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ment is an accusation against an individual preferred by the House
of Commons and tried by the House of Lords ; that it was in exist-
ence as early as the year 1376, and has been frequently resorted to,
especially in the seventeentlr and eighteenth centuries, for the pun-
ishment of great offenders ; that " all the king's subjects are impeach-
able," whether in or out of office, but that the procedure has with
very few, if any, exceptions been confined to cases of official malfeas-
ance or misfeasance, or of abuse of franchises or privileges granted
by the Crown.

In Wooddeson's fortieth lecture, entitled " Of Parliamentary Im-
peachments," delivered a few years before the formation of our Con-
stitution, and with which, it is probable, the most of the fram«ur8 of
the Constitution were familiar, it is said :

It is certain that magiBtratea and oflBcors int mated with the administration of
public afi^ra may abase tlieir delegated powers to tlie extcnsivo dctHment of (he
community, and at tho same time in a manner not pioporly co^niir^ble licf o* c tho
ordinary txibunala. The influence of such delinquents, and the natun^ of such
offenses may not unsuitably encage tho antbority of the highest court and the wis-
dom of tho sagest assembly. The Commons, therefore, as the grand inquest of tb«
nation, become suitors for penal justice, and thoy cannot consistently citbov Mritb
their own dignity, or with safety to the accused, suo elsewhere but to those wbi
share with them in the legislature. On thit pdiey i$ founded tho origin vj imipeaxh'
mentB,

And again:

All the king's subjects are impeachable in Parliament * * * Such kindt qf
mitdeed hotoeoer as peculiarly injure the commontoealth by the aJbuee of high officee qf
tnut are the meet proper, and have been the most unuU grounds for this kind of
prosecution. Thus, if a lord chancellor be guilty of bribery or of acting grossly
contrary to the duty of his office, if the Judges mislead their sovereignly uncon-
stitutional opinions, if any other ma^strate attempt to subvert tho fundamental
laws, or introduce arbitrary power, these have been deemed cases adapted to par*
hamentary inquiry and decision. So when a lord chancellor has been thought to
have put the seal to an ignominious treaty, a lord admiral to neglect the safeguard
of the sea. an embassador to betray his trust, a privy counsellor to propound or sup-
port pernicious and dishonorable measures, or a confidential advisor of his sove-
reign to obtain exorbitant grants or incompatible employmenta, those imputati<Mia



have properly occasioned impeachments; bbcause it is apparent how little the ordi-
naiy tribunals are calculated to take cognisance of such offenses, or to investigate
and reform the general policy of the state.



Such was the state of the English law when our Constitution waa
adopted, bnpeachment was resorted to, not for the punishment of
ordinary crmes cognizable by the ordinary crimintJ courts, but to
punish ofiGicial misconduct or abuses of public trust. It is true that
some acts of official misconduct and some abuses of public tnist were

Eunishable in the ordinary courts ; but this fact did not deprive Par-
ament of the jurisdiction to punish them, in its discretion, by the
process of impeachment.

It follows that, if the usual legal signification of the term " im-
peachment " that obtained when the Constitution was adopted is to
be followed, Qeneral Belknap is subject to the jurisdiction of the
Senate upon the articles preferred against him. He is charged with
grave misconduct and corruption while in office, and he cannot escape
the jurisdiction of the House to impeach and the Senate to try by a
resignation of his office, if the common-law definition of impeach-
ment is to prevail. That the expiration of the official term of the
offender, wnether bj resignation or otherwise, does not put an end
to this jurisdiction is shown by several cases, and notably by tiiose of
Hastings and Melville.

We are next to inquire whether the Constitution limits or modifies
the impeachment known to the common law. In some important
particulars it does alter and modify it.

First. In England the chief executive magistrate is not impeacha-
ble. Under our Constitution he is.

Second. In England all the Queen's sublects Ore impeachable. In
the United St>ates, Blount's case seems to hold that impeachment is
confined to treason, bribery, or other high crimes and misdemeanors
of civil officers, (the President and Vice-E*resident included,) leaving
military and naval officers to be dealt with by martial law.

Third. Peers are not under oath as Judges when sitting as a court
of impeachment. Senators are.

Fourth. In the House of Lords a mt^ority convicts. In the Senate
a " concurrence of two-thirtls of the members present" is necessary to
a conviction. (Constitution, article 1, section S^paragraph G.)

Fifth. The punishment to be inflicted by the House of Lords may
extend to fine, imprisonment, corporal chastisement, loss of limb or
even of life, according to the law of tho land ; for it must be eeoui^
dum turn ultra legem, (Selden's Judicature, 168, 171; Jefferson's
Manual, 287.) But under our Constitution —

Judgment in oases of impeachment shall not extend further than to removal
from offico^nd disqualification to hold and oqioy any ofiSce of honor, trust, or protit
under the United States ; but the party convicted shall nevertheless bo liable and
subject to indictment, trial, Judgment, and punishment, according to law. (Con-
stitution, article 1, section 3, paragraph 7.)

Sixth. The king's pardon cannot be pleaded in bar of an impeach-
ment ; but <tfler conviction and judgment he may pardon. The presi-



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TRDLL OF WILLIAM W. BELKNAP,



79



dential power to pardon does not extend to cases of Impeachment at
all ; and consequently his pardon, however effectnal to prevent pun-
ishment in the ordinary courts, cannot be pleaded in bar of an im-
peachment or relieve the convicted offender from the sentence pro-
nounced by the Senate.

In all these particulars, except the second, the changes made by
the Constitution are apparent, and that suggested by the second par-
ticular seems to be established by Blount's case.

But it has been earnestly contended that it makes another and
sweeping change, namely, that it confines impeachment to cases
where the accnmd is in the office which he has abused at the time of
his impeachment, conviction, and sentence; and that, consequently,
if at any time before sentence he resign, the Jurisdiction of the Sen-
ate is at an end and no Judgment can be pronounced against him.

A proposition that makes the Jurisdiction of the ^nate depend
upon the will of the accused, that would practically annihilate the
power of impeachment in all cases of guilt clearly provable, and
leave it to exist in those cases onty that furnish no reason for its ex-
ercise, namely, cases in which guilt, if it exist, cannot be proved, or
cases in which there is no guilt at all, is not to be admitted unless
the terms of the Constitution are so explicit that it cannot reasonably
be denied.

The constitutional provisions cited in support of the proposition
are the'fol lowing :

Judgment in oases of impeaohment shall not extend farther than to removal
from office, and disqnalification to ho^d and eqjoy any office of honor, trust, or
profit midcr the United States : bnt the party oonvictea shall nevertheless be liable
ami sal^ject to indictment, trial Judgment and ponishment, according to law.
(Article 1, section 3, paragraph 7.)

The Prerident, Vice-Presiaent and all dvil officers of the United States, shall be
removed from office on impeachment for, hnd conviction of, treason, bribery, or
other high crimes and misdemeanors. (Article 9, section 4,)

It is aigued that this latter section is a designation of the persons
-who are subject to impeachment, and that they are all persons in of-
fice; and that consequently no Jurisdiction in impeachment can exist
against a person not in office. And it is further argued in support of
this view that both the cited provisions contemplate a Judgment of
rewiovalfrom office in every case of conviction, and thereiore negative
the idea of a Judgment against a person not in office. And it is fur-
ther said that the object of impeachment is to ^t rid of a corrupt or
dangerous officer, and that when his term of office expires, whether
by resignation or otherwise, that object is accomplished and there is
no reason left for his impeachment.

And it is further contended that the clauses granting the power of
impeachment ought to be strictly construed, because they are, as it is
said, in derogation of the provisions of the fifth and sixth articles of
amendment to the Constitution relating to criminal proceedings.
These are, in brief, the grounds upon which the proposition in question
is advocated, and which, it is claimed, fully sustain it. It is not pre-
tended that any provision of the Constitution explicitly denies the
jtomer to impeach after the close of the offender's official term, but
such a denial is sought to be established by argument and inference.

The question then arises, is the inference thus drawn a necessary
one! for if it is not, it cannot with reason be contended that it ought
to prevail, in view of the consequences already stated that would re-
sult from it. The grant of power to the House to impeach and to
the Senate to try au impeachments is clear, and cannot be frittered
away or essentially limited by subsequent provisions supposed to be
repugnant unless the repugnancy is manifest. (Faw vs, Marsteller,
2Cranch, 10.)

I do not contend that the well-known doctrine relating to repeals
by implication on account of repugnancy obtains in construing the
several provisions of the Constitution ; but I do contend that all its
provisions must, if possible, be interpreted so as to be in harmony
with each other, and that, where it contains a grant of power in clear
and unambiguous terms, other provisions are, if possible, to be con-
strued so as to be consistent witn such grant. And hence, if any pro-
vision is capable of two interpretations, one of which is consistent
and the other inconsistent with such clear grant of power, the former
is to be preferred. And here let me observe that this rule in nowise
militates against the doctrine that, the Government being one of
delegated powers, the Constitution ought to be strictly construed.
I agree that it ought to be strictly construed ; but a strict construc-
tion is one thing and a construction that annihilates or jM*actically
destroys one of its plain provisions is quite another thing. The former
preserves the instrument in its integrity according to the intent of
those who framed and those who adopted it, but the latter disregards
that intent and performs an office of destruction and not of interpre-
tation.

Bearing these principles in mind, let us turn to the provisions re-
lied on by the deronse and see whether they are necessarily repugnant
to the previous general grant of power to prefer and try impeachments
or whether they may be interpreted in harmony with that grant.

The first of these provisions is that already quoted, to wit :

Judgment in cases of impeaohment shall not extend farther than to removal from
office, and disqualification to hold and ei^ioy any office of honor, trust, or profit un-
der the United States : but the party convicted shall nevertheless be Uable and sub-
ject to indictment, trial. Judgment, and punishment according to law.

The most ob\ious as well as the literal interi>retation of this pro-
vision confines it to the subject of Judgment. Its obvious in^nt
was to deprive the Senate of the large discretionary power exercised



by the House of Lords in the infliction of punishment, and to leave
to the ordinary courts of Justice the power to inflict those punish-
ments which imect the property, liberty, or life of the accused. In
this it is a great improvement upon the impeachment of the common
law by removing from the procedure the possibility of those abuses
by which it had too often been tarnished and disgraced. There is not
a word in the provision that necessarily touches any Jurisdiction of
the Senate^ except its Jurisdiction to punish. There is not a word
in it that hterally,or by reasonable intendment, makes removal from
office a necessary part of the sentence. If the accused be in office, the
Judgment may oe removal without disqualification, or both removal
and disqualification. If he be out of office, there can be no elective
sentence of removal, but there may be a Judgment of disqualification.
The remaining clause to be considered is section 4 of article 2:
The President, Vice-President and all civil officers of the United States, shall be
removed from office on impeachment fbr, and conviction c^ treason, bribery, or
other high crimes and misdemeanors.

At first view it might seem that this section, like the provision Just
remarked upon, relates wholly to the Judgment to be pronounced,
and that its sole purpose is to make removal from office a necessaiy
part of the sentence. But it seems to have been considered in Blount^
case that its scope is not thus restricted and that other objects were
also intended and are accomplished by it. The Senate in that case,
whether correctly or not it is unnecessary now to decide, seems to
have considered the section as an enumerauon of the causes for which
an impeachment will lie, and of the persons who commit the impeach-
able offense.

By this interpretation impeachment is confined to the treason, brib-
ery, or other high crimes and misdemeanors of persons in civil office.
But there is not a word in the section that expressly or by neces-
sary intendment prescribes the time when impeachment may be in-
stituted. Full effect is given to it when we say that the crime must
be committed while the person is in office, and that, if he remain in
office at the time of his conviction, he must be removed. But, whether
in or out of office at the time of impeaohment, he is liable to a sen-
tence of disqualification to hold office which he cannot escape by the
expiration of his official term. The language, " The President. Vice-
President, and all civil officers of the United States," does not import
that the persons holding these offices are to be impeached as offi!cers.
It is the person who is impeached, and all the section requires is that
he shall have held the office when he committed the crime. The mo-
ment he commits it he becomes liable to impeachment, and the Con-
stitution interposes no bar in the nature of a statute of limitations,
either by the expiration of his term of office or otherwise, to prevent
his punishment. His official character may be gone, but the criminal
remains, and his disqualification may be as proper after as before he
held official position.

This view might be illustrated by a reference to many criminal
statutes, desi^^ for the punishment of official misconduct, under
which the crime must of course be committed by a person in office,
but the indictment and punishment may be after the close of his
official term. Some of these statutes were read in the argument of
this cause and others will no doubt be referred to by Senators. I
will merely cite one : Bevised Statutes United States, sections 5501,
5502, 5503, 5504.

The interpretation I have given to the Constitution gives full ef-
fect to every clause in it and makes every provision harmonize with
every other provision. The interpretation contended for by the de-
fense makes the clauses discordant and repugnant, and reduces the
great and solemn remedy of impeachment, designed for the protec-
tion of the Government and people against official crime and corrup-
tion, to a miserable absurdi^. It introduces an anomaly unknown
to civilized man, the doctrine that it belonss to the crimint^ and not
to the (Government whose laws he has offended and whose trust he has
abused to say whether he shall be punished for his crimes.

It is vain to say that removal from office is the sole object of
impeachment, when the Constitution itself authorizes a sentence of
disqualification that may be as properly pronounced against the
man who has left office as against him who clini^ to it. It is vain
to say that impeachment is contrary to the spirit of the Constitu-
tion, since it is provided for in the Constitution itself. It is vain
to say that it is liable to abuse, for that argument, if admitted, would
take from government all its powers, since there is no one of them
that is not thus liable. It is vain to say that it may be employed
to harass and tyrannize over private men who have ceased to hold
office, for the mode of procedure itself negatives the probability^ nay,
almost the possibility, of its being thus prostituted, to say nothing of
the influence of public opinion that would inevitably condemn duch
an attempt.

A distinguished English Jurist has described it as ^'a safeguard of
public liberty well worthy of a free country and of so noble an
institution as a free Parliament (May's Parliamentary Practice,
chapter 23.)

Hallam says:

Middlesex was nnanimoosly oonviotod by the Peers. His impeachment was of
the highest moment to the Commons, as it regtored forever that saliUary constitt^
tioiuU riaht xrhich the single precedent of Lord Bacon micbt have boon iasnflicient
to establish against the ministers of the Crown. (1 Constitntional HihCory, 3751)

And again :

The Commons had now been engaged for more than twenty years in a stmc^lo
to restore and to fortify their own and their fellow-snl^eots' liberties. They hadol>.



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80



TRIAL OF WILLIAM W. BELKNAP.



tained in this period bat ono legislative measure of iniportiuice, the late declara-
tory act against monopolies. Bat tiioy had rescued from disuse their ancient right
of impeachment. (Idem., 373.)

Oar fathers, like their English ancestors, regarded impeachment as
a " safeguard of pabiic liberty," and therefore provided for it in the
Constitntion, and so general has been this opinion and so proper has
impeachment been considered for the repression of official corruption,
that nearly every State constitution ever framed in the United States
has also provided for it.

It follows from what I have said that in my opinion the articles of
impeachment are sufficient in law, and do not need any support from
the matters alleged in the subsequent pleadings of theHouse of Rep-
resentatives ; and that the plea to the jurisdiction of the defendant is
insufficient, and ought to be overruled, and an order of reapattdeat
ouster be entered.



OpiMi*M •f nir* Wallace,

Delivered May 15, 1876.

Mr. WALLACE. The first question presented by the order of the
Senate is : Is General Belknap amenable to trial by impeachment for
act« done as Secretary of War, notwithstanding his resignation of
said office f

The proper solution of this question depends upon what is the true
meaning of those provisions ox the Constitution of the United States
which vest the power of impeachment and regulate its exercise.

They are as follows :

First, the House of Representatives " shall have the sole power of
impeachment.'' The last clause of section 2, article 1.

The Senate shall haye the sole power to try all impeachments. When sitting for
that purpose they shall be on oath or affirmation. When the President of the United
States is tried the Chief Justice shall preside ; and no person shall be convicted
-without the concurrence of two-thirds of the members present

Judgment in cases of impeachment shall not extend further than to remoTal from
office, and disqualification to hold and eivJoy any office of honor, trust, or profit un-
der the Unitea States : but the party convicted shall nevertheless be liable and sub-
ject to indictment, trial,Jndgmentfuid punishment, according to law.

Last two clauses of section 3, article 1.

The President shall have power to grant reprieves and pardons for offenses
against the United States, except in cases of impeachment.

First clause of section 2, article 2.

The President Vice-President and all civil officers of ihQ United States, shall be
removed from office on impeachment for, and conviction of, treason, bribery, or other
high crimes and misdemeanors.

Section 4, article 2.

The trial of all crimes, except in oases of impeachment, shall bo by jury.

Last clause of section 2, article 3.

The Constitution is a frame of government, it is not a penal stat-
ute. It is not to be construed strictly, but it is to be so interpreted
that the great objects contemplated in the enumerated powers given
to the government it creates, may be attained. Each of the depart-
ments created, all of the powers specifically granted, are rounded,
complete, and authoritative. No halting opinions, no half-way grant
of power, no nerveless, weak, and impotent authority were vested by
it in any case in which it expressly granted control to any of its de-
partments. Whatever was necessary to the perfect use of the power
specifically given is necessarily implied therefrom. These results nat-
urally flow from the fact that the people created a government, inde-
pendent and self-existing, and enumerated its powers, and it just as
logically follows that in the vast field in which they gave it no power,
the States and the people are the depositaries thereof. When it de-
clares that ^Hhe executive power shall be vested in a President of the
United States," it is implied that all things necessary to the complete
exercise of that power was thereby granted to that office, subject only
to the limitations of the Constitution itself. When it declares that " the
judicial ^ower of the United States shall be vested in one Supreme Court,"
&c., it implied that all things necessary to the full exercise of that
power was thereby granted to that tribunal, qualified only by the lim-
itations of the instrument itself. As great powers of the Government
created, they were complete within the domain of authority granted.
So, too, when the Constitution declares that " the House of Represent-
atives shall have the sole power of impeachment^* and that "the Senate
shall have the power to try all impeachments," it implied all of the
powers essential to the complete exercise of the authority granted,
subject only to the limitations imposed upon that authority by the in-
strument itself. As the words " executive power" or " judicialpower "
have defined and distinct meaning under our system of laws and prec-
edents, so the power of impeachment thereby given had a defined and
distinct meaning.

Webster defines the word " to impeach " thus : " To cite before a
tribunal for judgment of official misconduct." This meaning is clearly
the proper one as applied to the proceeding either in Parliament or
here. For centuries in England it was used as a means of judging and
punishing official crime, and in very rare instances was it used upon
private persons. It has never been used in this country or understood
to apply to the trial or punishment of citizens for personal crime as
distinguished from official misconduct. It was the power of " citing



before a tribunal for judgment of official misconduct" which came
to us with our system of jurisprudence from England, and this is what
our Constitution plainly implies when it gave " the power of im-
peachment." If we trace this power through the early history of the
colonies, this becomes apparent. Penn's frame of government in 1682,
in the reign of Charles II, gave to us of Pennsylvania open courts,
presentment by a grand juiy, and a fair trial by a jury of twelve men,
as near as may be peers or equals, while at the same time it gave the
General Assembly power " to impeach criminals fit to be tnere im-
peached," and it vested the council with power to give "judgment
upon criminals impeached," and required a two-thirds vote for their
conviction. These are the very elements of the provisions of the
Federal Constitution in regard to impeachment. Its first use in
Pennsylvania was in 1706, when the house impeached James Logan,
secretary of the province, for his conduct inpubUo affairs and toward
the house and its members.

The characteristics and proper use of this power as it existed and
became a part of the Federal Constitution are plainly shown by the
language of the first constitution of the Commonwealth of Pennsyl-
vania. It was adopted by the convention that met in July, 1776, of
which Dr. Franklin was the president. The whole scope and purpose



Online LibraryUnited States. CongressCongressional record : proceedings and debates of the ... Congress → online text (page 38 of 172)