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serving the constitution; and secured, as far as men can be, from the influences most likely to distract and impair their discharge of that duty ?
Therefore it is that the constitution most wisely makes the judi. ciary independent. In all other governments the judicial power is but a part of the exercise of the executive power. Once, the king sat in the gate of his court-yard, and administered justice to all who came. That was a long time ago. But at this day the personal sovereign, wherever there is one, appoints the judges; and they are his ministers, and he does justice through them. Here, our sover. eign, the people, through their servants, selects them, and then they are amenable to the people alone; being just as independent of the executive and legislative bodies, as these bodies are of the judiciary.
Our constitution, and our system of government under the constitution, may be compared to an arch, so skilfully, so well adjusted in all its parts, that it is idle to call one of its members more essential to its existence and its strength than another. But if to any of the stones which compose it we would give the name of Keystone, we must give it to the judiciary. Whatever strengthens that stone strengthens the whole; whatever weakens it weakens the whole; take it away, and the whole would fall into ruin.
There are but two ways which we can think of by which its functions could be made still more useful, and by which it could be still better protected from harmful influences. One would be this: to introduce a principle known to some of the States, - in Massachusetts, for example, it has worked excellently, — by which the President, or either body of Congress, might call for the judgment of the court upon the constitutionality of any proposed measure. Instances have already occurred in our history in which such a practice might have been eminently useful.
The other is this. Provide, by an amendment of the constitu. tion, if that be necessary, that a person appointed a justice of the Supreme Court, and accepting that office, should be thereafter unable to hold any other office in that court or elsewhere, either by the appointment of the executive or by an election of the people, Already there is assigned to that office a competent salary and a retiring pension, which may relieve the holder from pecuniary anxiety. Let them be increased, if need be, that the emolument may co-operate with the honor of the place to call the ablest men in the country into the service of the country. Then let the rule above stated be established, and the strongest, perhaps the last, temptation to yield to the corrupting influence of political ambition would be taken away.
Before treating of Congress, as composed of the two Houses acting concurrently, the subject of impeachment may be considered; for in this both Houses act indeed, but in totally different ways.
The House of Representatives alone has the power of impeachment. Acting as the grand inquest of the nation, it finds articles of impeachment, which are substantially an indictment; and, by a committee, presents them to the Senate, which alone can try the case.
The whole system is imitated, and on some important points closely imitated, from the practice of England. The framers of the constitution found it a very difficult matter to deal with aright. They were much divided in opinion about it; and all knew that any system they could adopt would be open to objections; and they finally concluded on copying the English practice, so far as this approved itself to their judgment, as on the whole adapted to the purpose.
Many preferred that the Supreme Judicial Court should try such cases. But to this it was objected that one or more of their own number might be the subject of impeachment, and that all of them had been appointed by a President, and some of them, perhaps, by the President who was himself impeached. Then, great difficulties were found in giving this function to a special court created for the purpose. And, on the whole, the Senate was selected. Experience has thus far confirmed the wisdom of the choice.
The Chief Justice of the Supreme Court presides. The articles are presented and the trial conducted on the part of the House by managers chosen from among the members. The accused is defended by counsel; and the trial proceeds and evidence is offered on the one side and the other, according to the rules of the common law and the practice of courts and parliamentary usage. At the close of the evidence and arguments, each senator is called upon to say whether the defendant “is guilty or not guilty of a high crime and misdemeanor, as charged in the first article of impeachment.” And the same question is put to each senator as to each article. Two-thirds of the Senate must answer that he is guilty upon some one or other of the articles, or the defendant is entitled to an acquittal.
If he is convicted upon all or upon any one or more of the articles. the Senate then proceeds to declare the proper punishment. There are two clauses in the constitution which relate to the punishment of one found guilty under an impeachment. One provides that the guilty party “shall be removed from office.” The other provides that the judgment “ shall not extend further than a removal from office, and a disqualification to hold any office of honor, trust, or profit under the United States.” The settled construction of these clauses appears to be that the guilty party must be removed from office, and may be disqualified from holding office in future, if the Senate in its discretion thinks proper to inflict this additional punishment. The constitution both wisely and mercifully affixes these limits to this judgment. In England, political offenders, when impeached by the commons and found guilty by the Lords, have been sentenced to death by them. But the framers of the constitution regarded impeachment as mainly, if not altogether, a method of securing the community against the continuance in office, or the return to office, of bad men.
Hence the clause in the constitution which limits the punishment to be inflicted by the Senate closes with this provision : “But the party convicted shall nevertheless be liable and subject to indictment, trial, judgment, and punishment, according to law.” Thus, if a President were impeached for treason, found guilty, and removed from office, he might afterwards be indicted in a court of law, capi. tally convicted, and put to death.
WHO MAY BE IMPEACHED.
Some question has been made of this. The fourth section of the second article says: “ The President, Vice-President, and all civil officers of the United States, shall," &c. Not all other civil officers, but all civil officers. The best construction, and that generally admitted, is, all officers of the United States appointed under the national government, whether executive or judicial, and in high or low office, are subject to impeachment. The only apparent exception to this is in the case of the Senate. It seems to be settled that no senator is subject to impeachment. Various reasons are given for this. It is enough to say that the Senate might expel a member by a two-thirds vote, and could do no more if impeached and found guilty, except to add, if they saw fit, the further punishment of disqualification for office. It has been said, but not determined, that, by a similar exception, a member of the House of Representatives cannot be impeached. This exception may rest on the power of expulsion which the House possesses, and also, both in respect to the Senate and the House, on the distinction that they are not “civil officers of the United States,” inasmuch as they hold office from the people of the States, and not from or under the national government.
FOR WIAT OFFENCES AN OFFICER MAY BE IMPEACHED.
The constitution says: "treason, bribery, or other high crimes and misdemeanors.” This phrase, “high crimes and misdemeanors," is a technical legal phrase, and may be said to be sufficiently defined by the common law. Congress might undoubtedly define it by law, but has never done so. An impeachment by the House, and a reception and trial of the impeachment by the Senate, would be, in another form, a declaration of the views of Congress in that particular case, and might have the force of a precedent, but not of a law.
The offence charged must be not an offence only, but a high crime and misdemeanor. What this is must be left for the House as accusers, and the Senate as triers, to determine. If they make a mistake, there seems no way to rectify it; for the case of impeachment is expressly excepted from the President's power of pardon. It cannot be doubted that the purpose of this great and exceptional power was to remove bad men from important offices, where they might do much harm. And there is little reason to fear that it will be prostituted to punish lesser or meaner wrong-doing.
THE WAR POWER.
Congress has power “to declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water.”
The power to declare war obviously belongs of necessity to national sovereignty. There was much discussion among the framers of the constitution as to where this power should be lodged. In monarchical nations it belongs to the monarch alone; and there were some who thought the President with the Senate should have the power. But it was wisely concluded to give that power only to Congress.
Congress may declare war generally, as it did in 1812, when it was enacted, in the manner in which all laws are passed, that “ be and hereby is declared to exist between the United Kingdom of Great Britain and the dependencies thereof, and the United States of America and their territories.” But Congress may also declare what may be called a qualified, partial, or imperfect war, as it did in the year 1798 with the kingdom of France; and divers laws were enacted concerning the same.
The issuing of letters of marque means the giving authority to parties injured by a foreign nation to seize the property or the per
Bons of subjects of the State which did the injury, until satisfaction be received. Such authority was formerly given to the owners of private ships who had sustained injury from a foreign nation; anal it authorized them to take prizes by way of indemnity. These were called special letters of marque and reprisal. Now, however, letters of marque issue only in time of war. They are a commission from the President to owners of private ships to make what prizes they can, and where they can.
This business of privateering is now carried on by all nations in vime of war. But of late years there have been many strong efforts to abolish it, and to put private property on the sea on the same footing with private property on land, which the law of nations protects from destruction or injury, and especially from capture, unless these are necessary for purposes of war. Hitherto these efforts have been ineffectual; but it may be hoped that in time, as nations grow more civilized and international law becomes wiser and more humane, these efforts will be successful.
As Congress may declare war, so it has power “to raise and support armies ;” but to this power is added a provision, which is a most important check upon the abuse of this power: “ but no appropriation of money to that use shall be for a longer term than two years."
Under the general authority given to Congress to pass laws neoessary and proper for carrying the provisions of the constitution into effect, Congress has passed many laws regulating prizes, and other matters of like kind. In general, a captured vessel must be brought into one of our own ports, and proceedings commenced before a court of competent jurisdiction, which is nearly always a Court of Admiralty. If the vessel is adjudged to have been unlawfully captured, she is surrendered to her owners. If lawfully captured, she is declared to be and is condemned as a prize. Ship and cargo are then sold, and the money divided among the captors as the laws of Congress direct.
ARTICLES OF WAR.
These are statutes passed from time to time by Congress regulating with considerable minuteness all military affairs. Every officer in the army is required to subscribe to them before he enters upon his duties; this subscription signifying not only an acknowledgment of notice, but a promise to obey them.
These articles are more than a hundred in number. They prohibit embezzlement of public property, cowardice before the enemy; drunkenness, oaths, and profanity; offering violence or disrespect in