Commentaries on the Constitution of the United States (1833)
by Joseph L. Story
§ 688. The third section of the first article relates to the organization and powers of the senate.
§ 689. In considering the organization of the senate, our inquiries naturally lead us to ascertain; first, the nature of the representation and role of the states therein; secondly, the mode of appointment; thirdly, the number of the senators; fourthly, their term of service; and fifthly, their qualifications.
§ 690. The first clause of the third section is in the following words: “The senate of the United States shall be composed of two senators from each state, chosen by the legislature thereof for six years; and each senator shall hare one vote.”
§ 691. In the first place, the nature of the representation and vote in the senate. Each state is entitled to two senators; and each senator is entitled to one rote. This, of course, involves in the very constitution of this branch of the legislature a perfect equality among all the states, without any reference to their respective size, population, wealth, or power. In this respect there is a marked contrast between the senate and the house of representatives. In the latter, there is a representation of the people according to the relative population of each state upon a given basis; in the former, each state in its political capacity is represented upon a footing of perfect equality, like a congress of sovereigns, or ambassadors, or like an assembly of peers. The only difference between it and the continental congress under the old confederation is, that in this the vote was by states; in the senate, each senator has a single vote. So that, though they represent states, they vote as individuals. The vote of the senate thus may, and often does, become a mixed vote, embracing a part of the senators from some of the states on one side, and another part on the other.
§ 692. It is obvious, that this arrangement could only arise from a compromise between independent states; and it must have been less the result of theory, than “of a spirit of amity, and of mutual deference and concession, which the peculiarity of the situation of the United States rendered indispensable.”1 It constituted one of the great struggles between the large and the small states, which was constantly renewed in the convention, and impeded it in every step of its progress in the formation of the constitution.2 The struggle applied to the organization of each branch of the legislature. The small states insisted upon an equality of vote and representation in each branch; and the large states upon a vote in proportion to their relative importance and population. Upon this vital question there was so near a balance of the states, that a union in any form of government, which provided either for a perfect equality or inequality of the states in both branches of the legislature, became utterly hopeless.3 If the basis of the senate was an equality of representation, the basis of the house must be in proportion to the relative population of the states.4 A compromise was, therefore, indispensable, or the convention must be dissolved. The small states at length yielded the point, as to an equality of representation in the house, and acceded to a representation proportionate to the federal numbers. But they insisted upon an equality in the senate. To this the large states were unwilling to assent; and for a time the states were, on this point, equally divided.5 Finally, the subject was referred to a committee, who reported a scheme, which became, with some amendments, the basis of the representation, as it now stands.6
§ 693. The reasoning, by which each party in the convention supported its own project, naturally grew out of the relative situation and interests of their respective states. On the side of the small states, it was urged, that the general government ought to be partly federal, and partly national, in order to secure a just balance of power and sovereignty, and influence among the states. This is the only means to preserve small communities, when associating with larger, from being overwhelmed, and annihilated. The large states, under other circumstances, would naturally pursue their own interests, and by combinations usurp the prerogatives, or disregard the rights of the smaller. Hitherto, all the states had held a footing of equality; and no one would now be willing to surrender it. The course now proposed would allay jealousies, and produce tranquillity. Any other would only perpetuate discontents, and lead to disunion. There never was a confederacy formed, where an equality of voice was not a fundamental principle. It would be a novel thing in politics, in such cases, to permit the few to control the many. The large states, upon the present plan, have a full security. The small states must possess the power of self-defence, or they are ruined.
§ 694. On the other hand, it was urged, that to give an equality of vote to all the states, was adopting a principle of gross injustice and inequality. It is not true, that all confederacies have been founded upon the principle of equality. It was not so in the Lycian confederacy. Experience has shown, that the old confederation is radically defective, and a national government is indispensable. The present plan will defeat that object. Suppose the first branch grants money; the other branch (the senate) might, from mere state views, counteract it. In congress, the single state of Delaware prevented an embargo at the time, when all the other states thought it absolutely necessary for the support of the army. In short, the senate will have the power by its negative of defeating all laws. If this plan prevails, seven states will control the whole; and yet these seven states are, in point of population and strength, less than one third of the Union. So, that two thirds are compellable to yield to one third. There is no danger to the small states from the combination of the large ones. A rivalry, rather than a confederacy, will exist among them. There can be no monarchy; and an aristocracy is more likely to arise from a combination of the small states. There are two kinds of bad governments; the one, which does too much, and is therefore oppressive; and the other, which does too little, and is therefore weak. The present plan will fasten the latter upon the country. The only reasonable principle, on which to round a general government, is, that the decision shall be by a majority of members, and not of states. No advantage can possibly be proposed by the large states by swallowing up the smaller. The like fear existed in Scotland at the time of the union with England; but it has turned out to be wholly without foundation. Upon the present plan, the smaller states may swallow up the larger. It was added by one most distinguished statesman,7 (what has hitherto proved prophetically too true,) that the danger was not between the small and the large states. “The great danger to our general government is, the great southern and northern interests of this continent being opposed to each other. Look to the votes in congress, and most of them stand divided by the geography of the country, not according to the size of the states.”8
§ 695. Whatever may now be thought of the reasoning of the contending parties, no person, who possesses a sincere love of country, and wishes for the permanent union of the states, can doubt, that the compromise actually made was well founded in policy, and may now be fully vindicated upon the highest principles of political wisdom, and the true nature of the government, which was intended to be established.
§ 696. It may not be unprofitable to review a few of the grounds, upon which this opinion is hazarded. In the first place, the very structure of the general government contemplated one partly federal, and partly national. It not only recognized the existence of the state governments; but perpetuated them, leaving them in the enjoyment of a large portion of the rights of sovereignty, and giving to the general government a few powers, and those only, which were necessary for national purposes. The general government was, therefore, upon the acknowledged basis, one of limited and circumscribed powers; the states were to possess the residuary powers. Admitting, then, that it is right, among a people thoroughly incorporated into one nation, that every district of territory ought to have a proportional share of the government; and that among independent states, bound together by a simple league, there ought, on the other hand, to be an equal share in the common councils, whatever might be their relative size or strength, (both of which propositions are not easily controverted;) it would follow, that a compound republic, partaking of the character of each, ought to be founded on a mixture of proportional, and of equal representation.9 The legislative power being that, which is predominant in all governments, ought to be, above all, of this character; because there can be no security for the general government, or the state governments, without an adequate representation, and an adequate check of each in the functions of legislation. Whatever basis, therefore, is assumed for one branch of the legislature, the antagonist basis should be assumed for the other. If the house is to be proportional to the relative size, and wealth, and population of the states, the senate should be fixed upon an absolute equality, as the representative of state sovereignty. There is so much reason, and justice, and security in such a course, that it can with difficulty be overlooked by those, who sincerely consult the public good, without being biased by the interests or prejudices of their peculiar local position. The equal vote allowed in the senate is, in this view, at once a constitutional recognition of the sovereignty remaining in the states, and an instrument for the preservation of it. It guards them against (what they meant to resist, as improper) a consolidation of the states into one simple republic;10 and, on the other hand, the weight of the other branch counterbalances an undue preponderance of state interests, tending to disunion.
§ 697. Another and most important advantage arising from this ingredient is, the great difference, which it creates in the elements of the two branches of the legislature; which constitutes a great desideratum in every practical division of the legislative power.11 In fact, this division (as has been already intimated) is of little or no intrinsic value, unless it is so organized, that each can operate, as a real check upon undue and rash legislation. If each branch is substantially framed upon the same plan, the advantages of the division are shadowy and imaginative; the visions and speculations of the brain, and not the walking thoughts of statesmen, or patriots. It may be safely asserted, that for all the purposes of liberty, and security, of state laws, and of solid institutions, of personal rights, and of the protection of property, a single branch is quite as good, as two, if their composition is the same, and their spirits and impulses the same. Each will act, as the other does; and each will be led by the same common influence of ambition, or intrigue, or passion, to the same disregard of the public interests, and the same indifference to, and prostration of private rights. It will only be a duplication of the evils of oppression and rashness, with a duplication of obstructions to effective redress. In this view, the organization of the senate becomes of inestimable value. It represents the voice, not of a district, but of a state; not of one state, but of all; not of the interest of one state, but of all not of the chosen pursuits of a predominant population in one state, but of all the pursuits in all the states.
§ 698. It is a misfortune incident to republican governments, though in a less degree than to other governments, that those, who administer it, may forget their obligations to their constituents, and prove unfaithful to their trusts. In this point of view, a senate, as a second branch of legislative power, distinct from, and dividing, power with the first; must always operate as a salutary check. It doubles the security to the people, by requiring the concurrence of two distinct bodies in any scheme of usurpation or perfidy, where otherwise the ambition of a single body would be sufficient. The improbability of sinister combinations will always be in proportion to the dissimilarity of the genius of the two bodies; and therefore every circumstance, consistent with harmony in all proper measures, which points out a distinct organization of the component materials of each, is desirable.12
§ 699. No system could, in this respect, be more admirably contrived to ensure due deliberation and inquiry, and just results in all matters of legislation. No law or resolution can be passed without the concurrence, first of a majority of the people, and then of a majority of the states. The interest, and passions, and prejudices of a district are thus checked by the influence of a whole state; the like interests, and passions, and prejudices of a state, or of a majority of the states, are met and controlled by the voice of the people of the nation.13 It may be thought, that this complicated system of checks may operate, in some instances, injuriously, as well as beneficially. But if it should occasionally work unequally, or injuriously, its general operation will be salutary and useful.14 The disease most incident to free governments is the facility and excess of lawmaking;15 and while it never can be the permanent interest of either branch to interpose any undue restraint upon the exercise of all fit legislation, a good law had better occasionally fail, rather than bad laws be multiplied with a heedless and mischievous frequency. Even reforms, to be safe, must, in general, be slow; and there can be little danger, that public opinion will not sufficiently stimulate all public bodies to changes, which are at once desirable, and politic. All experience proves, that the human mind is more eager and restless for changes, than tranquil and satisfied with existing institutions. Besides; the large states will always be able, by their power over the supplies, to defeat any unreasonable exertions of this prerogative by the smaller states.
§ 700. This reasoning, which theoretically seems entitled to great weight, has, in the progress of the government, been fully realized. It has not only been demonstrated, that the senate, in its actual organization, is well adopted to the exigencies of the nation; but that it is a most important and valuable part of the system, and the real balance-wheel, which adjusts, and regulates its movements.16 The other auxiliary provisions in the same clause, as to the mode of appointment and duration of office, will be found to conduce very largely to the same beneficial end.17
§ 701. Secondly; the mode of appointment of the senators. They are to be chosen by the legislature of each state. Three schemes presented themselves, as to the mode of appointment; one was by the legislature of each state; another was by the people thereof; and a third was by the other branch of the national legislature, either directly, or out of a select nomination. The last scheme was proposed in the convention, in what was called the Virginia scheme, one of the resolutions, declaring, “that the members of the second branch (the senate) ought to be elected by those of the first (the house of representatives) out of a proper number nominated by the individual legislatures” (of the states.) It met, however, with no decided support, and was negatived, no state voting in its favor, nine states voting against it, and one being divided.18 The second scheme, of an election by the people in districts, or otherwise, seems to have met with as little favor.19 The first scheme, that of an election by the legislature, finally prevailed by an unanimous vote.20
§ 702. The reasoning, by which this mode of appointment was supported, does not appear at large in any contemporary debates. But it may be gathered from the imperfect lights left us, that the main grounds were, that it would immediately connect the state governments with the national government, and thus harmonize the whole into one universal system; that it would introduce a powerful check upon rash legislation, in a manner not unlike that created by the different organizations of the house of commons, and the house of lords in Great Britain; and that it would increase public confidence by securing the national government from undue encroachments on the powers of the states.21 The Federalist notices the subject in the following brief and summary manner, which at once establishes the general consent to the arrangement, and the few objections, to which it was supposed to be obnoxious. “It is unnecessary to dilate on the appointment of senators by the state legislatures. Among the various modes, which might have been devised for constituting this branch of the government, that which has been proposed by the convention is probably the most congenial with the public opinion. It is recommended by the double advantage of favoring a select appointment, and of giving to the state governments such an agency in the formation of the federal government, as must secure the authority of the former, and may form a convenient link between the two systems.”22 This is very subdued praise; and indicates more doubts, than experience has, as yet, justified.23
§ 703. The constitution has not provided for the manner, in which the choice shall be made by the state legislatures, whether by a joint, or by a concurrent vote; the latter is, where both branches form one assembly, and give a united vote numerically; the former is, where each branch gives a separate and independent vote.24 As each of the state legislatures now consists of two branches, this is a very important practical question. Generally, but not universally, the choice of senators is made by a concurrent vote.25 Another question might be suggested, whether the executive constitutes a part of the legislature for such a purpose, in cases where the state constitution gives him a qualified negative upon the laws. But this has been silently and universally settled against the executive participation in the appointment.
§ 704. Thirdly; the number of senators. Each state is entitled to two senators. It is obvious, that to ensure competent knowledge and ability to discharge all the functions entrusted to the senate, (of which more will be said hereafter,) it is indispensable, that it should consist of a number sufficiently large to ensure a sufficient variety of talents, experience, and practical skill, for the discharge of all their duties. The legislative power alone, for its enlightened and prudent exercise, requires (as has been already shown) no small share of patriotism, and knowledge, and ability. In proportion to the extent and variety of the labors of legislation, there should be members, who should share them, in order, that there may be a punctual and perfect performance of them. If the number be very small, there is danger, that some of the proper duties will be overlooked, or neglected, or imperfectly attended to. No human genius, or industry, is adequate to all the vast concerns of government, if it be not aided by the power and skill of numbers. The senate ought, therefore, on this account alone, to be somewhat numerous, though it need not, and indeed ought not, for other reasons, to be as numerous, as the house. Besides; numbers are important to give to the body a sufficient firmness to resist the influence, which the popular branch will ever be solicitous to exert over them. A very small body is more easy to be overawed, and intimidated, and controlled by external influences, than one of a reasonable size, embracing weight of character, and dignity of talents. Numbers alone, in many cases, confer power; and what is of not less importance, they present more resistance to corruption and intrigue. A body of five may be bribed, or overborne, when a body of fifty would be an irresistible barrier to usurpation.
§ 705. In addition to this consideration, it is desirable, that a state should not be wholly unrepresented in the national councils by mere accident, or by the temporary absence of its representative. If there be but a single representative, sickness or casualty may deprive the state of its vote on the most important occasions. It was on this account, (as well as others,) that the confederation entitled each state to send not less than two, nor more than seven delegates. In critical cases, too, it might be of great importance to have an opportunity of consulting with a colleague or colleagues, having a common interest and reeling for the state. And if it be not always in the strictest sense true, that in the multitude of counsel there is safety; there is a sufficient foundation in the infirmity of human nature to make it desirable to gain the advantage of the wisdom, and information, and reflection of other independent minds, not laboring under the suspicion of any unfavorable bias. These reasons may be presumed to have had their appropriate weight in the deliberations of the convention. If more than one representative of a state was to be admitted into the senate, the least practicable ascending number was that adopted. At that time a single representative of each state would have made the body too small for all the purposes of its institution, and all the objects before explained. It would have been composed but of thirteen; and supposing no absences, which could not ordinarily be calculated upon, seven would constitute a majority to decide all the measures. Twenty-six was not, at that period, too large a number for dignity, independence, wisdom, experience, and efficiency. And, at the present moment, when the states have grown to twenty-four, it is found, that forty-eight is a number quite small enough to perform the great national functions confided to it, and to embody the requisite skill and ability to meet the increased exigencies, and multiplied duties of the office.26 There is probably no legislative body on earth, whose duties are more various, and interesting, and important to the public welfare; and none, which calls for higher talents, and more comprehensive attainments, and more untiring industry, and integrity.
§ 706. In the convention there was a considerable diversity of opinion, as to the number, of which the senate should consist, and the apportionment of the number among the states. When the principle of an equality of representation was decided, the only question seems to have been, whether each state should have three, or two members. Three was rejected by a vote of nine states against one; and two inserted by a vote of nine states against one.27 It does not appear, that any proposition was ever entertained for a less number than two; and the silence of all public discussion on this subject seems to indicate, that the public opinion decidedly adopted the lowest number under the confederation to be the proper number, if an equality of representation was to be admitted into the senate. Whatever may be the future increase of states in the Union, it is scarcely probable, that the number will ever exceed that, which will fit the senate for the best performance of all its exalted functions. The British house of lords, at this moment, probably exceeds any number, which will ever belong to the American senate; and yet, notwithstanding the exaggerated declamation of a few ardent minds, the sober sense of the nation has never felt, that its number was either a burden, or an infirmity inherent in the constitution.28
§ 707. Fourthly; the term of service of the senators. It is for six years; although, as will be presently seen, another element in the composition of that body is, that one third of it is changed every two years. What would be the most proper period of office for senators, was an inquiry, admitting of a still wider range of argument and opinions than what would be the most proper for the members of the house of representatives. The subject was confessedly one full of intricacy, and doubt, upon which the wisest statesmen might well entertain very different views, and the best patriots might well ask for more information, without, in the slightest degree, bringing into question their integrity, their love of liberty, or their devotion to a republican government. If, in the present day, the progress of public opinion, and the lights of experience, furnish us with materials for a decided judgment, we ought to remember, that the question was then free to debate, and the fit conclusion was not easily to be seen, or justly to be measured. The problem to be solved by the great men of that day was, what organization of the legislative power, in a republican government, is best adapted to give permanency to the Union, and security to public liberty. In the convention, a great diversity of judgment was apparent among those, whose purity and patriotism were above all suspicion, and whose talents and public services were equally unquestionable. Various propositions were entertained; that the period of service of senators should be during good behavior; for nine years; for seven years; for six years; for five years; for four years; for three years.29 All these propositions successively failed, except that for seven years, which was eventually abandoned for six years with the additional limitation, that one third should go out biennially.30
§ 708. No inconsiderable array of objections was brought to bear against this prolonged term of service of the senators beyond that fixed for the members of the house of representatives, both in the convention, and before the people, when the constitution was under their advisement.31 Perhaps some of those objections still linger in the minds of many, who entertain a general jealousy of the powers of the Union; and who easily persuade themselves on that account, that power should frequently change hands in order to prevent corruption and tyranny. The perpetuity of a body (it has been said) is favorable to every stride it may be disposed to make towards extending its own power and influence in the government. Such a tendency is to be discovered in all bodies, however constituted, and to which no effectual check can be opposed, but frequent dissolutions and elections.32 The truth of this remark may be admitted; but there are many circumstances, which may justly vary its force and application. While, on the one hand, perpetuity in a body may be objectionable, on the other hand, continual fluctuations may be no less so, with reference to its duties and functions, its powers, and its efficiency. There are dangers arising from too great frequency in elections, as well as from too small. The path of true wisdom is probably best attained by a moderation, which avoids either extreme. It may be said of too much jealousy, and of too much confidence, that, when either is too freely admitted into public councils, it betrays like treason.
§ 709. It seems paradoxical to assert, (as has been already intimated,) but it is theoretically, as well as practically true, that a deep-felt responsibility is incompatible with great frequency of elections.33 Men can feel little interest in power, which slips away almost as soon, as it is grasped; and in measures, which they can scarcely do more than begin, without hoping to perfect. Few measures have an immediate and sensible operation, exactly according to their wisdom or policy. For the most part, they are dependent upon other measures, or upon time, and gradual intermixtures with the business of life, and the general institutions of society.34 The first superficial view may shock popular prejudices, or errors; while the ultimate results may be as admirable and excellent, as they are profound and distant. Who can take much interest in weaving a single thread into a measure, which becomes an evanescent quantity in the main fabric, whose texture requires constant skill, and many adaptations from the same hand, before its perfection can be secured, or even be prophesied?
§ 710. The objections to the senatorial term of office all resolve themselves into a single argument, however varied in its forms, or illustrations. That argument is, that political power is liable to be abused; and that the great security for public liberty consists in bringing home responsibility, and dependence in those, who are entrusted with office; and these are best attained by short periods of office, and frequent expressions of public opinion in the choice of officers. If the argument is admitted in its most ample scope, it still leaves the question open to much discussion, what is the proper period of office, and how frequent the elections should be. This question must, in its nature, be complicated; and may admit, if it does not absolutely require, different answers, as applicable to different functionaries. Without wandering into ingenious speculations upon the topic in its most general form, our object will be to present the reasons, which have been, or may be relied on, to establish the sound policy and wisdom of the duration of office of the senators as fixed by the constitution. In so doing, it will become necessary to glance at some suggestions, which have already occurred in considering the organization of the other branch of the legislature. It may be proper, however, to premise, that the whole reasoning applies to a moderate duration only in office; and that it assumes, as its basis, the absolute necessity of short limitations of office, as constituting indispensable checks to power in all republican governments. It would almost be useless to descant upon such a basis, because it is universally admitted in the United States as a fundamental principle of all their constitutions of government.
§ 711. In the first place, then, all the reasons, which apply to the duration of the legislative office generally, founded upon the advantages of various knowledge, and experience in the principles and duties of legislation, may be urged with increased force in regard to the senate. A good government implies two things; first, fidelity to the object of government, which is the happiness of the people; secondly, a knowledge of the means, by which that object is to be attained. Some governments are deficient in both these qualities; most ate deficient in the first. Some of our wisest statesmen have not scrupled to assert, that in the American governments too little attention has been paid to the latter.35 It is utterly impossible for any assembly of men, called for the most part from the pursuits of private life, continued in appointment for a short time, and led by no permanent motive to devote the intervals of public occupation to the study of the nature and operations of government, to escape from the commission of many errors in the discharge of their legislative functions.36 In proportion to the extent and variety of these functions, the national interests, which they involve, and the national duties, which they imply, ought to rise the intellectual qualifications, and solid attainments of the members. Even in our domestic concerns, what are our voluminous, and even changing codes, but monuments of deficient wisdom, hasty resolves, and still more hasty repeals? What are they, but admonitions to the people of the dangers of rash, and premature legislation,37 of ignorance, that knows not its own mistakes, or of overweening confidence, which heeds not its own follies?
§ 712. A well constituted senate, then, which should interpose some restraints upon the sudden impulses of a more numerous branch, would, on this account, be of great value.38 But its value would be incalculably increased by making its term of office such, that with moderate industry, talents, and devotion to the public service, its members could scarcely fail of having the reasonable information, which would guard them against gross errors, and the reasonable firmness, which would enable them to resist visionary speculations, and popular excitements. If public men know, that they may safely wait for the gradual action of a sound public opinion, to decide upon the merit of their actions and measures, before they can be struck down, they will be more ready to assume responsibility, and pretermit present popularity for future solid reputation.39 If they are designed, by the very structure of the government, to secure the states against encroachments upon their rights and liberties, this very permanence of office adds new means to effectuate the object. Popular opinion may, perhaps, in its occasional extravagant sallies, at the instance of a fawning demagogue, or a favorite chief, incline to overleap the constitutional barriers, in order to aid their advancement, or gratify their ambition. But the solid judgment of a senate may stay the evil, if its own duration of power exceeds that of the other branches of the government, or if it combines the joint durability of both. In point of fact, the senate has this desirable limit. It combines the period of office of the executive with that of the members of the house; while at the same time, from its own biennial changes, (as we shall presently see,) it is silently subjected to the deliberate voice of the states.
§ 713. In the next place, mutability in the public councils, arising from a rapid succession of new members, is found by experience to work, even in domestic concerns, serious mischiefs. It is a known fact in the history of the states, that every new election changes nearly or quite one half of its representatives;40 and in the national government changes less frequent, or less numerous can scarcely be expected. From this change of men, there must unavoidably arise a change of opinions; and with this change of opinions a correspondent change of measures. Now experience demonstrates, that a continual change, even of good measures, is inconsistent with every rule of prudence and every prospect of success.41 In all human affairs, time is required to consolidate the elements of the best concerted measures, and to adjust the little interferences, which are incident to all legislation. Perpetual changes in public institutions not only occasion intolerable controversies, and sacrifices of private interests; but check the growth of that steady industry and enterprise, which, by wise forecast, lay up the means of future prosperity. Besides; the instability of public councils gives an unreasonable advantage to the sagacious, the cunning, and the monied capitalists. Every new regulation concerning commerce, or revenue, or manufactures, or agriculture, or in any manner affecting the relative value of the different species of property, presents a new harvest to those, who watch the change, and can trace the consequences; a harvest, which is torn from the hand of the honest laborer, or the confiding artisan, to enrich those, who coolly look on to reap profit, where they have sown nothing.42 In short, such a state of things generates the worst passions of selfishness, and the worst spirit of gaming. However paradoxical it may seem, it is nevertheless true, that in affairs of government, the best measures, to be safe, must be slowly introduced; and the wisest councils are those, which proceed by steps, and reach, circuitously, their conclusion. It is, then, important in this general view, that all the public functionaries should not terminate their offices at the same period. The gradual infusion of new elements, which may mingle with the old, secures a gradual renovation, and a permanent union of the whole.
§ 714. But the ill effects of a mutable government are still more strongly felt in the intercourse with foreign nations. It forfeits the respect and confidence of foreign nations, and all the advantages connected with national character.43 It not only lays its measures open to the silent operations of foreign intrigue and management; but it subjects its whole policy to be counteracted by the wiser and more stable policy of its foreign rivals and adversaries. One nation is to another, what one individual is to another, with this melancholy distinction perhaps, that the former, with fewer benevolent emotions than the latter, are under fewer restraints also from taking undue advantages of the indiscretions of each other.44 If a nation is perpetually fluctuating in its measures, as to the protection of agriculture, commerce, and manufactures, it exposes all its infirmities of purpose to foreign nations; and the latter with a systematical sagacity will sap all the foundations of its prosperity. From this cause, under theconfederation, America suffered the most serious evils. “She finds,” said the Federalist,45 with unusual boldness and freedom, “that she is held in no respect by her friends; that she is the derision of her enemies; and that she is a prey to every nation, which has an interest in speculating on her fluctuating councils, and embarrassed affairs.”
§ 715. Further; foreign governments can never safely enter into any permanent arrangements with one, whose councils and government are perpetually fluctuating. It was not unreasonable, therefore, for them to object to the continental congress, that they could not guaranty the fulfillment of any treaty; and therefore it was useless to negotiate any. To secure the respect of foreign nations, there must be power to fulfil engagements; confidence to sustain them; and durability to ensure their execution on the part of the government. National character in cases of this sort is inestimable. It is not sufficient, that there should be a sense of justice, and disposition to act right; but there must be an enlightened permanency in the policy of the government.46 Caprice is just as mischievous, as folly, and corruption scarcely worse, than perpetual indecision and fluctuation. In this view, independent of its legislative functions, the participation of the senate in the functions of the executive, in appointing, ambassadors, and in forming treaties with foreign nations, gives additional weight to the reasoning in favor of its prolonged term of service. A mole full survey of its other functions will make that reasoning absolutely irresistible, if the object is, that they should be performed with independence, with judgment, and with scrupulous integrity and dignity.
§ 716. In answer to all reasoning of this sort, it has been strenuously urged, that a senate, constituted, not immediately by the people, for six years, may gradually acquire a dangerous preeminence in the government, and eventually transform itself into an aristocracy.47 Certainly, such a case is possible; but it is scarcely within the range of probability, while the people, or the government, are worthy of protection or confidence. Liberty may be endangered by the abuses of liberty, as well as by the abuses of power. There are quite as numerous instances of the former, as of the latter.48 Yet, who would reason, that there should be no liberty, because it had been, or it might be, abused? Tyranny itself would not desire a more cogent argument, than that the danger of abuse was a ground for the denial of a right.
§ 717. But the irresistible reply to all such reasoning is, that before such a revolution can be effected, the senate must, in the first place, corrupt itself; it must next corrupt the state legislatures; it must then corrupt the house of representatives; and, lastly, it must corrupt the people at large. Unless all these things are done, and continued, the usurpation of the senate would be as vain, as it would be transient. The periodical change of its members would otherwise regenerate the whole body. And if such universal corruption should prevail, it is quite idle to talk of usurpation and aristocracy; for the government would then be exactly, what the people would choose it to be. It would represent exactly, what they would deem fit. It would perpetuate power in the very form, which they would advise. No form of government ever proposed to contrive a method, by which the will of the people should be at once represented, and defeated; by which it should choose to be enslaved, and at the same time, by which it should be protected in its freedom. Private and public virtue is the foundation of republics; and it is folly, if it is not madness, to expect, that rulers will not buy, what the people are eager to sell. The people may guard themselves against the oppressions of their governors; but who shall guard then against their own oppression of themselves?
§ 718. But experience is, after all, the best test upon all subjects of this sort. Time, which dissolves the frail fabrics of men’s opinions, serves but to confirm the judgments of nature. What are the lessons, which the history of our own and other institutions teach us? In Great Britain, the house of lords is hereditary; and yet it has never hitherto been able successfully to assail the public liberties; and it has not infrequently preserved, or enforced them. The house of commons is now chosen for seven years. Is it now less an organ of the popular opinion, and less jealous of the public rights, than it was during annual, or triennial parliaments? In Virginia, the house of delegates before the revolution, was chosen for seven years; and in some of the other colonies for three years.49 Were they then subservient to the crown, or faithless to the people? In the present constitutions of the states of America, there is a great diversity in the terms of office, as well as the qualifications, of the state senates. In New York, Virginia, Pennsylvania, and Kentucky the senate is chosen for four years;50 in Delaware, Mississippi, and Alabama, for three years; in South Carolina, Tennessee, Ohio, Missouri, and Louisiana, biennially; in Maryland, for five years; in the other states annually.51 These diversities are as striking in the constitutions, which were framed as long ago, as the times of the revolution, as in those, which are the growth, as it were, of yesterday. No one, with any show of reason or fact, can pretend, that the liberties of the people have not been quite as safe, and the legislation quite as enlightened and pure in those states, where the senate is chosen for a long, as for a short period.
§ 719. If there were any thing in the nature of the objections, which have been under consideration, or in general theory to warrant any conclusion, it would be, that the circumstances of the states being nearly equal, and the objects of legislation the same, the same duration of office ought to be applied to all. Yet this diversity has existed without any assignable inconvenience in its practical results. It is manifest, then, that the different manners, habits, institutions, and other circumstances of a society, may admit, if they do not require, many different modifications of its legislative department, without danger to liberty on the one hand, or gross imbecility on the other. There are many guards and checks, which are silently in operation, to fortify the benefits, or to retard the mischiefs of an imperfect system. In the choice of organizations, it may be affirmed, that that is on the whole best, which secures in practice the most zeal, experience, skill, and fidelity in the discharge of the legislative functions. The example of Maryland is perhaps more striking and instructive, than any one, which has been brought under review; for it is more at variance with all the objections raised against the national senate. In Maryland, the senate is not only chosen for five years; but it possesses the exclusive right to fill all vacancies in its own body, and has no rotation during the term.52 What a fruitful source might not this be of theoretical objections, and colorable alarms, for the safety of the public liberties? Yet, Maryland continues to enjoy all the blessings of good government, and rational freedom, without molestation, and without dread. If examples are sought from antiquity, the illustrations are not less striking. In Sparta, the ephori, the annual representatives of the people, were found an over-match for a senate for life; continually gaining authority; and finally drawing all power into their own hands. The tribunes of Rome, who were the representatives of the people, prevailed, in almost every contest, with the senate for life; and in the end gained a complete triumph over it, notwithstanding unanimity among the tribunes was indispensable. This fact proves the irresistible force possessed by that branch of the government, which represents the popular will.53
§ 720. Considering, then, the various functions of the senate, the qualifications of skill, experience, and information, which are required to discharge them, and the importance of interposing, not a nominal, but a real check, in order to guard the states from usurpations upon their authority, and the people from becoming the victims of violent paroxysms in legislation; the term of six years would seem to hit the just medium between a duration of office, which would too much resist, and a like duration, which would too much invite those changes of policy, foreign and domestic, which the best interests of the country may require to be deliberately weighed, and gradually introduced. If the state governments are found tranquil, and prosperous, and safe, with a senate of two, three, four, and five years’ duration, it would seem impossible for the Union to be in danger from a term of service of six years.54
§ 721. But, as if to make assurance doubly sure, and take a bond of fate, in order to quiet the last lingering scruples of jealousy, the succeeding clause of the constitution has interposed an intermediate change in the elements of the body, which would seem to make it absolutely above exception, if reason, and not fear, is to prevail; and if government is to be a reality, and not a vision.
§ 722. It declares, “Immediately after they (the senators) shall be assembled, in consequence of the first election, they shall be divided, as equally as may be, into three classes. The seats of the senators of the first class shall be vacated at the expiration of the second year; of the second class, at the expiration of the fourth year; and of the third class, at the expiration of the sixth year, so that one third may be chosen every second year.” A proposition was made in the convention, that the senators should be chosen for nine years, one third to go out biennially, and was lost, three states voting in the affirmative, and eight in the negative; and then the present limitation was adopted by a vote of seven states against four.55 Here, then, is a clause, which, without impairing the efficiency of the senate for the discharge. of its high functions, gradually changes its members, and introduces a biennial appeal. to the states, which must for ever prohibit any permanent combination for sinister purposes. No person would probably propose a less duration of office for the senate, than double the period of the house. In effect, this provision changes the composition of two thirds of that body within that period.56
§ 723. And here, again, it is proper to remark, that experience has established the fact beyond all controversy, that the term of the senate is not too long, either for its own security, or that of the states. The reasoning of those exalted minds, which framed the constitution, has been fully realized in practice. While the house of representatives has gone on increasing, and deepening its influence with the people with an irresistible power, the senate has, at all times, felt the impulses of the popular will, and has never been found to resist any solid improvements. Let it be added, that it has given a dignity, a solidity, and an enlightened spirit to the operations of the government, which have maintained respect abroad, and confidence at home.
§ 724. At the first session of congress under the constitution, the division of the senators into three classes was made in the following manner. The senators present were divided into three classes by name, the first consisting of six persons, the second of seven, and the third of six. Three papers of an equal size. numbered one, two, and three, were, by the secretary, rolled up, and put into a box, and drawn by a committee of three persons, chosen for the purpose in behalf of the respective classes, in which each of them was placed; and the classes were to vacate their seats in the senate, according to the order of the numbers drawn for them, beginning with number one. It was also provided, that when senators should take their seats from states, which had not then appointed senators, they should be placed by lot in the foregoing classes, but in such a manner, as should keep the classes as nearly equal, as possible.57 In arranging the original classes, care was taken, that both senators from the same state should not be in the same class, so that there never should be a vacancy, at the same time, of the seats of both senators.
§ 725. As vacancies might occur in the senate during the recess of the state legislature, it became indispensable to provide for that exigency. Accordingly the same clause proceeds to declare: “And if vacancies happen by resignation, or otherwise, during the recess of the legislature of any state, the executive thereof may make temporary appointments until the next meeting of the legislature, which shall then fill such vacancies.” It does not appear, that any strong objection was urged, in the convention, against this proposition, although it was not adopted without some opposition.58 There seem to have been three courses presented for the consideration of the convention; either to leave the vacancies unfilled until the meeting of the state legislature; or to allow the state legislatures to provide at their pleasure, prospectively for the occurrence; or to confide a temporary appointment to some select state functionary or body. The latter was deemed the most satisfactory and convenient course. Confidence might justly be reposed in the state executive, as representing at once the interests and wishes of the state, and enjoying all the proper measures of knowledge and responsibility, to ensure a judicious appointment.59
§ 726. Fifthly; the qualifications of senators. The constitution declares, that “No person shall be a senator, who shall not have attained the age of thirty years, and been nine years a citizen of the United States, and who shall not, when elected, be an inhabitant of that state, for which he shall be chosen. “As the nature of the duties of a senator require more experience, knowledge, and stability of character, than those of a representative, the qualification in point of age is raised. A person may be a representative at twenty-five; but he cannot be a senator until thirty. A similar qualification of age was required of the members of the Roman senate.60 It would have been a somewhat singular anomaly in the history of free governments, to have found persons actually exercising the highest functions of government, who, in some enlightened and polished countries, would not be deemed to have arrived at an age sufficiently mature to be entitled to all the private and municipal privileges of manhood. In Rome persons were not deemed at full age until twenty-five; and that continues to be the rule in France, and Holland, and other civil law countries; and in France, by the old law, in regard to marriage full age was not attained until thirty.61 It has since been varied, and the term diminished.62
§ 727. The age of senators was fixed in the constitution at first by a vote of seven states against four; and finally, by an unanimous vote.63 Perhaps no one, in our day, is disposed to question the propriety of this limitation; and it is, therefore, useless to discuss a point, which is so purely speculative. If counsels are to be wise, the ardor, and impetuosity, and confidence of youth must be chastised by the sober lessons of experience; and if knowledge, and solid judgment, and tried integrity, are to be deemed indispensable qualifications for senatorial service, it would be rashness to affirm, that thirty years is too long a period for a due maturity and probation.64
§ 728. The next qualification is citizenship. The propriety of some limitation upon admissions to office, after naturalization, cannot well be doubted. The senate is to participate largely in transactions with foreign governments; and it seems indispensable, that time should have elapsed sufficient to wean a senator from all prejudices, resentments, and partialities, in relation to the land of his nativity, before he should be entrusted with such high and delicate functions.65 Besides; it can scarcely be presumed, that any foreigner can have acquired a thorough knowledge of the institutions and interests of a country, until he has been permanently incorporated into its society, and has acquired by the habits and intercourse of life the feelings and the duties of a citizen. And if he has acquired the requisite knowledge, he can scarcely feel that devoted attachment to them, which constitutes the great security for fidelity and promptitude in the discharge of official duties. If eminent exceptions could be stated, they would furnish no safe rule; and should rather teach us to fear our being misled by brilliancy of talent, or disinterested patriotism, into a confidence, which might betray, or an acquiescence, which might weaken, that jealousy of foreign influence, which is one of the main supports of republics. In the convention it was at first proposed, that the limitation should be four years; and it was finally altered by a vote of six states against four, one being divided, which was afterwards confirmed by a vote of eight states to three.66 This subject has been already somewhat considered in another place; and it may be concluded, by adopting the language of the Federalist on the same clause. “The term of nine years appears to be a prudent mediocrity between a total exclusion of adopted citizens, whose merit and talents may claim a share in the public confidence, and an indiscriminate and hasty admission of them, which might create a channel for foreign influence in the national councils.”67
§ 729. The only other qualification is, that the senator shall, when elected, be an inhabitant of the state, for which he is chosen. This scarcely requires any comment; for it is manifestly proper, that a state should be represented by one, who, besides an intimate knowledge of all its wants and wishes, and local pursuits, should have a personal and immediate interest in all measures touching its sovereignty, its rights, or its influence. The only surprise is, that provision was not made for his ceasing to represent the state in the senate, as soon as he should cease to be an inhabitant. There does not seem to have been any debate in the convention on the propriety of inserting the clause, as it now stands.
§ 730. In concluding this topic, it is proper to remark, that no qualification whatsoever of property is established in regard to senators, as none had been established in regard to representatives. Merit, therefore, and talent have the freest access open to them into every department of office under the national government. Under such circumstances, if the choice of the people is but directed by a suitable sobriety of judgment, the senate cannot fail of being distinguished for wisdom, for learning, for exalted patriotism, for incorruptible integrity, and for inflexible independence.68
§ 731. The next clause of the third section of the first article respects the person, who shall preside in the senate. It declares, that “the Vice President of the United States shall be president of the senate; but shall have no vote, unless they be equally divided;” and the succeeding clause, that “the senate shall choose their other officers, and also a president pro tempore, in the absence of the vice president, or when he shall exercise the office of president of the United States.”
§ 732. The original article, as first reported, authorized the senate to choose its own president, and other officers; and this was adopted in the convention.69 But the same draft authorized the president of the senate, in case of the removal, death, resignation,70 or disability of the president, to discharge his duties. When at a late period of the convention it was deemed advisable, that there should be a vice president, the propriety of retaining him, as presiding officer of the senate, seems to have met with general favor, eight states voting in the affirmative, and two only in the negative.71
§ 733. Some objections have been taken to the appointment of the vice president to preside in the senate. It was suggested in the state conventions, that the officer was not only unnecessary, but dangerous; that it is contrary to the usual course of parliamentary proceedings to have a presiding officer, who is not a member; and that the state, from which he comes, may thus have two votes, instead of one.72 It has also been coldly remarked by a learned commentator, that “the necessity of providing for the case of a vacancy in the office of president doubtless gave rise to the creation of that officer; and for want of something, else for him to do, whilst there is a president in office, he seems to have been placed, with no very great propriety, in the chair of the senate.”73
§ 734. The propriety of creating the office of vice president will be reserved for future consideration, when, in the progress of these commentaries, the constitution of the executive department comes under review.74 The reasons, why he was authorized to preside in the senate, belong appropriately to this place.
§ 735. There is no novelty in the appointment of a person to preside, as speaker, who is not a constituent member of the body, over which he is to preside. In the house of lords in England the presiding officer is the lord chancellor, or lord keeper of the great seal, or other person appointed by the king’s commission; and if none such be so appointed, then it is said, that the lords may elect. But it is by no means necessary, that the person appointed by the king should be a peer of the realm or lord of parliament.75 Nor has this appointment by the king ever been complained of, as a grievance, nor has it operated with inconvenience or oppression in practice. It is on the contrary deemed an important advantage, both to the officer, and to the house of peers, adding dignity and weight to the former, and securing great legal ability and talent in aid of the latter. This consideration done might have had some influence in the convention. The vice president being himself chosen by the states, might well be deemed, in point of age, character, and dignity, worthy to preside over the deliberations of the senate, in which the states were all assembled and represented. His impartiality in the discharge of its duties might be fairly presumed; and the employment would not only bring his character in review before the public; but enable him to justify the public confidence, by performing his public functions with independence, and firmness, and sound discretion. A citizen, who was deemed worthy of being one of the competitors for the presidency, could scarcely fail of being distinguished by private virtues, by comprehensive acquirements, and by eminent services. In all questions before the senate he might safely be appealed to, as a fit arbiter upon an equal division, in which case alone he is entrusted with a vote.
§ 736. But the strong motive for this appointment was of another sort, founded upon state jealousy, and state equality in the senate. If the speaker of the senate was to be chosen from its own members, the state, upon whom the choice would fall, might possess either more or less, than its due share of influence. If the speaker were not allowed to vote, except where there was an equal division, independent of his own vote, then the state might lose its own voice;76 if he were allowed to give his vote, and also a casting vote, then the state might, in effect, possess a double vote. Either alternative would of itself present a predicament sufficiently embarrassing. On the other band, if no casting vote were allowed in any case, then the indecision and inconvenience might be very prejudicial to the public interests, in case of an equality of votes.77 It might give rise to dangerous feuds, or intrigues, and create sectional and state agitations. The smaller states might well suppose, that their interests were less secure, and less guarded, than they ought to be. Under such circumstances, the vice president would seem to be the most fit arbiter to decide, because he would be the representative, not of one state only, but of all; and must be presumed to feel a lively interest in promoting all measures for the public good. This reasoning appears to hare been decisive in the convention, and satisfactory to the people.78 It establishes, that there was a manifest propriety in making the arrangement conducive to the harmony of the states, and the dignity of the general government. And as the senate possesses the power to make rules for its own proceedings, there is little danger, that there can ever arise any abuse of the presiding power. The danger, if any, is rather the other way, that the presiding power will be either silently weakened, or openly surrendered, so as to leave the office little more, than the barren honour of a place, without influence and without action.
§ 737. A question, involving the authority of the vice president, as presiding officer in the senate, has been much discussed in consequence of a decision recently made by that officer. Hitherto the power of preserving order during the deliberations of the senate in all cases, where the rules of the senate did not specially prescribe another mode, had been silently supposed to belong to the vice president, as an incident of office. It had never been doubted, much less denied, from the first organization of the senate, and its existence had been assumed, as an inherent quality, constitutionally delegated, subject only to such rules, as the senate should from time to time prescribe. In the winter session of 1826, the vice president decided in effect, that, as president of the senate, he had no power of preserving order, or of calling any member to order, for words spoken in the course of debate, upon his own authority, but only so far, as it was given, and regulated by the rules of the senate.79 This was a virtual surrender of the presiding power (if not universally, at least in that case) into the hands of the senate; and disarmed the officer even of the power of self-protection from insult or abuse, unless the senate should choose to make provision for it. If, therefore, the senate should decline to confer the power of preserving order, the vice president might become a mere pageant and cipher in that body. If, indeed, the vice president had not this power virtute officii, there was nothing to prevent the senate from confiding it to any other officer chosen by itself. Nay, if the power to preside had not this incident, it was difficult to perceive, what other incident it had. The power to put questions, or to declare votes, might just as well, upon similar reasoning, be denied, unless it was expressly conferred. The power of the senate to prescribe rules could not be deemed omnipotent. It must be construed with reference to, and in connection with the power to preside; and the latter, according to the common sense of mankind, and of public bodies, was always understood to include the power to keep order; upon the clear ground, that the grant of a power includes the authority to make it effectual, and also of self-preservation.
§ 738. The subject at that time attracted a good deal of discussion; and was finally, as a practical inquiry, put an end to in 1828, by a rule made by the senate, that “every question of order shall be decided by the president without debate, subject to appeal to the senate.”80 But still the question, as one of constitutional right and duty, liable to be regulated, but not to be destroyed by the senate, deserves, and should receive, the most profound investigation of every man solicitous for the permanent dignity and independence of the vice presidency.81
§ 739. The propriety of entrusting the senate with the choice of its other officers, and also of a president pro tempore in the absence of the vice president, or when he exercises the office of president, seems never to have been questioned; and indeed is so obvious, that it is wholly unnecessary to vindicate it. Confidence between the senate and its officers, and the power to make a suitable choice, and to secure a suitable responsibility for the faithful discharge of the duties of office, are so indispensable for the public good, that the provision will command universal assent, as soon as it is mentioned. It has grown into a general practice for the vice president to vacate the senatorial chair a short time before the termination of each session, in order to enable the senate to choose a president pro tempore, who might already be in office, if the vice president in the recess should be called to the chair of state. The practice is hounded in wisdom and sound policy, as it immediately provides for an exigency, which may well be expected to occur at any time; and prevents the choice from being influenced by temporary excitements or intrigues, arising from the actual existence of a vacancy. As it is useful in peace to provide for war; so it is likewise useful in times of profound tranquillity to provide for political agitations, which may disturb the public harmony.
§ 740. The next clause of the third section of the first article respects the subject of impeachment. It is as follows: “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.”
§ 741. Upon the subject of impeachments something has already been said, in treating of that branch of the constitution, which delegates to the house of representatives the sole power of impeachment. Upon the propriety of delegating the power it is unnecessary to enlarge. But the next inquiry naturally presented is, by what tribunal shall an impeachment be tried? It is obviously incorrect in theory, and against the general principles of justice, that the same tribunal should at once be the accusers and the judges; that they should first decide upon the verity of the accusation, and then try the offenders.82 The first object in the administration of justice is, or ought to be, to secure an impartial trial. This is so fundamental a rule in all republican governments, that it can require little reasoning to support it; and the only surprise is, that it could ever have been overlooked.
§ 742. The practice of impeachments seems to have been originally derived into the common law from the Germans, who, in their great councils, sometimes tried capital accusations relating to the public. Licet apud concilium accusare, quoque et discrimen capitis intendere.83 When it was adopted in England, it received material improvements. In Germany, and also in the Grecian and Roman republics, the people were, at the same time, the accusers and the judges; thus trampling down, at the outset, the best safeguards of the rights and lives of the citizens.84 But in England, the house of commons is invested with the sole power of impeachment, and the house of lords with the sole power of trial. Thus, a tribunal of high dignity, independence, and intelligence, and not likely to be unduly swayed by the influence of popular opinion, is established to protect the accused, and secure to him a favorable hearing.85 Montesquieu has deemed such a tribunal worthy of the highest praise.86 Machiavel has ascribed the ruin of the republic of Florence to the want of a mode of providing by impeachment against those, who offend against the state. An American commentator has hazarded the extraordinary remark, that, “If the want of a proper tribunal for the trial of impeachments can endanger the liberties of the United States, some future Machiavel may perhaps trace their destruction to the same source.”87 The model, from which the national court of impeachments is borrowed, is, doubtless, that of Great Britain; and a similar constitutional distribution of the power exists in many of the state governments.88
§ 743. The great objects, to be attained in the selection of a tribunal for the trial of impeachments, are, impartiality, integrity, intelligence, and independence. If either of these is wanting, the trial must be radically imperfect. To ensure impartiality, the body must be in some degree removed from popular power and passions, from the influence of sectional prejudice, and from the more dangerous influence of mere party spirit. To secure integrity, there must be a lofty sense of duty, and a deep responsibility to future times, as well as to God. To secure intelligence, there must be age, experience, and high intellectual powers, as well as attainments. To secure independence, there must be numbers, as well as talents, and a confidence resulting at once from permanency of place, and dignity of station, and enlightened patriotism. Does the senate combine, in a suitable degree, all these qualifications? Does it combine them more perfectly, than any other tribunal, which could be constituted? What other tribunal could be entrusted with the authority? These are questions of the highest importance, and of the most frequent occurrence. They arose in the convention, and underwent a full discussion there. They were again deliberately debated in the state conventions; and they have been at various times since agitated by jurists and statesmen, and political bodies. Few parts of the constitution have been assailed with more vigor; and few have been defended with more ability. A learned commentator, at a considerable distance of time after the adoption of the constitution, did not scruple to declare, that it was a most inordinate power, and in some instances utterly incompatible with the other functions of the senate;89 and a similar opinion has often been propagated with an abundance of zeal.90 The journal of the convention bears testimony also to no inconsiderable diversity of judgment on the subject in that body.
§ 744. The subject is itself full of intrinsic difficulty in a government purely elective. The jurisdiction is to be exercised over offences, which are committed by public men in violation of their public trust and duties. Those duties are, in many cases, political; and, indeed, in other cases, to which the power of impeachment will probably be applied, they will respect functionaries of a high character, where the remedy would otherwise be wholly inadequate, and the grievance be incapable of redress. Strictly speaking, then, the power partakes of a political character, as it respects injuries to the society in its political character; and, on this account, it requires to be guarded in its exercise against the spirit of faction, the intolerance of party, and the sudden movements of popular feeling. The prosecution will seldom fail to agitate the passions of the whole community, and to divide it into parties, more or less friendly, or hostile to the accused; The press, with its unsparing vigilance, will arrange itself on either side, to control, and influence public opinion; and there will always be some danger, that the decision will be regulated more by the comparative strength of parties, than by the real proofs of innocence or guilt.91
§ 745. On the other hand, the delicacy and magnitude of a trust, which so deeply concerns the political existence and reputation of every man engaged in the administration of public affairs, cannot be overlooked.92 It ought not to be a power so operative and instant, that it may intimidate a modest and conscientious statesman, or other functionary from accepting office; nor so weak and torpid, as to be capable of lulling offenders into a general security and indifference. The difficulty of placing it rightly in a government, resting entirely on the basis of periodical elections, will be more strikingly perceived, when it is considered, that the ambitious and the cunning will often make strong accusations against public men the means of their own elevation to office; and thus give an impulse to the power of impeachment, by pre-occupying the public opinion. The convention appears to have been very strongly impressed with the difficulty of constituting a suitable tribunal; and finally came to the result, that the senate was the most fit depositary of this exalted trust. In so doing, they had the example before them of several of the best considered state constitutions; and the example, in some measure, of Great Britain. The most strenuous opponent cannot, therefore, allege, that it was a rash and novel experiment; the most unequivocal friend must, at the same time, admit, that it is not free from all plausible objections.93
§ 746. It will be well, therefore, to review the ground, and ascertain, how far the objections are well founded; and whether any other scheme would have been more unexceptionable. The principal objections were as follows: (1.) That the provision confounds the legislative and judiciary authorities in the same body, in violation of the well known maxim, which requires a separation of them. (2.) That it accumulates an undue proportion of power in the senate, which has a tendency to make it too aristocratic. (3.) That the efficiency of the court will be impaired by the circumstances, that the senate has an agency in appointment to office. (4.) That its efficiency is still further impaired by its participation in the functions of the treaty-making power.94
§ 747. The first objection, which relates to the supposed necessity of an entire separation of the legislative and judicial powers, has been already discussed in its most general form in another place. It has been shown, that the maxim does not apply to partial intermixtures of these powers; and that such an intermixture is not only unobjectionable, but is, in many cases, indispensable for the purpose of preserving the due independence of the different departments of government, and their harmony and healthy operation in the advancement of the public interests, and the preservation of the public liberties.95 The question is not so much, whether any intermixture is allowable, as whether the intermixture of the authority to try impeachments with the other functions of the senate is salutary and useful. Now, some of these functions constitute a sound reason for the investment of the power in this branch. The offences, which the power of impeachment is designed principally to reach, are those of a political, or of a judicial character. They are not those, which lie within the scope of the ordinary municipal jurisprudence of a country. They are founded on different principles; are governed by different maxims; are directed to different objects; and require different remedies from those, which ordinarily apply to crimes.96 So far as they are of a judicial character, it is obviously more safe to the public to confide them to the senate, than to a mere court of law. The senate may be presumed always to contain a number of distinguished lawyers, and probably some persons, who have held judicial stations. At the same time they will not have any undue and immediate sympathy with the accused from that common professional, or corporation spirit, which is apt to pervade those, who are engaged in similar pursuits and duties.
§ 748. In regard to political offences, the selection of the senators has some positive advantages. In the first place, they may be fairly presumed to have a more enlarged knowledge, than persons in other situations, of political functions, and their difficulties, and embarrassments; of the nature of diplomatic rights and duties; of the extent, limits, and variety of executive powers and operations; and of the sources of involuntary error, and undesigned excess, as contradistinguished from those of meditated and violent disregard of duty and right. On the one hand, this very experience and knowledge will bring them to the trial with a spirit of candor and intelligence, and an ability to comprehend, and scrutinize the charges against the accused; and, on the other hand, their connection with, and dependence on, the states, will make them feel a just regard for the defence of the rights, and the interests of the states and the people. And this may properly lead to another remark; that the power of impeachment is peculiarly well fitted to be left to the final decision of a tribunal composed of representatives of all the states, having a common interest to maintain the rights of all; and yet, beyond the reach of local and sectional prejudices. Surely, it will not readily be admitted by the zealous defenders of state rights and state jealousies, that the power is not safe in the hands of all the states, to be used for their own protection and honour.
§ 749. The next objection regards the undue accumulation of power in the senate from this source connected with other sources. So far as any other powers are incompatible with, and obstructive of, the proper exercise of the power of impeachment, they will fall under consideration under another head. But it is not easy to perceive, what the precise nature and extent of the objection is. What is the due measure or criterion of power to be given to the senate? What is the standard, which is to be assumed? If we are to regard theory, no power in any department of government is undue, which is safe and useful in its actual operations, which is not dangerous in its form, or too wide in its extent. It is incumbent, then, on those, who press the objection, to establish, by some sound reasoning, that the power is not safe, but mischievous or dangerous.97 Now, the power of impeachment is not one expected in any government to be in constant or frequent exercise. It is rather intended for occasional and extraordinary cases, where a superior power, acting for the whole people, is put into operation to protect their rights, and to rescue their liberties from violation. Such a power cannot, if its actual exercise is properly guarded, in the hands of functionaries, responsible and wise, be justly said to be unsafe or dangerous; unless we are to say, that no power, which is liable to abuse, should be, under any circumstances, delegated. The senators cannot be presumed in ordinary decency, not to be a body of sufficient wisdom to be capable of executing, the power; and their responsibility arises from the moderate duration of their office, and their general stake in the interests of the community, as well as their own sense of duty and reputation. If, passing from theory, resort is had to the history of other governments, there is no reason to suppose, that the possession of the power of trying impeachments has ever been a source of undue aristocratical authority, or of dangerous influence. The history of Great Britain has not established, that the house of lords has become a dangerous depositary of influence of any sort from its being a high court of impeachments. If the power of impeachment has ever been abused, it has not trampled upon popular rights. If it has struck down high victims, it has followed, rather than led, the popular opinion. If it has been an instrument of injustice, it has been from yielding too much, and not too little. If it has sometimes suffered an offender to escape, it has far more frequently purified the fountains of justice, and brought down the favorite of courts, and the perverter of patronage to public humiliation and disgrace. And to bring the case home to our own state governments, the power in our state senates has hitherto been without danger, though certainly not without efficiency.
§ 750. The next objection is, that the power is not efficient or safe in connection with the agency of the senate in appointments. The argument is, that senators, who have concurred in an appointment, will be too indulgent judges of the conduct of the men, in whose efficient creation they have participated.98 The same objection lies with equal force against all governments, which entrust the power of appointment to any persons, who have a right to remove them at pleasure. It might in such cases be urged, that the favoritism of the appointor would always screen the misbehavior of the appointees. Yet no one doubts the fitness of entrusting such a power; and confidence is reposed, and properly reposed, in the character and responsibility of those, who make the appointment.99 The objection is greatly diminished in its force by the consideration, that the senate has but a slight participation in the appointments to office. The president is to nominate and appoint; and the senate are called upon merely to confirm, or reject the nomination. They have no right of choice; and therefore must feel less solicitude, as to the individual, who is appointed.100 But, in fact, the objection is itself not well founded; for it will rarely occur, that the persons, who have concurred in the appointment, will be members of the senate at the time of the trial. As one third is, or may be, changed every two years, the case is highly improbable; and still more rarely can the fact of the appointment operate upon the minds of any considerable number of the senators. What possible operation could it have upon the judgment of a man of reasonable intelligence and integrity, that he had assented to the appointment of any individual, of whom he ordinarily could have little, or no personal knowledge, and in whose appointment he had concurred upon the judgment and recommendation of others? Such an influence is too remote to be of much weight in human affairs; and if it exists at all, it is too common to form a just exception to the competency of any forum.
§ 751. The next objection is to the inconvenience of the union of the power with that of making treaties. It has been strongly urged, that ambassadors are appointed by the president, with the concurrence of the senate; and if he makes a treaty, which is ratified by two thirds of the senate, however corrupt or exceptionable his conduct may have been, there can be little chance of redress by an impeachment. If the treaty be ratified, and the minister be impeached for concluding it, because it is derogatory to the honour, the interest, or perhaps to the sovereignty of the nation, who (it is said) are to be his judges? The senate, by whom it has been approved and ratified? If the president be impeached for giving, improper instructions to the minister, and for ratifying the treaty pursuant to his instructions, who are to be his judges? The senate, to whom the treaty has been submitted, and by whom it has been approved and ratified?101 This would be to constitute the senators their own judges in every case of a corrupt or perfidious execution of their trust.102
§ 752. Such is the objection pressed with unusual earnestness, and certainly having a more plausible foundation, than either of the preceding. It presupposes, however, a state of facts of a very extraordinary character, and having, put an extreme case, argues from it against the propriety of any delegation of the power, which in such a case might be abused. This is not just reasoning in any case; and least of all in cases respecting the polity and organization of governments; for in all such cases there must be power reposed in some person or body; and wherever it is reposed, it may be abused. Now, the case put is either one, where the senate has ratified an appointment or treaty, innocently believing it to be unexceptionable, and beneficial to the country; or where the senate has corruptly ratified it, and basely betrayed their trust. In the former case, the senate having acted with fidelity, according to their best sense of duty, would feel no sympathy for a corrupt executive or minister, who had acted with fraud or dishonor unknown to them. If the treaty were good, they might still desire to punish those, who had acted basely or corruptly in negotiating it. If bad, they would feel indignation for the imposition practiced upon them by an executive, or minister, in whom they placed confidence, instead of sympathy for his misconduct. They would feel, that they had been betrayed into an error; and would rather have a bias against, than in favor of the deceiver.
§ 753. If, on the other hand, the senate had corruptly assented to the appointment and treaty, it is certain, that there would remain no effectual remedy by impeachment, so long as the same persons remained members of the senate. But even here, two years might remove a large number of the guilty conspirators; and public indignation would probably compel the resignation of all. But is such a case supposable? If it be, then there are others quite within the same range of supposition, and equally mischievous, for which there can be no remedy. Suppose a majority of the senate, or house of representatives, corruptly pass any law, or violate the constitution, where is the remedy? Suppose the house of representatives carry into effect and appropriate money corruptly in aid of such a corrupt treaty, where is the remedy? Why might it not be as well urged, that the house of representatives ought not to be entrusted with the power of impeachment, because they might corruptly concur with the executive in an injurious or unconstitutional measure? or might corruptly aid the executive in negotiating a treaty by public resolves, or secret instructions? The truth is, that all arguments of this sort, which suppose a combination of the public functionaries to destroy the liberty of the people, and the powers of the government, are so extravagant, that they go to the overthrow of all delegated power; or they are so rare, and remote in practice, that they ought not to enter, as elements, into any structure of a free government. The constitution supposes, that men may be trusted with power under reasonable guards. It presumes, that the senate and the executive will no more conspire to overthrow the government, than the house of representatives. It supposes the best pledges for fidelity to be in the character of the individuals, and in the collective wisdom of the people in the choice of agents. It does not in decency presume, that the two thirds of the senate, representing the states, will corruptly unite with the executive, or abuse their power. Neither does it suppose, that a majority of the house of representatives will corruptly refuse to impeach, or corruptly pass a law.103
§ 754. But passing by, for the present, this general reasoning on the objections stated, let us see, if any other and better practical scheme for the trial of impeachments can be devised. One scheme might be to entrust it to the Supreme Court of the United States; another, to entrust it to that court, and the senate jointly; a third, to entrust it to a special tribunal appointed permanently, or temporarily for the purpose. If it shall appear, that to all of these schemes equally strong objections may be made, (and probably none more unexceptionable could be suggested,) the argument in favor of the senate will acquire more persuasive cogency.
§ 755. First, the entrusting of the trial of impeachments to the Supreme Court. This was, in fact, the original project in the convention.104 It was at first agreed, that the jurisdiction of the national judiciary should extend to impeachments of national officers.105 Afterwards this clause was struck out;106 and the power to impeach was given to the house of representatives;107 and the jurisdiction of the trial of impeachments was also given to the Supreme Court.108 Ultimately, the same jurisdiction was assigned to the senate by the vote of nine states against two.109
§ 756. The principal reasons, which prevailed in the convention in favor of the final decision, and against vesting the jurisdiction in the Supreme Court, may fairly be presumed to have been those, which are stated in the Federalist. Its language is as follows: “Where else, than in the senate, could have been found a tribunal sufficiently dignified, or sufficiently independent? What other body would be likely to feel confidence enough in its own situation, to preserve, unawed and uninfluenced, the necessary impartiality between an individual accused, and the representatives of the people, his accusers? Could the Supreme Court have been relied upon, as answering this description? It is much to be doubted, whether the members of that tribunal would, at all times, be endowed with so eminent a portion of fortitude, as would be called for in the exercise of so difficult a task. And it is still more to be doubted, whether they would possess a degree of credit and authority, which might, on certain occasions, be indispensable towards reconciling the people to a decision, which should happen to clash with an accusation brought by their immediate representatives. A deficiency in the first would be fatal to the accused; in the last, dangerous to the public tranquillity. The hazard in both these respects could only be avoided by rendering that tribunal more numerous, than would consist with a reasonable attention to economy. The necessity of a numerous court for the trial of impeachments is equally dictated by the nature of the proceeding. This can never be tied down to such strict rules, either in the delineation of the offence by the prosecutors, or in the construction of it by the judges, as in common cases serve to limit the discretion of courts in favor of personal security. There will be no jury to stand between the judges, who are to pronounce the sentence of the law, and the party, who is to receive, or suffer it. The awful discretion, which a court of impeachments must necessarily have, to doom to honour or to infamy the most confidential, and the most distinguished characters of the community, forbids the commitment of the trust to a small number of persons. These considerations seem alone to authorize a conclusion, that the Supreme Court would have been an improper substitute for the senate, as a court of impeachments.
§ 757. “There remains a further consideration, which will not a little strengthen this conclusion. It is this. The punishment, which may be the consequence of conviction upon impeachment, is not to terminate the chastisement of the offender. After having been sentenced to a perpetual ostracism from the esteem, and confidence, and honours, and emoluments of his country, he will still be liable to prosecution and punishment in the ordinary course of law. Would it be proper, that the persons, who had disposed of his fame, and his most valuable rights, as a citizen, in one trial, should, in another trial, for the same offence, be also the disposers of his life and fortune? Would there not be the greatest reason to apprehend, that error in the first sentence would be the parent of error in the second sentence? That the strong bias of one decision would be apt to overrule the influence of any new lights, which might be brought to vary the complexion of another decision? Those, who know any thing of human nature, will not hesitate to answer these questions in the affirmative; and will be at no loss to perceive, that by making the same persons judges in both cases, those, who might happen to be the objects of prosecution, would, in a great measure, be deprived of the double security intended them by a double trial. The loss of life and estate would often be virtually included in a sentence, which in its terms imported nothing more, than dismission from a present, and disqualification for a future office. It may be said, that the intervention of a jury in the second instance would obviate the danger. But juries are frequently influenced by the opinions of judges. They are sometimes induced to find special verdicts, which refer the main question to the decision of the court. Who would be willing to stake his life and his estate upon a verdict of a jury acting under the auspices of judges, who had predetermined his guilt?”110
§ 758. That there is great force in this reasoning all persons of common candor 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 heath 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, etc. 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 behavior; and who could neither be presumed to have participated in the crime, nor to have prejudged the criminal?”111
§ 759. This reasoning also has much force in it; but in candor 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 participes 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 misdemeanors, 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 connection 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 peculiarly to 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 favor, 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 clamor against it, but might create a general dread of its influence, which could hardly fail to disturb the salutary effects of its ordinary functions.112 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 behavior, though in some respects most favorable 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 misdemeanors 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.113 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 mere technical roles, 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.114
§ 764. In the next place, the very functions, involving political interests and connections, 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 charges 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.”115
§ 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 such 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?116
§ 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 favor 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.117 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 cooperation 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 cooperation 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 component 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 favor 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.118 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.119 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?
§ 770. The Federalist has spoken with unusual freedom and directness on this subject. “The first scheme,” (that is, of vesting the power in some permanent national officers,) “will be reprobated by every man, who can compare the extent of the public wants with the means of supplying them. The second,” (that is, of vesting it in state officers,) “will be espoused with caution by those, who will seriously consider the difficulties of collecting men dispersed over the whole Union; the injury to the innocent from the procrastinated determination of the charges, which might be brought against them; the advantage to the guilty from the opportunities, which delay would afford for intrigue and corruption; and in some cases the detriment to the state from the prolonged inaction of men, whose firm and faithful execution of their duty might have exposed them to the persecution of an intemperate or designing majority in the house of representatives. Though this latter supposition may seem harsh, and might not be likely often to be verified; yet it ought not to be forgotten, that the demon of faction will, at certain seasons, extend his scepter over all numerous bodies of men.” And the subject is concluded with the following reflection. “If mankind were to resolve to agree in no institution of government, until every part of it had been adjusted to the most exact standard of perfection, society would soon become a general scene of anarchy, and the world a desert.”120
§ 771. A scheme somewhat different from either of the foregoing has been recommended by a learned commentator,121 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 impaneling 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 favor 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,”122 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.123 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.124 In the language of a learned commentator, it may be said, that of all the departments of the government, “none will be found more suitable to exercise this peculiar jurisdiction, than the senate. Although, like their 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 part, 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 connection 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.”125
§ 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.126 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.127 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 limes, 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.128 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 or acquittal is by a mere majority;129 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.”130 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.131 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?
§ 779. The next clause is, that “Judgment in cases of impeachment shall not extend further, than to removal from office, and disqualification to hold and enjoy any office of honour, trust, or profit, under the United States. But the party convicted shall nevertheless be liable and subject to indictment, trial, judgment, and punishment, according to law.”
§ 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.132 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.133
§ 783. As the offences, to which the remedy of impeachment has been, and will continue to be principally applied, are of a political nature,134 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 infrequently in blood. Lord Stafford, 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.135 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.136
§ 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 misdemeanors? 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.137 The adoption of it was not, however, without some difference of opinion; for it passed only by the vote of seven states against three.138 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 connection, 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 misdemeanors.”139
§ 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 misdemeanors only.140 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.141 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.142
§ 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.143 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.144 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.145
§ 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.146 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;147 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.148 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,” etc. 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 favor 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.”149 It is far from being certain, that the convention itself ever contemplated, that senators or representatives should be subjected to impeachment;150 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 meditated 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,” etc. “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.”151 And it is certain, that in some of the state conventions the members of congress were admitted by the friends of not to be objects of the impeaching power.152
§ 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.153
§ 794. The next inquiry is, what are impeachable offences? They are “treason, bribery, or other high crimes and misdemeanors.” 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 misdemeanors? 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 misdemeanors, 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 favor of the party, until congress have made a legislative declaration and enumeration of the offences, which shall be deemed high crimes and misdemeanors? If so, then, as has been truly remarked,154 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.155 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 misdemeanor. 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 misdemeanors; 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 misdemeanors.
§ 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 birthright, 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.156 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.157 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.”158 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 misdemeanors.159 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 misdemeanors, is to be ascertained by a recurrence to that great basis of American jurisprudence.160 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.161
§ 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 misdemeanors 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.162 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 dishonorable measures; or a confidential adviser of his sovereign to have obtained exorbitant grants, or incompatible employments; – these have been all deemed impeachable offences.163 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 favoritism, 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.164 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.165 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,166 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 color 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.167 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 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 a member.”168
§ 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 misdemeanor, 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.169 The decision, however, turned upon another point, viz., that a senator was not an impeachable officer.170
§ 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 misdemeanors;” 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.171 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.172 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.173
§ 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.174 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.175
§ 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 reason ably left to the high tribunal, constituting the court of impeachment, when the occasion shall arise.
§ 804. This subject may be concluded by a summary statement of the mode of proceeding in the institution and trial of impeachments, as it is of rare occurrence, and not governed by the formalities of the ordinary prosecutions in courts at law.
§ 805. When, then, an officer is known or suspected to be guilty of malversation in office, some member of the house of representatives usually brings forward a resolution to accuse the party, or for the appointment of a committee, to consider and report upon the charges laid against him. The latter is the ordinary course; and the report of the committee usually contains, if adverse to the party, a statement of the charges, and recommends a resolution, that he be impeached176 therefor. If the resolution is adopted by the house, a committee is then appointed to impeach the party at the bar of the senate, and to state, that the articles against him will be exhibited in due time, and made good before the senate; and to demand, that the senate take order for the appearance of the party to answer to the impeachment.177 This being accordingly done, the senate signify their willingness to take such order; and articles are then prepared by a committee, under the direction of the house of representatives, which, when reported to, and approved by the house, are then presented in the like manner to the senate; and a committee of managers are appointed to conduct the impeachment.178 As soon as the articles are thus presented, the senate issue a process, summoning the party to appear at a given day before them, to answer the articles.179 The process is served by the sergeant-at-arms of the senate, and due return is made thereof under oath.
§ 806. The articles thus exhibited need not, and indeed do not, pursue the strict form and accuracy of an indictment.180 They are sometimes quite general in the form of the allegations; but always contain, or ought to contain, so much certainty, as to enable the party to put himself upon the proper defence, and also, in case of an acquittal, to avail himself of it, as a bar to another impeachment. Additional articles may be exhibited, perhaps, at any stage of the prosecution.181
§ 807. When the return day of the process for appearance has arrived, the senate resolve themselves into a court of impeachment, and the senators are at that time, or before, solemnly sworn, or affirmed, to do impartial justice upon the impeachment, according to the constitution and laws of the United States. The person impeached is then called to appear and answer the articles. If he does not appear in person, or by attorney, his default is recorded, and the senate may proceed ex parte to the trial of the impeachment. If he does appear in person, or by attorney, his appearance is recorded. Counsel for the parties are admitted to appear, and to be heard upon an impeachment.182
§ 808. When the party appears, he is entitled to be furnished with a copy of the articles of impeachment, and time is allowed him to prepare his answer thereto. The answer, like the articles, is exempted from the necessity of observing great strictness of form. The party may plead, that he is not guilty, as to part, and make a further defence, as to the residue; or he may, in a few words, saving all exceptions, deny the whole charge or charges;183 or he may plead specially, in justification or excuse of the supposed offences, all the circumstance attendant upon the case. And he is also indulged with the liberty of offering argumentative reasons, as well as facts, against the charges in support, and as part, of his answer, to repel them. It is usual to give a full and particular answer separately to each article of the accusation.184
§ 809. When the answer is prepared and given in, the next regular proceeding is, for the house of representatives to file a replication to the answer in writing, in substance denying the truth and validity of the defence stated in the answer, and averring the truth and sufficiency of the charges, and the readiness of the house to prove them at such convenient time and place, as shall be appointed for that purpose by the senate.185 A time is then assigned for the trial; and the senate, at that period or before, adjust the preliminaries and other proceedings proper to be had, before and at the trial, by fixed regulations; which are made known to the house of representatives, and to the party accused.186 On the day appointed for the trial, the house of representatives appear at the bar of the senate, either in a body, or by the managers selected for that purpose, to proceed with the trial.187 Process to compel the attendance of witnesses is previously issued at the request of either party, by order of the senate; and at the time and place appointed, they are bound to appear and give testimony. On the day of trial, the parties being ready, the managers to conduct the prosecution open it on behalf of the house of representatives, one or more of them delivering an explanatory speech, either of the whole charges, or of one or more of them. The proceedings are then conducted substantially, as they are upon common judicial trials, as to the admission or rejection of testimony, the examination and cross-examination of witnesses, the rules of evidence, and the legal doctrines, as to crimes and misdemeanors.188 When the whole evidence has been gone through, and the parties on each side have been fully heard, the senate then proceed to the consideration of the case. If any debates arise, they are conducted in secret; if none arise, or after they are ended, a day is assigned for a final public decision by yeas and nays upon each separate charge in the articles of impeachment. When the court is assembled for this purpose, the question is propounded to each member of the senate by name, by the president of the senate, in the following manner, upon each article, the same being first read by the secretary of the senate. “Mr. – , how say you, is the respondent guilty, or not guilty of a high crime and misdemeanor, as charged in the article of impeachment?” Whereupon the member rises in his place, and answers guilty, or not guilty, as his opinion is. If upon no one article two thirds of the senate decide, that the party is guilty, he is then entitled to an acquittal, and is declared accordingly to be acquitted by the president of the senate. If he is convicted of all, or any of the articles, the senate then proceed to fix, and declare the proper punishment.189 The pardoning power of the president does not, as will be presently seen, extend to judgments upon impeachment; and hence, when once pronounced, they become absolute and irreversible.190
§ 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 vigor, 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.191 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.192 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 reelect 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.