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it has been presented to this bodyfor decision. As it is the first time
so it may be, i>erhaps, the last. We are now to decide whether the
impeachment of anybody, whether in office or out of office, whether
a civil officer or not, can ever hereafter be tried. We are now called
upon to pass on the question whether there is such a remedy provided
by the Constitution to check and arrest official corruption. I do not
wish to state the question too broadly. I desire to be correct. Al-
though not attaching any particular importance to my opinions as an
individual, I am not unmindful of the fact that the opinions of each
and all of us will be quoted hereafter. We must not forget that we
are Senators, and that the seats we now occupy will be occupied by
others when we shall have left them. Upon us the Constitution has
devolved the decision of this question, and, as already stated, rt will
to a great extent be final. At great length, and I may say with
great ability, has it been discus^. It will not be my purpose to
follow the example set before me by seveml Senators. My inten-
tion is to be brief. I do not attach any importance to the large
number of impeachments and political trials which took place some
five hundred years ago in England under the reigns of John, Henry
III, and Edward I. All men at all acquainted witii history know the
I>olitical condition of that country during that period; an endless
contest for mastery between the nobility, headed by the great bar-
ons, and the king, both parties being compelled to introduce as much
foreign influence as i>os8ible as hdp in the contest. The king was
surrounded with foreigners from France, Italy, and Spain ; and on
their side the barons had their foreign mercenaiies and secret foreign
auxiliaries. In fine, the result was that internal confusion and dis-
order were the order of the day. Parliament was gradually assum-
ing form, shape, and power. Elections were yet, however, irregular,
and partook largely of the condition of the political disorder. Fac-
tion necessarily ruled, and the faction in power did not hesitate
to bring to trial its adversaries. Hence history i-ecords many bloody
trials, the shame and disgrace of this period of English history. Sen-
ators have argued that these trials were, however, sanctioned by the
common law, and that if we admit that the common law was intro-
duced into the Constitution by the provision in relation to impeach-
ment, that we not only sanction these bloody and shameful trials, but
that we thereby authorize the same in this country at this day. I
must say, Mr. President, that such arguments took me by surprise.
No one contends that the common law is a port and parcel of the law
of the Constitution in the sense that it is a part and underlies the
system of the States. The States existed before the Constitution, and
the English colonists brought witli them from their mother coun-
try the common law and implanted it into the colonies, and hence
this old common law permeates the systems of the States. But the
Constitution was an instrument made by the States for a definite pur-
pose and with certain defined p(»wer8. The conimcm law is not a
part of the Constitution unless it ia put there by express provision.
And when this is so, it is subject to all the limitations of the Consti-
tution.

The second section of article 1 says the House of Representatives
shall have the sole power of impeacnment.

The first question which necessarily presents itself to the mind is,
what is impeachment f And how can the question be answered with-
out going to the common law for the exposition ; it being the fountain,
the great head-souree from whence all our system flowsT The framers
of the Constitution were the sons and descendants of Englishmen, the



only country up to that day that had made any decided advance to-
ward liberty and a government of regulated powers. For fJthough it
is true that there was not and is not now a written constitution in En-
gland, yet it had at that day, and had had for centuries before, its great
Magna Charta and other well-defined and well-secured privileges, all
tending to a well-regulated system of free government. Although
it was a monarchy and had its nobility, neverUielcss it was in advance
of the other countries of Europe in securing to the individual man his
personal rights. From the days of Henry ill to the time of the adop-
tion of our Constitution the progress made in England toward good
government was immense. The common law— the old customs and
usages of the primitive inhabitants of the island of Britain — had been
molded and shaped by the great judges who at difierent periods of
time graced the bench, and the no less great lawyers who adorned
its bar. Holt, Bacon, Coke, Selden, Plowden, and hosts of others, bench,
bar, and great publicists had so shaped and crystallized those old ous-
toms that at the period of the formation of our Constitution the old
lex n4m scripta had become lex acripta. There was not a principle of the
common law but what became written law, and the crimes and bloody
trials which had taken place in the Parliaments of England five hun-
dred years before were not possible at the time of the adoption of our
Constitution — ^no more possible then than now. In this respect there
has been no progress, and perhaps there was room for none. At the
time we adopted the word impeachment in our Constitution we
adopted it as it was understood at that day in England. A reference
to the debates in the convention will show this. The framers of the
Constitution looked to no other country. The word impeachment is
said by Webster, in his Dictionary, to be derived from the French,
and means to hinder, to check, to prevent ; yet its legal meaning was
given to it by the common law, as much so as the word indictment.

Indeed, unless we go to the common law for its meaning and in-
terpretation, it has no meaning at all, and the power fluted to im-
peach would amount to nothing. No rule of oonstmction will justify
us in saying this. The ability, the character, the well-known repntar
tion of the great men who framed our Constitution forbid this. The
object was to confer a power, and a substantial one, to protect the
people from corrupt officials. In England at that day an impeach-
ment was a proceeding originating in the House of Commons charging
in proper form official malfeasance. Who was thus chargeable is not
at this day important, beyond the fact that all civil officers guilty
of corruption while in office were impeachable. Whether military
and naval men were or were not is of no consequence. It is enough to
know that civilians were liable, for offenses committed while in office.
Much has been said about military and naval officers not being im-
peachable. About this, I wish to be distinctly understood as not com-
mitting myself. I can see many good reasons why the leaders of our
armies and the admirals of our Navy should be subject to trial by
impeachment; but desiring to be as brief as possible I will not argue
that point, and will leave it an open question. The time may come
when it may become most important.

Section 2, first article of the Constitution, says :

The House of Bepresentatives shall have the sole power of impeachment.

The power, the sole power. No other body. No other tribunal has
that power; and why f Because the House is the direct and immedi-
ate body in which the people are represented. It is there that they
speak their potential voice. It is there that the Constitution gives
to the people, through their Representatives, the power to call to ac-
count the guilty officer — the officer who has either betrayed his coun-
try, has received a bribe, has been guilty of high crimes and mis-
demeanors, affectiuff the public welfare ; and I would ask where could
a power of this kind be better lodged than there f

As the sole power to impeach was given to the people, acting through
the House, the sole power to try was given to the Senate. If the
House has the power to impeach^ it. is the duty of the Senate to try.
The limit of power in one is the limit in the other. If the House can-
not impeach, the Senate cannot try ; and if the House has the right to
impeach, it is the imperative duty of the Senate to try. For the ex-
tent of this power we must necessarily ^o to the common law as un-
derstood at the time. We were certainly introducing an English
system— well known there, well understood, and about which the
legal minds of that country had already much written.

It is a significant fact that at that very time the most celebrated
trial by impeachment known to the world was going on, a trial
whose celebrity grew out of the character of the man who was
charged — the interesting country over which he was said to have
tyrannized, the remarkable men engaged both in its prosecution
and its defense — the trial of Warren Hastings, was at that very
time pendiuff before the British Parliament. Who was Hastings f A
Senator dwelt at some length on the fact thathe was not an officer of
the Crown, but of a private company. While it is true that the gov-
ernor-general of India was, under certain conditions and limitations,
appointed by the East India Company, he nevertheless was an officer
of the British Empire. While the gains and profits might belong to
the private company, the sovereignty of the countries subjugated be-
longed to the Crown. He was or had been a British officer, and it was
as such he was brought before the House of Commons. As already
stated, it is not important in this discussion to decide who all were or
were not liable to impeachment in England ; it is sufficient to say
that there a civil officer, as was Warren Hastings, was considered lia-



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144



TRIAL OF WILLIAM W. BELKNAP.



i'



ble to be tried. He was a civil ofiBcer who had been removed from
office— for he did not resign, he was recalled and removed ; and was im-
peached the year after his return to England. This great trial then
going on in England to my mind is sufficient to explain what the
&amer8 of the Constitution meant. But, in addition to this, we have
the words of the Constitution itself.

It is very plain to me that when you examine critically the power
given to impeach and to try, that the President as well as any other
person holding office is subject to impeachment. I have heard it said
during this discussion that as the king in England could not be im-
peached, so the President in this country was also not imi)eachable.
To my mind this is not correct. While it is true that in England the
king oonld not be impeached, for the reason that hisoffice is hereditary,
and as king he can do no wrong and is not responsible ; therefore he
could not be tried, because he was beyond the reach of the law. But
this is not so with regard to the President. Here he can do wrong,
and for which he is responsible ; elected by the people, and not hered-
itary. In this country he is, like any other officer, subject to the
same laws and equally responsible. Therefore I am satisfied he is
impeachable under the first section. Again, as this section provides
that when the President is tried the Chief Justice shall preside,
it must be that it was intended to include him as one of the offi-
cers thus liable. T see no reason why he should not be liable to im-
peachment, but very good ones why he should be, and as his name of
officeis mentioned in connection with a trial, I take it that be wassub-
ect to this mo<le of trial the same as any other person holding office.
[t is said in this first article that judgment in cases of impeachment
shall not extend further than to removal from office and disqualifica-
tion to hold any office. Leaving it optional with the Senate to im-
pose one or both of those punishments, a party convicted may be re-
moved and not disqualified, he may be removed and disqualified, or
he may be disqualified without being removed, and if he is not in
office he of course cannot be removed, it being a question of dis-
cretion with the Senate sitting as a court. I wish this fact to be
well understood, that the Senate has an undoubted discretion as to
the judgment. Whether it be considered a punishment or not there
is a diversity of opinion, but whether it be from my stand-point makes
no difference, the discretion certainly exists. Now if the Constitu-
tion had stopped there the power of impeachment would have been
complete, the power to try no less so, the power to give judgment in
its discretion equally so, complete in every respect. But we must not
forget that this remedy by impeachment was a great weapon placed in
the hands of the people, to be used for their benefit, and by them to
be employed to clean the Augean stables of the filtn and manure of
the bulls and oxen that might be found occupying the public stables.
Hence the further provision was made, fourth section, second article,
that in Ihe event the President, Vice-President, or any civil officer be
found guilty, he shall be removed ; therefore when either of these
persons was in office, there was no discretion as far as removal was
concerned, evidently showing that there might be a class of persons,
if convicted, towaid whom no discretion existed, and another class
toward whom there was discretion. These two classes are tirst the
persons who, while in office, commit a crime and do not remain in
office, and the other who is yet in office. I therefore consider that
this fourth section of the second article does not give jurisdiction,
nor limit it, and has nothing to do with the question of jurisdiction,
but is only mandatory.

This last section, to my mind, is proof positive that persons out of
office can be impeache<l ; otherwise there could be no case in which to
exercise the discretion evidently given by the first section.

No one can doubt that it was the intention of the framers of the
Constitution to confer the power of impeachment of some character
or other. Let the character of the power be what it may, or the class
of persons who may be embraced within it be who they may, a power
of this nature was evidently conferred. I repeat it, for it cannot be
repeated too often, this was intended to be a great power, placed in
the hands of the representatives of the people for their protection
against corrupt and venal officials. Now, if it is true that this power
thus conferred can be defeated by the guilty official resigning, it
miirht as well not have been nut in the Constitution. Resignation
will follow the detection of guilt in every instance ; and thus although
it might be that a Secretary of State may have betrayed his country
to a foreign power, or the Secretary of the Treasury stolen millions of
the public money, or any other officer from the President down shame-
fully disgraced his office, or a judge publicly sold justice from the
bench, it matters not who the officer may be or what he may have
done, all he has to do as soon as the fact is found out is to hand in
his resignation, and he can go scot-free as far as this reme<ly is cou-
oemed. It is true he may be tried by a court. But I believe that
when the day comes that the Senate will decline to try a guilty
official, and, as in this case, one who admits his guilt, but to avoid
impeachment has resigned the office which he abused, the day will
have come when it wiU not be very difficult to got out of the clutches
of a court. We all know how cases are continued and postponed and
how juries are formed. Let a guilty man escape the punishment pre-
scribed by the people's remedy of imi>eachment, and to my mind you
will proclaim a saturnalia for all rogues and villains to step forward
and help themselves. My hope, my only hope will then be in the
I>eople ; and it is to them I will feel it my duty to appeal to lest^fe
this great popular remedy. We cannot submit to be governed by



rogues and villains. The thieves must be driven from power; and,
Mr. President, I desire you and the Senators around me to remember
that whenever the fact is made known to the people that it has been
decided that a guilty man can escape trial by impeachment merely
by resigning his office, they will take steps to correct this decision.

Although there may be a majority for the jurisdiction, yet if there
is one-third opposed to it, I am satisfied from what has been said
that an effort will be made to get the party charged acquitted on the
ground that those who are opposed to jurisdiction cannot vote for
conviction. Let this be done, and in my opinion a storm will be let
loose that will sweep over this land, and as it passes over the valleys
and mountains and plains, there will be heard in the distance the ma-
jestic voice of the people crying aloud for a restoration of this, the
people's remedy, with which-aloue they can drive from office the vil-
lains and thieves who may have fattened at the public crib.



Opiiii«« •f nir. Booth,

DeHvered May 27, 1876.

Mr^ BOOTH. Mr. President, two theories of impeachment as ap-
plicable to the aucstion before us are submitted, one of which we must
adopt^ for no other seems to be possible ; and yet to my mind neither
is entirely consistent with all the provisions of the Constitution and
their accepted construction.

After listening to one of the ablest debates it has ever been my
privilege to hear, I am compelled to the conclusion that the doubt
exists in the Constitution itself, and arises from the fact that the con-
vention did not consider the whole subject of impeachment and de-
termine all its provisions at one time, but agreed upon each with ref-
erence to a special object ; and the difficulty is insuperable in the at-
tempt to reduce uncertainty to certainty.

The theory in favor of jurisdiction is that the term impeachment
in our Constitution does not mean simply form of accusation, but
imports the whole of the common law in reference to impeachable
persons and impeachable offenses, giving to Congress the exact juris-
diction which was held by Parliament, and vesting in it plenary
power of punishment, restricted only by all these by the provisions
of the Constitution ; that is^ that the use of the word impeachment
in providing for a method of accusation and trial is a grant to Con-
gress of all the power which could be exercised by the British Par-
liament on that subject, and that subsequent provisions, when not
definitions of the methods of its exercise, iu» restrictions upon the
grant.

In support of this theory as to definition, it might be suggested
that the first clause in reference to the subject reads :

The House of Representatives shall choose their Speaker aod other officers; luid
shall have the sole power of impeachment.

The word ** Speaker '* in the same clause is purely technical. It is
not defined directly or indirectly by its use in any other connection.
We are obliged to go to the British Parliament for its meaning. So
far as I know, the House of Commons is the only parliamentary body
in the world that had ever designated its presiding officer by that
name, or a translation of it. Like many other words, it has drifted so
far from its origin that the Speaker of the House is the only member
who cannot speak. When he speaks he is not the *' Speaker.'' To
make the argument drawn from this complete, it must follow that the
presiding ofScer of the House of Representatives, by the use of the
word speaker is invested with all the prescriptive rights and func-
tions of the speaker of the House of Commons.

That part of the sixth clause of the third section which provides
that " the Senate shall have sole power to try all impeachments " is
only important in this connection as indicating that the common-law
idea was a controlling one in the mind of the convention as shown
in adopting a method of trial similar to that of Parliament. True
this was done after other methods were discussed, but its final adop-
tion is evidence of a disposition to keep within the line of precedent.

I pass for the present to the next and immediately following clause
in the Constitution :

Judgment in oases of impeachment shall not extend farther than to removal
from office, and disqualiQoation to hold and e]\}oy any office of honor, tmst, or
profit under the United States. Sec

This clause seems to me the strongest corroboration of the common-
law theory of jurisdiction to be found in the Constitution. It is re-
strictive. Restrictive upon what T Certainly not u^on any subse-
quent clause of the Constitution, for the Constitution was to be
operative as a whole— all taking effect atone time. It would be absurd
for a convention making a constitution to attempt to-day to restrict
its own action to-morrow, when its whole work was to be adopted
or rejected by the people as one instrument. And if idter agreeiug
npon these words they had adopted a suliseqnent provision that the
Fi:esident of the United States upon impeachment for and conviction
of treason should suffer death, by a well-known rule of construction
the latter clause would prevail.

There are no affirmative wonls in this portion of the clause; it is
prohibitory. It is doubtful if under such a clanse in a sta,tnto a<:rim-
inal court could pronounce any judgment, unless a general or specitio
power to pronounce any or some judgment were elsewhere couferrod.



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TRIAL OF WILLIAM W. BELKNAP.



145



It may be argned that it is permissive, bat a criminal court takes
notbing by implication. The clause, however, is consistent with the
theory that the Senate was already clothed with the general power
of punishment which attached to the House of Peers, and these words
were restrictive of that power. To my mind this sentence must have
meant this at the time and in the connection in which it was used, or
it was designed as a limitation upon the power of Congress to enact
statutory i>enalties for impeachable offenses.

Being a restriction upon punishment, it must have been a restric-
tion upon a power to pimish then in esse, or a restriction upon a power
to create penalties.

Section 4 of the third article is susceptible of a construction con-
sistent with this theory. It reads :

Th« President. Vioe-President. sad all ciTil offioen of the United States, shall be
removed from office on impeaohment for and conviction of treason, bribery, or
other high crimes and misdemeanors.

The nautral meaning of the words ** shall be removed from office
on impeachment for/' £o^ is that these persons were before that subject
to impeachment. The grammatical meaning of the sentence, leaving
out all question of legiQ construction, is that removal from office is
mandatory in the cases enumerated. To invoke the rule of construc-
tion in this view, indutio uMuBj exduHo aUerUu, seems to me to be a
^Hiio prindpii, for whether this sentence is to oe construed as inclu-
sive and exclusive as to parties or mandatorv as to punishment is the
whole i^nestion at issue. If the latter be tne true meaning, it cer-
tainly includes all persons who can suffer that punishment, and there
is no room exduHo alterius.

It is to be borne in mind, also, that the authors of the Constitution
were familiar with the common law or lex ParliamenH of impeach-
ment ; that it was consciously or unconsciously in their minds as the
basis of their proceeding. ^

Whether they desired to fit a known instrument to their purpose
or to invent a new one they would use common-law terms. They
lived, so to speak, in the atmosphere of the common law^ and thought
in its language. If they had said ^' the President, Vice-President,
and all civil officers of the United States shall be subject to impeach-
ment for treason, bribery, and other high crimes and misdemeanors
committed in office, and upon conviction thereof they shall be re-
moved from office and may oe disqualified from holding office under
the United States,'' I, at least, should have had less difficulty than I
have with this case.

So far this '^ common law" theory seems consistent with itself;
that is, that in the subject of impeachment the whole power and juris-
diction of the British Parliament is vested in Congress ; that the
methods of their exercise are prescribed ; that there is no limitation
except that imputed by the word impeachment itself, ex vi iemUnL
as to persons and offenses ; that punishment is restricted to removal
from office and disqualification to hold ; and that removal from office
must follow the conviction of one jiolding office at time of conviction.

I am compelled to the admission that I believe this would have



Online LibraryUnited States. CongressCongressional record : proceedings and debates of the ... Congress → online text (page 69 of 172)