sions, and in the vindication of their own political decisions, than seems desirable for those who are daily called upon to decide upon the private rights and claims of men distinguished for their political consequence, zeal, or activity in the ranks of party. In a free government like ours there is a peculiar propriety in withdrawing as much as possible all judicial functionaries from the contests of mere party strife. With all their efforts to avoid them, from the free intercourse, and constant changes in a republican government both of men and measures, there is at all times the most imminent danger that all classes of society will be drawn into the vortex of politics. Whatever shall have a tendency to secure in tribunals of justice a spirit of moderation and exclusive devotion to juridical duties is of inestimable value. What can more surely advance this object than the exemption of them from all participation in, and control over, the acts of political men in their official duties? Where, indeed, those acts fall within the character of known crimes at common law or by positive statute, there is little difficulty in the duty, because the rule is known, and equally applies to all persons, in and out of office; and the facts are to be tried by a jury, according to the habitual course of investigation in common cases. The remark of Mr. Woodeson on this subject is equally just and appropriate. After having enumerated some of the cases in which impeachments have been tried for political offences, he adds that from these it is apparent how little the ordinary tribunals are calculated to take cognizance of such offences, or to investigate and reform the general polity of the State.'" 12 "In the next place, the judges of the Supreme Court are appointed by the executive, and will naturally feel some sympathy and attachment for the person to whom they owe this honor, and for those whom he selects as his confidential advisers in the departments. Yet the President himself and those confidential advisers are the very persons who are eminently the objects to be reached by the power of impeachment. The very circumstance that some, perhaps a majority, of the Court, owe their elevation to the same chief magistrate whose acts, or those of his confidential advisers, are on trial, would have some tendency to diminish the public confidence in the impartiality and independence of the tribunal."1 13 "But in the next place, a far more weighty consideration is, that some of the members of the judicial department may be impeached for malconduct in office; and thus, that spirit which, for want of a better term, has been called the corporation spirit of organized tribunals and 12 Story on the Constitution, § 766, citing 2 Woodeson, Lect. 40, p. 602. 13 Ibid., § 767. societies, will naturally be brought into play. Suppose a judge of the Supreme Court should himself be impeached; the number of his triers would not only be diminished, but all the attachments and partialities, or it may be the rivalries and jealousies, of peers on the same bench, may be, (what is practically almost as mischievous) may be suspected to be, put in operation to screen or exaggerate the offence. Would any person soberly decide that the judges of the Supreme Court would be the safest and the best of all tribunals for the trial of a brother judge, taking human feelings as they are and human infirmity as it is? If not, would there not be, even in relation to inferior judges, a sense of indulgence, or a bias of opinion upon certain judicial acts and practices, which might incline their minds to undue extenuation or to undue harshness? And if there should be, in fact, no danger from such a source, is there not some danger, under such circumstances, that a jealousy of the operations of judicial tribunals over judicial offences would create in the minds of the community a broad distinction in regard to convictions and punishments between them and merely political offences? Would not the power of impeachment cease to possess its just reverence and authority if such a distinction should prevail; and especially if political victims rarely escaped, and judicial officers as rarely suffered? Can it be desirable thus to create any tendency in the public minds towards the judicial department which may impair its general respect and daily utility?' "14 "Considerations of this sort cannot be overlooked in inquiries of this nature; and if to some minds they may not seem wholly satisfactory, they at least establish that the Supreme Court is not a tribunal for the trial of impeachment wholly above all reasonable exception. But if to considerations of this sort it is added that the common practice of free governments, and especially of England and of the States composing the Union, has been to confide this power to one department of the legislative body upon the accusation of another; and that this has been found to work well, and to adjust itself to the public feelings and prejudices, to the dignity of the legislature, and to the tranquillity of the State, the influence in its favor cannot but be greatly strengthened and confirmed." 15 "On a review of all the departments of government provided by a Constitution, none will be found more suitable to exercise this peculiar jurisdiction than the Senate. Although, like their accusers, they are representatives of the people, yet they are by a degree more removed, 14 Story on the Constitution, § 768. 15 Ibid., § 769, pp. 562, 563. See, however, Rawle on the Constitution, ch. xxii, p. 214. They are, therefore, more and hold their stations for a longer term. independent of the people, and being chosen with the knowledge 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 part, 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 connection 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 independence and impartiality." 16 These arguments have convinced the American people, and in all the States except New York, Oregon, and Nebraska, impeachments are made and tried substantially as is provided in the Constitution of the United States, although in a few the Chief-Justice of the Supreme Court presides in all impeachment trials except when he is a party. New York maintains the practice established in her first constitution, and has a special court for the trial of impeachments which is composed of the president of the Senate, the senators, or a major part of them, and the judges of the Court of Appeals, or the major part of them. Experience has shown that the judges have been more disposed to acquit than have the senators.18 The Oregon Constitution ordains: "Public officers shall not be impeached; but incompetency, corruption, or malfeasance, or inefficiency in office, may be tried in the same manner as criminal offences, and judgment may be given of dismissal from office, and such further punishment as may be prescribed by law." 19 In Nebraska impeachments are made by a majority of the legis lature in joint convention. They are tried by the Supreme Court, 16 Rawle on the Constitution, ch. xxii, pp. 201-202, quoted with approval in Story on the Constitution, § 775. 17 New York Constitution, Art. VI, Sec. 1. 18 Supra, note 11. unless a judge of that court is impeached, when he is tried by the judges of the District Court.20 In Louisiana there is a remedy alternate to impeachment by a suit in the Supreme Court by the Attorney-General for the removal of the judges of the Court of Appeals and other courts.21 These provisions have not been tried sufficiently to determine whether it is yet safe to trust the courts with so tremendous a jurisdiction as that of the removal of a President of the United States. § 90. History of Impeachments before the Senate of the United States. There have been seven impeachment trials before the Senate of the United States, of which two only have resulted in convictions. On July 7th, 1797, William Blount, a senator from Tennessee, was impeached for high crimes and misdemeanors. On the same day the Senate resolved that the respondent be taken into the custody of the messenger until he should enter into a recognizance, which he gave, binding himself in the sum of $20,000 with two sufficient sureties in the sum of $15,000 each, to appear and answer such articles of impeachment as might be exhibited against him. On the following day he was expelled from the Senate as guilty of a high misdemeanor, entirely inconsistent with his public trust and duty as a senator. Thereupon the sureties surrendered his person, and asked to be discharged. It was then resolved that he be taken into custody of the messenger, until he should enter into another recognizance to the same effect, himself in the sum of $1,000, with two sufficient sureties in the sum of $500 each, which was also given. Articles of impeachment were not presented until the next session, in January, 1798. They charged: That the respondent while senator had conspired to create and promote, and set on foot, within the jurisdiction and territory of the United States, and to conduct and carry on from thence, a military hostile expedition against the territories and dominions of Spain in the Floridas and Louisiana for the purpose of wresting the same from Spain, and of conquering the same for Great Britain, with which Spain was then at war. That at the same time he had conspired and contrived to excite the Creek and Cherokee nations of Indians, then inhabiting within the United States, to commence hostilities against the subjects and possessions of Spain, in the Floridas and Louisiana, for the same purpose, in violation of a treaty by which the United States and Spain had agreed to maintain peace and harmony with all the means in their power among the Indians who inhabited the country adjacent to the boundaries of the Floridas. That he had further conspired and contrived to alienate and divert the confidence of the said Indian tribes or nations from Benjamin Hawkins, the principal temporary agent of the United States appointed by the President in accordance with law to reside among the tribes, and to diminish, impair and destroy the influence of that agent with those tribes, and their friendly intercourse and understanding with him. That he had conspired and contrived to seduce James Carey, the interpreter duly appointed by the United States to reside within said Indian tribes, from the duty and trust of his appointment, and to engage Carey to assist in the promotion and execution of his said. criminal intentions and conspiracies aforesaid; and that he had for the same purpose further conspired and contrived to diminish and impair the confidence of the Cherokee nation in the government of the United States, and to create and foment discontents and disaffection among the said Indians, towards the government of the United States, in relation to the ascertainment and marking of the boundary line between the United States and the Cherokee nation, which a treaty between them provided should be ascertained and marked by commissioners in a manner therein prescribed. The managers of the House of Representatives included James A. Bayard and Robert G. Harper. Blount's counsel were Jared Ingersoll and A. J. Dallas. They filed a plea to the jurisdiction on the ground that the respondent was not then a senator, and was not then, nor at the time of the offenses charged, a civil officer of the United States. The House filed a replication to the plea, alleging that the matters therein set forth were insufficient to exempt Blount from answering the articles. The questions of law arising thereupon, which are discussed later, were argued by Bayard and |