CHAPTER XXII.

OF IMPEACHMENTS.

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,* 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

Federalist, No. 65.

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 character, 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.*

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 an 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

• This is one of the few points in which the author is compelled to differ from that excellent work the Federalist.

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 unin-. fluenced 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