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quent to that time, but in very few, if any, instances has it been ap-
plied to any but persons who were or who had been in some way
charged with official duty. Indeed at one time the House of Lords
refused to try an impeached commoner, on the ground that they were
not compelled to give Judgment against any but peers of the realm.
This refusal on the part of the House of Lonls shows conclusively
that at that time no person other than those high in rank and station
could be proceeded against by impeachment for any offense.

The Lords subsequently modified their views on this point and en •
tertained complaints against persons inferior in station to themselves,
but I am not aware of any instance in which the attempt was made to
impeach a private individual. If such instances occurred at any time
it must have been before the powers of Parliament were well under-
stood. We all know that in the early days of English history the rights
and powers of Parliament were not clearly defined ; ana it may be
that excessive authority was at times claimed and exercised by both
Houses of Parliament, and private persons subjected to their control.
The constitution of England and the powers of Parliament did not
reach their present well-detined limits in a day, but became settled
and marked by centuries of time. To whatever extent, therefore,
the remedy or process of impeachment may at any time have been
carried, whatever may have been the character of the crimes or the
persons to which it was applied, certain it is that at tho time our
Constitution was adopted it was understood, both in England and in
this country, to extend only to such persons as were or had been in
civil office, and who were or had been guilty of some high official

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crime or breach of public duty. No instance can be fonnd of its ap-
plication otherwise for a long time prior to the date of our Consti-

Nor was any such unlimited power claimed by the British Parlia-
ment. It was asserted by the learned counsel for the defendant in
this case, and has been repeated in argument by Senators, that pri-
vate persons who had never held any public trust were liable to im-
peachment in England, and that, if the Jurisdiction of Parliament
over persons was held applicable to imi)eachments in this country,
every American citizen is liable to impeachment. No greater mistake
could be made. Trial by Jary is the birthright of Euglishmen, and is as
well secured by Magna Charta aa it is by our own Constitution. There
may have been a few instances when this right has been denied, but
no instance of its denial can be found in that country more flagrant
or inexcusable than recently occurred in this country, when a woman,
believed by many to be innocent of the crime with which she was
charged, was tried by a military commission and condemned and ex-
ecuted. The mistake arises from a very erroneous idea of the power
of the British Parliament. There are limitations on the power of
Parliament which are as well defined as are the powers of Con-
gress, and eqnally as well observed. In the exercise of legislative
lunctions Parliament may be omnipotent, but in the exercise of ju-
dicial authority no such omnipotence is claimed. Its jurisdiction aa
the highest court of the realm is as clearly settled as the Juridisction of
the court of King's Bench. It takes no cognizance of the crimes of
private persons, but leaves them to be tried by the courseof thecommon
law, dealing in the exercise of its criminal jurisdiction only with pub-
lic offenders. This view of the jurisdiction of Parliament in impeach-
ments is fully sustained^ in my opinion, by the remarks of Blackstone
in the fourth book of his Commentaries, page 259.

Nor does impeachment by the practice of Parliament now extend,
nor has it for a Jong time extended^to offenses committed by military
and naval officers holding no other relation to the Government. It
may be that peers of the realm and others connected by rank and
station with the management of public affairs, holding high commis-
sions in the army or navy, are subject to the jurisdiction of Parlia-
ment, and liable to be tried by impeachment : but such liability arises
from their relations to the public, indcpenaent of their connection
with the military ornaval service of the country. Military men holding
no other relation to the government are subject to military law, and are
tried by courts-martial in Great Britain, as in this country, for offenses
cognizable and punishable by such laws, and this was the case long
pnor to the f< rmation of the Federal Constitution. A noticeable in-
stance might be cited in the case of Admiral Byng, who was tried by
court-martial in 1757, just thirty years before the Constitution was
formed, and unjustly condemned and executed. He had been placed
in command of a squadron of ten ships-of-the-line, and ordered to the
Mediterranean to re-enforce and strengthen the forces in Minorca.
He was advised of the inefficiency of his outfit and of the superior
strength of the French fleet, which had already landed a heavy force
and reduced nearly the whole island ; but, nevertheless, he endeav-
ored to obey his instructions, and encountered the French vessels su-
Serior in number, and, after a vigorous engagement, ending without
ecisive result, both souadrons withdrew. Complaints were made
by the people of Great Britain against both the admiral and the min-
istry for the failure of the undertaking, and the ministry, to protect
itself iiom centre, caused the fCdmiraf to be tried as stated, and, in
obedience to its wishes, he was condemned, and suffered death. This
instance of the trial of a distinguished naval officer by court-martial, so
recent and so unjust, was known to the membersof the convention that
framed our Constitution. They knew that impeachment did not extend
to such officers^ but was applied solely by the practice in Parliament to
offenses committed by persons holding civil offices under the govern-
ment. They were as familiar with the application of impeachment
as we are. They knew as well the extent of its application to per-
sons and to crimes as we know to-day, and they intended by the pro-
visions of sections 2 and 3 of article 1 of the Constitution to confer
precisely the same power and jurisdiction upon Congress that was
exercised in England by Parliament, save only as it was limited by
express provisions in the Constitution itself.

The investiture of Congress with this power of impeachment is made
in apt and fitting terms. The words employed are " the sole power
of impeachment "and ** the sole power to try all impeachments." It
is difficult to imagine how clearer, stronger, or broader expressions
could have been used to convey authority or jurisdiction, or now they
could have been so employed without an intention to confer ux)on
Congress not only the exclusive, but the most ample, power of im-
peachment ; upon the House of Representatives the fiul and unre-
stricted authority to impeach by formal accusation, and upon the Sen-
ate full and complete jurisdiction to try and determine the truth of
the accusation. The word ** power " is perhaps the most comprehen-
sive and appropriate word that could bo employed to confer author-
ity, and was used by the convention in the same sense and with the
same effect in the sections under consideration that it was intended
should be given to it in any other part of the Constitution where it
was employed to express a delegation of authority to Congress. It
is true that other clauses of the Constitution which I shall hereafter
notice in certain respects limit and regulate the power thus clearly
and broadly given ; but without such restrictions and regulations the
authority of Confess would be as absolute and unlimited in impeach-
ments as it is in the Parliament of Great Britain.

I now proceed to notice the limitations found in the Constitution
upon the i>owerof impeachment granted 'to Congress in the first
article. It will be observed that whatever restrictions exist upon
the power apply exclusively to the Senate sitting for the trial of an
impeachment and do not touch the power confemd upon the House
of Kepresentatives to impeach. It will also be further observed
that they principally affect the judgment to be rendered upon con-
viction, and in no sense restrict the jurisdiction of the Senate to try
the party accused. The provisions of the Constitution requiring the
Chief Justice to preside when the President of the United States
shall be on trial and that the Senate when sitting for the tiial of an
impeachment shall be on oath or affirmation can in no sense be re-
garded as restrictions or limitations upon the power of the Senate or
as in any way affecting its jurisdiction to try an accusation ; they
simply regulate the proceedings upon the trial, nothing more.

Two limitations upon the power granted to the Senate are found
in section 3 of article 1 of the Constitution, and in my opinion these
are the only limitations upon the power found in that instrument.

The first of these, if indeed it can be properly considered a limita-
tion of the power at all, is a restriction on the xH>wer to convict. It
is in these words :

And no person ahaSi be convicted without the ooncnrrence of two-thirds of the
members present.

This provision was doubtless inserted for the greater protection of
persons accused, and was intended to exclude the possibility of a con-
viction without the clearest proof of guilt. Without this provision a
bare minority of the members present would have been sufficient to
convict, and it may therefore be regarded as in some sense restrictive
of the power of the Senate, but aa in no manner affecting its jurisdic-
tion to try a person accused in due form by the House of Represent-

The only remaining restriction upon the power conferred upon the
Senate is that which refers to the judgment to be rendered:

Judgment in cases of impeachment shall not extend farther Uian removal from
office, and disqaallflcatlon to bold imd ei^oy any office of honor, trusts or profit un-
der tbe United States ; but the party convicted shall nevertheless be uable and
subject to iudicfment, trial. Judgment, and punishmentt according to law.

This is clearly a limitation upon the judgment to be rendered, and
was inserted for that pnr|>o8e. The House of Lords in England were
not thus restricted in the judgment which it could render m cases of
impeachment, but it pronouncedthe judgment prescribed by the law
of the land as the punishment for the offense of which tbe party was
fonnd guilty ; and the judgment thus rendered was a complete bar
to further prosecution in the criminal courts. The idea seems to pre-
vail with some persons, and has been more than intimated in the dis-
cussion of this question, that the House of Lords could impose what-
ever punishment it might see proper upon the person convicted on
impeachment. This is a very erroneous idea. It could inflict no
other punishment than such as had been previously prescribed by law
or which the common-law courts could and would have been bound
to inflict for similar offenses. The judgment, however, of the House
of Lords might go the extent of the law ; and I ai>prenend that but
for the provision of the Constitution under consideration, and the
limitation it prescribes, the judgment of the Senate upon conviction
on impeachment could haye gone to the same extent and could have
been pleaded with effect in any further prosecution in the courts for
the same offense.

The framers of our Constitution saw proper to limit the ludgment
of the Senate so that it could not go beyond removal and aisqualifl-
cation, and then remit the person convicted to the criminal courts to
be dealt with according to law. It will be observed that in the clause
under consideration removal and disqualification are not made manda-
tory upon the Senate, but are left within its discretion. The judg-
ment shall not extend further than removal and disqualification, but
need not go so far. It might have been a judgment of censure, or of
suspension, or of removal without disqualification. The clause was
intended to limit the judgment, not to prescribe what it should be.

Neither of the limitations to which Ihave referred affect in any
way the jurisdiction of the Senate to try a party impeached, and do
not therefore touch the (question now before the Senate. These are
all the restrictions contained in the Constitution upon the power of
the Senate in the trial of impeachments, unless there is some limita-
tion or restriction found in section 4 of article 2, which it is claimed
by some contains both an affirmative grant of power and a limitation
upon its exercise. ^

We have already seen that tbe power of impeachment in its am-
plitude is conferred by the second and thinl sections of article 1 of
the Constitution. Does the fourth section of article 2 in any way en-
large that power or confer jurisdiction upon the Senate not already
possessed f That it contains no express grant of power is admitted ;
and it is difficult to see how an express grant conferred in the clearest
and most ample manner can be enlarged by implication. The lan-
guage of the section is :

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 or misdemeanors.

What authority is given by this language either to the House of
Repi-esentatives or to the Senate to proceed by impeachment against
any one f Certainly it will not be contended that standing alone,
unconnected with other provisions of the Constitution, it authorizes
the Senate to take cognizance of official misconduct or summon to ita

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bar the most guilty official offender. If the section confers jorisdic-
tion, may I not inquire upon what department of the Qovemment is
it conferred f It is not conferred in terms upon the Senate ; and from
the language employed, if this was the only provision relating to im-
peachment, jurisdiction might be exercised with as much propriety
by any other department of the Government as by this body.

Congress nor neither branch of Congress can rightfully claim or
exercise any power which is not expressly granted to it, or which is
not essential and necessary to carry out an expressl^r-granted power.
It would therefore be a dangerous doctrine to maintain that Congress,
in the absence of any express grant of power ui>onany ^ven subject,
could assume to exercise such power m>m an implication onl^. So
that, if this fourth section of article 2 were the only provision in the
Constitution referring to impeachment, I should deny that Congress
had any authority upon the subject at alL The defendant mignt in
such case interpose very properly a plea to the jurisdiction of the
Senate and defy its power either to try or give judgment against him.

This 'section confere no jurisdiction over nenons not impeachable
under other ])rovisions of the Constitution. We have already seen that
by the practice of Parliament civil officers and persons holding posi-
tions of public trust were impeachable and that the same authority
of impeachments was conferred by the first article of the Constitu-
tion upon Congress that was possessed by Parliament, except as it
was expressly Umited in the instrument itself. Neither the enumer-
ation of the persons impeachable nor the offenses for which they
could be impeached in the section can be construed as conferring or
enlarging the jurisdiction of the Senate, for without such enumer-
ation the pei-sons therein named would have been impeachable for
any of the crimes mentioned in the section. If the provisions of the
fourth section of the second article had been intended to confer or
enlarge the jurisdiction of the Senate, they would have been inserted
among the grants of power to Congress, and not in another part of the
instrument relating exclusively to the executive branch ox the Gov-
erment. The men who made the Constitution were not novices, but
understood fully the importance of discriminating clearly between
tlie powers of the different departments of the Government. Hence
when power was given to Congress it was so declared in express
terms and so in regard to the executive and judicial branches of the
Government, to make the line of dcmarkation if possible still more
clear the powers conferred upon each department were placed in sepa-
rate articles of the Constitution.

The Constitution must be construed by the same rules of ooustruc-
tion that are applied to other instruments and its meaning ascertained
by giving to each provision the effect it was designed to have. The
object pr(»poeed by this section (section 4, article 2) is no less obvious
from the language employed than from the debates in the convention.
The purpose intended was to insure the removal and disqualification
of the President, Vice-President, and other civil officers if convicted
k on impeachment while in office. By the provisions of section 3 of arti-
cle 1, as I have already stated, it was left to the discretion of the Sen-
ate to remove and disqualify the guilty incumbent or not, and this
fourth section was inserted to take away that discretion and render
the removal and disqualification certain. It was not intended to con-
fer jurisdiction or in any way enlarge the jurisdiction idready con-
ferred upon the Senate. It was inserted for no such purpose and can
have no such effect.

It has been insisted and urged as an argument in favor of the ju-
risdictional character of this section that without its provisions the
President of the United States could not have been impeached for
any official misconduct. This is a great mistake, arising doubtless
from the fact that in England the king was not imi>eachable by Par-
liament. The kingly office is a very different office from that of the
President of the United States. The latter holds his office only for a
limited time and derives his authority from the people, to whom he
is always responsible; whereas the king reigns independently of his
subjects and by right of inheritance, responsible neither to the people
nor to Parliament.

By turning to section 3, article 1, it will be seen that the Constitu-
tion had already, if not expressly at least by implication, provided
for the impeachment of the President speciaUyby requiring the Chief
Justice to fireside when he was on triaL Without, however, any
special provision he would have been liable to be impeached for offi-
cial crimes under the general power of impeachment conferred upon
the House of Repreeentativee, and could have been tried by the inn-
ate as any other civil officer.

Nor in my opinion does this fourth section operate as a limitation
upon the jurisdiction of the Senate in any respect. It has been in-
sisted in argument that the words *' civil officers'' used in this section
apply only to persons actually in office, and that therefore the juris-
diction of the Senate in the trial of impeachment is limited to ofacials
incumbent at the time of the trial. If the promises were admitted,
the conclusion does not necessarily follow. If it were admitted that
the term '^ci vil officers'' as used in this section applies exclusively to
the incumbents of office, and their removal and disqualification made
mandatory upon oonviction, it does not follow that persons who have
held civil offices under the Government and been guilty of the offenses
named in the section are exempt from liability to impeachment and
to disqualification if convicted.

But I am not prepared to admit that these words are used in a sense
■o restricted and narrow as is claimed. In their broader signification

they embrace all persons who have held office and been guilty of the
commission of official crime therein. It is in this broader sense that
the same words aro used in several statutes which provide for the
punishment of official misconduct. No question has been made in the
courts that the appellation of civil officers used in these statutes does
not apply as well to persons who have been removed from office after
their offenses have been discovered as to incumbents. Indeed, to con-
fine these words, when used in the statutes, to persons actually in
office would render it difficult, if not impossible, to convict for the
most flagrant official crime ; for immediate removal follows the detec-
tion of guilt in a public officer. A more reasonable construction,
therefore, is to consider the term "civil officer," as used in section 4, as
applicable alike to persons actually in office and to such persons as
have held official relation to the Government, and while in office have
been guilty of the offenses specified in the section. By such an in-
terpretation the guilty incumbent upon impeachment may be removed
ana disqualified, and no guilty official by resigning allowed to escape.

Looking then alone to the language of the Constitution relating to
impeachment and giving to each clause that construction which har-
monizes with the various provisions on the subject and best effectu-
ates the object proposed oy their insertion in the instrument, I am
led to the conclusion that the Senate possesses the jurisdiction to try
the defendant on the charges contained in the articles of impeach-
ment exhibited against him, notwithstanding his resignation and re-
tirement from office before his formal impeachment by the House of

It seems to me that this conclusion is sustained not only by a fair
and reasonable construction of the language of the constitutional
provisions on the subject, but is fully warranted by what must be
supxM>sed to have been the intention of the framers of the Constitu-
tion by incorporating those provisions i n that instrument. The nature
and object of impeachment and the extent of its application to per-
sons and to crimes, as already stated, were fully understood at the time
our Constitution was framed, and if the co nvention had not intended
that it should reach offenders who had ceased to hold office after
having been guilty of crimes therein, the men who sat in the conven-
tion would have so declared in plain and unequivocal terms. At the
very time when they were framing the Constitution and deliberating
on this very subject proceedings had been commenced in England
for the impeachment of Warren Hastings, notwithstanding he had
been out of office for more than a year before the proceedings wei^
commenced. His case hod attracted universal attention, not only in
England but in this country, and the members of the convention were
not ignorant or indifferent spectators of an event so marked in the
history of the country with which they had so long been connected
and from which they had so lately separated. They knew full well
that Hastings was to be tried for crimes while in office, though at the
time he had returned from India and surrendered the power he had
used with such oppression. Yet with this knowledge, not inadvert-
ently, but upon deliberation, they incorporated into our Constitution
impeachment, with all its incidents, save only as it has been curtailed
by express limitation, as a protection and remedy asainst official
crime and misdemeanors. If they intended that impeachment should
lie only against offenders while in office, is it not strange that they
omitted so to declare in plain and unmistakable language.

Is it not more reasonable to suppose that the framers of the Consti-
tution intended to protect the people of this country as fully as the
people of Great Britain were protected against officialcorruption and
crime by holding their public servants accountable even uter their
retirement from place f To suppose that the3r intended otherwise is
to impute to them a degree of folly I am unwilling to charge. They
intended, in my opinion, impeachment as a visitation, at the discre-
tion of Congress, upon official misconduct, and did not intend that
the guilty should escape b^ resigning his position. If this is not
true, impeachment is a nullity ; for it would always be in the power .
of the guilty to evade it. No man who was conscious of bis guilt
would attempt to retain his office and incur the risk, nay the cer-
tainty, of removal and disqualification to hold any office of honor,
trust, or profit, when by resigning his position he could escape the
consequences of his crime.

In the consideration I have given to this question I have not been

Online LibraryUnited States. CongressCongressional record : proceedings and debates of the ... Congress → online text (page 65 of 172)