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1. Letter of the convention, 17th Sept. 1787; 1 Kent Comm. §11, p. 210, 211.
2. 2 Pitkin's Hist. 233, 245, 247, 248; Yates's Minutes, 4 Elliot's Debates, 68, 74, 75, 81, 89, 90, 92; Id. 99, 100, 101; Id. 107, 108, 112 to 124; Id. 125, 126, 127; 1 Elliot's Debates, 66.
3. 2 Pitkin's Hist. 233, 245; Journal of the Convention, 112.
4. On this subject see the Journal of the Convention, 111, 112, 153 to 158, 162, 178, 180, 235, 236, 237, 238; Yates's Minutes, 4 Elliot's Debates, from 68 to 127.
5. 2 Pitkin's Hist. 245; Journal of Convention, 2d July, p. 156, 158; Id. 162, 175, 178, 180, 211; Yates's Minutes, 4 Elliot's Debates, 124 to 127; 2 Amer. Museum. 379.
6. 1 Elliot's Debates, 67; Journal of Convention, 157.
7. Mr. Madison.
8. This summary is abstracted principally from Yates's Minutes of the Debates, and Luther Martin's Letter and Speech, January 27, 1788. See Martin's Letter in 4 Elliot's Debates, 1 to 55. See Yates's Minutes in 4 Elliot's Debates, 68; Id. 74, 75, 81, 89 to 93, 99 to 102, 107, 108, 112 to 127; 2 Pitkin's Hist. 233 to 248. See also The Federalist, No. 22.
9. The Federalist, No. 62; 2 Amer. Museum, 376, 379.
10. The Federalist, No. 62; Rawle on Constit. 36, 37; 1 Kent. Comm. Lect. 11, p. 210, 211; 2 Amer. Museum, 376, 379; 1 Tucker's Black. Comm. App. 195.
11. 2 Wilson's Law Lect. 146, 147, 148.
12. The Federalist, No. 62.
13. The Federalist, No. 27.
14. The Federalist, No. 62; Yates's Minutes, 4 Elliot's Debates, 63, 64; 2 Wilson's Law Lect. 146, 147, 148.
15. The Federalist, No. 62; 1 Kent's Comm. Lect. 11, p. 212, 213.
16. 2 Wilson's Law Lect. 148.
17. The Federalist, No. 63.
18. See Mr. Randolph's fifth Resolution, Journ. of Convention, 67, 86; Yates's Minutes, 4 Elliot's Debates, 58, 59.
19. Journ. of Convention, 105, 106, 130; Yates's Minutes, 4 Elliot's Debates, 58, 59, 63, 64, 99 to 103.
20. Journ. of Convention, 105, 106, 107, 207, 217, 238; Yates's Minutes, 4 Elliot's Debates, 63, 64.
21. Yates's Minutes, 1 Elliot's Debates. 62, 63, 64; :3 Elliot's Debates, 49.
22. The Federalist, No. 62, 27; 1 Kent's Comm. Lect. 11, p. 211.
23. See also The Federalist, No. 27.
24. Rawle on Const, 37; 1 Kent's Comm. Lect. 11, p. 211, 212.
25. 1 Kent's Comm Lect. 1, p. 211, 212. -- Mr. Chancellor Kent says, in his commentaries (1 Kent's Comm. Lect. 11, p. 212), that in New-York the senators are elected by a joint vote, if the two houses do not separately concur. But his own opinion is, that the true construction of the constitution upon principle is, that it should be by a concurrent vote.
26. Mr. Tucker, (the learned Commentator on Blackstone,) in 1803 said: "The whole number of senators is at present limited to thirtytwo. It is not probable, that it will ever exceed fifty." (1 Tuck. Black. Comm. App. 223.) How strangely has our national growth already outstripped all human calculation!
27. Journal of Convention, 23d July, 189. See also Id. 156, 162, 175, 178, 180, 198.
28. See the Remarks quoted in 1 Tucker's Black. Comm. App. 223; 2 Wilson's Law Lect. 150. In 1803 the house of lords was said to be composed of about 220; it now probably exceeds 350.
29. Journal of Convention, 118, 130, 147, 148; Yates's Minutes, 4 Elliot's Debates, 70, 71, 103, 104, 105, 106.
30. Journal of Convention, 67, 72, 118, 130, 147, 148, 149, 207, 217, 238, 353, 373; Yates's Minutes, 4 Elliot's Debates 70, 71, 103, 104,1 05, 106.--Montesquieu seems to have been decidedly of opinion, that a senate ought to be chosen for life, as was the custom at Rome, at Sparta, and even at Athens.a It is well known, that this was Gen. Hamilton's opinion, or rather his proposition was, that the senators should be chosen to serve during good behaviour. (Journ. of Convention, p. 130); North American Review, Oct. 1827, p 266). It appears to have been that of Mr. Jay. (North American Review, Oct. 1827, p. 263.) Mr. Madison's original opinion seems to have been, to have a senate chosen for a longer term, than the house of representatives.b But in the convention, it is said, that he was favourably inclined to Mr. Hamilton's plan.c In a question of so much difficulty and delicacy, as the due formation of a government, it is not at all surprising, that such opinions should have been held by them, and many others of the purest and most enlightened patriots. They wished durability and success to a republican government, and were, therefore, urgent to secure it against the imbecility resulting from what they deemed too frequent changes in the administration of its powers. To hold such opinions was not then deemed a just matter of reproach, though from the practical operations of the constitution they may now be deemed unsound.
a. Montesquieu Spirit of Laws, B. 5. ch. 7.
b. North American Review, Oct. 1827, p. 265.
c. 2 Pitkin's Hist. 259, note.
31. 2 American Museum, 547.
32. Tucker's Black. Comm. App. 196.
33. See ante, §587, etc. on the same point.
34. The Federalist, No. 63.
35. The Federalist, No. 62; 2 Wilson's Law Lect. 146, 147, 148.
36. The Federalist, No. 62; 1 Elliot's Debates, 65, 66; Id. 269 to 284; 3 Elliot's Debates, 50, 51; 2 Wilson's Law Lect. 152; 1 Kent's Comm. Lect. 11, p. 212.
37. The Federalist, No. 62.
38. The Federalist, No. 63; 1 Elliot's Debates, 259, 260, 261, 269 to 284; 2 Wilson's Law Lect. 146, 147, 148, 152; 1 Kent's Comm. 212.
39. See 1 Elliot's Debates, 263, 264, 269 to 278; 3 Elliot's Debates, 48 to 51.
40. The Federalist, No. 62.
41. The Federalist, No. 62; 1 Kent's Comm. 212, 213.
42. The Federalist, No. 62.
43. The Federalist, No. 62; 1 Elliot's Debates, 268, 269.
44. The Federalist, No. 62; 1 Elliot's Debates, 269, 270 to 273; 1 Kent. Comm. 212, 213.
45. The Federalist, No. 62.
46. See 1 Elliot's Debates, 269, 272, 273, 274.
47. See 2 Amer. Museum, 547.
48. The Federalist, No. 63; 1 Elliot's Debates, 269, 272.
49. 1 Elliot's Debates, 272.
50. The Federalist, No. 39.
51. Dr. Lieber's Encycl. Americana, art. Constitutions of the States; The Federalist, No. 39.
52. The Federalist, No. 63.
53. The Federalist, No. 63; Id. No. 34.
54. 1 Elliot's Deb. 64 to 66; Id. 91; 1 Kent's Comm. Lect 11, p. 212, 213.
55. Journ. of convention, 26th June, 1787, p. 149; Yates's Minutes, 4 Elliot's Debates, 103 to 106.
56. 1 Elliot's Deb. 64 to 66; Id. 91, 92; 1 Kent's Comm. Lect. 11, p. 213, 214. A power to recall the senators was proposed as an amendment in some of the state conventions; but it does not seem to have obtained general favour.d Many potent reasons might be urged against it.
d. 1 Elliot's Debates, 257, 258 to 264, 265 to 272; 3 Elliot's Debates, 303.
57. Journals of the Senate, 15th May, 1789, p. 25, 26, (edit. 1820.)
58. Journ. of Convention, 9th Aug. 237, 238.
59. In the ease of Mr. Lanman, a senator from Connecticut, a question occurred, whether the state executive could make an appointment in the recess of the state legislature in anticipation of the expiration of the term of office of an existing senator. It was decided by the senate, that he could not make such an appointment. The facts were, that Mr. Lanman's term of service, as senator expired on the third of March, 1825. The president had convoked the senator to meet on the fourth of March. The governor of Connecticut in the recess of the legislature, (whose session would be in May,) on the ninth of the preceding February appointed Mr. Lanman, as senator, to sit in the senate after the third of March. The senate, by a vote of 23 to 18, decided, that the appointment could not be constitutionally made, until after the vacancy had actually occurred. See Gordon's Digest of the Laws of the United States, 1827, Appendix, Note 1, B.
60. 1 Kent's Comm. Lect. 11, p. 214.
61. 1 Black Comm. 463, 464.
62. Code Civil, art. 388.
63. Journ. of Convention, 118, 147.
64. Rawle on the Constitution, 37; 1 Kent's Comm. Lect. 11, p. 214; 1 Tuck. Black. Comm. App. 223.
65. The Federalist, No. 62.
66. Journ. of Convention, 218, 238, 239, 248, 249.
67. The Federalist, No. 62; Rawle on the Constitution, 37; 1 Kent's Comm. Lect. 11, p. 214.
68. See the Federalist, No. 27.
69. Journal of Convention, p. 218, 240.
70. Ibid, 225, 226.
71. Journal of Convention, 325, 339.
72. 2 Elliot's Debates, 359, 361; 3 Elliot's Debates, 37, 38.
73. 1 Tucker's Black. Comm. App. 224; Id. 199, 200. -- It is a somewhat curious circumstance in the history of congress, that the exercise of the power of the vice president in defeating a bill for the apportionment of representatives in 1792, has been censured, because such a bill seemed (if any) almost exclusively fit for the house of representatives to decide upon;e and that A like bill, to which the senate interposed a strong opposition, in 1832, has been deemed by some of the states so exceptionable, that this resistance has been thought worthy of high praise. There is some danger in drawing conclusions from a single exercise of any power against its general utility or policy.
e. 1 Tuck. Black Comm. App. 199, 200, 225.
74. Sec 2 Amer. Museum, 557; The Federalist, No. 68.
75. 1 Black. Comm. 181; 3 Black. Comm. 47; 1 Tuck. Black. Comm. App., 224.
76. The Federalist, No. 68.
77. The Federalist, No. 68.
78. 2 Elliot's Debates, 359, 360, 361; 3 Elliot's Debates, 37, 38, 51, 52.
79. American Annual Register, 86, 87; 3 American Annual Register, 99; 4 Elliot's Debates, 311 to 315.
80. 3 American Annual Register, 99.
81. See Jefferson's Manual, §15, 17.
82. Rawle on Const. ch. 22, p. 209, 210.
83. 4 Black. Comm. 260; Tacit. de Morib. Germ. 12.
84. 4 Black. Comm. 261; 2 Wilson's Law Lect. 164, 165, 166.
85. 4 Black. Comm. 261; but see Paley's Moral Philosophy, B. 6, ch. 8; 1 Wilson's Law Lect. 450, 451.
86. Montesq. Spirit of Laws, B. 11, ch. 6.
87. Tucker's Black. Comm. App. 318.
88. The Federalist, No. 65, 66.
89. Tucker's Black. Comm. App. 200; Id. 335, 336, 137.
90. Amer. Museum, 549; 3 Amer. Museum, 71; The Federalist, No. 65, 66; 1 Tuck. Black. Comm. App. 337; Jour. of Convention, Supplement, p. 425, 437.
91. The Federalist, No. 65.
92. The Federalist, No. 65; 2 Wilson's Law Lect. 165.
93. The Federalist, No. 65, 66.
94. Id. No. 66.
95. Ante, vol. ii. §524 to 510; Rawle on Constitution, ch. 22, p. 212.
96. 1 Wilson's Law Lect. 451, 452.
97. The Federalist, No. 66.
98. The Federalist, No. 66.
99. Id.
100. Id. No. 66.
101. 1 Tucker's Black. Comm. App. 335, 336.
102. The Federalist, No. 66.
103. The Federalist, No. 66.
104. Journal of Convention, 69, 121, 137, 189, 217, 226, 324, 325, 326, 344, 346.
105. Id. 69, 121, 137.
106. Id. 188.
107. Id. 217, 236.
108. Id. 226.
109. Journal of Convention, 324, 326, 346.
110. The Federalist, No. 65. -- But see Rawle on the Constitution, ch. 22, p. 211, 212.
111. 1 Tuck. Black. Comm. App. 237.
112. The Federalist, No. 65.
113. Rawle on the Constitution, ch. 22, p. 212.
114. 4 Black. Comm, 400, Christian's Note.
115. 2 Woodeson, Lect. 40, p. 602.
116. But see Rawle on the Constitution, ch. 22, p. 214.
117. The Federalist, No. 65.
118. The Federalist, No. 64.
119. Id. No. 65.
120. The Federalist, No. 65.
121. 1 Tucker's Black. Comm. App. 337, 338.
122. Journ. of Convention, Supp. 425, 448.
123. Id. 437.
124. The Federalist, No. 65.
125. Rawle on the Contst. ch. 22, p. 212, 213.
126. 1 Black. Comm. 402; 4 Inst. 49; 3 Elliot's Debates, 53.
127. 1 Black. Comm. 402.
128. Rawle on Const. ch. 22, p. 216.
129. Com. Dig. Parliament, L. 16, 17; 2 Woodeson Lect. 40, p. 612.
130. 4 Black. Comm. 261.
131. The trials, here alluded to, were of William Blount in 1799, of Samuel Chase in 1805, of John Pickering in 1803, and of James H. Peck in 1831. The three former are alluded to in Rawle on the Const. ch. 22, p. 215. See also 4 Tuck. Black. Comm. 261, note; Id. App. 57, and Senate Journals of the respective years. Rawle on Const. ch. 22, p. 215; Scrjeant on Constitutional Law, ch. 29, p. 363, 364.
132. 4 Black. Comm. 335, 361; Hawk. P. C., B. 2, ch. 35.
133. Com. Dig. Parliament, L. 44; 2 Woodeson, Lect. 40, p. 611, to 614.
134. 2 Woodeson, Lect. 40, p. 601, 604.
135. Rawle on the Constitution, ch. 22, p. 217; 2 Woodeson, Lect. 40, p. 608, 609.
136. Com. Dig. Parliament, L. 28 to 30; 2 Woodeson, Lect. 40, p. 619, 620.
137. Journal of the Convention, p. 227, 302, 353.
138. Journal of the Convention, p. 227, 303. See 3 Elliot's Debates, 43 to 46; Id. 53 to 57; Id. 107, 108.
139. In the convention, the clause, making the president liable to removal from office on impeachment and conviction, was not unanimously agreed to; but passed by a vote of eight states against two. Journal of Convention, p. 94, 194, 211.
140. 4 Black. Comm. 200, and Christian's note; 2 Woodeson, Lect. 40, p. 601, etc.; Com. Dig. Parliament, L. 28 to 40.
141. 2 Woodeson, Lect. 40, p. 601, 602.
142. Journal of Convention, 69, 121, 137, 226.
143. Johnson's Dictionary, Civil; 1 Black, Comm. 6, 125, 251; Montesq. Spirit of Laws, B. 1, ch. 3; Rutherforth's Inst. B. 2, ch. 2, p. 23; Id. ch. 3, p. 52; Id. ch. 8, p. 359; Heince. Elem. Juris. Nat. B. 2, ch. 6.
144. 1 Black. Comm. 396, 408, 417; De Lolme, B. 2, ch. 17, p. 446.
145. 1 Black. Comm. 332.
146. Rawle on the Constitution, ch. 22, p. 213.
147. The decision was made by a vote of 14 against 11, See Senate Journal, 10 January, 1799; 4 Tuck. Black. Comm. App. 57, 58; Rawle on Const. ch. 22, p. 213, 214.
148. 4 Tuck. Black. Comm. App. 57, 58; Rawle on the Const. ch. 22, p. 213, 214, 218, 219.
149. See Blount's Trial, p. 34, 35; Id. 49, 50, 51, 52.
150. But see South-Carolina Debates on the Constitution, January, 1788, (printed in Charleston, 1831,) p. 11, 12, 13.
151. The Federalist, No. 66.
152. 3 Elliot's Debates, 43, 44, 45, 46, 56, 57.
153. The arguments of counsel, for and against a senator's being an impeachable officer, will be found at large, in the printed trial of William Blount, on his impeachment. (Philad. 1799.)
154. 1 Rawle on the Constitution, ch. p. 273.
155. Upon the trial of Mr. Justice Chase, in 1805, it was contended in his answer and defence, that no civil officer was impeachable, but "for treason, bribery, corruption, or some high crime or misdemeanour, consisting in some act done or omitted, in violation of law, forbidding or commanding it." "Hence it clearly results, that in civil officer of the United States can be impeached, except for some offence, for which he may be indicted at law; and that no evidence can be received on an impeachment, except such, as, on an indictment at law for the same offence, would be admissible." (1 Chase's Trial, p. 47, 48.) The same doctrine was insisted on by his counsel. (2 Chase's Trial, p. 9 to 18; 4 Elliot's Debates, 262.)
156. 2 Woodeson, Lect. 40, p. 611, 612; 4 Black. Comm. 261, Christian's note, (2.)
157. It is not my design in this place to enter upon the discussion of the much controverted question, whether the common law constitutes a part of the national jurisprudence, on contradistinction to that of the states. The learned reader will find the subject amply discussed in the works, to which he has been already referred, viz. 1 Tuck. Black. Comm. App. Note E. p. 378, etc.; in the Report of the Virginia Legislature of 1799, 1800; in Rawle on the Constit. ch. 30, p. 258, etc., and in Duponceau on Jurisdiction, and the authorities there cited. 1 Kent. Comm. Lect. 16, p. 311 et esq.; North American Review, July, 1825; Mr. Bayard's Speech, Debate on the Judiciary in 1802, p. 372.
158. 1 Journal of Congress, Oct. 1774, p. 29.
159. It may be supposed, that the first charge in the articles of impeachment against William Blount was a statutable offence; but on an accurate examination of the act of congress, of 1794, it will be found not to have been so.
160. See Jefferson's Manual, §53, title, Impeachment; Blount's Trial on Impeachment, p. 29 to 31; Id. 75 to 80, (Philadelphia, 1799.) But see Id. p. 42 to 46. -- In another clause of the constitution power is given to the president to grant reprieves and pardons for offences against the United States, except in cases of impeachment; thus showing, that im-peachable offences are deemed offences against the United Sates. If the senate may then declare, what are offences against the United States by recurrence to the common law, why may not the courts of the United States, under the express delegation of jurisdiction over "all crimes and offences cognizable under the authority of the United States," by the act of 1789, ch. 20, §11, act in the same manner?
161. Dunn v. Anderson, 6 Wheat. R. 204; Rawle on Constit. ch. 29, p. 271, 272.
162. 2 Woodeson, Lect. 40, p. 602; Com. Dig. title Parliament, L. 28 to 40.
163. 2 Woodeson, Lect. 40, p. 602; Com. Dig. Parliament, L. 28 to 40.
164. Com. Dig. Parliament, L. 28 to 40.
165. Com. Dig. Parliament, L. 28 to 40.
166. 2 Woodeson, Lect. 40, p. 602.
167. Rawle on Constit. ch. 22, p. 213; Blount's Trial, p. 49, 50, (Philadelphia, 1799)
168. Rawle on the Constitution, ch. 22, p. 215.
169. See Senate Journal, 14th Jan. 1799; 4 Tucker's Black. Comm. App. 57, 58.
170. Sergeant on Const. Law, ch. 29, p. 363.
171. Upon the impeachment and conviction of John Pickering (12th of March, 1804,) the only punishment awarded by the senate was a removal from office. See also Blount's Trial, 64 to 66; Id. 79, 82, 83, (Philad. 1799; Sergeant on Const. Law, ch. 29, p. 364.
172. See Blount's Trial, 47, 48; Id. 64 to 68, (Philad. 1799;) Id. 82.
173. Mr. Bayard. Blount's Trial, 28, (Philad. 1799.) See Id. 80, 81.
174. Blount's Trial 39, 40, (Phila. 1799;) Id. 80.
175. Blount's Trial, 46 to 49; Id. 62, 64 to 68, (Philadelphia, 1799.) -- William Blount was expelled from the senate a few day before this impeachment, (being then a member,) and on that occasion he was, by a resolution of the senate,f declared to be "guilty of a high misdemeanor entirely inconsistent with his public trust and duty, as a Senator. The offence charged was not defined by any statute of the United States. It was for a attempt to seduce an United States' Indian interpreter from his duty, and to alienate the affections and confidence of the Indians from the public officers residing among them, etc. Journ. of Senate, 8th July. 1797; Sergeant on Const. Law, ch. 28, p. 286, 287.
f. Yeas, 25; Nay, 1.
176. Com. Dig. Parliament, L. 20; 2 Woodeson, Lect. 40, p. 603, 604; Jefferson's Manual, sect. 53.
177. Com. Dig. Parliament, L. 20; 2 Woodeson, Lect. 40, p. 603, 604; Jefferson's Manual sect. 53.
178. Com. Dig. Parliament, L. 21; Jefferson's Manual sect. 53.
179. Com. Dig. Parliament, L. 14, 18, 19, 20; Jefferson's Manual, sect. 53.
180. 2 Woodeson, Lect. 40, p. 605, 606; Com. Dig. Parliament, L. 21; Foster on Crown Law, 389, 390.
181. Rawle on Const. ch. 22, p. 216.
182. Jefferson's Manual, sect. 53.
183. Woodeson, Lect. 40, p. 606, 607; Com. Dig. Parliament, L. 23.
184. Woodeson, Lect. 40, p. 607; Jefferson's Manual sect. 53.
185. See 2 Woodeson, Lect. 40, p. 607; Com. Dig. Parliament, L. 24.
186. See 2 Woodeson, Lect. 40, p. 610.
187. Jefferson's Manual, sect. 53.
188. 2 Woodeson, Lect. 611; Jefferson's Manual, sect. 53.
189. This summary, when no other authority is cited, has been drawn up from the practice, in the cases of impeachment already tried by the senate of the United States, viz. of William Blount, in 1798; of John Pickering, in 1804; of Samuel Chase, in 1804; and of Janes H. Peck, in 1831. See the Senate Journals of those Trials. See also Jefferson's Manual, Sect. 202.
190. Art. 2, clause, 1.
191. 1 Black. Comm. 246, 247.
192. The Federalist, No. 39.