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If he were not allowed to vote, except upon an equal division of the Senate, then the State would be deprived of his vote; if he were entitled to vote, and also, in such cases, to give a casting vote, then the State would, in effect, possess a double vote. If he could only vote as a member, then, in case of an equality of votes, much inconvenience might arise from the indecision of the Senate. It might give rise to dangerous feuds, or intrigues, and create State, or national agitations. It would be far better, in such an equality of votes, to refer the decision to a common arbiter, like the Vice Presi. dent, chosen by all the States. The permanent appointment of one of the Senators, as President, during his official term, might give him an undue influence, and control over
An appointment for a single session only would subject the body to agitations, and intrigues, incompatible with its own dignity and convenience, and might introduce irregularities, unfavorable to an impartial course of proceedings, founded upon experience, and an accurate knowledge of the duties of the office.
Impeachments. $83. The next clause respects the judicial power of the Senate to try impeachments. 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.' 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 is essentially defective. To ensure impartiality, the body must be, in some degree, removed from popular power and passions, from the influences of sectional prejudice, and from the still more dangerous influence of party spirit. To secure integrity, there must be a lofty sense of duty, and a deep responsibility to God, as well as to future ages. To secure intelligence, there must be age, experience, and high intellectual powers and attainments. To secure independence, there must be numbers, as well as talents, and a confidence, resulting from permanency of place, dignity of station, and consciousness of patriotism. The Senate, from its very organization, must be presumed to possess all these qualities in a high degree, and, certainly, in a degree not surpassed by any other political body. If it should be asked, why the power to try impeachments might not have been confided to a Court of Law of the highest grade, it may be answered, that such a tribunal is not, on various accounts, so fit for the purpose. In the first place, the offences to be tried are generally of a political character, such as a Court of Law is not ordinarily accustomed to examine, and such as its common functions exclude. The Senate, on the contrary, necessarily becomes familiar with such subjects. In the next place, the strict course of proceedings in Courts of Law is ill adapted to the searching out of political delinquencies.
In the next place, political functions are incompatible with th the due discharge of other judicial duties. They have a ten
thi dency to involve the Judges in party interests and contests, and thi thereby to withdraw their minds from those studies and ath habits, which are most important, in the ordinary administrastici tion of justice, to secure independence and impartiality. In hoi the next place, the Judges are themselves appointed by the Exent ecutive, and may be called upon to try cases, in which he is the iba party impeached, or some officer enjoying his confidence, and rity acting under his orders. In the last place, a Judge may be
the very party impeached; and, under such circumstances, a Court may be presumed to labor under as strong feelings and sympathies for the accused, as any other body. It could never be desirable to call upon the Supreme Court to try an impeachment of one of its own members for an official misdemeanor. So that, to say the least, the tribunal selected by the Constitution is as unobjectionable, as any which could be pointed out.
$ 84. The mode of trial is also provided for. The Senate, when sitting as a Court of Impeachment, 'shall be on oath or affirmation.' This is required in all cases of trials in the common Courts of Law. Jurymen, as well as Judges, are always under oath or affirmation, in the discharge of their respective duties. It is a sanction, appealing to their consciences, and calling upon them to reflect well upon their duties. The provision was deemed the more necessary,
because in trials of Impeachment in England, the House of Lords (which is the High Court of Impeachment) is not under oath ; but each Peer makes a declaration simply upon his honor ; though if he be a witness in any common trial, he must give his testimony on oath.
$ 85. The next provision is, When the President of the * United States is tried, the Chief Justice shall preside.' The reason of this clause is, to exclude the Vice President, who might be supposed to have a natural desire to succeed to the office, from being instrumental, or having any influence, in procuring a conviction of the Chief Magistrate. It is added, “And no person shall be convicted, without the con
currence of two thirds of the members present. The reason for this restriction doubtless is, that if a bare majority only were sufficient to convict of political offences, 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. In cases of trials by Jury, absolute unanimity is required to the conviction of a crimi
nal; in cases of legislation, a majority only is required for a decision ; and, here, an intermediate number, between unanimity and a majority, is adopted. If any thing short of unanimity ought to be allowed, two thirds seems a reasonable limitation.
§ 86. The next clause respects the judgment to be rendered in cases of impeachment. — Judgment in cases of 'impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of 'honor, 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. As the principal object of the power of impeachment is to punish political crimes, the restriction of the punishment to mere removal and disqualification from office seems appropriate, and sufficient. Probably the abuses, to which an unlimited power of punishment might lead in times of popular excitement, and party strife, introduced this restriction. And the experience of the parent country had demonstrated, that it could be applied against a particular victim with a cruelty and harshness, wholly incompatible with national justice, and public honor. Yet persons, who are guilty of public offences, ought not wholly to escape the proper punishment, affixed by law in other cases. And, therefore, they are made amenable, like their fellow-citizens, to the common course of trial and punishment in the Courts of Law. This provision was the more necessary, because it might otherwise be contended that they could not, according to a known maxim of law, be twice tried and punished for the same offence. And here, again, the wisdom of the Constitution, in excluding the Courts of law from the trial of impeachments, is shown. For, if the same Court should re-try the cause, they would already have decided upon the party's guilt; and, if an inferior Court should try it, the influence of the superior Court would be apt to have an undue predominance over it.
$ 87. In order to complete our review of the subject of impeachments, it is necessary to cite a clause in a subsequent part of the Constitution, (Art, 2, Sect. 4, declaring, who shall be liable to impeachment, and for what offences. "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.'
$ 88. From this clause it appears, that the power of impeachment does not extend to any, but civil officers of the United States, including the President, and Vice President. In England, it extends to all persons, whether peers or commoners, and whether officers or not. There seems a peculiar propriety, in a republican Government, 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 criines and offences laid to their charge, when not holding any official character. They might, otherwise, be subject to gross political oppressions, and prosecutions, which might ruin their fortune, or subject them to unjustifiable odiums. When a person accepts office, he may fairly be held to consent to a waiver of this privilege ; and there can be no reasonable objection on his part to a trial by impeachment, since it can go no further than a removal from office, and a disqualification to hold office.
§ 89. The offences to which impeachments extend, are, "treason, bribery, and other high crimes, and misdemeanors.' No person can reasonably doubt the propriety of the removal, and disqualification from office, of a person, who is guilty of treason, which aims at the overthrow of the Government, or of bribery, which corrupts its due administration. And there, doubtless, are other high crimes and misdemeanors, to which the power of impeachment may properly apply, since