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the greater extent of public concernment as the inferior nature of the crime. But if the act committed, amounting at the same time to offences against both bodies, were still in regard to each of them of the same degree, there seems no reasons why each should not sustain its jurisdiction. It would not contravene the maxim that no one shall be twice punished for the same offence, for the offences are different in the eye of the law, although the result of the same act on the part of the culprit. We must, indeed, avoid too broad a construction of this maxim, for a double punishment for the same act is not wholly unknown to the law, if the forms of proceeding and the objects are different, thus, he who has committed an assault, battery, wounding, or maihem, on the person of another, is liable both to an indictment and to a civil action for damages. The satisfaction received by the public does not prevent the injured party from obtaining his peculiar redress. If the infliction of punishment by the state could impede the prosecution of the United States in such a case, a pardon granted by the state would have the same effect, yet it would be absurd to suppose that a pardon granted by the state for murder committed in the perpetration of treason, could bar the prosecution of the United States for such treason. On the whole, this difficult question may be fairly resolved on the principle, that immunity for one crime cannot be obtained by proving that in doing the act he committed another; and further, that each community is entitled, and its public officers are required to prosecute offences committed against it. (96)

(96) See the discrepant opinions of the judges of the Supreme Court of the United States in Houston v. Moore. The author of course adopts, and takes the liberty to say that in his own judgment he prefers, those of the majority.

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Of Impeachments.

WE are next to consider what courts or judicial tribunals are created by the constitution itself, and what have been created under the power to that effect given to congress.

The language of the text is, that the judicial power of the United States shall be vested in one supreme court, and in such inferior courts as congress may from time to time ordain and establish.

But no mention is made in any part of this article, otherwise than by way of exception as to the mode of trial, of a very high tribunal, which seems rather to have been supposed to flow from the formation of the constitution than to be expressly created by it.

The first mention of it is contained in the following words :-"The house of representatives shall have the "sole power of impeachment."

In the third section it is said, that the senate "shall "have the sole power to try all impeachments. When 66 sitting for that purpose, they shall be on oath or affir"mation. 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."

Impeachments are thus introduced as a known definite term, and we must have recourse to the common law of England for the definition of them.

In England, the practice of impeachments by the house of commons before the house of lords, has exist

ed from very ancient times. Its foundation is, that a subject entrusted with the administration of public affairs, may sometimes infringe the rights of the people and be guilty of such crimes as the ordinary magistrates either dare not or cannot punish. Of these the representatives of the people or house of commons cannot judge, because they and their constituents are the persons injured, and can therefore only accuse. But the ordinary tribunals would naturally be swayed by the authority of so powerful an accuser. That branch of the legislature which represents the people, therefore brings the charge before the other branch, which consists of the nobility, who are said not to have the same interests, or the same passions as the popular assembly.

Such is the English theory of impeachments, as laid down by Blackstone, (97) and it well suits a government in which there are three distinct and independent interests, and in which the crown possessing the power of appointing the high officers who are most frequently the subjects of impeachments, has also the sole power to carry on or withdraw prosecutions in the ordinary courts. For no misconduct, however flagrant, committed by such men could the people obtain redress, if the monarch inclined to refuse it, unless a mode of proceeding had been invented which did not require his assent, and which he could not control, and therefore, as heretofore observed, he cannot defeat the inquiry by a previous pardon, although in the exercise of another branch of his prerogative, he may delay it by adjourning or proroguing the session of the parlia


The difference between the two governments has no doubt already occurred to the reader. Our ordinary


(97) Vol. 1. p. 259.

tribunals are not dependent on the pleasure of him who appoints the judges, nor are they to be influenced by the authority of the accuser in a case of this sort more than in any other, for with us the people are considered as the accusers in all cases whatever. In England the king is the accuser, (except in the instance now under consideration,) and all offences are charged to have been committed against his peace, his crown and dignity.

Still less are the weight and influence of any man, however exalted his station, or great his wealth, likely to deter our judges from an impartial administration of justice.

Yet although the reasons are not equally cogent, they will be found on examination sufficient to warrant the introduction of the system into our code.

We shall now proceed to consider—

1. The necessity or utility of impeachments.

2. The necessity or utility of erecting a separate tribunal for the trial of impeachments.

3. The propriety of rendering the senate such a tribunal.

4. The persons liable to be impeached.

5. The constitution of the court, its mode of proceeding, and the extent and effect of its judgments.

1. The delegation of important trusts, affecting the higher interests of society, is always from various causes liable to abuse. The fondness frequently felt for the inordinate extension of power, the influence of party and of prejudice, the seductions of foreign states, or the baser appetite for illegitimate emolument, are sometimes productive of what are not unaptly termed political offences, (98) which it would be difficult to

(98) Federalist, No. 65.

take cognizance of in the ordinary course of judicial proceedings.


2. The involutions and varieties of vice are too many, and too artful to be anticipated by positive law, and sometimes too subtle and mysterious to be fully detected in the limited period of ordinary investigation. As progress is made in the inquiry, new facts are discovered which may be properly connected with others already known, but would not form sufficient subjects of separate prosecution. On these accounts a peculiar tribunal seems both useful and necessary. A tribunal of a liberal and comprehensive character, confined as little as possible to strict forms, enabled to continue its session as long as the nature of the case may require, qualified to view the charge in all its bearings and dependencies, and to appreciate on sound principles of public policy, the defence of the accused; the propriety of such a separate tribunal seems to be plain, but not upon the assumed ground that the judges of the Supreme Court would not possess sufficient fortitude to perform the duty, or sufficient credit and authority to reconcile the people to their decisions. (99)


3. To compose this court of persons wholly distinct from the other branches of government-to form a permanent body for this single purpose-and to keep them always collected at the seat of government for the possible occurrence of an impeachment, would be as inconvenient as to appoint and collect such a body from time to time, when an impeachment is determined on.

On a review of all the departments of government provided by the constitution, none will be found more

(99) This is one of the few points in which the author is compelled to differ from that excellent work the Federalist.

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