evidently referring to the Senate, or the Senate in connection with the House—
“can remove him, if found guilty; they can suspend him, when suspected, and the power will devolve on the Vice-President.”[95]
Mark well these words,—“they can suspend him, when suspected.” If only suspected, the President can be suspended. What next? “And his power will devolve on the Vice-President.” In which event, of course, the Vice-President would be occupied elsewhere than in this Chamber.
Those were the words of James Madison, spoken in debate in the Virginia Convention. Taken in connection with the earlier passage in the National Convention, they seem to leave little doubt with regard to the intention of the framers of the Constitution. They were unwilling to give to the other House alone the power of suspension; but they saw, that, when they authorized the Senate to try impeachments, they gave to it the power of suspension, if it should choose to exercise it; and the suspension of the President necessarily involved the withdrawal of the Vice-President from this Chamber, and the duty of supplying his place.
I submit, then, on the contemporary testimony, that the special reason why the Chief Justice is called to preside, when the President is on trial, is less what learned Senators have assigned than because the Vice-President under certain circumstances would not be able to be present. It was to provide for such a contingency, being nothing less than his necessary absence in the discharge of the high duties of Chief Magistrate, that a substitute was necessary, and he was found in the Chief Justice. All this was reasonable. It would have been unreasonable not to make such a provision.
But this is not all. There is an incident, immediately after the adoption of the Constitution, which is in harmony with this authentic history. The House of Representatives at an early day acted on the interpretation of the Constitution given by Mr. Madison. The first impeachment, as we all know, was of William Blount, a Senator, and in impeaching him the House of Representatives demanded that he should “be sequestered from his seat in the Senate.” This was in 1797. The Senate did not comply with this demand; but the demand nevertheless exists in the history of your Government, and it illustrates the interpretation which was given at that time to the powers of the Senate. The language employed, that the person impeached should be “sequestered,” is the traditional language of the British Constitution, constantly used, and familiar to our fathers. In employing it, the House of Representatives gave their early testimony that the Senate could suspend from his functions any person impeached before them; and thus the House of Representatives unite with Madison in supplying a sufficient reason for the provision that on the trial of the President the Chief Justice shall preside.
In abandoning the reason which I have thus traced to contemporary authority, you launch upon an uncertain sea. You may think the reason assigned by the commentators to be satisfactory. It may please your taste; but it cannot be accepted as an authentic statement. If the original propositions were before me, I should listen to any such suggestion with the greatest respect. I do not mean to say now, that, as a general rule, it has not much in its favor; but I insist, that, so far as we are informed, the reason of the commentators was an afterthought, and that there was another reason which sufficiently explains the rule now under consideration.
I respectfully submit, Sir, that you cannot proceed in the interpretation of this text upon the theory adopted by the learned Senators over the way. You must take the text as it is. You cannot go behind it; you cannot extend it. Here it is: “When the President of the United States is tried, the Chief Justice shall preside.” That is the whole, Sir. “The Chief Justice shall preside.” No reason is assigned. Can you assign a reason? Can you supply a reason? Especially can you supply one which is not sustained by the authentic contemporary history of the Constitution, and particularly when you have authentic contemporary history which supplies another reason? Unless I am much mistaken, this disposes of the objection, proceeding from so many Senators, that the Senator from Ohio cannot take the oath because he may possibly succeed to the President now impeached at your bar. He may vote or not, as he pleases; and there is no authority in the Constitution, or any of its contemporary expounders, to criticize him.