Joseph Story, Commentaries on the Constitution 2:§§ 758--69, 771--78, 780--803, 810--111833
§ 758. That there is great force in this reasoning [of Federalist, no. 65] all persons of common candour must allow; that it is in every respect satisfactory and unanswerable, has been denied, and may be fairly questioned. That part of it, which is addressed to the trial at law by the same judges might have been in some degree obviated by confiding the jurisdiction at law over the offence (as in fact it is now confided) to an inferior tribunal, and excluding any judge, who sat at the impeachment, from sitting in the court of trial. Still, however, it cannot be denied, that even in such a case the prior judgment of the Supreme Court, if an appeal to it were not allowable, would have very great weight upon the minds of inferior Judges. But that part of the reasoning, which is addressed to the importance of numbers in giving weight to the decision, and especially that, which is addressed to the public confidence and respect, which ought to follow upon a decision, are entitled to very great weight. It is fit, however, to give the answer to the whole reasoning by the other side in the words of a learned commentator, who has embodied it with no small share of ability and skill. The reasoning "seems," says he, "to have forgotten, that senators may be discontinued from their seats, merely from the effect of popular disapprobation, but that the judges of the Supreme Court cannot. It seems also to have forgotten, that whenever the president of the United States is impeached, the constitution expressly requires, that the chief justice of the Supreme Court shall preside at the trial. Are all the confidence, all the firmness, and all the impartiality of that court, supposed to be concentred in the chief justice, and to reside in his breast only? If that court could not be relied on for the trial of impeachments, much less would it seem worthy of reliance for the determination of any question between the United States and a particular state; much less to decide upon the life and death of a person, whose crimes might subject him to impeachment, but whose influence might avert a conviction. Yet the courts of the United States, are by the constitution regarded, as the proper tribunals, where a party, convicted upon an impeachment, may receive that condign punishment, which the nature of his crimes may require; for it must not be forgotten, that a person, convicted upon an impeachment, will nevertheless be liable to indictment, trial, judgment, and punishment according to law, &c. The question, then, might be retorted; can it be supposed, that the senate, a part of whom must have been either particeps criminis with the person impeached, by advising the measure, for which he is to be tried, or must have joined the opposition to that measure, when proposed and debated in the senate, would be a more independent, or a more unprejudiced tribunal, than a court, composed of judges, holding their offices during good behaviour; and who could neither be presumed to have participated in the crime, nor to have prejudged the criminal?"
§ 759. This reasoning also has much force in it; but in candour also it must be admitted to be not wholly unexceptionable. That part, which is addressed to the circumstance of the chief justice's presiding at the trial of the president of the United States, was (as we shall hereafter see) not founded on any supposition, that the chief justice would be superior in confidence, and firmness, and impartiality, to the residue of the judges, (though in talents and public respect, and acquirements, he might fairly be presumed their superior;) but on the necessity of excluding the vice president from the chair, when he might have a manifest interest, which would destroy his impartiality. That part, which is addressed to the supposition of the senators being particeps criminis, is still more exceptionable; for it is not only incorrect to affirm, that the senators must be, in such a predicament, but in all probability the senators would, in almost all cases, be without any participation in the offence. The offences, which would be generally prosecuted by impeachment, would be those only of a high character, and belonging to persons in eminent stations,--such as a head of department, a foreign minister, a judge, a vice president, or a president. Over the conduct of such persons the senate could ordinarily have no control; and a corrupt combination with them, in the discharge of the duties of their respective offices, could scarcely be presumed. Any of these officers might be bribed, or commit gross misdemeanours, without a single senator having the least knowledge, or participation in the offence. And, indeed, very few of the senators could, at any time, be presumed to be in habits of intimate personal confidence, or connexion with many of these officers. And so far, as public responsibility is concerned, or public confidence is required, the tenure of office of the judges would have no strong tendency to secure the former, or to assuage public jealousies, so as to peculiarly encourage the latter. It is, perhaps, one of the circumstances, most important in the discharge of judicial duties, that they rarely carry with them any strong popular favour, or popular influence. The influence, if any, is of a different sort, arising from dignity of life and conduct, abstinence from political contests, exclusive devotion to the advancement of the law, and a firm administration of justice; circumstances, which are felt more by the profession, than they can be expected to be praised by the public.
§ 760. Besides; it ought not to be overlooked, that such an additional accumulation of power in the judicial department would not only furnish pretexts for clamour against it, but might create a general dread of its influence, which could hardly fail to disturb the salutary effects of its ordinary functions. There is nothing, of which a free people are so apt to be jealous, as of the existence of political functions, and political checks, in those, who are not appointed by, and made directly responsible to themselves. The judicial tenure of office during good behaviour, though in some respects most favourable for an independent discharge of these functions and checks, is at the same time obnoxious to some strong objections, as a remedy for impeachable offences.
§ 761. There are, however, reasons of great weight, besides those, which have been already alluded to, which fully justify the conclusion, that the Supreme Court is not the most appropriate tribunal to be invested with authority to try impeachments.
§ 762. In the first place, the nature of the functions to be performed. The offences, to which the power of impeachment has been, and is ordinarily applied, as a remedy, are of a political character. Not but that crimes of a strictly legal character fall within the scope of the power, (for, as we shall presently see, treason, bribery, and other high crimes and misdemeanours are expressly within it;) but that it has a more enlarged operation, and reaches, what are aptly termed, political offences, growing out of personal misconduct, or gross neglect, or usurpation, or habitual disregard of the public interests, in the discharge of the duties of political office. These are so various in their character, and so indefinable in their actual involutions, that it is almost impossible to provide systematically for them by positive law. They must be examined upon very broad and comprehensive principles of public policy and duty. They must be judged of by the habits, and rules, and principles of diplomacy, of departmental operations and arrangements, of parliamentary practice, of executive customs and negotiations, of foreign, as well as of domestic political movements; and in short, by a great variety of circumstances, as well those, which aggravate, as those, which extenuate, or justify the offensive acts, which do not properly belong to the judicial character in the ordinary administration of justice, and are far removed from the reach of municipal jurisprudence. They are duties, which are easily understood by statesmen, and are rarely known to judges. A tribunal, composed of the former, would therefore be far more competent, in point of intelligence and ability, than the latter, for the discharge of the functions, all other circumstances being equal. And surely, in such grave affairs, the competency of the tribunal to discharge the duties in the best manner is an indispensable qualification.
§ 763. In the next place, it is obvious, that the strictness of the forms of proceeding in cases of offences at common law are ill adapted to impeachments. The very habits growing out of judicial employments; the rigid manner, in which the discretion of judges is limited, and fenced in on all sides, in order to protect persons accused of crimes by rules and precedents; and the adherence to technical principles, which, perhaps, distinguishes this branch of the law, more than any other, are all ill adapted to the trial of political offences in the broad course of impeachments. And it has been observed with great propriety, that a tribunal of a liberal and comprehensive character, confined, as little as possible, to strict forms, enabled to continue its session as long, as the nature of the law may require, qualified to view the charge in all its bearings and dependencies, and to appropriate on sound principles of public policy the defence of the accused, seems indispensable to the value of the trial. The history of impeachments, both in England and America, justifies the remark. There is little technical in the mode of proceeding; the charges are sufficiently clear, and yet in a general form; there are few exceptions, which arise in the application of the evidence, which grow out of more technical rules, and quibbles. And it has repeatedly been seen, that the functions have been better understood, and more liberally and justly expounded by statesmen, than by mere lawyers. An illustrious instance of this sort is upon record in the case of the trial of Warren Hastings, where the question, whether an impeachment was abated by a dissolution of parliament, was decided in the negative by the house of lords, as well as the house of commons, against what seemed to be the weight of professional opinion.
§ 764. In the next place, the very functions, involving political interests and connexions, are precisely those, which it seems most important to exclude from the cognizance and participation of the judges of the Supreme Court. Much of the reverence and respect, belonging to the judicial character, arise from the belief, that the tribunal is impartial, as well as enlightened; just, as well as searching. It is of very great consequence, that judges should not only be, in fact, above all exception in this respect; but that they should be generally believed to be so. They should not only be pure; but, if possible, above suspicion. Many of the offences, which will be charged against public men, will be generated by the heats and animosities of party; and the very circumstances, that judges should be called to sit, as umpires, in the controversies of party, would inevitably involve them in the common odium of partizans, and place them in public opinion, if not in fact, at least in form, in the array on one side, or the other. The habits, too, arising from such functions, will lead them to take a more ardent part in public discussions, and in the vindication of their own political decisions, than seems desirable for those, who are daily called upon to decide upon the private rights and claims of men, distinguished for their political consequence, zeal, or activity, in the ranks of party. In a free government, like ours, there is a peculiar propriety in withdrawing, as much as possible, all judicial functionaries from the contests of mere party strife. With all their efforts to avoid them, from the free intercourse, and constant changes in a republican government, both of men and measures, there is, at all times, the most imminent danger, that all classes of society will be drawn into the vortex of politics. Whatever shall have a tendency to secure, in tribunals of justice, a spirit of moderation and exclusive devotion to juridical duties is of inestimable value. What can more surely advance this object, than the exemption of them from all participation in, and control over, the acts of political men in their official duties? Where, indeed, those acts fall within the character of known crimes at common law, or by positive statute, there is little difficulty in the duty, because the rule is known, and equally applies to all persons in and out of office; and the facts are to be tried by a jury, according to the habitual course of investigation in common cases. The remark of Mr. Woodeson on this subject is equally just and appropriate. After having enumerated some of the cases, in which impeachments have been tried for political offences, he adds, that from these "it is apparent, how little the ordinary tribunals are calculated to take cognizance of such offences, or to investigate and reform the general polity of the state."
§ 765. In the next place, the judges of the Supreme Court are appointed by the executive; and will naturally feel some sympathy and attachment for the person, to whom they owe this honour, and for those, whom he selects, as his confidential advisers in the departments. Yet the president himself, and those confidential advisers, are the very persons, who are eminently the objects to be reached by the power of impeachment. The very circumstance, that some, perhaps a majority of the court, owe their elevation to the same chief magistrate, whose acts, or those of his confidential advisers, are on trial, would have some tendency to diminish the public confidence in the impartiality and independence of the tribunal.
§ 766. But, in the next place, a far more weighty consideration is, that some of the members of the judicial department may be impeached for malconduct in office; and thus, that spirit, which, for want of a better term, has been called the corporation spirit of organized tribunals and societies, will naturally be brought into play. Suppose a judge of the Supreme Court should himself be impeached; the number of his triers would not only be diminished; but all the attachments, and partialities, or it may be the rivalries and jealousies of peers on the same bench, may be, or (what is practically almost as mischievous) may be suspected to be put in operation to screen or exaggerate the offence. Would any person soberly decide, that the judges of the Supreme Court would be the safest and the best of all tribunals for the trial of a brother judge, taking human feelings, as they are, and human infirmity, as it is? If not, would there not be, even in relation to inferior judges, a sense of indulgence, or a bias of opinion, upon certain judicial acts and practices, which might incline their minds to undue extenuation, or to undue harshness? And if there should be, in fact, no danger from such a source, is there not some danger, under some circumstances, that a jealousy of the operations of judicial tribunals over judicial offences, would create in the minds of the community a broad distinction in regard to convictions and punishments, between them and merely political offences? Would not the power of impeachment cease to possess its just reverence and authority, if such a distinction should prevail; and especially, if political victims rarely escaped, and judicial officers as rarely suffered? Can it be desirable thus to create any tendency in the public mind towards the judicial department, which may impair its general respect and daily utility?
§ 767. Considerations of this sort cannot be overlooked in inquiries of this nature; and if to some minds they may not seem wholly satisfactory, they, at least, establish, that the Supreme Court is not a tribunal for the trial of impeachment, wholly above all reasonable exceptions. But if, to considerations of this sort, it is added, that the common practice of free governments, and especially of England, and of the states composing the Union, has been, to confide this power to one department of the legislative body, upon the accusation of another; and that this has been found to work well, and to adjust itself to the public feelings and prejudices, to the dignity of the legislature, and to the tranquillity of the state, the inference in its favour cannot but be greatly strengthened and confirmed.
§ 768. To those, who felt difficulties in confiding to the Supreme Court alone the trial of impeachments, the scheme might present itself, of uniting that court with the senate jointly for this purpose. To this union many of the objections already stated, and especially those, founded on the peculiar functions of the judicial department, would apply with the same force, as they do to vesting the Supreme Court with the exclusive jurisdiction. In some other respects there would result advantages from the union; but they would scarcely overbalance the disadvantages. If the judges, compared with the whole body of the senate, were few in number, their weight would scarcely be felt in that body. The habits of co-operation in common daily duties would create among the senators an habitual confidence, and sympathy with each other; and the same habits would produce a correspondent influence among the judges. There would, therefore, be two distinct bodies, acting together pro re nata, which were in a great measure strangers to each other, and with feelings, pursuits, and modes of reasoning wholly distinct from each other. Great contrariety of opinion might naturally be presumed under such circumstances to spring up, and, in all probability, would become quite marked in the action of the two bodies. Suppose, upon an impeachment, the senators should be on one side, and the judges on the other; suppose a minority composed of all the judges, and a considerable number of the senators; or suppose a majority made by the co-operation of all the judges; in these, and many other cases, there might be no inconsiderable difficulty in satisfying the public mind, as to the result of the impeachment. Judicial opinion might go urgently one way, and political character and opinion, as urgently another way. Such a state of things would have little tendency to add weight, or dignity to the court, in the opinion of the community. And perhaps a lurking suspicion might pervade many minds, that one body, or the other, had possessed an undue preponderance of influence in the actual decision. Even jealousies and discontents might grow up in the bosoms of the competent bodies themselves, from their own difference of structure, and habits, and occupations, and duties. The practice of governments has not hitherto established any great value, as attached to the intermixture of different bodies for single occasions, or temporary objects.
§ 769. A third scheme might be, to entrust the trial of impeachments to a special tribunal, constituted for that sole purpose. But whatever arguments may be found in favour of such a plan, there will be found to be correspondent objections and difficulties. It would tend to increase the complexity of the political machine, and add a new spring to the operations of the government, the utility of which would be at least questionable, and might clog its just movements. A court of this nature would be attended with heavy expenses; and might, in practice, be subject to many casualties and inconveniences. It must consist either of permanent officers, stationary at the seat of government, and of course entitled to fixed and regular stipends; or of national officers, called to the duties for the occasion, though previously designated by office, or rank; or of officers of the state governments, selected when the impeachment was actually depending. Now, either of these alternatives would be found full of embarrassment and intricacy, when an attempt should be made to give it a definite form and organization. The court, in order to be efficient and independent, ought to be numerous. It ought to possess talents, experience, dignity, and weight of character, in order to obtain, or to hold, the confidence of the nation. What national officers, not belonging to either of the great departments of the government, legislative, executive, or judicial, could be found, embracing all these requisite qualifications? And if they could be, what compensation is to be made to them, in order to maintain their characters and importance, and to secure their services? If the court is to be selected from the state functionaries, in what manner is this to be accomplished? How can their acceptance, or performance of the duties, be either secured, or compelled? Does it not at once submit the whole power of impeachment to the control of the state governments, and thus surrender into their hands all the means of making it efficient and satisfactory? In political contests it cannot be supposed, that either the states, or the state functionaries, will not become partisans, and deeply interested in the success, or defeat of measures, in the triumph, or the ruin of rivals, or opponents. Parties will naturally desire to screen a friend, or overwhelm an adversary; to secure the predominance of a local policy, or a state party; and if so, what guarantee is there for any extraordinary fidelity, independence, or impartiality, in a tribunal so composed, beyond all others? Descending from such general inquiries to more practical considerations, it may be asked, how shall such a tribunal be composed? Shall it be composed of state executives, or state legislators, or state judges, or of a mixture of all, or a selection from all? If the body is very large, it will become unwieldy, and feeble from its own weight. If it be a mixture of all, it will possess too many elements of discord and diversities of judgment, and local and professional opinion. If it be homogeneous in its character, as if it consist altogether of one class of men, as of the executives of all the states, or the judges of the Supreme Courts of all the states, can it be supposed, (even if an equality in all other respects could be certainly obtained,) that persons, selected mainly by the states for local and peculiar objects, could best administer the highest and most difficult functions of the national government?
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§ 771. A scheme somewhat different from either of the foregoing has been recommended by a learned commentator, drawn from the Virginia constitution, by which, in that state, all impeachments are to be tried in the courts of law, "according to the laws of the land;" and by the state laws the facts, as in other cases, are to be tried by a jury. But the objections to this course would be very serious, not only from the considerations already urged, but from the difficulty of impanneling a suitable jury for such purposes. From what state or states is such a jury to be drawn? How is it to be selected, or composed? What are to be the qualifications of the jurors? Would it be safe to entrust the political interests of a whole people to a common panel? Would any jury in times of party excitement by found sufficiently firm to give a true verdict, unaffected by the popularity or odium of the measure, when the nation was the accuser? These questions are more easily put, than they can be satisfactorily answered. And, indeed, the very circumstance, that the example of Virginia has found little favour in other states, furnishes decisive proof, that it is not deemed better than others, to which the national constitution bears the closest analogy.
§ 772. When the subject was before the state conventions, although here and there an objection was started against the plan, three states only formally proposed any amendment. Virginia and North-Carolina recommended, "that some tribunal, other than the senate, be provided for trying impeachments of senators," leaving the provision in all other respects, as it stood. New-York alone recommended an amendment, that the senate, the judges of the Supreme Court, and the first or senior judge of the highest state court of general or ordinary common law jurisdiction in each state should constitute a court for the trial of impeachments. This recommendation does not change the posture of a single objection. It received no support elsewhere; and the subject has since silently slept without any effort to revive it.
§ 773. The conclusion, to which, upon a large survey of the whole subject, our judgments are naturally led, is, that the power has been wisely deposited with the senate. . . .
§ 774. The remaining parts of the clause of the constitution now under consideration will not require an elaborate commentary. The first is, that the senate, when sitting as a court of impeachment, "shall be on oath or affirmation;" a provision, which, as it appeals to the conscience and integrity of the members by the same sanctions, which apply to judges and jurors, who sit in other trials, will commend itself to all persons, who deem the highest trusts, rights, and duties, worthy of the same protection and security, at least, as those of the humblest order. It would, indeed, be a monstrous anomaly, that the highest officers might be convicted of the worst crimes, without any sanction being interposed against the exercise of the most vindictive passions; while the humblest individual has a right to demand an oath of fidelity from those, who are his peers, and his triors. In England, however, upon the trial of impeachments, the house of lords are not under oath; but only make a declaration upon their honour. This is a strange anomaly, as in all civil and criminal trials by a jury, the jurors are under oath; and there seems no reason, why a sanction equally obligatory upon the consciences of the triors should not exist in trials for capital or other offences before every other tribunal. What is there in the honour of a peer, which necessarily raises it above the honour of a commoner? The anomaly is rendered still more glaring by the fact, that a peer cannot give testimony, as a witness, except on oath; for, here, his honour is not trusted. The maxim of the law, in such a case, is in judicio non creditur, nisi juratis. Why should the obligation of a judge be less solemn, than the obligation of a witness? The truth is, that it is a privilege of power, conceded in barbarous times, and founded on feudal sovereignty, more than on justice, or principle.
§ 775. The next provision is: "When the president of the United States is tried, the chief justice shall preside." The reason of this clause has been already adverted to. It was to preclude the vice president, who might be supposed to have a natural desire to succeed to the office, from being instrumental in procuring the conviction of the chief magistrate. Under such circumstances, who could be deemed more suitable to preside, than the highest judicial magistrate of the Union. His impartiality and independence could be as little suspected, as those of any person in the country. And the dignity of his station might well be deemed an adequate pledge for the possession of the highest accomplishments.
§ 776. It is added, "And no person shall be convicted, without the concurrence of two thirds of the members present." Although very numerous objections were taken to the constitution, none seems to have presented itself against this particular quorum required for a conviction; and yet it might have been fairly thought to be open to attack on various sides from its supposed theoretical inconvenience and incongruity. It might have been said with some plausibility, that it deserted the general principles even of courts of justice, where a mere majority make the decision; and, of all legislative bodies, where a similar rule is adopted; and, that the requisition of two thirds would reduce the power of impeachment to a mere nullity. Besides; upon the trial of impeachments in the house of lords the conviction of acquittal is by a mere majority; so that there is a failure of any analogy to support the precedent.
§ 777. It does not appear from any authentic memorials, what were the precise grounds, upon which this limitation was interposed. But it may well be conjectured, that the real grounds were, to secure an impartial trial, and to guard public men from being sacrificed to the immediate impulses of popular resentment or party predominance. In England, the house of lords, from its very structure and hereditary independence, furnishes a sufficient barrier against such oppression and injustice. Mr. Justice Blackstone has remarked, with manifest satisfaction, that the nobility "have neither the same interests, nor the same passions, as popular assemblies;" and, that "it is proper, that the nobility should judge, to insure justice to the accused; as it is proper, that the people should accuse, to insure justice to the commonwealth." Our senate is, from the very theory of the constitution, founded upon a more popular basis; and it was desirable to prevent any combination of a mere majority of the states to displace, or to destroy a meritorious public officer. If a mere majority were sufficient to convict, there would be danger, in times of high popular commotion or party spirit, that the influence of the house of representatives would be found irresistible. The only practicable check seemed to be, the introduction of the clause of two thirds, which would thus require an union of opinion and interest, rare, except in cases where guilt was manifest, and innocence scarcely presumable. Nor could the limitation be justly complained of; for, in common cases, the law not only presumes every man innocent, until he is proved guilty; but unanimity in the verdict of the jury is indispensable. Here, an intermediate scale is adopted between unanimity, and a mere majority. And if the guilt of a public officer cannot be established to the satisfaction of two thirds of a body of high talents and acquirements, which sympathizes with the people, and represents the states, after a full investigation of the facts, it must be, that the evidence is too infirm, and too loose to justify a conviction. Under such circumstances, it would be far more consonant to the notions of justice in a republic, that a guilty person should escape, than that an innocent person should become the victim of injustice from popular odium, or party combinations.
§ 778. At the distance of forty years, we may look back upon this reasoning with entire satisfaction. The senate has been found a safe and effective depositary of the trial of impeachments. During that period but four cases have occurred, requiring this high remedy. In three there have been acquittals; and in one a conviction. Whatever may have been the opinions of zealous partisans at the times of their occurrence, the sober judgment of the nation sanctioned these results, at least, on the side of the acquittals, as soon as they became matters of history, removed from the immediate influences of the prosecutions. The unanimity of the awards of public opinion, in its final action on these controversies, has been as great, and as satisfactory, as can be attributed to any, which involve real doubt, or enlist warm prejudices and predilections on either side. No reproach has ever reached the senate for its unfaithful discharge of these high functions; and the voice of a state has rarely, if ever, displaced a single senator for his vote on such an occasion. What more could be asked in the progress of any government? What more could experience produce to justify confidence in the institution?
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§ 780. It is obvious, that, upon trials on impeachments, one of two courses must be adopted in case of a conviction; either for the court to proceed to pronounce a full and complete sentence of punishment for the offence according to the law of the land in like cases, pending in the common tribunals of justice, superadding the removal from office, and the consequent disabilities; or, to confine its sentence to the removal from office and other disabilities. If the former duty be a part of the constitutional functions of the court, then, in case of an acquittal, there cannot be another trial of the party for the same offence in the common tribunals of justice, because it is repugnant to the whole theory of the common law, that a man should be brought into jeopardy of life or limb more than once for the same offence. A plea of acquittal is, therefore, an absolute bar against any second prosecution for the same offence. If the court of impeachments is merely to pronounce a sentence of removal from office and the other disabilities; then it is indispensable, that provision should be made, that the common tribunals of justice should be at liberty to entertain jurisdiction of the offence, for the purpose of inflicting, the common punishment applicable to unofficial offenders. Otherwise, it might be matter of extreme doubt, whether, consistently with the great maxim above mentioned, established for the security of the life and limbs and liberty of the citizen, a second trial for the same offence could be had, either after an acquittal, or a conviction in the court of impeachments. And if no such second trial could be had, then the grossest official offenders might escape without any substantial punishment, even for crimes, which would subject their fellow citizens to capital punishment.
§ 781. The constitution, then, having provided, that judgment upon impeachments shall not extend further, than to removal from office, and disqualification to hold office, (which, however afflictive to an ambitious and elevated mind, would be scarcely felt, as a punishment, by the profligate and the base,) has wisely subjected the party to trial in the common criminal tribunals, for the purpose of receiving such punishment, as ordinarily belongs to the offence. Thus, for instance, treason, which by our laws is a capital offence, may receive its appropriate punishment; and bribery in high officers, which otherwise would be a mere disqualification from office, may have the measure of its infamy dealt out to it with the same unsparing severity, which attends upon other and humbler offenders.
§ 782. In England, the judgment upon impeachments is not confined to mere removal from office; but extends to the whole punishment attached by law to the offence. The house of lords, therefore, upon a conviction, may, by its sentence, inflict capital punishment; or perpetual banishment; or forfeiture of goods and lands; or fine and ransom; or imprisonment; as well as removal from office, and incapacity to hold office, according to the nature and aggravation of the offence.
§ 783. As the offences, to which the remedy of impeachment has been, and will continue to be principally applied, are of a political nature, it is natural to suppose, that they will be often exaggerated by party spirit, and the prosecutions be sometimes dictated by party resentments, as well as by a sense of the public good. There is danger, therefore, that in cases of conviction the punishment may be wholly out of proportion to the offence, and pressed as much by popular odium, as by aggravated crime. From the nature of such offences, it is impossible to fix any exact grade, or measure, either in the offences, or the punishments; and a very large discretion must unavoidably be vested in the court of impeachments, as to both. Any attempt to define the offences, or to affix to every grade of distinction its appropriate measure of punishment, would probably tend to more injustice and inconvenience, than it would correct; and perhaps would render the power at once inefficient and unwieldy. The discretion, then, if confided at all, being peculiarly subject to abuse, and connecting itself with state parties, and state contentions, and state animosities, it was deemed most advisable by the convention, that the power of the senate to inflict punishment should merely reach the right and qualifications to office; and thus take away the temptation in factious times to sacrifice good and great men upon the altar of party. History had sufficiently admonished them, that the power of impeachment had been thus mischievously and inordinately applied in other ages; and it was not safe to disregard those lessons, which it had left for our instruction, written not unfrequently in blood. Lord Strafford, in the reign of Charles the First, and Lord Stafford, in the reign of Charles the Second, were both convicted, and punished capitally by the house of lords; and both have been supposed to have been rather victims to the spirit of the times, than offenders meriting such high punishments. And other cases have occurred, in which whatever may have been the demerits of the accused, his final overthrow has been the result of political resentments and hatreds, far more than of any desire to promote public justice.
§ 784. There is wisdom, and sound policy, and intrinsic justice in this separation of the offence, at least so far, as the jurisdiction and trial are concerned, into its proper elements, bringing the political part under the power of the political department of the government, and retaining the civil part for presentment and trial in the ordinary forum. A jury might well be entrusted with the latter; while the former should meet its appropriate trial and punishment before the senate. If it should be asked, why separate trials should thus be successively had; and why, if a conviction should take place in a court of law, that court might not be entrusted with the power to pronounce a removal from office, and the disqualification to office, as a part of its sentence, the answer has been already given in the reasoning against vesting any court of law with merely political functions. In the ordinary course of the administration of criminal justice, no court is authorized to remove, or disqualify an offender, as a part of its regular judgment. If it results at all, it results as a consequence, and not as a part of the sentence. But it may be properly urged, that the vesting of such a high and delicate power, to be exercised by a court of law at its discretion, would, in relation to the distinguished functionaries of the government, be peculiarly unfit and inexpedient. What could be more embarrassing, than for a court of law to pronounce for a removal upon the mere ground of political usurpation, or malversation in office, admitting of endless varieties, from the slightest guilt up to the most flagrant corruption? Ought a president to be removed from office at the mere will of a court for political misdemeanours? Is not a political body, like the senate, from its superior information in regard to executive functions, far better qualified to judge, how far the public weal might be promoted by such a punishment in a given case, than a mere juridical tribunal? Suppose the senate should still deem the judgment irregular, or unjustifiable, how is the removal to take effect, and how is it to be enforced? A separation of the removing power altogether from the appointing power might create many practical difficulties, which ought not, except upon the most urgent reasons, to be introduced into matters of government. Without attempting to maintain, that the difficulties would be insuperable, it is sufficient to show, that they might be highly inconvenient in practice.
§ 785. It does not appear from the Journal of the Convention, that the provision thus limiting the sentence upon impeachments to removal and disqualification from office, attracted much attention, until a late period of its deliberations. The adoption of it was not, however, without some difference of opinion; for it passed only by the vote of seven states against three. The reasons, on which this opposition was founded, do not appear; and in the state conventions no doubt of the propriety of the provision seems to have been seriously entertained.
§ 786. In order to complete our review of the constitutional provisions on the subject of impeachments, it is necessary to ascertain, who are the persons liable to be impeached; and what are impeachable offences. By some strange inadvertence, this part of the constitution has been taken from its natural connexion, and with no great propriety arranged under that head, which embraces the organization, and rights, and duties of the executive department. To prevent the necessity of again recurring to this subject, the general method prescribed in these commentaries will, in this instance, be departed from, and the only remaining provision on impeachments be here introduced.
§ 787. The fourth section of the second article is as follows: "The president, vice-president, and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanours."
§ 788. From this clause it appears, that the remedy by impeachment is strictly confined to civil officers of the United States, including the president and vice-president. In this respect, it differs materially from the law and practice of Great-Britain. In that kingdom, all the king's subjects, whether peers or commoners, are impeachable in parliament; though it is asserted, that commoners cannot now be impeached for capital offences, but for misdemeanours only. Such kind of misdeeds, however, as peculiarly injure the commonwealth by the abuse of high offices of trust, are the most proper, and have been the most usual grounds for this kind of prosecution in parliament. There seems a peculiar propriety, in a republican government at least, in confining the impeaching power to persons holding office. In such a government all the citizens are equal, and ought to have the same security of a trial by jury for all crimes and offences laid to their charge, when not holding any official character. To subject them to impeachment would not only be extremely oppressive and expensive, but would endanger their lives and liberties, by exposing them against their wills to persecution for their conduct in exercising their political rights and privileges. Dear as the trial by jury justly is in civil cases, its value, as a protection against the resentment and violence of rulers and factions in criminal prosecutions, makes it inestimable. It is there, and there only, that a citizen, in the sympathy, the impartiality, the intelligence, and incorruptible integrity of his fellows, impanelled to try the accusation, may indulge a well-founded confidence to sustain and cheer him. If he should choose to accept office, he would voluntarily incur all the additional responsibility growing out of it. If impeached for his conduct, while in office, he could not justly complain, since he was placed in that predicament by his own choice; and in accepting office he submitted to all the consequences. Indeed, the moment it was decided, that the judgment upon impeachments should be limited to removal and disqualification from office, it followed, as a natural result, that it ought not to reach any but officers of the United States. It seems to have been the original object of the friends of the national government to confine it to these limits; for in the original resolutions proposed to the convention, and in all the subsequent proceedings, the power was expressly limited to national officers.
§ 789. Who are "civil officers," within the meaning of this constitutional provision, is an inquiry, which naturally presents itself; and the answer cannot, perhaps, be deemed settled by any solemn adjudication. The term "civil" has various significations. It is sometimes used in contradistinction to barbarous, or savage, to indicate a state of society reduced to order and regular government. Thus, we speak of civil life, civil society, civil government, and civil liberty; in which it is nearly equivalent in meaning to political. It is sometimes used in contradistinction to criminal, to indicate the private rights and remedies of men, as members of the community, in contrast to those, which are public, and relate to the government. Thus, we speak of civil process and criminal process, civil jurisdiction and criminal jurisdiction. It is sometimes used in contradistinction to military or ecclesiastical, to natural or foreign. Thus, we speak of a civil station, as opposed to a military or ecclesiastical station; a civil death, as opposed to a natural death; a civil war, as opposed to a foreign war. The sense, in which the term is used in the constitution, seems to be in contradistinction to military, to indicate the rights and duties relating to citizens generally, in contradistinction to those of persons engaged in the land or naval service of the government. It is in this sense, that Blackstone speaks of the laity in England, as divided into three distinct states; the civil, the military, and the maritime; the two latter embracing the land and naval forces of the government. And in the same sense the expenses of the civil list of officers are spoken of, in contradistinction to those of the army and navy.
§ 790. All officers of the United States, therefore, who hold their appointments under the national government, whether their duties are executive or judicial, in the highest or in the lowest departments of the government, with the exception of officers in the army and navy, are properly civil officers within the meaning of the constitution, and liable to impeachment. The reason for excepting military and naval officers is, that they are subject to trial and punishment according to a peculiar military code, the laws, rules, and usages of war. The very nature and efficiency of military duties and discipline require this summary and exclusive jurisdiction; and the promptitude of its operations are not only better suited to the notions of military men; but they deem their honour and their reputation more safe in the hands of their brother officers, than in any merely civil tribunal. Indeed, in military and naval affairs it is quite clear, that the senate could scarcely possess competent knowledge or experience to decide upon the acts of military men; so much are these acts to be governed by mere usage, and custom, by military discipline, and military discretion, that the constitution has wisely committed the whole trust to the decision of courts-martial.
§ 791. A question arose upon an impeachment before the senate in 1799, whether a senator was a civil officer of the United States, within the purview of the constitution; and it was decided by the senate, that he was not; and the like principle must apply to the members of the house of representatives. This decision, upon which the senate itself was greatly divided, seems not to have been quite satisfactory (as it may be gathered) to the minds of some learned commentators. The reasoning, by which it was sustained in the senate, does not appear, their deliberations having been private. But it was probably held, that "civil officers of the United States" meant such, as derived their appointment from, and under the national government, and not those persons, who, though members of the government, derived their appointment from the states, or the people of the states. In this view, the enumeration of the president and vice president, as impeachable officers, was indispensable; for they derive, or may derive, their office from a source paramount to the national government. And the clause of the constitution, now under consideration, does not even affect to consider them officers of the United States. It says, "the president, vice-president, and all civil officers (not all other civil officers) shall be removed," &c. The language of the clause, therefore, would rather lead to the conclusion, that they were enumerated, as contradistinguished from, rather than as included in the description of, civil officers of the United States. Other clauses of the constitution would seem to favour the same result; particularly the clause, respecting appointment of officers of the United States by the executive, who is to "commission all the officers of the United States;" and the 6th section of the first article, which declares, that "no person, holding any office under the United States, shall be a member of either house during his continuance in office;" and the first section of the second article, which declares, that "no senator or representative, or person holding an office of trust or profit under the United States, shall be appointed an elector." It is far from being certain, that the convention itself ever contemplated, that senators or representatives should be subjected to impeachment; and it is very far from being clear, that such a subjection would have been either politic or desirable.
§ 792. The reasoning of the Federalist on this subject, in answer to some objections to vesting the trial of impeachments in the senate, does not lead to the conclusion, that the learned author thought the senators liable to impeachment. Some parts of it would rather incline the other way. "The convention might with propriety," it is said, "have mediated the punishment of the executive for a deviation from the instructions of the senate, or a want of integrity in the conduct of the negotiations committed to him. They 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 they could not with more, or with equal propriety, have contemplated the impeachment and punishment of two-thirds of the senate, consenting to an improper treaty, than of a majority of that, or of the other branch of the legislature, consenting to a pernicious or unconstitutional law; a principle, which I believe has never been admitted into any government," &c. "And yet, what reason is there, that a majority of the house of representatives, sacrificing the interests of the society by an unjust and tyrannical act of legislation, should escape with impunity, more than two-thirds of the senate sacrificing the same interests in an injurious treaty with a foreign power? The truth is, that in all such cases, it is essential to the freedom, and to the necessary independence of the deliberations of the body, that the members of it should be exempt from punishment for acts done in a collective capacity; and the security to the society must depend on the care, which is taken, to confide the trust to proper hands; to make it 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." And it is certain, that in some of the state conventions the members of congress were admitted by the friends of the constitution, not to be objects of the impeaching power.
§ 793. It may be admitted, that a breach of duty is as reprehensible in a legislator, as in an executive, or judicial officer; but it does not follow, that the same remedy should be applied in each case; or that a remedy applicable to the one may not be unfit, or inconvenient in the other. Senators and representatives are at short periods made responsible to the people, and may be rejected by them. And for personal offences, not purely political, they are responsible to the common tribunals of justice, and the laws of the land. If a member of congress were liable to be impeached for conduct in his legislative capacity, at the will of a majority, it might furnish many pretexts for an irritated and predominant faction to destroy the character, and intercept the influence of the wisest and most exalted patriots, who were resisting their oppressions, or developing their profligacy. It is, therefore, with great reason urged, that a legislator should be above all fear and influence of this sort in his public conduct. The impeachment of a legislator, for his official acts, has hitherto been unacknowledged, as matter of right, in the annals of England and America. A silence of this sort is conclusive, as to the state of public opinion in relation to the impolicy and danger of conferring the power.
§ 794. The next inquiry is, what are impeachable offences? They are "treason, bribery, or other high crimes and misdemeanours." For the definition of treason, resort may be had to the constitution itself; but for the definition of bribery, resort is naturally and necessarily had to the common law; for that, as the common basis of our jurisprudence, can alone furnish the proper exposition of the nature and limits of this offence. The only practical question is, what are to be deemed high crimes and misdemeanours? Now, neither the constitution, nor any statute of the United States has in any manner defined any crimes, except treason and bribery, to be high crimes and misdemeanours, and as such impeachable. In what manner, then, are they to be ascertained? Is the silence of the statute book to be deemed conclusive in favour of the party, until congress have made a legislative declaration and enumeration of the offences, which shall be deemed high crimes and misdemeanours? If so, then, as has been truly remarked, the power of impeachment, except as to the two expressed cases, is a complete nullity; and the party is wholly dispunishable, however enormous may be his corruption or criminality. It will not be sufficient to say, that in the cases, where any offence is punished by any statute of the United States, it may, and ought to be, deemed an impeachable offence. It is not every offence, that by the constitution is so impeachable. It must not only be an offence, but a high crime and misdemeanour. Besides; there are many most flagrant offences, which, by the statutes of the United States, are punishable only, when committed in special places, and within peculiar jurisdictions, as, for instance, on the high seas, or in forts, navy-yards, and arsenals ceded to the United States. Suppose the offence is committed in some other, than these privileged places, or under circumstances not reached by any statute of the United States, would it be impeachable?
§ 795. Again, there are many offences, purely political, which have been held to be within the reach of parliamentary impeachments, not one of which is in the slightest manner alluded to in our statute book. And, indeed, political offences are of so various and complex a character, so utterly incapable of being defined, or classified, that the task of positive legislation would be impracticable, if it were not almost absurd to attempt it. What, for instance, could positive legislation do in cases of impeachment like the charges against Warren Hastings, in 1788? Resort, then, must be had either to parliamentary practice, and the common law, in order to ascertain, what are high crimes and misdemeanours; or the whole subject must be left to the arbitrary discretion of the senate, for the time being. The latter is so incompatible with the genius of our institutions, that no lawyer or statesman would be inclined to countenance so absolute a despotism of opinion and practice, which might make that a crime at one time, or in one person, which would be deemed innocent at another time, or in another person. The only safe guide in such cases must be the common law, which is the guardian at once of private rights and public liberties. And however much it may fall in with the political theories of certain statesmen and jurists, to deny the existence of a common law belonging to, and applicable to the nation in ordinary cases, no one has as yet been bold enough to assert, that the power of impeachment is limited to offences positively defined in the statute book of the Union, as impeachable high crimes and misdemeanours.
§ 796. The doctrine, indeed, would be truly alarming, that the common law did not regulate, interpret, and control the powers and duties of the court of impeachment. What, otherwise, would become of the rules of evidence, the legal notions of crimes, and the application of principles of public or municipal jurisprudence to the charges against the accused? It would be a most extraordinary anomaly, that while every citizen of every state, originally composing the Union, would be entitled to the common law, as his birth-right, and at once his protector and guide; as a citizen of the Union, or an officer of the Union, he would be subjected to no law, to no principles, to no rules of evidence. It is the boast of English jurisprudence, and without it the power of impeachment would be an intolerable grievance, that in trials by impeachment the law differs not in essentials from criminal prosecutions before inferior courts. The same rules of evidence, the same legal notions of crimes and punishments prevail. For impeachments are not framed to alter the law; but to carry it into more effectual execution, where it might be obstructed by the influence of too powerful delinquents, or not easily discerned in the ordinary course of jurisdiction, by reason of the peculiar quality of the alleged crimes. Those, who believe, that the common law, so far as it is applicable, constitutes a part of the law of the United States in their sovereign character, as a nation, not as a source of jurisdiction, but as a guide, and check, and expositor in the administration of the rights, duties, and jurisdiction conferred by the constitution and laws, will find no difficulty in affirming the same doctrines to be applicable to the senate, as a court of impeachments. Those, who denounce the common law, as having any application or existence in regard to the national government, must be necessarily driven to maintain, that the power of impeachment is, until congress shall legislate, a mere nullity, or that it is despotic, both in its reach, and in its proceedings. It is remarkable, that the first congress, assembled in October, 1774, in their famous declaration of the rights of the colonies, asserted, "that the respective colonies are entitled to the common law of England;" and "that they are entitled to the benefit of such of the English statutes, as existed at the time of their colonization, and which they have by experience respectively found to be applicable to their several local and other circumstances." It would be singular enough, if, in framing a national government, that common law, so justly dear to the colonies, as their guide and protection, should cease to have any existence, as applicable to the powers, rights, and privileges of the people, or the obligations, and duties, and powers of the departments of the national government. If the common law has no existence, as to the Union, as a rule or guide, the whole proceedings are completely at the arbitrary pleasure of the government, and its functionaries in all its departments.
§ 797. Congress have unhesitatingly adopted the conclusion, that no previous statute is necessary to authorize an impeachment for any official misconduct; and the rules of proceeding, and the rules of evidence, as well as the principles of decision, have been uniformly regulated by the known doctrines of the common law and parliamentary usage. In the few cases of impeachment, which have hitherto been tried, no one of the charges has rested upon any statutable misdemeanours. It seems, then, to be the settled doctrine of the high court of impeachment, that though the common law cannot be a foundation of a jurisdiction not given by the constitution, or laws, that jurisdiction, when given, attaches, and is to be exercised according to the rules of the common law; and that, what are, and what are not high crimes and misdemeanours, is to be ascertained by a recurrence to that great basis of American jurisprudence. The reasoning, by which the power of the house of representatives to punish for contempts, (which are breaches of privileges, and offences not defined by any positive laws,) has been upheld by the Supreme Court, stands upon similar grounds; for if the house had no jurisdiction to punish for contempts, until the acts had been previously defined, and ascertained by positive law, it is clear, that the process of arrest would be illegal.
§ 798. In examining the parliamentary history of impeachments, it will be found, that many offences, not easily definable by law, and many of a purely political character, have been deemed high crimes and misdemeanours worthy of this extraordinary remedy. Thus, lord chancellors, and judges, and other magistrates, have not only been impeached for bribery, and acting grossly contrary to the duties of their office; but for misleading their sovereign by unconstitutional opinions, and for attempts to subvert the fundamental laws, and introduce arbitrary power. So, where a lord chancellor has been thought to have put the great seal to an ignominious treaty; a lord admiral to have neglected the safe-guard of the sea; an ambassador to have betrayed his trust; a privy counsellor to have propounded, or supported pernicious and dishonourable measures; or a confidential adviser of his sovereign to have obtained exorbitant grants, or incompatible employments;--these have been all deemed impeachable offences. Some of the offences, indeed, for which persons were impeached in the early ages of British jurisprudence, would now seem harsh and severe; but perhaps they were rendered necessary by existing corruptions, and the importance of suppressing a spirit of favouritism, and court intrigue. Thus, persons have been impeached for giving bad counsel to the king; advising a prejudicial peace; enticing the king to act against the advice of parliament; purchasing offices; giving medicine to the king without advice of physicians; preventing other persons from giving counsel to the king, except in their presence; and procuring exorbitant personal grants from the king. But others, again, were founded in the most salutary public justice; such as impeachments for malversations and neglects in office; for encouraging pirates; for official oppression, extortions, and deceits; and especially for putting good magistrates out of office, and advancing bad. One cannot but be struck, in this slight enumeration, with the utter unfitness of the common tribunals of justice to take cognizance of such offences; and with the entire propriety of confiding the jurisdiction over them to a tribunal capable of understanding, and reforming, and scrutinizing the polity of the state, and of sufficient dignity to maintain the independence and reputation of worthy public officers.
§ 799. Another inquiry, growing out of this subject, is, whether, under the constitution, any acts are impeachable, except such, as are committed under colour of office; and whether the party can be impeached therefor, after he has ceased to hold office. A learned commentator seems to have taken it for granted, that the liability to impeachment extends to all, who have been, as well as to all, who are in public office. Upon the other point his language is as follows: "The legitimate causes of impeachment have been already briefly noticed. They can have reference only to public character, and official duty. The words of the text are, 'treason, bribery, and other high crimes and misdemeanours.' 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 a member."
§ 800. It does not appear, that either of these points has been judicially settled by the court having, properly, cognizance of them. In the case of William Blount, the plea of the defendant expressly put both of them, as exceptions to the jurisdiction, alleging, that, at the time of the impeachment, he, Blount, was not a senator, (though he was at the time of the charges laid against him,) and that he was not charged by the articles of impeachment with having committed any crime, or misdemeanour, in the execution of any civil office held under the United States; nor with any malconduct in a civil office, or abuse of any public trust in the execution thereof. The decision, however, turned upon another point, viz., that a senator was not an impeachable officer.
§ 801. As it is declared in one clause of the constitution, that "judgment, in cases of impeachment, shall not extend further, than a removal from office, and disqualification to hold any office of honour, trust, or profit, under the United States;" and in another clause, that "the president, vice president, and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes or misdemeanours;" it would seem to follow, that the senate, on the conviction, were bound, in all cases, to enter a judgment of removal from office, though it has a discretion, as to inflicting the punishment of disqualification. If, then, there must be a judgment of removal from office, it would seem to follow, that the constitution contemplated, that the party was still in office at the time of the impeachment. If he was not, his offence was still liable to be tried and punished in the ordinary tribunals of justice. And it might be argued with some force, that it would be a vain exercise of authority to try a delinquent for an impeachable offence, when the most important object, for which the remedy was given, was no longer necessary, or attainable. And although a judgment of disqualification might still be pronounced, the language of the constitution may create some doubt, whether it can be pronounced without being coupled with a removal from office. There is also much force in the remark, that an impeachment is a proceeding purely of a political nature. It is not so much designed to punish an offender, as to secure the state against gross official misdemeanors. It touches neither his person, nor his property; but simply divests him of his political capacity.
§802. The other point is one of more difficulty. In the argument upon Blount's impeachment, it was pressed with great earnestness, that there is not a syllable in the constitution, which confines impeachments to official acts, and it is against the plainest dictates of common sense, that such restraint should be imposed upon it. Suppose a judge should countenance, or aid insurgents in a meditated conspiracy or insurrection against the government. This is not a judicial act; and yet it ought certainly to be impeachable. He may be called upon to try the very persons, whom he has aided. Suppose a judge or other officer to receive a bribe not connected with his judicial office; could he be entitled to any public confidence? Would not these reasons for his removal be just as strong, as if it were a case of an official bribe? The argument on the other side was, that the power of impeachment was strictly confined to civil officers of the United States, and this necessarily implied, that it must be limited to malconduct in office.
§ 803. It is not intended to express any opinion in these commentaries, as to which is the true exposition of the constitution on the points above stated. They are brought before the learned reader, as matters still sub judice, the final decision of which may be reasonably left to the high tribunal, constituting the court of impeachment, when the occasion shall arise.
. . . . .
§ 810. Having thus gone through the whole subject of impeachments, it only remains to observe, that a close survey of the system, unless we are egregiously deceived, will completely demonstrate the wisdom of the arrangements made in every part of it. The jurisdiction to impeach is placed, where it should be, in the possession and power of the immediate representatives of the people. The trial is before a body of great dignity, and ability, and independence, possessing the requisite knowledge and firmness to act with vigour, and to decide with impartiality upon the charges. The persons subjected to the trial are officers of the national government; and the offences are such, as may affect the rights, duties, and relations of the party accused to the public in his political or official character, either directly or remotely. The general rules of law and evidence, applicable to common trials, are interposed, to protect the party against the exercise of wanton oppression, and arbitrary power. And the final judgment is confined to a removal from, and disqualification for, office; thus limiting the punishment to such modes of redress, as are peculiarly fit for a political tribunal to administer, and as will secure the public against political injuries. In other respects the offence is left to be disposed of by the common tribunals of justice, according to the laws of the land, upon an indictment found by a grand jury, and a trial by a jury of peers, before whom the party is to stand for his final deliverance, like his fellow citizens.
§ 811. In respect to the impeachment of the president, and vice president, it may be remarked, that they are, upon motives of high state policy, made liable to impeachment, while they yet remain in office. In England the constitutional maxim is, that the king can do no wrong. His ministers and advisers may be impeached and punished; but he is, by his prerogative, placed above all personal amenability to the laws for his acts. In some of the state constitutions, no explicit provision is made for the impeachment of the chief magistrate; and in Delaware and Virginia, he was not (under their old constitutions) impeachable, until he was out of office. So that no immediate remedy in those states was provided for gross malversations and corruptions in office; and the only redress lay in the elective power, followed up by prosecutions after the party had ceased to hold his office. Yet cases may be imagined, where a momentary delusion might induce a majority of the people to re-elect a corrupt chief magistrate; and thus the remedy would be at once distant and uncertain. The provision in the constitution of the United States, on the other hand, holds out a deep and immediate responsibility, as a check upon arbitrary power; and compels the chief magistrate, as well as the humblest citizen, to bend to the majesty of the laws.
Impeachments in England, Hinds' Precedents of the House of Representatives, 3:ch. 43, House Doc. no. 7, 93d Cong., 1st sess. (1973)
Boston Gazette, Impeachment of Public Officers, 4 Jan. 1768, Quincy's Rep. 583--84
Records of the Federal Convention, Farrand 1:78, 90--92, 244, 247, 292--93; 2:46, 120, 136, 145, 154, 159, 164, 172, 178--79, 187, 337, 344, 367--68, 435, 493, 495, 499, 545, 547, 572, 575--76, 600
Federal Farmer, no. 3, 10 Oct. 1787, Storing 2.8.33
Thomas McKean, Pennsylvania Ratifying Convention, 11 Dec. 1787, Elliot 2:534--35
Debate in South Carolina House of Representatives, 16 Jan. 1788, Elliot 4:263
Thomas Jefferson to John Rutledge, 2 Feb. 1788, Papers 12:556--57
Debate in North Carolina Ratifying Convention, 24 July 1788, Elliot 4:34--37
Pennsylvania Constitution of 1790, art. 4, Thorpe 5:3097
Tennessee Constitution of 1796, art. 4, secs. 1--4, Thorpe 6:3418--19
Senate, Impeachment of William Blount, 24 Dec., 3--5, 7--11, 14 Jan. 1799, Annals 8:2247--2319
St. George Tucker, Blackstone's Commentaries 1:App. 336--38, 347--48 (1803)
Impeachment of Judge John Pickering, 1803, House Doc. no. 7, 93d Cong., 1st sess. (1973) 129--31
Senate, Trial of Samuel Chase, 5 Jan.--1 Mar. 1804, Annals 14:81--669
Louisiana Constitution of 1812, art. 5, secs. 1--3, Thorpe 3:1388
Indiana Constitution of 1816, art. 3, secs. 23--24, Thorpe 2:1062
Illinois Constitution of 1818, art. 2, secs. 22--23, Thorpe 2:975
Tennessee Constitution of 1834, art. 5. secs. 1--5, Thorpe 6:3434
Story, Joseph. Commentaries on the Constitution of the United States. 3 vols. Boston, 1833.
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