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of the " power of impeachment" were crystallized in that instrument
when it gave to the house the power " to impeach State criminals "
only, and to the president and his council the right to " sit as Judges
to hear and determine on impeachments," while it denied them the
power of pardon in such cases. These, coupled with the distinct dec-
laration that *' every officer of StatCy whether judicial or executive, shall he
liable to he impeached hy the General Assembly either when in offi4» or after
his resignation or remjoval for maladministration,** clearly define what the
freemen of at least one State thought this power was when the Fed-
eral convention met. Under the constitutions of the States as they
stood when the Federal convention met in 1787, the process had a de-
fined and distinct meaning. In all of them in which the subject was
named, nine in number, the house was made a grand inquest to im-
peach, and the senate or council or the senate and the judges made a
tribunal to try. The offenses over which this jurisdiction was vested
were official misconduct, maladministration, corruption in office, or
offenses against the constitution, or some or all of them, and the power
of pardon after conviction was denied to the executive. All of them
were plainly embodied in the Federal Constitution. The provision
limiting the judgment was copied from the words of the constitutions
of New York, New Hampshire, and Massachusetts, and that of New
York provided for the removal of the official when impeached and for
filling the vacancy until he was acquitted or his successor was elected.
In Virginia and Delaware the punishment was disability, removal, or
other penalty, while in Pennsylvania and South Carolina no punish-
ment was named, thus demonstrating that there were then other pun-
ishments contemplated than mere removal.

Assuming, then, that the " power of impeachment " as it then ex-
isted was the power *• to cite before a tribunal for judgment of official
misconduct," or, as we of Pennsylvania wrote it, " to cite State <arim-
inals while in office or after before a tribunal for maladministration,"
it now becomes necessary to inquire whether this authority, full, com-
plete, and rounded as it then existed, given by the Federal Constitu-
tion to the House to cite and to the Senate to judge, has been limited,
restricted^ or shorn of any of its proportions by the words of the Con-
stitution itself.

It is manifest that the last clause of section 3 of article 1 limited
the power to punish and placed a barrier in the way of the infliction
of any other punishment by the Senate than one purely political :
*' Judgment shall not extend further than to removal from office and
disqualification" to hold office. It is equally manifest that these
wonls, even in their most technical sense, do not limit or restrict either
the power to impeach or to try. As well might it be said that the
ordinary limitation of the extent of punishment prescribed by a penal
statute limited the power of a grand jury to present or of the proper
court to try an offense over which at common law it had jurisdiction.
But it is argued that because this limitation as to the extent of the
judgment contains both removal and disqualification, that as the Sen-
ate cannot impose both penalties upon one who is not in office, the
necessary inference is that we can only try officials during their term.
If it had been intended to limit the power to impeach to so narrow a
field or if the exercise of the then existing view of this subject was
to be restricted in the Federal Constitution, it is strange that such a
limitation should be left to inference from language u^ in defining
the power of punishment and should not be expressly declared or
plainly implied from the terms used in vesting the power to impeach
or to try. If the judgment of the Senate must be both and cannot be
one or the other, and if these clauses of the Constitution are to be
strictly construed, we are placed in the dilemma of finding no one
upon whom this judgment of disqualification can operate ; for " the
President, Vice-President and all civil officers, shall he removed from
office" are the words of section 4 of article 2, and this is the only pen-
alty named therein.

By this latter section a specific punishment is imposed. There surely
cannot be two punishments for the same ofibnse m the same instru-
ment ; and hence it logically follows that disqualification cannot l>e
imposed upon any of the officials named. It would be just as reason-
able to argue that, because section 4, article 2, declares that the Pres-
ident shall be removed and omits to say that he shall be disqualified,

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therefore he caonot be disqualified, as it is to argne that because sec-
tion 3, article 1, names two punishments, we must impose both or
neither. These provisions of the Constitution need no such absurd
construction. Tne latter clause was a limitation of the extent of
ponishment ; the former applied the principle that no man shall be
punished until he is proved to be guilty, and was inserted to preserve
in his hands the power there vested by the people until a competent
tribunal had passed upon his guilt or innocence, as well as to declare
liis unfitness and compel his removal when convicted. These clauses
are descriptive when applied to anything else than their plain pur-
pose, and Doth of them leave the ** power of impeachment " precisely
as it stood when ingrafted on the Constitution.

The fourth section of article 2 is a limitation upon the power of im-
pMdachment so far as to prohibit the removal from office before convic-
tion, but it does not pretend to restrict the authority given to the
House and Senate in any other manner. It describes those who shall
be punished when convicted, in general terms. " The President. Vice-
President and all civil officers, shall be removed,^' are its words, but
the command to remove the President when convicted does not, and
even by a forced construction cannot, prohibit the impeachment, and,
upon conviction, the diaqualifloationf of one who had bem President, for
official crime, if the power to do so be given in other words of the in-
strument. The words here used are not apt, no necessary implication
arises from the whole sentence, nor does a general view of all these
]Mt>visions require or permit us to limit the express grant of the power
of impeachment by tnis section.

We thus i-each the conclusion that thet(H>rd9of the Constitution
taken in their plain and ordinary meaning contain no restriction of
or limitation upon the ''power of impeachment'' as it existed at the
formation of the Constitution and entered into the government
thereby created as a positive and valuable authority.

We now proceed to consider the eifect that the construction con-
tended for by the defendant would have upon the power granted and
the i^ovemment created.

It IB apparent from what has been already said, as well as fh>m the
description of the leading crimes^ ** treason and bribery,'' and of the
officials to be punished as the highest in the state, ** the President
and Vice-President," that the objects to be attained by the use of the
power granted were the preservation of the integrity and puiity of
the Government from the temptations that surround those in prower
and the perpetual banishment from power of those who had betrayed
or dishonored it. Official fidelity and official honesty were the ends
■ought. Forfeiture of official power and denial of the right to enjoy
the marks of confidence of their fellows were the penalties which
were meted to those crimes that in former times or m despotic gov-
ernments were avenged by the knout, the bowstring, or the dripping
ax of the headsman. But the defendant argues that if the corrupt
official or the traitorous embassador do but resign his place before ne
is impeached, these penalties are useless and the power of disqualifi-
cation is gone. Such an argument absolutely destroys the power of
punishment with disqualification, for the guilty official will always
resign to escax>e the consequences of his crime, and when he has re-
signed he is neyond the arm of the law. So absurd and fatuitous a
result demonstrates the fallacy of the argument.

It is ur^ed that unless this construction be placed upon the Con-
stitution, impeachments may follow during his whole life anyone
who has nela office and that the passions of political factions will
use this weapon to avenge themselves upon their adversaries. It is
always safe to trust the people. They will not approve or authorize
an unjust or improper use of this power, and the keen sense of par-
ties as to their approval or disapproval will be a sufficient restraint
upon those who have power in their attempt to punish for venial
offenses those who have lost it. If an officer haa been corrupt his
crime should follow him. If he has prostituted his high place for
gain or betrayed his coun^, no statute of limitations can be or
ought to be interposed for his protection. A ricid rule of official ac-
countability is imperatively demanded in the public service. Proofs of
this fact are now abundant, and our highest duty to the state de-
mands the enforcement of every mode of compelling official fidelity.
He who owes the Government a debt has no presumption of payment
in his favor. The statuteof limitations does not run against the state.
So he who owes the Government and the people faithful and honest
performance of the duties his trust clothes him with, should have no
Bt4itute or construction for hisprotec tion. He takes the office with its
grave responsibilities, and only with his life can those responsibili-
ties be snaken off. The close of his official term does not, and it
oug^ht not to shield the political criminal. The Constitution has no
limitations for the immunity of any such offenders, but it demands
of all its officials purity, honesty, and fidelity, and it is plain enough
and strong enough to enforce its demands at all times and upon every
class of those who emoy its high places.

The construction claimed by the defendant's counsel, if tested by
the action of those who made the Constitution and administered the
Government up to 1867, would also have the effect of utterly ignor-
ing the denial to the Piesident of the power of pardon in cases of im-
peachment. The first clause of section 2, article 2, expressly denies
to the President this right, and yet for nearly eighty years the exer-
cise of the power of removal was the exercise of the pardoning pow-
er, and that, too, the most odious and dangerous form of that power—
• previous pardon. Until the passage of the tenure-of-office act, the


construction contended for permitted the President, without the con-
sent of the Senate, to remove his traitorous or corrupt officials, and
thus to put them beyond the Jurisdiction of the Senate, condone their
offenses, and negative one of the plainest provisions of the Constitu-
tion. It would necessarily follow such a construction that the power
of impeachment would be subject to the whim or caprice of both
the President and the accused. The former could remove, and thus
pardon ; the latter could resign, and escape disqualification. Surely
such was not the belief of such men as Jared Ingersoll, James
Wilson^ or Dr. Franklin, who came to the Federal convention with
the full knowledge that the constitution of their own State expressly
negatived any such construction, and distinctly declared that an offi-
cial could be impeached after the expiration of his term, and that one
impeached could not be pardoned by the Executive.

From the precedents and history of the power itself, from the nec-
essary implication that follows the words which vest the power, from
the absence of any limitation in the words of the Constitution upon
the power to cite and to judge, and from the absurd and dangerous
results that flow from any other construction, I reach the conclusion
that General Belknap is amenable to trial b^ impeachment for acts
done as Secretary of War, notwithstanding his resignation of said
office, and therefore vote to require him to answer over.

The view which I take of the question considered leaves the re-
maining ones immaterial.

Optat«a •f Mr* ]n[«rt«a,

Delivered May 15, 1876.

Mr. MORTON. The constitutional provisions in regard to impeach-
ment can be better understood by grouping them in their natural
order. They are now separated into different articles and sections;
but that does not affect the sense.


The President, Yioe-Preaident and all civil officers of the TTnited States, shall be
removed from office on impeachment for, and conviction of, treason, bribery, or other
high crimes and misdemeanors.

Second —

The House of Bepresentattves shall have the sole power of impeachment.


The Senate shall have the sole i>ower to try all impeachments. When sitting for
that purpose, they shall be on oath or affirmation When tho Presi^lcnt of tha
United States is tried, the Chief Justice shall preside : and no person shall be con-
Ticted without the concurrence of two-thirds of the members present

Judgment in cases of impeachment shall not extend further than to removal
from officeuand disoualiflcaUon to hold and ei\Joy any office of honor, tmst^ or profit
under the tlnited States : but the party convicted shall nevertheless be liable and
subject to indictment, trial, Judgment and punishment, according to law.

The first provision declares that the President, Vice-President, and
all civil officers of the United States shall be removed *rom office on
impeachment for and conviction of treason, &c. This provision car-
ries with it the power of impeachment for the purpose of removal
from office.

The declaration that the President and other civil officers of the
United States shall be removed from office upon impeachment and
conviction for treason, &c., by necessary implication carries with it
the power of impeachment for that purpose. In itself it gives to
Congress the power to initiate, try, and execute an impeachment to
remove the officers named. The sole purpose for which impeach-
ment is authorized by this provision is to remove persons from office,
and it cannot be extended by inference to persons not in office. It
does not say that persons may be impeached and removed from office,
but that certain officers shall be removed by impeachment and con-
viction for treason, &c. It mentions impeachment only as the means
for removal from office. It does not speak of impeachment with re-
moval from office as an incident, but only as the means by which
removal is to be accomplished. It will not be contended that this
provision gives the power for impeachment for any purpose but to
remove from office, and, if there be any power to impeach a person
not in office, it must be sought elsewhere.

The next provision declares —

The House of Representatives shall have the sole power of impeachment.

This provides simply that the House shall inaugurate and prosecute
impeachments. It defines the office of the House in connection with
an impeachment as distinguished from the Senate, but does not as-
sume to determine the causes for which, or the persons against whom,
an impeachment may be prosecuted.

Impeachment is a proceeding in which both Houses participate, and
this uesignates the part to be performed by the House.

To the argument that this clause not onl^ designates the part which
the House is to take in the proceeding by impeachment, but gives to
the House general jurisdiction over persons and the subject-matter,
it may be answered that the Senate determined just the other way in '
the Blount case. In that case it was held that the jurisdiction of the
House and Senate in impeachment was absolutely limited by the
fourth section of the third article to the President, Vice-President, and

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civil officers of the United States, so that patting the two claases to-
gether they would read thud:

The House of Representatives sball have the sole power of impeachment of the
President, Vice-President, and civil officers of the United States, who, upon con-
viction, shall be removed from office.

Thisfonrth section of the second article, which hashecn recognized
as a limitation of the officers who may be impeached, speaks of them
only as existing officers, and refers to impeachments simply as the
method by which they may be removed.

The third provision, which I have quoted, declares that the Senate
shall have the sole power to try all impeachments. When sitting for
that purpose they shall be on oath or affirmation. When the Presi-
dent of the United States is tried the Chief Justice of the United
States shall pi'eside, and no person shall be convicted without the
concurrence of two-thirds of the members present.

This dclines the powers and the duties of the Senate in connection
with impeachments. As the House has the sole power to prosecute im-
peachments, this declares the Senate shall have the sole power to try.
The use of the word "sole" in each provision shows that the powers
and duties of each House are exclusive of the other, and that this
provision simply desi^ates the i)art which the Senate shall perform
in the proceedings of impeachments and regulates its action in such

The Senate has the power to try all impeachments which the House
has the power to present.

Neither the provision in regard to the House or the Senate assumes
to define the persons or the purpose for which the one may present
and the other may try. The provisions that the Chief Justice shall
preside and that the concurrence of two-thirds is necessary to con-
vict simply reg[ulate the procedure, and have nothing to do with the
question of jurisdiction.

Against what persons and for what causes may the House present
articles of impeachment? I answer against officers of the United
States to remove them from office as specified in the first section
quoted. If the jurisdiction of the House extends beyond the persons
and the purpose specified in the preceding section, it must be derived
from a source outside of the Constitution, which would be the com-
mon law of England, and this would give to the House all the juris-
diction possessed by the House of Commons. If this view be adopted,
the preceding section g^ives to the House of Representatives but a
small part of the jurisdiction it possesses, and renders that section
wholly unnecessary, for the House would have, anyhow, like the
House of Commons, power to remove from office by impeachment ;
and in this connection it may be observed that the House of Com-
mons has in all cases of conviction on impeachment of persons in office
made removal a part of its judgment.

The express authority given to Congress to prosecute and try im-
peachmeutB in certain cases is in efi'ect the denial of power in all
other cases. This seems to be the universal rule applied in the con-
struction of the Constitution. Congress only has those powers which
are expressly conferred or which are necessary to carry out those ex-
pressly conferred, and does not upon t4iis subject or upon any other
inherit powers not granted which belong to tlie Parliament of En-
gland. The common law of England has been adopted to a certain
extent by statutes both in the nation and in all the States but one or
two. The jurisdiction of all the courts, whether of the nation or of
the States, is determined altogether by constitutions and statutes.
It is well established both in the nation and the States that the courts
have no common-law criminal jurisdiction, and that there are no
common-law crimes. Crimes are created alone by special enactment
of national and State legislatures. In the use of terms and the con-
struction of statutes, common -law definitions and rules are resorted
to as guides only. The rules of evidence and methods of proceeding
are "borrowed in large part from the common law ; but it may be
stated as a principle to which there is no exception, in both 1 he nation
and the States, that crimes are created and exist only by statute, and
that the jurisdiction of courts is established and defined only by con-
stitutions or stAtut«s. The idea that the Congress of the United
States has jurisdiction in cases of impeaohment which is not specially
conferred by the Constitution, or that it is not necessary to the ex-
ecution of some power or duty enjoined upon Congress by the Con-
stitution, is at variance with every principle of construction that has
been applied to it.

The fourth provision says "judgment in cases of impeachment
shall not extend further than to removal from office and disqualifica-
tion to hold and enjoy any office of honor, trust, or profit under the
United States; but the party convicted shall nevertheless be liable
and subject to indictment, trial, judgment, and punishment accord-
ing to law."

This defines and limits the judgment that may be rendered. It
declares that —

Judgment shall not extend further than to removal from office, and disanaUflca-
tlon to hold and civJoy any office of honor, trusty or profit under the United States.

Taken in connection with the first provision I have quoted, it
makes removal from office an indispensable part of the judgment in
all cases of conviction, while disqualification to hold and eigoy any
office of honor, trust, or profit is an incident which may or may not
be added by the Senate in it« discretion. If a jwrson not in office
were impeached md convicted and the Senate should be of the opin-

ion that the offenses were not such as to make disqualification apart
of the judgment, then there could bene jndgmentat all, for the judg-
ment of removal when the person was out of the office when the pro-
ceeding was commenced would be an absurdity too glaring to be con-
sidered. The argument made by the managers that the Senate may
have jurisdiction to try and convict in a case where no judgment can
be rendered may be considered a reduciio ad ctbsurdum iu constitu-
tional law.

The last clause of the provision I have just quoted is conclusive
upon this question. It declares :

The party convicted shall nevertheless be liable and suliject to indictment, trial,
judgment and punishment, according to law.

If there had been room to doubt before, there is none after thif
provision. It strips the proceeding by impeachment of all purpose
for punishment and leaves it simply as the means of removal from
office. It provides that in all oases of impeachment the party con*
victed shall be liable and subject to indictment, trial, judgment, and
punishment according to law. Though the Senate may remove from
office and disqualify the party convicted from holding any office under
the United States during the term of his natural life, yet such cmi-
viction and judgment cannot be pleaded iu bar of ponishment in the
courts. The right of the courts to punish in all cases is reserved, and
we cannot conceive that any power of punishment is left iu Congress
unless it was the intention of the Constitution that a man might be
puuished twice for the same offense. Such a supposition is not to be
entertained for a moment.

The principle that a man cannot be punished twice for the same
offense runs through our Constitution and through the constitutions
and laws of all the States. It was a right secured to the English peo-
ple in their early history, and has not for hundreds of years been vio-
lated by the parliaments or the courts. Under the English constitu-
sion the Parliament is omnipotent and may absorb the whole crimi-
nal jurisdiction of the kingdom. It may assume to punish any man
for any offense, whether committed in or out of office. Parliament
assumes not only the power to remove from office, but to punish for
the crime committed. This punishment was often by death, by for-
feitures of goods, by attainting the blood, and by banishment from
the realm. It extended to persons out of office as well as to those in
office. It became a source of the greatest crimes in English history,
and it was wisely determined by our fathers in the establishment of
Government to dig it up by the ix>ots as an instrument of revenge or
punieimient. But while impeaohment under the English constitu-
tion was a prolific source of the greatest crimes, be it said to the
honor of the English nation that it was never made to violate the
principle '^ tJiat a man shall not be punished twice for the same of-

Online LibraryUnited States. CongressCongressional record : proceedings and debates of the ... Congress → online text (page 39 of 172)