United States. Congress.

Congressional record : proceedings and debates of the ... Congress online

. (page 72 of 172)
Online LibraryUnited States. CongressCongressional record : proceedings and debates of the ... Congress → online text (page 72 of 172)
Font size
QR-code for this ebook


than is found in Mr. John Adams's history of its assertion in the col-
ony of Massachusetts against the power of the Crown itself only two
years before the Declaration of Independence. The judges in that
colony were the instruments se]ecte4 by the Crown to carry out its sys-
tem uf oppression and iigustice. They were made independent of the
colony by aprovisiou forthe paymentof their salariesout of the British
exchequer. It was in this unequal struggle between the people and
these judges that the power of impeachment was invoked. I cannot
do better in this attempt to show both where the power was deemed
to be lodged and the reasons for holding that same power to be one of
the greatest efficacv and security to a free people which must have
obtained with the framers of the Constitution when they made that
instrnment than by quoting somewhat at length from a letter from
Mr. Adams, written in 1817, man}' years after the events described,
and addressed to a learned jurist of Massachusetts, ^ving an account
of this remarkable impeachment. Writing to Mr. William Tudor, Jan-
uary 10, 1817, Mr. John Adams says :

The public had been long alarmed with rumors and predictions that the king,
that is the ministry, would take into their own hands the payment of the salaries
of the judges of the supreme court. The people would uot believe it ; the roost
thinking men dreaded it. They said : " With an executive autiiority in a governor
possessed of an absolute negative on all the acts of the lesislature, and wiUi Judges
dependent only on the Crown for salaries as well as their coDimissions, what pro-
tection have wo ? Wo may as wcU abolish all limitations, and rosign our lives aud



liberties at once to the will of a prime minister at St James.** * * * The dis-
patches at length arrived, and expectation was raised to its highest pitch of exul*
tation and triumph on one side, and of grief, terror, degradation, ana despondency
on the other. The legislature assembled, and the governor communicated to the
two houses his mi^^ty's commands.

It hi4>pened that I was invited to dine that day with Samuel Winthrop. an ex-
cellent character and a predecessor in the respectable ofBoe yon now hold in the
supreme court Arrivea at his house in New Boston, I fbunu it full of connseloni
and representatives and clergy. * * * All expressed their detestation and hor-
ror of the insidious ministerial plot, but all agreed that it was irremediable. There
was no means or mode of oppomng or resisting it

Indignation and despair, too, boiled in my breast as ardently as in any of them,
though as the company were so much superior to me in age and station I had not
said anytMng; but Dr. Winthrop, the professor then of the council, observing
my silence and perhaps my countenance, said, " Mr. Adams,'what is your opinion t
Can you think of any way of escaping this snare f ** My answer was, " No. sir ; I
am as much at a loss as any of the company. I agree with bU. the gentlemen, that
petitions and remonstrances to King or Parliament will be ine£fectual. Kothlng
out force will succeed, but I would Uy one project before I had recourse to the last
reason and fitness of things." The company cried out almost or ouite together,
" What project is that ? What would you do f '* Answer, " I would impeMb the
judges."^ "Impeach the judges! Howf Where 1 Who can impeach fnemt
Answer, "The nouse ol representatives." "The house of representatives! Be-
fore whom ? Before the House of Lords in England t " Answer, " No, surely, you
might as well impeach them before Lord North alone." " Where, then I " Answer,
• • I^ore the governor and council." " Is there any precedent for that f " Answer,
'* If there is not, it is now high time that a precedent should be set" "The gover-
nor and council will not receive the impeachment" Answer, " I know that very
well, but the record of it will stand upon the journals, be published in pamphlets
and newspapers, and periiaps make the ludges repent of their salaries and decline
them ; perhaps make it too troublesome to hold them." " What right had we to im-
peach anybody?" Answer, "Our house of representatives have the same right
to impeach as the House of Commons has in England, and our governor and coun-
cil have the same right and duty to receive and bear impeachment as the king and
House of Lords have in Parliament If the governor and council would not do
their duty, that would not be the fault of the people ; their representatives ought
nevertheless to do theirs." Some of the company said that the idea was so new to
them that they wished I would show them some reasons for my opinion that we had
the right. I repeated to them the clause of the charter whicn I relied on, the con-
stant practice in England, and the necessity of such a power and practice in every
free goveiiiment

The company dispersed and I went home. Dr. Cooper and others were excellent
hands to spread a rumor, and before nine o'clock half of the town and most of the
members of the general court had in their heads the idea of an impeachment The
next morning eariy lAnjot Hawley, of Northampton, came to my house under groat
concern aud said he heard that I yesterday, in a public company, suggested a
thought of impeaching the judges ; that report had got about and had excited some
uneasiness, and he deured to know my meaning. I invited him to my house, opened
the charter, and requested him to read the paragraphs that I had marked. I then

Sroduced to him that volume of Seiden*s works which contains his treatise on jn*
icature and Parliament Other authorities in law were produced to him, and the
state trials and a profusion of impeachments with which that work abounds.
Mi^or Hawley, who was one of the best men in the province, and one of the ablest
lawyers and best speakers In the legislature, was struck with surprise. He said :
" I Know not what to think. This &, in a manner, all new to me. I must think of
it" * * *

Maior Hawley, always conscientious, always deliberate, always cautious, had
not slopt soundly. What were his dreams about impeachment I know not But
this I know, he 'drove away to Cambridge to consult Jndce Trowbridge and ap-
pealed to his conscience. 'The charter was called for: Selden and the state trials
were quoted. Trowbridge said to him what I had said before, that the power of
impeachment was essential to a free government; that the charter had given it to
our house of representatives as oleaily as the constitution In the common law
or immemorial usase had given it to the House of Commons in England. This was
all he could sav. although he lamented the occasion of it

Msjor Hawley returned full In the faith ; an impeaohment was voted ; a committee
was appointed to prepare articles. • * *

The articles were reported to the house, discussed, accepted, the impeachment
voted and sent up in form to the governor and council . reiectod, of course, as
everybody knew beforehand that It would be ; but It remainea on the journals of
the house', was printed in the newspapers, and went abroad into the world. And
what were the consequences t Chief Justice Oliver and his superior courts your
supreme Judicial court, commenced their regular circuit The chief justice opened
his court as usuaL Grand jurors and peut jurors refused to take their oaths.
They never could, as I believe, prevail on one inror to take the oath. I attended
at the bar in two counties, and I heard grand jurors and petit jurors say to Chief
Justice Oliver to his face, " The chief justice of this court stands Impeached by
the representatives of the people of high crimes and misdemeanors and of a con-
spiracy against the charter privileges of the people ; I cannot serve as a juror or
take the oath." The cool, calm, sedate intrepidity with which these honest free-
holders went through this fiery trial HUed my eyes and my heart

In one word, the royal government was from that moment laid prostrate in the
dust And has never since revived in substance, though a dark shadow of the hob-
goblin haunts me at times to this day.— JoAn Adamt, volume 10, page 836.

I have read these long extracts from Mr. Adams for the purpose of
showing the spirit of those times and the difference between the col-
onists and Senators here in the estimate pat bv them respectively
upon the power of impeachment up to the very hour of the Ilevolu-
tion. I have cited it for another parpose. Mr. Adams, who wrote
this glowiDg account of impeachment at common law, embodied in
the constitution of Massachusetts, which was the production of his
pen, in 1780 the very peculiar phraseology put seven vears later iu
the Constitution of the United States limiting the judgment in all
cases of impeachment. '^ Judgment in all oases of impeachment
shall extend no farther than removal from office and disijualification
to hold and enjoy any office of honor, trust, or profit,^ is a peculiar

Jhrase. It is first found in the constitution of New York, adopted iu
777, in that of Massachusetts drawn by Mr. Adams in 1780, iu that of
New Hampshire, which was nearly a copy of that of Massachusetts
in 1784, and then in the Constitution of the United States framed in
1787. There is no doubt that in these instruments it had a commou
origin, but whether it originated with Bir. Adams or with the framers
of the New York constitution is uncertain. But Massachusetts from
1774, when the impeachment of the judges took place upon his in-
stance, until 1780, was endeavoring to frame and adopt a coustitu-
tiou. Mr. Adams was appointed upon a committee to draft one in
1779. Ho tells us in auoUxor letter in respect to one of the most impor-



Digitized by



Google



150



TRIAL OF WILLIAM W. BELKNAP.



taiJt provisions of the Massacbasetts constitntion that it was larj^ely
the result of conferences he had with others on his journeys from
Massachusetts to Philadelphia in 1774, 1775, 1776, and 1777. I think
it is fair to assume that this peculiar phraseology by which judgment
in all cases of impeachment was thus limited was the result oi con-
ferences between the leading minds of Massachusetts and New York,
and perhaps New Hampshire^ in whose constitutions it was placed be-
fore it was adopted by the framers of the Constitution of the United
States. These men, as I have shown, were men most ardently im-
pressed with the efficacy and importance of the power of impeach-
ment at coDunon law, which they oelieved came over with their char-
ters and which they had proved was powerful enough to wrest their
liberties from the hands of their oppressors.

In the trial of Prescott under the Massachusetts constitution in 1821
both Mr. Webster ana the late Chief Justice Shaw, thouj^h on opposite
side^ in the trial, traced impeachment under that constitution to the
common law. (Prescott's Ttial, pages 160, 180.)

Now, with these views prevalent among leading minds, the conven-
tion, without debate, so far as I am able to ascertain, first declared
that—

TboHoascofBepresentatives shall have the sole power of impeachment * * *
The Senate shall have the solo power to try all impeaohmento.

They then proceeded to put limitations upon that power :

No person shall be convicted without the conconence of two-thirds of the mem-
bers present * * * When the President is tried, the Chief Justice shall preside.

JuQfnnent in all cases of impeachment shall not extend farther than to removal
from office and disqnaliflcation, &c * * * Bat the party convicted shall never-
theless be liable and sabjectto indictment trial, judgment, and punishment accord-
ing to law. * * * The President shall nave power to grant reprieves and par-
dons for all offenses against the United States, except in oases of impeachment

Nearly all the debate in the convention upon the subject of im-
peachment which has come down to us arose over another section,
namely, the fourth section of the second article, which is in these
words:

The President Vice-President and all civil officers of the United States, shall be
removed from office on impeachment for, and conviction of, treason, bribcoy, or other
high crimes and misdemeanors.

Now, up to this point the power of impeachment in the Constitu-
tion seems complete, and yet there is no definition of that power, no
rules of procedure prescribed, but the whole is left, like the definition
and application of the term trial by jury in the Constitution, to be
derived from other souroes. Of course the framers of the Constitu-
tion used words understandingly. What did they mean when they
said ** the House of Representatives shall have the sole power of im-
peachment f" I cannot resist the conclusion that they meant by the
term "impeachment" the known and defined power existing lief ore
the' creation of the Constitution, so clear in character and in defini-
tion that it was not deemed necessary by them to use words other
than the term itself to make it perfectly understood. Mr. Rawle says :

Impeachments are thus introduced as a welUknown defined tenn, and we must
have recourse to the common law of England for a definition of ihem.—BaiDle on
the ConttUutiont page 19&

I have said that whatever debate arose upon the subject of im-
peachment arose upon the subsequent article in reference to the im-
peachment of the President, Vice-President, and civil officers of the
United States so frequently cited. And it is worthy of remark that
this debate was in reference to the office of President alone, the other
words, " Vice-President and all civil officers of the United States," hav-
iuff been inserted afterward by the committee on style, and without
deuate. Now, the verv debate over the office of President convinces
me that the framers of the Constitution had in their minds all along
the common-law power of impeachment Otherwise this very debate
would not have arisen, for a new creation applicable to all national
officers, as was the phraseology in Mr. Randolph's original draught,
would have given rise to no debate about the President any more
than any other national officer. But by the common law the king
could not be impeached, for there was no power above the king be-
fore whom he could be arraigned. In theory he was himself the
source of power, and if the common-law impeachment was placed in



seems natural to believe that lest some such question as that might
hereafter arise it was well to remove all doubt and expressly provide
for the liability of the Chief Executive to this salutary restraint
over his official action as well as all other officers. Hence arose de-
bate over attempting to provide for the impeachment of the Presi-
dent of the United States, and the very debate, meager as it is, tends
wholly in my mind to strengthen the conviction that men out of office
as well as in office can be impeached for such official misconduct as
amounts to any one of the crimes specified in the Constitution. While
this debate was going on Mr. Pinckney observed that "he ought not
to be impeached while in office,"

Mr. ALLISON. Does not the Senator know that Mr. Pinckney was
opposed to the impeachment of the President altogether f

Mr. DAWES. Most certainly I do, but the convention was against
him and declared that the President should be impeached. Then Mr.
Pinckney struggled to provide that he should not be impeached while
in office, which shows clearly that in his opinion the provision debated



was broad enough to impeach him while out of office. The reply of
Mr. David to Mr. Pinckney is most clear. Mr. Davi6 said :

If he bo not impeachable while in office, he will spare no eflbrt or pains whatever
to got himself re-elected.

Now upon the construction that the Senator from Iowa claims that
he could only be impeached while in office, what meaning is there to
this remark of Mr. David. One would suppose that the best thing
the President could do would be to get out of office instead of spar-
ing no effort or pains whatever to get himself re-elected, because, by
the theory of the Senator from Iowa and others who agree with him,
getting himself re-elected would be getting himself into the very
jaws of impeachment, while getting himself out of office as soon as
possible was getting himself beyond its reach. Mr. Wilson stated
that he ** agr^d in the necessity of making the Executive impeach-
able while in office," and Colonel Mason said " that while great crimes
are committed I am in favor of punishing the principals as well as
the coadjutors."

I do not find anything in the debates running counter to the idea
most manifestly conveyed by this meager account that all uuderstood
the phraseology adopted as applicable to the official after he has left
office as well as before. Mr. Hamilton, in the forty-sixth number of
the Federalist, commending this power to the favorable consideration
of the public, conveys to my mind most clearly the same idea. I will
not stop to quote, because it is the tenor of the whole article, and no
particular part of it, which bears this construction. When the Con-
stitution went before the States in State conventions some of the
ablest of its framers, in their respective State conventions presented
the same view of the subject : (Mr. Madison in the Virginia conven-
tion, (Elliot's Debates, volume 2, page 379 ;) Mr. Wilson in the Penn-
sylvania convention, (Elliot's Debates, volume 3, page 270 ;) Mr. Pinck-
ney in the South Carolina convention, (Elliot's Debates, volume 4,
page 265.)

The sinffle remark of Governor Johnston in the constitntional con-
vention of North Carolina, (Elliot's Debates, volume 3, pase 145,) cited
to the contrary, does not support the position for which it is used.

The single line quoted, "How could a man be removed from office
who had no office f' was uttered alio intuitu^, and is found in an argu-
ment addressed to the convention of North Carolina, to convince them
that impeachment under the Federal Constitution would not include
State officers, but was confined exclusively to officers under the Fed-
eral Government. I do not find a word in the whole argument hav-
ingthe slightest reference to the question now under consideration.

These men took part in framing the provision itself, and were
equally active in making it understood by the people of their respect-
ive States when urging its adoption. This is all we have of the
views of the framers of the Constitntion itself l^eyond the language
of that instrument.

My colleague, [Mr. Boutwbll,! following the Senator from New
York, [Mr. Conkumg,] has said that of one thing the people of the
United States have rested in the firm conviction for a century, that
no private citizen of this country is liable to impeachment before
this tribunal. And the Senator from California [Mr. Booth] came
back at last in his beautiful language to repose upon the same idea.
Nothing can exceed the beauty of nis description of the safety he
found in this *4nertia of acquiescence." He will permit me to say in
passing that, as much as I adn^ire his sleeping beauty, I am compelled
m the light of history to differ with him in opinion as to her safety,
and to modestly express the doubt that as she sleei>3 her very danger
lies in her "inertia.'' But if these Senators mean to say merely that
for the last century the people of this country have reposed in the
belief that no one who has never held office can be arraigned at this
bar upon articles of impeachment, there will be no dispute with them.
But on the other hand — and it is best to keep as near the case at bar
as we can — if they m^an to say that the people have ever believed,
before this case arose, that any official, high or low, guilty of high
crimes and misdemeanors in office could escape all the constitutional
consequences of his misconduct by announcing to the House of Rep-
resentatives, who have the "sole power of impeachment," while that
august tribunal is in the very process of presenting articles against
him, that "one hour and forty minutes ago I resigned that office and
thereby escaped all responsibility to the Constitution and to yon to
answer before this tribunal for my official misconduct" — if this is
what is meant by Senators in their appeal to the century, I venture
to say that the whole history of the Government does not afford a
single authority for the assertion. On the contrary, there is much in
that history and in the opinions of public men which requires an ex-
planation at their hands. I have already cit^ the framers of the
Constitution, both in the Federal and State conventions. The opin-
ion of Mr. Rawle has already been cited. It is brief, it is true, but
no words would make it more plain. It was his opinion, in a work
of reputation in the profession, that men could be impeached as well
out of office as in office. These were his words :

From the reasons already f^iven, it is obvious that the only persons liable to im-
peachment are those who are or have been in public office. All executive and
nicUcial officers, from the President downward, from the Indfres of the Supreme
Court to those of the most inferior tribunals, are included in this descriptlou.
(Rawle on the Ckmstitution, page si03.)

The House of Representatives in 1846 was certainly of opinion that
they could impeach a man for high crimes and misdemeanors in office
after he had left it, for they undertook deliberately such an impeach-



Digitized by



Google



TRIAL OF WILLIAM W. BELKNAP.



151



ment of Daniel Webster several years after he left the office of Sec-
retary of State for what were charged to be snch offenses while in that
office. The precedent has already been referred to, but its full force
and importance have not yet been given . Mr. C. J. Ingersoll, al though
a man of violent political prejudices, yet of ability as a lawyer,
charged Mr. Webster in the House of Representatives with official
corruption while in the office of Secretary of State, from which he
had retired several yewrs before. The charges were direct and spe-
cific with the asserted purpose of initiating proceedings in impeach-
ment against l^t distinguished statesman. It was so understood
by the House ; and Mr. Bayley, of Virginia, who believed as Senators
do here that impeachment would not lie against an official after
he had left office, so understood Mr. IngersoU and the purpose of
his charge, and called his attention to the fact that Mr. Webstor was
out of office, and as he believed could not be impeached. Mr. Inger-
soll's response was ''What if he is? '' To this oojection of Mr. Bay-
ley Mr. Adams made the reply which has already been cited in part,
and which I sball take the liberty hereafter to qvLote in full. At the
conclusion of Mr. IngersolPs speech, on his motion the House called
on the President for certain papers and information in the State De-
partment which, as he alleged, would sustain the charges that he had
made against Mr. Webster. The Psesident replied in a lengthy mes-
sa^, which stated that the information called for touched the ad-
ministration of the secret service of the State Department, which had
always been held as confidential, and which he declined to disclose,
unless the House of Representatives desired their use for the purpose
of impeachment. He intimated that if that were the desi^ of the
House the papers would be disclosed to a committee appointed for
that purpose. The President used this language upon the subject of
impeachment, having no other application at the time than to an
official after he had left office :

If the House of Bepresentatives, as the grand inqaest of the nation, should at
at anytime have reason to believe that there had been malversation in oflBce by an
hnproper nse or application of the public money by a pablic officer, and should
thinlL proper to institute an inquiry into the matter, all the archives or papers of
the executive department, public or private, would be subject to the inspection
and control of a committee of their body, and every ^ility in the power of the
Bzecative be afforded to enable them to prosecute the investigation.

Subsequently Mr. Webster, in the Senate, repelled the charges of
Mr. IngersoU with great bitt-emoss, and Mr. ingersoll renewed his
accusations in the House with specinc charges of dates^ and sums, and
individuals, and the manner in which the secret-service fund or the
State Department had been, as he alleged, corruptly used by Mr.
Webster. He concluded his speech with a remark which shows that
it was made with the understanding that it should initiate proceed-
ings looking to impeachment. He remarked :

A resolution or committee whieh I cannot institute will soon test the truth of my



Online LibraryUnited States. CongressCongressional record : proceedings and debates of the ... Congress → online text (page 72 of 172)