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limits the tt^moa^ judgment that the Senate can pronounce, namely :
*' removal from office and disqualification to hold office." The only
less jndc^ent specified is that of ** removal from office," as found in
article 2, section 4. From this I infer that there are only two judg-
ments that the Senate can impose in cases of impeachment, namely,
" removal from office" and " jemoval from office and disqualification
to hold and enjoy any office," &,c.

In both cases there must be removal, and therefore the person tried
must be an officer, or otherwise he could not be removed. This fact
would seem to define the persons who can be impeached and tried,
and to limit the jurisdiction to such persons. Before I had carefully
studied article 8, section 4, in connection with the clause about judg-
ment in article 1, section 3, 1 inferred that there might be a judgment
less than "removal from. office," and that therefore a person not in
office might be impeached and tried. I could think of no such judg-
ments except suspension from office or censure. But suspension would
work removal^ and either House of Congress can censure a person
without invoking the power or machinery of impeachment.

Article 2, section 4, describes the persons who may be impeached,
and the onenses for which they may be impeached, and this is the
only part of the Constitution that does in any way designate the
persons, or the offenses, subject to impeachment. This provision of
the Constitution is as follows :

Tbe President Vice-President and all civil officers of the United States, shall bo
rciuovod from office on impeachment for, and conviction of, treason, bribery, or
other high crimes and misdemeanors.

This provision, in my opinion, describes all the i>er8ons who can be
impeached and convicted under the Constitution of the United States ;
and it is the fountain of jurisdiction. No person can be impeached or
convicted unless he be President, Vice-President, or some ctm7 officer of the
United States. To my mind this is conclusive. The fact that under
this section the judgment must be " removal from office" is demon-
strative that a person not in office and not subject to removal can-
not be tried on articles of impeachment.

It is admitted on all sides that all the provisions of the Constitu-
tion on the same subject must be taken and construed together. The
last section is as binding as the first, and the whole must bo made to
harmonize and agree. The fourth section of the second article should
stand first, for it is the body and substance of impeachment in the
Constitution. All else describes the functions of the two Houses of
Congress and the mode of proceeding. The House only can impeach.



the Senate only can try, &c When the President is tried the Chief
Justice shair preside ; it shall require two-thirds of the members pres-
ent to convict, &.C.,

But who can be impeached and tried, and for what they can be im-
peached and tried, can only be determined by the fourth section of
the second article.

I construe and render the Constitution on the subject of impeach-
ment as follows :

The President, Vice-President and all civil officers of the United
States, shall be removed from office on impeachment by the House of
Representatives for, and conviction by the Senate of, treason, bribery,
or other high crimes and misdemeanors ; and judgment in cases of
impeachment shall not extend further than to removal from office
and disqualification to hold and enjoy any office of honor, trust, or
profit under the United States, but the party convicted shall never- •
theless be liable and subject to indictment, trial^ judgment, and pun-
ishment according to law. The Senate when sitting for the trial of
an impeachment shall be on oath or affirmation. When the President
of the United States is tried the Chief Justice shall preside, and no
person shall be convicted without the concurrence of two-thirds of
the members present.

In this arrangement of the constitutional provisions, on the subject
of impeachment, I submit that I have in no way changed its mean-
ing. J have arranged its provisions in different order and brought
them all together. I place the fourth section of the second article in
front, where it belongs. If the Constitution had been arranged in
this way, by the convention that framed it, there would not be five
Senators in this Chamber who would claim jurisdiction in this case.

It is well known that the convention after it had agreed upon the
provisions of the Constitution referred its work to a committee of
'' detail and arrangement." That committee arranged the provision
under different heaids. What pertained to the House of Representa-
tives they arranged under article 1, section 2 ; what pertained to the
Senate they pla^ under section 3 of the same article ; and what per-
tained to the President, under article 2, sections 1, 2, 3, and 4.

No one can give any reason why section 4 of said article was placed
in this position, only that the President is the first officer named. I
contend it would have been better if the provisions on the subject of
impeachment had been arranged together as I have arranged them.

I wrote out this arrangement before I had opened the Commen-
taries of Story or Kent, and simply from reading and study of the
Constitution itself. I previously arranged the clauses of the Coiisti-
tution in the order as they now stand, with the fourth section of the
second article as an exception to the general power of impeachment,
as claimed by many Senators, but this I soon rejected. If this clause
is an exception, how broad and universal must be the general power?
It must embrace every citizen of the United States. This cannot be
the American doctrine.

I was gratified to find my opinion "that only civil officers of the
United States could be impeached'' confirmed by Judge Story, and
that my construction and rendering of the Constitution was almost
identical with that of Chancellor Kent.

I read from Story's Commentaries on the Constitution, J 789. The
fourth section of the second article is quoted as follows :

The President, Vice-President and alldTil officers of the United States, shall be
removed from office on imi>eaohmentfor, andconviotiouof, treason, bribery, or other
high crimes and misdemeanors.

Story then proceeds :

From this clause it appeart that the remedy by impeachment is strictly oonflned
to civil officers of the united States, indadinf; the President and Vice-President
In this respect it differs materially from the law and practice of Great Britain. In
that kinj^dom all tbe king's snl^ects, whether peeni or commoners, are impeachable
in Parliament, thongh it is asserted that commoners cannot now be impeached for
capital offenses, but for misdemeanors only. Snch kind of misdeeds, however, as
pecoliarly ii\|are the commonwealth by the abnse of high offices of trust are the
most proper and have been the most usuid grounds for this kind of prosecution in
Parliament. There 9eemi a peeuiiar propriety ^ in a repvJbiican government ai least, in
confining the impeaching power to pereons holding office,

I will read section 803:

As it is declared in one clause of the Constitntion "that judgment in cases of im*
peaclunent shidl not extend further than to removal from office and disoualiflcation
to hold any office of honor, trust, or profit under the United States." and in another
clause that " the President^ Vice-President and all civil offioersof the United States,
shall be removed from office on impeachment for, and conviction of, treason, bribery,
or other high crimes or misdemeanors,*' ittooxudeeem to follow that the Senate, on
the conviction, were bound in all cases to enter a judgment of remowU from oMee,
though it has a discretion as to inflicting the pumshmont of disqualification.
If, tnen, there must be a judgment of removal from office, it ioould seem to follow
thai the Constitution contemplated that the partu was stiU in offiee at the time qf im-
peachment. If he was not, his offense was still liable to be tried and punished in
the ordinary tribunals of justice. And it might be argued with some force that it
would be a vain exerdse of authority to try a delinquent for an impeachable offense
when the most important object for which the remedy was given was no longer nec-
essary or attainable. And although a judgment of disqualification might still be
pronounced, the language of the Constitution may create eome doubt whether it can
DC pronounced withoutoelng coupled with a removal from office. There is oImo
much force in the remark that an impeachment is a proceeding purely of a political
nature. It is not so much d^gnea to punish an offender as to secure the State
agfklnst gross official misdemeanors.

Removal from oiBce is the main object of impeachment, and if the
person has resigned his office that object is accomplished ; and, as
Judge Story sayB, impeachment in such a case ** would be a vaiu ex-
ercise of authority." If a crime has been committed the party can-
not escape by resignation of his office, but is subject to be tried and



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156



TRIAL OF WILLIAM W. BELKNAP.



funished in the ordioary conrts of justice, and that ponishment may
include perpetnai difiqnalifioation to hold o£Qce.

In Yolnme 1, page 289, of Iiis Commentaries, Chancellor Kent, in
construing and rendering the Constitution of the United States on the
subject of impeachment, embraces the whole in the following lan-
guage, putting the fourth section of the second article foremost:

The Preeident, Yice-Preeident, and all civil officers of the United States mav be
impeached by the Honaoof Repreeentatives for treason, bribery, and other nigh
erimes and misdemeanors, and upon conviction by the Senate shall be removed
from office.

In the opinion of Kent this embraces all that there is of substance
on this subject in the Constitution. I am confident he is right.

I now turn to the proceedings of the convention that framed the
Constitution, and if 1 am not mistaken they will throw light opon
the meaning of the provisions on the subject of impeachment. This
convention commenced its proceedings on the 25th day of May, 1787.
On tbo 29th of Ma^ Mr. Edmund Randolph, of yirflpia, offered a series
of resolutions giving his ideas of the Constitution that should be
framed. Under the head of the judiciary, and among the powers to
be conferred upon the Supreme Court, he mentions " impeaonments of
any national ofiScer.''

On the same day Mr. Charles Pincknej, of South Carolina, submit-
ted a draft of a federal government which, in many respects, is iden-
tical with our present Constitution. In article 3 he says :

The Honse of Delegates shall exolasively possess the power of impeachment

This is the exact meaning of the provision in the Constitution as
granted to the House of Representatives, as I have heretofore claimed.
In article 10, on the subject of the Supreme Court, he extends its juris-
diction " to the trial of impeachment of officers of ike United States,"

It will be observed that Mr. Randolph contemplated impeachment
of national officers only, and that Mr. Pinckney contemplated im-
peachments of officers of the United States, both meaning the same
thing. On the 13th of June it was moved by Mr. Randolph and sec-
ond^ by Mr. Madison —

That the Jurisdiction of the national Judiciary shall extend to impeaehm^tUi qf
any national ojleer.

Bear in mind that only officers are mentioned by these leading mem-
bers of the convention. On the 15th of June Mr. Patterson offer-
ed propoeitious for a form of government. In his fourth resolu-
tion, in relation to the Chief Executive, he provides '* that he shall be
ineligible a second time, and removable on impeachment and convic-
tion of malpractice or n^lect of duty by Congress, on application by
a majority of the executives of the several States." In his fifth res-
olution, providing for a federal judiciary, he says :

That thojudiciary so established shall have authority to hear and determine in
the first instance on all impeachments of FedertU oJUert.

On the next day Colonel Hamilton submitted a plan of govern-
ment, the ninth paragraph of which is as follows:

The governors, Senators, and all oJUen of the United States to be liable to im*
peachment for mal and ooimpt conduct ; and upon conviction to be removed frmn
office.

On the 19th of June Mr. Gk>rham reported, from the committee to
whom was referred the several plans and propositions, a series of
resolutions. In the ninth article it is provided that the Executive is
to be "removable on impeachment and conviction of malpractice or
neglect of duty.^

In the thirteenth " impeachment of national officers '^ is a power
given to the national judiciary.

On the 6th of August Mr. Rutledge reported from the same com-
mittee a draft of a constitution. Article 4, section 6, is as follows :

The House of Bepreaentatives shall have the toU power of impeachmenL It
shall choose its Speaker and other officers.

Article 10, section 2, relates to the Executive, and provides that—

He shall be removed frmn his office on impeachment by the Honse of Bepresent-
ativea, and conviction in the Supreme Court of treason, bribery, or cormptton.

Article 11, section 3, provides that the jurisdiction of the Supreme
Court shall extend ^Ho the trial of impeachments of officers of the
United States."

This draft of the Constitution, submitted by Mr. Rutledge, was
under consideration by the convention for several days. Each article
and section was considered separately.

On the 27th day of August the following was adopted by the con-
vention :

He shall be removed from his office on impeachment by the Honse of Bepresent*
atives, and conviction in the Supreme Court of treason, bribery, or corruption.

Up to this time no suggestion had been made in the convention to
give the Senate the power to try impeachments. It had been deter-
mine<l to give that power to the Supremo Court.

On the 4th of September Mr. Brearly, from the committee of eleven,
reported partially. Paragraph 3 of said report is as follows :

In the place of the ninth article, first section, to be inserted : " The Senate of the
Uiiite<l StateA shall have power to try all impeachments ; but no person shall be
convicted without the concurrence of two-tiiiras of the members present"

The same report provides that the latter part of the second section,
t«nth article, shall read as follows:

He shall be removed from hie ojlee on impeachment by the House of Bepresenta-
tives, and conviction by the Senate for treason and bribery.

The convention proceeded to consider this report by parag^phs.
and on the 8th of September it was agreed to insist, after the word



''bribery,'' in section 2, article 10, ''or other high crimes and misde-
meanors against the United States."

On the same day the following clause was added after the ^orda
"United States:"

The Vice-President and other civil officers of tiie United States shall be removed
from office on impeachment and conviction as aforesaid.

On the same day the convention voted to substitute the following
in place of the first section, ninth article :

The Senate of the United States shall have power to try aU impeadhments ; but
no person shiUl be convicted without the concurrence of two-thirda of the membera
present, and every member shall be on oath.

After this, and on the same day, a committee of five was appointed
" to revise the style of, aiid arrange, the articles agreed to by the
house."

It was not intended that this committee should in any way change
the meaning of the provisions of the Constitution as adopted by the
convention, but only to "revise the style and arrange the articles"
under proper heads. The fourth section of the second article, as it
now stands in the Constitution, went to this committee in the fol-
lowing language :

Hfr-

The President-
shall be removed from his office on impeachment by the Honse of Keprosentativea
and conviction by the Senate for treason, bribery, and other high crimes and mis-
demeanors against the United States. * * * The Vice-President and other civil
officers of the United States shall be removed from office on impeachment and con-
viction as aforesaid.

I wish to place the fourth section of the second article, as it came
from that committee and now stands, side by side with the article re-
ferred to them, that all may see that the meaning was not changed.
The following is the fourth section of the second article :

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

The article is made shorter^ repetitions are avoided, and some words
are omitted. Nothing is said of the House of Representatives or
Senate, for it is provided elsewhere in the Constitution that the House
of Representatives have the power to impeach, and the Senate the
power to tiy and convict. The substantial meaning is identically the
same, and Chancellor Kent was correct in his rendering of the Con-
stitution on this subject.

The committee on style and arrangement made its report on the
12th of September, and their draught was not changed on the subject
of impeachment, except the words " or afiSrmation" were added t^
the requirement that Senators should be " on oath " in the trial. No
person can fail to see that not a word was uttered by an^ member of
the convention, and nothing appears in the proceedings, in any way
implving that impeachment was intended to apply to any person un-
less he was actually in office at the time of impeachment ; and it is
manifest that the proceeding was only intended as a means for the
removal from office of a dangerous, corrupt, and unworthy official.

"National officers," "Federal officers," "officers of the United
States," are the only persons mentioned in the plans submitted by
Randolph, Pinckney, Patterson, and others ; and finally the conven-
tion limited impeachment to the " President, Vioe- President and aU
dvil officers of the United StcUes," How, then, is it possible that a man
not a President, Vice-President, or a civil officer of the United States
can be impeached under the Constitution f It is manifest to my mind
that the person to be impeached must be a civil officer of the United States
still in office, and that the object of impeachment " is removal from
office j" to which may be added, in the discretion of the Senate, disqual-
ification to hold office, &g,, under the United States.

The practice for one hundred years, ever since the adoption of the
Constitution, has been in accordance with this theory. No person
has been impeached and tried, under the Constitution, except he was
at the time of impeachment a civil officer. In every case where im-
peachment has been attempted and the officer has resigned, even after
impeachment by the Honse, the proceedings have instantly stopped,
except in this single case. This case stands alone. No precedent
under the Constitution of the United States or of any 8tate can be
found. The recent case of Qovemor Ames, of Mississippi, is in point,
as also the one of Judge Barnard in Now York.

The first case of impeachment undei* the Constitution of the United
States was that of William Blount, and the decision of the Senate
in that case, that they had no Jurisdiction to try him " because ho
was not a civil officer of the United States within the meaning of the
Constitution," ought to decide this case in the same way, for the truth
is exactly that. Let us refer to the facts in the Blount case. On the
3d of July, 1797, the President, John Adams, sent t-o the Senate and
Honse of Representatives a message in relation to transactions of
William Blount, a Senator from Tennessee. I do not intend to go
fully into the history of this case. It ^appears, however, that his
crime, if it was a crime, had no necessary connection with hb office
of Senator.

On the 7th of July Mr. Sitgreaves, a member of the House, by order
of the House came to the Senate and impeached William Blount in
the form now usual in such cases. On the next day, July 8, the Sen-
ate expelled William Blount from a seat in that body. The articles
of impeachment were not presented by the House till the 7th d ay of
I February, 1798. After the usual pleas, on the 3d of January, 1799,



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TRIAL OF WILLIAM W. BELKNAP.



157



tiie Senate sittiDg as a court of impeachmeDt heard argaments from
the managers, on the part of the House, and counsel for the respond-
ent, on the question of jurisdiction. The arguments upon this ques-
tion occupied four days ; that of Manager &yard, in favor of Juris-
diction, was very able, and has not been surpassed, if equaled, in
the trial of the case now under consideration. He contended that
the House of Representatives had the sole power of impeachment,
and that the Senate had the sole power to try all impeachments, ana
that these clauses gave jurisdiction to the House to impeach, and the
Senate to try, all persons and for all offenses, that the House of Com-
mons could impeach and the House of Lords try in England. He
urged that as tnere is no description of offenders or the offenses, in
the Constitution itself, where the power is vested, every offender and
every offense, impeachable according to the common law of England,
must be deemed impeachable here: and he alleged that the common-
law power of impeachment extends to every crime or misdemeanor
that can be committed by any subject in or out of office.

This is his language :

The Coiwtitatioii hM Mdd who shall haye the power to impeach, and who of try-
ine impeachmenta. It has also limited the ctttent of the punishment. But it has
not described the persons who shall be the objects of impeachments, nor defined the
to which the remedy shall be confined. We cannot do otherwise, therefore,



than presume, npon these points, we are desisnedly left to the regnlations of the
common law. Tne question therefore is. what persons, for what oflenses, are liable



to be impeached at ownmon law t And I am confident, as to this ppint, the learn-
_ 1 liberality of tlie counsel will save me the trouble of aivnment, or the cita-
tion of authorities, to establish the position that the question of impeaohability is a



qaestion of diseretian onlv, with the Commons and librds. Not that I mean to 1n-
ttst that tbe Lords bare legal cognizance of a charge of a capitis crime against the
eommoner, but simply that ail the King*s subjects are liable to be impeaoed by the
Commons and tried by the Lords upon charges of high crimes and misdemeanors.

He then goes on to show how important it would be, under certain
circumstances, to impeach a citisen not in office, but poseessed of exten-
sive influence arising from popular arts, from wealth or connections,
and actuated by strong ambition, if that citizen should by intrigue,
corruption, or force seek to place himself in the presidential chair or
some other high office. He contended that absolute and perpetual dis-
qualification to hold any office, under the Government, would be a
Boi table punishment, and that the same is provided for under the Con-
stitution.

Mr. Bayard boldly and frankly accepted the logical consequences
of his argument, which, I am sorry to say, some of the Senators, who
hold that the Senate has jurisdiction in case of William W. Belknap,
shrink from doing. They hold the same construction of the Consti-
tution, but claim that in England only men in office, or who have
held office, or who are connected with some official trust, are liable to
imi)eachment ; and they seek to limit impeachment to the same classes
in this country under our Constitution. There is no authority for
such limitation. All authorities agree with Mr. Bayard in saying,
** that all the king's subjects are liable to be impeached and tried,
except only on a charge of a capital crime."

On the 10th day of Januarv, 1799, the Senate sitting as a court of
impeachment voted on the following resolution :

That William Blount was a civil officer of the United Statos, within the meaning
of the Constitution of the United States, and therefore liable to be impeached by
the House of Bepresentatives.

And the vote stood — yeas 11, nays 14.

The majority therefore decided against the resolution, or, in other
words, that a person not a cwil officer of the United States, within the
meaning of the Constitution, and because he is not a civil officer, is not



Online LibraryUnited States. CongressCongressional record : proceedings and debates of the ... Congress → online text (page 75 of 172)