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not punishment of tne offender, was the only object of the constitu-
tional provision for impeachment.

We have heen unable to find a single case in which impeachment
has been sustained where the accused was not in office at the time of

lu the case of Barnard, in New York, he was impeached for, among
other things^ offenses committed in a former term of the same office.
But he was m the same office at the time of impeachment. In the
first volume of the Trial of Barnard, page 151, we find the argiiment
of Mr. Beach for the defendant, who cites the report of the judiciary
committee of the house of New York in the case of Philip C. Fuller:

The house directed the Judiciary committee to inquire and report.

First Whether a person could be impeached who, at the time of his impeach*
ments was not the holder of an office under the laws of the State.

Second. Whether a person could be impeached and deprived of his office for mol-
conduct, or offenses done or committed 'Under a prior term of the same or any other


* * *****

Mr. Weeks, from the judiciary committee, reported that—

The only clause in the Constitution relating to Judgments upon impeachments
provides that judgments in such cases shall not extend further than the removal
from office, anu disqualification to hold and enfoy any office of honor, trust, or profit
under this State ; but the party impeached shall be liable to indictment and pun*
ishment acconling to law.

From this and from the theory upon which our Government is based, the com-
mitte have como to the conclusion :

First. That no person can be impeached who was not, at the time of the oommis*
sion of the alleged offense, and at the time of the impeachment, holding some office
under the laws of this State

That the person impeached must have been in office at the time of the commission
of the flJleged offense, and at the time of tho impeachment holding some office un*
der the laws of this State.

That the person impeached must have been in office at the time of the commission
of the alleged offense. Is dear from the theory of our Government, namely : That
all power is with the people who, if thev saw fit, might elect a man to office guilty
of every moral turpitude, and no court has the power to thwart this their will, and
say he shall not hold the office to which they nave elected him. A contrary doc-
trine would subvert the spirit of our Institutions.

It is equally clear, from the tenor of the Constltntion, that the person must be
inofficent tho time of the impeachment. This instrument providesthat twomodes
of punishment, namely: Removal from office, or removal or dlsquallfloation to hold
office. In either mode of punishment the person must be in omoo, for removal is
contemplated in both casss, which cannot be effected unless the person Is In office.

The courts are the only tribunals that have Jurisdiction over a delinquent, after
his term of office has expired, to punish him for oflbnses committed in the discharge
of the duties of his office.

The committee have further come to the conclusion :

Secondly. That no person can be imi>eached and deprived of his present term of
office, for oflbnses alleged to have been committed during a prior term of the same, *
or any other office.

Neither by the Constitution nor by our laws is there any period limited in which
an impeachment may be found. It is but fair, therefore, to Infer that the intention
was to confine the tune to the term of office during which the offenses werealleged
to have been committed ; any other conclusion would lead to results which could
not be sustained, for who can say but that the people knew of this maloonduct,
these offenses, and elected the indivldnal notwithstanding ; true, an extreme case
might be put of fraud committed on the last day of the term of an office, to which
office the individual might be immediately re-elected ; yet who could say this was
not known to tho people. How is the matter to be settled t The mere statement
of tho question shows the dilemma in which we would be placed at every election,
if the tenure of stability of an office depended npon a legal inquiry as to whether
the people know tho characters of the individuals they had elected to office, uud
had exercised a proper discretion.

However muoii it may be desired to have men of hifh integrity and honesty to
fill our public offices olT trust and honor, yet, by our Constitution and the fuuilo*
mental principles of our Government, no jmrticular scale of integrity, lionesty, or
morality is fixed. Ko inquisition as to what character had been can be Iv^ld ; it is

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enonch that the people hare willed the perBon should hold the office, and the conrta,
which are bnt the mere creatures of the pnblio, will have no power to interfere.

The Constitution provides, as wo have seen, that a person cannot be imptashed
after he is out of ojlcej then, if the same person should be re-elected to the same
office a year afterward, would this rif;ht of impeachment be revived f In fine, by
his nMjfectiou, would he incur Buy other liabilities or acquire any other rights than
those inci<lent to his present term of office f We think a moment's reflection would
convince each person that it would not.

Again, conld an officer be deprived of his present office bv impeachment for mal*
conduct in another and different office, or even the sfune office, twenty years before
his present term commenced f If not, could he after one year or one moment had
elapsed f The lime is nothing ; the question is, is he out of office f It matters not
if the next moment he is inducted in.

The committee tliink it clear, in every light they have been able to view this
matter, that the Constitution intended to coiijine impeachments to persons in office^
and for offenses committed during the term <^ the oficefor which the person is sought
to be removed. In pursuance of this conclnsion, the committee recommend to the
House the adoption of the following resolution :

Hesolved, That the committee of investigation into the official conduct of Sti^
officers, and of persons laUUy but not now Mlding office, be instructed —

1. That a person whose term of office has expired is not liable to impeachment
nnder section 1, article 6, of the Constitution.

iL That a person holding an elective office is not liable to be impeached nnder
aeotiou 1, article 6, of the C^stitatiou for uiy misconduct before the commencement
of his term, although such misconduct occurred while he held the same or another
office under a previons election.

Wc have been xtnable to find any case in wLich a private citizen
has been held subject to impeachment for misconduct in an office
formerly held by him. In the Barnard case, it is true, the court held
that the accused might be convicted and removed from office on ac-
count of offenses committed in a former term of the same elective
office which he was holding at the time of impeachment.

In the State of Ohio Messrs. Pease^ Huntingdon and Tod held a
certain act of the Legislature nnconsti tntional and void. At the ses-
sion of the Legislature 1807-^8 steps were taken to impeach them
therefor, but the resolution was not acted upon at that session. But
at the next session steps were taken toward the impeachment of the
offending judges, and articles of impeachment were reported against
Pease and Tod, out not against Huntingdon, who, in tne mean time,
had been elected governor of the State, and, of course, had ceased to
be a judge of the court. This discrimination is an autuority in favor
of the proposition that no man can be impeached after he is out of
office. (Cooley on Constitutional Limitations, page 160, note 3.)

To all this the managers, as I understand them, have nothing to
oppose but the ar^meuts in Blount's case, and three words m>m
Rawle on the Constitution. I shall iefer to both ; I ask the Secretary
to read from the argument of Mr. Bayard in that case, 2 Congressional
Ajinals. page 2261.

The Sijretary read as follows :

I observe, it is stated in the plea, that William Blonnt was not an officer of the
Uuit«<l States at the time of the act done charged in the articles of impeaobment.
This objection is rem oved if eitiier of the groun<is which we have taken be main-
tainable : First, that impeachment is not confined to officers, but exends to every
citizen ; second, that a Senator is an officer of the United States.

It i» also alleged in the plea, that the paity impeached is not now a Senator. It
is enonph that ho was a Senator at the time the articles were preferred. If the
impeacnment were regular and maintainable, when prefcn'cd, I apprehend no sub-
sequent event, grounded on the willful act. or caused by the delinquency of the
party, can vitiate or obstruct the proceeding. Otherwise the party, by rosiguatiou
or the commission of some offense which merited and occasioned lus expulsion,
mi tht secure his impunity. This is against one of the sagest maxims of the law,
which does not allow a man to derive a benefit from his own wroug.

Mr. CARPENTER. Please read from the argument of Mr. Dallas,
page 2278, the passage marked.
The Secretary read as follows :

It would bo permitted to him. however, cursorily to remark that the articles of
impeachment do not charge William Blonnt with any crime or misdemeanor com-
mittetl in the execution of his office with any act which might nyt have been com-
mitted by any other citizen as well as a Senator ; that there was room for argu-
ment whether an officer could be impeached after he was out of office ; not by a
voluntary resignation to evade prosecution, but by an adversary expulsion.

Mr. CARPENTER. Now read from Mr. Ingersoll, page 2294.
The Secretary read as follows :

It is among the less objections of the cause, that the defendant is now out of
office, not by resignation. I certainly shall never contend that an officer may first
commit an offense, and afterwards avoid punishment by resigning his office; but
the defendant has been expelled.

Mr. CARPENTER. They also cited Rawle on the Constitution, page
213, for the benefit of three words only. On page 213 Mr. Rawle says :

From the reasons already given it is obvious that the only persons liable to im-
peachment are those who are or hive been in public office.

Three words, " or have been," is all they claim any comfort from
• in this passage from Rawle — an instance of the caution of a wiiter,
in laying down a general proposition, to throw in hero and there
qualifications which may or may not exist. He does not discuss the
question at all, or give any reason why men should be imxtcached af-
ter they are out of office.

In regard to the argument of Blount's counsel, it may be remarked
that the question was not involved in that case. Blount had not
resigned. Neither Mr. Dallas nor Mr. Ingersoll had been i-etained to
compose an essay upon the subject of impeachment, but simply to take
care of Bionut in that case. It is the constant habit of counsel, iu argu-
ing a particular cause, to concede a proposition from the other side
which does not affect their client. It is much easier to confess a pi op-
osition and avoid it by showing that the case is not within it, than to
answer the proposition itself. Judges hold that they are not bound by
an opinion upon astate of fact-s not before them. An obiter dirtum does
not bind the court, and a/ortj^ri should not be regarded as the deliber-

ate opinion of counsel. It was a proposition wholly immaterial in that
case ; and therefore counsel mi^ht confess and avoid, instead of tak-
ing time to answer the proposition on its merits. The question of
jurisdiction depends upon whether the respondent holds or does not
hold an office, and not whether he got out of it by expiration of his
term or by resignation.

The honorable managers rest their side of this cj^uestion upon three
words in Rawle's Commentaries ; and the admission of two lawyers
in arguing a cause where the question was wholly immaterial.

Mr. McDonald. I propose a question to the counsel.

The PRESIDENT pro tempore, The Secretary will report the in-
quiry proi)ounded by the Senator from Indiana*

The Secretary read as follows :

If the term oi office of the accused should t>erminate or expire pend-
ing the tiial, would that operate to discontinue or abate the cause f

Mr. CARPENTER. I think it would.

Mr. THURMAN. I suppose that some time during the day the Sen-
ate will take a recess for a few minutes ; and 1 would like to inqnhre
of the counsel if it would suit his convenience for the Senate now to
do sot

Mr. CARPENTER. I should like to go on for a few moments.

If I am right iu saying that the only purpose of impeachment is to
remove a man from office, when the man is out of office the object of
impeachment ceases, and the proceedings must abate. There would
he no further object to attain by the proceeding. Suppose the man
conunitted suicide while his trial was prosressiug, would not that
be good matter of abatement? Suppose he commits official sui-
cide, by resigning, why should this not have the same effect f I
have attempted to show that the sole object for which the power of
impeachment was given is removal from office.

There is another proposition which I intended to argue in that con-
nection. The disqualification clause of punishment was evidently
put in for the purpose of making the power of removal by impeach-
ment effectual. After providing that the officers of the United States
might be removed on impeachment, although the President could not

})ardon the offender convicted and removed, yet if he could re-instate
lim the next morning he would have substantially the power of par-
don. To prevent this was the object of the disqualifying clause;
which Story says is not a necessary part of the judgment. You might
impose it where you had removed an officer appointed by the Presi-
dent whom the President could re-instate. You could stop that by fix-
ing disability upon the officer; and that I take to have been the sole
purpose of this clause.

•If I am right in this position, if the man died in the middle of the
trial, or if he died after finding agahist him, but before judgment had
been pronounced, the suit would abate. Must this court go on and
sentence a man after he is dead,— either physically or officially dead t
It is equally absurd to talk of removing a man from an office which
he no longer fills, as to talk of removing a man from office after he is
dead. So far as its effect upon the suit is concerned I see no differ-
once between the case of his natural death and his official death. The
suit abates because th^re is no further object to be attained by its

Let me remind the Senate that there is not a writer on this subject
who does not maintain that the power of impeachment was never in-
tended for punishment.

This is conclusively shown by the fact that the party, after he is
impeached, is to be indictedand punished for his crime. Ajid it should
be remarked that, if impeachment lies against one not in office, he
must either not be punished at all, which would show the absunlity
of the proceeding ; or you must inflict the disqualification, which,
Story says, yon need not inflict on on« removed from office.

Returning from this digression to the line of my argument, let me
say that Rawle's Commentaries and the report of the Blount case were
considered by Judge Story in writing his Commentaries ; and he quotes
from them both, but evidently disagrees with Rawle's parenthetic sug-
gestion, and the concessions made oy the counsel of Blount.

I read from Stoir's Commentaries on the Constitution, $ 789. The
fonrth section of the second article is quoted as follows :

The President, Yice-President and all civil officers of the United States, shall be
removed from office on impeachment for, and oonviction of, treason, bribeiy, or other
high crimes and misdemeanors.

Stpry then proceeds :

From this clause it appears that the remedy by impeachment is strictly confined
to civil officers of the United States, including the President and Vice-President
rs materially from t he law and praot ice of Great Britain. In

that kingdom all the kind's snmocts, whether peers orcoramonets. are impeachable
in Parliament, thotich it is asserted that commoners canuot now be iniper * ' '
capital offenses, but for misdemeanors only. Such kind of misdeeds, however, as

peculiarly iqjore the commonwealth by the abuse of hich offices of trust are the
most proper and have been the most usual grounds fur this kind of prosecution in
Parlisment. There seems a peculiar propriety, in a republican government at least, in
confining tlie impeaching poioer to persons holding office.

I will not take the time to read further from this section, bnt it
proceeds in answer to the suggestion made by Rawle and to the ar-
gument of Mr. Bayard and the concession made by the counsel for
Blount to get rid of a point which conceded did not harm their client,
or atfect his case, and which they would rather concede than to argue.

Here is what Story says of Rawle, $ 801 :

A learned commentator seems to have taken it for granted that the liability to
imjpeachmeut extends to all, who have been, as well as vo all, who are, in puoho

Digitized by




Section 802 and section 803 bear npon the same x>oint. I will read

As ilia declared in one danse of the Conetitation ** that JndjBnnent ineaees of im-
peaehment shall not extend farther than a removal from office' and dlaoualiflcation
to hold any office of honor, trnst, or profit under the United States,*' ana in another
claose that '* the President, Vice-President, and all civil officers of the United States
•hall he removed from office on impeachment for and con victicm of treason, hribery,
or other hi^h crimes or misdemeanors," it wau'd sesm to foUow that the Senate, on
the conviction, were hound in all oases to enter a Judgment of remowU from ojlee,
thoa^h it has a discretion as to inflicting the pun&hment ot disqualification.
If, then, there must be a Judgment of removal from office, it vould »eem to fol ow
that the OontiU^ion eontempfated that the party toa» ttiU in oJUe at th^ time of im-
veaehment. If he was not, his offense was still liable to be tried and punished in
the ordinary tribunals of Justice. And it might be argued with some force that it
wonld be a vain exercise of authority to txy a delinquent for an impeachable ofiense
when ^emoet important olject for which the remedy was sivon was no longer nec-
T or atteinable. And although a Judgment of disqualification might still be

pronounced, the language of the Constitution may create some doubt whether it can
DO pronounced without being coupled with a removal from office. There is also
mMch/orct in the remark that an Impeaclunent is a proceeding purely of a political
satore. It Is not so much designed to punish an offender as to secure the State
against grota oJIckU miademeajwyrt.

Mr. CONKLING. Mr. President, I should like to ask a question of
the counsel. I ask it that I may understand fully his answer made
to the Senator from Indiana.

The PRESIDENT pro iemj^ore. The Senator from New York pro-
pounds a question, wnich will be read.

The Secretary read as follows :

Is there no distinction on the point of Jurisdiction to try an impeach-
ment between the case of a resignation before articles are found and
the case of resi^ation not till after articles have been found!

Mr. CARPENTER. That is like the Question considered by Messrs.
Dallas and lugersoU in their case, and which they conceded, rather
than stop to answer. It is a question not material in tJiis case, be-
cause here the resignation preceded the exhibition of the articles.
Still, to answer the question, I think that even such resignation
irould ahate the proceedings.

Mr. EDMUNDS. Mr. President, I move that the Senate sittmg for
this trial take a recess of twenty minutes.

The motion was agreed to; and (at two o'clock p. m.) the Senate
sitting for the trial of the impeachment took a recess for twenty min-

The PRESIDENT pro tempore, at two o'clock and twenty minutes
p. m., resumed the chair.

Mr. CARPENTER. Mr. President and Senators, during the recess
I have reflected upon the questions proposed to me by two of the
Senators; that hy the Senator from Indiana, which is:

If the term of office of the accused should terminate or expire pending the trial,
would that operate to discontinue or abate the cause t

And the other hy the Senator from New York, [Mr. Conkung :]

Is there no distinction on the point of Jurisdiction to try an impeachment, be>
iween the case of a resignation before articles are found, and the case of resigna-
tion not till after articles have been found t

When these questions were propounded to me, I had in mind pre-
cisely the difficulty that I have inherited from the course pursued
hy Messrs. Dallas and Ingersoll. I was determined that the counsel
who shall follow me in tbe next impeachment case, should not be
embarrassed by any inconsiderate aamission of mine. I therefore
met the questions as I thought, at the moment, they ought to be an-

The question put to me bv the Senator from New York is very
mecifio, and, in reply, I would say that a distinction exists between
toe case where a resignation precedes the exhibition of the articles,
and the case where a restgnati«D comes between the exhibition of the
articles and final J udsment. And this court might hold that after J ur-
isdiction had attachedby exhibition of the articles, or even by the formal
imneachment which precedes exhibition of articles, the jurisdiction
haa attached, and resignation would not prevent final judgment.
Speaking, however, for myself, I still incline to the opinion that, if
the officer, who alone can be impeached, is out of the office before judg-
ment of removal passes, this would abate a proceeding, which, I have
endeavored to show, can only be had for the purpose of removal. It
is said the law will not require a vain thing; from which I infer
that the highest court in the Republic will not render a vain judg-
ment. Having thus performed my duty to the next impeachment
case, I return k> my argument in this case.

I have read to the court three sections from Story's Commentaries
on the Constitution, to show that he did not accept the parenthetical
snggeistion of Mr. Rawle, nor the concessions made by counsel for
Blount. Candor compels me to read from the Commentary of Judge

Sac. 805. It is not Intended to express any opinion in these commentaries, as to
which is the true exposition of the Constitution on the points above cited. They
are brought before tne learned reader, as matters still mb judiee^ the final decision
of which may be reasonably left to the high tribunal consUtuting the court of im-
peachment, when the occasion shall arise.

Every lawyer knows that Jud^e Story was in judicial office while
be was writing these commentaries; every lawyer knows hia method
in regard to undecided questions, in all his legal writings. When ho
came to any important questions, not settled by jndicialdecisions^ he

fave the arguments pro and oo», and invariably decUued do<];mat]oul
eclaratious, but it is never difficult to discern the loaning of his own
mind ; notwithstanding his repeated assertion that he docs not intend

to express an opinion. And when he says, from a particular provision
of the Constitution it seems to follow so and so, or that from a provis-
ion of the Constitution it seems to result so and so, we get the in-
clination of his mind, althouffh he protests he is not giving an opin-
ion, which, indeed, might embarrass him if the question should come
before him judicially.

Mr. THURMAN. Mr. President, I send to the Chair a question
which I submit for the counsel to answer at this point of the argu-

The PRESIDENT pro tempore. The Senator from Ohio propounds
an inquiry, which will be rieA.

The Chief Clerk read as follows :

Do or do not the remarks you have read from the debates in the
constitutional convention relate exclusively or mainly to the ques-
tion whether the chief executive officer in the Government should be
unaccountable, as in Great Britain, or should b.e responsible f

M r. CARPENTER. There were but two principal debates upon this
subject in the convention. One was upon the question whether the
power of impeachment should be incorporated in tbe Constitution ;

Online LibraryUnited States. CongressCongressional record : proceedings and debates of the ... Congress → online text (page 21 of 172)