pro tempore in the absence of the vice president, or 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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383. The next clause of the third section of the first article respects the subject of impeachment. It is as follows: "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 con"victed without the concurrence of two thirds of the "members present.

§ 384. The great objects, to be attained in the se

lection of a tribunal for the trial of impeachments, are, impartiality, integrity, intelligence, and independence. If either of these is wanting, the trial must be radically imperfect. To ensure impartiality, the body must be in some degree removed from popular power and passions, from the influence of sectional prejudice, and from the more dangerous influence of mere party spirit. To secure integrity, there must be a lofty sense of duty, and a deep responsibility to future times, as well as to God. To secure intelligence, there must be age, experience, and high intellectual powers, as well as attainments. To secure independence, there must be numbers, as well as talents, and a confidence resulting at once from permanency of place, and dignity of station, and enlightened patriotism. Does the senate combine, in a suitable degree, all these qualifications? Does it combine them more perfectly, than any other tribunal, which could be constituted? What other tribunal could be entrusted with the authority? These are questions of the highest importance, and of the most frequent occurrence. They arose in the convention, and underwent a full discussion there. They were again deliberately debated in the state conventions; and they have been at various times since agitated by jurists and statesmen, and political bodies. Few parts of the constitution have been assailed with more vigour; and few have been defended with more ability.

§ 385. The subject is itself full of intrinsic difficulty in a government purely elective. The jurisdiction is to be exercised over offences, which are committed by public men in violation of their public trust and duties. Those duties are, in many cases, political; and, indeed, in other cases, to which the power of impeachment will

probably be applied, they will respect functionaries of a high character, where the remedy would otherwise be wholly inadequate, and the grievance be incapable of redress. Strictly speaking, then, the power partakes of a political character, as it respects injuries to the society in its political character; and, on this account, it requires to be guarded in its exercise against the spirit of faction, the intolerance of party, and the sudden movements of popular feeling." The prosecution will seldom fail to agitate the passions of the whole community, and to divide it into parties, more or less friendly, or hostile to the accused. The press, with its unsparing vigilance, will arrange itself on either side, to control, and influence public opinion; and there will always be some danger, that the decision will be regulated more by the comparative strength of parties, than by the real proofs of innocence or guilt.

§ 386. On the other hand, the delicacy and magnitude of a trust, which so deeply concerns the political existence and reputation of every man engaged in the administration of public affairs, cannot be overlooked. It ought not to be a power so operative and instant, that it may intimidate a modest and conscientious statesman, or other functionary from accepting office; nor so weak and torpid, as to be capable of lulling offenders into a general security and indifference. The difficulty of placing it rightly in a government, resting entirely on the basis of periodical elections, will be more strikingly perceived, when it is considered, that the ambitious and the cunning will often make strong accusations against public men the means of their own elevation to office; and thus give an impulse to the power of impeachment, by pre-occupying the public opinion. The convention appears to have been very Abr.

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strongly impressed with the difficulty of constituting a suitable tribunal; and finally came to the result, that the senate was the most fit depositary of this exalted trust. In so doing, they had the example before them of several of the best considered state constitutions; and the example, in some measure, of Great Britain. The most strenuous opponent cannot, therefore, allege, that it is a rash and novel experiment; the most unequivocal friend must, at the same time, admit, that it is not free from all plausible objections.

it

§ 387. The conclusion, to which, upon a large survey of the whole subject, our judgments are naturally led, is, that the power has been wisely deposited with the senate. In the language of a learned commentator, may be said, that of all the departments of the government, "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 so by a degree more removed, and hold their stations for a longer term. They are, therefore, more 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 connexion

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 impartiality and independence."

§388. The remaining parts of the clause of the constitution now under consideration will not require an elaborate commentary. The first is, that the senate, when sitting as a court of impeachment, "shall be on oath or affirmation ;" a provision, which, as it appeals to the conscience and integrity of the members by the same sanction, which applies to judges and jurors, who sit in other trials, will commend itself to all persons, who deem the highest trusts, rights, and duties, worthy of the same protection and security, at least, as those of the humblest order. It would, indeed, be a monstrous anomaly, that the highest officers might be convicted of the worst crimes, without any sanction being interposed against the exercise of the most vindictive passions; while the humblest individual has a right to demand an oath of fidelity from those, who are his peers, and his triors. In England, however, upon the trial of impeachments, the house of lords are not under oath; but only make a declaration upon their honour. This is a strange anomaly, as in all civil and criminal trials by a jury, the jurors are under oath; and there seems no reason, why a sanction equally obligatory upon the consciences of the triors should not exist in trials for capital or other offences before every other tribunal. What is there in the honour of a peer, which necessarily raises it above the honour of a commoner? The anomaly is rendered still more glaring