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office, and disqualitlcation to hold and enjoy any office of honor, trust, or nrofit un-
der tne United States ; but the party convicted shall nevertheless be liable and
sahjeot to indiotment^, trial, Judgment, and punishment, according to law.

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J 10


Do these words either in whole or in part in any manner or to any
extent limit the grant as to jarisdiction in the Senate to try all im-

Seachoientsf Clearly they impose a limitation, but such limitation
oes not attach to the iurisdiction, bnt to that which follows after
Jurisdiction has attached. It affects the Jadgmeut» and that alone. It
operates on that ^rt of the proce^tng in impeachment in snch a
manner as to not trench in the slightest degree on the question of
jurisdiction. The Senate could comply literally with this provis-
ion in rendering judgment whether the party convicted was or was
not in office at tne time of impeachment, trial, and conviction. The
clause is simply a limitation upon the power of the Senate in refer-
ence to the judgment it may pronounce ; its language in eftect is,
'* thus far shalt thou go and no farther.^ If the person convicted is
in office at the date of the rendition of the Judgment, and that is a
civil office, yon must remove him, and yon may, in addition to this,
add disqualification to hold and enjoy any office of honor, trust, or
profit under the United States y bnt beyond this limit yon cannot go.
If the person is in civil office he, under section 4 of article 2 of the
Constitution, must he removed. If he is not in civil office then you
may disqualify him for one day or a month or a year or five years or
for the term of his natural life from holding and enjoying any office
of honor, trnst, or profit under the United States ; bnt beyond this
boundary of disability you cannot go. Under the common and par-
liamentary law of England there was no limit to the judgment the
Peers might impose in cases of impeach; *^nt save that prescribed by
the conscience and discretion of those | ronouncing it, and the rec-
ords of that bloody court show that during the past five hnndred
years these Jndgments ranged time and again, all through the whole
catalogue of disability and punishment, from that of a mere censure
to execution npon the block. This unlimited power in Parliament
in the matter of Judgment the framers of our Constitution in their
wisdom thought should be restricted, and, while as to the persons who
should be impeachable they left the matter where the common law
and usages oj Parliament left it, as to Judgment they limited the
power of the Senate by declaring that —

Jadmnent in cases of impeaclinieiit shall not extend farther than to removal
from oflioe. and disqualification to hold and eqjoy any office of honor, trust, or profit
under the United States.

When, therefore, it is urged that, if we go to English history for
a definition of the power of impeachment, we must take that defini-
tion in all its unlimited range as to the form and character of judg-
ment, as well as to the persons impeachable ; and when, for the pur-
pose of casting the veil of derision upon the assumption here of a
position 8npi>08ed to involve this fatal absurdity, wo are pointed,
with an air of triumph, to the headless trunks, the pilloried forms,
the separated quartere, of those who have fallen beneath the cruel
jndgments of impeachment in the English Parliament, it is enough
that we should answer in the language of the framers of the Consti-
tution, who, while they selected that which was good of English ju-
risprudence in the matter of impeachment and incorporatecf it into
our fundamental charter, modified and corrected that which was
evil in reference to judgment declared :

Judgment in cases of impeachment shall not extend farther than to removal
from office, and disqnalifioation to bold and e^joy any office of honor, trnst, or profit
under the United States.

The power to disqualify from holding and enjoying office does not
depend necessarily for its exercise npon the power to remove from
office. The exercise of the one does not necessarily draw with it the
exorcise of the other. They are two separate and distinct disabilities
or punishments, if they may be properly termed such, and not depend-
ent in their infliction the one upon the other. They are not necessa-
rily copnlative. They may be oi^nnctive in application.

But It is said the fourth section of the second article of the Consti-
tution has an important bearing npon the jurisdiction of this conrt,
and while there is quite a diversity of opinion even among Senators
who deny this jurisaiction as to the precise office of this section, it is
asserted and seriously contended by able lawyers of the Senate that
the only grant of power to the United States to impeach at all for any
olfense is one of tmplioation, resulting from the language here used.
It reads as follows:

The President, Yice-President and all civil offloers of the United States, shall be
removed from office on impeMhmeut for. and conviction of, treason, briL>ery, or other
hi;;h crimes and misdemeanors.

It is said that, because this section declares that the President,
Vice-President, and all civil officers of the United States shall, on im-
peachment for certain specified offenses, be removed from office, it
raises a necessary implication, an implied grant of power to the
Federal Government to be exercised through the House and Senate
to impeach and try such officers for the specified olleuses, and that
this is the »ole jurisdictional grant on this subject. This I cannot
agre« to.

It is contended furthermore that the sole purpose of impeachment
is removal from office, and that, therefore, this clause of the Consti-
tution limits the jurisdiction of this Government as to persons in
cases of impeachment to civil officers of the United States while in
office. It is difficult of comprehension how it can, with any plausi-
bility, be contended that the sole purpose of impeachment is removal
from office, when the Constitution in terms vests in the discretion of
the Senate the power to impose upon the convicted party au infliction
other than removal from office, and one, too, more terrible in its char-

acter ; a punishment in comparison with which fine, imprisonment, the
pillory, and may we not with propriety say death itself, would seem to
be preferable. For an American citizen, who has been honored by ele-
vation to high office, who has stood in the temple of official power,
whose sword has been drawn in patriotism and wielded with honor
in defense of his country, whose ambition may have led him to grasp
still higher at the reins of government, to be dennded by the American
Senate, in the presence of over forty millions of people, of all the
rights of an American citizen, in so far as they relate to the right to
hold and enjoy any office of either honor, trust, or profit under the
United States, is, it occurs to me, to suffer upon his part a humilia-
tion, a punishment if von please, which nothing save the security of
the rights of the whole people, the integrity of the nation, and an
honest and just administration of public affairs would seem to justify.

The sole object of impeachment therefore is not merely removal
from office ; and while the purpose is not so much the punishment of
the offender as the protection of the Government and the people
against the venality of dishonest men in office, still the framers of the
Constitution evidently regarded the deprivation from holding and en-
joying office under the United States equally important to the ends
of Justice, the correct administration of public affairs, and the gen-
eral welfare of the Republic, with that of the removal from office of
a dishonest man. Bnt, notwithstanding the enormity of this penalty,
which in one sense seems to be little else than punishment, it is not
after all any punishment within the meaning of that term as used in
criminal iufifi^mdence. Legal punishment in the administration of
criminal law is that which in some way, either to a small or large ex-
tent, affects the life, liberty, or property of the citizen ; and this does
neither. It operates exclusively upon his political rights, and no de-
privation of political righta of the citizen m our Government is ever
inflicted as a punishment of the offender, but solely as a means of
protection to the State. The framers of the Constitution did not re-
gard it in the nature of a punishment, and they therefore provided

Tbe party convicted shall nevertheless be liable and snlvject to indictment, trial,
judgment, and punishment accOTding to law.

As stated by Mr. Justice Story —

It is not so mnch desiimed to panish an offend^ as to secure the State against
gross official misdemeanors. It touches n»)ither his perstm nor his property, but
simply divests him of his political capacity.

The third section of article 1 of the Constitution, as we have seen^
vests a discretion in the Senate within certain limits as to the extent
of the punishment to be inflicted. This discretion is not taken away
by the fourth section of the second article. The object doubtless of
this section was not to confer Jurisdiction nor yet to limit that Juris-
diction already granted in a former section, but rather to limit the
tenure of oflice; not to impose a limitation upon the power of the
court in reference to judgment, but rather to make imperative one
pnrt of the Judgment to be pronounced in a case where the offender
is in civil office at the time of trial and conviction ; that is to say,
that ho shall in snch a case be removed from office.

Again, the terms " civil officers," as used in the fourth section of
the second article, neither add to nor take from the scope of the Juris-
diction of grant in the second and third sections of the first article.
The power of impeachment we have seen granted in the clauses,
"the House shall have the sole power of impeachment" and "the
Senate shall have the sole power to try all impeachments," is limited
to prosecution for official crime ; that is to say, for offenses commit-
ted while in office affecting public matters. Therefore, all persons
who could be impeached under our Constitution, even although the
fourth section of the second article were stricken from its provisions,
must be or have been officers of the Government, and must be charged
with offenses comroitt'Cd while in office affecting the just administra-
tion of public affairs.

The honorable Senator from Wisconsin says, in substance, if the sec-
ond section of the first article gives jurisdiction then the fourth sec-
tion of the second article has no office ; it is useless; its insertion in
the Constitution was upon the part of the framers mal entendre. The
answer to this, however, is that without this section the vilest crim-
inal in the highest office of the land, impeached by the House and
convicted by the Senate of crimes dangerous in the extreme to the
well-being of the Government, might, through a false sentiment of
pity or error in judgment of one more than one-third of the members
present when jud^eut is pronounced, retain po^^on of his oflice.

The fourth section, therefore, of the second art icle performs in this
respect a high function in disrobing the Senate of all discretion, and
compelling, ipsoJurCf removal from office.

The particular location in the Constitution of the fourth section of
the second article should, it seems to me, receive consideration in
giving construction to its purpose. If we hold that this clause is
jurisdictional, if it is a definition of the powers of im]>eachment, if it
IS a limitation upon the persons subject to impeachment, or the of-
fenses for which impeachment will lie, then indeed must we agree
with Mr. Justice Story in saying :

By somn strange inadTertt^nce this port of the Constitution lias been taken fmm
its natural connection, and with no groat pronriety ranged under tiie head which
embraces the organization and risclits and auiio's of the executivo department.
(Story's Commentaries, volume 1, 9 7b8.)

If, however, we regard it not as conferring jurisdiction, not as limits
ing the power of impeachment either as to person, offense, or judg-

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ment, bnt simply as a limitatioD npon the tenure of office in the case
of a person in civil office convicted of some offense iucladed in the
designation '' treason, bribery, or other high crimes and misdemean-
ors/' then v?e are at once constrained to say that no more appropri-
ate place coald have been found for its insertion in our fundamental
law. Had it been intended by this clanse to confer jurisdiction or
limit the power of jurisdiction, either as to persons, oflenses, or judg-
ment, why not, as in the case of the article conferring and limiting
jndicial power, have inserted it nnder the appropriate head of the
grant of legislative powers in proximity with the clause —
Tbe House sbali b»ve the sole i>ower <^ impeachment.

The fact that it appears «nder the general head of matters relating
to the executive department of the (^vernment, placed there in this
model production of the century by men so eminent for appropriate-
ness, style, and arrangement as were its framers, is an it^m not to
be overlooked in giving construction to its language. I hold, there-
fofe, that section 4 of article 2 is in none of its features repugnant to
the general grunt of power in article 1 ; but that it is in all its parts
harmonious and consistent with all former clauses of the Constitution
relating to the subject of impeachment ; it is in no sense a Jurisdic-
t iunal ^nmt of power either expressly or by implication, nor is it a
limitation upon the power before granted either as to persons im-
peachable, tne offenses for which they ma^ be impeached, or the
Judgment to be rendered ; that its meaning is, in short, simply this,
nothing more, that in all cases of impeachment of a person who is
a civil officer at the time of trial and conviction for any offense in-
cluded in the designation ''treason, bribery, or other high crimes and
misdemeanors," the persons so convicted shall be removed from office ;
and if, nnder the common law and by parliamentary usage, as it existed
at the formation of our Constitution, any other ^lersons than civil offi-
cers in office could be impeached for any offenses, whether included
or not in the catalo^e, " treason, bribery, or other high crimes and
misdemeanors;" or if, nnder that law and usage, civil officers could
be impeached for any offense not included in that catalogue or desig-
nation of offenses— and these are questions I do not decide— that then
all such persons as to such offenses can be impeached under our Con-
stitution irrespective of section 4, article 2, and just as though such
section were not in the Constitution.

But it is asserted by some who deny Jurisdiction in the case at bar,
with an air almost akin to defiance, that the universal current of
opinion of American commentators is to the effect that impeachment
would not lie against a person not in a civil office of the United States
at the time. And especially is the commentator Story relied upon as
conclusive on tbe question. To this assumption, and in opposition to
it, I refer to Rawle on the Constitution, section 801, in which he uses
this language:

From tbe reasons already given it is obvious that the only persons liable to im-
peachment are those who are or have been in public office.

Is it conceded by those denying jurisdiction in this case that this
indeed is an exception f that here in truth is one American commen-
tator of ability as a writer on constitutional law who holds and states
the opinion unqualifiedly that persons who have been in public office
as well as persons who are in public office are liable to impeachment t
I do not understand this concession to have been made by an v either
of the learned counsel for the defense or the able Senators wno have
argued against this jurisdiction. On the contrary, it is contended with
earnestness that Mr. Rawle, in the language quoted, did not mean to
assert that a person not in office, but who h^ been, could be impeached.
And in this attempt to show that he did not mean thip, bnt did mean
something else, the reason^given are diverse and sadly in antagonism
with certain other positions 4(|ken by advocates on that side of the
question. One of the honorable counsel for the defense, Mr. Carpen-
ter, in referring to this clause, disposes of it in this cursory manner :

Three words, ** or have been," are all they cltdm any comfort from in this passnge
from Rawle— an instance of the caution of a writer in laying down a general prop-
osition to throw in here and there qualifications which may or may not exist.

An ar^ment based upon the limited number of words in which the
capability of a writer on constitutional law may enable him to state
his conclusions is one hardly calculated to add to the professional
fame of such eminent counsel when used in such an important pro-
ceeding as this. The question is, what do the words actually used
mean, without regard to the number of words employed by the
learned commentator.

Bnt it iseontended by others, the honorable Senator from New Jer-
sey, [Mr. Freunghuysen,! the honorable Senator from New York,
[Mr. CONKLING,! and the honorable Senator from Wisconsin, [Mr.
UowR,] and perhaps others, that what Mr. Rawle meant to be under-
stood as saying by this langua^, and what he did in effect say, is
this : That from the reasons which had preceded it was obvious that
there were bnt two classes of opinion extant in reference to the
persons that could be impeached, the one being to the effect that
those holding civil public office were liable, and the other, which in-
cluded both, namely, those " who are or have l>een in public office.''
It seems to me, from a careful reading of the clause, p'^ing to each
word itfl legitimate office, it may with much propriety be said that it is
obvious that such aconstmction is il logical, unwarranted, and unsound ;
besides. Judge Story, upon whose statements so much stress is laid in
opposition to this jnrisidiction, cites Mr. Rawle as one commentator
who held to the doctilne that those who have been, as well as those

who are, in public office are liable to impeachment. In referring to
this language of Mr. Rawle, Judge Story, section 801, uses this lan-

A learned commentator seems to have taken it for granted that the liability to
impeachment extends to all who have been, as well as to all who are, in public

In the opinion, therefore, of Justice Story. Mr. Rawle, so far from
failing to commit himself upon the question, and so far from merely .
stating the two classes of opinions that prevailed, and which alone
for obvious reasons could by any possibility obtain in reference to
this subject, had employed such language as showed that ho had
taken it for granted " that the liability to impeachment extends to
all who have Deen, as well as to all who are, in public office."

It must be conceded, therefore, willingly or otherwise, for what-
ever it is worth, that Mi*. Rawle, in his Commentaries on the Consti-
tution, asserted the doctrine unqualifiedly— and he was a strict con-
structionist — that under the Constitution all persons who have been,
as well as all who are, in public office are liable to impeachment
for impeachable offenses committed while in office. And can it 1>e
said, even after all that is claimed from Jadge Story's opinion on this
subject, that he (Story) joins issue with Mr. Rawle in this opinion?
Will it be contended in the face of what I am about to quote from
Mr. Story that he ever at any time asserted that the contrary of what
Mr. Rawle stated was the true doctrine f Most certainly not.

After referring to the several clauses of the Constitntion bearing
upon the subject of impeachment, and after stating in reference to
one clause that so and so appears to be the case, and in reference to
another that *Mt would seem to follow " that so and so were true, he,
Judge Story, concludes and dismisses the whole subject in section
805 in these words :

It is not intended to express any opinion in these oommontaries as to which is
the true expoei tion of the Constito^n on the points above cited. They are brought
before the lcame<l reader as matters still eubjudiee, the final decision of which may
be reasonably left to the high tribunal constituting the court of impeachment when
the occasion shall arise.

Justice Story, therefore, does not decide the question ; he does, if
we may take him at his own word, not even so much as ** express any
opinion " in his commentaries ''as to which is the true exposition of
the Constitution" in reference to the very questions which to-day
separate in opinion and Judgment the members of this Senate. On
the contrary, he, unlike Rawle, who decided the controversy, simply
brings it " before the learned reader as a matter still sub Judice, still
under consi«leration, and one which in his judgment should bo rea-
sonably left to this high tribunal for final decision when the occasion
might arise. That occasion has at last arisen, and here and now the
great question must be forever settled. For nearly a century it has
been 9uh judice by American commentators and the American bar ;
diverse opinions have l>een held and expressed, it is true, and now it
is for the first time before the proper tribunal for adjudication.
What has been sub judioe for nearly one hundred years must for all
future time be res Judicaiu.

It has been suggested that if the impeachment by the House had
taken place prior to the act of resignation, that then the case would
be different, upon the principle that, jurisdiction having attached, the
Senate could proceed to try. The view I take of the Constitution
renders it unnecessary that I should pass upon this question. I can-
not conceive, however, that it would make the sli:;htest difference in
any possible view of the case in so far as the jurisdiction of the Sen-
ate to try is concerned.

If the construction contended for by those who deny this jurisdic-
tion is correct; if to confer jurisdiction the accnsed must be a civil
officer ; if the sole purpose of impeachment is removal from othce ;
and if no judgment in impeachment can be rendered except there is
included in it, and as a part of it, removal from office, then it follows
as a legal and logical sequence that a* resignation even after the con-
clusion of the trial, and before judgment pronounced, would oust the
jurisdiction of the Senate, prevent any judgment whatever from be-
ing rendered, the whole proceeding would abate, tbe accused though
perhaps covered with the infamy of his crime would go forth a fi-ee
man with the right, provided he dould through a repetition of his
crime, or otherwise, command the power to receive a new commission
the next day, only to be surrendered perhaps after another trial by
impeachment in time to again defeat the judgment of the Senate.
Any construction, however, of our fundamental law that would make
such a course possible: that would make the whole constitutional
power of impeachment liable to suspension at the will of the accused
criminal ; that would, as it unquestionably does in effect, practically
destroy this protection to the Government against the evil practices
of dishonest men who are in office and of otners who have been and
may be again, is to my mind unreasonable, illogical, dangerous to the
best interests of the Qovemment, and unwarranted either by its let-
ter or spirit.

The fact that the Constitution empowers the Senate to disqualify,
as well as remove from office, would, it seems, be a perfect answer
to the assumption that the sole purpose of impeachment is the re-
moval from office. To prevent, therefore, in the discreti<m of the
Senate, a return to office of one who had proved unworthy while in
office, to the extent of committing an impeachable offense, was evi-
dently regarded as a means of protection to public liberty, so neces-
sary to the guardianship of the high interests of the State as to secure
for it a place in explicit terms in our fundamental law. To place

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upon the Constitution, therefore, such construction as would make it
possible for a great public oftonder, by the simple voluntary act of
resignation, to evade this part of the penalty, and thus trample, un-

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