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been the interpretation of the provisions upon this subject by the men
who in convention assembled gave expression to the Constitution of
the United States if they had been called upon to express an opinion,
and not to make a Judicial determination; and, if the meaning of the
Constitution is to be ascertained simply by that kind of '' mind-read-
ing," that is the interpretation we must adopt. For myself I do not
think this the true rule for interpreting a constitution. The Consti-
tution did not live until adopted by the people of the States. We
must consider their ideas as well as the convention's. It lives now
by, for, and through the people of to-day. It is for them, not they
for it. We must calculate its meaning in the light of events, by Ju-
dicial decisions, by the meridian of 1876 as well as 1789. The Consti-
tution of the United States is not dead, but living. If it were an in-
crustation, not a living body, it would long since have stifled this
nation or been destroyed by it

To suppose that its authors could have anticipated the wants and
necessities of coming times and provided for the exigencies of human
life in this everincreasing volume in fixed and unchanging terms
would be to attribute to uiem omniscient wisdom.

I wish to state the paradox as my belief that the Supreme Court of
the United States, that this body to-day understands the Constitution
of the United States in its application to affairs as they are better
than the convention which framed it, and this generation far better
than the generation which adopted it ; as much better as the courts
now understand the statute oi! frauds in its application to present
transactions than it was understood by the Parliament which adopted
it, or as the people do the rights protected by kaheae carpus than the
generation did when they were first vouchsafed that great writ for
xheir protection.

The difficulty in the common-law theory lies at the foundation.
To make it consistent with what is accepted upon all sides as the
law governing us, and what has been at least assumed to be the law
in every impeachment trial in this country, impeachment at common
law must have been restricted to offenses committed in office. The
history of impeachment in Great Britain not only fails to sustain this
to my mind, but refutes it. In the case of Blount (the first in the
United States) it was held that Blount could not be impeached be-
cause he did not hold office under the United States when the offense
was committed. And the practice of the country with universal ac-
qniescence further limits the rule to civil office. There are very co-
gent reasons why this should be so. Now, if this limitation cannot

10 I

be found in the common law it must be sought in the Constitution,
and it can only be found there in the fourth section of the second arti-
cle. Now, whether we construe this section as a limitation upon a juris-
diction already vested or as the creation of Jurisdiction, it clearly
means that only persons in office can be impeached. That is, if we
are driven to this section to find a limitation which is conceded to
exist, we are compelled to find the whole limitation contended for.

But this section is not only a limitation ; it is aJbo an extension of
Jurisdiction. As first suggested by the Senator from New York and
brought sharply out by the Senator from Minnesot<a, the President,
as the executive head of the Government, was not impeachable by
any analogy of the common law. His position does not correspond
to that of the king who was not impeachable or to the prime minis-
ter who was. Story very ahlj argues, and refers to this very section of
the Constitution in confirmation, that the President is not an officer
of the United States. As was tersely said by the Senator from Mas-
sachusetts, [Mr. BouTWELL,] " He is a part of the Government." He
was made impeachable by this section, and the President is so closely
linked with civil officers that they cannot be separated for purposes
of Jurisdiction. In this view the rule that including a class excludes
others becomes operative.

It is true, as suggested by the Senator from Missouri, [Mr. Bogy,]
that section 3 of the first article of the Constitution provides that
" when the President of the United States is tried " (on impeachment)
" the Chief Justice shall preside," thus raising an implication that
the President was impeachable ; but the history of the oebates in the
convention shows that this provision was not Agreed upon until after
the adoption of the fourth section of the second article, and that its
precedence in place was assisted by the '' committee on style." In
fact it was first reported by tnis committee, after all other provisions
in regard to impeachmeut had been determined by the convention.

Where private rights are in issue, the general opinion of constitu-
tional construction should have little weight, but where public rights
and considerations are only involved, public opinion, that public
opinion which can alone give the Constitution any vitality as a po-
litical instrument, becomes a sreat factor. I take it then to be ac-
cepted American law here ana elsewhere, to which there is genersil
acquiescence, though there may be individual exceptions of opinion,
that only offenses are impeachable which are committed in civil office,
and that these offenses are those enumerated in the fourth section of
the second article. This is the law ; so generally accepted that it is
the one firm and stable thing amid the shifting sands and changing
winds of opinion and debate. We have one point fixed. Fixed not,
I admit, by the clear intention of the men who wrote the words of the '
constitutional clauses, but by that far greater intelligence and more
infallible rule, a hundred years of experience ; by the inertia of ac-

Is it possible to deduce, can you deduce that fixed rule from the
vague, shadowy, undefined, and undefinable custom of Parliament
which is only a custom in that it is above law — conforms to whatever
it desires and borrows or repudiates the example of yesterday in order
to sanction the ri^ht or establish the wrouff of to-day at the whim or
caprice of its omnipotent but changing will f

Who here, elsewhere, or anywhere can tell ^ow much of what is
called the common law of impeachment is derived from precedents
in impeachment trials and how much from the theory of the onmipo-
tence of Parliament?

Sir, for one I will not believe that this undefined law ever became
by adoption a portion of American Jurisprudence; that this vast
power was properly vested by implication in Congiess. Any inten-
tion to place it there must yield to the spirit of the whole instrument.
If grafted there, it did not grow. If planted there, it did not take

With the Senator from Wisconsin, [Mr. Cabiebon,] I can find in the
Constitution enough to create the proceeding of impeachment, with-
out receiving anything from inheritance or taking anything by im-
plication. Ifind there a class of persons, an enumeration of offenses
which are impeachable ; only one penalty which is enjoined by affir-
mative words, one limit which cannot be transcended.

I know that as a matter of verbal criticism or legal construction of
language neither theory is perfect, but in the one I stand within secure
limits of actnid grant, in the otner in the va^e and shadowy un-
known. In the one I stand within the rule of interpretation which
has been found to be safest and wisest for the whole instrument, in
the other I make this procedure an excrescence upon the body-politic.

If the time should ever come when the power to impeacii after office
is necessary to secure the proper administration of office, society will
be so corrupt and the motives of public moralitn^ so low that the Re-
public cannot be saved with it, and would not be worth saving if it

OFiMi«ift •f 9f r* Key,

Delivered Ma^ 29, 1876.

Mr. EET. The provisions of the Constitution material to our con-
sideration on this question are these :
The HouBe of Bepresentativee * * * shall have the sole power of impeach*


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Second —

The Senate shall have the solo power to try all impeachmonts.


Judgment in cases of impeachment shall not extend further than to removal from
office, and di squaliflcation to hold and enjoy any office of honor, trust, or profit under
the United States.

Fourth —

The President Yice-President and all civil officers of the United States, shall be
remored from otflce on impeachmentfor, and conviction of, treason, bribery, or other
high crimes and misdemeanors.

These are ffiven her© in the order in which they stand in the Con-
Btitntion, and it seems to me that when they are thas collated they
are so pl^tn and explicit as to leave little room for constraction or
doubtful interpretation.

The first gives the Hoase of Representatives the sole power to im-
peach. I confess that I do not comprehend that rule of strict con-
struction which does not find a pK>wer where it is expressly granted,
and discovers it, by implication, in a clause in which no sucn power
is given. Strict construction of an instrument finds the power in the
language in which it is given. There is as much of latitndinons con-
struction in refusing to find a power in the words by which it is given,
as by forcing an implication of the power from language which does
not authorize it. A strict construction eliminates and ascertains the
powers delegated from the language as expressed, and will assert a
power whicn plainly exists as strongly as it will deny one raised only
by forced implication. It appears to me, therefore, strange that al-
tnough the Constitution says that *' the House of Representatives
shall have the sole power of impeachment," yet these words do not
give it the " sole power of impeachment,'' and that you must go some-
where to find that power where nothing is said about it, and that a
strict construction of the Constitution requires this.

The first provision grants to the House of Representatives the sole
power to impeach. The second gives the Senate the sole power to
try the impeachment. The third declares that, should the Senate
convict the person impeached, the judgment shall extend no further
than to removal from office and disqu^ification to hold office under
the United States. The fourth provision says that if the President,
Vice-President, or any other civil officer of the United States shall be
convicted on impeachment for treason, bribery, or other high crimes
and misdemeanors, he shall he removed from office. The Constitution
does not say that the President, Vice-President, and other civil offi-
cers of the United States only shall be impeached. It bears no such
construction, in my opinion, unless it be forced by the widest impli-
cation. It does not say that only treason, bribery, and high crimes
and misdemeanors shall be impeachable offenses. We can aU see how
a case might happen which would demand the removal of a public
officer who had been guilty of no such offense. Suppose a President,
by injury, disease, or other cause, should become imbecile to such an
extent as to make him incompetent to discharge the duties of his high
office — suppose he should insist on the exercise of the functions of
the office to which he had been chosen, believing himself fully qual-
ified to discharge them, how should we get rid of him f He cannot
be said to be guilty of treason^ of bribery, or of high crimes or mis-
demeanors, for these are all criminal offenses, and an evil intent is a
necessary ingredient of the charge, and there is with him no such in-
tent. It is true the Constitution provides that in case of the removal
of the President from office, or of his death, resignation, or inabilitv
to discharge the powers and duties of the office, these duties shall
devolve upon another ; but how are you to ascertain and determine
his mental inability when he denies it from honest belief, and asserts
with equal confidence his ability to discharge its duties, if not by im-

The Constitution does not undertake to define the nature and form
of impeachment, or its scope and boundaries. It treats of the whole
subject as of a matter which is already defined, bounded, and under-
stood. I think the House of Representatives may impeach for other
offenses, abuses, failures, and wron^ than those included in the
terms " treason, bribery, and other high crimes and misdemeanors."
I think it may impeach other parties than the ^* President, Vice-Presi-
dent, and other civil officers of the United States.*' Upon no other
hypothesis, it seems to me, can we reconcile and harmonize the pro-
visions of the first and second articles of the Constitution defining
the extent of punishment or penalty. The first says that judgment
shall extend no further than to removal from office and disqutQifica-
tiou to hold office. That provision is general, and, everything else
out of the way, allows the Senate to remove and disqualify partially
or entirely, or to remove or to disqualify, in its discretion ; out as this
might not be sufficient in some cases, the second article says that
if the President, Vice-President, or otner civil officer of the United
States shall be convicted on impeachment, he shall be removed. To
that extent the Senate shall have no discretion, but it may still dis-
qualify or not. If others are impeached, the Senate may or may not
remove : but if the President, Vice-President, or other civil officer is
suocessmlly impeached for treason, bribery, or other high crimes and
misdemeanors^ the Senate shall remove. If the second article defines
who shall be impeached and the offenses for which they may be im-
peached, removal from office is the imperative x>enalty, and the pro-
vision in the first unmeaning. It would follow also that the party
could only be impeached for treason, bribery, and other high crimes
and misdemeanors.

We must interpret the law strictly and as it is written. We are
not to make the law. We are not to determine whether the Consti-
tution contains such provisions as we should have made or not, or
whether they might be improved. We must not obscure it, or render
it inefficient and powerless by latitudinous construction or forced im-
plications. The language of the Constitution in regard to impeach-
ment, when considered in the order in which it stands, the order in /
which it was placed by its makers — its regular and natural order, so
to speak — appears to me easy of interpretation, and so clear and ex-
plicit in its terms as to need the application of none of the rules of
construction used for ambiguous or doubtful provisions. To my mind,
it appears that the difficulties of the question under consideration
arise, not out of the Constitution, but from the latitude of opinion
which has been taken heretofore in regard to the implications of the
language used, and which do not properly belong to it, when that
language is defined in its natural order, according to its plain and
simple meaning.

In giving expression to the opinion I have upon this question, I '
wish to be understood as doing so with becoming modesty and diffi-
dence^ for I confess that the magnitude of the difficulties in regard to
it which arise and which have arisen heretofore in the minds of the
most able and distinguished members of this body on this trial, sis
well as on those like trials which have preceded it, make me doubt-
ful of the Justice and propriety of the views which seem to me so
clear and inevitable. I have sreat respect for the opinion of those
Senators who have differed with my view of this question, and to dif-
fer with them gives me some apprehension as to the correctness of
my conclusion; out, notwithstanding the ability, force, and earnest-
ness with which their views have b^n urged, my mind is convinced
in favor of the jurisdiction of the Senate in this case. Nor am I
alarmed at the dangers which some Senators see in coming to such a
conclusion. Our fathers had confidence in the people. They gave
the people the right to choose thof^ who should be the members of
the House of Representatives. They did this because they were sat-
isfied the people would elect good ana qualified men, to whom the high
trusts of that exalted position might be safely delivered. They gave
the Legislatures of the States the right and duty to elect those who
should compose the Senate of the United States, because they be-
lieved these legislatures would choose such as were qualified by experi-
ence, ability, learning, and integrity for their high station. To these
bodies, the Senate and House of Representatives, it gave the legisla-
tive power of the Government. To the body chosen by the people our
fathers believed they might safely give the power and discretion of
impeachment. They said this body shall have the power to impeach.
They did not say it should exercise this power, but it might do so.

Our fathers never supposed that that august body of the i>eople's
picked men would deal with any but great offenders, ffuilty of great
offenses in public station, or with great officers disquallfiea by some
unusuaj cause for the discharge of official duties. They had more
confidence in Congress and in our form of government than have many
who have spoken m this debate. They never feared that the " awful
discretion" of the Senate would be invoked or exercised against small
offenders or small offenses, or from motives of hate and pcuiy passion.
They would never have given to Congress its grand trusts and great
lK>wera had they believea it would ever be capable of the infamous
conduct and action which in this Chamber have been pictured in hor-
rible outlines before our eyes to terrify us. The fathers were not
afraid to trust Congress. They did not presume that the representa-
tives of the i)eople and the States were those who would be the first
tio pull down the glorious fabric which sustains and protects our lib-
erties. The first century of our existence as a nation has taught many
here, it seems, that Congress is to be feared, not trusted. Has Con-
j^ress grown alarmed at its own temper, powers, and tendencies f Do
its members believe that the lives and liberties of the people are in
the power and control of custodians so dangerous f Has Congress
grown so corrupt, so unfaithful, so weak that it may be driven from
its line of duty by passion or party rancor f Has a new light shone
out discovering to our startled vision rocks and breakers which never
before appear^ in our sea, upon which our vessel of state is in immi-
nent pern of being wrecked T I repeat, are Senators afraid of the peo-
ple's chosen representatives? Are Senators afraid to trust them-
selves f Do they think that we are better than those who are to come
after usf If corruption, party hate, or other evil spirit should so
possess and control Congress that the House of Representatives should
impeach and two-thirds of the Senate vote to convict a x)olitical an-
tagonist, to destroy him on that account and for that reason, our Gov-
ernment will have reached such a state of decline, decay, and rotten-
ness that if destruction shall not come in one shape it will come in

More than one Senator— as an argument ad hominem, I suppose— has
told us that under the construction which would give this hody juris-
diction of this case those of us who were lately in rebellion could be
impeached for treason. Sir, on becoming members of this body we
took a most solemn oath. If we believe that a just interpretation of
the Constitution gives this jurisdiction, and were deterred from say-
ing so and voting so because the construction was unfavorable to us,
we should forfeit all claim to honor and manhood, bring disgrace
upon ourselves and the people we have the honor to represent, and
deserve the execration of mankind everywhere.

But we are told that impeachment in England was in former ages

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a most barbaroosy bloody, and tyrannous pioceedine. It is true that
in tho times past many bloody sacrifices were ma^ in that country
nnder the forms of impeachment ; but where one man so fell hundreds
under the sentences of other tribunals fell at the stake, on the gibbet,
and on the scaffold. Of all the courts of England in which crimes
and criminals were tried the court of impeachment was stained with
the least blood. It tried noblemen and great officers. The people
fell by thousands under the other courts. We are told that a little
later in our own country men were persecuted and punished because
they were Quakers, and uely old women were tried and condenmed
because they were said to be witches ; but the deeeendants of those
who did these thin^ were among the very first to light the fires of
liberty on this continent, and none did more than they in laying
broad and deep the foundations of freedom's glorious temple and
erecting thereon the magnificent structure which attracts the world's
admiring gaze. These excesses were not the fault of the people. The
age was to blame. The people of England are more enlightened, free,
and tolerant now than they were in the days of Henry VIII and
Mary and Elizabeth, and the people of New England are more liberal
and tolerant than in the davs of l^ger Williams and Miles Standish.

England, with what gentlemen call an omnipotent Parliament, has
had but one or two cases of impeachment, I believe, during the ex-
istence of our Constitution. Their last was in 1805, 1 thiuK. Since
that period we have had many cases of impeachment. We have
this f^t, which should quiet the grave apprehensions of Senators in
regard to the dangers ox the common-law doctrine of impeachment :
England, in our age, with what these gentlemen denounce as unlim-
ited power of impeachment, has had no case of impeachment while
we, with scarcely any power to impeach, according to their idea.
have had several trials of the kind ; so that, using our own age and
England and the United States for the test of the doctrine, tne re-
sult appears to be that there is more danger of impeachment under
our Constitution than under that of England. What we should have
done had our Constitution and people been co-existent with the reigns
in England, during which blood flowed so freely, we cannot tell.

I think, Mr. President, our fathers intended to lodge, and did lodge,
in the Houses of Congress, in such manner that these bodies shomd
be a check upon each other, a high discretionary power, broad enough
and wide enough to be used and exercised for the safety of the state
and the security of the liberties of the people in great and unforeseen
emergencies, dangerous to the life of the state ; a great discretion, to
be exercised when something arose and had to be grappled with at
once to save the country, which the general law had failed to foresee,
define, and provide against. The Constitution was made not only for
the age in which it was framed, but for all the ages which are to
come. It was impossible to foresee what complications, combinations,
or unthought-of dangers might imperil the nation; hence the fishers
gave the power of impeachment to the Houses of Congres^ the same
bodies who give laws to the Government, to be used if need be in un-
foreseen emergencies, as well as in the cases specifically mentioned in
the Constitution. It is a power given for the security of liberty ; a
power, like all others granted by that instrument, to be used wisely,
and not abused ; a power, active, efficient, and opNdrative when occa-
aion demands its exercise, and only then.

Mr. President, I will conclude by saying that for the life of me I
cannot understand or greatly respect a theory which would impeach
and try President Johnson, who had been guUty of no crime, because
he was in office, and pennit one to escape who is presumed to be guilty,
as the record stands, of a great offense against the people of tiie na-
tion in defrauding its soldiery, whom it was his duty to care for and
frotect, because he resigned his Office to avoid impeachment and triaL
have heard of the uncertainty of the law, and such might be an
example of it.

Tho power of impeachment, Mr. President, is one of the bulwarks
of our liberties by which the representatives of the people may insure
them against those great offenders whose official misconduct is in-
tended to destroy our Government or overthrow the rights of its citi-
zens, and not as an engine of oppression, by which a faithful officer

Online LibraryUnited States. CongressCongressional record : proceedings and debates of the ... Congress → online text (page 70 of 172)