"So far as might concern the misbehavior of the Executive in perverting the instructions or contravening the views of the Senate, we need not be apprehensive of the want of a disposition in that body to punish the abuse of their confidence, or to vindicate their own authority. We may thus far count upon their pride, if not upon their virtue. And so far even as might concern the corruption of leading members, by whose arts and influence the majority may have been inveigled into measures odious to the community if the proofs of that corruption should be satisfactory, the usual propensity of human nature will warrant us in concluding that there would be commonly no defect of inclination in the body to divert the public resentment from themselves by a ready sacrifice of the authors of their mismanagement and disgrace." 995

"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 honor. "6

"That there is a 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,

5 The Federalist, No. lxvi.

Story on the Constitution, § 750.

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, is 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 death 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?" "This reasoning also has much force in it; but in candor also it must be admitted to be not wholly unexceptionable. That part which

7 Ibid., § 760, citing Tucker's Blackstone, vol. i, App., p. 237.

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 VicePresident 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.'

"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.""

"In the first place, the nature of the functions to be performed.

Story on the Constitution, § 761. 9 Ibid., § 763.

Not but

The offences to which the power of impeachments has been and is ordinarily applied as a remedy are of a political character. 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 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.'

" 10

"In the next place, it is obvious that the strictness of the forms of proceeding in cases of offences at common law is ill adapted to impeachments. The very habits growing out of judicial employments, the rigid manner in which the discretion of judges 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 appreciate on sound principles of

10 Story on the Constitution, § 764.

public policy the defence of the accused, seems indispensable to the value of the trial. 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 rules 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 questions 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." "1 "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 circumstance that judges should be called to sit, as umpires, in the controversies of party, would inevitably involve them in the common odium of partisans, 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 discus

in the Appendix, infra. The cases where impeachments have been tried in the ordinary courts have all resulted in acquittals, in at least one instance where the proof against the respondents seemed very clear. See The State ex rel. Attorney-General v. Buckley, 54 Ala., 599; State of Nebraska v. William Leese, Ex-AttorneyGeneral, 37 Neb., 92; State of Nebraska v. George H. Hastings, AttorneyGeneral, and others, 37 Neb., 96; which are described in the Appendix, infra.