A motion was made to amend it by adding, "that persons impeached be suspended from their offices until they be tried and acquitted." This was wisely voted down.16 The disorderly proceedings under similar constitutional provisions in the Southern States, in one of which the assembly began by imprisoning the governor in his office, have proved their mischievous character.17 The rest of this part of the Constitution was adopted with little or no discussion,18 and seems to have been copied from the New York Constitution of 1777.19 Penn's Frame of Government of Pennsylvania in 1683 provided for impeachments by the assembly triable before the council.20 The charters of the other colonies seem to have been silent upon the subject; but the colonial assemblies, in imitation of the English practice, claimed, and in Massachusetts, North and South Carolina exercised, the power to impeach their judges and other officers for trial before their respective councils.21 Chief Justice Trot, in 1717, was found guilty by the Council of South Carolina on an impeachment by the House of Delegates for "having engrossed the judicial power, by acting as judge of the King's bench, the common pleas, and the admiralty." "22 Most of the State constitutions adopted before the Federal Convention contained provisions for impeachment.23 The Articles of Confederation were silent on the subject. In Pennsylvania, 16 Ibid., pp. 541, 542. "Mr. Madison. The President is made too dependent already on the legislature by the power of one branch to try him in consequence of an impeachment by the other. This immediate suspension will put him in the power of one branch only. They can at any moment, in order to make way for the functions of another who will be more favorable to their views, vote a temporary removal of the existing magistrate." 17 See the History of Impeachments in Arkansas and Florida in the Appendix. 18 Elliot's Debates, 2d ed., vol. v, pp. 131, 381, 480, 507, 528, 529, 559, 562. 19 N. Y. Constitution of 1777, Art. XXXIII; Professor Theodore W. Dwight in 6 American Law Register, 20 Poore's Charters and Constitutions, pp. 1521, 1523, 1528, 1529. 21 John Adams' Works, vol. v, p. 236; Chalmers, Introduction to the History of the Revolt of the Colonies, Book VII, ch. xi; Book VIII, ch. xi. See the Appendix to this volume for an account of these proceedings. 22 Ibid., Book VIII, ch. xi. See the Appendix to this volume. 23 See the Massachusetts Constitution of 1780, Part II, Ch. I, Sect. 2, Art. VIII; New York Constitution of 1777, Art. XXXIII; South Carolina Constitution of 1778, Art. XXIII. under the Confederation in 1780, Judge Hopkinson of the State Court of Admiralty was impeached by the assembly, tried and acquitted by the council. James Wilson, a prominent member of the Federal Convention, was one of his attorneys.2 24 Montesquieu, whose opinions had great weight with the framers of the Constitution, praised highly the English system of impeachment.25 Machiavelli ascribed the fall of the republic of Florence to the lack of a law for the impeachment of citizens who plotted against it.26 Tucker said: "If the want of a proper tribunal for the trial of impeachments can endanger the liberties of the United States, some future Machiavelli may perhaps trace their destruction to the same source. The members of the Federal Convention were familiar with the practice in England and the colonies as well as with the opinion of Machiavelli, and they followed the practice of their ancestors when they inserted these provisions in the Constitution. § 89. Reasons for the Trial of Impeachments by the Senate. The selection of the Senate as the tribunal for the trial of impeachments has been the target of severe criticism both before1 and since the adoption of the Constitution.2 The defense of the method adopted may be best stated in the language of Hamilton, Story and Rawle. "A well-constituted court for the trial of impeachments is an object not more to be desired than difficult to be obtained in a government wholly elective. The subjects of its jurisdiction are those offences which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself. The prosecution of them, for this reason, will seldom fail to agitate the passions of the whole community, and to divide it into parties more 24 See Appendix. 25 Montesquieu, De l'Esprit des Lois, livre xi, ch. vi. 26 History of Florence. § 89. 1 See Luther Martin's letter, Elliot's Debates, 2d ed., vol. i, pp. 379-380. 2 See Tucker, Blackstone, vol. i, 27 Tucker's Blackstone, vol. i, Ap- Appendix. pendix, 348. In many cases it will con or less friendly or inimical to the accused. nect itself with the pre-existing factions, and will enlist all their animosities, partialities, influence, and interest on one side or on the other; and in such cases there will always be the greatest danger that the decision will be regulated more by the comparative strength of parties, than by the real demonstrations of innocence or guilt. "The delicacy and magnitude of a trust which so deeply concerns the political reputation and existence of every man engaged in the administration of public affairs, speak for themselves. The difficulty of placing it rightly, in a government resting entirely on the basis of periodical elections, will as readily be perceived, when it is considered that the most conspicuous characters in it will, from that circumstance, be too often the leaders or the tools of the most cunning or the most numerous faction, and on this account, can hardly be expected to possess the requisite neutrality towards those whose conduct may be the subject of scrutiny. "The convention, it appears, thought the Senate the most fit depository of this important trust. Those who can best discern the intrinsic difficulty of the thing, will be least hasty in condemning that opinion, and will be the most inclined to allow due weight to the arguments which may be supposed to have produced it. "What, it may be asked, is the true spirit of the institution itself? Is it not designed as a method of NATIONAL INQUEST into the conduct of public men? If this be the design of it, who can so properly be the inquisitors for the nation as the representatives of the nation them selves? It is not disputed that the power of originating the inquiry, or, in other words, of preferring the impeachment, ought to be lodged in the hands of one branch of the legislative body. Will not the reasons which indicate the propriety of this arrangement strongly plead for an admission of the other branch of that body to a share of the inquiry? The model from which the idea of this institution has been borrowed, pointed out that course to the convention. In Great Britain it is the province of the House of Commons to prefer the impeachment, and the House of Lords to decide upon it. Several of the State constitutions have followed the example. As well the latter, as the former, seem to have regarded the practice of impeachments as a bridle in the hands of the legislative body upon the executive servants of the government. Is not this the true light in which it ought to be regarded? "Where else than in the Senate could have been founded 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 execution of so difficult a task; and it is still more to be doubted, whether they would possess the degree of credit and authority, which might, on certain occasions, be indispensable towards reconciling the people to a decision that 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, if at all, by rendering that tribunal more numerous than would consist with a reasonable intention to economy. The necessity of a numerous court for the trial of inpeachments, is equally dictated by the nature of the proceeding. This can never be tied down by 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 honor 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 sufficient to authorize a conclusion, that the Supreme Court would have been an improper substitute for the Senate, as a court of impeachments. 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 honors 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 his 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 over rule the influence of any new lights which might be brought to vary the complexion of another decision? Those who know anything 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 the verdict of a jury acting under the auspices of judges who had predetermined his guilt? "Would it have been an improvement of the plan, to have united the Supreme Court with the Senate, in the formation of the court of impeachments? This union would certainly have been attended with several advantages; but would they not have been overbalanced by the signal disadvantage, already stated, arising from the agency of the same judges in the double prosecution to which the offender would be liable? To a certain extent, the benefits of that union will be obtained from making the chief justice of the Supreme Court the president of the court of impeachments, as is proposed to be done in the plan of the convention; while the inconveniences of an entire incorporation of the former into the latter will be substantially avoided. This was perhaps the prudent mean. I forbear to remark upon the additional pretext for clamor against the judiciary, which so considerable an augmentation of its authority would have afforded. "Would it have been desirable to have composed the court for the trial of impeachments, of persons wholly distinct from the other departments of the government? There are weighty arguments, as well against, as in favor of, such a plan. To some minds it will not appear a trivial objection, that it could tend to increase the complexity of the political machine, and to add a new spring to the government, the utility of which would at best be questionable. But an objection which will not be thought by any unworthy of attention is this: a court formed upon such a plan, would either be attended with a heavy expense, or might in practice be subject to a variety of casualties and inconveniences. It must either consist of permanent officers, stationary at the seat of |