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upon it.

The other branch of jurisdiction is what is called jurisdiction of
the person. It always relates to the individual who is to be brought
under the judgment of the tribunal. No matter how many places of
trust he mav hold or by how manv titles he may be described, it is
the man in nis personal, and not his official, character who is to be
confronted with the accusation and with the accuser. Even when the
object of the prosecution is not punishment. but to compel the perform-
ance of an official act, the judgment of tne court alwavs is against
the person, commanding him to exercise the office and dutv the law
has imposed upon him. This beinff the complete nature oi jurisdic-
tion, (and it was never, so far as I know, questioned,) the jurisdic-
tion over the subject-matter of the offense described in the articles, if
it ever existed, cannot have been lost by the change of circumstances
of the respondent ; or, if by possibility it could he Tost by such change
of circumstances, it must equally be lost when the change occurs
after proceedings begun, as well as before. The proceedings them-
selves cannot create jurisdiction over the subject; they are only in ex-
ercise of the jurisdiction residing in the tribunaL But the jurisdiction
over the person is first obtained by such exercise in the process of
bringing him before the tribunal. And as the j urisdiction over the sub-
ject may be lost bv abolishing the law creating the offense or abol-
ishing the tribunal authorizea to try it, so the jurisdiction over the
person may be lost by his ceasins to exist, and in no other way. And
at whatever stage in the proceedings this last event happens, the re-
emlt is the same, subject in some oases, possibly, to the doctrine of re-

I am, then, clearly of opinion that, viewing the provisions of the
Constitution under the appropriate heads of the power of the House
of Representatives and the Senate in respect of impeachments, the
accused is subject to the jurisdiction'of this tribunal, notwithstand-
ing he may have been out office when the impeachment was begun.

Bnt it is suggested that the second article of the Constitution, which
relates to the executive power, contains in its fourth section a pro-
vision that raises the presumption that jurisdiction to prosecute and
try an offender by impeachment is to be confined to cases in which
the accused person persists, in spite of his detected crimes and in spite
of the danger to the public service, in remaining in office until he is
prosecuted, and (as I think it necessarily follows) until he is tried and
convicted ; for, as I have said, it seems impossible to hold that, if it
he the person in his character of an officer who is impeached and that
he is in his character of an officer only to be convicted and a^jndged,
the jurisdiction exists any longer than the official relation does. This
section is in the following words :

The Preoident, Vice-President and all civil officers of the United States, shall be
removed from ofBoe on impeachment for, and conviction of, treason, biibery, or
other high crimes and misdemeanors.

It will be seen that it does not profess to confer any power, but it
imposes a duty to be performed in a certain event. It is not placed
in that article of the Constitution which alone grants all the other
powers conferred either upon the Senate or House of Representatives,
but under the appropriate head of executive iM>wer8 and liabilities.
It provides for the immediate dismissal of offenders in that Depart-
ment when convicted on impeachment. Obviously that is all there is
of it upon its face. Everything else that is to be got out of it must
he through the medium of speculative dialectics. Had it been placed
in the firat article with the provisions upon the subject of impeach-
ment and in the same order in which it now stands, it seems perfectly
Shun to me that not a cavil even could have been raised upon it in
skvor of the claim of the respondent. The provisions then would
have stood :

First. The House of Hepresentatives <' shall have the sole power of

Second. " The Senate shall have the sole power to try all impeach-

Third. ''Judgment in closes of impeachment shall not extend further
than to removal from office, and disqualification to hold and enjoy any
office of honor, trust or profit under the United States : but the party
convicted shall neverthelees be liable and subject to indictment, trial,
judgment and punishment, according to law.'' And " the President.
Vice-President and all civil officers, snail be removed " on conviction.
&o. So brought toother, can the keenest criticism find any grouna
for claiming tnat this last clause was intended to impair any power
granted in the prior ones, or that the circumstance of holding office
at the moment of impeachment was to be made a test of the right to
impeach or try anybody T

The fourth section does not declare who may or who may not be
impeached, but that the President, Vice-Presiflent, and all civil officers
shall be removed on impeachment for and conviction of treason, &o.
It does not hint at jurisdiction, but, on the other hand, it in terms de-
clares what shall follow the exercise of a jurisdiction by conviction of a
person holding office. In every other instance in the Constitution where
power, authority, or iurisdiction is conferred^ totirely different lan-
guage is employed, clear and affirmative in its character : as in the
passages before referred to, and in all grants of power to Congress or
either of its Houses, in all grants of power to the Executive, and in
the grant of Judicial power ; and it is amazing that if the framers
of the Constitution had intended this section to be one of jurisdic-
tion, and determinable at the will of the offender at that, it should
have been left in its present form for policy and conjecture to dis-
cover it. It will be observed, too, that it makes no provision at all
for disqualification ; and if it be the jurisdictional provision, it com-
pletely measures the judgment as well as describes the offender and
the offense, and it would be difficult to disqualify at all, as removal
alone is mentioned : for, as the prior disqualifying clause is in the
negative^ that ooula not be resorted to to enlarge the jurisdiction
under this section.

Bnt it appears to me that, if this section could be treated as one of
descriptive jurisdiction and made like the other jurisdiction clauses
of the Constitution, to read affirmatively and specifically, that the
House of Representatives shall have power to impeach and the Sen-
ate to try the President, Vice-President, and all civil officers of the
United States, and on conviction to remove and disqualify, it would
still be clear that retirement from office would not affect the ques-
tion : for, as has already been shown, if the power granted be to im-
peacn and try the President, dsc, for misconduct in office, it is a power
to prosecute and try the person who while holding the office com-
mitted the offense, without regard to his character at the time the
hand of the law is laid upon him. There is no confiict between this
section and the provisions of article 1, nor is this a limitation upon
them. On the contrary, it is an addition that in respect to persons
holding office at the time of conviction, the judgment of removal,
that ouierwise would have been discretionary and might have been
suspension for a limited time or censure, shall be pronounced. And
in view of the negative form of the judgment clause in the first ar-
ticle, it might have been open to doubt in the convention whether
the President and Vice-President whose terms of office were fixed at
four years could be removed without an express provision.

From these considerations confined to the wordsof the Constitution,
I am of the opinion that in order to give effect to all its provisions on
the subject, and to carry out the intent of the instrument expressly
stated, to provide not only for removal , but (in many instances more
important still) for excluding from office citizens who should betray
their official trusts, it must be held our jurisdiction is not defeated bv
the retirement of the offender from office. If, as is claimed, (but which
I do not by any means admit,) the Constitution is to be construed in
respect of its jurisdictions like a penal statute, the jurisdiction is, I
think, still clear. The definition of the terms used was x>erfectly un-
derstood and the expressions employed must in every part be given
their fair effect.

I will now proceed to the considerations bearing upon the question,
^trinsic to the words of the Constitution, and in the light of which
they may, I think, be justly viewed. The state of a subject at the
time, the condition of the laws and practice, the mischief to bo pro-
vided against, and the ade<][uacy of the remedies to be applied, are all
just subjects of consideration in seeking for the true constjruction of
a constitution or a statute.
Under this head I refer-
First. To the state of the English law of Impeachment at the time
the Constitution was framed and adopted. By that law, from which
American impeachment was taken, it was settled and universally
known that an ex-official could be prosecuted by impeachment and
tried for crimes committed in the office he had vacated. An d this pro-
vision of the English law, instead of ever having been regarded or com-
plained of as an abuse, was considered an essential security of the peo-
ple, uncriticised by anybody. The case of Warren Hastings then pro-
ccedingj was an eminent instance of a prosecution of this character, no-
torious in every country where the English language was spoken or
where English history was known. The chief and n ecessary object in
such a prosecution was the security of the state against the possibility
of the return to office of one who had flagrantly betrayed his trust.
Bnt in England apardon granted after conviction and judgment on im-
peachment operated as any other case of pardon— to relieve the of-
fender from all the effects of the judgment, and to restore to him his
full political capacity. The case of Lord Chancellor Bacon was a
well-known instance of this character. To guard against the abuse
of this power of pardon, the framers of our Constitution carefully
provided that there should bono pardon in any case of impeachment.
The offender convicted and disqualified by the judgment of the ordi-
nary courts of law could escape the consequences of his crime through
the pardon of the executive, and by his favor be again put in charge
of the public trust he had abused; but if disqualified by impeach-
ment, tne possibility of executive sympathy and favor was put en-
tirely out of reach. It will be seen, too. on a careful consideration,
that this exclusion of the power of pardon really has effect only in
respect of disquxdification, if granteid after sentence, for I think it

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clear that without this exclusion a pardon after sentence of removal
actually executed could not restore the offender to his office. Such
an act would be nothing less than an executive appointment. But
if in a case like the present, the guilty person can avoid all jurisdic-
tion of impeachment by resignation, he is enabled to do for himself
the very thing that Constitution says the executive shall not do for
him. — that is, relieve himself from any possible disqualification again
at tne earliest moment, to lay hold of the administration of affairs
with a fresh appetite for corruption. Was it not, then, the object of
the framers of the Constitution to retain the remedy of impeachment
in its full vigor, and to prevent, in the cases supposed, its being frus-
trated by any action of the Executive and mucli more by any action
of the wicked official t

Second. The state of the law in the States at the time our Constitu-
tion was adopted.

Nine of the thirteen already had distinct provisions in their con-
stitutions upon the subject, regarded, evidently, not as instruments
of oppression or of danger to private rights, but as essential securities
of public liberty and purity of administration.

That of Delaware (September 20, 1776) provided that—

The president, when he Ia ont of office and within eighteen months after, and all
others offending against the State, either by maladministxation. cot niption, or other
means by which the safety of the Commonwealth may be endangered, witliin eight-
een months after the offense committed, shall be impeachable by the house of As-
sembly before the legislative connciL * * * If fonnd guilty, he or they shall be
either forever disabled to hold any office nnder the government, or removed from
office j>ro tempore, or subjected to such pains and penalties as the law shall direct.
And all officers shall be removed on conviction of misbehavior at common law, or
on impeachment, or upon the address of the General Assembly. (Article 83, page 813.)

That of Massachusetts (March 2, 1780) provided that —
The senate shall be a court, with full authority to hear and determine all im-
peachments made by the house of representatives against any officer or officers
of theCommonwealtnfor misconduct or maladministration in their offices.

• *****»
Their judgment however, shall not extend further than to removal from office,

and disqualification to hold or enjoy any place of honor, trust, or profit under this
Commonwealth ; but the party so convicted shall be, nevertheless, liable to indict-
ment, trial, judgment, ana punishment, according to the laws of the Umd. (Chap-
ter 1, section 3, artiole 8.)

That of New York (April 20, 1777) was as follows :

♦ ♦*■*♦•*
A court shall be instituted for the trial of impeachments. (Article 32.)

That the power of impeaching all officers of the State for mal and corrupt conduct
in their req>ective offices be vested in the representatives of the people in assembly.

* * * * * * *

No Judgment of the said court shall be valid unless it be assented to by two-
third iwru of the members then present: nor shall it extend further than to re-
moval from office, and disqualification to hold and enjoy any place of honor, trust.,
or profit under this State. But the party so convicted shall be, nevertheless, liable
anu subject to indictment, trial, Judgment, and punislmient, according to the laws
of the land. (Artiole 33.)

That of New Jersey ( Jul^ 2, 1776) had this provision :

* * • * » * *

Provided always, that the said officers severally shall be capable of being re-ap-
pointed at the end of the terms severally before limited ; and that any of the said
officers shall be liable to be dismissed, when ac^ndged euilty of misbehavior, by
the council on an impeachment of the assembly. (Article 18.)

It will be noticed that this is the only instance in which mere re-
moval from office was the object to bo attained.
That of Pennsylvania (July 15, 1776) declared : *

Every officer of State, whether Judicial or executive, shall be liable to be im-
peached by the (general Assembly, ei'Mier when in office or after his resignation, or
removal for maladministration. (Artiole 88.)

That of Virginia (July 5, 1776) provided that :

The governor when he is out of office, and others offending against the State,
either by maladministration, corruption, or other means by which the safety of tho
State may be endangered, shall be Impeachable by the house of delegates.

If found guilty, he or they shall be eitherforevcr disabled to hold any office under
government^ or oe removea from such office jpro tempore, or subtjected to such pains
or penalties as the law shall direct. (Pages 287, 288, American Constitutionsr)

That of North Carolina (December 18, 1776) declared that;

The governor and other officers offending against the State by violating any part
of this constitution, mabkiministration or corruption, nwy be prosecuted on im-
peachment of the General Assembly or presentment of the grana Jury of any court
of supreme Jurisdiction in this State. (Article 23.)

Governor and other officials offending. (Article 33.)

In this it will be observed that if the ex-official on the grounds in-
sisted upon in this case could not be impeached, he could not be pros-
ecuted in court ; for the powers to impeach and to prosecute criminally
were stated in exactly the same terms.

That of South Carolina (March 19, 1778) provided :

That the power of impeaching all officers of the State for mal and corrupt con-
duct in their respective offices, not amenable to any other JurisdicUon, be vested
in the house of representatives. (Article 23.)

It will be seen that these constitutions, which must have been fa-
miliar to the members of the Federal convention, and which certain
literal coincidences in respect of some of them show were actually in
their hands, covered every aspect of the question, some, as Dela-
ware and Virginia, withholding the power to impeach the chief mag-
istrate until he should be out of office, and conferring it without dis-
tinction as to all others. One— New Jersey — providing this remedy
only as a means of removal from office. Some, as Massachusetts and

South Carolina, were formed in substance and almost literally like
penal statutes, such as I have referred to, against official misconduct,
and providing for disqualification as well ns removal. Others, as
New York, providing a tribunal with general power to try impeach-
ments, and describing affirmatively the power of impeachment as
against officers. One — Pennsylvania— providing for the impeachment
of an officer ** cither when in office or after his resignation," using, as
it will be seen, the same words of description for tne person in office
and out of it. Another, as North Carolina, describing the offender as
an officer, and providing for his prosecution like the ordinary descrip-
tion of a penal statute.

With all these constitutions before them, and with the knowledge
of the settled import and scope of the proceeding, and under the
English law, it seems impossible to believe that the members of the
Federal convention should not have in affirmative terms declared
that no one should be impeached or convicted unless in office at the
tjie time, if they had so intended, when at the same time they studi-
ously set a boundary to the judgment, and put away the possibility of
executive interference ; and in a case, too, in which, if the claim of
the respondent be correct, neither the boundary to the judgment nor
the exclusion of a pardon would be of the least consequeuce without
the practical assent of the accused. To reach such a result by force
of a supposed implication arising out of the fourth section of the ex-
ecutive article of the Constitution would be most extraordinary. If,
as I do not perceive, ingenuity can raise such an implication, the
principle of law declared by the Supreme Court in tho case Faw t?».
Marsteller, 2 Cranch, pa^e 10, would prevent its having the effect
claimed. It is there said by Chief Justice Marshall, stating the opin-
ion of the court :

In searching for the literal constmction of an act it wonld seem to be generally
tme that i>oeitivo and explicit provisions, comprehending in terms a whole class of
cases, are not to be restrained by applying to those cases an implication drawn
from subsequent ones, unless that implication be very clear, nocebsary, and irre«

A cardinal rule in construing all laws, penal as well as others, is
that of common sense, and to make an implication extracted from
one part of a statute or constitution absolutely nullify an expi*es8
and wholesome grant of power in another would not, as it seems to
me, comport witn this rule. I can find nothing either in the words
of the Constitution, English law, history. State constitutions, (except-
ing New Jersey,) existing at the time, the debates in the Federal or
State conventions, or in tne cases that have arisen, that raises the in-
ference that liability of officers of the United States to impeachment
was int-ended or understood to be affected by their retirement from
office after committing a crime. But each and all these sources of
information lead me to the opposite conclusion. Some passa^ in
debates and arguments have been referred to, but an examination' of
them all witti tho context convinces me that in these passages the
idea expressed was that only the misconduct of tho person in a na-
tional as distini^uished from a State office was the subject of impeach-
ment, and that if one holding an office should be convicted he must
be ]g3moved. Instances in these debates, particularly in State con-
ventions, are too numerous to be cited at large. The following are a
few of them that speak in unmistakable language :

In the Pennsylvania convention Mr. Wilson, himself a member of
the Federal convontion, speaking of the impeachment of Senators
(which it then seemed to be understood could be done) and of the sup-
posed improbability of their convicting themselves, said :

But this will not be always the case. When a member of the Senate shall behave
criminally, the criminality will not expire with his office. The Senators may be
called to account after they shall be changed and the body to which they belonged
shall have been altered. (3 Elliot's Debates, page 477.)

Mr. Madison, in the Virginia convention, and also a chief member of
the Federal convention, and primus inter pares in both, speaking of
the impeachment of the President, said :

He is responsible in person. If he shall sednoe a part of the Senate to a partioi*
nation in his crimes, those who are not seduced would proiloanoe sentence against
nim : and there is this supplemental^ security, that he may be convicted and pun-
ished afterward, when other memoers come into the Senate, one-third being ex-
cluded every two years. <3 Elliot's Debates, page 516.)

In the South Carolina convention General Pinckney, also a member
of the Federal convention, speaking of the impeachment of Senators,

Though the Senate are to be Judges on impeachments, and the members of it
would not probably condemn a measure they had agreed to confirm, yet as they
were not a permanent body, they might be tried hereafter by tho Senators and con-
demned, if they deserved it. (4 Elliot's Debates, page 265.;

In another place, referring to tlie argument that the power of great
men might overthrow the Government, he said :

An appropriate body, immediately taken from the people and returnable to the
)le every second year, are to impeach those whp behave amisa or betray their

Sublio trusts ; another body, taken from tho State Legislatures, are to try them.
To roan, however great, is exempt from impeachment and trial (4 Elliot's De-
bates, page 281.)

In Blount's case the respondent was expelled after impeachment,
and the plea alleged that he was not ever a civil oiBoer and that he
was not a Senator at the time he pleaded. The action of the Senate
was first to negative by 14 to 11 a resolutiou declaring that he " was
a civil officer of the United States within the meaning of the Consti-
tution and therefore liable to be impeached;" second, to adopt, by
the same vote of the same Senators, a resolution that his plea was

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I think the inference is fair, taking the two votes together, that
the point made in the plea that he was then ont of office was not re-
garded as having any valne. The negative of the first resolution, de-
claring in the past tense that he was a civil officer, was equivalent to
declaring that he was not snch at the time of his offense, and so the
same fourteen Senators declared as a consequence that the plea was
good. A careful examination of the whole conrse of the argument in
that case on hoth sides clearly convinces me that neither the man-
agers nor the counsel supposed that a x>er8on holding a civil office and
committing a high crime in the conrse of its administration could es-
cape impeachment by laying down his commission.

It is indeed evident that in the case of offending officials the remedy
io courts of law by punishment may often entirely fail ; first, when
the criminal has the honest sympathy of the executive, whose unlaw-
f q] orders he may have been executing in committing the offense. In
such a case he would receive pardon ; second, when, from a belief in
bis innocence or out of pity for his supposed misfortunes, the prosecdt-
ing officers themselves, under the orders of the executive, would be

Online LibraryUnited States. CongressCongressional record : proceedings and debates of the ... Congress → online text (page 43 of 172)