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 congress.

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 present.

Impeachments are thus introduced as a known definite term, and we must have recourse to the common law of England for the definition of them.

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 parliament.

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 code.

We shall now proceed to consider —

  1. The necessity or utility of impeachments.
  2. The necessity or utility of erecting a separate tribunal for the trial of impeachments.
  3. The propriety of rendering the senate such a tribunal.
  4. The persons liable to be impeached.
  5. 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 decisions. 2

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 criminal.

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 delinquency.

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 in public.

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 Federalist.

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