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don extends only to the punishment which is then pronounced, and does not affect the sentence of the senate.
We may perceive in this scheme one useful mode of removing from office him who is unworthy to fill it, in cases where the people and sometimes the president himself, would be unable to accomplish that object. A commission granted during good behaviour can only be revoked by this mode of proceeding. But the express words of the constitution also extend to the president and vice president, who partake of the legislative capacity, and are chosen by the people. When this corrective jurisdiction is thus applied; when it reaches all judicial officers, all civil officers appointed by the president during pleasure, and involves in its grasp the vice president and the president himself, it is difficult to conceive that it was intended to exempt men whose treachery to their country might be productive of the most serious disasters, because they do not come precisely within a verbal description supposed to be exclusively applicable to those who, except in the two instances of specific enumeration, receive commissions from the president. A member of either house of the legislature betraying his trust and guilty of the most culpable acts of an official nature is, under the decision of the senate, liable, indeed, to expulsion, but not to impeachment; liable to the ordinary course of legal proceedings, but not to disqualification. Yet as from the judgment of this high tribunal there is no appeal; as the decision which has been given in the case adverted to is a judicial one, and probably will be held binding on themselves on all future occasions, we must now receive it as the settled construction of the constitution.
Whether an amendment of the constitution in this respect will ever be made, is not for the author to anticipate.
Of another Special Jurisdiction.
THERE is another species of courts having a special jurisdiction, from which trial by jury is also excluded, yet whose power extends to pecuniary mulcts, deprivation of office, imprisonment, personal chastisement, and even loss of life. It will be at once perceived that we allude to courts martial.
Although not expressly mentioned in the constitution, the power to institute them is unquestionably given by the authority vested in congress to make rules for the government and regulation of the land and naval forces, and the amendment heretofore noticed, which, before a person shall be held to answer for a capital or otherwise infamous crime, requires a presentment or indictment by a grand jury, excepts the land and naval forces, and the militia when in actual service in time of war or public danger, thereby indirectly recognizing the establishment and the efficient powers of courts martial.
Congress has reasonably and moderately executed this power, but the details are inconsistent with the plan of this work. The subjects of a court martial are only those who fall within the above descriptions. Martial employment creates martial law, and requires martial courts. On the civil class of the community, it can never operate, except perhaps in one instance, which, on our part, could not well apply to one of our own citizens or inhabitants. It is a settled principle of the laws of war that a spy may be put to death. One
detected in his obnoxious employment within our lines in time of war, although not himself a soldier, is a legitimate subject of this severity, and upon the same principle we should be bound to admit the right of the enemy to execute any of our citizens or soldiers, apprehended by them in the performance of the same
We have heretofore adverted to the procedure of president Madison (100) in the case of a citizen of the United States who had joined the enemy during the late war, and was apprehended as a spy within our lines on the frontiers; the course pursued by his directions was both humane and consistent with the true principles of law. It gave to the individual the fairer prospect of acquittal on a trial by jury, accompanied with all the guards and precautions allotted to charges of treason; while it more extensively enforced a principle of which all should be apprized, that it is lawful for no one to desert his country in the hour of her danger and lift a parricide arm against her.
(100) p. 93.
Of General Tribunals, and first of the Supreme Court.
A view of the general system will now be taken. The only tribunal expressly noticed in the constitution is the Supreme Court, whose power is co-extensive with all the exigencies of the government, and pervades every part of the United States and the territories belonging to them. In many particulars, however, it possesses only an appellate jurisdiction; in a few its jurisdiction is original.
In the latter are embraced all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party.
Cases of the first description may be either civil or criminal. The protection afforded by the laws of nations, to diplomatic functionaries, extends however so far, that it is not easy to conceive any case in which a person invested with that high character can be subjected either to criminal or civil proceedings. But he may be entitled to prosecute others-he may have received outrages or insults affecting his national character, for which redress may be justly due. The United States, who are responsible to foreign nations for their ministers receiving all due respect and an almost unlimited freedom in the exercise of their functions, supply the proper means for these purposes in taking on themselves and vesting in their highest tribunal, the cognizance of such cases. When the proceedings are against one of these officers, we must con
sider the jurisdiction of the United States as being from its own nature exclusive of the state courts.
It may not be equally clear, that if he should be the complainant, and seek redress in either a criminal or civil case in the forum of a state, that the latter could not take cognizance of it. The unity of the system would perhaps be better promoted, if the state courts were authorized to decline the cognizance of all such cases. The United States are responsible to foreign nations for the due administration of justice in their own tribunals only, and it might involve them in some difficulties, if state courts, whose judges they do not appoint, and whom on account of malconduct they could not impeach, were to intermeddle even on the application of the minister himself in cases of this nature. But if the state courts are not prohibited by their own constitutions, it does not appear that they could justly refuse their assistance to a foreign minister who thought it expedient to apply to them, although perhaps some political inconvenience may occur to the mind reflecting on the possibility of widely different views being entertained on the same subject by a state court and a court of the United States. Congress (101) has declared the jurisdiction of the Supreme Court to be exclusive in all such suits or proceedings against ambassadors or other public ministers, their domestics, &c. as a court of law can have or exercise consistently with the law of nations, but they have gone no further.
Such cases certainly come within the terms used in the constitution "affecting ambassadors, &c." and such jurisdiction must have been intended to be exclusive. The power given to congress to define and to punish offences against the law of nations, has been partly
(101) By the act of 24th Sept. 1789.