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