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which by the Constitution it was designed should be secur^ to the
two Houses of the Congress in their exercise of this great and " sole"
power of impeachment, that under no construction ^ould their juris-
diction or method of proceeding be subjected, directly or indirectly,
in any degree to the action or influence of the executive branch.

It is the national self -protection against executive encroachments or
malfeasance, and in its initiation and enforcement must carefully be
kept out of the domain of executive power or control, for the correction
of whose wrong it was especially designed. If then the power of the two
Houses of the Congress is to be maintained without interference or in-
fluence on the part of any officer of the executive branch, what shall
be said of that construction of the Constitution which nves to the
guilty official himself the power at will to keep himself within or
place himself without the jurisdiction of the two Houses of Congress,
and submit to be impeached only with his own consent f

It is difficult with a grave face to state the proposition that a culprit
shall not only raise the question as to the juriscuction of the tribunal
assuming to try him, but decide the question himself at his own will
and pleasure, carrying his discharge in his own pocket, to be produced
at will, as in the present case was sought to be done by a resigna-
tion, on the very stroke of the hour when the resolution to impeach
him was about to be adopted by the House of Representatives ; in
other words, that a plea to the jurisdiction of a court is to be set-
tled, not by the law and facts as they existed at the time of the
commission of the offense, but is to be decided by the accused party,
and not by the court — ^is to be always subject to the willingness of the
accused to be tried at all.

To admit such a proposition in a case like the present would lead
to this result : that any guiltv official being, as almost invariably is
the case, the sole custodian of the proofe of his own misconduct, and
having by virtue of the powers of the office he was betraying the very
means and the only means of concealment, should keep concealed not
only his guilt but all means of its detection, until the expiration of his
term or his resignation at any time convenient to hims^, and should
then leave the office vacant and for the first time open to inspection ;
that he should in violation of every principle of law and justice be
suffered to take advantage of his own deliberate wrong; be enabled
to change an unpardonable offense to one within the power to pardon
given to the President.

The high crime and misdemeanor of which W. W. Belknap has been
impeach^ is an offense against the whole people of the United States ;
it IS a " public offense " in the strongest, mllest sense of the word.

It is not doubted that the crimes sQlegedin the articles of impeach-
ment are "high crimes" and impeachable under the Constitution —
it is admitted under the pleadings as they now stand, and for the
purpose of deciding the question before us. that Belknap, while Secre-
tary of War, and by the corrupt use oi his power as Secretary of
War, did commit high crimes— the offense being nothing less than
the sale for money, of post-traderships, crimin^y disregarding his
duty as Secretary of War, and basely prostituting his h^h office to
his lust for private gain, to the great damage and ii^ury of the offi-
cers and solmers of tne Army of the United States as well as of emi-
grants, freighters, and other citizens of the United States, against
public policy, and to the great disgrace and detriment of tne publio

But it is argued in his defense that, having removed himself from
the office by his own act of resignation, which act, although promptly
assented to by the President of the United States, is not thereby
enforced or weakened in its legal results iw to Aim, (Belknap,) he ia
ipao fado beyond the jurisdiction of the Senate, and that the judg-
ment expressly authorized by the Constitution of "removal and du-

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qoalificatioD from holding any office of honor, tmst, or profit " under
the United States cannot oe entered and enforced asainst him.

Can it be that a person charged with crime can tnns at will place
himself within or withoat the range of jadicial authority?

The jndKment of disqualification to hold and enjoy any office under
the United States would seem to contain in itself the removal of an
incumbent, because it forbids the party convicted to hold or enjoy
tmif office, therefore, in presenH as well as infulwro. The final consum-
mation ox long-contemplated crime could be postponed until the last
hour of his official term, until just enough of official power remained
to make guilt successful, yet not enou^ to compel it to respond to
the demands of 1 astioe.

The train could be laid and the slow-match lighted with close cal-
culation, and the incendiai^ retire to the place of safety outside the
Jurisdiction charged with his punishment.

"Bemoval" from the particular office then held, on the contrary,
does not include disqualification thereafter to hold some other office
or offices, or the same office for another term. If, as has been argued,
removal was the sole object of impeachment, then, that once accom-
plished, the more serious and enduring ps^ of the Judgment author-
ized by the Constitution could never m executed, because no officer,
i. e. person holding office, existed upon whom this portion of the sen-
tence could operate.

As reasonably could it be said, that because in the verbal arrange-
ment of the Constitution the word '^ removal ''precedes *' disqualifica-
tion.'' the rendition of removal, being the first port of the judgment,
would make it impossible to proceed any further.

But the Constitution in the clauses conferring jurisdiction in cases
of impeachment (article 1) does not require *^ an officer" or person in
office to be the subject of the judgment of the Senate. The individ-
ual under impeachment is termed in one clause '* a person," in another
** a party," and in the enumeration of the classes whose removal from
offices upon conviction for certain offenses is made imperative we find
'' the President of the United States, the Vice-President, and all civil
officers." So that nothing in the Constitution expressly or impliedly
requires the party against whom judgment of the Senate of disc^uab-
fication is rendered to be in office at the time of trial or conviction.

Upon what principle of reasonable construction, may it be asked,
shall the judgment of the Senate not extend so as to embrace dis-
qualification of the guilty party to hold office f

The Constitution gives the power in plain words : '' The judgment
shall not extend further." That is, it may extend so far as to remove
and disoualify— omne majus in se coniinet mintts; if the judgment may
include both removal and disqualification, it may exclude either or
both^ except as provided in section 4, article 3.

It IS clearly in the power of the Senate in passing judgment to pro-
ceed to the outer boundaries of the power so granted, or stop short at
any point within it.

In the historical view of the usage and practice of impeachmentsin
the country from which we have derived the institution, no case has
appeared of which I have knowledge wherein the power to impeach
and tnr an ex official for an offense impeachable when it was com-
mitted, was ever denied or questioned. Such was the admitted and
frequently-exercised power of the British House of Commons up to
and at the time of the importation of the institution of impeachment
into the Government of the United St^ates, and when the correspond-
ing branch of the Legislature under our system—the House of Kepre-
sentatives — was invested with the general jurisdiction of the subject
by the grant to them of the " sole power of impeachment," while to
the Senate was confided the " sole power to try all impeachments."

Taking the law and usi^es of impeachment as they found it in the
mother-country, the founders of our Government proceeded to mould
it into harmony with the new and more liberal system they were
seeking to establish. They made certain important changes in the
way of restriction and also by enlargement of the relative powers of
the legislative bodies, respectively accusatory and judicial.

And it is safe for us to assume as a canon of criticism upon this
part of their work that, wherever they did not expressly or by the
most necessary implication change the law and practice of impeach-
ment as it then existed in Great Britain, they intended to maintain
it as it then was, unimpaired in all its features.

Let us notice the changes expressly made.

In Great Britain the monarch could not be impeached.

In the United States the chief of the executive branch, the Presi-
dent of the United States, was made liable to be impeached.

In Great Britain the royal pardon, although not pleadable to abate
impeachment, could relieve against all penalties of impeachment, and
thus absolve the offender at the will of the king.

In the United States the power of the President to pardon was not
permitted to extend to cases of impeachment.

In Great Britain the judgment of the House of Lords was limited
in itA nature and, extent, only by their discretion.

In the United States the judgment of the Senate was forbidden to
extend further than removal from office and disqualification to hold

In Great Brit>ain a trial and conviction on impeachment oould be
pleaded in bar of a second trial for the same offense.

In the United States it was expressly provided that judgment of
conviction on impeacnment should not operate as a bar to trial and
punishment at law.

9 I

In Great Britain a bare migority of the peers was sufficient to con-

In the United States two-thirds of the Senators present were re-
quired to concur in a judgment of conviction.

Bills of attainder and ex post facto laws, species of public remedy of
great antiquity and frequent recourse, well known in parliamentary
prosecutions in Great Britain, were expressly forbidden by section 9
of the first article of the Federal Constitution.

Thus we find the founders of our constitution of government did
carefully consider and weigh all the features of the English institu-
tion of impeachment as it then existed, with careful reference to the
scope of powers and their adaptation to the new Government they were
arranging; and it seems to my mind a necessary consequence lor our
acceptance that, except as they expressly altered and amended it, it
now remains and must duly be exercised by the House of Representa-
tives and the Senate of the United States.

Upon what presumption of reason or justice, by what allowable
construction can we decide that the House of Bepresentatives or the
Senate of the United States are to be deprived of their respective pow-
ers to impeach and to hear and determine impeachments in cases where
the guilty party who committed high crimes when in office has gone
out of office by resignation before the resolution to impeach him has
been adopted by the tribunal possessing the '* sole power f " Such
power did confessedly belong to the impeaching power of the gov-
ernment from which we imported the institution and was there fre-
quently exercised and never in any case questioned. By what au-
thority can we subtract this important feature of that power which
our fathers left untouched within the j urisdictiou they delegated to the
two Houses of Congress f

When the first case of impeachment under the Federal Constitution
occnred— that of Blount, a Senator from the State of Tennessee who
had been expelled from this body — the question of Jurisdiction arose,
and was in substance confined to the issue whether a Senator of the
United States was a civil officer of the United States or the officer of
a State, and the decision was that he was not a civil officer of the
United States within the meaning of the Constitution, and therefore
not liable to impeachment by the House of Representatives. But In
the course of that ably-argued case it was stated by the prosecution
and admitted by the counsel for the defendant that a party could not
escape impeachment for crimes committed while in office by resigning
his office.

Mr. Bayard said :

It is also alleged in the plea that the party impeached is not now a Senator. It
is enough that he was a Senator at the time the articles were preferred. If the
impeaohinent were regular and maintainable when preferred, I apprehend no sab.
sequent event grounded on the willful act or caused by the delinquency of the
party, can yltiato or obstruct the proceeding. Otherwise the party, oy resignation
or tne commission of some offense which mwited and occasioned his expulsion,
might secure his impunity. This is against one of the sagest maxims of the law,
which does not allow a man to derive a benefit from his own wrong.

Mr. Dallas, for the defendant, said :

There was room for argument whether an officer could be Impeached after he
was out of office: not by a voluntary resignation to evade prosecution, but by an
adversary expulsion.

Mr. Ingersoll, for the defendant, said:

It is among the less objections of the cause that the defendant is now out of office
not by resignation. I certainly shall never contend that an officer may first com>
mit an offense and afterward avoid punishment by reslgniog his office ; but the de-
fendant has been expelled. Can he be removed at one trial and dlsqnalifled at
another for the same offense? Is It not the form rather than the substance of a
trial f I>o the Senate come, as Lord Mansfield says » Jury ought, like blank paper,
without a previous impression ou their minds ? Would not error in the first sen>
tence naturally be productive of error in the second instance f Is there not reason
to apprehend the strong bias of a former decision would be apt to prevent the in-
fluence of any new lights brought forward upon a second triaL

In the light, then, of history, the record of decisions, and examina-
tion of the plain provisions of the Federal Constitution, how can we
doubt that the power to impeach a man, when out of office by his own
resignation for nigh crimes committed by him when in office, was not
subtracted from the general grant of power over the subject which
our fathers so deliberately placed in the Constitution T

I do not consider it necessary to repeat the cumulative evidence in
support of the views I have stated, which is contained in the report
by Mr. Madison of the debates in the convention which framed the
Constitution. They have been too often referred to by the managers
on the part of the House and in the opinions delivered in this bod^ to
make further citation needful. Nor do I reproduce the illustrations
or restate the argumente already drawn so well and elaborately from
the constitutional provisions of the States of Delaware, Pennsylvania,
Virginia, and others, expressly giving the power to impeach men
when out of office for crimes committed by them when in office.

Does it not seem a most unusual construction to give to an express
limitation upon a power the effect of an enlar^ment, and to hold
that when a State constitution has expressly limited impeachment
to two years after the party accused has ceased to hold the office in
which he was guilty of misconduct, it therefore implies that no
power so to impeach would have existed but for the limitation f

Jurisdiction on the subject is not conferrd by the fourth section of the
second article of the Constitution, which is a mere cautionary addition
to the provisions of article 1 by making removal from office im-
perative in certain enumerated cases and for certain offenses, but in
no degree and not even by remote Implication impairing or restrict-

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ing or qaalifyinff tlio general grant of juristliction before contained
to the House of liepi-esentatives of the ** sole power of impeachment,"
and to the Senate of the '' sole power to try all impeachments." And in
Blount's case such was the view stated on the part of the House of
BepresentativeSj and not dissented from by counsel for the defendant.
Mr. Bayard said :

The Hue of the lav of impeaohraent ia to paniah and thereby prevent oflfenses
which are of mioh a nature an to endanger the safety or injure the interoot of the
TJnited States; and the otject of the Federal Constitution was to provide for that
safety and to protect those interests. Such offenses may be committed as well by
persons out of office as by persons in office ; and althoujeh the punishment can co
no further than removal Mid dianualiflcaUon, which restriction was perhaps wiselv
introduced iu order to prevent those abuses of the oower of impeachment which
had talcen place in another coiuitry, yet it nmy often oe extremely important to pre-
vent such offenders from getting into office as well as to remove them when they
are in ; and it ia therefore aa conaiatent with the policy of impeachmenta and the
principles of the Fe<leral compact to punish them m the one case as in tlie other.

The learned counsel for the defendant have adduced many of the State constitu-
tions to show that the States have in their own constitutions restricted the power
of impeachment to official persons and official oflfenses ; from whence, according to
them, it ought to be inferred that the States, in ratifyius: the Federal Constitution,
intende<l tlutt the power of impeachment which it contains should be restricted in
the same manner. But, Mr. President, I cannot discern how this inference is war-
ranted. The very contrary I should suppose ought to be inferred. It must be re-
membered that in the State eonstitntions the power is expressly limited ; and that
terms are employed very diffwent from those to be found in the Fedeiul Constitu-
tion. This proves that where ihe States intended to limit the power, as in their
own constitutions, they employed express words for that purpose : from whence it
may surely be inferred that when they took the Federal Constitution, without any
such express words, they intended to take the power of impeachment alone with it>,
without any such limitation. It must also be remarked, that the convention which
fruned t^e Federal Constitution was composed of memoera from each State, who
roust have understood their own State constitutions, and the limiU^ons on this
subject which they contain. Had they intended to limit the power of impeach-
ment in a similar manner, they would no doubt have done it by express words, aa
iu their reapective State constitutiona.— J.Mna<« of Oongrt8$^ Fifth Congress, voL 3,
pages 2399, SUM).

The Constitution has said who shall have the power to impeach and who of try-
ing impeachments. It has also limited the extent of the punishment. But it has
not descrilted the persons who shall be the objects of impeachment, nor defined the
casea to which the remedy shall be confined. We cannot do otherwise, therefore,
than presume tliat upon these points we are designedly left to the regulations of
the common law. Sir, in the very tbrenhnld has not thfs law given us the founda-
tion upon which we stand ? Where have we looked for the form of the pleadings
which has brought the present question before the court t And if, sir. a Question
of evidence should arise, as happ«^ned upon a former ocoasion, should we uesltate
as to the law which ought to determine its competency ? If we were asked whether
a greater looseness in pleadings on impeachment were not allowetl than in suits at
law, we should answer in the affirmative ; and if it were inquired whether the rules
of evidence were more lax. we aliould answer in the negative ; and in such opinions
I trust we should not be contradicted by the learned counsel of the party impeached ;
and yet, air, tlie opiniona could alone be collected from the rulea of the common

It ia perhaps worthy of observation that even as it regards thc^e persons who
are clearly liaole to impeachment, there ia no direct provision which aubjecta them
to it Thua, in the fourth aection of the aecond article, which haa the closest con-
nection with the point It has not said President, Vice-President, and civil of-
ficers, shall he liable to impeachment; but, taking it for granted that they were
liable at common law, has introduced an imperative provinon as if* their removal
upon conviction of certain crimes. — Annala of OongrtMy Fifth Congreaa, volume 3,
page 2253.

Indeed, it would seem necessary to sustain the proposition that the
Jurisdiction of the Senate to try an impeachment depended upon the
resignation or retention of his office by the alleged offender, at his
own will, that clauses giving sole power to the House to impeach
should be supplemented by the words '' provided the party accused is
willing to be impeached."

Such would be the effect of sustaining the defendant's plea in the
case before us. The pleadings before us disclose an impeachable
offense to have been committed, which I have heretofore described,
using the language of the articles of impeachment:

That, having thus committed an impeachable offense, the said Bel-
knap resigned his office, and on the8ameday,andafterthe]ap6eof afew
hours, the^ House of Representatives, upon report of one of its stand-
i g committees, who for several days previous had taken cognizance
of the offense, and been engaged in taking testimony, adopted a reso-
lution to impeach him. This impeachment has been duly and for-
mally presented by the House to the Senate, who, sitting as a court
duly organized under oath, now consider the same, after full argu-
ment by the managers on the part of the House and counsel on be-
half of the defen(iant.

Any argument of the danger of this proceeding to the safety and
rights of individuals is just afi applicable to persons in office as to
][>er8ons out of office. OnpresKion and ii^jnstice are just as probable
and as much to be dreaded by office-holders as ex officials. The incen-
tives and motives to such action would be the same in the case of one
aa the other. Indeed the desire to remove an opponent from his office
might well constitute the sole incentive.

Shall the crime be punished ; and who shall be subjected to the pen^
alty f Of the identity of the guilty person there is no qnestion. The
offense remains "unwhipt of justice;" and must it remain so for-
ever! And must the American people be deprived of the protection
against the fiossibility of repetition of this crime against them and
their Government by this same party because he has resigned the
office since his commission of the offense and immediately upon its
detection f This would be to deny justice ; and yet " to establish jus-
tice" was one of the declared objects for which the Constitution we
have sworn to support was onlaiued and established.

The proceedings by way of impeachment are not adapted for ordi-
nary offenses or ordinary officials. It is an extraordinary proceedlog

to meet extraordinary offenses, especially dangerous to public wel-
fare and safety.

The liest and most justifiable object of public punishment is to
prevent repetition of offenses by making public examples. The end
sought is justice, not vengeance ; to protect society, and not merely
inflict suffering on the criminal.

The proceeding is too cumbersome, dilatory, and expensive to be
lightly undertaken.

Mr. Justice Blackstone styles it " the trial of great and enormous
offenders, whether Lords or Commons, * * * by the most solemn
grand inquest of the whole kingdom."

The two great bodies of the Federal Legislature could not in the
nature of things find time for frequent trials of this nature to the
necessary exclusion of their legislative business. It is only in such
cases as the i)resent, when a great public example in the trial and
punishment of a great public offense is believed by the body having
the "sole power" of impeachment, to be needed for the public safe-
ty, for the protection of the integrity of the Government, then, when
this high discretion has been exercised by the department of the
Government having the sole power, in a case like the preseuti pre-
senting an impeachable offense committed by a person clearly im-
peachable when he committed it, I cannot doubt the power and duty
of the Senate to take jurisdiction and proceed regularly and duly
to the hearing and determination.

It is my jud^ent that the plea of the accused to the Jurisdictiou

Online LibraryUnited States. CongressCongressional record : proceedings and debates of the ... Congress → online text (page 62 of 172)