WE are next to consider
what courts or judicial tribunals are created by the Constitution itself,
and what have been created under the power to that effect given to
The language of the text is, that the judicial power of the United
States shall be vested in one supreme court, and in such inferior
courts as congress may from time to time ordain and establish.
But no mention is made in any part of this article, otherwise than by
way of exception as to the mode of trial, of a very high tribunal, which
seems rather to have been supposed to flow from the formation of the
Constitution, than to be expressly created by it.
The first mention of it is contained in the following words, in a
preceding article: The house of representatives — shall have the
sole power of impeachment.
In the third section of the same article, it is said, that the senate
shall have the sole power to try all impeachments. When sitting for
that purpose, they shall be on oath or affirmation. When the president of
the United States is tried, the chief justice shall preside, and no person
shall be convicted without the concurrence of two-thirds of the members
Impeachments are thus introduced as a known definite term, and we must
have recourse to the common law of England for the definition of
In England, the practice of impeachments by the house of commons before
the house of lords, has existed from very ancient times. Its foundation
is, that a subject entrusted with the administration of public affairs,
may sometimes infringe the rights of the people, and be guilty of such
crimes as the ordinary magistrates either dare not or cannot punish. Of
these, the representatives of the people or house of commons cannot judge,
because they and their constituents are the persons injured, and can
therefore only accuse. But the ordinary tribunals would naturally be
swayed by the authority of so powerful an accuser. That branch of the
legislature which represents the people, therefore, brings the charge
before the other branch, which consists of the nobility, who are said not
to have the same interests, or the same passions as the popular assembly.
Such is the English theory, and it well suits a government in which
there are three distinct and independent interests, and in which the
crown, possessing the power of appointing the high officers, who are most
frequently the subjects of impeachments, has also the sole power to carry
on or withdraw prosecutions in the ordinary courts. For no misconduct,
however flagrant, committed by such men, could the people obtain redress,
if the monarch inclined to refuse it, unless a mode of proceeding had been
invented which did not require his assent, and which he could not control,
and therefore, as heretofore observed, he cannot defeat the inquiry by a
previous pardon, although in the exercise of another branch of his
prerogative, he may delay it by adjourning or proroguing the session of
The difference between the two governments has no doubt already occurred
to the reader. Our ordinary tribunals are not dependent on the pleasure of
him who appoints the judges, nor are they to be influenced by the
authority of the accuser in a case of this sort more than in any other,
for with us the people are considered as the. accusers in all cases
whatever. In England, the king is the accuser, (except in the instance now
under consideration,) and all offences are charged to have been committed
against his peace, his crown and dignity.
Still less are the weight and influence of any man, however exalted his
station, or great his wealth, likely to deter our judges from an impartial
administration of justice.
Yet although the reasons are not equally cogent, they will be found on
examination sufficient to warrant the introduction of the system into our
We shall now proceed to consider —
- The necessity or utility of impeachments.
- The necessity or utility of erecting a separate tribunal for the
trial of impeachments.
- The propriety of rendering the senate such a tribunal.
- The persons liable to be impeached.
- The constitution of the court, its mode of proceeding, and the
extent and effect of its judgments.
1. The delegation of important trusts, affecting the higher interests of
society, is always from various causes liable to abuse. The fondness
frequently felt for the inordinate extension of power, the influence of
party and of prejudice, the seductions of foreign states, or the baser
appetite for illegitimate emolument, are sometimes productive of what are
not unaptly termed political offences, 1
which it would be difficult to take cognizance of in the ordinary course
of judicial proceedings.
2. The involutions and varieties of vice are too many, and too artful to
be anticipated by positive law, and sometimes too subtle and mysterious to
be fully detected in the limited period of ordinary investigation. As
progress is made in the inquiry, new facts are discovered which may be
properly connected with others already known, but would not form
sufficient subjects of separate prosecution. On these accounts, a peculiar
tribunal seems both useful and necessary. A tribunal of a liberal and
comprehensive characters confined as little as possible to strict forms,
enabled to continue its session as long as the nature of the case may
require, qualified to view the charge in all its bearings and
dependencies, and to appreciate on sound principles of public policy the
defence of the accused; the propriety of such a separate tribunal seems to
be plain, but not upon the assumed ground that the judges of the supreme
court would not possess sufficient fortitude to perform the duty, or
sufficient credit and authority to reconcile the people to their
3. To compose this court of persons wholly distinct from the other
branches of government — to form a permanent body for this single
purpose — and to keep them always collected at the seat of government
for the possible occurrence of an impeachment, would be as inconvenient as
to appoint and collect such a body from time to time, when art impeachment
is determined on.
On a review of all the departments of government provided by the
Constitution, none will be found more suitable to exercise this peculiar
jurisdiction than the senate.
Although like the accusers, they are representatives of the people, yet
they are by a degree more removed, and hold their stations for a longer
term. They are therefore more independent of the people, and being chosen
with the knowledge that they may, while in office, be called upon to
exercise this high function, they bring with them the confidence of their
constituents that they will faithfully execute it, and the implied compact
on their own parts that it shall be honestly discharged. Precluded from
ever becoming accusers themselves, it is their duty not to lend themselves
to the animosities of party or the prejudices against individuals which
may sometimes unconsciously induce the house of representatives to the
acts of accusation. Habituated to comprehensive views of the great
political relations of the country, they are, naturally the best qualified
to decide on those charges which may have any connexion with, transactions
abroad, or great political interests at home, and although we cannot say,
that like the English house of lords they form a distinct body, wholly
uninfluenced by the passions, and remote from the interests of the people,
yet we can discover in no other division of the government a greater
probability of impartiality and independence.
Nor does it form a solid objection in point of principle, that in this
peculiar instance, a part of the legislative body should be admitted to
exercise judicial power. In some degree all legislative bodies necessarily
possess such a power. We have seen that for sufficient cause they may
expel any of their own members — they may try and punish others for
attempts to corrupt, bribe, or intimidate them, and they may punish for
what are technically termed contempts committed in their presence, in all
which they act judicially. But it is sufficient, to close the subject,
that the people at large have concluded that this power would be best
deposited in this body.
4. From the reasons already given, it is obvious, that the only persons
liable to impeachment, are those who are or have been in public office.
All executive and judicial officers, from the president downwards, from
the judges of the supreme court to those of the most inferior tribunals,
are included in this description. But in the year 1796, a construction was
given to the Constitution, founded, it is believed, merely on its
phraseology, by which a member of the senate was held not to be liable to
impeachment. Their deliberations, after the arguments of counsel, being
held in private, we can only infer from those arguments, that the term
officers of the United States, as used in the Constitution, was held by a
majority of the senate, not to include members of the senate, and on the
same principle, members of the house of representatives would also be
excluded from this jurisdiction.
An amendment to the Constitution in this respect would perhaps be
useful. A breach of duty is as reprehensible in a legislator as in an
executive or judicial officer, and if this peculiar jurisdiction possesses
so much value in respect to the two latter, it is difficult to conceive
why the public should not have the benefit of it in regard to the former.
No apprehensions of partiality in favour of one of their own body need
to be carried so far as to require the substitution of another tribunal.
In England, where there is not a greater portion of public virtue than
here, peers are necessarily impeached before peers, and members of the
house of commons have been frequently the subjects of impeachment. Judges
are liable to trial for every offence before their brethren, and it is in
no case to be presumed, that a fair and full administration of justice
would be wanting. Of great public delinquencies the people do not long
remain in ignorance. If the offences of a member of the house of
representatives were culpably passed over by his brethren, the people by
the recurrence of the periodical election would soon be enabled to
substitute others to prefer the accusation, and, being sensible of this,
the house would be slow to expose themselves to the reproach of their
constituents, and the loss of public confidence, by omitting to do their
duty. The senate is obliged to receive and decide on the charge, and to
the strongest moral obligations is added that of an oath or affirmation.
It is not probable that the effect of these United impulses would be
counteracted by other considerations, which would in themselves be
5. The legitimate causes of impeachment have been already briefly
noticed. They can only have reference to public character and official
duty. The words of the text are treason, bribery, and other high
crimes, and misdemeanors. The treason contemplated must be against the
United States. In general those offences which may be committed equally by
a private person as a public officer, are not the subjects of impeachment.
Murder, burglary, robbery, and indeed all offences not immediately
connected with office, except the two expressly mentioned, are left to the
ordinary course of judicial proceeding, and neither house can regularly
inquire into them, except for the purpose of expelling the member. But the
ordinary tribunals, as we shall see, are not precluded, either before or
after an impeachment, from taking cognizance of the public and official
We have hitherto had but three instances of impeachment, the first of
which has already been noticed. As no decision was given on the merits, it
is impossible to say whether the charges, which were chiefly founded on a
conspiracy to invade the territories of the king of Spain, with whom the
United States were at peace, and to excite the Creek and Cherokee Indians
to concur in the outrage, would have been deemed by the senate sufficient,
if proved, to support the impeachment. The second, on which a
constitutional conviction took place, was against a judge of a district
court, and purely for official misconduct. The third was against a judge
of the supreme court, and was also a charge of official misconduct. It
terminated in an acquittal, there not being a constitutional majority
against him on any one article.
As articles of impeachment can only be exhibited by the house of
representatives, if it should happen that the senate in the course of
their executive functions or otherwise, became apprized of unlawful acts
committed by a public officer, and in their opinions, meriting at least a
public inquiry, it would be their duty to communicate the evidence they
possessed, whether actual or presumptive, to the house of representatives,
but the bare communication is all that would be consistent with their
duty. They would cautiously avoid to recommend or suggest an impeachment,
and the same would be the course pursued by the president.
Articles of impeachment need not to be drawn up with the precision and
strictness of indictments. They must however be distinct and intelligible.
No one is bound to answer to a charge so obscure and ambiguous that it
cannot be understood. Additional articles may be exhibited, perhaps at any
stage of the prosecution; certainly before the defendant has put in his
answer or plea.
No precise number of senators is required to constitute the court, but
no person can be convicted without the concurrence of two-thirds of the
members, present. The vice president being the president of the senate,
presides on the trial, except when the president of the United States is
tried. As the vice president succeeds to the functions and emoluments of
the president of the United States whenever a vacancy happens in the
latter office, it would be inconsistent with the implied purity of a judge
that a person under a probable bias of such a nature should participate in
the trial and it would follow that he ought wholly to retire from the
court. It is not stated in the Constitution whether the president of the
senate is on the trial of an impeachment restricted, as in legislative
cases, to the casting vote. As he is constituted one of the judges by
being appointed to preside without any restriction, the fair inference
would be, that he is entitled to vote like the other judges, but on the
trial last mentioned of a judge of the Supreme Court, the vote of the vice
president does not appear in the printed journal.
The defendant is entitled to the benefit of counsel but it is not
necessary that he should be personally present; the trial may proceed in
his absence if he has had due notice to appear.
The consultations of the senate, as well upon incidental points as on
the main questions, are conducted in private, but the judgment is rendered
The judgment is of a limited and peculiar nature — it extends no
further than to removal from office, and disqualification to hold and
enjoy any office of honour, trust, or profit, under the United States.
Herein we may perceive the importance and utility of this system under
our regulations. In England impeachments may be prosecuted for capital
crimes and the court may award capital punishment, of which many instances
occur in the history of that kingdom. Lord Strafford in the reign of
Charles I. and Lord Stafford in the reign of Charles II. were beheaded on
the sentences of the court which decided without the aid of a jury, and
both of them have been considered rather as victims to the spirit of the
times, than as merited oblations to justice. But with us, although the
party accused may be found guilty of the highest crime, his life is not in
danger before this tribunal, and in no cases are his liberty and property
affected: indictment, trial, judgment, and punishment, still await him
according to the usual course of law.
Why then, it may be asked, has this system been introduced, and why, if
the firmness and integrity of the ordinary tribunals cannot be overpowered
by any supposed influence of character, wealth, or office, have we deemed
it expedient to copy from a foreign nation an institution for which there
is not the same necessity, and which we do not allow altogether to produce
the same effects? One answer is, that the sentence which this court is
authorized to impose cannot regularly be pronounced by the courts of law.
They can neither remove nor disqualify the person convicted, and therefore
the obnoxious officer might be continued in power, and the injury
sustained by the nation be renewed or increased, if the executive
authority were perverse, tyrannical, or corrupt: but by the sentence which
may be given by the senate, not only the appointment made by the executive
is superseded and rendered void, but the same individual may be rendered
incapable of again abusing an office to the injury of the public. It is
therefore right and proper that the president should be disabled from
granting a pardon, and restoring the offender to his former competency;
but there is no restraint on his pardoning when a conviction in the common
course ensues, for such pardon extends only to the punishment which is
then pronounced, and does not affect the sentence of the senate.
We may perceive in this scheme one useful mode of removing from office
him who is unworthy to fill it, in cases where the people, and sometimes
the president himself would be unable to accomplish that object. A
commission granted during good behaviour can only be revoked by this mode
of proceeding. But the express words of the Constitution also extend to
the president and vice president, who partake of the legislative capacity,
and are chosen by the people. When this corrective jurisdiction is thus
applied; when it reaches all judicial officers, all civil officers
appointed by the president during pleasure, and involves in its grasp the
vice president and the president himself, it is difficult to conceive that
it was intended to exempt men whose treachery to their country might be
productive of the most serious disasters, because they do not come
precisely within a verbal description supposed to be exclusively
applicable to those who, except in the two instances of specific
enumeration, receive commissions from the president. A member of either
house of the legislature betraying his trust and guilty of the most
culpable acts of an official nature is, under the decision of the senate,
liable, indeed, to expulsion, but not to impeachment; liable to the
ordinary course of legal proceedings, but not to disqualification. Yet as
from the judgment of this high tribunal there is no appeal; as the
decision which has been given in the case adverted to is a judicial one,
and probably will be held binding on themselves on all future occasions,
we must now receive it as the settled construction of the Constitution.
Whether an amendment of the Constitution in this respect will ever be
made, is not for the author to anticipate.
1. Federalist, No. 65.
2. This is one of the few points in
which the author is compelled to differ from that excellent work the
Next | Previous
| Contents | Text