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In case of the removal of the President from office, or of his death, resignation,
or inability to discharge the powers and duties of the said office, the same shall
devolve on the Vice-President * * *

The President shall, at stated times, receive for his services a compensation.

« » *

Before he enterd on the execution of his office he shall take an oath or affirma-
tion. • ♦ •
The President shall be Commander-in-Chief of the Army and Navy. * * *
The President shall have power to fill up all vacancies that may happen during
the recess of the Senate.

And in the same article the phrase^

The President Vice-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.

It is a great latitude in construction to assume that in the same
article of the Constitution the words '*the President" are used four
or ^ve times as having reference to the person in the office of Presi-
dent, and to no one else, and yet, in another cose in the same article,
to assume that the words 'Hhe President include not only the per-
son holding the office of President but every other person living who
at any previous time has held the office of Presideuc This is the
result to which the supporters of Jurisdiction in this case are driven,
upon the theory that the fourth section of the second article includes
not only the persons in office but all other persons living who at any
time have held either of the offices enumerated or described in that sec-
tion. The substantive members of this section, ^* the President,^' *' the
Vice-President," and ''all civil officers of the United States," are so
connected with each other grammatically, logically, aud by a sim-
ilarity of responsibiUty that the law of impeachment must be the
same for alL Inasmuch as section 4, article % whatever construction
may be put upon it. relates to the President and Vice-President and
all civil officers of tne Government who for the most part are the ap-
pointees of the President, by and with the advice and consent of the
Senate, or of the heads of the several Departments, it would seem that
no more profjer place could be found in the Constitntion in which to
set forth their liability to impeachment in cases of treason, bribery,
or other high crimes and misdemeanors than in the article assigned
to the duties, prerogatives, and liabilities of the President of the
United States. Upon the view which I have been presenting, that
the provisions of section 3, article 1, in regard to impeachment, are
rules merely to be applied to those cases of impeachment for which
provision is specifically made in the fourth section of the second ar-
ticle, there is no difficulty in reaching the conclusion that the phrase
'* Judgment in cases of impeachment shall not extend further than
to removal from office, and disqualification to hold and enjoy any
office of honor, trust or profit under the United States" is limited to
these persons specified in section 4, article 2, who may be impeached
and brought to trial at the bar of the Senate. It follows, also,auid

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necessarily, that the proceedings are limited to persons in office. In-
asmuch as the judgment is mandatory that they shall be removed,
although a discretion is vested in the Senate to disqualify the con-
victed party in the manner provided in the third section of the first
article, it is clear that the impeaching power is limited to the per-
sons specified and classified in the fourth section of the second article.

I submit in conclusion a statement of the case upon the argument
that I have presented.

The power claimed by the friends of Jurisdiction is an uncertain
power, and no writer, either English or American, has ever fixed a
limit to the authority of the British Parliament within that laid down
by Woodde8on,who asserted that all British subjects are liable to im-
peachment. In this debate, however, it has been contended that pri-
vate persons were never so liable in England. This argument is not
sustained bv the precedents, is not in harmony with the authorities,
and it is wholly inconsistent with the claim of the Parliament re-

S Bated in many cases and distinctly set forth in the report of Mr.
urke of 1794. From that report it appears that the authority was
unlimited and that precedents of former Parliaments even were not
binding. But whatever may be the liability of private persons, it is
quite clear that all naval and military officers were not only subject
to impeachment in Great Britain, but that such persons were the
favonte objects of the proceeding. Jurisdiction in this country
brings these officers, whether in commission or out of commission,
alike within the power of the House to impeach and the power of
the Senate to convict and remove from office, thus annihilating one
of the high constitutional prerogatives of the President. In time of
war the exercise of the power would injure the rights or even endan-
ger the existence of the Government.

It is not claimed by any one that there is a specific grant of this
power in the Constitution of the United States, and it must be ad-
mitted that for nearly one hundred years no assertion of such power
has been made except by managers or counsel in two of the early
trials. This claim was neither recognized directly by the Senate nor
involved in the judgments finally rendered. On the other hand, it is
to be said that those who deny iunsdiction in the case at bar so con-
strue the Constitution that civil officers are subject to a jurisdiction
and judgment corresponding exactly to that to which members of the
House of Representatives and Senate are amenable. Expulsion is the
only penalty that can be imposed upon the latter, and that penalty
may M avoided by resi^ation even at the last moment before the
final one in the proceedings. Civil officers, by the process of impeach-
ment, are also liable to removal by the judgment of the Senate, which
also, it is to be admitted, may be avoided by resignation. In both
cases the parties accused are alike liable to indictment, trial, judg-
ment, and punishment in the criminal courts, according to the laws
of the land.

While the penalties imposed upon members of Congress and upon
civil officers are thus shown to be equal, it is to be said that the obli-
gations resting upon Representatives and Senators are even higher in
their character, and their opportuniries for doing the public an ii^ury
by the commission of the crimes enumerated are even greater than
the obligations imposed upon or opportunities open to civil officers.
It is to be said further that the construction given to the Constitution
by those who deny jurisdiction furnishes appropriate use for every
word employed in the Constitution, while, by the construction claimed
bv the friends of jurisdiction, there is no certainty as to the subjects
of impeachment or the judgment that may be rendered in ease of con-

Opiai^M •£ Rlr. C««per,

Delivered May 26, 1876.

Mr. COOPER. Mr. President, the only question before us for decis-
ion arises under the plea of the defendant denying the jurisdiction
of this court to try him upon the articles of impeachment presented
hj the House of Representatives charging him with high crimes and
misdemeanors committed while in office as Secretary of War. The
erimes charged, it is conceded, are such as may be the subject of im-
peachment. They are of the class expressly named in the Constitu-
tion as the subjects of this proceeding. Nor is it denied that if com-
mitted at all by the defendant it was while he held a civil office under
the Government of the United States. But the defense rests alone
upon the assumption that the defendant not now being in office can-
not be tried in this mode of proceeding. The issue being thus nar-
rowed relieves us from the necessity of examining and <&termining
Ike various questions which have been suggested and discussed as to
what character of ofienses were the subject of impeachment at com-
mon law, or under the English government, and 4he persons who
might there be tried for such offenses. It is certainly true, as has
been argued, that we possess no power to try this case unless it is
conferred upon us by the Constitution of the United States. This is
a Government of delegated and enumerated powers, and possesses
such only as are clearly granted by the organic law.

That law is our chart. Its mandate we must obey. Where it is
silent we should not act.

The magnitude of the power sought to be exercised, together with
the results for good or evil which must follow its use to the citizens

of the Republic, affecting as it will the rights and privileges of all
who have held office under the Government, demands for its exercise
a clear and explicit grant of authority. Impeachment calls into use
the highest powers of €k>vemment. It exceeds in importance, be-
canse of the f^ve nature of the offenses cognizable under it and the
exalted position of the culprits arraigned at its bar, all other investi-
gations of alleged criminal misconduct known to civilized communi-
ties. Hence the importance and necessity for the grant of explicit
authority before it shall be used. But if such authority is found in
the organic law then the duty to act is made the more imperative
from tne same weighty considerations. The public weal is for the
time being committed to our care and guardianship, and we should
be careful that we are not unfaithful stewards or unmindful of the
great interests confided to us. The decision we may make in this
case will not only affect the defendant in character and position,
but will embrace within its scope every person who has held, or may
hereafter bold, office under the United States Government. Proceed-
ings by impeachment in this country are for the remedy, if not pun-
ishment, of offenses ** which are of such a nature as to endanger the
safe^ or ii^ure the interests of the United States, and the object of
the Federal Constitution was to provide for that safety and to pro-
tect those interests."

It cannot be denied that the power to impeach for such offenses is
conferred upon the House of Representatives b^ the Constitution.
The same instrument also vests in the Senate the right to try all such
impeachments. Are these rights conferred in express terms under
one article of the Constitution, or are they to be implied nnder an-
other T

If those who find the power under the first article of the Constitu-
tion are correct, then it is broad and ample, unless qualified and lim-
ited by some other provision found in the same instrument. It is
admitted that the Constitution must be construed as a whole ; that
its several provisions must be made to harmonize ; and no construc-
tion given to it is correct which does not reach such result Force
and effect must be ^ven to each provision contained in it. Nothing
was inserted which is meaningless or foolish. It is methodically di-
vided under appropriate titles significant of the subjects intended to
be embraced under each. The right conferred upon the House of
Representatives of the sole power of impeachment is given by the first
article of the Constitution, which provides for the legislative power,
in whom vested, and of what to consist. It is pla^d in the same
sentence with the power of the House to choose their Speaker and
other officers. The right of the House to choose a Speaker is given
nowhere else in the Constitution.

Ever since the organization of the first House of Representatives
under the Constitution, this power has been exercised without objec-
tion from any one. It has always been acted upon, and thus ac-
knowledged to be substantive in character. This being so, why is
not the power to impeach, included as it is in the same sentence, also
a substantive grant of power f What difference is there between
them f Why not act upon the one as is done on the other f The
words used to confer the one are as comprehensive and significant as
those which confer the other. The power of the Senate to try all
impeachments is as broad and comprehensive as the power given to
the House to institute them. I confess my inability to fully compre-
hend the distinction taken by several of my brother judges in this
case, between a substantive and functional grant of power under the

If I comprehend the distinction at all, it is that the former is a vital,
active power by virtue of the grant, whether express or implied^ the
other is merely enumerative, to be afterward defined and vitalized,
and if not so defined and energized remains dormant and useless.
Theone isalivingbody ready tocarry out theobject of its creation. The
other possesses the form of a body, but is without life or active prin-
ciple unless breathed upon through some subsequent provision. I do
not think the distinction exists. Those who do insist that the pro-
visions of the first article of the Constitution, giving to the House
the sole power of impeachment and to the Senate the sole power to
try all impeachments, are functional and draw their vitality from the
fourth section of the second article of the Constitution. Others who
concede the substantive grant of power in the first article yet insist
that it is limited and denned by this fourth section of the second
article. How different the effect given by the two to this last- men-
tioned section. The one makes it expansive and life-giving, the other
restraining and limiting. The words used in this fourth section of
article 2, are not the most apt which our language affords to confer
jurisdiction, if such was the intent of those who used them. If they
were the only words used in the Constitution upon the subject of im-
peachment, no express grant of power to impeach or try impeach-
ments would be conferred by that instrument. Such power could
only be implied. The implication, however, under s^ch a state of
facts, that they were intended to confer jurisdiction only, or to the
crimes specified and against the persons named, would be greatly

But the very necessity which would exist in the case supposed to
give them a jurisdictional meaning, from the absence oi a more ex-
plicit and definite grant, cannot and does not exist now, because- the
grant in such cases is elsewhere in the same instrument expressly and
definitely made. Again, no reference is found in this fourth section
of article 2 to the preceding articles of the Constitution in which,

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the same subject is mentioDed, nor is it necessary in order to give full
meaning and effect to this fourth section, article 2, to call to our aid
any other provision of the Constitution. Full force and effect may
be given to every word used in its construction, and a substantive
and important object, separate and distinct from any before provided
for, be deduced and made effective. The clanse is mandatory, and
commands the court vested with the Important duty of trying the
offenders therein named, on the chorees specified, upon conviction to
enter iudgment as there directed. If the framers of the Constitution
intended to make this a Jurisdictional clause, how much more apposite
would have been the word " may " where ** shall " is now used f

But why should we leave an express grant of power to seek the
same power in the uncertain process of speculation andeonstruction T
Why reject that which is given in unambiguous words and accept
that which is to be found only by implication T I am satisfied this
fourth seotion of article 2 is not jurisdictional at all. Then is it a
limitation upon the Jurisdiction conferred under the first article f

A proper construction of section 4 of article 2 makes it imperative
upon the court to pronounce judgment upon conviction as therein pro-
vided whenever the power to impeach before granted shall be invoked
against the class of persons therein specificaUy named. Not that the
power to impeach the persons named is thereby ^ven, and conse-
quently denied as to all others, but the power having been already
provided as to such persons, as well as others, when called into exer-
cise against the x>er9ons named, shall be proceeded with in the manner
and to the extent described. A different construction would render
tho provisions of article 1 on the same subject superfluous and un-
meaning. The same power in cases of impeachment would exist with-
out as with it. The former construction gives to each provision a use
in furtherance of the general object, an appropriate and useful place
in the mighty machinery of government then being constructed. I
therefore oonclude that the power of the House of ^presentatives to
impeach and of the Senate to try all impeachments is given in the
first article of the Constitution, and is ample and broad enough to em-
brace the case before us, and the power so given is not limited so as
to divest such Jurisdiction so vested in the present case by any sub-
sequent provision of that instrument.

The framers of the Constitution incorporated in it a power which
existed in most if not all of the States from which they came, and
whose delegates they were, limited in many respects from what it
was in the nation from which those States had so recently separated.
It was no new and untried power, but one known and recognized and
provided for by the organic law of the several States.

The Fe<leral Conntltution, like the constitutions of most of the
States, prescribed the extent of the Judgment to be rendered and the
number of concurring votes in the court necessary to convict, but left
the persons subject to this mo<le of procedure and the offenses for
which it may be invoked ns they existed at the timeof the formation of
the Government. The exercise of the power in England as well as in
the original thirteen States which formed the national Union extend-
ed to and embraced all persons holding office under their respective
governments who should commit crimes detrimental to the .public
weal or corrupting to the purity of governmental administration,
whether in or out of office at the date of prosecution. The moment
an officer committed an impeachable offense he became liable to pros-
ecution by impeachnent, and no lapse of time removed this liability.
The Jurisdiction to try attaches upon the commission of the offense,
and so remains, unless divested by some equally positive law. My
conclusion is that this court is vested with jurisdiction to try the de-
fendant upon the articles of impeachment exhibited by the House of
Bepresentatives, therefore the plea of the defendant should be over-

Opini^B •f Mr. Sanlsbnry,

Delivered May 26, 1876.

Mr. SAULSBURY. The House of Representatives has exhibited
articles of impeachment against William W. Belknap, late Secretary
of War, charging him with high crimes and misdemeanors while in
office, and demands that he be compelled to answer the charges thus
preferred against him before the Senate sitting as a court of impeach-
ment. The defendant denies by proper pleas the Jurisdiction of the
Senate to try him upon those charges, alleging that he is and was at
the time the said articles were exhibited a private citizen, and not
liable to impeachment for an^hing alleged to have been done by
him while in office. The question, therefore, upon which we are now
to pass is not whether the charges proferre!d are true, but whether
the Senate «ir rightfully enter into any inquiry in reference to them.

The queettoi^ presented involves to some extent an inquiry not only
into the power of the Senate, but also of tho House of Representatives,
in connection with impeachments. Whatever authority upon this
subject, as upon all others possessed by either House of Congress, is
derived from the Constitution, and it is therefore important to as-
certain the meaning of the provisions of that instrument which relate
to impeachments, the inquiry is attended with some embarrassment;
nevertheless, I have been able to arrive at a conclusion at least satis-
factory to my own mind. In briefly submitting the reasons for the
opinion I entertain, I may be allowed to say that I have no expec-

tation of being able, and no desire, to inflnence the Jud^ent of others.
My only object in the enunciation of my own views is to Justify the
vote which I shall give upon the question now before the Senate.

By section 2, article 1, of the Constitution ** the sole power of im-
peachment'' is conferred upon the House of Representatives, and by
the next section of the same article the " sole power to try all im-
peachments" is granted to the Senate. These provisions, in my opinion,
contain the only warrant of authority to either House to proceed by
impeachment against anjr person whomsoever. All other provisions
of the Constitution relating to the subject are such as regulate tho
proceedings, determine and limit the judgment to be pi'onounce4
in case of conviction, enumerate the persons impeachable, and de-
prive the Prpeident of the power of pardoning in cases of impeach-
ment. In order to determine, therefore, the question now before us,
namely, whether the Senate sitting as a court of impeachment has
Jurisdiction to try the defendant on the charges preferred against him
notwithstanding his resignation. Id is necessary to ascert^ain what was
intended by the framers of the Constitution to be granted to the House
of Representatives by conferring upon it '^ the sofe i>ower of impeach-
ment'' and what authority and Jurisdiction was conferred upon the
Senate by granting to that body ** the sole power to try all impeach-
ments." Upon the right interpretation of these clauses and the as-
certainment of their true meaning and import depend, in my opinion,
the whole question which we are now to decide. It will beobservedthat
impeachment is nowhere defined in the Constitution, nor the extent
of Its application either to persons or to crimes definitely settled and
determined. We must therefore look to other sources for the meas-
ure of the authority conferred upon the two Houses of Congress by
the provisions of the Constitution already referred to.

Prior to the adoption of the Federal Constitution impeachment was
a recognized mode of procedure in this counti^ against public offend-
ers, and had been incorporated into the constitutions of all the States
which were represented in the convention that formed the Federal
Union, or at least in all the States that at that time had adopted con-
stitutions. In none of the State constitutions had it been defined,
though prescribed as the appropriate remedy for the prevention of
official crimes. In the first fundamental law of my own State, adopted
on the 20th day of September, A. D. 1776, a provision was inserted for
the impeachment of persons holdin^official relations to the St-ate guilty
of high crimes while in office, and in most, if not all, the other States
were constitutions formed about the same time with similar provis-
ions. In none of these early State constitutions is the power of im-
peachment or the extent of jurisdiction thereunder defined. Nor had
there been any practical application of the power of impeachment in
any of the States then forming the Union. We must therefore look
to other sources to ascertain the nature and extent of the powers and
jurisdiction which may be exercised under the provisions of the Fed-
eral Constitution to which reference has been made as the source of
congressional authority.

To ascertain their meaning I apprehend recourse must be had to
the history of impeachments in England, from which we have bor-
rowed not only the remedy itself but the mode of proceeding therein.
I shall not attempt a recital of the cases of impeachment that have
occurred in that country, but content myself by saying that with few
exceptions, if indeed there are any exception, it was a proceeding
intended to reach and punish high official crimes, <uid was applied to
persons indiscriminately in and out of office or public station who
had been j^uilty of offenses at any time while charged with publio
trust or while holding some official relation to the government. Hal-
lam, in his Constitutional History of England, says that —

The earliest instanoe of pctrliamentary impeachment or of a solemn accusation
of any indiTidnal bv the Commons at the bar of the Lords was tliat of Lord Lati-
mer in the year 1376.

Impeachments occurred at various periods in Parliament subse-

Online LibraryUnited States. CongressCongressional record : proceedings and debates of the ... Congress → online text (page 64 of 172)