Federalist Papers Summary 66
The Federalist Essays Summary No 66: Alexander Hamilton March 8, 1788
In this paper Hamilton reviews the principal objections against the Senate being the court for the trial of impeachments.
The first questions whether the legislative and judiciary functions should be in the same body in violation of the principle of separation of powers. It has been mentioned previously that the true protection of each branch from others is gained by a partial intermixing of authorities. For example the power of the President to veto legislation protects the executive branch from encroachment by the legislature and the power of impeachment protects the legislative from the executive. Further the impeachment power is divided between the two legislative houses where one initiates and the other conducts the trial with two thirds required for conviction. In New York and similarly in other states the State Senate together with judges of the supreme court and the chancellor alone decide impeachments and all civil and criminal causes. He finds it curious that some living in New York criticize the proposed plan for in New York a very few will make these decisions whereas in the proposed plan a great many are required.
The second objection is that giving this power when combined with other powers to make treaties and appointment to offices will result in the body becoming aristocratic and obtaining too much weight. But by what criteria can one determine the proper weight for the senate? All of these powers have been discussed and arguments made for having them reside in the senate. Further the most popular branch, the house, is a full match if not an overmatch for the senate for it has the power to originate money bills, institute impeachments, and umpire in all elections of the president.
The third objection is that since the senate appoints judges and others it would hold the appointments in high regard and be reluctant to decide guilt in their impeachment trials. But this goes against a principle in all governments that those appointed only hold office at the pleasure of those that appointed them and it should be remembered that it is the executive who chooses those for appointment, not the senate so there will be little reason for preferential bias.
A fourth objection concerns their union with the president in making treaties. If the senate conspired with the president in approving a treaty ruinous to the country, what possibility would there be for their punishment? The argument against this objection is based on the fact that two thirds of the senate have to agree to the treaty so the protection for the public is in the number and character of those chosen to be senators. It would have been impractical for the convention to have proposed a means where members of the house or senate acting collectively could be punished. How could two thirds of the senate be impeached and found guilty in a trial by two thirds of the senate?
Federalist Papers Summary 66 Written by Donald Mellon