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the course of their executive functions or otherwise, became apprized of unlawful acts committed by a public officer, and in their opinions, meriting at least a public inquiry, it would be their duty to communicate the evidence they possessed, whether actual or presumptive, to the house of representatives, but the bare communication is all that would be consistent with their duty. They would cautiously avoid to recommend or suggest an impeachment, and the same would be the course pursued by the president.
Articles of impeachment need not to be drawn up with the precision and strictness of indictments. They must however be distinct and intelligible. No one is bound to answer to a charge so obscure and ambiguous that it cannot be understood. Additional articles may be exhibited, perhaps at any stage of the prosecution; certainly before the defendant has put in his answer or plea.
No precise number of senators is required to constitute the court, but no person can be convicted without the concurrence of two-thirds of the members present. The vice president being the president of the senate, presides on the trial, except when the president of the United States is tried. As the vice president succeeds to the functions and emoluments of the president of the United States whenever a vacancy happens in the latter office, it would be inconsistent with the implied purity of a judge that a person under a probable bias of such a nature should participate in the trial—and it would follow that he ought wholly to retire from the court. It is not stated in the Constitution whether the president of the senate is on the trial of an impeachment restricted, as in legislative cases, to the casting vote. As he is constituted one of the judges by being appointed to preside without any restriction, the fair inference would be, that he is entitled to vote like the other judges, but on the trial last mentioned of a judge of the Supreme Court, the vote of the vice president does not appear in the printed journal.
The defendant is entitled to the benefit of counsel—but it is not necessary that he should be personally present; the trial may proceed in his absence if he has had due notice to appear.
The consultations of the senate, as well upon incidental points as on the main questions, are conducted in private, but the judgment is rendered in public.
The judgment is of a limited and peculiar nature—it extends no further than to removal from office, and disqualification to hold and enjoy any office of honour, trust, or profit, under the United States.
Herein we may perceive the importance and utility of this system under our regulations. In England impeachments may be prosecuted for capital crimes and the court may award capital punishment, of which many instances occur in the history of that kingdom. Lord Strafford in the reign of Charles I. and Lord Stafford in the reign of Charles II. were beheaded on the sentences of the court which decided without the aid of a jury, and both of them have been considered rather as victims to the spirit of the times, than as merited oblations to justice. But with us, although the party accused may be found guilty of the highest crime, his life is not in danger before this tribunal, and in no cases are his liberty and property affected: indictment, trial, judgment, and punishment, still await him according to the usual course of law.
Why then, it may be asked, has this system been introduced, and why, if the firmness and integrity of the ordinary tribunals cannot be overpowered by any supposed influence of character, wealth, or office, have we deemed it expedient to copy from a foreign nation an institution for which there is not the same necessity, and which we do not allow altogether to produce the same effects? One answer is, that the sentence which this court is authorized to impose cannot regularly be pronounced by the courts of law. They can neither remove nor disqualify
the person convicted, and therefore the obnoxious officer might be continued in power, and the injury sustained by the nation be renewed or increased, if the executive authority were perverse, tyrannical, or corrupt : but by the sentence which may be given by the senate, not only the appointment made by the executive is superseded and rendered void, but the same individual may be rendered incapable of again abusing an office to the injury of the public. It is therefore right and proper
that the president should be disabled from granting a pardon, and restoring the offender to his former competency; but there is no restraint on his pardoning when a conviction in the common course ensues, for such pardon extends only to the punishment which is then pronounced, and does not affect the sentence of the senate.
We may perceive in this scheme one useful mode of removing from office him who is unworthy to fill it, in cases where the people, and sometimes the president himself would be unable to accomplish that object. A commission granted during good behaviour can only be revoked by this mode of proceeding. But the express words of the Constitution also extend to the president and vice president, who partake of the legislative capacity, and are chosen by the people. When this corrective jurisdiction is thus applied; when it reaches all judicial officers, all civil officers appointed by the president during pleasure, and involves in its grasp the vice president and the president himself, it is difficult to conceive that it was intended to exempt men whose treachery to their country might be productive of the most serious disasters, because they do not come precisely within a verbal description supposed to be exclusively applicable to those who, except in the two instances of specific enumeration, receive commissions from the president. A member of either house of the legislature betraying his trust and guilty of the most culpable acts of an official nature is, under the decision of the senate, liable, indeed,
to expulsion, but not to impeachment; liable to the ordinary course of legal proceedings, but not to disqualification. Yet as from the judgment of this high tribunal there is no appeal; as the decision which has been given in the case adverted to is a judicial one, and probably will be held binding on themselves on all future occasions, we must now receive it as the settled construction of the Constitution.
Whether an amendment of the Constitution in this respect will ever be made, is not for the author to anticipate.
OF ANOTHER SPECIAL JURISDICTION.
THERE is another species of courts having a special jurisdiction, from which trial by jury is also excluded, yet whose power extends to pecuniary mulcts, deprivation of office, imprisonment, personal chastisement, and even loss of life. It will be at once perceived that we allude to courts martial.
Although not expressly mentioned in the Constitution, the power to institute them is unquestionably given by the authority vested in congress to make rules for the government and regulation of the land and naval forces, and the amendment heretofore noticed, which before a person shall be held to answer for a capital or otherwise infamous crime, requires a presentment or indictment by a grand jury, excepts the land and naval forces, and the militia when in actual service in time of war or. public danger, thereby indirectly recognising the establishment and the efficient powers of courts martial.
Congress has reasonably and moderately executed this power, but the details are inconsistent with the plan of this work. The subjects of a court martial are only those who fall within the above descriptions. Martial employment creates martial law, and requires martial courts. On the civil class of the community, it can never operate, except perhaps in one instance, which on our part, could not well apply to one of our