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unmindful of the fact that an unwise exercise of the power conferred
upon Congress may sometimes occur. This consideration, however,
ought to have more weight in conferring a power than in interpret-
ing one already given. It may some'imes happen, that from party
zeal or some temporary excitement, the House of Representatives
may be induced to proceed by impeachment against a person long
after he has ceased to hold any official relation to the Government for
offenses committed while in office. But such a contingency is re-
mote, and not likely to happen. Such a power is admitted to exist in
the British Parliament, and yet no case of impeachment has occurred
in that kingdom for more than seventy years. In some of the States
of this Union where the power now claimed for Congress is undoubted,
no case of impeachment has overtaken place, audit is at least fair to
presume that no hasty or ill-advised action will be taken by the
other branch of Congress, but that the power of impeachment will
be exereised with deliberation, and only when demanded by the
public good, especially when the party impeached is out of office at
the time.

If it were fair to presume that party spirit at any time could so far

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inflneDce the action of the House of Repreeentatives as to indnce it
to proceed onadvisably by impeachment against any person whether,
at the time, in or out of office, there would be more reason to appre-
hend that such proceedings would bo instituted against an obnox-
ious incumbent whose removal might be desired, than agaiust a
IK>litical opponent who had by resignation or the expiration of his
term of office retired to the shades of private life. I confess, how-
ever, that I share but little in the apprehensions expressed by
others. We have passed through a century of our national exist-
ence in which party spirit has been fully as unrelenting as it is
likely to be in the future, and with the single exception of the
impeachment of President Johnson I am not aware that any large
number of the American people ever charged or suspected that either
House of Congress, or any member thereof, was actuated by any
other purpose than a desire to subserve the public welfare.

Speoolations, however, about the possible consequences that might
result from an unwise exercise of a power can render little aid in de-
termining its existence. If, however, speculation was admissible, if
apprehended or possible consequences should have any weight in de-
termining the judgment we are to give upon the question of juris-
diction presented to the Senate, or the opinions we express thereon,
then I submit it would bo proper to consider the results that might
follow a declaration by this bondy that it has no jurisdiction to try a
high public officer who has resigned and retired from place, although
his wnole official life may have oeen stained and polluted by corrup-
tion and crioie.

If we have not the jurisdiction to try the late Secretary of War
upon the charges contained in the articles of impeachment simply be-
cause he retired from the Cabinet on the morning of the day he was
accused, with the avowed purpose of escaping impeachment and
evading the jurisdiction of the Senate, then there is in this Qovem-
ment no assured and certain means for the adequate protection of the
people by the disqualification of the guilty offender, high or low. The
most guilty may escape and will be likely, nay, certain, to escape the
disqualification threatened against official crime. He may havestained
his hands with bribes and brought reproach upon the country that
has honored and trusted him, and when his guilt has been detected
and impeachment is impending, with a view to evade the disqualifl-
cation provided by the Constitution for his offense and leave the road
open for his return hereafter to public life, he may throw up his
commission and plead the immunity that belongs to a private citi-

A Secretary of State may have bartered the honor of his Qovem-
ment for gold and defy its power to disqualify him from holding its
highest positions of honor, trust, and profit 4hereaf ter. Or a Secre-
ts^ of the Treasury may rob the country of its revenues and appro-
priate them to his own use, or, like the unjust steward^ for selfish
purposes may divide them among his friends, and, after his guilt had
been discovered and before articles of impeachment could be pre-
pared, he could retire from the Cabinet, avoid your jurisdiction, and
escape the iudgment of disqualification you are authorized to pro-
nounce. If it shall be suggested that he would still be amenable to
the jurisdiction of the criminal courts and could be punished by in-
dictment and conviction under the laws of the land, it is a sufficient
answer that such liability is only a part of the protection against
official crime provided by the Constitution of the country. I mif^ht
meet such suggestion with the further reply that escape from crim-
inal prosecution and conviction is neither impossible nor improbable
where the offender has the advantages of wealth and the friendship
of those in high social and official positions. Besides, in case of con-
viction in the courts, the President, if so disposed, could exercise the
pardoning power and relieve the culprit from the penalties of the
law. Whereas, in case of impeachment, the Executive could not, if
so disposed, interfere with the judgment upon conviction by the in-
terposition of executive clemency.

In the conclusions at which I have arrived upon this question I have
not considered as important or material the time at which the resig-
nation of the defendant took place. However proper on the part of
the managers of the House to present for consideration the techni-
calities of the law in reference to the doctrine of relation and the
fraction of a day, I could not consent to decide a grave question like
the one before the Senate, involving consequences so serious to the
defendant, on any such grounds. If the jurisdiction of the Senate
cannot be maintained by a fair interpretation of the provisions of the
Constitution referring to impeachment, it ought not to be claimed or
exercised. On the other hand, if a careful examination of the con-
stitutional provisions on the subject, aided by the lights which con-
temporaneous and subsequent events afford^lcavee no doubt upon the
question, then the duty is plain and the jurisdiction must be asserted.

I have not deemed it necessary to review the authorities referred
to in argument by the manajgers on the part of the House and by the
counsel for the defendant. They render m my opinion but very little
aid in arriving at a correct conclusion upon the qucscion now before
the Senate, for the reason that the precise question has never hereto-
fore arisen in any court of impeachment in this country.

Whatever light the authorities referred to throw upon the subject
has been so repeatedly presented in discussion by others that further
review is useless. I may say, however, that in none of the cases of
impeachments cited, whether occurring in this body or in the States
of the Union, nor in the opinions of commentators or other eminent

men who have written upon the subject do I find anything, when
pixYporly understood, at variance with the conclusions at which I have

Neither Story nor Rawle in their Commentaries upon the Constitu-
tion, though evidently differing in the views which they individually
entertained upon the question now for the first time before the Sen-
ate, has attempted to maintain the opinions which they hesitatingly
express either by authorities or precedents. The former concludes
his reference to the subject by declaring that i^ ia an open question
to be settled only authoritatively when it shall arise ; and the latter,
while clearly indicating his own opinion, makes no attempt to sustain
it by reference to the opinions of others, but dismisses the subject by
remarks embraced in a single partua^ph.

The case of Blount, so often referrod to, has no relevancy to the
present case, and the opinions expressed by the learned counsel who
appeared for Blount or the managers on the part of the House of
Representatives were submitted upon a question totally distinct from
that now before the Senate, and consequently throw but little light
upon it.

The case of Bernard recently tried in the State of New York upon
charges involving in part his official conduct during a previous term
in the same office which he held at the time of his impeachment raised
more nearly the question presented by the pleadings in this case than
any that has been cited. Yet the question as presented in that case
,was involved in others not in this, and, although the jurisdiction was
maintained by a majority of the court, the complication of questions
involved not less than the divided opinion of the court renders the
decision in that case unreliable as authority in the determination of
the question before us. This case stands alone and cannot be de-
termined by precedents, for none can be found. Fortunately for the
character of our Government this is the first instance in our history
where a high Cabinet officer, charged with the responsibility of aa-
ministering the affairs of one of the most important Departments of
the Grovemment and intrusted with the dispensation of immense pa-
tronage has been formally charged at the bar of the Senate with
bribery and corruption in office.

I am glad that no precedent exists to guide our action and control
our deliberations in the case before us, but that it must be settled
from an honest conviction of the oonstitutional powers and duty of
the Senate and with a just regard to the rights of the defendant and
the welfare and protection of the people of the land.

Entertaining tne opinion that the Senate has iurisdiotion to try the
defendant on the articles of impeachment exhibited against him, not-
withstanding his resignation prior to his impeachment, I must vote
accordingly. In my opinion the demurrer should be overruled.

OpiaiMi •£ Hr. JTMie*, •f FtorUa,

Delivered May 26, 1876.

Mr. JONES, of Florida. The importance of the case in which we
are now called to render judgment is all the apology that need be
offered for a statement of the reasons which I am about to give for
my vote. Since we have been engaged in the investigation of the
intricate and novel question presented by the record before us, we
have all felt the want of explicit authority to guide us to a safe con-
clusion. The decision of the Senate in the case of Blount, so often
referred to in the arguments of counsel, has come down to us unao-
companied by any reasons whatever, and we are left to conjecture to
ascertain the opinions of the Senators who sat in that case upon the
^^reat issues of law which were before them. It is true that a major-
ity of them decided that the Senate had no jurisdiction over the de-
fendant in that case because he was not a civil officer of the United
States. Had the Senate in 1798, composed as it was of men who were
familiar with the history of the Constitution, and who witnessed its
formation and adoptiop, ^ven us a clear statement of the law which
then governed it in the trial referred to, it might have dissipated the
doubts and difficulties which now surround us.

Let us not imitate the example they have set us in withholding the
reasons of their judgment, but let us leave to those who shall succeed
us the full benefit of every argument which has contributed to the
conclusion at which we have arrived. The plea of the respondent,
the replication of the House of Representatives, and the demurrer
thereto, in my opinion present to the Senate an issue of law which it
is our duty to meet and decide without reference to the matters of
fact which are stated in the subsequent pleadings.

The plea alleges in substance that at the time the House of Repre-
sentatives ordered the impeachment of the respondent, and at the
time the articles of impeachment were exhibited against him at the
bar of the Senate, he was not then, nor hath he since been, nor is he
now, an officer of the United States.

The replication alleges the insufficiency of the plea, and then states
that at the time the several acts charged against the respondent were
done and committed, and thenoe continuously until the 2d day of
March. 1876, the respondent was Secretary of War of the United States.

To this replication a general demurrer was filed.

It is very clear that this replication does not meet the issue ten-
dered by the plea in the usual way. The House of Representatives

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had three courses open to it: First, demur; second, travortie or deny
the allegations of the plea ; or third, coufeHS and avoid them. It has
done neither of these things. The replication confesses the truth of
the facts stated in the plea, but it sets up no new matter in avoid-
ance of them. It re-aflirms the facts stilted in the articles, for it must
he borne in mind that the articles state that the several acts charged
against the respondent were all committed while he held the office of
Secretary of War, and this allegation is admitted to be true by the
respondent's plea. The additional statement that be continued to
hold the office until the 2d of March, 1876, adds no legal force to the
replication, for it nowhere alleges that he was impeached on that day
or previous to it. The joiner in demurrer by the House precludes the
managers from connecting in any way the issue of law thus created
with tne issues of fact tendered and accepted in the subseonent plead-
ings. If we are going to pay any regard to the established rules of
pleading, we cannot upon this demurrer give any judgment except
upon facts the truth or which is not disputed.

Let us see, then, what facts are admitted by the pleadings. It is an
elementarv rule of pleading that all allegations not traversed or con-
fessed and avoided must be taken as admitted. The respondent,
therefore, has admitted that the acts charged agaiust him were com-
n)itted while ho was Secretary of War. But he says we have no juris-
diction to try him, because at the time of his impeachment he was
not, and i« not now, Secretary of War. The replication by not de-
nying the facta set up in the plea admits that the respondent was not
at the time of his impeachment Secretary of War and does not now
hold said office. So that we have clearly before us the following
facts, the truth of which is conceded :

First. That the offenses and acts charged in the articles of im-
peachment were done and committed by the respondent while he was
Secretary of War.

Second. That since that time 'and before his impeachment the re-
spondent relinquished that office.

Third. That the respondent since the 2d day of March, 1876, has
not been an officer of the United States.

These facts present to our minds a most perplexing legal qneetion ;
that is, whether or not the respondent is subject to trial and punish-
ment under the provisions of the Constitution relating to impeach-

This is a question which rises far above all party considerations. We
have been told from the bar that it is l>etter that ninety-nine guilty
men should escape than that one innocent man should suffer. But it
might have been said with more aptness that it is better that five
hundred guilty men should escape than that the Constitution should
be violated. We all know how hard it is to divest the human mind
and heart of those impressions and feelings which in times of party
excitement insensibly creep upon us.

History does not furnish a single exam^de of oppression or of tyr-
anny, of violated right or party persecution, which the sanctity of
law and the plea of good intention were not put forth to support.
Man in all ages, both civilized and barbarous, has never been wiUing
to admit that his excesses of power and authority were anything
more than impartial and honest judgments demanded by the public
good. Even Socrates when commanded to drink the fatal hemlock
was not considered a victim but a subject of just and merited punish-
ment. The most successful efforts that have ever been made to break
down the liberties and destroy the rights of the people were those in-
sidious and plausible iudgments and opinions of courts and lawyers
which in cases of doubt and uncertainty have usurped the functions
of the law-maker, and in place of interpreting existing laws have es-
tablished new rules and principles.

I am not of those who imagine that the greatest security for our
liberties is to be found in the wisdom and impartialitv of courts of
justice. Still I entertain the very highest respect for the courts and
judges of the land. I am willing to go as far as any one in my sub-
mission to judicial construction in alfcasee of a civil natnre in which
property only is Involved. But I shall never yield my consent to the
conviction of any man for crime where the law of the case is so very
doubtful as to render it necessary to find authority for the conviction
in elaborate and subtle arguments and refined distinctions drawn by
logicians of great skill.

jBnough has been said during the discussion of this case to satisfy
me that if a person may be impeached for what are called official
crimes after he has given up official station, it must be done in pur-
suance of a power arising from construction and not from the direct
language of the Constitution.

The proposition is broadly asserted by the managers that when an
impeachable offense is committed in office the person who commits
it remains liable to impeachment, whether in office or out of office,
during the whole perio<l of his life ; that when the crime is commit-
ted the jurisdiction attaches and cannot afterward be divested by any
act of the offending party. If this is the meaning of the Constit ution,
it is full time the people were apprised of it, for in my opinion a more
dangerous or unwarranted power was never claimed to belong to the
General Government.

We have been told that the sole power of impeachment is vested in
the House of RepresentativesMind the sole power to try impeachments
conferred upon the Senate. This is true. It is further insisted that
our jurisdiction over impeachable offenses is to be looked for in these
clauses, and that we should go to the wide domain of the common

law to ascertain the meaning and limitations of our powers ; thafe
the same rule of construction must be adopted with respect to im-
peachment which prevails in all cases when a common-law power or
crime is presentea for consideration ; that there are no limitations
in the Constitution upon our power of impeachment but what are to
be found in that system of laws from which this term has been im-
ported, except as to the punishment which we may impose after con-
viction ; that as the common law at the time of the adoption of oar
Constitution extended the power of impeachment to all official of-
fenders, whether in or out oi office, the same authority now exists in
this and the other House of Congress. The doctrine contended for
by the learned managers is in my opinion utterly inconsistent with
the theory of our government. Our Constitution is an instrument of*
enumerated powers. These powers may be classified under two heads,
first, express powers ; and second, implied powers.

In some instances a general authority is given in express words to
do particular things, but the means best adapted to the ends in view
are left to the judgment of Congress. It is a fundamental principle
of on* system that all implied powers conferred by the Constitution
must be exercised by Congress, and, before assuming the forms of
laws, subjected to the checks of each of the departments which con-
stitute the law-making authority. There is no single department or
officer of the Government that is invested with auuiority to exercise
any implied powers.

There is no officer or tribunal under our Constitution whoso duties
and jurisdiction are not fixed by express law. The executive power
which is vested in the President is not the loose and indefinite au-
thority which appertained to the Crown of Great Britain when our
Constitution was adoptod. The powers of the Executive are limited
and restricted by the Constitution and the laws, and he is not per-
mitted in any case to resort to construction to ascertain how far
he may go in discharging his official duties. The same may be said
of the judicial department. Judicial and executive ]>owerB were as
well know and defined in England as the power of impeachment.
Still, we find these powers limited and restricted in accordance with
our republican system, and nothing left to implication.

The monarch had power to regulate weights and measures, grant
franchises, appoint all officers, and authorize the coining of money.
But did any one ever pretend that these prerogatives attached to the
office of President because we borrowed our ideas of executive duties
from the English system T The gran t in our Constitution which vests .
all executive power in the President is fully as broad as that which
vests the sole power of impeachment in the other House and the sole
power to try impeachments in the Senate; still there is not a Senator
on this floor who will say that a single attriji>ute of the kinz which
existed in 1787 was vested in the President by the grant of alT execu-
tive power to that officer. The same is true of our courts of law and
both Houses of Congress. While in some coses we are referred to the
common law for definitions of legal phrases and terms to aid in the
exercise of vested jurisdictions, no case can be shown under our
Federal system where jurisdiction itself is mode to depend upon legal
usages or practices in England or Germany.

The Senator from Indiana referred to the jurisdiction of our courts
in cases of admiralty and equity ; but if he reads the Constitution
closely he will find the grant refers to cases in equity arising under
the laws and Constitution of the United States, and that the admiralty
jurisdiction conferred waa that only which was exercised in the colo-
nies at the time of their separation from Great Britain, and did not
carry with it any power to try crimes which belonged to the same
jurisdiction in England. The fourth section of the second article of
the Constitution of the United States declares—-

The PreAident. Vioe-Preddent, and all dvil oflBcers of the United States, shall be
removed from oOice on impeachment for, and conviction of, bribery, treason, or
other high crimes and misdemeanors.

It is contended that this section is not the source of our jurisdic-
tion in cases of impeachment, but that it was only intended to make
the removal of the officers designated compulsory upon the Senate
when they were convicted. Some meaning had to be given to the
language of this section, and it seems to me that the one assigned to
it is so unreasonable and inconsistent with sound argument that it
never could have entered into the minds of the f ramers of the Consti-
tution. It is further contended that this section is not a limitation
at all upon the power of impeachment ; that that power is without
limit, except in respect to the punishment to be imposed. The En-
glish parliamentary law does not give us any definition of the offenses
which are impeachable. It has left it to Parliament to say for what
offenses officers and subjects may be impeached.

Judgment in cases of impeachment under our Constitution shall no!|
extend further than removal from office and disqualification to hold
office. One of these two alt-ematives must follow every conviction in
imx>eachment. Now, whether yon disqualify or remove, the same con-
sequence must result to the person in office; he forfeits his position
as an officer. Why should the Constitution therefore have devoted a
whole section to make it obligatory upon the Senate to do that which
must be the result of every conviction without it! Does not every
one know that a judgment of disqualification takes effect from tho
time it is rendered T

Now, inasmuch as English precedents are relied upon, it may be
safely said that no example of conviction in a case of impeachment
can be found which was not followed by a loss of office when the

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offender held one. If the framers of the CoDstitution were aware
that only official offenses gave rise to impeachments in England,

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