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when he exercises the office of President, seems never to have been questioned ; and indeed is so obvious, that it is wholly unnecessary to vindicate it. Confidence between the Senate and its officers, and the power to make a suitable choice, and to secure a suitable responsibility for the faithful discharge of the duties of office, are so indispensable for the public good, that the provision will command universal assent, as soon as it is mentioned. It has grown into a general practice for the Vice President to vacate the Senatorial chair a short time before the termination of each session, in order to enable the Senate to choose a President pro tempore, who might already be in office, if the Vice President, in the recess, should be called to the chair of State. The practice is founded in wisdom and sound policy, as it immediately provides for an exigency, which may well be expected to occur at any time ; and prevents the choice from being influenced by temporary excitements or intrigues, arising from the actual existence of a vacancy. As it is useful in peace to provide for war ; so it is likewise useful in times of profound tranquillity to provide for political agitations, which may disturb the public harmony.
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$ 113. The next clause respects the judicial power of the Senate to try impeachments. "The Senate shall have the sole power to try all impeachments. When sitting for that purpose, they shall be on oath, or affirmation. When the President of the United States is tried, the Chief Justice shall preside ; and no person shall be convicted, without the concurrence of two thirds of the members present.” The great objects to be attained in the selection of a tribunal for the trial of impeachments, are impartiality, integrity, intelligence, and independence. If either of these qualities is wanting,
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the trial is essentially defective. To insure impartiality, the body must be, in some degree, removed from popular power and passions, from the influence of sectional prejudices, and from the still more dangerous influence of party spirit. To secure integrity, there must be a lofty sense of duty, and a deep responsibility to God, as well as to future ages. To secure intelligence, there must be age, experience, and high intellectual powers and attainments. To secure independence, there must be numbers, as well as talents, and a confidence, resulting from permanency of place, dignity of station, and consciousness of patriotism. The Senate, from its very organization, must be presumed to possess all these qualities in a high degree, and, certainly, in a degree not surpassed by any other political body in the country. If it should be asked, why the power to try impeachments might not have been confided to a court of law of the highest grade, it may be answered, that such a tribunal is not, on various accounts, so fit for the purpose. In the first place, the offences to be tried are generally of a political character, such as a court of law is not ordinarily accustomed to examine, and such as its common functions exclude.
The Senators, on the contrary, necessarily become familiar with such subjects. In the next place, the strict course of proceedings, in courts of law, is ill adapted to the searching out of political delinquencies. In the next place, such political functions, are in no small degree incompatible with the due discharge of other judicial duties. They have a tendency to involve the Judges in party interests and party contests, and thereby to withdraw their minds from those studies and habits, which are most important, in the ordinary administration of justice, to secure independence and impartiality. In the next place, the Judges are themselves appointed by the Executive, and may be called upon to try cases, in which he, or some officer enjoying his confidence, and acting under his orders, is the party impeached. In the last place, a Judge may be the very party impeached ; and, under such circumstances, a court of law may be presumed to labor under as strong feelings and sympathies for the accused, as any other body. It could never be desirable to call upon the Supreme Court of the nation to try an impeachment of one of its own members for an official misdemeanor. So that, to say the least, the tribunal selected by the Constitution is as unobjectionable, as any, which could be pointed out.
§ 114. The mode of trial is also provided for. The Senate, when sitting as a Court of Impeachment, 's shall be on oath or affirmation.” This is required in all cases of trials in the common courts of law. Jurymen, as well as Judges, are always under oath or affirmation, in the discharge of their respective duties. It is a sanction, appealing to their consciences, and calling upon them to reflect well upon their duties. The provision was deemed the more necessary, because in trials of impeachment in England, the House of Lords (which is the High Court of Impeachment) is not under oath ; but each Peer makes a declaration simply upon his honor ; although if he were a witness in any common trial, he must give his testimony on oath.
$ 115. The next provision is ; 6 When the President of the United States is tried, the Chief Justice shall preside.” The object of this clause is, to preclude the Vice President, who might be supposed to have a natural desire to succeed to the office of President, from being instrumental, or having any influence, in procuring a conviction of the Chief Magistrate. Under such circumstances, who could be deemed more suitable to preside at the trial, than the highest Judicial magistrate of the nation. His impartiality and independence would be as little liable to suspicion, as those of any other person in the country. The dignity of his station might well be deemed an adequate pledge for his possession of the highest accomplishments ; and his various learning and great experience in the law, might well be presumed to enable him to give essential assistance to the Senate, not only in reg. ulating their proceedings in such delicate matters, but also in securing the just rights of the accused, by protecting him against unintentional mistakes and errors of judgement in that body. It is added ; “ And no person shall be convicted, without the concurrence of two thirds of the members present.” The reason for this restriction, doubtless, is, that if a bare majority, only, were sufficient to convict of political offences, there would be danger, in times of high popular commotion, or party spirit, that the influence of the House of Representatives would be found irresistible. In cases of trials by jury, absolute unanimity is required to the conviction of a criminal; in cases of legislation, a majority only is required for a decision; and, here, an intermediate number, between an entire unanimity and a bare majority, is adopted. If any thing short of unanimity ought to be allowed, two thirds seems a reasonable limitation.
116. The next clause respects the judgement to be rendered in cases of impeachment.-- Judgement in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust, or profit, under the United States. But the party convicted shall, nevertheless, be liable and subject to indictment, trial, judgement, and punishment according to law.” As the principal object of the power of impeachment is to punish political crimes, the restriction of the punishment to mere removal and disqualification from office, seems appropriate, and sufficient. Probably the abuses, to which an unlimited power of punishment might lead in times of popular excitement, and party strife, introduced this restriction, And the experience of the parent country had demonstrated, that it could be applied against a particular victim with a cruelty and harshness, wholly incompatible with national justice, and public honor. Yet persons, who are guilty of public offences, ought not wholly to escape the proper punishment, affixed by law in other cases. And, therefore, they are made amenable, like their fellow-citizens, to the common course of trial and punishment in the courts of law. This provision was the more necessary, because it might otherwise be contended, that they could not, according to a known maxim of law, be twice tried and punished for the same offence. And here, again, the wisdom of the Constitution, in excluding the courts of law from the trial of impeachments, is shown. For, if the same court should re-try the cause, they would already have decided upon the party's guilt ; and, if an inferior court should try it, the influence of the superior court would be apt to have an undue predominance over it.
$ 117. There is wisdom, and sound policy, and intrinsic justice in this separation of the offence, at least, so far as the jurisdiction and trial are concerned, into its proper elements, bringing the political part under the power of the political department of the government, and retaining the civil part for presentment and trial in the ordinary forum. A jury might well be intrusted with the latter ; while the former should meet its appropriate trial and punishment before the Senate. If it should be asked, why separate trials should thus be successively had ; and why, if a conviction should take place in a court of law, that court might not be intrusted with the power to pronounce a removal from office, and the disqualification to office, as a part of its sentence, the answer has been already given in the reasoning against vesting any court of law with merely political functions. In the ordinary course of the administration of criminal justice, no court is authorized to remove or disqualify an offender, as a part of its regular judgement. If it results at all, it results as a consequence, and not as a part, of the sentence. But it may be properly urged, that the vesting of such a high and delicate power, to be exercised by a court of law at its discretion, would, in relation to the distinguished functionaries of the government, be peculiarly unfit and inexpedient. What could be more embarrassing, than for a court of law to pronounce for a removal upon the mere ground of political usurpation, or malversation in office, admitting of endless varieties, from the slightest guilt up to the most flagrant corruption ? Ought a President to be removed from office at the mere will of a court for political misdemeanors ? Is not a political body, like the Senate, from its superior information in regard to executive functions, far better qualified to judge, how far the public weal might be promoted by