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they could not have been ignorant that all convictions in snch cases
Tvere followed by a deprivation of office. Some other reason mnst
be fonnd for the incorporation of the fourth section of the sec-ond article
into the Constitution besides the necessity of a provision to compel
the Senate to remove the officer. The proceedings of the convention
throw some light on this snbjcct. It is well known that all the reso-
lations looking to a frame of Government bronght before the conven-
tion Avere submitted to a select committee whose duty it was to re-
port a constitution. This they did on the 6th of Angust, 1787. In
pursuance of a resolution adopted by the convention and looking to
the impeachment of the President, the committee on detail, in the
tenth article of the Constitution reported, put this provision :

The Presidenl—

8lianT>e removed from offlee od impeachment by the Hoose of Representatives and
conviction in the Supreme Coort of treason anil bribery.

Aft erward the Senate was substitu ted for the Supreme Court. This
part of the Constitution elicited some debate. Colonel Mason ob-
jected to confining the power of impeachment to treason and bribery,
lie moved to add after oribery maladministrauion. Mr. Madison said
this term would be too general. Mr. Morris said it would do no harm,
as an election every four years would prevent maladministration.
Colonel Mason withdrew maladministration and substituted " other
high crimes and misdemeanors,^ and these words were adopted. In
the adoption of this substitute there was a compromise between those
who advocated an almost unTlmited power of impeachment with
respect to offenses and those who favored a more restricted power.

Is it not obvious that the convention never dreamed of the idea of
compulsory removal. They looked only to Jurisdiction. They spoke
only of the power of impeachment. The meaning of the section, as
understood by the framers of the Constitution, was that the officers
designated in it should not be removed from office for any less of-
fenses than treason, bribery, or high crime and misdemeanor. The
Surpose was to fix and limit as well as they could the powers of the
enate and House. Colonel Mason succeeded in extending the power
beyond treason end bribery. Mr. Madison's reasons prevailed, and
maladministration was stricken out because it would give too great
a power to the Senate.

But suppose the fourth section of the second article is not the source
of our Jurisdiction, can any reason be assigned for limiting this com-
pulsory duty of removal to civil officers of the United States f The
learned managers were force<l, I think, to admit — indeed their argu-
ments led irresistibly to the conclusion— thatmilitary and naval officers
were within the power of impeachment. If so, why was not their re-
moval provided for the same as that of civil officers f Is an admiral
or a general of less consequence or more dangerous when they abuse
their powers than a custo*>2- house officer or a district JudgeT It is
said that jurisdiction attaches whenever an official offense is commit-
ted, but is there no limitation to our jurisdiction in such cases f There
is certainly not if the English doctrine is to prevail ; for an admiral
who neglects the safeguaras of the sea or h> who commands an army
in the field are liable to impeachment according to even the modem law
of England. Where do you find the limitation which restricts your
power to ci vil officers f Do you not find it in the fourth section of the
second aiticle of the Constitution f Have we not the authority of the
Senate sitting^-os a high court for saying that none but civil officers
of the United States can be impeached, or at least removed from office
on impeachment f

Whatever may be the doubts in regard to the Judgment of the Sen-
ate in Blount's case in 1798, there was one question decided in it which
shows what was thought of the unlimited power of impeachment in-
sisted upon then as now. The principal question in that case was not
whether a person who holds the office of Senator is an officer of the
United States, for no one ever denied that a Senator is snch an officer ;
hut it was whether or not Senator Blount was a civil officer of the
United States, so as to give the court Jurisdiction over him. Does not
everybody see that if tlie Jurisdiction of the Senate and House were
not affected by the limitations contained in the fourth section of the
second article of the Constitution, which confines the iwwer of im-
peachment to ctrt'- officers, that the judgment against jurisdiction in
the Blount case could never have been rendered T We have been in-
structed with long and interesting accounts of the Jurisdiction of the
English Parliament in cases ot impeachment, and it has been said
with much force that the history of that body shows that no case of
impeachment has been tried there in modem times except for official

But no one has undertaken to show that the English law of im-
peachment as practiced there at all times did not extend to the Lords
and Commons of Parliament. The Senate then had before it in
Blount's case an opportunity to exercise the power of impeachment
which all mnst admit belonged to the English Lords. Had Blount
been a lord of England and a member of the House of Peers, instead
of an American Senator, could he have pleaded the want of Jurisdic-
tion in Parliament to try him because he was not a civil officer of the
realm? He escaped impeachment before the Senate in 1798, not be-
cause he was not an officer of the United States, but because this
body, looking to the fourth section of the second article of the Con-

stitution as the source of its power and Jurisdiction, decided that he
was not a civil officer of the United States. I am at a loss to under-
stand how any man can read the arguments and proceedings in that
case without seeing that the whole question at issue yras whether or
not the article and section of the Constitution Just referred to created
any limitations on the power of impeachment. The court then de-
cided and had to decide that question. It was in the era when broad
claims of power were put forth in behalf of the new Government. It
was the era of the alien and sedition laws, on the decline of federal-
ism and the dawn of the pure and wholesome doctrines which Jef- ».
ferson made immortal by his genius and his name.

Let it be remembered that the very same arguments which are put
forth to-day to uphold the unlimited power of impeachment were
snccessfully employed to fasten upon the country the hated maxims
of 1798, which culminated in the alien and sedition laws. That broad
and fruitful source of iK)wer, the common law, was the dark and por-
tentous fountain fi*om which the streams of arbitrary authority
emanated, and which for a time threatened to inundate and break
down every rampart and barrier of the Constitution. Look to Mr.
Madison's report of 1799 and see to what parts of the huge federal
stracture he directed his magnificent argument. He saw at a glance
the foundations of the new and dangerous heresy. He saw that he
must demolish the monstrous doctnne that the common law — the
barbarous, far-reaching, and unfathomable common law— had been
adopted by and incorporated into that Constitution which he had.
labored so much to create.
At the conclusion of his great argument he said :
Snob being the ground of onr Revolntion, no snpport or color oan be drawn from
it for the doctrine that the common law is binding on these States as one society ;
the doctrine, on the contrary, is evidently repagnant to the fundamental principle
of the Revolution. (See Maoison's report, page 507.)

Our system of impeachment, as was aptly said by Garrett Davis
in Johnson's trial, is sui generis; it borrows nothing from the common
law. Civil officers of the United States are alone liable to impeach-
ment. The Senate is made the court of impeachment. The Chief
Justice must preside when the President is on trial. Two-thirds of
the Senators present must concur in a conviction. No impe^ichment
can take place, except for treason, bribery, and other high crimes and
misdemeanors. The judgment ma^ extend to removal from office and
disqualification to hold office. If it was the purpose of the Constitu-
tion to give to the Senate and the House the same power of impeach-
ment which was exercised by the British Parliament, where was the
necessity of all these express provisions T It is said that the Consti-
tution intended only to limit the punishment, and has left the En-
glish Iaw in full force.

Put why designate the officers and the offenses for which they
may be impeached T Did not the English law of impeachment ex-
tend to all public officers and according to the admissions of the man-
agers authorise the prosecution of all official offenses f Is there a
ease to be found in all English history of a conviction upon impeaoh-
ment that was not followed by a loss of office f If there is, I chal-
lenge its production. Why, then, should the framers of the Con-
stitution have ma^e removal from office a compulsory duty on the
Senate when, under the general power given to it in the Constitu-
tion and the interpretation that had ever been put upon it in England
and which is claimed to have followed it here, that result was sure
to follow every conviction. Mr. Hamilton, who favored a stronger
constitution than that adopted, submitted to the convention a plan of
govemmentrin which he put a provision on the subject of impeach-
ment. That provision contains every element of power which is to be
found in our present Constitution on this sabieet, leaving out the
governors of States and Senators, whom he included among the offi-
cers subject to impeaehment. It is as follows :

Governors. Senators, and all oflSoers of the United States to be liable to impeach-
mont for msl and corrupt conduct, and, upon conviction, to be removed from office
and disqualifled from holding any place of trust and profit; all impeachments to be
tried by a oo*irt.

Look now at the language of the fourth section of the second arti-
cle of onr Constitution, and read it in the light of Hamilton's provision :

The President, Vice-President, and all civil officers of the United
States, to he removed from office on impeachment for and conviction
of treason, bribery, and other high crimes and misdemeanors.

I have here substituted the words " to be " for " shall be f but con
any one say that the evident sense and meaning of the Constitution
is thereby changed f But it is said the President cannot pardon, and
that an officer may escape judgment of disqualification by giving
up his office. It is well Known that impeachment was intended to
extend only to officers who derive their appointments from the exec-
utive authority, and if the President conld pardon in such cases, the
power to remove from office and thus rid the public service of bad
men, which is the object of imx>eachment, might be rendered useless.
It was to render the power of removal effectual that the power of
pardon was taken away.

But it is said again that disqualification is necessary in order to
prevent the return of men to office who have proved themselves unfit
for public station. The Constitution does not say that disqualifica-
tion to hold office shall follow in all cases of impeachment. A dis-
cretionary* power is given to extend judgment to that extent where
jurisdiction exists and a proper case is made for the exercise of the
power. The arguments made upon this point are founded in the fal-

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lacy that disqaalification most attend every coDviction. It is said
that the right to impose this ladgment attaches at the time the
ofifense is committed and cannot by any act of the offender be avoided.
Impeachable offenses, aulike those in yonr crimininal code, are not
defined with accuracy. Murder, larceny, arson, and other well-known
crimes are so well nnderst>ood, that proof of certain facts comprising
their elements must always lead to the judgment of guilt by every
tribunal which is vested with power to try them. Not so with im-
peachable offenses. The quality and character of these must often
depend upon variable circumstances and the temper of the body to
which is confided the right of judgment.

Up to this time there is not to T>e found in English or American
law any fixed definition of the words '^high crimes and misdemean-
ors." Mr. Mariin, on the trial of Chase, tried hard to limit them to
indictable offenses, but his argument met with little favor. Mr.
Evarts, on the trial of President Johnson, undertook a like task, with
but little better success. Let it be borne in mind that we must test
the argument I am combating, not by its application to sporadic or
particular cases, but by taking into consideration the whole acknowl-
edged doctrine of imi>eachment.

One of the most important, and at the same time the most danger-
ous, features of this power is that it leaves to the two Houses of Con-
gress an arbitrary discretion respecting the acts or conduct which
shall subject officers to impeachment. No man knows, no man can
know, what is an impeachable offense. To-day it may oe one thing,
to-morrow another. Judge Humphreys was impeached and expellea
from office because he us^ seditious language. Still he had before
him the Constitution, which guarantees to every citizen freedom of
speech. My democratic brethren of this body, from whom it has
given me no little pain to differ on this great question, tell me that
it was not in the power of that indiscreet though it may be honest
man to escape Judgment of disqualification under the law of impeach-
ment by throwing off the robes of office and standing upon his priv-
ileges as a citizen. The language attributed to him, if nttored un-
der ordinary circumstances, would not have been noticed. But the
circumstances of the country, the political excitement of the time
made his utterances a hi^h crime.

Judge Peck, of Missouri, at a less turbulent period, was impeached
by Congress for exercising a like power to that which is claimed for
this body as the foundation of its jurisdiction in this case. He was
a judicial officer; and he was foolish enough to imagine that, sitting
as a district judge, he had a right to exercise the same broad power of
punishing contempts that was conferred by the common law, and
which hsid been so long an appendage of the judicial system in En-
gland. He made an attorney of his court purge himself of a contempt
by answering on oath written interrogatories under pain of imprison-
ment. I commend the speech of Mr. Buchanan in that case to all
who are in need of light on the subject of indefinite powers. Judge
Peck was made to feel that there was a provision in our Constitution
which did not permit him to compel even an attorney to give evi-
dence against himself. Under the law of impeachment as now under-
stood how can any officer protect himself against those heats and
passions of party which are inseparable from poj^ular government if
the doctrine of the managers shall prevail f

When it is conceded uiat on act indifferent In itself, and which
the circumstances of the times or the temper of the tribunal may
make a high crime, how can it be claimed that jurisdiction to pun-
ish attaches in sucn a case when the act is committed and follows the
person through life f In the great majority of offenses called im-
peachable the quality of the act does not depend, as in ordinary crim-
inal oases, upon definite provisions of law, which' leave nothing to
discretion. It cannot be said that any offense exists until the body
which has the power of impeachment expresses its judgment upon
the act arraigned, llie criminaUty of officers' conduct in cases of
impeachment is not fixed at the time it takes place, but when the im-
peaching power applies to it the touch-stone of its variable justice.
In the very nature of things different considerations mpst enter into
the idea of impeachable offenses from those which belong to ordinary

Questions of expediency and policy, which have no place in the
criminal law, very often nx the character of an impeachable offense ;
and expediency and policy admit of no standard of permanency what-
ever. Still, we have been pointed to an act of Congress making crim-
inal certain specific actsof corruption when done by public officers, and
asked to explain the difference between the legal consea uences resulting
from its violation and those that follow an impeachable offense. Were
I before a tribunal less exalted or discriminating than that which
now hears me, I might feel some embarrassment in attempting to put
aside an analogy which exists only in the similarity of names. The
House of Commons in the case of Lord Danby laid down the principle
that a minister could not shelter himself behind the throne by plead-
ing obedience to the orders of his sovereign. He is answerable for
the justice, the honesty, the utility, and legality of all measures em-
anating from the Crown.

And thus it is said by HaUam the executive administration is made
subordinate in all great matters of policy to the superintendence of
Parliament. Mr. Christian, in a note to Blackstone's Commentaries,

"When the words "high crimes and misdemeanors " are nsed in prosecntions by
impeachment, the words "hich crimes" have no deHuite signitlcation, bat are
nsod merely to give greater solemnity to the charge.

It will not be denied, I suppose, by those who seek to fasten upon
us the commou-law doctrine of impeachment, that whatever inter-
pretation has been given in England to the words high crimes and
misdemeanors, should be adopted here. The law of that couutry, as
we have shown, for purposes of state policy has left in the breast of
Parliament the au^st power of determining what is and what is not
an impeachable offense. This power cannot be compared to the cold
and measured authority of courts of law, which in all countries is
confined to the more simple business of applying pre-existingand well-
defined principles of jurisprudence to established facts. The judge
who exercises this authority is not the fountain, but the organ of the
law. His duty is not to create, but to apply the rule. If the case
before him be murder, he is bound to see that the facts established
bring it within every part of the definition which the law has given
to that high crime. Nothing \b left to his own will or discretion. No
questions of state policy, no moralizing upon the effects and conse-
quence of the acts of the prisoner can be raised or permitted 'f and
cannot all see the great distinction between that case and the case of
an impeachable offense, which is at once ascertained and fixed by the
judgment of a political tribunaL Jurisdiction, therefore, in my opin-
ion, cannot be made to depend under our Constitution upon the time
when the act \b committed, but upon the status of the person, which
can alone confer authority on the impeaching tribunal to give to
that act by the exercise of parliamentary discretion either the qual-
ity of guilt or innocence.

We nave been referred to the debates in the convention for light
on this subject. The distinguished manager, Mr. Hoar, mentioned an
expression used by Mr. Pinckney tha{ the President ought not to be
impeached while in office ; but he did not tell us all Mr. Pinckney said
in the debate. After using the above language, he said :

I do not see the necessity of impeachments. I am sure they ought not to issuA
from the Legislature, who would in that case hold them as a rod over the Execa

Mr. Morris said :

He was sensible of the necessity of impeachments if the Executive was to con-
tinue for any length of time in office. He may be bribed by a greater interest to
betray his trust; and no one would say that we ought to expose ourselves to the
dancer of seeing the First Majoetrate m f(weign pay without being able to guard
against It by displacing him.— ifadiMm Fapers, volume S, page 1159.

Much has been said in re^^ard to the common-law power of impeach-
ments to show the limitations attending it in England. I put the
authority of Mr. Jefferson against that of the managers. In his Man-
ual, on page 284, he says :

The Lords may not try a Commoner for a capital ofiense on the information of the
kinff or a private person, because the accused is entitled to a trial by his peers gen*
eratty ; but on accusation by the House of Commons, they may proceed against the
deUnqnent, of whatsoever degree and whatsoever be the nature of the offense.

The managers have argued in support of their theory that according
to the English law none but official offenders are impeachable. This
they had to do in order to avoid a conclusion whicn would be fatal
to their argument. But let us not forget that we are now endeavor-
ing to ascertain the views of the men who framed the Constitution
respecting the power of i mpeachment in England. No safer authority
can be looked to than Mr. Jefferson. He was a representative man
of his age and country, and we may confidently affirm that his opinion
in rei^m to the nature of the English power of impeachment was
not different from those of the great men who framed the Constitu-
tion. He has left us a manual of the parliamentary law of Great
Britain which is a text-book in both Houses of Congress. It is re-
ferred to as a standard authority in cases of doubt arising under that
law. Why should we refuse to accept his clear stat-ement of the
English power of impeachment while we yield implicit faith to all
the rest of his opinions upon the subject of parliamentary law f Im-
peachment in England has always been governed by the law of Par-
liament, and we can no more disregard the authority of this great
man upon the question now under consideration than we can his
equally correct explanation of the '^ previous question" and its uses
in the House of Commons.

Mr. Jefferson tells us plainly that on accusation by the House of
Commons by impeachment they may proceed against the delinquent
of whatsoever aegree and whatsoever be the nature of his offense.
This authority refutes the doctrine of the managers that none but
official offenders are impeachable in England. True it may be that
thisdespotic power has not in modem times been put in force against
individuals, but we are not interested so much in ascertaining what
Parliament has done as what it may do in exercising the power of im-

The Senator from Delaware alluded to the fact that Mr. Justice
Blackstone's Commentaries were familiar to the framers of our Con-
stitution and that the law of England, as laid down by that great
writer, was well understood in this country at the time of our revo-
lution. All this is true, and yet no argument can be drawn from it in
support of the jurisdiction claimed in this case. If the men of the
revolution had followed the teaching of Blackstone they never would
have resisted the august authority of Parliament which that great
lawyer had taught them was competent to legislate for the colonies
without their consent. Have we any more reason to think that the
framers of the Constitution accepted Blackstone's doctrines of im-
peachment than for believing that his opinions respecting the power
of Parliament to make laws for Virginia and Massachusetts were re-
garded as sound, j.ure, and correct f

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Blackstone is excellent anthority upon ncaily all qnestions which
he has discussed ; bat there are some matters which he has presented
to ns which can only excite onr abhorrence. His personal example
as a gnardian of the rights of the people cannot certainly command
admiration. He wrote a great booK which will live forever as a mon-
ument of his genius, learning, and industry ; but during his short
career as a statesman in Parliament he showed by a base desertion of
his own principles that the most enlightened understanding ever
given to man was not ciipablo of resisting the influence of party and
I>ower when called upon to decide between the rights of the subject
and the unwarranted pretensions of the Crown. Well might Junius
have said to him, when speaking of his action in the case of Mr. Wilkes:

Your lemming ought to teach yon, my lord, that laws are intended to guard
against what men may do, and not what tney will do.

It is evident from the course of the argument in support of Juris-
diction in this case that the power claimed for the Senate must be

Online LibraryUnited States. CongressCongressional record : proceedings and debates of the ... Congress → online text (page 67 of 172)