Page:Joseph Story, Commentaries on the Constitution of the United States (1st ed, 1833, vol II).djvu/254

 246 elaborate commentary. The first is, that the senate, when sitting as a court of impeachment, "shall be on oath or affirmation;" a provision, which, as it appeals to the conscience and integrity of the members by the same sanctions, which apply to judges and jurors, who sit in other trials, will commend itself to all persons, who deem the highest trusts, rights, and duties, worthy of the same protection and security, at least, as those of the humblest order. It would, indeed, be a monstrous anomaly, that the highest officers might be convicted of the worst crimes, without any sanction being interposed against the exercise of the most vindictive passions; while the humblest individual has a right to demand an oath of fidelity from those, who are his peers, and his triors. In England, however, upon the trial of impeachments, the house of lords are not under oath; but only make a declaration upon their honour. This is a strange anomaly, as in all civil and criminal trials by a jury, the jurors are under oath; and there seems no reason, why a sanction equally obligatory upon the consciences of the triors should not exist in trials for capital or other offences before every other tribunal. What is there in the honour of a peer, which necessarily raises it above the honour of a commoner? The anomaly is rendered still more glaring by the fact, that a peer cannot give testimony, as a witness, except on oath; for, here, his honour is not trusted. The maxim of the law, in such a case, is injudicio non creditur, nisi juratis. Why should the obligation of a judge be less solemn, than the obligation of a witness? The truth is, that it is a privilege of power, conceded in barbarous times, and founded on feudal sovereignty, more than on justice, or principle.