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moment or were unfortunately negligent in the expression of their
designs.

For it must be observed that the grant of power is explicit, and
cannot be classed among those latent, obscure, and ambiguous pow-
ers, the result of compromise, and the fatal cause of party dissension
and national periL

The constitutional provisions concerning impeachment have been
so often stated that reiteration seems superfluous ; but they must be
repeated here. They are as follows :

The President, Vioe-Preaideiit and aU civfl officers of the United States, shall be
removed from office on impeachment for, and conylotion of, treason, bribery, or
other high crimes and misdemeanors. (Article S, section 4.)

The ^ose of Bepresentatives * * * shall have the sole power of in^eaoh-
ment (Article 1. section 2, claose 5.)

T he Senate shall have the sole power to try all impeachments. When sittinK for
that purpose, they shall be on oath or affinnation. When the President of the
United States is tried, the Chief Jostioe shall preside: and no person shall be eon-
vioted without the oonoorrenoe of two-thirds of the members prssent. (Art&ole 1,
section 3, danse 6.)

Jadgment in cases of impeachment shall not extend farther than to removal from



office, and disqnaliflcation to hold and ei^oy any office of honor, trost, or profit nn-
der the United States: but the party oonvioted shall nevertheless be liable and
snlject to indictment, trial, jadgment and punishment, aooording to law. (Article



1, section 3, dause 7.)

Stated in their natural order, and assembled in theirpropersequence,
they would read thus :

The President, Vice-President, and all civil cheers of the United States shall be
subject to impeachment for treason, bribery, or other high crimes and misdemean-
ors ; and on conviction shall be removed rrom office. The House of Bepresenta-
tives shall have the sole power of impeachments, and the Senate Aall nave the
s<de power to try all impeachments. Jadgment in cases of impeachment shall not
extend farther tnan to removal from office and disqaaliflcat&on to hold and e^joy
any office of honor, trost, or profit under the United States ; bat the party con-
victed shall, nevertheless, be liable to indictment, trial, Judgment, and panlshment
according to law.

Leaving particulars and descending to mere description, they desig-
nate-
First. The persons who may be impeached.

Second. The offenses for which impeachment will lie.

Third. The penalty on conviction.

Fourth. The method of procedure.

Fifth. The limitation of the Judgment.

The student of English history will not fail to note that each of
these particulars, with the possible exception of the fourth, is a direct
departure from the law of Parliament upon impeachment. Under
that all the king's subjects could be impeached, but the king could
not. They could be impeached for any offdnse. Any punishment
could be inflicted, and the power of judgment was absolute.

I am compelled, therefore, to dissent from the doctrine that the
clauses giving the House the power of impeachment and the Senate
the power of trial are in anj sense jurisdictional, but must regard
them as functional merely ; directory of the methods of practice and
procedure under the Constitution, and not as a grafting upon our
system of the process of impeachment as recognized by the parlia-
mentary law of England. For it must be remembered that in a free
popular government like that which our fathers instituted impeach-
ment as Known and practiced in Great Britain would be illogical,
anomalous, and unnecessary.

Where monarchs were absolute and the right to rule descended
through successive generations of avaricious and sensual tyrants ;
where corrupt favorites administered the offices and plundered the
revenues of the kingdom at the pleasure of the king ; where the
property of the realm accumulated in families, and all the preroga-
tives of wealth and power were hereditary, there was no relief from
oppression but by extraordinary methods — the dagger, revolution,
and the scaffold.

Hence in the great struggle between kings and subjects, when law
at last succeeded force, the right to impeach corrupt ana incompe-
tent rulers was asserted in Germany and transferred to England as
early as the fourteenth century. Though it was an advance upon the
redress of force, yet its methods were violent and its penalties cruel,
inhuman, and atrocious. Its victims were put to death, and their mu-
tilated remains refused burial ; their blood was corrupted ; they were
outlawed, banished, and exiled ; they were stripped of their estates
and dignities, and pursued with dishonor be^^ondthe grave. And thus
impeachment was associated with that omous group of remedies,
among which were ex post faoio laws, bills of attainder, and pains
and penalties.

But in a countay where the people are the rulers the necessity and
the occasion fbr impeachment are greatly diminished. Where neither



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TRIAL OF WILLIAM W. BELKNAP.



125



wealtih nor power is hereditttiyy there need be no cormption of blood ;
cuid where the tenure of office ia brief and depends npon the will of the
people, impeachment is gener^y oondacted at the oallot-box.

It mnst therefore be apparent that when the founders of the Re-
poblic conferred npon the Hoose the power of impeachment, th^ did
not mean impeachment as understood by the laws of England. There
wae not only no necessity for it, but the idea would be repugnant to
their experience and without foundation in reason.

We must then inspect the other provlBions of the Constitution to
discern their purposes and ascertain the limitations they intended to
preecribe.

These relate to the subjects, the objects, and the penalties of im-
peachment; and, when considered in connection with tne uniform prac-
tice of Congress, seem to indicate conclusiyely that the subjects of
impeachment are tiie President, Vice-President, and all civil officers
of the United States, and that the sole objects of the process are to
divest the ofiEender of certain political attributes and rnnctions, not
for the punishment of the individual, but for the protection of the
State.

Articles 5 and 6 of the amendments to the Constitution are explicit,
and by irresistible inference exclude any other conclusion. They are
in the following language :

ABncui V.

No ponon shall be held to answer for aoapital, or otherwise infamous crime, xm-
less on a presentment or indictment of a grand Jury, except In oases arising in the
land or naval forces, or in the militia, when in actoal service in time of war or pub-
lic danger ; nor shall any person be subject for the same offense to be twice put in
f eopanfy of life or Umb.

AiniCLi YL

In aU criminal proseentions, the accused shall ei^oy the right to a speedy and
piiblic trial, by an impartial J uiy of the State and district wherein the crime shall
nave been committeo, which district
law.



; shall have been previously ascertained by



For the sake of illustration, let us sui^pose that the late Secretary
of War had deliberately and with mahce aforethought murdered a
post-trader, a capital offense, the punishment for which would be
death by han^g. This would also be an iihpeachable offense, for
which he might be removed and disqualified ; but if such proceedings
diould be had. would it be considered as punisliment for the crime of
murder f Or let it be supposed that, having been tried and convicted
for murder in the courts of the District and lyin^ in prison waitiof
execution, he should refuse to resign and should be impeached. Would
his removal be regarded as punishment for his offense T No one would
seriously make such pretense. The application of the provisions of
articles 5 and 6 is too obvious to need further comment. Impeach-
ment cannot be a criminal prosecution.

The determination of the scope and purpose of impeachment is ma-
terially aided by a consideration of the nature of the penalty affixed
to conviction. The punishment is in one sense always the measure of
the offense. The penalty defines the grade to which the crime be-
longs.

Tne Judgment in impeachment is confined to the political relations
of the ijespondent to the state. It does not. affect his citizenship.
Tlie right to hold office, either actual or potential, is not one of the
rights of citizenship. Like su&age, it is a privilege or franchise
granted by society to the citizen.

The rights of citizenship are three : the right to live, the right of
personal security or liberty, and the right to hold property. The
judgment upon conviction on impeachment does not affect either of
these. In England it was otherwise. If the accused were found
flruilty he eovM be deprived not alone of his political rights but of
&e rights of citizenship. His life could be taken at the block, his
liberty could be destroyed by exile or incarceration, his property
could be appropriated by fine or sequestration.

But under the Constitution the character of the proceeding is radi-
cally changed. It is no longer aimed at the citizen as such. The
nunishment for crime, which abrogates citizenship by execution, by
imprisonment, by fine, is remitted exclusively to the courts, and im-
peachment is restricted to the political relations of the accused, and
these are only partially rescinded in case of guilt. He may be im-
peached for murder, arson, robbery, or any crime whose penalty is
defined by law, and, if convicted, he can only be removed from office
and disquidified.

His citizenship is unimpaired and many of his political rights re-
main. He can still vote. He can serve in the militia and upon J nries.
His relations to the state are changed, but he is still entitled to the

Erotection of its laws and to the full benefit of all the guarantees and
nmunities of the Constitution.

This vast modification could not have been accidental. It must
have had a purpose, and it serves still further to accentuate and em-
phasize the position that, as the penalty is political purely, so the pro-
ceeding was intended to be political purely^ and was devised for
protection, and not for punishment. Unless it be so, then many in-
ferences of the Constitution are controverted and several of its plain
declarations are rendered ineffectual and abortive.

While upon the subject of punishment I pause to consider an argu-
ment which has been strenuously put forward by the managers and
their associates in the prosecution. It is their strong fortification and
tower of defense. After inspecting the Constitution with the tele-
scope and the microscope ; after distilling it in the alembic of verbal
criticism; after analyzmg it as a chemist resolves the waters of a



I mineral spring till his agents ceaseHo testify and he reports of this
or that constituent a trace only, the combined efforts of all these
doctors have adduced the convincing arg^ument that unless the right
of impeachment for official misconduct continues after official exist-
ence has terminated the jurisdiction depends not upon the court but
npon the criminal. It is insisted that, ii by resignation he can defeat
the judgment of disqualification, he renders nugatory the great de-
sign of the process, which is not only to put a man out but to keep
him out ; that, unless he is disqualified, a perverse or corrupt Execu-
tive can re-appoint him after his resignation and thus d^ and thwart
and trifie with the moral sense imd will of the nation. They contend
that he must not only be banished from the Eden of office, but that
the angel of venffeanoe with the flaming sword of disqualification
must be stationed at the gate to prevent his return, and that unless
this is done the public service may be stained, corrupted, and pol-
luted by the invasion of dissolute and unseemly reprobates who will
thus be superior to law. The necessary corollary is that if they are
so disqualified the narion is safe, and that they can then endanger
the councils of the nation no more. Aside from the fact that such
conduct would be impeachable in ths Executive and that he could
not resign and re-appoint himself, there is the further consideration
that the security of the people from corrupt officials lies in public
virtue and intelligence, and not in statutory prohibitious.

But let us for a moment examine this pretext and see how far the
protection would extend were the sentence of disqualification in all
cases pronounced. What additional guarantee, not based in the
morahty of the people, would be derived from tne strictest applica-
tion of this part of the penalty f

Should the respondent in the case at bar be convicted and disquali-
fied, how could the country be safe from his machinations were he an
ambitious, intriguing schemer with a following sufficiently numer-
ous to make his pretensions formidable f The disqualification is only
partial. He could not be President, nor Vice-President, nor Cabinet
minister, nor postmaster, nor an officer in the civil, military, or naval
service of the United States ; but after going forth from this chiun-
ber of doom with the indelible stiffma and brand npon his brow,
should he return to Iowa, whence he came, what but the will of
the people could prevent nim from being mayor of his adopted city
or alderman of his native village f What but this could hinder him
from becoming sheriff or trea^irer of his county f What but this
could interfere with his election to the Legislature and his participa-
tion in the enactment of laws and the election of Senators f What
but this could stand in the path of his entry into the executive office
as governor of the State f Should his ambition take a higher flicht
and assume a wider range, what but tiiis could forbid his admission
to the Chamber at the other end of the Capitol as a Representative
in Congress, and, in a not impossible contingency, of electing a Presi-
dent of the United States f What but this could bar his taking the
oath as a Senator of the United States and standing as the peer of
any who had pronounced sentence upon him, the representative in
this body of a sovereign State in the American Union T One Senator
at least who hears me thought the position of Senator preferable to
that of Secretary of War. The Senate makes and unmakes civil offi-
cers of the United States, and none of the positions I have named fall
within the category from which your most unrelenting vengeance
could exclude him. • •

No, Mr. President, removal is not punishment; disqualification is
not punishment. In the nature of things they cannot be punish-
ment ; and the proceeding in which they are iiwidents is a political
process designed to relieve the public service of an official delin-
quent.

I pass, then, to a review of section 4, article 2, and inouire if the lan>
g^age here employed sustains the view that the proceeoing is political
exclusively, and if the words *^ President, Vice-I^«sident, and all civil
officers of the United States'' is designed as an affirmative designa-
tion of the persons to whom impeaonment can* apply. The termi-
nology of the section is peculiar. It authorizes the removal of the
persons named upon conviction. It does not declare that no other
officers than those named, or that those only, shall be removed. And
yet unless the words used are held to be descriptive, then the power
conferred in the Constitution must be regarded as to official acts and
official persons at least, as broad and coxnprehensive as that known
to the parliamentary law of England. There is no lanffuage which
forbids the impeachment of the admiral who neglects the safeguard
of the sea ; the commodore who sinks his squadit)n : the general who
surrenders his army to an inferior foe ; the commander who corruptly
capitulates his iH>st. And yet it is safe to say that the exercise of
such a power by Congress has never for an instant been considered.
The words "civil officers" have always been held to exclude naval
and military officers, and therefore culprits in those arms of the pub-
lic service are relegated to courts-martial and other modes of punish-
ment. The state can be as much harmed by their delinquency ; in
time of war perhaps to a much higher degree than by the miscon-
duct of a civil officer, but they have never been considered subiects
of impeachment, because the language of the fourth secti(m has been
regarded as an exclusion, as if the word "only" had been inserted
after the words " United States."

Why f The occasion has not been absent in our history, but the
reason for the abstinence is clear. It has been the application of the
old legal maxim: EspprmHo wnku, mxUmfio aUerim. The specification



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126



TRIAL OF WILLIAM W. BELKNAP.



of particulars is the exclusion o/generals. Lord Bacon says, and his
obwrvation is qaoted in this connection by Judge Story with approval,
''As exception strengthens the force of a law in cases not excepted,
so ennmei-ation weakens it in cases not enumerated." It is true that
this rule is not absolute, and that it may be susceptible of wrong ap-
plication ; but it is one of those maxims which are founded in reason
and have found their way as well into the affairs of daily life as into
the decision of judicial questions. To ascertain how far an afiirma-
tive provision excludes others we must look to the nature of the pro-
vision, the subject, the objects, and the scope of the instrument.
Tliere can be no doubt that in most cases an affirmative declaration
excludes everything or person not specified ; and the reason is obvi-
ous. An affirmative grant or specification would be superfluous and
absurd if general authority were intended. (See Story on the Con-
stitution, section 448.) In the case before us if the broad, unre-
stricted power of impeachment was conferred by article 1, section 2,
clause 5, it would include "Uie President, Vice-President and all
civil officers of the United States," and thus article 2, section 4, would
be superfluous and illogical, considered either in relation to the per-
sons, the offenses, or the penalty. The greater always includes tlie
less^ and if the fourth article of section 1 be not a limitation, a re-
strictive, affirmative declaration, then the words of which it is com-
posed are ineffectual. They are as idle and empty as the wandering
air.

The man who resigns his office becomes at once a citizen. That he
has held office makes him no less and no more than a citizen. When
the President resigns he is a citizen. When the Vice-President re-
signs he is a citizen. When all civil officers resign they are citizens.
And if they are no longer '' civil officers" they are no more liable to
impeachment than mifitary or naval officers. Unless this construc-
tion is correct, then there is no limitation and the law of impeach-
ment in America is as unrestricted as in England.

In the case at bar, therefore, the respondent, having resigned his
office before the proceedings were commenced, was not liable to im-
peachment. He was a citizen. He was not a civil officer. The mo-
tive with which he resigned is not material. It is the fact alone with
which we are to deal. Nor do I rojg^ard the legal fiction in relation to
fractions of a day as having any significance in the case. Were the
hour of the resignation and of the impeachment both mcertain, and
impossible to be ascertained, it might be just to apply such a rule as
would sustain the jurisdiction ; but it has no appUcation here.

Should a resignation occur after the respondent was legally before
the Senate and on trial, I should have no doubt that the proceedings
could continue and judgment of disqualification be properly pro-
nounced.

The conclusions which I have thus reached appear to me to be not
onlv consonant with the plain intent of the framers of the Consti-
tution, but also in accordance with the spirit ofpopular institutions
and the temper of the age in which we live. When the offender can
no louger endanger the state he should be consigned to the courts for
punishment ; and in all cases of doubtful interpretation in the organic
law of a popular government it is always safe to construe the power
in favor of the lit^rty of the citizen, rather than in favor of the pre-
rogatives of the State.



Delivered May 25, 1876.

Mr. CAMEBON, of Wisconsin. Mr. President, without entering
upon a general discussion of the questions involved in this case, I wiU
state the conclusions at which I have arrived, and very briefly the
reasons which have influenced me in reaching these conclusions.

For a number ofyears prior to March 2, 1876, William W. Belknap
was Secretary of War of the United States.

At the hour of ten o'clock and twenty minutes in the forenoon of
March 2 he resigned his said office, by written resignation under his
hand, addressed to the President of the United States, which resigna-
tion was then and there duly accepted by the President.

After the acceptance of Belknap^s resignation, but qn the same day,
the House of Representatives impeachea him for high crimes and mis-
demeanors alleged to have been committed by him prior to his resig-
nation and while he was Secretary of War. These are the leading
facts of the case ; and the main question raised by the pleadings and
now submitted to the Senate' for decision is this, namely : Had the
House of Representatives constitutional authority to impeach Belknap
after his resignation, and, having impeached him, has the Senate jur-
isdiction to try him upon such impeachment f

This is a question of the highest importance ; not important on
account of the accused, but on account of the principle involved and
the i-esults likely to flow from its decision.

Two theories of the Constitution in regard to impeachment are
maintained.

First. That the provisions which give the House of Representatives
the sole power to mipeach and the Senate the sole power to try im-
peachments confer a power oo-extensi ve with that possessed by the
British Parliament. That the provision which declares that judg-
ment in cases of impeachment shall not extend further than to re-



moval from office and disqualification to hold and enJoy any office of
honor, trust, or profit under the United States, &o., lis nothing more
than a limitation upon the power to punish ; and that when seotioD
4 of article 2 declares that " the President, Vice-President and all
civil officers of the United States, shall be removed from office on im-
peachment of, and con^'iction for, treason, bribery, and other higlu
crimes and misdemeanors," it only declares what the punishment shall
be when the person impeached happens to be the President, Vice-
President, or a civil officer of the United States.

Second. The other theory is that impeachment, as established and
regulated by the Constitution, is intended solely to protect the state

X'nst incompetent or corrupt civil officers by their removal from
e, and to make such removal effectual, disqualification from hold-
ing or ergoyijig any office of honor, trust, or profit under the United
States thereafter.

No other theory has been advanced by any one in this case, and I
therefore assume that there is no other theory, and consequently that
one or the other of these is the true theory and must be accepted as
such.

My collea^e[Mr.HowB] and the Senator from Illinois [Mr. Logan]
each shows in his well-considered opinion that every English subject
at the time of the adoption of our Constitution could be proceeded
against by process of impeachinent.

It follows, therefore, that if impeachment under our Constitution
is as broad as impeachment under the English law, every citizen of
the United States, whether ho be a civil officer or a private person,
can be impeachea for any conduct which in the opinion of tne two
Houses of Congress is a high crime and misdemeanor.

The constitutional provisions in regard to impeachment are in sub-
stance as follows :

FiTBt. The Houae of RepreeentatlYes * * * shall have the eole power of im-
peaohment (Article 1, sections.)

Second. The Senate shall have the sole power to try all impeachments. Judg-
ment in Buch cases shall extend no farther than to removal from office, and du-
qofUifloation to hold office : bnt the party convicted shall nevertheless be subject to
indictment, trial, Jadement and pnnishment, according to law. (Article 1. section 3.)

Third. The President shall have no power to paraon a person convicted upon
impeachment (Article S, section 8.)

It will be seen that section 2 of article 1 declaies in simple but apt
words —
That the House of Bepresentatives shall have the sole power of Impeachment.



Online LibraryUnited States. CongressCongressional record : proceedings and debates of the ... Congress → online text (page 60 of 172)