it outweighs all the peculiar attributes of the Senate.
The Senate’s Agency in Appointments Will Not Undermine Its Duty to Impeach When Appropriate
A third objection to the Senate as a court of impeachments is drawn from the agency they are to have in appointments to office, discussed in more detail in Federalist 76 and Federalist 77.
Some may imagine that senators would be too indulgent in judging the conduct of individuals in whose official creation they had participated. But the premise of this objection would condemn a practice seen in all of the State governments: that of rendering those who hold office during pleasure dependent on the pleasure of those who appoint them.
With equal plausibility it might be alleged that the favoritism of the appointing senators would always be an asylum for the misbehavior of the persons appointed.
But if that were to occur, it would be contrary to 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.
Although facts may not always correspond with it, if this presumption be in the main just, it must destroy the supposition that the Senate, who will merely sanction the choice of the President, 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.
The Senate’s Lack of Choice over Appointments Negates Any Latent Bias
If any further argument was necessary to evince the improbability of a bias in favor of an appointee charged with impeachment, it would 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 be no exertion of choice on the part of the Senate.
They may defeat one choice of the chief executive, and oblige the choice of another; but they cannot themselves choose.
The Senate can only ratify or reject the choice of the President.
The Senate 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 the nominee; 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 towards the object of an appointment anything other than as appearances of merit might inspire, or proofs of the want of it destroy.
It will be the office of the President to nominate – and, with the advice and consent of the Senate – to appoint. There will be no exertion of choice on the part of the Senate. They may defeat one choice of the chief executive, and oblige the choice of another; but they cannot themselves choose.
The Senate’s Role in Making Treaties Will Not Undermine Impeachment
A fourth objection to the Senate in the capacity of a court of impeachments is derived from its union with the President in the power of making treaties.
I examined this union in Federalist 64.
Those who object say that bestowing the power to impeach to the Senate would constitute the senators as their own judges in every case of a corrupt or perfidious execution of that trust.
They ask: what prospect would there be – after having combined with the President in betraying the interests of the nation in a ruinous treaty – of the betraying senators 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 was circulated with more earnestness and greater reason than any other which appeared against this part of the plan; and yet I am deceived if it does not rest upon an erroneous foundation.
The security the Constitution provides against corruption and treachery in the formation of treaties is to be sought in the numbers and characters of those who are to make them.
The joint agency of the President – and two thirds of the members of the Senate – which is 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.
With propriety, the Convention might have meditated punishing a President who deviated from the Senate’s instructions, or lacked integrity in the conduct of negotiations committed to the President.
The Convention 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 the Convention could not have contemplated with equal propriety the impeachment and punishment of two thirds of a Senate that consented to an improper treaty, any more than it could have contemplated impeachment of a majority of the members of either chamber for the act of consenting to a pernicious or unconstitutional law.
This principle, I believe, has never been admitted into any government.
In fact, how could a majority in the House of Representatives impeach themselves?
Evidently, not better than two thirds of the Senate might try themselves.
And what reason is there to believe a majority of the House of Representatives – after sacrificing the interests of the society by an unjust and tyrannical act of legislation – should escape with impunity, while two thirds of the Senate – sacrificing the same interests in an injurious treaty with a foreign power – should not?
The truth is: it is essential to the freedom and to the necessary independence of the deliberations of a legislative body, that in all cases the members of it should be exempt from punishment for acts done in a collective capacity.
The security to society must depend on the care which is taken to confide the trust to proper hands – as well as making it in 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.
If the President were to pervert the instructions of the Senate or to contravene its views, 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 count upon the pride of senators, if not upon their virtue.
The truth is: it is essential to the freedom and to the necessary independence of the deliberations of a legislative body, that in all cases the members of it should be exempt from punishment for acts done in a collective capacity.
Human Nature Will Tend to Expose the Perpetrators of Misconduct
Even as might concern the corruption of leading senators – by whose arts and influence the majority may have been inveigled into measures odious to the community – if the proofs of that corruption are satisfactory, the usual propensity of human nature will lead us to conclude there would be commonly no defect of inclination of members of the Senate to divert the public resentment from themselves by a ready sacrifice of the authors of their mismanagement and disgrace.
Hamilton