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whole, amended, referred to a committee of detail, and finally brought
back by the committee of style in the complete and perfect form of
the Constitution. But from the embryo to the full birth Mr. Ran-
dolph's resolutions are the principle of life of the Constitution, and
the resolutions of Mr. Paterson and Mr. Piuckney, which alone Mr.
Carpenter read the other day, are merely resolutions which were re-
ferred to the same committee, but upon which the convention never
took action.

If the original proposition had prevailed, first made to the conven-



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58



TRIAL OF WILLIAM W. BELKNAP.



tion in a series of resolations by Mr. Randolph, and afterward adopted
and reported by tbe committee of the whole, the general power of
trial of all civil officers on impeachment wonld have been vested in
tbe Supreme Coort, leaving the method of proceeding and the limit
of jurisdiction and punishment to be ascertained from the common
law. There is where you have your first proposition. It is the gen-
eral power of trial of all civil officers on impeachment vested in the
Supreme Court, everything else beine left to the English practice,
to be ascertained from the common law or determined by legisla-
tion, with the limitation on the term of office of the President alone,
'*to be removable on impeachment and conviction of malpractice and
neglect of duty."

On the 13th of June Mr. Randolph's ninth resolution, giving to the
Supreme Court unlimited Jurisdiction over impeachment of any na-
tional officers, was agreed to without dissent.

On the same day Mr. Gorham reported from the committee nine-
teen resolutions, which contained a plan or scheme of government, of
which the ninth and thirteenth were as follows :

Re$olvedy That a national executive be instltnted, to consist of a single person ;
to be chosen by the National Legislature for the terra of seven years ; with power
to carry into execation the national laws, to appoint to offices in cases not otber<
wise provided for. to be ineli^ble a second time, and to be removable on impeach-
nent and conviction of malpractices or neglect of duty ; to receive a fixed stipend
by which he mav be compensated for the devotion of liis time to the public service,
to be iMkid out of the National Treasury.

13. Remlved^ That the Jurisdiction of the national judiciary shall extend to all
cases which respect the collection of the national revenue, impeachment of any
national officers, and questions which involve the national peace and harmony.

This committee from which Mr. Gorham reported was the commit-
tee of the whole, and you have then this ample jurisdiction reported
from the committee of the whole to the convention,- containing the
unlimited authority to try impeachments of any national officers and
vesting it in the Supreme Court.

On Uie 5th of June Mr. Paterson laid his plan before the conven-
tion, which gave tbe national jndiciarv '^ authority to hear and de-
termine on all impeachments of Federal officers," the power to remove
the President being vested in Congress on application of a mi\jority
of the executives of the States.

July Id, the clause concerning impeachment of national officers was
struck out from the enumeration of the powers of the Supreme Court.
It is clear from the whole proceedings tnat this was done for the pur-
pose of transferring the power to try impeachment to some other de-
Snrtment of the Grovemment, and not in the least with the object of
miting or destroying it altogether. There is no reason to think that
in regard to all officers except the President there arose in the con-
vention debate or (question that the power to impeach them should
be as unlimited ns it was iu England, the extent of the punishment
alone being restrained.

July 20, the debate arose on the method of electing the President
and on the tenure of his office.

On the clause **to be removable on impeachment or conviction for
malpractice or neglect of duty " Mr. Pinckney and Mr. Gouverneur
Morris moved to strike out this clause.

Now, remember you had at that time a universal power of impeach-
ment over all national officers. Then they were dealing with the
term of office of the President, and they had before them a clause
which said that the President should be removable, limiting his four
years in that respect upon impeachment.

Mr. Pinckney observed he ought not to be impeachable whUe in oJ/Ue,

That shows the understanding perfectly, that under the general
clause he was impeachable after be left office, but that his four years'
term, according to Mr. Pinckney, should go on.

Mr. Davib. If he be not impeachable while in oJHee, ho will spare no effort or
pains whatever to get himself rejected.

Mr. WiLBON concurred in the necessity of making the Executive impeachable
MthiUinoMee,

ColoneiMASON. When great crimes are committed, I am/or puni^ing the prin-
eipali a» wdl a» the coadjiUore.

That is. Colonel Mason recognized the existence of the general power
to punish the coadjutors and other officers as well in as out of office,
and was for putting the President while in office on the same ground.

This debate derives great si^ificance from the fact that in two of
the States, Delaware and Virginia, the power of impeachment of the
executive only existed when lie was out of office, and Vermont and
Georgia in constitutions adopted a very few years afterward, almost
contemporaneous, gave the power of impeachment over all who have
been or may be in office, as cited the other day by Mr. Blair. In
other words, these men, familiar with constitutions some of which
made the officer that is the >iead of the State, impeachable only after
he had left office and others which gave the general power over all
the executive officers in or out alike, are dealmg with the Constitu-
tion of the United States ; they put in this universal power of im-
peachment without an objection from any quarter, reiwrted unani-
mously from the committee of the whole, and then go on to deter-
mine and to debate whether, as in Delaware and Virginia, the execu-
tive while in office shall be in the same condition, which would of
course make him de|)endent on the other branches of the legislature,
as he would be out of office and as all other executive officers were
either in or out.

On the 2Cth of July the resolutions, as amended, were referred to
the committee of detaiL As the plat then stood, the power to pro- 1



vide for proceedings and punishment on impeachment would have
clearly been vested iu Congress without limit.

August 6^ Mr. Rutledge reported from the committee of detail a con-
stitution—it had been in a series of resolutions up to that time — which
provided :

The House of Representatives shall have the sole power of impeachment. (Arti
cle 4, section 6.)

The President shall be removable on impeachment by the House of Bepreeenta
tives and conviction in the Senate of treason, bribery, and corruption. (Article 10,
section 9.)

The Jurisdiction of the Supreme Court shall extend to the trial of impeachments
of officers of the United States. (Article 11, section 3.)

Judgment in cases of impeachment shall not extend further than to removal from
office and disqnali6cation to hold and ei^joy any office of honor, trust, or profit un-
der tbe United States. But the party convicted shall nevertheless be liable and sub-
feet to indictment, trial, judgment, and punishment according to law. (Article 11,
section — .)

This report was first amended Au^st 22, by providing that the trial
of judges of the Supreme Court on impeachment should be before tbe
Senate, then on 25tn of August by excepting convictions on impeach-
ment from the President's power to pardon, and August 2dthby ex-
cepting it from the clause guaranteeing trial by jury.

August 27 the clause for removing the President on impeachment
and conviction was postponed, on motion of Gouverneur Morris, who
thought the Supreme Court an improper tribunal.

August 31 all the postponed clauses and such parts of reports as
had not been acted on were referred, on motion of Mr. Sherman, to
a committee of one from each State.

September 4 the committee reported, recommending the insertion,
instead of the ninth clause, of the words *' the Senate of the Unitea
States shall have power to try all impeachments ; but no person shall
be convicted without the concurrence of two-thirds of the members
present." They reported also the provision that " the Vice-President
shall be ex offido President of the Senate, except when they sit to try
the impeachment of the Presideut, in which case the Chief Justice
shall preside,'' d&o.

They further reported the clause making the President removable
from office on impeachment for treason and bribery. This clause gave
rise to some discussion on the question whether the Senate or the Su-
preme Court were the fitter tnbunal to try the President and on the
question of authorizing the removal for other misconduct than treason
or bribery ; whereupon the clause was amended as it now stands.

It was then voted, without debate and apparently without division,
to add to the clause making the President the suliject of removal the
further words '' the Vice-President and all civil officers of the United
States shall be removed from office on impeachment and conviction."

This historjr of the formation of the Constitution seems to me to
show conclusively that article 2, section 4, of the Constitution, which

grovides that the President, Vice-President, and all civil officers shall
e removed from office on impeachment and conviction, was inserted
solely as a limitation on the tenure of office, and not as a limitation
on the judgment on impeachment or on tbe iurlsdiction.

When the clause in the Constitution, article 3, section 4, was added
the convention was dealing with the tenure of executive office. They
had passed from the subject of impeachment. They were not creating
the court. They were not defining the judgment or directing the
process. All that was complete. There can be no question that the
common-law power of impeachment had been vested in the two
Houses of Congress, with all needful provisions as to the trial, the
conviction, and the sentence. When they vested the pardoning power
in the President it was deemed necessary to guard against an appar-
ent repugnance by excepting cases of impeachment. When they so-
cured the trial by jury in the trial of all crimes, it was deemed neces-
saiy to guard against a like apparent repugnance by excepting cases
of impeachment. When they fixed the tenure of civil offices, pro-
viding a tenure during good behavior for the judge, a term of iour
years for the President and Vice-President, and left the tenure of
others to the appointing power or to the law, they guarded against
another like apparent repugnance by excepting cases of impeachment.

II. The authorities upon the question are not numerous, but they
are all on the side of the power.

Mr. Rawle, a very able and learned writer, takes it for granted that
the liability to impeachment extends to all who have been as well as
to all who are in public office.

Judge Story, section 803) states one or two arguments of a literal
and narrow character against the power to enter judgment of dis-
qualification without judgment of removal, and very clearly, as it
seems to me, indicates that the inclination or leaning of his mind in
that direction is in favor of the construction contended for by the
defendants : but you will remember that Judge Story at that time
had not beiore him this great light which comes from the reading of
the Madison papers, as they were not then published. Judge Story
was not speaking either under the stimulant of official or judicial re-
sponsibility. He had not heanl counsel. Judge Story is a writer the
habit of whose mind was, as we all know, to state ar^ments on the
one side or the other, giving them their full force without commit-
ting himself, but he goes on and expressly declares that —

It is not intended to express any opinion as to which is the true exposition of
the (Constitution on tlio points above citt^l. They are brought before the learned
reader as matters still tub jud*ce, the final decision of which may be reasonably
left to the high tribunal constituting the court of impeachment when the occasion
' *■ arise.



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TRIAL OF WILLI A.M W. BELKNAP.



59



The qnestion was expressly raised before the Senate in the case of
William Blount, the f^ret case of impeachment which arose under the
Constitution of the United States. Blount was a member of the Sen-
ate who had been expelled a few days before the Impeachment for
the same offense for which he was impeached.

Blount pleaded to the jurisdiction that a Senator of the United
States was not a civil officer ; that he had ceased to be a Senator
when he was impeached, and that the acts charged were not done in
the execution of his office, and the canse was heard on a replication
to this plea in the nature of a demurrer.

I wisn for a moment to ask the Senate to consider the proposition
which the learned counsel on the other side founded upon that judg-
ment. They would have you believe that the judj^raent of the Senate
sustaining that plea, and declining to take jurisdiction, was because
they deemed that a person liable to impeachment while in office could
not be impeached after he hod left it ; and it is therefore an author-
ity on their side. If that be true, then the question whether a Sen-
ator of the United States can be imi>eached by the House of Repre-
sentatives is an open question under our Constitution. That is con-
trary to the judgment of every text writer, and I venture to say of
every member of this tribunal, however he may incline on the hnal
qnestion. If that be true, we have no authority under the Constitu-
tion which determines that the House of Representatives cannot im-
peach one of its own members, or that it cannot impeach one of the
members of this bo<ly and compel the Senate to put him on trial.
No, Senators, the jndraient in the Blount case, as has been the imani-
mons construction given to it ever since, is that the nature of the
senatorial office, the nature of the office of Representative in Congress,
is utterly incompatible as created in the Constitution with the ap-
plication to it of the iurisdiction of impeachment. Is it to be toler-
ated — can two branches of a legislative body dwell together under
the Constitution in peace if one of them has the constitutional pre-
rogative to lay its hand upon a member of the other and force that
hMy to which he belongs to put him on trial for an abuse of that
Tery l^^ative office to which he was elected f That is the limita-
tion of the doctrine in the Blount case. The power of removal is
given to each House for those very causes by another and indep>end-
ent and exclusive provision of the Constitution, as my distinguished
colleague [Mr. Lapham] suggests.

The principal argument on both sides was on the question whether
a Senator was an impeachable civil officer, and there is no doubt that
tiie judgment sustaining the plea was on that ground. But the opin-
ions of the very able counsel on both sides constitute very weighty
evidence of the contemporaneous understanding of the Constitution.
The two managers, Mr. Bayard and Mr. Harper, and the two counsel
for the defendant, Mr. Dallas and Mr. Ingersoll, were among the ablest
lawyers of their day. Mr. Bayard said :

It is alfio alleged in the plea that the party impeached is not now a Senator. It
Is enoojdi that he was a Senator at the time the articjies were preferred. If the
impeachment were resnlar and maintainable when preferred. 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 resignation
or the commission of some offense which merited and occasioned his expulsion,
misht secure his impunity. This is against one of the sagest maxims of the law,
which does not UIow a man to deriire a benefit from his own wrong.

Mr. Dallas, for the defendant, said :

Z%«r« VHU room /or argument whether an officer could be impeached after he
was out of office ; not by a voluntary resignation to evade proeecutlou, but by an
adversary expulsion.

Mr. Ingersoll, for the defendant, said :

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 com-
mit an offense and afterward avoid punishraenfbv resigning his office ; out the de-
fendant has been expelled. Can he be removed at one tnol and disqualified at
another for the same ofi'ense f Is it not the form rather than the substance of a
trial f Do the Senate come, as Lord Mansfield says a Jury ought, like blank paper,
without a previous impression on their minds f Would not error in the first sen-
tence naturally be productive of error in the second instance f Is there not reason
to apprehend the strong bias of a former decision would be apt to prevent the in-
fluence of any new lights brought forwwrd upon a second triaL

It seems to me that the consenting opinion of these leaders of the
American bar, two of them making a concession against their client,
is entitled to great respect. They all agree that tne fact that there
can be no judgment of removal is not decisive against the mainte-
nance of the proceeding; for that is true whenever the office has
been laid down. But the defendant's counsel confine their objection
solely to the fact that the removal has been accomplished by another
constitutional mode of dealing with the same offense, and one which
has disqualified the tribunal itself from proceeding to give judgment
in impeachment.

I do not agree with the distinguished gentlemen on the other side
as to the statement of a principle of constitutional law made by Jared
Ingersoll and Mr. Dallas — a concession directly against the interest of
their client — because they were conceding that under some circum-
stances a person could be impeached after he had left an office. It was
for the interest of their client to maintain the general doctrine that
under no circnmstanees could that be done. One of these distinguished
gentlemen says he is not capable, he never will be led by any profes-
sional necessity, to argne that a man who lays down his office to avoid
the penalty of his crime can so escape, and the others in difiereut lan-
guage but in substance concurred in the same opinion. They put their



argument on the ground that under another constitutional provision
the man had been expelled for the same cause from the Senate within
a few days. In other words, a constitutional and quasi judicial pro-
ceeding had been had which not exempted the defendant but disqual-
ified the tribunal. One of the gentlemen goes on to argne, " how is it
possible to have a trial on impeachment before a body that by a two-
thirds vote has just determined every qnestion of fact which is in-
volved in the issue t" That was the argument which those counsel
submitted to the Senate at that time.

Of the soundness of the decision in the Blount case no qnestion as
far as I can remember has been raised since. That the members of
either House of Congress should be impeachable by or before the
other, or that an officer whose duties are legislative should be called
in question elsewhere for official acts, could never be tolerated and
is repugnant to the nature of the office itself. The claim that the de-
cision was on the ground that he was out of office cannot be main-
tained. Would Blount have been impeachable if he had staid in
office t Does the learned counsel maintain that? There has been no
attempt to do it. Although I am sorry to say there have been cases
enough of official misconduct, no attempt has been made to impeach
a Senator or Representative from that da^y to the present.

This question was directly presented m the case of Barnard in
New York in the year 1872. After very full and able arguments, the
court of impeachment, consisting of the court of appeals and the
senate, voted 23 to 9 that the plea of the respondent that he could
not be held to answer for oflfenses committed in a former term of
office which had expired be not sustained, llie coiurt afterward
unanimously found the defendant guilty on most of the articles to
which this plea applied.

The counsel attempt to break the force of the decision in the case
of Judge Barnard by suggesting that it only decides that a man who
holds one office can be impeached for what he did in another. In
other words, it is gravely claimed that the decision of Barnard's case
is on the ground that you may impeach a civil officer only while he
holds office ; but that ^ron may impeach him while he holds office for
anything whatever which he did befure he entered upon it, whether
those acts had any relation whatever to the office he holds or not.
Can any Senat-or, after reading the discussions in the Barnard case,
believe that any member of the tribunal who composed it rested his
decision on that ground t The able and ingenious counsel who de-
fended Judge Barnard did not deem it fit for them to present this
ground to the court, so far as I can see. and the counsel who prose-
cuted the impeachment against him had nothing of the sort to say.

I have. Senators, one other authority to cite on this matter. It is
the opinion of an individual statesman, but carrying with it a weight
on such a question as this not surpassed by that of anything except a
judgment of the Senate itself. If this were a doubtful matter bis
character and history might have been expected to bring him to an-
other result. He had held every variety of civil office. His life was
an example of independence of individual judgment, of a struggle on
the side of liberty against authority, against the power of public bo<lies
and of public opinion. His early youth was passed among the open-
ing scenes of a revolution. In middle life he was driven from the
Presidency, which he had administered with unsurpassed wisdom and
integrity, by a storm of popular delusion and folly. At the age of
fourscore, in the cause of liberty he had bared his breast against a
dominant majoritv both of Congress and of people, looking only <'to
another age" for his vindication. Certainly this man would not in-
cline to extend unduly the power of a political body to punish polit-
ical offenses by a judgment of political disfranchisement.

Yet John Quiucy Adams, in 1846, declared:

And here I take ooca«ion to say that I differ from the gentleman from Virginia,



[Mr. Bailey,] and, I believe, other geutlemen who have stated thai the day of im-
passed, by the Constitution, from the moment the pablic '"
[ no such doctrine. I hold myself,^ long as I have the I

„ ly, amenable to imp

the time I held any public office.



03cpires. I hold no such doctrine. I hold myself, so long as I have tue lireath of



my body, amenable to impeachment by this House lor anything I did during



expire
life in

le til

Mr. Bau^t. Is not the Judgment in case of impeachment removal from office?

Mr. Adams. And disqualification to hold any office of honor, trust, or profit un-
der the United States forever afterward ; a punishment much greater, in my opin-
ion, 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 liy impc^tunont, he would
ave very little of my good opinion If he did not think <tisqualiflcation from hold-
ing office for life a more severe punishment than mere removal from office. I hold,
therefore, that every President of the United States, every Secretary of State, every
officer impeachable by the laws of the country, is as liable twenty years after bis
office expired as he is while he continues in omce,—0ongre8sional Olobe^ April 13,
1846.

The learned counsel did me the extraordinary honor to quote to the
Senate some words which I uttered in another place, the discussions
in which are not very proper for consideration here, as it seems to me,
when this question was up. The honor was a little diminished by the
fact that the same counsel think that the House of Representatives
are forever estopped in their great constitutional power of impeach-
ment by the legal opinions of Mr. Wiluam Lawrence in the Fortieth
'^ ^ ), as matter of law, and as matter of fact by the action of

^STKR Clymer in this. I suppose we might perhaps i-e-



Online LibraryUnited States. CongressCongressional record : proceedings and debates of the ... Congress → online text (page 29 of 172)