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by the fact, that a peer cannot give testimony, as a witness, except on oath; for, here, his honour is not trusted. The maxim of the law, in such a case, is in judicio non creditur, nisi juratis. Why should the obligation of a judge be less solemn, than the obligation of a witness? The truth is, that it is a privilege of power, conceded in barbarous times, and founded on feudal sovereignty, more than on justice, or principle.

§ 389. The next provision is: "When the president "of the United States is tried, the chief justice shall preside." The reason of this clause has been already adverted to. It is to preclude the vice president, who might be supposed to have a natural desire to succeed to the office, from being instrumental in prɔcuring the conviction of the chief magistrate. Under such circumstances, who could be deemed more suitable to preside, than the highest judicial magistrate of the Union. His impartiality and independence could be as little suspected, as those of any person in the country. And the dignity of his station might well be deemed an adequate pledge for the possession of the highest accomplishments.

§ 390. It is added, "And no person shall be con"victed without the concurrence of two thirds of the "members present." Although very numerous objections were taken to the constitution, none seems to have presented itself against this particular quorum required for a conviction; and yet it might have been fairly thought to be open to attack on various sides from its supposed theoretical inconvenience and incongruity. It might have been said with some plausibility, that it deserted the general principles even of courts of justice, where a mere majority make the de

cision; and, of all legislative bodies, where a similar rule is adopted; and, that the requisition of two thirds would reduce the power of impeachment to a mere nullity. Besides; upon the trial of impeachments in the house of lords the conviction or acquittal is by a mere majority; so that there is a failure of any analogy to support the precedent.

§ 391. It does not appear from any authentic memorials, what were the precise grounds, upon which this limitation was interposed. But it may well be conjectured, that the real grounds were, to secure an impartial trial, and to guard public men from being sacrificed to the immediate impulses of popular resentment or party predominance. In England, the house of lords, from its very structure and hereditary independence, furnishes a sufficient barrier against such oppression and injustice. Mr. Justice Blackstone has remarked, with manifest satisfaction, that the nobility "have neither the same interests, nor the same passions, as popular assemblies ;" and, that "it is proper, that the nobility should judge, to insure justice to the accused; as it is proper, that the people should accuse, to insure justice to the commonwealth." Our senate is, from the very theory of the constitution, founded upon a more popular basis; and it was desirable to prevent any combination of a mere majority of the states to displace, or to destroy a meritorious public officer. If a mere majority were sufficient to convict, 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. The only practicable check seemed to be, the introduction of the clause of two thirds, which would thus require a union of opinion and interest, rare, except in cases,

where guilt was manifest, and innocence scarcely presumable. Nor could the limitation be justly complained of; for, in common cases, the law not only presumes every man innocent, until he is proved guilty; but unanimity in the verdict of the jury is indispensable. Here, an intermediate scale is adopted between unanimity, and a mere majority. And if the guilt of a public officer cannot be established to the satisfaction of two thirds of a body of high talents and acquirements, which sympathizes with the people, and represents the states, after a full investigation of the facts, it must be, that the evidence is too infirm, and too loose to justify a conviction. Under such circumstances, it would be far more consonant to the notions of justice in a republic, that a guilty person should escape, than that an innocent person should become the victim of injustice from popular odium, or party combinations.

§ 392. The next clause is, that "Judgment in cases "of impeachment shall not extend further, than to re"moval from office, and disqualification to hold and "enjoy any office of honour, trust, or profit, under the "United States. But the party convicted shall never"theless be liable and subject to indictment, trial, "judgment, and punishment, according to law."

$393. It is obvious, that, upon trials on impeachments, one of two courses must be adopted in case of a conviction; either for the court to proceed to pronounce a full and complete sentence of punishment for the offence according to the law of the land in like cases, pending in the common tribunals of justice, superadding the removal from office, and the consequent disabilities; or, to confine its sentence to the removal from office and other disabilities. If the former duty

be a part of the constitutional functions of the court, then, in case of an acquittal, there cannot be another trial of the party for the same offence in the common tribunals of justice, because it is repugnant to the whole theory of the common law, that a man should be brought into jeopardy of life or limb more than once for the same offence. A plea of acquittal is, therefore, an absolute bar against any second prosecution for the same offence. If the court of impeachments is merely to pronounce a sentence of removal from office and the other disabilities; then it is indispensable, that provision should be made, that the common tribunals of justice should be at liberty to entertain jurisdiction of the offence, for the purpose of inflicting the common punishment applicable to unofficial offenders. Otherwise, it might be matter of extreme doubt, whether, consistently with the great maxim above mentioned, established for the security of the life and limbs and liberty of the citizen, a second trial for the same offence could be had, either after an acquittal, or a conviction in the court of impeachments. And if no such second trial could be had, then the grossest official offenders might escape without any substantial punishment, even for crimes, which would subject their fellow citizens to capital punishment.

§394. The constitution, then, having provided, that judgment upon impeachments shall not extend further, than to removal from office, and disqualification to hold office, (which, however afflictive to an ambitious and elevated mind, would be scarcely felt, as a punishment, by the profligate and the base,) has wisely subjected the party to trial in the common criminal tribunals, for the purpose of receiving such punishment, as ordinarily belongs to the offence. Thus, for instance,

treason, which by our laws is a capital offence, may receive its appropriate punishment; and bribery in high officers, which otherwise would be a mere disqualification from office, may have the measure of its infamy dealt out to it with the same unsparing severity, which attends upon other and humbler offenders.

§ 395. In England, the judgment upon impeachments is not confined to mere removal from office; but extends to the whole punishment attached by law to the offence. The house of lords, therefore, upon a conviction, may, by its sentence, inflict capital punishment; or perpetual banishment; or forfeiture of goods and lands; or fine and ransom; or imprisonment; as well as removal from office, and incapacity to hold office, according to the nature and aggravation of the offence.

§ 396. As the offences, to which the remedy of impeachment has been, and will continue to be principally applied, are of a political nature, it is natural to suppose, that they will be often exaggerated by party spirit, and the prosecutions be sometimes dictated by party resentments, as well as by a sense of the public good. There is danger, therefore, that in cases of conviction the punishment may be wholly out of proportion to the offence, and pressed as much by popular odium, as by aggravated crime. From the nature of such offences, it is impossible to fix any exact grade, or measure, either in the offences, or the punishments; and a very large discretion must unavoidably be vested in the court of impeachments, as to both. Any attempt to define the offences, or to affix to every grade of distinction its appropriate measure of punishment, would probably tend to more injustice and inconvenience, than it would correct; and perhaps would

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