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visions were absolutely essential to its permaowice and prcserva-

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tion. Without saoh remedies the GoTemment woald have been as
impotent to enforce the duties wbich it created as it woald have been
powerless to preserve the rights, public and private, which it had
been ordained to protect. If any fact touching the Constitution is
clearly incontrovertible, it is, that the convention which framed it
intended to deprive all officials, from the highest to the lowest, of all
opportunity to violate their official trust, to enlar^ their duties, or in
any way to encroach upon the liberties of the citizen.

These wise men were fuUv versed in English history. They well
knew, that the perpetuity of the Government about to be inaugurated
might be as much endangered by cormptioa and venal prostitution,
of patronage to selfish and ignoble ends, as from the more open and
danng attempts of unlicensed power for its overtiirow and subver-

It devolves on this court so to construe the Constitution in this case,
as shall harmonize all its provisions, and best secure and effectuate
the great objects sought to be achieved by the statesmen who framed
and the people who adopted it.

It is argued by the counsel for the accused and by Senators who con-
cur with them, that the Constitution delegates no express power of
impeachment, but that all the authority of the House, or of the Senate
over this subject arises by legal implication from section 4, article
2, of the Constitution.

That declares —

The President, Tioe-Preeident »ad all oivil ofBcers of the ITiilted Ststee, shsll be
remoTed from office on impesohment for, and o<niYlction of, troMon, brlbovy, or
other hifih crimes and misdemeanors.

The advocates of thisconstruction propose to transpose this last-cited
section from the second article of the Constitution, creating the ex-
ecutive department of the Government, to the first article of that in-
strument, creating the legislative department and containing the
various delegations of express and implied power to Congress. The
admitted necessity of such a transposition is a strong argument
against the construction that looks to it for support. Upon this pre-
cise point, an eminent Judge of the Supreme Court of the United
States, when, in an argument many years ajgo of a constitutional ques-
tion before tnat court a similar transposition of a clause of the Con-
stitution was proposed in order to support a particular construction
of that instrnmentj said —

That the derangement of the words or even sentences of a law may sometimes be
tolerated in order to MTive at the meaning of the Legislatore. Bat it is a hazard-
oQs mlo to adopt in tho construction of an instrument so maturely considered as
tho Constitution was bv enlightened statesmen who framed it, and was so severclv
oxaroined and criticised by its soToral parts in tho various State conventions wbicn
finally adopted iL (Ogden vt. Saunders, 13 Wheaton's Reports, page 967.)

Tbis fourth section of article 2 contains nothing upon which Juris-
dictional power can be implied. It does not in any way refer to the
power of impeachment. It fails to declare that any officer or class
of officers may or may not be impeached in or out of office. So far
from any leffal implication of Jurisdictional power to impeach, tbis
section directly recognizes that Judicial procedure as already estab-
lished in the Constitution. I know of no rule of construction which
would justify the implication of a power from any section in the Con-
stitution which recognized that power as already exisiting by express

If the framers of the Constitution, acquainted as they were with
the historical and legal meaning of impeachment, personal witnesses
too of its exercise as a parliamentary accusation and trial of guilty
officials in England for many years, with its attendant abuses, deter-
mined to incorporate this great remedial process into the Constitu-
tion of the United States, it would have be«n a remarkable oversight
had they failed to guard its exercise with ample and full Jurisdic-
tional power. These enlightened guardians of popular rights could
never have consented to leave so important a sanction of the Con-
st itn tion unguarded. Accordingly, the fifth clause of section 2, arti-
cle 1, already quoted, provides :

The House of Representatives shall choose their Speoker and other officers; and
shall have the sole power of impeachment.

The third section of article 1 provides :

The Senate shall choose their other officers, and also a President pro tempore^ in
tho ab^nce of the Yioe-Preeident, or when he shall exercise the office of President
of tho tTnited States.

The Senate shall have the 9ole powtr totryaU impeaehmentt.

These two sections would seem to allow no room for doubt as to
their true meaning and exact intendment. They are clear, direct, and
simple. The grant of power in each is as absolute, plain, and as ex-
clusive, as words can express or severely power bsstow.

It is claimed that the Constitution fails to define impeachment or
what are impeachable crimes, or to enumerate the persons subject to
be impeached. Consequently, that the two sections of article I of
the Constitution last cited, must be construed,not as grants of express
power either to the House or to the Senate, but as merely descriptive
of a power and distributive of its exercise to the two Houses of Con-

But tbis argument clearly rests on a false premise.

It is true tnat the Constitution does not define imx>eachmeut, or
impeachable crimes, nor does it designate the persons liable to im-
peachment. But I am unable to perceive how a failure to define
any term in the Constitution could weaken, much less destroy, any
exx>ree8 grant of power in that instrument. This argumcnt| if car-

ried to its legitimate sequence, would tend to overthrow all the express
grants of power in the Constitution. Habeas corpus is guarded from
suspension in the Constitution, but it is not defined. Tne efficacy of
that great writ, for so many centuries the safeguard of individual
liberty everywhere, is not now to be weakened for want of a consti-
tutional dennition. So, too, of the privilege of Juiv triaL Although
incorporated into the organic law of the Federal Union, it fails to
define the number of which the jury is to be composed, or to prescribe
what unanimity is required for a verdict. Again :

The Concress shall have power to declare the punishment of treason, but no at-
tainder of &eason shall work corruption of blood, or forfeiture, except during the
life of the person attainted.

There is no definition of attaint or corruption of blood in the Con-
stitution, and yet no one denies the express grant of power in that
clause. Here as in many other like phrases we must look to the
common law of England^ from which, both kabeas oorpus and Jury
trial and the treason clause have been borrowed.

So, too, the Constitution declares, that the Judicial power shall ex-
tend to all cases in '^ law and equity " arising under the Constitutiou,
&o. But we must look beyond the Constitution for the distinction be-
tween cases in law and equity. Every lawyer knows that although the
courts of the United States derive their Jurisdiction from the (>>nsti-
tution and laws of the United States, jet that they look to the great
chancery system of England as the hmit of their Jurisdiction. So
with impeachment. Borrowed evidently from the English constitu-
tion in its general features, this remedial process was incorporated
into the Constitution as a guarantee against corruption, official infi-
delity, and force. It was not to punish crime. The founders of tho
Government guarded its exercise, not by definition or enumeration,
but in stron^r restrictions in confining its Jurisdiction to official ^uilt
and in limitmg its penalties to removal from and future disqualifica-
tion to hold office.

Thus remodeled, and adopting the rule, that the Constitution shall
always be so construed as to render it on all occasions the effective
agency of accomplishing the objects and ends designed by its framers,
impeachment remains here, as recognized in the parliamentary law
ana usage of England at and prior to the adoption of the Consti-
tution of the United States. No definition of it was necessary. Its
founders looking to the English constitution and parliamentarv
law ; to the many memorable impeachment trials commencing with
that of Lyons, instituted by the Commons before the Lords in rJ76 ;
looking also to the constitution and usage of the American States

Srior to 1787, saw that no act of Parliament, or of any American
tate Legislature had ever defined an impeachable crime. It might
have been difficult and dangerous to have done so. Greater safe-
guards were found in making the House of Representatives the sole
organ to institute, and the Senate the sole tribunal to try all im-
peachments, and in limiting the Judgment to removal from, and
future disqualification to hold office. This restriction upon the
Judgment, expressly confines the Jurisdiction of American impeach-
ment to official corruption, malfeasance, misfeasance, or nonfeasance
committed in office. Whenever the House of Representatives believe
that the public safety demands the impeachment of some faithless or
corrupt official, the Constitution has delegated full and exclusive
power to institute the proceeding. When thus instituted, the Senate
18 clothed with Judicial and exclusive power to try all impeachments
thus inaugurated by the House. Where the Constitution is silent,
this court can and should look to parliamentary law, and parliament-
ary usage, as the Supreme Court of the United States looks to the
maxims and doctrines of the great system of English chancery for
aid in Judicial iuvestiraitiou, and oftentimes, to ascertain the limit of
its own Jurisdiction. When words, or legal pfanuies are copied into the
Constitution of the United States from the civil law, the common
law, or the British constitutional and parliamentary law, they are
always interpreted by the law from which they are borrowed. In-
deed, when foreign statutes are adopted into our legislation the known
and settled construction of those statutes by courts of law has been
considered as silently incorporated into the acts. (Story on Constitu-
tion, pages 796, 797, 800; Rawle on Constitution, page 200; Sedgwick
on Statutes, pages 262, 426.)

I am therefore persuaded that the second and third sections of article
1 of tho Constitution invest the House and Senate with express and ex-
clusive ijower to institute and try all impeachments for official crime,
and that the authority thus conferred upon this court, empowers it
when the Constitution is silent, always to look to the parliamentary
law and parliamentary usage of England for the scope and limit of
its Jurisdiction and authoritatively to decide what that limit is.

Nor is it true as has been argued, that this power of the court to
look beyond the Constitution to the parliamentary law for the limit
of its ]>ower, would invest this court with common-law Jurisdiction.
The argument is unsound alike in theory and in fact. This court
looks to the parliamentary law. which is wholly distinct from the com-
mon law of England, althougn often loosely confounded with it by
Mr. Rawle and other law-writers in treating of impeachment. But to
look to foreign courts, or to foreign laws for light and aid in the inter-
pretation of Judicial procedure borrowed from them, is by no means
to look to them for Jurisdiction. That is derived from the Constitu-
tion as already shown, which is the exclusive source of power. Juris-
diction is one thing ; its scope and limit is another ; and that argument
is still more fallacious, that because we do often look and are required

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by the langaage of the Constitntioii to look to the common law for
light, that therefore, the courts of fhe United States would) eo instantif
become invested with common>law jurisdiction over commou-law
crimes and offenses.

The whole jurisdiction of the United States courts over criminal
offenses is derived from the acts of Congress. They have no common-
law jurisdiction. Yet the Constitution declares —

That no Hct tried by » Jury shall be otherwise re-ezaminod in any court of the
United States than acoording to the rules of the oommon law.

If the courts are thus required by the words of the Constitution to
.look to the common law, as the sole guide for its action, without con-
ferring upon such courts common-law jurisdiction, why may not this
high court of impeachment look to the parliamentary law for the
scope and extent of its Jurisdictional power, where the Constitution
is silent f

That the United States courts do not acquire common-law jurisdic-
tion I propose now to show by a quotation from the conmientary of
an able jurist, St. George Tucker— nomeii venerahile ekmtm — upon the
clause of the Constitution last quoted. He says :

We may be told the oommon law is evidently here referred to as the law of the
land. This is not the ease ; It is referred to as a known law ; and might in strict-
ness have been referred to as the law of the several States, so &r as their constitn-
tions and legislative codes, respectively, have admitted or adopted it. Will any
man who knows anything of the laws ot England affirm, that the civil or Roman
imperial law. Is the generS law of the land in England, because manv of its maxims
ana its course of proceedings are generally admitted and establisucd In the high
court of chancery, which is the highest court of civil Jurisdiction, except the Par-
liament, in the kingdom f Or that we canon, or Roman ecclesiastical law is the gen-
eral law of the land, because marriages are solemuized according to its rites, or
becauise simony, which is an ecclesiastical offense, is also made an offense by stat-
ute «

* * *****

We may fairly infer from all that has been said that the oommon law of England
stands precisely upon the same footing in the Federal Government, and courts of
the United States, as such, as the civil and ecclesiastical laws stand upon in England :
That is to say, its maxims and rules of proceeding are to be adhered to, whenever
the written law is silent, in cases of a similar or aiMlogous nature, the cognizance

" " 'eralc • -


, . , „ „ heCoi

be said of the civil law ; the rules of proceeding in which, whenever the written

whereof Is by the Constitution vested in the Foderaf courts ; it may govern and
direct the course of proceeding in such cases, but cannot give Jurisaiotion in any
, where jurisdiction is not expressly given by the Constitution. The same may

law is silent, are to be observed in oases of equity, and of admiralty, and maritime
Jurisdiction. In shorty as the matters cognizable in the Federal courts belong (as
we have before shown in reviewing the powers of the Judiciary department) piully
to the law of nations ; partly to the common law of England ; partly to the civil law ;
pwtly to the maritime law, comprehending the laws of Oleron and Rhodes; and
partly to Uie general law and custom of merchants ; and partly to the muniicpal
laws of any foreign nation or of any State in the Union, wnere the cause of action
may happen to arise, or where the suit may be iustitutod ; so, the law of nations,
the coipmon law of Engliuid, the civil law, tho law maritime, the law merchant, or
the l^ lody or law of the foreign nation, or state, in which the cause of action may
arise or shall be decided, must in their turn be resorted to as the rule of decision,
according to the nature and circumstances of each case respectively. So that each

laws of Russia, or Germany, are the general law of the land, because in a contro-
Tersy respecting a contract made in either of those empires it might be necessary
to refer to the laws of either of them, to decide the question between the litigant

parties. Nor can I find any more reason for admitting the penal code of England
to be in force in the United States (except so far as the States, respectively, may
have adopted it^ within their several Jurisdictions) thau for admitting that of tho

Roman empire, or of Russia, Spain, or any other nation whatever. (Tucker's Ap-
pendix to first volume Blackstone, pages 43t^ 439.

The Constitution, section 4, article 2, makes it imperatiye, that when
" the President^ Vice-President, and all civil officers of the United
States are oonvicted of treason, bribery, or other high crimes and mis-
demeanors, they shall be removed from office." But neither the Con-
stitution nor has any United titates statute in any manner defined any
offenses, except treason and bribery, to be " high crimes and misde-
meanors,'' and as such impeachable. How, then, are high crimes and
misdemeanors to be ascertauied f Is the silence of the statute-book
to be deemed conclusive in favor of the guilty party, until Congress
shall have made a legislative declaration and enunciation of the of-
fenses, which shall be deemed '' high crimes and misdemeanors t'' If
so, the power of impeachment, except as to two exi)Te8secl cases, is a
complete nullity ; and the party is wholly dispunishable, however
enormous may be his criminality. (Story on Constitution, $796;
Rawle on Constitution, page 273.)

Here, therefore, the very clause of the Constitution, relied on, as
the only source of implied iurisdictional power, becomes a rojie of
sand, unless we look beyond the Constitution, to the parliamentary
law, to see what ** high crimes and misdemeanors," are technically
nnderatood to mean.

'^ High crimes and misdemeanors " are the words of the British con-
stitution which describe impeachable conduct. (4 HatselPs Prece-
dents; 18 American Law Register, page 645.)

The word ** high" applies as well to misdemeanors as to crimes. (2
Chase's Trial, 383.) Whatever '^high crimes and misdemeanors,**
were the sul^ects of impeachment in England, prior to the adop-
tion of our Constitution, are subjects of impeachment before tliis
court, subject only tt> tho limitations and restrictions imposed by the
Constitution of the United States.

We have clearly a right to look to the parliamentary law and usage
of England for the sphere and limit of our Jurisdictional power over
impeachment. When we do so. the authorities are abundant to show,
that the phrase, ** high crimes and misdemeanors," when used in pros-
ecution, by impeachment, has no definite signification, and are never

limited to crimes defined by statute, or, as reco^i:sed at common law.
This view of the Constitution is fully established by the impeach-
ments of Pickering, Chase, and Peck. Alexander Hamilton says that-
Several of the State constitntions have followed the example of Great Britain,
- ~ ■ Bri

were offenses of a political natnre.^FederaJwt, No. 65.

But it is wholly immaterial whether the fourth section of article 2,
of the Constitution, limits the Jurisdiction to offenses declared crimi-
nal by statutes of the United States, or whether the Jurisdictional
power of impeachment, conferred by the Constitution, be express or
implied. Every court should confine itself to the precise question
which it is called upon to decide. Beyond that, its ruling is said to
be obiter dictum.

It is not denied, that W. W. Belknap was until ten o'clock and
twenty minutes on March 2, 1876, a civil officer of the United States ;
that the offenses charged to have been committed by him were de-
clared crimes by the statutes of the United States ; and if committed,
were committed by him while dischar^g the duties of Secretary of
War. None questions the fact, that pnor to his resignation the House
of Representatives, as the grand inquest of the nation, and the Sen-
ate of the United States, as the high court to try all impeachments,
had full and sole Jurisdiction over this cause.

The question occurs. How has this admitted jurisdiction been
lost f Those who deny it, insist, that the fourth section article 2 of the
Federal Constitution commands, that '^all civil officers " of the United
States, impeached and convicted of treason, bribery, and high crimes
and misdemeanor shall be removed from office. They say, Belknap
was by his reei^ation out of office, and not a civil officer, when the
resolution for his impeachment passed the House, and consequently,
not within the description ; secondly, that Judgment of removal from
office on conviction is imperative. But remov^ from an office already
vacated, is imi>08sible, and as the court cannot execute its judsrment,
therefore, it is without Jurisdiction. This argument rests on the as-
sumption, that legal responsibility for impeachable crimes attaches
to the guilty official, not at the time the offense is committed, but at
the moment when the accusation is officially preferred. No authority
has been cited in its support, and it is in direct violation of all estab-
lished rules of construction of criminal law in England or in the United
States. Responsibility, always, attaches at the moment of the com-
mission of the offense. The Revised Statutes of the United States,
for the prevention of official venality and corruption, and under whicli
the respondent himself has been already indicted in the criminal
court in this District, provides :

Every ofOoer of tho Uoitofl States, and every person, aeting for or on behalf of
the United Stites, in any official capacity under, or by virtue of the authority of
any Department, or office of tho Government thereof; and ever>' officer, or person
acting for or on behalf of either Honse of Congress, or of any committee of either
House, or of both Houses thereof, who asks, accepts, or receives any money, or any
contract^ promise, undertaking, obligation, gratuity, or security for tho pftymunt
of money, or for the delivery or conveyance of anything of value, with intent to
have his decision, or action on any question, matter, cause, or proceeding which
may at any time be pending, or whicn may be by law brought before him in his
official capacity, or in his place of trusty or profit influenced thereby, * " * shall
be punished by a fine not more than three times the amount asked, accepted, or
received, and by imprisonment not more than three years.

Every member, officer, or person convicted under the provisions of the two pre-
ceding sections, who holds any place of profit, or trust, shall forfeit his office or
place, and shall tJioreafter be forever disqualified from holding any office of honor,
trust, or profit under tho United States. (Bevised Statutes, sections ^SOO^ 5501, and

The words of this statute are almost identical with the words of
fourth section, article 2, of the Constitution ; its penalties, like those
imposed by that instrument, declare, t^at every officer, convicted
under the provisions of that act, shall forfeit his office, and shall tbere
after be forever disqualified from holding any office of honor, trust or
profit under the United States.

And yet, what Senator, Judicially called upon, to act as a Judge in
the trial of respondent, for a violation of this statute, in a United
States court, would hold, that his resi^ation before the finding of
the indictment would be a valid plea in abatement to the Jurisdic-
tion of the court f And if the retirement from office can bar the
Jurisdiction in the one case, why not in the other f If not available
in the construction of a statute, how can it be so in the construction
of the Constitution f

The Constitution is itself a law; one of higher dignity, I admit, than
other laws, but still to be construed by the same rules applicaole to
the construction of other statutes. Both seek to guard the United
States Government against comiption, venality, and wrong. By
what rule of Judicial interpretation are similar words in the Consti-
tution and in a statute, having tho same object and end, both ac-
knowledged guarantees of popular safety, to be differently construed f

It is said that the Constitution imposes removal from office as the
sole penalty.

Bnt this assumption is directly contradicted by the express words
of the Constitution, which declare, ** that Judgment in cases of im-
peachment shall not extend further than to removal from office, and
disqualification to hold and enjoy any office of honor, trust, or profit
under the United States."

The penalty of disqualification was, in the minds of the framers of
tb^ Constitution, as important as removal. They understood, that

Online LibraryUnited States. CongressCongressional record : proceedings and debates of the ... Congress → online text (page 163 of 172)