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ment; but as the legislatures may prescribe the manner of choosing senators, it has been considered and settled, in the State of New York and several other states, that the Legislature may direct them to be chosen by the joint vote, or ballot, of both houses, in cases of non-concurrence; and then, of course, the weight of the least numerous branch is dissipated and overcome by the heavier vote of the other. This construction has been found the most convenient, and has been too long settled, by the recognition of senators so elected, to be now disturbed; but were the question an open one, I think it might be maintained that, when the Constitution directed the federal senators to be chosen in each state “by the Legislature thereof,” it meant the Legislature in the true technical sense of the term, consisting of two branches, acting in their separate and organized capacities, with the ordinary constitutional negative on each other's proceedings, and not the members of the two houses per capita.
The smaller number and longer duration of the Senate were intended to render it a safeguard against those paroxysms of heat and passion which prevail occasionally in more popular assemblies. The characteristic qualities of the Senate, in the intendment of the Constitution, are wisdom and experience. The legal presumption, therefore, is, that it will entertain more enlarged views of public policy, and feel a higher and juster sense of national character, and a greater regard for stability and permanence in the administration of the government, than a more numerous and changeable body. These qualities, indeed, may be found, too, in the other branch
of the Legislature, but its constitutional structure is not so well calculated to produce them ; for as the House of Representatives comes more immediately from the people, and its members hold their seats for a much shorter term, they are presumed to partake, with a quicker sensibility, of the prevailing temper and irritable disposition of the times, and to be in much more danger of adopting measures with precipitancy and changing them with levity, than the more sage and experienced members of the more select and less numerous body. In order, therefore, to counteract these propensities, to maintain a greater confidence in the government, and to ensure its safety at home and its character abroad, it was necessary that another body of men, coming likewise, though mediately, from the people, and equally responsible to them for their conduct, but resting on a more permanent basis, and constituted with stronger inducements to moderation in debate and tenacity of purpose, should be placed as a check upon the natural intemperance of the younger and more popular branch.
The Senate, at its first organization, was divided, in the mode pointed out in the Constitution, into three classes. The rotation intended by that division was originally determined by lot, and the seats of one of the classes became va. cant at the expiration of every second year; so that one third of the Senate is regularly chosen every two years. This provision was borrowed from some of the state constitutions, of which that of Virginia gave the first example ; and it is admirably well calculated, on the one hand, to infuse into the Senate renewed confidence and
vigour, and, on the other, to retain a large portion of experienced members, duly initiated into the general principles of national policy, and the forms and course of legislative business.
The Senate has the sole power of trying impeachments. The first recognition of a court for that purpose is in the article of the Constitution we are now examining, which declares that " the House of Representatives shall have the sole power of impeachment,” and that “the Senate shall have the sole power to try all impeachments.” The term is thus introduced as of a known and definite signification; and a well-constituted court for the trials of impeachments was considered by the authors of To The Federalist” as an object not more to be desired than difficult to be obtained, in a government wholly elective. The delicacy and magnitude of a trust which so deeply concerns the political reputation and existence of every one engaged in the administration of public affairs, may be readily perceived; as will also the difficulty of placing it rightly in a government in which the most conspicuous persons are the leaders, and too often the instruments of party, and can, therefore, hardly be expected to possess the neutrality requisite in regard to those whose conduct may be submitted to their scrutiny. It would be improper, too, to commit the cognizance of those offences which are the objects of an impeachment to the ordinary courts of justice, as the complexities and variety of political delinquencies are too numerous and artful to be anticipated by positive enactments, and sometimes too subtile and mysterious to be fully detected and exposed, in the limited period of ordinary investigation. A peculiar tri. bunal seems, therefore, useful and necessary; an institution of a liberal and comprehensive character; confined as little as possible to strict forms; enabled to continue its sessions as long as the nature of the case before it may require ; qualified to view the charge in all its bearings and dependances, and to appreciate, on sound principles of public policy, the defence of the accused.
To compose this court of persons wholly distinct from the other branches of the government, and forming a permanent body for the single purpose of exercising this jurisdiction, would have been as inconvenient as to appoint and collect temporary judges whenever an impeachment may be determined on. The Convention who formed the Constitution thought it most fit and safe to make the Senate the depositary of this important trust; and, upon a review of all the departments of the government, no other could have been found so suitable for the exercise of this important jurisdiction. The model from which this institution was borrowed was the British House of Peers, and it had been previously adopted in several of the state constitutions. Besides the reasons already suggested against vesting it in the ordinary courts, there remains this farther consideration, that the punishment consequent upon conviction is not the only one to which the offence is liable. The judgment, in cases of impeachment, extends no farther than removal from office, and disqualification to hold in future any office of trust or profit under the United States. But the party convicted is, nevertheless, subject to prosecution according to the usual course of administering the law; and it would be obviously improp
er, if not in a high degree dangerous, that the same tribunal who had already disposed of the fame and character of the accused, and of his most valuable political rights as a citizen, should, in another trial for the same offence, be also the arbiter of his life, liberty, or property.
The only persons liable to impeachment with us are those, we have seen, who are, or have been, in public office. But a construction has been given to the Constitution, by which a member of the Senate was held not to be liable to impeachment. The deliberations of the court being held in secret, we can only infer from the arguments urged at the bar, that the term “ officers” used in the Constitution was held not to include senators; and on the same principle, members of the House of Representatives would also be exempt from liability to this jurisdiction. The grounds of the distinction may probably have been that the power of impeachment was considered merely as a check given to the Legislature upon the other two departments, and that, as each house of Congress was the judge of its own members, all the ends of punishment might be attained by expelling a delinquent member.
When sitting as a court for the trial of impeachments, the senators are put under oath or affirmation faithfully and impartially to discharge their judicial functions. No person can be con. victed but with the concurrence of two thirds of the members of the court; the Vice-president of the United States, as President of the Senate, being a member of the court, with a constant instead of a contingent vote, presides in it, except when the President of the United States is tried ; on which occasion the chief-justice presides.