Page:Joseph Story, Commentaries on the Constitution of the United States (1st ed, 1833, vol II).djvu/238

 230 and his estate upon a verdict of a jury acting under the auspices of judges, who had predetermined his guilt?

§ 758. That there is great force in this reasoning all persons of common candour must allow; that it is in every respect satisfactory and unanswerable, has been denied, and may be fairly questioned. That part of it, which is addressed to the trial at law by the same judges might have been in some degree obviated by confiding the jurisdiction at law over the offence (as in fact it is now confided) to an inferior tribunal, and excluding any judge, who sat at the impeachment, from sitting in the court of trial. Still, however, it cannot be denied, that even in such a case the prior judgment of the Supreme Court, if an appeal to it were not allow- able, would have very great weight upon the minds of inferior Judges. But that part of the reasoning, which is addressed to the importance of numbers in giving weight to the decision, and especially that, which is addressed to the public confidence and respect, which ought to follow upon a decision, are entitled to very great weight. It is fit, however, to give the answer to the whole reasoning by the other side in the words of a learned commentator, who has embodied it with no small share of ability and skill. The reasoning "seems," says he, to have forgotten, that senators may be discontinued from their seats, merely from the effect of popular disapprobation, but that the judges of the Supreme Court cannot. It seems also to have forgotten, that whenever the president of the United States is impeached, the constitution expressly requires, that the chief justice of the Supreme Court shall preside at the