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a faithless official, impeached and removed from office, might be speed-

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11 J restored to one of greater importance than that from wbioh be had
been deg^raded ; hence, the great sanction of impeachment would be-
come impotent as a barrier for popular safety unless the penalty of dis-
qualification should follow removal. The Constitution must be so
construed that every provision should be harmonized; each rendered
effective; aud that the object and purpose of the instrument shall al-
ways become potential.

In the conclusion I have reached, the absolute removal from office;
commanded by the fourth section, article 2, of the Constitution, was
no repeal of the discretionary power delegated by the second section
of article 1 to the Senate, to impose, within their discretion, the ad-
ditional penalty of disqualification from office. Therefore, although
the guilty official had resigned his office before impeachment, if con-
Tieted, the court would still have power to render judgment of per-
petual disqualification, if in their discretion, the public gw>d demanded
it. And this construction is plainly supported by the provision of the
Constitution, withdrawing impeachments from the pardoning power
of the President. Those sagacious men would scarcely have taken
the power of pardon from the President in impeachments if they had
intended the guilty official could escape toial by his ovm voluntary
act. The intent of the Constitution in this provision is manifest.
Suppose the respondent should be acquitted by this court for want
of jurisdiction. He is then tried by the criminal court and convicted.
He is pardoned by the President and becomes forthwith eligible to
office, although two-thirds of the Senate were satisfied of his guilt,
and would have voted for his conviction, had they concurred in the
question of jurisdiction. No stronger illustration can be afforded of
the importance of the penalty of disqualification as a guarantee of
popular safety.

But if removal from office be the sole penalty, I cannot yield my
assent to the legal nostulate that the inability of a court to enforce
its judgment can afleoft its jurisdiction. The Infirmity of any defen^
ant to receive the Judgment caused by his own act, can never divest
the power of the oonrt to render it. And this, I had supposed, was
settled by direct authority. In the case of Rhode Island tw. Massa-
chusetts, where the bill in equity was filed in the Supreme Court of
the United States, the plea was interposed, that the court could not en-
force itssenteuoe. After full argument the court maintained itsjnrisdic-
tion. (12 Peters, page 657.) Again in Kentucky v*. Denison,the Su-
preme Court of the United States held, in an elaborate opinion, that
it had original jurisdiction to issue the mandamus ; yet, as it had no
power to enforce the rule against the governor of a sovereign State,
the motion was overruled. (24 Howara, page 66.)

Merry-man, a citizen of Maryland, was at the beginning of the war
confined illegally by military authority. He applied to Coief Justice
Taney for a writ of kdbeat corpna. The writ issued, and that eminent

jurist held, that the applicant was entitled to his iibeity; but as the
law was borne down by the militanr, and Judge Taney could not en-
force the judgment of the court, he discharged t£e writ in an opinion of
great clearness and power, f Taney's Decisions, page 246.) These
authorities mijiht be multiplied. That construction which denies, that
civil officers of the United States, who have, while in office, committed
crime, are not liable to Impeachment, because of their voluntary retire-
ment from office after tne commission of the crime but before the
inHtitution of the impeachment procedure, is unwarranted by the
spirit, letter, and obiect of the Constitution.

Official responsibility, and officiid fidelity, are exacted and required
by the organic law. Every civil officer of the United St^ites when ho
enters upon the discharge of an official trust, assumes duties and re-
sponsibilities to the people, civil and criminal, from which the Con-
stitution never releases him, until all are fully performed and he has
subjected himself to every requirement of the law. Impeachment is
an incident of every civil office. Neither civil nor criminal responsi-
bility can be thrown off by any voluntary act of a guilty ofKcial.

A different construction would fritter away impeachment. It would
cease to be longer a safeguard against usurpation, corruption, or venal-
ity, except at the option of the guilty party. While the Constitution
has declared that the President shall not pardon an impeached aud
convicted official who usurps power, barters offices, betrays his trusts,
ac^^pts bribes, debauches and demoralizes all within his official
sphere, yet this construction of the Constitution which we are urged
to adopt, allows such criminal by his own voluntary act to escape the
penalties of impeachment, oven though his resignation be wituheld
until an hour before the conviction; because, if as argued, his being
out of office divests the jurisdiction of the court, then that effect must
follow every resignation tendered before a final disposition of the
impeachment. Such a construction is forbidden by the usage of all
impeachment trials in England, or in the United States.

The impeachment of Warren Hastings took place in May, 1786,
although be had been recalled from India, and resigned in June,
17B5. Lord Chancellor Macclesfield, who was compelled to resign his
office, was subsequently impeached. A still more signal illustration
is found iu the case of Lord Melville, in 1806. He was impeached for
offenses committed twenty- two years before, lone after his resignation.
He bad held other offices since his first appointment, but neld no
office when he was impeached.

William Blount, a Senator from Tennessee, was impeached iu 1797
for official misdemeanor. The Senate expelled and subsequently im-
peached hiiu. He pleaded the fact, that he was not a civil officer, wiien
the imi>eachment was found. The case went off upon the point, that

a Senator of the United States was not a. civil officer ; but one of the
managers, and two of Blount's counsel admitted, as I will hereafter
show, that a voluntary resignation could be no valid plea fpr acquittal.
With the lAiowledge of the trial of Macclesfield and of Bacon and of
Hastings — the latter trial being alluded to by Colonel Mason in the
convention— can it be doubted that the framers of the Constitu-
tion would have expressly provided in the Constitution "to be im-
peached while in office," had that been their intention t And this in-
tent Is the more strongly fortified by the fact, that eight or nine of
the original thirteen States, that had adopted constitutions prior *Xi the
formation of the Federal Constitution had incorporated impeachment
into them, and limited it to officials both in and out of office. Vir-
ginia and Delaware are si^al instances of such provisions.
The constitution of Virginia, adopted July 5, 1776, provides :

The goyemor when he is out of office, and others offendine against the State,
either by maladministration, corruption, or other moans by wmoh the safety of the
State may be endangered, shall be Impeachable by the boose of delegates.

* * * • • • *

If found gnUty, be or they shall be either forever disabled to hold any office onder
goyemment, or be removed from such office nro tempan\ or subjected to such pains
or penalties as the law shall direct. (American Constitutions, pages 387, S88.)

The constitution of Delaware, adopted September 20, 1776, provides:
The president, when he is out of office and within eighteen months after, and all
others offending against the State, either by maladministration, corruption, or other
means by which the safety of the Commonwealth may be endangered, vrithin eight*
een months after the offeniie oommitted, shall be impeachable by the house of as*
sembly before the legislative counciL * * * If found guilty, he or they shall be
either forever disabled to hold any office under the government, or removed fran
office mro tempore, or subjected to snob pains and penalties as the law sh»U direct.
And all officers shall be removed on conviction or misbehavior at common law, or

on impeachment, or upon the address of the General Assembly.

(Article S3, page

Some of the distinguished men who were prominent members of
the conventions which framed the State constitutions were subse-
quently prominent in the convention which framed the Federal Con-
stitution. Had they intended to limit imneachmont trials only to
official tenure they would have done so, as I am persuaded, in terms
as clear and express as those contained in the State constitutions.

The construction insisted upon is also opposed by oil the contem-
poraneous history of the adoption and ratification of the Constitu-
tion of the United States, as well as by other leading statesmen.

Mr. Madison, often cidlcd the father of the Constitution, during
the debate in the Vii^nia State convention callod to ratify the Feu-
eral Constitution, said :

He (the President) is responsibly in person. If he shall soduoe a part of the Sen*
ate to a participation in his crimes, those who are not seduced would pronounce
sentence against him : and there is this supplementary security, that ne may be
convicted and punished afterward when other members come into the Senate, one^
third being included every two years.— Ji^tfioO Debatei, volume 3, page 316.

Mr. Wilson, also a member of the convention which framed the
Constitution of the United States, during the debate in the Pennsyl-
vania State convention called to ratify tne Constitution, in speaking
of the probable impeachment of a United States Senator, said :

When a member of the Senate shall behave criminally, the criminality shsll not
expire with the office. The Senators may be called to account after they sliall be
changed, and the body to which they bemnged shall have been altered.— fWoft
Dtbcut, volume 3, page 447.

In the Federal Constitution, upon the 20th of July, 1787, while the
clause relative to the impeachment of the President was under dis-
cussion and pending a motion to strike out the clause —

To be removable on impeachment and convictloa for nudpractioe or neglect of
Mr. Pinckney said :
He ought not to be impeached while in office.

Mr. Dabcr. If he be not impeachable while in office, he will spare no means or
efforts whateyer to get himself rejected. He considered this as an essentiri secu-
rity for tbc good behavior of the Executive.— Jfodifoa Paiper$, volume 3, page 1153.

So again at a much later period John Quincy Adams, a statesman
of accurate information in everything pertaining to the Constitution,
in the House of Representatives, in 1846, said :

And here I take occasion to say, I differ from gentlemen who have stated that the
day of impeachment has passed by the Constitution from the moment the public
omco expires. I bold no such doctrine. I hold myself, so long as I have the breath

• *ife in my body, amenable to in "^ " .— ^.-.- .r ^ *.-i — i- j*^ ^„_

the time I held public office.

_[r. Bayly. Is not the Judgm

Mr. Adams. And disnuailflcation to hold any office of honor, trust, or pro6X
under the United States forever afterward ; a punishment much greater, in my
opinion, than removal from office. It clings to a man as long as he lives ; and if any

Eublic officer ever put himself in a position to be tried by Impeachment, he would
avo very little of my good opinion if he did not think disqualification from holding
otllce for life a more severe punishment than mere removal from office. I hold,
therefore, that every President of the Unite<l States, every Secretary of State, every
offi(H)r impeachable by the laws of the country is as liable twenty vears after bis
office expires as he is while in officc—CdnyrMfionai QUbe^ April 13, 1846.

So, too, during Blount's trial in 17Ud. the managers aud counsel, all
eminent law^'ers and statesmen of the Republic, concur in one opinion
that the voluntary resignation of a faithless official was no valid plea
to impeachment 1 quote their statements on this point. Mr. Bayard

It is also alleged in the plea that the party imi>eached is not now a Senator. It
is eDouffh that bo wan a Senator at tho time the articles were preferred. If theim*
peacluiicnt wvi-c regular ami maiutaiuablo when preferred, I apprehend no subse-
quent event gromuied on tho willful act or caused oy the dollnquenov of the party
can vitiate or obstruct tlie proceeding. Otherwise tne party, by resignation or the
commission of mine offense which merited and occasioned hu exnnlsion, misht
secure his irapunitv. This is against one of the sagest maxims of the law, whiok
docs not allow o wan to derive a bonoflt from his own wrong.

of life in my body, amenable to impeachment by this House for anything I did dur-
ing the time I held public office.
Mr. Baylt. Is not the Judgment in case of impeachment removal from offioe t

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npeaohed after he was
ition, 1

Mr. Dallas, for the defendant, said :

There wa« room for arcnment whether an officer coald be imi
out of office ; not by a vuluntary resignation to evade proseoation, bat by an adver-
sary expulsion. ♦

Mr. Ingersoll, for the defendant, said :

It is among the less objections of the caose that the defendant is now ont of office
not by resignation. I certainly shall never contend that an officer may flrrt com*
mit an offense and afterward avoid punishment by resigning liis office ; unt the de-
fendant has been expelled. Can he be removed at one irial and disqualifled at an-
other for the same cdGfensef

The oonstniction contended for is contradicted by a recent Judicial
adjudication in the case of Barnard, impeached in the year 1872 in
the State of New York. Barnard had been elected Jud^e and his term
had expired. He was re-elected, and dnrinf his second term he was
impeacned for misdemeanors committed daring his first. His plea
denied that he could be held to answer duriuff his second t-erm for
offenses committed in the first. But after full and elaborate argu-
ment this plea was overruled by the court of impeachment, composed
oi the senate and court of appeals of New York, by a vote of 23 to 9,
and Barnard was subsequently found guilty.

Against this array of unbroken autnority no opposing precedent ;
no utterances of a prominent statesman have been cited.

The opponents of jurisdiction insist, that if the power to impeach
for official misconduct continues after the retirement of the guilty
official, then, that every private citizen of the United States is liable
to impeachment. But this argument is palpably erroneous. The
power of impeachment by the Constitution extends exclusively to
official guilt. That instrument expressly prescribes, as already shown,
removiu from office and disqualification from holding office, as the
only penalties for impeachment and conviction. The Senate can in-
flict no higher penalty. It is purely politicaL A citizen who has
never held an office under the United States can never be guilty of
official crime or misdemeanor ; consequently, he can never become the
subject of impeachment. Upon the other hand, all citizens who hold
office and betray their trusts should never cease to be amenable to
every penalty and safeguard of the Constitution, whether in or out
of office. The necessity for popular security would be, as already
suggested, as strongly demanded in the perpetual political ostracism
of corrupt and faithless officials from office, beyond the possible favor
of a corrupt President to re-appointment, as by removal from office.
How useless to remove an impeachable officer, if the President can re-
appoint him f So long as the reason which prompted disqualification
from office exists, so long should that construction prevail which will
not permit that penalty to fail.

I do not share in the danger to individual liberty so vividly por-
trayed by the opponents of jurisdiction, as likely to flow from a rigid
enforcement of this sanction of impeachment. The danger is upon
the other side. Individual virtue is a part of the public virtue. It
is impossible that political morality and integrity can long signalize
any administration of the (xovemment when virtue shall cease to
exist among the people. Still less that the aggregate of Americau
free institutions, all the oreans of which consist only of men, idiould
be upright, pure, wise, ana beneficent, competent to inspire confi-
dence, if the opposite qualities belong to the individuals who consti-
tute tnose or^ns, and make up that aggregate.

But seven impeachments have occuireii in the first century of the
American Republic, including the pending one. Of these Judges
Pickering and Huin^breys were convicted. They did not appear and
made no defense. While Blount, Chase, Peck, and Johnson were ac-

The House of Representatives are clothed with the sole power,
within their discretion, of instituting all impeachments. If that
popular inquest of the people think, the public safety is best sub-
served, by tne simple, voluntary retirement from office of a degraded
civil officer, it is tneir right to accept his resignation and proceed no
further. But, whatever the past forbearance of the House of Repre-
sentatives has been, in permitting officers guilty of impeachable crimes
to resign and escape punishment, still, I utterly deny, that the failure
to exercise the power shall, in a case in which the House does call it
into active exercise, be relied on as an argument against its existence.
Let us not handle the Constitution with rude hands. Enforce all its
guarantees against corruption and unlicensed power if you would pre-
serve the liberty it was ordained to perpetuate. Impeachment slum-
bered in England for a hundred years or more, because bills of attain-
der took its place. But when corruption began to find a hiding-place
behind the ermine of faithless judges in England, impeachment be-
came again a potent instrumentality for the preservation of civil

My opinion is, that the respondent did not by his voluntary resig-
nation of the office of Secretary of War on the 21st of March, 1H76.
discbarge himself from his responsibility to answer any charge of
corruption committed by him, in the administration of that office;
and that, therefore, the Senate have jurisdiction to proceed with the
trial, and the demurrer to the plea should be sustained.

notwithstanding the defendant was out of office when he was im-

The only clauses of the Constitution relating to impeachment are
the following :

1. The House of Ronresentativessliall * • • have the sole power of imx>each
ment. (Article 1. section 2.)

S. The Senate s^all hare the sole power to try all impeacliments. When sitting
_ jr that purpose they shall he on oath or affirmation, w hen the President of the
ITnitod states is tried, the Chief Justice shall preside : and no person shall be con-

Opinion •€ Mr. Wadieigii.

Mr. WADLEIGH. 1 think the evidence proves the defendant's giiilt
beyond a reasonable doubt. I also think the Senate has jurisdiction,

victed without the concurrence of two-thirds ox the members present. (Article 1 ,
section 3.)

3. Jadgm«nt in cases of impeachment shall not extend farther than to remond
ftrom office, and disqualification to bold and eqjoy any offlceof honor, trust or profit
nnder the United Suites : but the party convictod shall nevertheless be liable and
flubjoct to indictment, trial, Judgment and punishment, according to law. (Article
1, section 3.)

4. The President * * * shall have power to grant reprieves and pardons for
offenses ac^ainst the United States, except in cases of impeachment. (Article S,
section S.)

5. The President, Vice-President and all oiril officers of the United States, shall
be removed &om office on impeachment for, and oonvlotion of, treason, bribery,
or other l^gh crimes and misdemeanota. (Article 3, section 4.)

I think the first clause above quoted grants the power of impeach-
ment. It is found among the other grants of power and is couched
in the same language.

What impeachment is the Constitution does not say. Like "Jurif
irial/^ " halnsas corpus,*' and many other words, it must be construed
to mean what it was understood to mean when the Constitution was
framed. There is no doubt that it was then understood to mean the
accusation of officers or ex-offlcers for crimes and misdemeanors af-
fecting the administration of public affairs. Upon the ground that
impeachment was one of the birthrights of Englishmen, the colonial
assembly of Massachusetts had, in 1774, impeached those judges whose
ability and servility to the Crown were dangerous to liberty.

In the debates of the constitutional convention reference was made
to the trial of Warren Hastings, who had been im]>eached when ont
of office. That trial, prosecuted by Burke, Fox, snd other friends of
the colonies, attracted the attention of the civilized world.

We may reasonablv suppose that had the makers of the Constitu-
tion intended to radically change the character of impeachment by
limiting it to persons in office they would have expressed that inten-
tion in clear and unmistakable terms. That they did not do. Those
who contend for such a construction are compelled to base it on in-
ference and argument only.

It is contended that because the third clause prohibits a greater
penalty than removal from and disqualification for office, therefore
one not in office and not liable to removal cannot be impeacned. This
position is absurd. It assumes that where a law forbias the infliction
of a fine or penalty beyond a certain amount, such fine or i>eLalty can-
not be less than that amount. Such a construction is opposed both
to law and to common sense. It seems too plain for argument that
where more than two punishments are forbidden one may be in-

The defendant also contends that the fifth clause, above quoted,
confersjurisdiction and defines impeachment ; that the words ** Pres-
ident, Vice-President and other civil officers" thei-ein limits impeach-
ment to those officers while in office, and that they cannot be im-
peached when out of office because they cannot then bo removed. I
think these positions unsound.

Said fifth clause is not found among those which grant jurisdiction
and power to Congress, but among those which relate to the powers,
duties, and tenure of office of the Executive. It contains no apt
words for granting power nor limiting jurisdiction, but merely re-
quires the remov^ of certain officers upon their impeachment and

In order to sustain his construction of this fifth clause, the defend-
ant takes three positions. Let us review them in tlieir order:

First. That thous^h the general power of impeachment had been
clearly granted iu the first clause and though the proceeding was well
understood and considered essential to the preservation of liberty,
yet the fifth clause, merely requiring the removal of cert'ain officers
when impeached and convicted, limits impeachment to those officers
alone. I cannot believe that the makers of the Constitution, if they
meant to degrade that creat process by allowing any one to escape it
by resignation, would nave expressecl their intention so indirectly
and olScurely. Nor can I consent to a construction so forced and

Second. The defendant contends that the words " President, Vice-
President and other officers" apply only to those officers while in
office. Such a construction is opposed to the practice of legislatures
and courts for hundreds of vcars. Numerous statutes, botii in En-
gland and this country, for the punishment of officers are couched in
the same phraseology as this clause, and have been uniformly held to
apply to ex-officials who committed the crimes while iu office. Sec-
tions 5408 and 5444 of the Revised Statutes are examples in point. I
believe that there is no good reason for depariing from this just and
reasonable rule iu this instance.

Third. The defendant contends that because the fifth clause re-
quires removal, therefore one not liable to that punishment cannot
be impeached. Such a conHtrnctiou is opposed to the uniform rule,
which is, that where one of several penalties cannot be inflicted an-
other may be. Suppose larceny punishable either by imprisonment

Online LibraryUnited States. CongressCongressional record : proceedings and debates of the ... Congress → online text (page 164 of 172)