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section which assumes but does not grant it.

But it is argued that as removal must be and is declared by the
Constitution a part of the penalty following the trial and conviction
in all cases — ^that as this is logically as well as practically impossible
of enforcement in one out of office, therefore only those who continue
in office to the time of their presentment, if not of sentence, are liable
to this proceeding. In my opinion the proposition as thus broadly
stated, or indeed however stated, assumes too much, and loses sight
of other and most material parts of the Constitution.

I do not believe that removal from office is necessarily a part of the
punishment in all cases. It is in cases where it can be applied, and
not otherwise. I grant, too, that if removal was the only penalty, or
if the Constitution contemplated that in all cases it should be a part
of the penalty, I should esteem there was but little room for argu-
ment in favor of the jurisdiction when the officer had resigned ; for I
do not agree with the proposition that inability to enforce the order
of a court, as applied to such a question, is not to be accepted as a
fair and proper test of Jarisdiction. The Constitution no more than
the law requires or exacts vain or foolish things, and to say that the
Constitution expected or ordained that we should go through the
farce of inquiring whether we ought to visit a punishment upon an
offender which for any cause we no longer have the power to inflict
would be illogical in the extreme, and, as I think, in the face of f^
rules of any value or weight in Judicial proceedings.

But, as already stated, I do not believe that removal is necessarily



a part of the punishment in all cases. In the first place, I think the
connection in which this last provision in relation to removal is found
is of no little significance as bearing upon this question. I find the
grant of. power to impeach in that portion of the Constitution which
defines and limits legislative powers and duties. I find in the same
place the power given and the tribunal named to try the impeachment.
I find there, too, at least some rules of practice and a limitation of
the punishment or of the consequences to follow conviction in such
cases. Now, if having said this much it had stopped, it would scarcely
be claimed that removal from office was in all oases to be necessarily a
part of the penalty. Neither do I think would it have been insisted
thus far that only those in office at the time of conviction were amena-
ble to impeachment. For if I had found these or like provisions in
a statute, I should never have thought, I confess, for a moment that
liability depended upon the official status of the person at the time of
the trial, but rather at the time of the commission of the act with which
he was charged.

But it is said (and I may notice this point here as well as elsewhere)
that if those out of office were liable to impeachment, why did not
the Constitution say so ? Ah, Mr. Pi'esident, I think this may well bo
answered in two ways: First, those who had gone out of office, all will
admit, were liable to impeachment for acts while in office hy the parlia-
mentary law of England, It was never held there that impeachment
was confined to those in office at the time of their presentment. Now,
is it not fair and legitimate to assume that the framers of the Consti-
tution knew this, acted upon this assumption, and therefore intended
that those who had gone out, as well as those in, were amenable to
such prosecution? And if so, may I not, in the seoond place, inquire
with the utmost consistency and with next to unanswerable force, that
if the authors of the Constitution, with this knowledge before them, in-
tended to include only those in office, why did they not say so f It was
very easy if they intended it to say " while in office," or use some like
apt words to express their meaning, and thereby change the rule as it
then obtained, as aH admit, in England and elsewhere.

But to return. The Constitution, in that part setting up the legis-
lative or law-makins branch of the Government, finished or concluded,
as I have said, all that seemed to be necessary on the subject of pros-
ecutions and trials of impeachment. Then it turned to the work of
setting up the executive machinery, and said that he, the Executive,
shall have certain powers, and, among others, to be '^ Commander-in-
Chief * * • ofthemilitiaoftheseveralStates,"bntnotuntil''called
into the actual service of the United States ;" to " require the opinion
• * ** of the principal officer in each of the Executive Departments,"
but not unless the subject thereof related '^ to the duties of their re-
spective offices ; " to " grant reprieves and pardons for offenses," * • »
but not *^ in cases of impeachment ;" and so as to other powers and
their exceptions. But for the last exception, specially named, he
could have pardoned or reprieved in impeachment cases as in the case
of all other offenses against the United States. But that is in no sense
a limitation or the semblance of a limitation, nor does it seem to indi-
cate the least intention to limit or restrict the grant of power already
given, in its appropriate place, over the matter of impeachment.

And the same reasoning applies to the main section relied upon in
this connection. The second article, after prescribing the manner of
electing the President and Vice-President, their tenure of office, what
Congress might do by law in providing for cases of removal, disa-
bility, &o,, of both, and that the person succeeding to the office of
President under such law should hold until the disability should be
removed or a President elected, and giving to the Executive the
power to appoint judges, embassadors, &o., then, in its last section,
(4, the one quoted,) apparently out of abundant caution, and to avoid
the possible construction that these officers must, in virtue of what
it had before declared, at all events and in any contingency hold for
the terms named, it was declared that they and all civil officers should
be removed from office on impeachment and conviction of the offenses
named. But how does that limit the power to present and try im-
pNeaohments before given or the persons to be impeached f This sec-
tion, as before shown, contains no grant of power on this subject. It
is as if all the other sections on the subject of impeachment and those
govemiuff the tenure of office of civil officers had been collated, and
then at the close it had been said : " But all civil officers shall be re-
moved from office when impeached and tried for treason," &g.

And it is not permitted to limit a grant clearly and expressly given
over a general subject by a supposed limitation ingrafted, and only
to be supported by the most bund and indefinite implication. There
is a state of case, it will be seen at once, to>which this section can
apply in im its force and with the fullest meaning, without invoking
its langua^ to limit and restrain all the other sections and provis-
ions quoted. If this is so, then it is my plain duty to so apply it and
have all the provisions stand. I must not find conflict if I can by fair
construction help it. That construction is always to be preferred
and, indeed, adopted which will permit all the provisions of a stat-
ute^ and especially a constitution, to be of force rather than that
which will nullify any. I accept and treat this section (4, article 3)
as a simple rule as to what shall be done in cases of impeachment and
conviction of those in office and to remove any doubt cis to their right
to continue to exercise their trusts after their conviction. It does
not at all impress me that it confines impeachment to those in office
at the time of their trial and conviction. The langua^ used in connec-
tion with the other sections is not different from that found in num*



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96



TRIAL OF WILLIAM W. BELKNAP.



berless statutes providing for the punishment of official misoondnct
and under which I never supposed, nor can I think anyone ever did,
that the official must continue in office in order to incur their penal-
ties.

I am not anmindf ul that the Constitution (article 1, section 3) says
that '' where the President of the United States is tried, the Chief
Justice shall preside ;'' and that from this it is argued that this offi-
cer can only be impeached when in office, for it is asked, If he is out
of office shall the Chief Justice preside T I answer, certainly not. The
reason of the provision is clear enough, not doubted by any one ; and
why diall we attempt to warp or extend its meaning for tne purpose
of limiting a necessary power, given for wise and necessary purposes
by the Constitution T

Mr. President, the Constitution, held up by its four comers and
considered as a whole, must receive at our hands a reasonable con-
struction. We must not lose sight of the objects and purposes for
which the powers therein given were conferred. As was said by
Judge Storv, that construction ** should be adopted which is most con-
sonant with the apparent objects and intent of the Constitution ; that
which will fflve efficacy and force as a government, rather than that
which will impair its operations and i^uce it to a st^te of imbecil-
ity ; * * * the exposition should have a fair and just latitude, so
as on the one hand to avoid obvious mischief and on the other hand
to promote the public good." It is a charter of life, not of death, to
the people, their government, and their interests. Purity in the dis-
charge of official dnty and the perpetual exclusion of bad men from
all public trusts are quite as essential to this life of the nation as that
some defiant little official shall be removed from a trust which he has



Jnder this rule, I think, the construction stated is most clearly to
be sustained. Because of this, and because I know, as we all do, as
already stated, that neither in England nor elsewhere, prior to the
adoption of the Constitution, was impeachment ever coufUied to those
in office at the time of their trial and conviction, and l>ecause I must be-
lieve that the fathers employed the language of the Constitution
with a full knowledge of this fact and of the meaning of the word
impeachment as then understood and accepted, I rest my conclusion.
I do 80, also, because I think it in the face of the letter and in de-
fiance of the spirit of all legislation, as applied to crimes or any-
thing else, to say that any one can avoid liabilit v or responsibility, which
has already attached, by voluntarily laying down an office ; and, too,
because upon every principle, when an officer assumes a trust, he is as
much liable after the expiration of the term as while in office to
atone to the offended law for anv violation of its criminal provisions
as he is for the money he controlled or for those acts of commission
or omission not involving criminal liability.

Mr. Ihresident, allow me to say in conclusion that I trust a pardon-
able State pride, and certainly a strong personal ro^rd for the ac-
cused, inclined me to another conclusion. My first impressions, too,
from a casual reading of the instrument, I confess, were against the

Sower. But living, as my time would allow, my best thought to the
iscnssion and all the provisions of the Constitution, I have, with
some reluctance, I admit — ^if reluctance should ever be indulged in
the discharge of duty—been brought to conclude that we have Juris-
diction in this case and shall by my vote so declare.



•piai^B •f Sir*

Delivered May 17,1876.

Mr. MERRTMON. Mr. President, I will state briefly a snmmary of
the grounds of my opinion upon the question now before the Senate.
After 80 mnch has been said and mncn of it w^ said by Senators on
both sidee, more than this from me is nnnecessarv, especially as time
has become so important for the consideration of other business.

The Constitution defines, limits, organizes, and embodies the pow-
ers which those who made it deemed necessary to the free operation,
protection, and perpetuation of our system of national govenunent.
In interpreting its meaning, the purpose contemplated bv it must be
kept steadily in view. In that bght and to that end, its leading pro-
visions and several clauses must receive a fair, just, and reasonable
construction. This leading rule ought always to prevail in asoertain-
ine its meaning and ^ving effect to its several provisions.

Now, the Constitution provides as certainly the method of trial by
impeachment as for a Judiciary or the trial by Jury. This method of
trial is intended to answer a distinctive and important purpose, and
that must be ascertained by applying the role Just stated in constru-
ing the several clauses providing for it.

It is provided in article 1, secuoii 2 —

That the Houm of BepnMotetivM ahsll • * * have the sole power of im-
peeoboieiit

By this clause the unqualified power to impeach is conferred upon
the House of Representatives.
In section 3 of article 1 it is provided that—

The Senate shall baye the sole power to try aUimpeaohments. * * • Judgment
in cases of impeaehment aballnot extend further than to removal from offlop,
and disooalifioatioQ to hold and ei\)oy any offloe of honor, trosi, or profit under the
17 oited Statee: but the party convicted snail nevertheless be liable and rat^Ject to
indictment, trial, Judgment and punishment according to law.



These clauses confer upon the Senate the sole power and juiisdio-
tion to try all impeachments, limiting only the power of judgment.

Here it is important to ascertain what is meant by impeachment.
It is not defined in the Constitution, and we must necessarily look
elsewhere to learn its meaning. It is a technical legal term, well un-
derstood in the English common and parliamentary law, and to that
law. it is agreed by all, we must look for its meaning and use. Ac-
cording to tliat law, it implies a method of accusation of official crime
hj which the House of Commons in England preferred charges of
crime against some person who, at the time of the commission of such
crime, sustained some official relation to the government before the
House of Lords. The House of Commons had the right and power to
accuse any person who had been guilty of crime while in office under
the government of such crime before the House of Lords, and the
latter had the right and power to try and acquit or convict the ac-
cused and award judgment in its discretion. It was not necessary
that the person so accused should be in office at the time of impeach-
ment ; but it was only necessary that such person should have been
in office at the time of the perpetration of the crime in order to raise
the jurisdiction of the court of impeachment. Perhaps, in ancient
times, the House of Lords may have had, or exercised arbitrarily, a
more extensive jurisdiction in matters of impeachment, but the jQn-
glish law was as I have stated it to be at and for a long whUe be-
fore the time of the formation of our Constitution.

This definition of impeachment being true, then the clauses of the
Constitution just cited provide certainly that the House of Repre-
sentatives, like the House of Commons in England, have the unquali-
fied power to impeach— that is, to accuse — any person of crime per-
petrated while such person held office under the United States be-
fore the Senate, and the Senate, like the House of Lords in England,
have the power to hear, try,' ana acquit or convict such person so ac-
cused, and award Judgment. But the powei^ of judgment is limited ;
it ** shall not extend further than to removal from office, and disquali-
fication to hold and enjoy any office of honor, trust or profit under
the Unit<ed States." The power of Judgment was not so limited in
the House of Lords. And so, too. it is not material that the person
so accused should be in office at tne time of impeachment in order to
raise the jurisdiction of the Senate to try, acquit or convict, and give
Judgment, unless there is some provision in the Constitution so pro-
viding ; it is sufficient that he was in office at the time the alleged
offense was committed.

There is nothing in the clauses of the Constitution already cited re-
<]|uiring that the persons impeached must have been in office at the
time of impeachment; on the contrary, the limitation in the last
clause upon the power of Judgment goes to show that it was contem-
plated that the offending officer, though out of office by resignation
or otherwise, might be impeached so that he might be disquaMed to
hold office afterward. It provides that —

Judgment in oases of impeachment shall not extend further than to removal
from office, and disqualiJicaMoH to hold and er^oy any oJUe qf honor, trtutt or pro/U
vnder the Uniisd StaU$,

To construe this clause as meaning that the guilty officer must have
been in office at the time of impeachment is to render it practically
nugatory, for he would always resign his office, and thus avoid impeach*
ment. All rules of legal construction, as well as the reason of the
thing, forbid such a construction.

The only other clause of the Constitution bearing on this subject is
section 4 of article 2. It is in these words :

The President, Yioe-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.

This clause does not confer Jurisdiction, nor does it purport to do
so. By the clauses which precede it and which appear m tne proper
place m the Constitution for that purpose, general Jurisdiction is con-
ferred.

If it shall be treated as defining and limiting the class of persons
subject to the Jurisdiction of the Senate as a court to try imi>cach-
meut, then it must be so construed, if possible, as to harmonize
with the clauses conferring jurisdiction. This may reasonably be
done by giving it the effect that all officers in office at the time of im-
peachment shall be removed from office, leaving the disqualification
to hold office to the discretion of the Senate.

If this provision were not in the Constitution, the Senate in oases
of impeachment would not be obliged to give Judgment of removal
from office. It might give any Judgment short of tnat, as of censure,
or suspension from office, or the like. This clause by its express man-
datory terms prevents tnis. and requires that any officer convicted
for the offenses named shall he removed fi^om office. It is mandatory.
As to disqualification to hold office, that is left to the discretion of
the Senate, as provided in the clauses giving Jurisdiction. There is
no word in the clause limiting the power to impeach to the time when
such officer is in office, nor is there any such necessary or reasonable
implication. Qiving the words the plain meaning I have attributed
to them, all the provisions of the Constitution cit^ harmonize, and a
manifest general purpose is effectuated : that is, to protect the Qov-
emment against faithless and corrupt officers and prevent the return
of such men to office under the United States. This purpose is aided
by another provision of the Constitution, which limits the pardoning
power exercised by the President, so that it cannot reach cases of im-
peachment.



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TRIAL OF WILLIAM W. BELKNAP.



97



The maoifest purpose and spirit of the CoDstitation is, through the
oonrt of impeachment, to protect the Government and people against
liigh crimes and misdemeanors committed by the President, Vice-
President, and all other civil officers and perhaps other officers, while
in office, by not only removing such ofi'ending officers from office, but
also by disqualifying them to hold office ever after. Now, if it shall
be held that by resigning his office the guilty officer can evade im-
peachment, or that resignation operates to oust the jurisdiction of the
court, then one part of the purpose, and iu many cases that might
arise, the most important part of the purpose, of the Constitution will
be debated ; that is, to disqualify a great, corrupt, and powerful man,
after he has because of crime resigned his office, to return to office
again by means that he might iu many ways employ. Can a con-
etmction which leads to such results, that thus defeats a distinctive
and important purpose of the Constitution, be allowed! It seems to
me that its terms, its phraseology, its manifest purpose and spirit all
alike forbid it.

I am therefore of opinion that the plea of the accused to the Juris-
diction of the court cannot be sustained ; that it must be overruled,
and the accused required to answer acoording to law.



Oplai«M •€ Mr. H^we,

Delivered May 19, 1876.



Mr. HOWE. Mr. President, the pending debate has developed two
very different theories touching the remedy of impeachment as pro-
vided by the Constitution of the United States. Some Senators main-
tain that the Constitution adopts the remedy known to the parlia-
mentary law of England, subject only to such limitations as are
expressly prescribed by that instrument ; while others hold that our
Constitution borrowed nothing but the name of the remedy from En-
glish jurisprudence, and that it confers upon the two Houses of Cou-
l^ress no power in impeachment any more than in legislation not ex-
pressly granted. On one side it is argued that Congress may do by
impeachment whatever the British Parliament may do, unless pro-
hibited by some clause of our fundamental law. On the other hand,
it is contended that Congress can do nothing by impeachment, or any
other way, unless expressly authorized by the t«rms of that law.

In my own judgment the English remedy of impeachment never
ought to have existed anywhere, and never was transplanted into
this country. I therefore begleave to submit briefly a view of that
strange remedy known in the English law as impeachment.

I'be British constitution is of volcanic formation. In it-s succes-
sive chapters we see the upheaval of different political convulsions.
Human necessity, not human choice, gave shape to the dreadful proc-
essea. Sometimes it was the necessities of a prince, sometimes the
necessities of a class, sometimes the necessities of the people which
dominated the movement. Parliamentary impeachment was the re-
sult of one of those convulsions. Impeachment originated in the ne-
cessities of a prince, and not in the necessities of the people. Mr.
Hall am says the impeachment of Lord Latimer was the first which
occurred under the English government. That was during the reign
of Edward III. He was an able and not very scrupulous monarch.
Hi« ancestors for four reigns had been the vassals, not the sovereigns,
of the English nobles. His great great grandfather was that King
John from whom the barons of England wrested the great charter
at Runnymede. His great grandfather was the third Henry, in whose
reign the infamous Albemarle plundered prince and people indis-
criminately, and Fawkes de Breaut^, when the court had pronounced
thirty-five judgments against him for the expulsion of so many free-
holders from their possessions, armed his retainers, took the judge
fi-om the bench, ana imprisoned him in Bedford Castle. His grand-
father was Edward I, a prince of great activity and courage. But
his authority was defied both by the clergy and the nobility. The
archbishop of Canterbury told him he must not assess the church,
because the Pope had forbid the clergy to pay taxes. The Earl of
Hereford refused to go with his army into Flanders. The king ex-
claimed to him. "By God, sir earl, you shall either go or hang ;'^ and
the earl replied with equal spirit, " By God, sir king, Fll neither go
nor hang."^ In the end, the king was obliged to apologize both to
the clergy and the nobility. His father, Edward II, was dethroned
and mumered. Admonished by so many examples of the dependence
of the Crown upon the peerage, Edward III resolved upon its disen-
thrallment. He came to the throne when he was only thirteen years
of age. He was subjected to a regency, composed of five clerical and
seven lay peers. While he was yet an infant he saw the combined
power of that regency crumble to dust under the iron heel of the as-
piring and lawless Mortimer. When he was but seventeen he seized
Mortimer and hung him. At eighteen he assumed the scepter, and
laid it down only when he laid down his life forty -six years later,
after one of the longest and most triumphant reigns in English an-



Online LibraryUnited States. CongressCongressional record : proceedings and debates of the ... Congress → online text (page 46 of 172)