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derived from the second section of the first article of the Constitu-
tion, or it cannot be found at all. I have endeavored to show that
this provision of the Constitution is not the source of jurisdiction in
cases of impeachment, and that all our power in such cases must be
derived trom the fourth section of the second article, which confines
our jurisdiction to the President, Vice-President, and all civil officere
of the United States. The construction for which I contend, while
consistent with the true theory of the Federal Government, gives
e£fect to every provision of the Constitution on the subject of im-

It leaves to the House of Representatives the sole power of origi-
nating and prosecuting the charges or accusation. It ^i ves to t he Sen-
ate the sole power of trial and judgment, but it limits the power of
impeachment, like the judicial and every other power in the Consti-
tution, to the expressly enumerated cases pr6scribe<l in the fourth
section of the second article. This section confines our ptower to the
President, Vice-President, and all civil officers of the United States,
and provides for their removal from office on conviction of the offenses
designated in it.

But it is contended that this is not the true construction of the
fourth section ; that the object of this provision was to make removal
from office imperative on the Senate, as before stated in my argu-
ment. In other words, this is the judgment clause, so far as removal
from office is concerned.

But we have been told that there is another judgment clause in the
Constitution relating to the same subject. I refer to the seventh clause
of section 3, article 1, of the Constitution, which is as follows :

Judgment in oases of impeachment shall not extend further than to removal
from office, and disqualification to hold and ei^oy any office of honor, trust, or
profit under the United States.

This clause has had ^^reat weight in the argument in favor of juris-
diction because it permits the Senate to disqualify the offender. The
Constitution first provides what body should prefer the charge ; then
it provides the tribunal which shall try it, the j)ersons who shall be
subject to impeachment, and the Judgment which shall be rendered
in case of conviction. By construing the fourth section of the second
article as a judgment instead of a Jurisdictional clause, you destroy
the harmony and logic of this arrangeuient.

But if this provision was only intended as a judgment clause why
did not the framers of the Constitution incorporate into it all that
they intended to say upon the subject of judgments in cases of im-
peachment f They put into the Constitution a distinct clause relat-
ing to judgments in such cases, and in it they provided for the same
removal from office which it is contended the fourth section of the
second article was intended only to secure. A statement of this propo-
sition is enough to show that the construction contended for by the
managers cannot be correct.

The people, we are told, will not allow this power to be employed
for oppressions. Sir, my iimit>ed reading has taught me to look for
securities for our liberties to a very different quarter. " Put not your
trust in princes^' is a maxim which will apply to all men in power.
If this argument is good at all, it only proves that there is no necessity
for any restrictions on public authority. But have we not examples
enough to show us that the weakest and most unreliable security
against oppression is the supposed justice and moderation of public

Some of the greatest and purest men that ever lived in this country
were charged with having committed oppression. Judge Chase was
an able and a pure man. No charge of corruption was ever brought
to his door. Still we are told that he was a Judicial tyrant, and that
the liberties of the citizens were not safe in his hands. General Jack-
son was the purest of the pure. His uprightness and honor were never
questioned. And yet he did not escape the imputation of having
disregarded the laws. Go back to 17^, and look at the policy of
oppression which was then inaugurated under the alien and sedition
laws, and by the greatest and pui^est men of that day.

Look to the case of Matthew Lyon, of Vermont, a member of Con-
gress, who for a mild criticism on the policy of the men in power
was thrown into prison by a judge of the Supreme Court and subjected
to a heavy fine. He thought the liberty of speech and of the press
was safe in the hands of those who had undertaken to uphold the
Constitution I But he realized his folly in the darkness of his dun-
geon and by the clinking of his chains. The nefarious law under
which that innocent man suffered was advocated in Congress and

maintained beforo the country by the very same arguments which
have been used in support of the comuion-law power of impeach-
ment, and I adopt here as part of my argument the speech of Mr.
Otis in 1798, to show that the doctrine I am now combating is the
same which he then advocated in order to muzzle the press and gag
the mouths of the people. He said emphatically that the common
law of England might be looked to for the purpose of ascertaining
the meaning of impeachment, and in almost the same breath con-
tended that the same law relating to libels was part of the jurispru-
dence of the United States.

Mr. President, the more I reflect upon the character of this com-
mon-law Jurisdiction the more I am shocked at it. All the caution
and guarded language of the managers cannot keep it within limits
whicn are safe or reasonable. Mr. Manager Hoak s^ys, on page 17
of his argument :

It is well settled that all abuses of official trust are impeachable in Parliament.
At common law there is no limit as to person ; there is no limit as to time ; there
is no restriction as to the character of the punishment, save the discretion of the
two Houses.

The power is here fairly stated. Will Senators answer me what
is official trust within the meaning of the British law f Was it not
asserted in Hastings's trial that any dereliction of duty which affected
even remotely the honor or the interests of the empire came within
the jurisdiction of Parliament? Do you not remember that Hastings
claimed that he was not subject to impeachment because he was an
officer of a chartered company whose nghts and privileges were dis-
tinct from those of the Crown ? He was a servant of a company of
merehants to whose trading privileges were added powers of govern-
ment. He was not appointea or commissioned by tne Crown, and all
his actions in India were approved by the company which invested
him with power.

I speak of this to show that all persons in anyway connect'Cd with
puldic interests, whether their power emanate from the government
or not, are subject to impeachment in England. Now it is said that
the sole power of impeacnment delegated by the people of the United
States to the Senate and House of Representatives is to be regarded in
the same light as all other positive grants of authority to this Govern-
ment, the same as the power to make war, coin money, &c. The power
of impeachment in England is co-extensive with the whole empire,
and reaches every officer connected with the public service, whether
local or colonial. If this power has, as is claimed, been delegated to
the United States, how can the States exereise any part of it f The
power to regulate commerce, the power to make war, the power to
coin money, and the sole power of impeachment are all vested in this
Government. If this power is not to be confined to officers of the
United States, ss we contend, according to the fourth section of the
second article of the Constitution, why may it not be made to operat'O
upon the officers of States the same as the English power upon the
officers of the East India Company or those of the government of
Canada f

Do not the governors and officers of States owe as much to this
Government as Hastings did to that of Great Britain f All State offi-
cers are obliged to take an oath to support the Constitution of the
United States, and the violation of such an obligation on the part of
a public officer is Just as much impeachable as any offense that can be

What reasons can be given for making a distinction between the
sole power to make war and raise armies and the sole power of im-
peachment as it exists in England f The States cannot make war,
raise armies, or regulate commerce. Why ? Because these powers
are delegated to Congress. But the sole power of impeachment is
given to the same bodies in language equally as broad as in the other
cases. Why will not the same rule of construction apply to both f
The governors and other officers of States may violate tne Constitu-
tion of the United States as well as officers of the General Govern-
ment. The Constitution of the Union makes it the duty of the execu-
tive of a St^te, upon demand of another executive, to deliver up a
fugitive from justice. If this duty is violated, why may not the offi-
cer be imi>eached by Congress, according to Englisn precedents f

A governor of a State may commit treason against the United
States. Surely that would be an impeachable offense. Why not re-
move himf But I know it will be said that the power of impeach-
ment in the Constitution of the United States must be confined to
officers of the Unit-ed States. But why restrict the power here more
than in England f No reason or argument can be made or assigned
for such restriction that is not derived from the fourth section of the
second article of the Constitution, which confines this power to civil
officers of the United States. I have always thought that any power
which Judge Story said did not belong to the General GKivemment
no one could prove to exist. No man who reads his views upon the
subject now under consideration can doubt for one moment how he
would have decided the question if it had been beforo him as a judge.
Mr. Curtis, in his Commentaries, speaks out explicitly. He says :

Impeachment is not necessarily a trial for crime, its purposes lie wholly beyond
the penalties of the statute or customary law; it is a proceeding to ascertain
wheuier cause exists for removing a public officer from office.

He says that such cause of removal may exist where no offence
against public law has been committed, and instances imbecility and
maladministration as crimes of removal. (Curtis on the Constitu-
tion, page 360.)

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That careful writer, Chancellor Kent, speaking of impeachment,

The Preflidesnt, Tioe-Flresideiit, and all civil officers of the TJnited Stotee mav he
impeached by the HoaAe of BepresentAtives for treaeon, bribery, and other bixh
crimes and misdemeanors, and. anon conviction by the Senate, removed from office.
(1 Kent's CommentAries, lage dOsi)

Ib it not plain that this great discriminating lawyer looked only to
the fourth section of the second article of the Constitution as the
sonrce of this power T

In the same work he discusses at great length the. common-law
Jurisdiction of the courts of the United States, but it never occurred
to him that there was such a thing under our Constitution as common-
law jurisdiction in cases of impeachment.

Mr. President, it cannot be forgotten that this Qovemment when
first put in operation was regarded as an experiment. It was watched
over with great anxiety by ite friends ana elicited the most gloomy
forebodings from its enemies. Some thought it had too much power,
others that it had too little. But there was a little band of patriots
and statesmen who fondly imagined that it was the most perfect
institution of the kind that had ever been created. Those men were
not admirers of England or of English government. They thought
and felt that the renuements and tyranny of the feudal system were
not well adapted lo the free spirit of America. They favored strict
limitations on all powers which touched the liberty, life, or property
of the citizen. They were for freedom regulated by law; but they
cherished a fierce enmity against all undefined power. Foremost
among these stood Jefferson and Madison. The one had breathed
into the Declaration of Independence the spirit of the purest liberty.
The other carried it down as Franklin did the lightning of heaven,
applied it to practical purposes by making it the foundation of a
written constitution. When the fortunes of party had placed the
noble work of these great founders of our Constitution in han4ls which
they considered unfriendly to its principles, they watched over its
convulsive and irregular operations with the same care and solicitnde
that Itie most devoted parent would watch the progress of disease
when it seizes the health and vigor of bis offspring.

In 1798, when the same claim of power in cases of impeachment
which is set up to-day was asserted, the subject attracted the notice
of Jefferson and Madison. This common-law doctrine of imi>each-
ment put forth at that day, and now resuscitated, was denounced by
Madison as the most extravagant folly of the period. The corre-
spondence is here before me, and I will read it for the information of
tne Senate, and I believe that the conclusion at which I have arrived
which denies Jurisdiction in this case is in strict accordance with the
principles of those distinguished men, and is the true constitutional
doctrine on the subject.

This correspondence has reference to the trial of Senator Blount,
the first caae of impeachment which occurred under our Constitution.
I stated that this trial took place in the era of the alien and sedition
laws. The Federal party was in power. The managers in that ca«ie
contended for a like construction of the Constitution to that which
the present managers contend for.

It was then insisted, as it is now, that the fourth section of the sec-
ond article of the Constitution was not the sonrce of Jurisdiction, but
that the second section of the first article conferred upon the Senate
and House the common-law power of imjfeachment.

There is, however, agreat difference in one respect between the argn-
ments of the managers in the Blount case and the argiiments here.
Thei-e it was admitted that the common-law power of impeachment
contended for extended to all persons and all officers, State and Fed-
eral. Here it is denied that it can be extended to private persons,
but properly applies only to official offenses. But is there not in this
very difference of opinion respecting this power enoueh to induce us
to disregard both it and its source f This shows the danger of rely-
ing upon construction in cases like this.

The managers in 1798 stated, I think, the true common^law doc-
trine, and they claimed for this Qovemment nothing but what was
included in it, as they understood the English law. But the present
managers, looking to the very same provision of the Constitution for
Jurisdiction which the former did, in deference, I suppose, to the ad-
vanced spirit of the age, tell us that the common law has always lim-
ited impeachments to official crime. The letter of Mr. Madison which
I will now read alludes to the claim of power set up by the managers
in Blount's case, and I have shown that the very same provision of
the Constitution was invoked to sustain it which is relied upon by
the managers here. Still Mr. Madison characterizes the claim of
power set up in 1798 " as the most extravagant novelty yet broached*'
DV that party which carried through Congress in the same year the
alien and sedition laws. Here is his letter to Thomas Jefferson :

March 4, 1798.

Dkab Sir : Mr. Tazewell's speech is really an able one in defense of his proposi-
tion to associate juries with the Senate in cose of impeachment. His views of the

8«ib|ect are so new to me that I oncht not to decide on them without more exami-
nation than I have had time for. Mv impression has always been that impeach-
ments were somewhat sui generit, and exclude the use of Juries. The terms of the

amendment to the Constitution are indeed strong, and Mr. T. has given them, as
the French say, all their liutre. But It is at least questionable whotbor an appli-
cation of that amendment to the case of impeaehmenta would not push his doc-
trine further than he himself would bo diMpoiHMl to follow it.

It would seem also that the reservatiou of an ordinary trial by a Jury must
strongly imply that an impeachment was nor to be a trial by Jury.

As removal uid disquAuficatiou, the puuiMhmeuts wiililu the impeaching juris-

diction, were chiefly intended for offices in the executive line, wonld it not also bo
difficult to exclude executive influence from the choice of juries ; or would }\v ies
armed with the impeaching power and under the influence of an unimpeachable
tribunal be less formidable than the power as hitJierto understood to be modified ?

The universality of this power is the most extra va^i^nt novelty that has been yet
broached, eepeciatly coming from a quarter that denies the impeachabllity of a Sen-
ator. Hardy as these innovators are, I cannot believe they will venture yet to hold
this inconsistent and insulting language to the public. If the conduct and senti-
ments of the Senate on some occasions were to be rcM^arded as the natural and per-
manent fruit of the institution, they ought to produce not only disgust, but de-
spair, ill all who are really attached to free government But I cannot help ascrib-
ing some p«rt of the evil to personal characters, and a great deal of it to the pres-
ent spirit of the constituents of the Senate.

Whenever the State legislatures resume the tone natural to them, it will probably
be seen that the tone of their representatives will vary also. If it should not, the
inference will then be unavoidable that the present oonstitation of the Senate is
at war with the public liberty.

A few of the grave inconsisteneies resulting from the argoments
of the managers I will now enumerate :

First. We are told tliat onr Jarisdiotion is derived from the second
section of the first article of the Constitntion.

Second. That it is to be governed only by the limitations attend-
ing the exercise of the impeaching power in England, namely, offi-
cial offenses.

Third. That the fourth section of the second article of the Consti-
tntion is not a limitation npon the power of Impeachment, but only
a mandatory provision to compel the Senate to remove the officers
therein named when convicted.

According to this argument, the broad power of impeachment ex-
ists nnder onr Constitution the same as in England. Therefore ail
officers of every description, high and low. State and municipal, are
subject to this power, because thejr are subject in England.

2. The power of removal given in the fourth section of the second
article can only operate on the class of officers named in it, all civil
officers of the United States ; but every other description, naval and
military, &c.. State and municipal, do not come under the provisions
of this section, and the^ may be dealt wjth according to a different
rule. If they are convicted of treason or bril>ery, the Senate is not
compelled to remove them, but may censure them and let them go
their way and sin no more.

Again, the crimes, treason, bribery, and high crimes and misde-
meanors, specified in the fourth section of the second article, cannot,
according to the argument, be regarded except for the purpose of fur-
nishing grounds for the simple removal of civil officers of the United
States. In all other cases we are not bound to look to the Constitution
for the offenses which will justify impeachments, but must be guided
by the unlimited theories of the common law. Hence we have two
different and distinct rules made applicable to persons subject to im-
peachment under our Constitution.

In the case of a civil officer, whose removal is imperative when con-
victed of treason or bribery, the Constitution has placed some lioiitu-
tions upon the power of removal. In the case of a naval or military
officer, or Senators or Representatives, all of whom are within the com-
mon-law power of impeachment, and beyond the protection of the
fourth section of the second article, they are at the absolute mercy of
the impeaching power and may be dealt with at the discretion of the
Senate and the House. These conclusions are inevitable from the
arguments of the managers, and to this doctrine I never will sub-

Mr. President, if there was no other argument against the exercise
of this dangerous Jurisdiction than that which is founded upon the
absence of a single precedent to sustain it, that argument wonld be
sufficient fur me. Cases have arisen in our history which called for
the exercise of this power. Why was it not put in practice f From
the origin of the Government until the present hour not a single in-
stance can be shown of an impeachment of an officer after he left
office. Does not this amount to a construction of the Constitution ?
And why should a construction so long acquiesced in be departed from
nowT •

Mr. Manager Hoar says that this Government has no secnrities to
throw away. I say^ sir, that the greatest danger to which the Govern-
ment is exposed is in the gradual usurpation of powers not delegated
to it. The people have been made so familiar with excesses of au-
thority until they seem indisposed to question for a moment the power
of the Government to do whatever it pleases. Placed here as a Judge
in a case confessedly criminal, with a special oath resting upon my
conscience to obey the Constitution as I understand it. I shall not
consider for one moment what the world may think of tne judgment
I now give. My opinion may be founded in error. I claim no infal-
libility for my Judgment, but af tor the most patient and anxious con-
sideration of this great question, after looking for light to guide my
poor understanding in every quarter where I thought it could be
found, and with no feeling of party or of prejudice, I unhesitatingly
say that in my opinion the Senate sitting as a high court of impeach-
ment has no Jurisdiction under the Constitution of this case.

I am not insensible of the greatness of this occasion or of the impor-
tance of having safeguards to secure the interests of the people ;
neither am I indifferent to the great danger of resorting to the exer-
cise of loose constructive powers, however desirable they maj' be. I
cannot forget that I live under a Government which rests upon the
broad foundation of popular rights ; that I am in the councils of a
country where the people are all powerful as we 1 as all just, and that
the surest guarantee for the efficiency and purity of our public ad-

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ministrations is to be found in the virtne and honesty of those whose
interests alone are involved in their degradation and elevation. Nor
taxk I able to see that those maxims and principles which were made
to cnrb the power of royalty and hereditary tenures have any appli-
cation to a government in which all offices are derived from the peo-
ple, and all but the jndicial are subject to the control of law. I am
not unmindful of the fact that even in the purer and better days of
the Republic the people were conversant with the dangers to be appre-
hended from comipt officials. But I cannot banish from my recollec-
tion what the history of all past times has eneraven ui>on my mind,
that in providing securities against the inroads of official criminals
Boch an end is dearly purcha^ when it is reached by a sacrifice of
the liberties of the people.

Opliii«B •£ Mr, B«fr»

VeUvered May 27, 1876.

Mr. BOOT. Mr. President, it was not my intention at the begin-
ning of this discussion to say anything. On the contrary, I had
deemed to give a silent vote. And I would not now alter this pur-
pose if I had not become satisfied from what has been said by certain
senators during the course of the debate that in this preliminary
question of Jurisdiction was involved virtually the decision of the
greater question whether the party impeached was guilty or not
guilty. This being so, and viewing the siibject, as one of the most im-
portant which can be presented to the decision of the Senate, I feel
It to be my duty to give the reasons which control my vote. What we
decide — indeed, what we say in this discussion, although only one of
jurisdiction — ^will be looked to as a precedent, and quoted in aftertimes.
The question cannot be said to be entirely new, yet it is the first time

Online LibraryUnited States. CongressCongressional record : proceedings and debates of the ... Congress → online text (page 68 of 172)