Page:Joseph Story, Commentaries on the Constitution of the United States (1st ed, 1833, vol II).djvu/227

 CH. X.] must, at the same time, admit, that it is not free from all plausible objections.

§ 746. It will be well, therefore, to review the ground, and ascertain, how lar the objections are well founded; and whether any other scheme would have been more unexceptionable. The principal objections were as follows: (1.) That the provision confounds the legislative and judiciary authorities in the same body, in violation of the well-known maxim, which requires a separation of them. (2.) That it accumulates an undue proportion of power in the senate, which has a tendency to make it too aristocratic. (3.) That the efficiency of the court will be impaired by the circumstances, that the senate has an agency in appointment to office. (4.) That its efficiency is still further impaired by its participation in the functions of the treaty-making power.

§ 747. The first objection, which relates to the supposed necessity of an entire separation of the legislative and judicial powers, has been already discussed in its most general form in another place. It has been shown, that the maxim does not apply to partial intermixtures of these powers; and that such an intermixture is not only unobjectionable, but is, in many cases, indispensable for the purpose of preserving the due independence of the different departments of government, and their harmony and healthy operation in the advancement of the public interests, and the preservation of the public liberties. The question is not so much, whether any intermixture is allowable, as whether the intermixture of the authority to try impeachments with the other functions of the senate is salutary