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ne convicted, without the concurrence of two thirds of the members present.' The reason for tl is 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 exciteinent, 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. Fo 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 in trinsic 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 vest ing 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 po litical 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
such a pun shment in a given case, than a mere juridical tribunal? Suppose the Senate should still deem the judgement irregular, or unjustifiable, how is the removai to take effect, and how is it to be enforced? A separation of the removing power altogether from the appoint11g power might create many practical difficulties, which ought not, except upon the most urgent reasons, to be introduced into matters of government. Without at tempting to maintain, that the difficulties would be insu perable, it is sufficient to show, that they might be highly inconvenient in practice.
§ 118. In order to complete our review of the subjec of impeachments, it is necessary to cite a clause to be found in a subsequent part of the Constitution, (Art. 2, Sect. 4,) declaring, who shall be liable to impeachment, and for what offences. "The President, Vice President, and all civil officers of the United States, shall be removed from office, on impeachment for, and conviction of, treason, bribery, or other high crimes and inisdemeanors."
§ 119. From this clause, it appears, that the power of impeachment does not extend to any, but civil officers of the United States, including the President, and Vice President. In England, it extends to all persons, wheth-. er peers or commoners, and whether officers or not. There seems a peculiar propriety, in a republican government, in confining the impeaching power to persons holding office. In such a government, all the citizens are equal, and ought to have the same security of a trial by jury, for all crimes and offences laid to their charge, when not holding any official character. They might, otherwise, be subject to gross political oppressions, and prosecutions, which might ruin their fortunes, or subject them to unjustifiable odium. When a person accepts an office, he may fairly be held to consent to a waiver of this privilege; and there can be no reasonable objection, on his part, to a trial by impeachment, since it can gc no further than to a removal from office, and a disqualification to hold office.
$ 120. Who "civil officers, are
" within the meaning
of th constitutional provision, is an inquiry, which naturally presents itself; and the answer cannot, perhaps, be deemed settled, by any solemn adjudication. The term "civil" has various significations. It is sometimes used, in contradistinction to barbarous, or savage, to indicate a state of society, reduced to order and regular governmenu Thus, we speak of civil life, civil society, civil government and civil liberty; in which cases, it is nearly equivalent, in meaning, to political. It is sometimes used in contradistinction to criminal, to indicate the private rights and remedies of men, as members of the community, in contrast to those, which are public, and relate to the government. Thus, we speak of civil process and crimina! process, civil jurisdiction and criminal jurisdiction. It is sometimes used in contradistinction to military or ecclesiastical, to natural or foreign. Thus, we speak of a civil station, as opposed to a military or ecclesiastical station; a civil death, as opposed to a natural death; a civil war, as opposed to a foreign war. The sense, in which the term is used in the Constitution, seems to be in contradistinction to military, to indicate the rights and duties relating to citizens generally, in contradistinction to those of persons engaged in the land or naval service of the government. It is in this sense, that Sir William Blackstone speaks of the laity in England, as divided into three distinct states; the civil, the military, and the maritime; the two latter embracing the land and naval forces of the government. And in the same sense, the expenses of the civil list of officers are spoken of, in contradistinction to those of the army and navy.
§ 121. All officers of the United States, therefore, who hold their appointments under the national government, whether their duties are executive or judicial, in the highest or in the lowest departments of the government, with the exception of officers, in the army and navy, are properly civil officers, within the meaning of the Constitution, and liable to impeachment. The reason for excepting military and naval officers is, that they are subject to trial and punishmert according to a peculiar military code, the laws, rules, and usages of war.
very nature and efficiency of military duties and discipline require this summary and exclusive jurisdiction; and the promptitude of its operations is not only better suited to the notions of military men; but they deem their honor and their reputation more safe in the hands of their brother officers, than in any merely civil tribunal. Indeed, in military and naval affairs, it is quite clear, that the Senate could scarcely possess competent knowledge or experience to decide upon the acts of military men; so much are these acts to be governed by mere usage and custom, by military discipline, and military discre tion, that the Constitution has wisely committed the whole trust to the decision of courts-martial.
§ 122. It is observable, that the clause makes the President and Vice President expressly liable to impeachment. And the question arose, upon an impeachment, in 1799, whetner a Senator is a civil officer of the United States, in the sense of the Constitution, so as to be liable to an impeachment. It was on that occasion decided, by the Senate, that he is not; and, of course, the same principle would apply to a Representative in Congress. The ground of this decision seems to have been that a Senator does not derive his appointment from or under the National Government, but from the State Legislature; and that the clause contemplated only such civil officers, as derived their appointment from the National Government, and were responsible for their conduct thereto. Motives of public policy would also conduce to the establishment of this same conclusion, since the impeachment of Legislators for their official acts might have a tendency to overawe or intimidate them in the discharge of their public functions. In the whole history and practice of England and America, no example can be found, of any attempt to introduce such a principle; and this very silence is expressive of the state of public opinion as to the danger and impolicy of conferring such a power.
§ 123. The offences, to which impeachments extend, are, "treason, bribery, and other high crimes and misdemeanors." No person can reasonably doubt the propriety of the removal, and disqualification from office, of