not dependent on the pleasure of him who appoints the judges, nor are they to be influenced by the authority of the accuser in a case of this sort more than in any other, for with us the people are considered as the accusers in all cases whatever. In England, the king is the accuser, (except in the instance now under consideration,) and all offences are charged to have been committed against his peace, his crown and dignity.

Still less are the weight. and influence of any man, however exalted his station, or great his wealth, likely to deter our judges from an impartial administration of justice.

Yet although the reasons are not equally cogent, they will be found on examination sufficient to warrant the introduction of the system into our code.

We shall now proceed to consider—

1. The necessity or utility of impeachments.

2. The necessity or utility of erecting a separate tribunal for the trial of impeachments.

3. The propriety of rendering the senate such a tribunal.

4. The persons liable to be impeached.

5. The constitution of the court, its mode of proceeding, and the extent and effect of its judgments.

1. The delegation of important trusts, affecting the higher interests of society, is always from various causes liable to abuse. The fondness frequently felt for the inordinate extension of power, the influence of party and of prejudice, the seductions of foreign states, or the baser appetite for illegitimate emolument, are sometimes productive of what are not unaptly termed political offences,* which it would be difficult to take cognizance of in the ordinary course of judicial. proceedings.

2. The involutions and varieties of vice are too many, and too artful to be anticipated by positive law, and sometimes too

*Federalist, No. 65.

subtle, and mysterious to be fully detected in the limited period of ordinary investigation. As progress is made in the inquiry, new facts are discovered which may be properly connected with others already known, but would not form sufficient subjects of separate prosecution. On these accounts a peculiar tribunal seems both useful and necessary. A tribunal of a liberal and comprehensive character, confined as little as possible to strict forms, enabled to continue its session as long as the nature of the case may require, qualified to view the charge in all its bearings and dependencies, and to appreciate on sound principles of public policy the defence of the accused; the propriety of such a separate tribunal seems to be plain, but not upon the assumed ground that the judges of the supreme court would not possess sufficient fortitude to perform the duty, or sufficient credit and authority to reconcile the people to their decisions.*

3. To compose this court of persons wholly distinct from the other branches of government-to form a permanent body for this single purpose and to keep them always collected at the seat of government for the possible occurrence of an impeachment, would be as inconvenient as to appoint and collect such a body from time to time, when an impeachment is determined on.

On a review of all the departments of government provided by the Constitution, none will be found more suitable to exercise this peculiar jurisdiction than the senate.

Although like the accusers, they are representatives of the people, yet they are by a degree more removed, and hold their stations for a longer term. They are therefore more independent of the people, and being chosen with the knowledge

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

that they may, while in office, be called upon to exercise this high function, they bring with them the confidence of their constituents that they will faithfully execute it, and the implied compact on their own parts that it shall be honestly discharged. Precluded from ever becoming accusers themselves, it is their duty not to lend themselves to the animosities of party or the prejudices against individuals, which may sometimes unconsciously induce the house of representatives to the acts of accusation. Habituated to comprehensive views of the great political relations of the country, they are naturally the best qualified to decide on those charges which may have any connexion with transactions abroad, or great political interests at home, and although we cannot say, that like the English house of lords they form a distinct body, wholly uninfluenced by the passions, and remote from the interests of the people, yet we can discover in no other division of the government a greater probability of impartiality and independence.

Nor does it form a solid objection in point of principle, that in this peculiar instance, a part of the legislative body should be admitted to exercise judicial power. In some degree all legislative bodies necessarily possess such a power. We have seen that for sufficient cause they may expel any of their own members they may try and punish others for attempts to corrupt, bribe, or intimidate them, and they may punish for what are technically termed contempts committed in their presence, in all which they act judicially. But it is sufficient, to close the subject, that the people at large have concluded that this power would be best deposited in this body.

4. From the reasons already given, it is obvious, that the only persons liable to impeachment, are those who are or have been in public office. All executive and judicial officers, from the president downwards, from the judges of the supreme court to those of the most inferior tribunals, are included in this description. But in the year 1796, a construction was

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given to the Constitution, founded, it is believed, merely on its phraseology, by which a member of the senate was held not to be liable to impeachment. Their deliberations, after the arguments of counsel, being held in private, we can only infer from those arguments, that the term officers of the United States, as used in the Constitution, was held by a majority of the senate, not to include members of the senate, and on the same principle, members of the house of representatives would also be excluded from this jurisdiction.

An amendment to the Constitution in this respect would perhaps be useful. A breach of duty is as reprehensible in a legislator as in an executive or judicial officer, and if this peculiar jurisdiction possesses so much value in respect to the two latter, it is difficult to conceive why the public should not have the benefit of it in regard to the former.

No apprehensions of partiality in favour of one of their own body need to be carried so far as to require the substitution of another tribunal. In England, where there is not a greater portion of public virtue than here, peers are necessarily impeached before peers, and members of the house of commons have been frequently the subjects of impreachment. Judges are liable to trial for every offence before their brethren, and it is in no case to be presumed, that a fair and full administration of justice would be wanting. Of great public delinquencies the people do not long remain in ignorance. If the offences of a member of the house of representatives were culpably passed over by his brethren, the people by the recurrence of the periodical election would soon be enabled to substitute others to prefer the accusation, and, being sensible of this, the house would be slow to expose themselves to the reproach of their constituents, and the loss of public confidence, by omitting to do their duty. The senate is obliged to receive and décide on the charge, and to the strongest moral obligations is added that of an oath or

affirmation. It is not probable that the effect of these united impulses would be counteracted by other considerations, which would in themselves be criminal.

5. The legitimate causes of impreachment have been already briefly noticed. They can only have reference to public character and official duty. The words of the text are treason, bribery, and other high crimes and misdemeanors. The treason contemplated must be against the United States. In general those offences which may be committed equally by a private person as a public officer, are not the subjects of impeachment. Murder, burglary, robbery, and indeed all offences not immediately connected with office, except the two expressly mentioned, are left to the ordinary course of judicial proceeding, and neither house can regularly inquire into them, except for the purpose of expelling the member. But the ordinary tribunals, as we shall see, are not precluded, either before or after an impeachment, from taking cognizance of the public and official delinquency.

We have hitherto had but three instances of impeachment, the first of which has already been noticed. As no decision was given on the merits, it is impossible to say whether the charges, which were chiefly founded on a conspiracy to invade the territories of the king of Spain, with whom the United States were at peace, and to excite the Creek and Cherokee Indians to concur in the outrage, would have been deemed by the senate sufficient, if proved, to support the impeachment. The second, on which a constitutional conviction took place, was against a judge of a district court, and purely for official misconduct. The third was against a judge of the supreme court, and was also a charge of official misconduct. It terminated in an acquittal, there not being a constitutional majority against him on any one article.

As articles of impeachment can only be exhibited by the house of representatives, if it should happen that the senate in