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those in office when impeached than by saying in effect, first, that it
should be restricted to the President, Vice-fiesident, and all civil
officers, (for that is what it does say, inasmuch as those words are
found in a constitution of delegated powers.) and by secondly saying
that the judgment in impeachment shall be removal from office or
removal from office amd disqualification.

Again, if impeachment is applicable to those not in office, it must
be so applicable as a means of imposing punishment for offenses com-
initte<l while in office.

But this cannot be so, because the exclusive province of impeachment,
as found in our Constitution , is the protection of civil office from vicious
men. The Judgment must be removal , and, as an incident thereto, may
be disqualification. The object of impeachment is in no legal sense
punishment. Removal from office and disqualification inflict mor-
tification and suffering ; but this is in no true sense punishment ; it is
rather an incident to than the object of the Judgment. The pains
thus inflicted are always less severe the more ahandoned and vicious
is the subject of it, and this is the reverse of the rule upon which
punishment is imposed.

The greatest abuse of this procedure in England arose from mak-
ing punishment the end of impeachment ; and hence it is that the
Constitution contains the prohibition against any further Judgment
than removal and disqualification, and, to show that punishment is
not the object of the Constitution in that connection, it immediately

But the party convicted shall nevertheless be liable and anl^ect to Indietaieiil
trial, judgment and punishment^ according to law.

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To claim that the object of impeaohment U pnnishmeijt is to claim
that the Constitntiou is incoDsistent with itself.

If disqualification is a puDishment, it is an infamous punishment ;
and, if so, the offense for which it is imposed is infamous; for the
character of the punishment is always held to classify the crime. But
the Constitution provides (article 5) that no person shall be held to
answer for an infamous crime unless on a presentation or indictment
of a grand jury. Here is no such indictment, and yet there is. in fact,
no inconsistency in the Constitution, because this procedure is not to
punish crime; it is to protect the civil offices of the nation. It makes
other provision for the punishment of crime, so as not to be misun-

Again, it is contrary to natural Justice and to the expressed spirit, if
not letter, of the Constitution, and contrary to the common law, that
one should be twice punished for the same offense, because the law in
each case demands full expiation ; but here it is claimed that one is
to he punished by the Senate, and then, bv the express provision of
the Constitution, is to be fully punished in the courts. We impose
no punishments ; we simply protect the offices of the Republic m>m
bad men.

Again, the Constitution proTides that in aU criminal prosecutions
the accused shall have a tnal by jury, and shall have such trial in
the district where the crime was committed. If the proceeding by
impeachment is for punishment, it' is for the punishment of a crime,
and hence comes within the provision of the Constitution which ex-
tends to ''all criminal prosecutions,'' and the accused would be en-
titled to a jury, which is denied him.

There are two criminals before us convicted on impeachments : one
is convicted of a treason that has shaken the pillars of the Republic
and decimated the land by death ; the other is a poor postmaster,
who under temptation has appropriated a few stamps ; and we are to
impose the punishment, and we sentence each to removal from office
and disqualification. The claim that our judgment is in any legal
sense punishment seems to me an absurdity.

But if the object of the procedure by impeachment is not punish-
ment, yrhat is it that gives us jurisdiction over one out of office f It
is not to remove from office, for that is an impossibility. It is not to
pronounce a judgment of disqualification, for that the Constitution
tells us only extends to one who is a civil officer, and also tells us that
the judgment of disqualification must be coupled with a judgment of
removal. We have no more authority to pronounce a separate judg-
ment of disqualification than would a judge have to impose a penalty
of only |50 for larceny when the statute said the penalty should be
twenty days' iraprisonmciit and |50 fine.

No express provision can be found in the Constitution extending
impeachment by the House to those who are 910^ but have been, civil offi-
i^TBy unless, as before stated, the provision that the House shall have the
8ole power of impeachment imports the whole English system with
aU its atrocities into our Government. Not only so, but the express
provisions of a Constitution conferring limited powers negative such
a claim.

If impeachment can be extended to those who have been in office
it must be by implication, by inference, and because incident to some
power that is conferred and because of its marked propriety.

Can any one believe that the framers of the Constitution, with
the history of impeachment and its associate legal instrumentalities
before their minds, while they were providing against its being used
as an instrument of tyranny bv carefully restricting the penalty,
when they knew it had oeeu used as a means of political oppression —
can any believe that it was their intention, or, more properly, that it
is the true intent of the Constitution, when it does not so declare,
that impeachments may be resorted to by the successful political party
to disable the partv defeated from rallying for another contest ; that
it was intended to place in the Constitution an instrumentality by means
of which a popular leader, who perhaps alone could rally the party out
of power, could be destroyed ; that it is the intent of the Constitution
that when the archives have passed into the custody of political oppo-
nents, papers misplaced, lost, or intentionally suppressed, that then one
who had been honored by the people, had laid down his office without
any charf^e against him, that thenne should be called upon, away from
his district, without jury, no matter what the lapse of time, to an-
swer a charge the penalty of wluch is perpetual infamy ? Mv regard
for the interests of this nation's future, as well as my sense of justice,
were I at liberty, in the absence of any such provision, to have any
judgment on the subject, would revolt at any such conclusion.

But it may be said that if an officer cannot be impeached after he
is out of office the guilty officer will defeat the provision of the Con-
stitution by resigning when he finds he is about to be impeached ;
that he may then be elected again ; and so a vicious officer hold place.

I answer that if he resigns, removal, the main object of impeach-
ment, is effected.

He is not likely to be elected again ; the interests of the nation are
safe with the people and with thatpublic sentiment which thoy create.
But, besides, a remedy for this objection can readily be provided by
statute by adding the penalty of disqualification to hold office on any
one who shall be convicted of crime while in or which relates to any
civil office. We have now such a penalty on our statutes as to some

The provisions of the Constitution on this subject are very few and
plain, and may be thus stated:

The Constitution provides —

First. Who may impeach, namely, the House only.

Second. Who may try, namely, the Senate only.

Third. For what impeachment may be presented, namely, for trea*
son, bribery, or other high crimes and misdemeanors.

Fourth. What shall be the judgment, namely, removal from office
or removal from office and disqualification.

Fifth. Who may be impeached, namely, the President, Vice-Presi-
dent, and all civil officers of the United States.

In the light of these express provisions it is strange that any one
should clnun that the provision that '^ the House of Kepresentatives
shall have the sole power of impeachment" has the effect of import-
ing the entire English system of impeachment, and that consequently
one need not be in office to be subject to the proceeding.
* We have been referred to a few authorities on this subiect. Rawle,
in his work on the Constitution, saiys, ^' It is obvious tnat impeach-
ment extends only to those in office or to those who have been ;" and
this is claimed to be an authority in favor of the right to impeach
one who has ceased to be an officer. I do not so understand it. Mr.
Rawle directly negatives the idea that the impeachment procedure of
Great Britain has any place in our Constitution, by saying it is restricted
to those who are or who have boon in office. Again, he is stating a
limitation, and says in the alternate that it is obvious that the power
of impeachment extends " only to those in office or to those who have
been." That few will question.

The Blount case has been referred to. It is this : It appears that
Blount was a Senator and had been expelled. His counsel pleaded :
1. That senatorship was not an office. 2. That he was no longer a
Senator. It was decided that the Senate had not jurisdiction. Will
any one claim that, if the common parliameatary law of England had
been introduced into our Constitution by its provision that 'Hhe
House of Representatives shall have the sole iM>wer of impeachment,"
the Senate would not have had jurisdiction over Mr. Blount's case f
It would unquestionably have had jurisdiction.

Barnard's case has been referred to. He was in a civil office when
impeached ; the judgment of removal was the very judgment that was
needed ; and the fact that his offense was committed during a prior
term separated from its then existing term only by an imaginary
point of time does not affect the question. There is no provision of
the Constitution that I know of that would prevent a civil officer
from being impeached while in office for a crime committed before
ho became such officer.

Kent, in his Commentaries, ( volume 1, pages 2S8 and !289,) treats im-

^achment simply as a procedure for the removal of civil officers who

lave been guilty of crime.

The convention that formed the present constitution of New Jer-
sey had submitted to it by its committee provisions relative to im-
peachment identical with those of the Constitution of the United
States. On motion of Chief Justice Homblower, that convention com-
posed of distinguished jurists extended the liability of civil officers
for two years after the expiration of their term, thereby showing that
in their opinion the liability to impeachment under the FederalCon-
stitution was only while in office.

Nearly ninety years have passed since the adoption of our Consti-
tution, and it does not appear that the procedure by impeachment
has in any State of the Union or under the Federal (Government been
invoked against any one who was not in office.

Proceedings in impeachment in the States and under the General
Government have been commenced and have uniformly been discon-
tinued on the resignation of the accused.

Justice Story, in his Commentaries on the Constitution, gives the
most thorough dissertation on the subject of impeachment that is
anywhere to be found. There is scarcely an autnority that he does
not refer to or a view that he does not consider. The question we
have before us not having been a4judicated, he expresses himself
with his usual deference : but no one can read the eight hundred and
first section of the secona volume of his Commentaries and doubt that
the great jurist was clearly of opinion that one could not be im-
peached except while in office. He says :

As it is declared in one clanae of the Constitntion that "Judgment in oases of im-
peachment shall not extend farther than to removal from office and disqoaUfloation
to bold and ei^qy any office of honor, tmst or profit nnderthe United States," and in
another clanse that '* the President. Vioe-Preaident and all dvil officers of the United
States, shall be removed from office on impeachment for, and oonvlotion of, treason,
bribery, or other high crimes and misdemouiors," it woiild seem to follow tfaat the
S^te were bound on the conviction in all oases to enter a Judgment of removal
from office, though it has a discretion as to inflicting the punishment of disqualifi-
cation. If, thai, there must be a Judpnont of removal from office, it would seem to
follow that the Constitution contemplated that the party was still in office at the
time of the impeachment If ho was nots his offense was still liable to be tried and
punished in the ordinary courts of Justice.

And it might be argued with some force that it would be a vain exercise of
^authority to try a delinquent for an impeachable offense when the roost important
object for whicn the remedy was given was no loneer necessary or attainable. And
aluiough a Judgment of disqualification might still be pronounced, the language of
the Constitution may create some doubt whether it can be pronounced without
being coupled with a removal from office. There is also much force in the remark
that an impeachment is a proceeding purely of a political nature. It is not so much
designed to punish an offender as to secure the state against gross official misdo^
meanors. It touches neither his person nor his property, but simply divests hlmr
of his political capacity.

My opinion is that the Senate has no jurisdiction to try William
W. Belknap.


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Opiai«a •f Mr. Sheraiaa,

Delivered May 15, 1876.

Mr. SHERMAN. The qnestion of jarisdiction presented in this
canse depends upon the following clauses of the Constitution :


The Honse of Rejireiicntatlvcs • ♦ ♦ shall have the sole power of impeach-
ment. (Article 1, section 3, paragraph 2.)

Second —

The Senate shall hare the solo power to try all impeachments. (Article 1, section
3, paragraph 0.)


The President./V'ice-President and all civil officers of the United States, shall be
removed from office on impeachment for, and conviction of, treason, bribery, or
other high crimes and misdemeanors. (Article 3, section 4.)

Other claufesof the Constitntion limit the degree of punishment to
removed ftx>m and disqualification to hold and enjoy office under the
United States, forbid pardons for impeachment, and reserve to the
courts the power to try the party convicted by indictment, according
to law.

The first two clauses confer, in as full and complete a manner as
human language provides, upon the House the power of impeach-
ment and upon the Senate the power to try impeachments.

These are the only clauses in the Constitution that confer jurisdic-
tion in cases of impeachment. They are in the ordinary form in
which powers are conferred upon the different departments of the
Government, whether Icffislative, executive, or judicial.

Thus the Constitution declares that " the Congress shall have power
to lay and collect taxes, duties, imposts, and excises." This is the
general grant of power upon which our whole system of taxation
rests. It is limited by other clauses of the Constitution as " that no
tax or dutv shall be laid on articles exported from any State," and
that ** all bills for raising revenue shall originate in the House of
Representatives ; " still we rest upon the general power already quoted
for the great system of taxation which supports our Grovemment and
the public credit.

In the ahsence of other clauses no one could question the power of
the House to impeach or the power of the Senate to try, and the only
limitation upon these powers would be drawn from the legal mean-
ing of the word " impeachment." The framers of the Constitntion
spoke in the legal language of the English law-books, well known to
tnem. The words used in the Constitution carry all the legal inci-
dents and meaning that these words convey according to the estab-
lished law of the colonies and the mother country, §om which we
derive our institutions ; and in construinc them we must give them
full foroe and effect, except so far as they are qualified by other

It is, therefore, necessary, before considering qualifying clauses, to
ascertain the precise meaning of the word *' impeachment," when
that mode of accusation and trial could be resorted to under the
English law, upon whom it could operate, and then limit or enlarge
the meaning of the word by other nrovisions of the Constitution.

Without entering into a detailea statement of the English law of
impeachment, I assume that the argument and cases cited clearly es-
tablish the following propositions :

First. That no one can ue impeached except for official misconduct
or misconduct of an officer. " The jurisdiction is to be exercised
over offenses which are committed by public men in violation of their
public trust and duties." (Story on the Constitution.)

The cases do not sustain the broad assertion by May in Parliament,
that " all persons may be impeached for any crimes whatever," for
the power was only exercised by Parliament to punish offenses by
persons in official trust. It is designed as a method of national in-
quest into the conduct of public men.

Second. That the king alone is excepted from impeachment. The
king cannot bo impeached, though others who advise or aid him can
be. Onl,y by revolution can the King be removed from office. It was
a revolution that deposed and executed Charles I and a revolution
drove James II from his kingdom.

Third. Persons not in office may bo impeached for official miscon-
duct while in office. The cases cited in the argument conclusively
show that such has been the unquestioned practice in Parliament.

The inquiry now is how far the Constitntion of the United States
(qualifies or limits these general propositions of the English law of

The fourth section of article 2, already quoted, changes the law of
impeachment in several particulars. By clear implication it limits
the power of impeachment to "the President, the Vice-Ptesident and
all civil officers of the United States," and thus excludes all officers
of the Army and Navy, who are to be tried by rules and articles
of war authorized by the Constitution. The designation of *♦ all dvil
officers of the United States" includes not only executive but judicial
officers, and would only except from the law of impeachment officers
of the Army and Navy.

As by the English law the king, the head of the executive author-
ity of the English government, could not be impeached, it might be
inferred that the President, the head of executive authority in this
Government, could not be impeached without some other provision
extending the limit of parliamentary impeachment. It is apparent
from the debates in the convention that this question was the chief

one in dispute, and that it was settled that the President ought to
be subject to impeachment. Therefore the fourth section of article
2 provides expressly that the President and Vice-President shall be
removed from office on impeachment, thus extending the power of
impeachment to the chief executive officer, not subject to impeachment
by the English law.

So far the meaning of this section is clear enough, as it expressly
includes the President and Vice President among those who may be
impeached, and by clear implication excludes officers of the Army
and Navy from trial by impeachment ; but it does not in express
terms limit the power of impeachment to civil officers while in office.
Is the general law of impeachment changed iu this respect by this
section f If it is, then the judgment of impeachment can be defeated
by resignation, and impeachment itself becomes a mere mode of re-
moving an obnoxious officer. Is the term "civil officer" descriptive
of the person at the time the offense was committed or must it apply
continuously to the time when he is impeached, tried, convicted, and
sentenced ? The defendant claims, in support of the latter proposi-
tion, that, as the judgment, in cases of conviction, must be " removal
from office," this necessarily implies that he must be in office at
the time of trial and judgment. To this it is replied that the juris-
diction of the Senate is amply conferred by previous clauses ; that
the fourth section does not limit impeachment to civil officers while
in office; that it does not confer jurisdiction, but only makes removal
mandatory when civil officers are convicted ; that this is not incon-
sistent with the full power of impeachment conferred by other
clauses, whether the "civil officer" was in or out of office when the
trial took place. We must construe these clauses together, giving to
each full effect as qualified by the others, remembering that no word
is used in the Constitution that has not its carefully chosen office
and meaning.

ThedesijE^nation " all civil officers" as the persons to be impeached
has full effect in excluding a large class of the officers subject to im-
peachment under the parliamentary law. The object of their exclu-
sion is obvious enough, as the power of Congress to make rules and
articles of war furnished the means of punishing such officers in a
much more summary and proper way than by impeachment. The
primary object of impeachment, which the framers or the Constitution
clearly intended to preserve, was to secure the punishment of great
offenders for official misconduct. They had extended this process of
trial and punishment to the President, the chief executive officer of
the United States. They had provided not only for his removal, but
for his perpetual exclusion from office. They were familiar with the
English precedents which extended this process to all official offenders
whether in office or out of office, but made no exception of civil officers
who had resigned. They knew the abuses of this great power of im-
peachment and carefully limited the extent of the punishment. They
knew the effect of party heat, and therefore required a vote of two-
thirds of the Senate to convict. They knew that persons had been
convicted upon insignificant charges, and therefore required the of-
fenses charged to be high crimes and misdemeanors. The debates in
the convention show that impeachment was regarded by the framers
of the Constitntion as a great safeguard to be maintained and pre-
served, and they conferred it in broad and general language and tnen
sought by qualificatious to prevent its abuses. It was not assertod,
either in the Convention or in Parliament, that the power to punish
by impeachment official misconduct by a person who bad resigned his
office was an abuse to be guarded against ; that a private person could
thus be wrongly oppressed or disfranchised. There is no appearance
of injustice in the English precedents of impeachment after resigna-
tion. The danger of such iujustice was not pointed out and no words
were either proposed or adopted to confine impeachment tooivil officers
while in office. All civil officers may be impeache<l. The time when
is not stated, whether before or after resignation, nor was it material
by the law of impeachment. The material thing was that the offense
must be by a civil officer j that it must be a high crime or misde-
meanor, and, upon conviction, that he shall be removed and may be
forever disabled from holding an office of honor, trust, or profit under
the United States. I therefore must hold that the term "civil offi-
cer" is used to designate the character of the office held by the ac-
cused when the offense was committed, and not to require that he bold
the office either at the time of his impeachment or at the time of the
trial. The use of this term was not to repeal the established parlia-
mentary law, that the offender should not escape impeachment by res-
ignation, but only to exclude from impeachment officers of the Army
and Navy, who could be tried by the Kules and Articles of War upon
principles of military honor more exacting than those of civil law.
iTpon the most careful examination I must conclude that the resigna-
tion of the defendant does not affect the jurisdiction of the Senato to
try this impeachment. We are neither to assert jurisdiction without
clear authority given by the Constitution nor to evade it or surrender
it when by our deliberate judgment it is conferred.

The construction 1 have given to the words "civil officers" in the
Constitution is supported by the plain and obvious intent of the word

Online LibraryUnited States. CongressCongressional record : proceedings and debates of the ... Congress → online text (page 41 of 172)