[Hinds' Precedents, Volume 3]
[Chapter 70 - Impeachment and Trial of William Blount]
[From the U.S. Government Publishing Office, www.gpo.gov]
IMPEACHMENT AND TRIAL OF WILLIAM BLOUNT.
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1. Preliminary examination. Section 2294.
2. Delivery of impeachment at the bar of the Senate. Sections
2295, 2296.
3. Framing of the articles. Sections 2297-2299.
4. Choice of managers. Section 2300.
5. Presentation of articles in Senate. Sections 2301, 2302.
6. Organization of Senate for trial. Section 2303.
7. Writ of summons and return. Sections 2304-2308.
8. Answer of respondent. Sections 230, 2310.
9. Replication of House. Section 2311.
10. Arguments as to impeachable offenses. Sections 2312-2315.
11. Is a Senator a civil officer? Section 2316.
12. Effect of resignation of respondent. Section 2317.
13. Senate without jurisdiction to try. Section 2318.
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2294. The impeachment of William Blount, a United States Senator, in
1797.
The proceedings of the Blount impeachment were set in motion by a
confidential message from the President of the United States.
In the Blount case the House voted to impeach on the strength of the
matter contained in a letter proved to be in respondent's handwriting.
In the Blount impeachment case it was ruled that evidence should be
taken before the House, and not before the Committee of the Whole.
In the Blount impeachment case the House seems to have distrusted its
power to authorize the Speaker to administer oaths.
The House excused one of its Members from voting on any question
connected with the impeachment of a brother.
Forms of the resolutions impeaching William Blount and directing the
carrying of the impeachment to the bar of the Senate.
The Blount impeachment was carried to the bar of the Senate by a
single Member of the House.
On July 3, 1797,\1\ a confidential message was received in the House
from the President of the United States, who transmitted a letter
purporting to have been
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\1\ First session Fifth Congress, Journal (supplemental); p. 76,
Annals, p. 439.
Sec. 2294
written by William Blount, a Senator of the United States for the State
of Tennessee, to one James Carey, interpreter for the United States to
the Cherokee Nation of Indians, for the purpose of seducing him from
his duty and trust, in furtherance of certain unlawful designs. The
message and papers were referred to a committee composed of Messrs.
Samuel Sitgreaves, of Pennsylvania; Abraham Baldwin, of Georgia; Samuel
W. Dana, of Connecticut; John Dawson, of Virginia, and William Hindman,
of Maryland.
On July 6 \1\ Mr. Sitgreaves reported from the committee the
following resolution:
Resolved, That William Blount, a Senator of the United States from
the State of Tennessee, be impeached of high crimes and misdemeanors.
This report was on the same day considered in a Committee of the
Whole House. Mr. Sitgreaves stated that the President had been advised
by the law officers of the Government that the letter was evidence of
crime; that the crime was of the denomination of a misdemeanor; and
that William Blount, being a Senator, was liable to impeachment. In
conformity with this opinion, the letter had been transmitted to the
House. There was debate as to whether or not a legislator was an
officer liable to impeachment, after which Mr. Sitgreaves made a
statement \2\ as to the forms of procedure:
As to the form of proceeding necessary to be taken on this occasion,
he would state what the opinion of the committee was as to this matter.
They supposed it would be first proper for that House to determine that
the gentleman in question should be impeached. This being done, that a
Member of that House should go to the bar of the Senate and impeach the
person, in the name of the House and of the people of the United
States, and state that the House of Representatives will proceed to
draw out specific articles of charge against him. According to the
case, they require that he shall be sequestered from his seat, be
committed, or be held to bail. When this is done, a committee will be
appointed to draw articles of impeachment.
The reason, Mr. S. said, why some steps should be taken at present
was that means should be taken to secure the person of the offender,
either by confinement or by bail, since it was the opinion of the law
officers of Government that he could not be arrested by ordinary
process. He could not be arrested by the Senate; they could send for
him (as he understood they had done) by the Sergeant-at-Arms, to take
his seat in the House; but when the House adjourned, they had no
further power over him until an impeachment was made against him.
Gentlemen said there was no danger of escape. If it were not improper
to state what had taken place out of doors, it might be said that there
had already been an attempt at an escape. Besides, if no investigation
were now to take place, how were they to come to a knowledge of the
plot which gentlemen seemed so desirous to come to a knowledge of? When
they had determined to make the impeachment, and an oral declaration
was made of it to the Senate, when they were ready to go home, they
might go, and exhibit the charges at the next session, when they should
have leisure fully to consider the subject.
Mr. John Rutledge, jr., of South Carolina, who had attended the trial
of Warren Hastings, approved the form of procedure, but suggested that
the handwriting of Mr. Blount should be proven, and submitted a motion
to that effect.
The chairman \3\ suggested that the proof should be taken in the
House, and this opinion prevailed, it being urged that the Committee of
the Whole did not have the power of taking evidence. The committee
accordingly arose.
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\1\ Journal, p. 70, Annals, pp. 448-458.
\2\ Annals, p. 455.
\3\ George Dent, of Maryland, Chairman.
Sec. 2295
In the House the Speaker \1\ suggested the propriety of calling in a
magistrate, as the Speaker had no power to administer an oath except in
the case of qualifying the Members of the House. A motion to authorize
the Speaker to administer the oath was disagreed to, 29 yeas, 53
nays.\2\
Then it was \3\
Ordered, That William Barry Grove, Abraham Baldwin, Joseph McDowell,
and Nathaniel Macon, Members of this House, be examined upon oath, at
the bar of this House, touching their knowledge of the handwriting of
William Blount, a Senator of the United States for the State of
Tennessee; and that Reynold Keene, esq., one of the judges of the court
of common pleas for the county of Philadelphia, and also one of the
aldermen of the city of Philadelphia, in the State of Pennsylvania,
administer the said oath.
The said Members were then sworn, and, being interrogated by the
Speaker, severally answered that they believed the letter to be in the
handwriting of William Blount.
It was then
Ordered, That the testimony of the said Members be reduced to writing
by the Clerk, and that the same be referred to the Committee of the
Whole House, to whom was committed the report of the committee to whom
was referred the message of the President of the United States of the
3d instant.
On July 7 \4\ the Speaker laid before the House a letter from Thomas
Blount, a Member from North Carolina, and brother of William Blount,
praying that he might be excused from voting on any question arising in
the course of the impeachment proceedings. Thereupon it was
Ordered, That the said Thomas Blount be excused from voting on any
question relating to the impeachment, now pending in this House, of
William Blount, a Senator of the United States for the State of
Tennessee.
On July 7,\5\ also, the Committee of the Whole reported and the House
agreed to the resolution that William Blount be impeached.
Then Mr. Sitgreaves moved an order which, with modification, was
agreed to as follows:
Ordered, That Mr. Sitgreaves do go to the Senate, and, at the bar
thereof, in the name of the House of Representatives, and of all the
people of the United States, impeach William Blount, a Senator of the
United States, of high crimes and misdemeanors; and acquaint the Senate
that this House will in due time exhibit particular articles against
him, and make good the same.
2295. Blount's impeachment continued.
In the Blount impeachment, following the precedent of the Hastings
trial, the House did not send the articles to the Senate with the
impeachment.
In the first impeachment the House followed English precedents to the
extent of requiring the sequestration of the respondent from his seat
in the Senate.
It was suggested by Mr. Albert Gallatin, of Pennsylvania, that the
articles
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\1\ Jonathan Dayton, of New Jersey, Speaker.
\2\ Annals, p. 458.
\3\ Journal, p. 71.
\4\ Journal, p. 72; Annals, p. 458.
\5\ Journal, p. 72; Annals, p. 459.
Sec. 2296
of impeachment should be prepared and presented with the impeachment.
To this the reply was made: \1\
Mr. Sitgreaves said that the mode which he proposed was the same
which was practiced in the case of Mr. Hastings. Mr. Burke went up to
the House of Lords and impeached him in words similar to those now
proposed to be used. Some time afterwards, the articles of impeachment
having been drawn, Mr. Burke again went up to the House of Lords and
exhibited them. Mr. S. spoke also of a work lately published, in
continuation of Judge Blackstone's Commentaries, which had a chapter on
parliamentary impeachment, and pointed out this as the proper mode of
procedure. He had also looked into the proceedings on the trial of the
Earl of Macclesfield, and found the same course was taken. It was true
that in the case of a public officer of the State of Pennsylvania,
which perhaps his colleague might have in his eye, the articles of
impeachment were exhibited at the same time that the impeachment was
made.
On motion of Mr. Sitgreaves it was:
Ordered, further, That Mr. Sitgreaves do demand that the said William
Blount be sequestered from his seat in the Senate, and that the Senate
do take order for the appearance of the said William Blount to answer
to the said impeachment.
It was objected that it was not necessary to follow so closely the
English precedents, since capital punishment could not follow a
conviction on impeachment in this country. Therefore it would be
unnecessary to confine the one impeached. But the House agreed to the
order, ayes 41, noes 30.\2\
2296. Blount's impeachment, continued.
Form used in delivering the Blount impeachment at the bar of the
Senate.
Upon the impeachment of William Blount the Senate took him into
custody and required bonds for his appearance, and informed the House
thereof.
Form of report to the House of an impeachment carried to the bar of
the Senate.
On July 7,\3\ while the Senate was engaged in proceedings for the
expulsion of the said William Blount for the offense set forth in the
message of the President, Mr. Sitgreaves appeared with the following
message from the House:
Mr. President, I am commanded, in the name of the House of
Representatives and of all the people of the United States, to impeach
William Blount, a Senator of the United States, of high crimes and
misdemeanors, and to acquaint the Senate that the House of
Representatives will, in due time, exhibit particular articles against
him and make good the same.
I am further commanded to demand that the said William Blount be
sequestered from his seat in the Senate, and that the Senate do take
order for his appearance to answer the said impeachment.
Thereupon the Senate agreed to the following:
Pursuant to a message from the House of Representatives of the United
States by Samuel Sitgreaves, esq., a Member of that House, that they,
in their own name, and in the name of all the people of the United
States, have impeached William Blount, a Member of the Senate, of high
crimes and misdemeanors; and that, in due time, they will exhibit
articles against him and make good the same; and they having demanded
that the said William Blount be sequestered from his seat in this
House, and that the Senate take order for his appearance to answer to
the said impeachment:
Resolved, That the said William Blount be taken into custody of the
messenger of this House until he shall enter into recognizance, himself
in the sum of $20,000, with two sufficient sureties in the sum of
$15,000 each, to appear and answer such articles of impeachment as may
be exhibited against him.
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\1\ Annals, p. 459.
\2\ Annals, p. 462.
\3\ Senate Journal, p. 388; Annals, p. 39.
Sec. 2297
Whereupon Mr. Blount named his sureties, and they were satisfactory
to the Senate.
The President then named Mr. Blount and his sureties, who arose while
the recognizance was read, and, being approved by the Senate, it was
executed in their presence.
On the same day Mr. Sitgreaves returned to the House and reported:\1\
That, in obedience to the order of this House, he had been to the
Senate, and in the name of this House and of all the people of the
United States, had impeached William Blount, a Senator of the United
States, of high crimes and misdemeanors, and had acquainted the Senate
that this House will, in due time, exhibit particular articles against
him and make good the same.
And, further, that he had demanded that the said William Blount be
sequestered from his seat in the Senate, and that the Senate do take
order for his appearance to answer to the said impeachment.
On July 8,\2\ it was ordered by the Senate:
Ordered, That the Secretary of the Senate notify the House of
Representatives that, in consequence of their message of yesterday, by
the Hon. Mr. Sitgreaves, one of their Members, they have caused William
Blount to recognize, in the sum of $20,000 principal, with two sureties
in the sum of $15,000 each, to appear and answer to the impeachment
mentioned in their message.
2297. Blount's impeachment, continued.
In the Blount impeachment the drawing up of the articles was confided
to a select committee, with power to procure testimony.
In the Blount impeachment the House, after discussion, empowered the
committee drawing the articles to sit during the recess of Congress.
On the same day and succeeding day, in the House, the following
resolutions appear to have been agreed to: \3\
Resolved, That a committee be appointed to prepare and report
articles of impeachment against William Blount, a Senator of the United
States, impeached by this House of high crimes and misdemeanors, and
that the said committee have power to send for persons, papers, and
records.
Resolved, That the committee appointed to prepare and report articles
of impeachment against William Blount, a Senator of the United States,
impeached by this House of high crimes and misdemeanors, be authorized
to sit during the recess of Congress.
Resolved, That the said committee be instructed to inquire, and by
all lawful means to discover, the whole nature and extent of the
offense whereof the said William Blount stands impeached, and who are
the parties and associates therein.
The privilege of sitting during the recess was the subject of
considerable debate, but precedents from English practice and from
trials in South Carolina and Pennsylvania were cited.
Messrs. Sitgreaves, Baldwin, Dana, Dawson, and Robert Goodloe Harper,
of South Carolina, were appointed to prepare and report articles of
impeachment.
2298. Blount's impeachment, continued.
After his expulsion from the Senate William Blount was surrendered by
his bondsmen, and gave bonds anew to answer to the impeachment.
On July 8,\4\ in the Senate, the trial of William Blount terminated
with his expulsion.
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\1\ House Journal, p. 73.
\2\ Senate Journal, p. 390; Annals, p. 40.
\3\ House Journal, p. 74; Annals, pp. 463-466. The Journal appears to
be defective in its record as to these resolutions, but the Annals seem
to make certain that these resolutions were agreed to.
\4\ Senate Journal, p. 392; Annals, p. 44.
Sec. 2299
On this, Mr. Butler, in behalf of himself and Mr. Thomas Blount, the
other surety, surrendered the person of William Blount, the principal,
to the Senate, and requested to be discharged from their recognizance.
Whereupon, it was
Ordered, That they be discharged from their recognizance, and that
the Secretary enter an indorsement on the back of the bond as follows:
``And now, to wit, on this 8th day of July, 1797, the Hon. Thomas
Blount and Pierce Butler, esqs., came into the Senate and surrendered
William Blount, esq., for whom they became bound yesterday.
On motion,
Resolved, That William Blount be taken into the custody of the
Messenger of this House until he shall enter into recognizance, himself
in the sum of $1,000, with two sufficient sureties in the sum of $500
each, to appear and answer such articles of impeachment as may be
exhibited against him by the House of Representatives on Monday next.
A message was sent informing the House of Representatives of this
action.\1\
On July 10 the Senate Journal records: \2\
Agreeably to the order of the Senate the within-mentioned William
Blount having entered into recognizance, I have returned the same into
the office of the Secretary of the Senate.
Ordered, That it be entered on the Journal of the Senate that William
Blount failed making his appearance this day, agreeably to the
recognizance entered into on the 8th instant.
2299. Blount's impeachment, continued.
A recess of Congress intervened between the impeachment of Blount and
the framing of the articles of impeachment.
On July 10,\3\ in the House, it was:
Ordered, That Mr. Dana be excused from serving on the committee
appointed to prepare and report articles of impeachment against William
Blount, a Senator of the United States, and that Mr. Bayard be
appointed of the said committee in his stead.
On July 10 the Congress adjourned until the second Monday in November
next.
2300. Blount's impeachment, continued.
The committee appointed to prepare articles of impeachment in the
Blount case reported the evidence, and later the articles.
The articles of impeachment in Blount's case were considered by the
House and not by the Committee of the Whole.
After considering English precedents the House chose the managers of
the Blount impeachment by ballot.
In choosing managers by ballot the House guarded against
complications in case more than the required number should have a
majority.
A manager in impeachment proceedings is excused from service by
authority of the House.
The managers carry the articles of impeachment to the Senate in
accordance with a resolution agreed to by the House.
On December 4, 1797,\4\ at the second session of Congress, Mr.
Sitgreaves from the committee appointed to prepare articles of
impeachment, submitted a report from which the injunction of secrecy
was removed, and which was read in
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\1\ House Journal, p. 74.
\2\ Senate Journal, p. 393; Annals, p. 44.
\3\ House Journal, p. 75.
\4\ Second session Fifth Congress, Journal, pp. 96, 97; Annals, pp.
672-679.
Sec. 2299
the House on December 5 and ordered to lie on the table. This report
did not embody the articles of impeachment, but simply set forth the
facts, documents, subpoenas, etc., resulting from the investigation.\1\
On January 18 and 22, 1798,\2\ Mr. Sitgreaves submitted supplementary
reports, one presenting an additional deposition and the other two
letters received by the committee. They were read to the House and
ordered to lie on the table.
On January 25, 1798,\3\ Mr. Sitgreaves, from the committee, reported
the articles of impeachment, which were considered in Committee of the
Whole, and on January 29 were agreed to by the House.
Thereupon, on motion of Mr. Sitgreaves:
Resolved, That eleven managers be appointed, by ballot, to conduct
the said impeachment on the part of this House.
As to the method of appointment there was some debate.\4\
Mr. Sitgreaves said, with respect to the manner of appointing
managers, he left it to the discretion of the House. The British House
of Commons appointed their managers of impeachment by ballot, as they
did all their large committees. In this House a different course was
taken with respect to committees; they were always appointed by the
Speaker, except specially ordered otherwise. The former committee on
this business was appointed by the Speaker. He was not disposed to
deviate from the usual practice. If, however, any gentleman wished to
move that they be appointed by ballot, such a motion, he supposed,
would be in order.
Mr. Albert Gallatin, of Pennsylvania, thought the rule directing the
appointment of committees did not apply in the present case. It was
true that managers of conferences of the Senate were thus chosen, but
he thought there was an essential difference between the two cases.
Managers of conferences reported to the House similarly with
committees, and in fact they were a committee, though called by a
different name. But managers of an impeachment on the part of this
House appeared to him to be quite a different thing. They were not to
make a report to the House which might be affirmed or negatived; they
were the representatives of the House, and what they did would be
final. Under this impression, in order to take the sense of the House
upon the business, he moved that the managers be elected by ballot.
The motion that the managers be appointed by ballot was agreed to by
the House.
On January 30 \5\ Mr. Sitgreaves, in view of the fact that the House
should determine whether the choice should be determined by majority or
plurality, offered the following resolution, which was agreed to:
Resolved, That in the ballot for managers to conduct the impeachment
against William Blount, on the part of this House, a majority of the
whole number of votes shall be necessary to a choice; and if it should
happen that more than eleven members shall have a majority, that, in
that case, the eleven highest in votes shall be considered as chosen;
and if any two or more having a majority of votes should be equal in
number, so as that the plurality can not be determined among them, the
same shall be decided by a new ballot, subject to the preceding rules.
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\1\ For the report in full, with exhibits, see Annals, vol. 5, part
2, pp. 2319-2415.
\2\ Journal, pp. 135, 144; Annals, pp. 847, 890.
\3\ Journal, pp. 149-153; Annals, pp. 919, 947-951.
\4\ Annals, p. 952.
\5\ Journal, p. 154; Annals, p. 953.
Sec. 2301
Proceeding to ballot, the House, on this and the succeeding day,
chose the following managers:
Messrs. Sitgreaves; James A. Bayard, of Delaware; Harper; William
Gordon, of New Hampshire; Thomas Pinckney, of South Carolina; Dana;
Samuel Sewall of Massachusetts; Hezekiah L. Hosmer, of New York; John
Dennis, of Maryland; Thomas Evans, of Virginia; and James H. Imlay, of
New Jersey.
Mr. Baldwin, who had been elected a manager, was excused by the
House.
On February 2 \1\ it was--
Resolved, That the articles agreed to by this House, to be exhibited
in the name of themselves and of all the people of the United States
against William Blount, in maintenance of their impeachment against him
for high crimes and misdemeanors, be carried to the Senate by the
managers appointed to conduct the said impeachment.
2301. Blount's impeachment continued.
The ceremonies of presenting to the Senate the articles of
impeachment of William Blount in 1797.
Rules established by the Senate to prescribe ceremonies for receiving
House managers presenting articles in Blount's case.
Form of proclamation made in the Senate on attendance of House
managers to present articles of impeachment against William Blount.
Upon receiving notice from the House that the managers would present
articles against William Blount, the Senate set a time and informed the
House thereof.
The managers who presented the articles impeaching William Blount
were attended by some Members of the House.
Announcement of the chairman of the House managers in presenting to
the Senate the articles against William Blount.
The manager having read the articles impeaching William Blount, the
Sergeant-at-Arms received them and laid them on the Senate table.
Form of declaration of Vice-President upon presentation of articles
of impeachment in Blount's case.
On February 5,\2\ in the Senate, the following rules were agreed to:
Resolved, That the Doorkeeper of the Senate be, and he is hereby,
invested with the authority of Sergeant-at-Arms, to hold said office
during the pleasure of the Senate, whose duty it shall be to execute
the commands of the Senate, from time to time, and all such process as
shall be directed to him by the President of the Senate.
Resolved, That for regulating the proceedings of the Senate in cases
of impeachment the following rule be adopted, viz:
When the House of Representatives, or managers by them appointed for
that purpose, shall attend the Senate to present articles of
impeachment, the President of the Senate shall cause proclamation to be
made in the form following, viz:
All persons are commanded to keep silence while the Senate of the
United States are receiving articles of impeachment against--, on pain
of imprisonment.
And shall then signify to the managers that the Senate are ready to
receive the articles of impeachment, which, having been read by one of
the managers, shall be received by the Secretary; and the managers
shall thereupon be informed by the President that the Senate will take
proper order on the subject, of which due notice will be given to the
House of Representatives.
After which the Secretary shall read said articles of impeachment and
enter the same on the Journals of the Senate.
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\1\ House Journal, p. 160.
\2\ Senate Journal, p. 433; Annals, p. 498.
Sec. 2302
On February 7,\1\ in the Senate, a message, ordered to be sent by the
House, was received from the House by its clerk, who said:
Mr. President: The House of Representatives have resolved that
articles agreed by the House to be exhibited by them, in the name of
themselves and of all the people of the United States, against William
Blount, in maintenance of their impeachment against him for high crimes
and misdemeanors, be carried to the Senate by the managers, Messrs.
Sitgreaves, Bayard, Harper, Gordon, Pinckney, Dana, Sewall, Hosmer,
Dennis, Evans, and Imley, appointed to conduct the said impeachment.
On motion,
Resolved, That the Senate will, at 12 o'clock this day, be ready to
receive articles of impeachment against William Blount, late Senator of
the United States from the State of Tennessee, to be presented by the
managers appointed by the House of Representatives.
This was the same day communicated to the House by a message borne
from the Senate by its Secretary.\2\
Mr. Sitgreaves having stated that it was usual on all solemn
occasions like this for the House to give sanction to its managers by
an attendance at the time, the managers of the impeachment, accompanied
by some of the Members of the House, accordingly went up to the Senate
for the purpose of exhibiting the articles of impeachment against
William Blount.\3\
Later, in the Senate,\4\ a message was announced from the House of
Representatives by the above-mentioned managers, who, being introduced,
and all but the chairman being seated,\3\ Mr. Sitgreaves, their
chairman, addressed the Senate as follows:
Mr. Vice-President: The House of Representatives having agreed upon
articles in maintenance of their impeachment against William Blount for
high crimes and misdemeanors, and having appointed on their part
managers of the said impeachment, the managers have now the honor to
attend the Senate for the purpose of exhibiting the said articles.
The Vice-President then ordered the Sergeant-at-Arms to proclaim
silence, after which he notified the managers that the Senate was ready
to hear the articles of impeachment; whereupon,
The chairman of the managers read the articles of impeachment, and
they were received from him at the bar by the Sergeant-at-Arms and laid
on the table.
The Vice-President \5\ then said:\3\
Gentlemen, managers on the part of the House of Representatives: The
Senate will take such order on the articles of impeachment which you
have exhibited before them as shall seem to them proper, of which due
notice will be given to the House of Representatives.
Upon which the managers and Members attending then retired.
2302. Blount's impeachment continued.
The articles in impeachment of William Blount.
The articles in the Blount impeachment were signed by the Speaker and
attested by the Clerk.
The articles of impeachment in the Blount case appear in the House
Journal on the day of their adoption, and in the Senate Journal on the
day of their presentation.
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\1\ Senate Journal, p. 435; Annals, p. 498.
\2\ House Journal, P. 163.
\3\ Annals, p. 970.
\4\ Senate Journal, p. 435; Annals, p. 499.
\5\ Thomas Jefferson, of Virginia, Vice-President.
Sec. 2302
The Secretary of the Senate then read the articles of impeachment, as
follows:
articles exhibited by the house of representatives of the united
states, in the name of themselves and of all the people of the united
states, against william blount, in maintenance of their impeachment
against him for high crimes and misdemeanors.
Article 1. That, whereas the United States, in the months of February,
March, April, May, and June, in the year of our Lord 1797, and for many
years then past, were at peace with His Catholic Majesty, the King of
Spain; and whereas, during the months aforesaid, His said Catholic
Majesty and the King of Great Britain were at war with each other; yet
the said William Blount, on or about the months aforesaid, then being a
Senator of the United States, and well knowing the premises, but
disregarding the duties and obligations of his high station, and
designing and intending to disturb the peace and tranquillity of the
United States, and to violate and infringe the neutrality thereof, did
conspire, and contrive to create, promote, and set on foot, within the
jurisdiction and territory of the United States, and to conduct and
carry on from thence, a military hostile expedition against the
territories and dominions of His said Catholic Majesty in the Floridas
and Louisiana, or a part thereof, for the purpose of wresting the same
from His Catholic Majesty, and of conquering the same for the King of
Great Britain, with whom His said Catholic Majesty was then at war as
aforesaid, contrary to the duty of his trust and station as a Senator
of the United States, in violation of the obligations of neutrality,
and against the laws of the United States, and the peace and interests
thereof.
[Then follows article 2, reciting that the said William Blount ``did
conspire and contrive to excite the Creek and Cherokee nations of
Indians then inhabiting within the territorial boundary of the United
States, to commence hostilities against the subjects and possessions of
His Catholic Majesty,'' and article 3, reciting that the said Blount
did ``further conspire and contrive to alienate and divert the
confidence of the said Indian tribes or nations from the said Benjamin
Hawkins, the principal temporary agent aforesaid, and to diminish,
impair, and destroy the influence of the said Benjamin Hawkins with the
said Indian tribes, and their friendly intercourse and understanding
with him, contrary to the duty of his trust and station as a Senator of
the United States, and against the ordinances and laws of the United
States, and the peace and interests thereof;'' and article 4, reciting
a similar attempt to seduce James Carey from his duty; and article 5,
reciting similar efforts to foment disaffection among the Cherokee
Indians toward the Government of the United States.]
And the House of Representatives, by protestation, saving to
themselves the liberty of exhibiting at any time hereafter, any further
articles, or other accusation, or impeachment, against the said William
Blount, and also of replying to his answers, which he shall make unto
the said articles, or any of them, and of offering proof to all and
every the aforesaid articles, and to all and every other articles of
impeachment, or accusation, which shall be exhibited by them, as the
case shall require, do demand that the said William Blount may be put
to answer the said crimes and misdemeanors, and that such proceedings,
examinations, trials, and judgments may be thereupon had and given, as
are agreeable to law and justice.
Signed by order and in behalf of the House.
Jonathan Dayton, Speaker.
Attest:
Jonathan W. Condy, Clerk.
These articles of impeachment appear in full in the Journals of both
the House and Senate, in the House Journal on January 29,\1\ the day of
their adoption, and in the Senate Journal on February 7,\2\ the day
they were presented and read.
-----------------------------------------------------------------------
\1\ House Journal, p. 151.
\2\ Senate Journal, p. 435.
Sec. 2303
2303. Blount's impeachment continued.
Form of oath administered to Senators sitting for the impeachment of
William Blount.
The Senate decided in the Blount impeachment that the oath might be
administered by the Secretary and President without authority of law.
The Senate decided in the Blount impeachment that the Secretary,
should administer the oath to the President, and the President to the
Senators.
On February 9 \1\ the Senate considered the report of a committee
appointed to determine the mode of administering oaths in cases of
impeachment. This committee reported the following:
Resolved, That the oath or affirmation required by the Constitution
of the United States to be administered to the Senate, when sitting for
the trial of impeachment, shall be in the form following, viz:
``I. A B, solemnly swear (or affirm, as the case may be), that in all
things appertaining to the trial of the impeachment of ------ ------ I
will do impartial justice, according to law.''
Which oath or affirmation shall be administered by the Secretary to
the President of the Senate, and by the President to each member of the
Senate.
On motion that the report be amended by adding thereto these words
``and that a bill be brought in conformable thereto,'' there were yeas
8, nays 20. Then, by a vote of 22 yeas to 6 nays, the resolution was
agreed to as reported. On February 14 \2\ the Senate postponed a bill
regulating certain proceedings in case of impeachment, and on February
20 the bill failed to pass.
2304. Blount's impeachment, continued.
Form of the writ of summons issued for the appearance of William
Blount to answer articles of impeachment.
Rule of the Senate prescribing method of service of writ of summons
on William Blount.
In the Blount impeachment the Secretary was directed to serve the
summons sixty days before the return day.
The Senate in its writ of summons in the Blount impeachment fixed
respondent's appearance at the next session of Congress.
The Senate communicated to the House its form of summons in the
Blount impeachment, and it was entered in the House Journal.
In the Blount impeachment the House, in conference, asked of the
Senate an earlier return day of the summons, but the request was
denied.
Instance of a conference on a subject of procedure in an impeachment.
On March 1 \3\ the Senate concluded consideration of the report made
on February 27 by Mr. Samuel Livermore, \4\ of New Hampshire, from the
committee to whom the subject had been recommitted on February 23, and,
by a vote of yeas 22, nays 5, agreed to it as follows:
The committee to whom was recommitted the report of the committee
appointed to prepare rules of proceeding in the case of the impeachment
against William Blount, report, in part, that a writ of summons issue,
directed to the said William Blount, in the form following:
-----------------------------------------------------------------------
\1\ Senate Journal, p. 438; Annals, p. 503.
\2\ Senate Journal, pp. 441, 448.
\3\ Senate Journal, pp. 447, 448; Annals, p. 514.
\4\ The other members of the committee were Messrs. James Ross, of
Pennsylvania, and Richard Stockton, of New Jersey.
Sec. 2304
``United States of America, ss:
``The Senate of the United States of America to William Blount, late
a Senator of the United States for the State of Tennessee, greeting:
Whereas the House of Representatives of the United States of America
did, on the 7th day of July last past, in their own name, and in the
name of all the people of the United States, impeach you, the said
William Blount, of high crimes and misdemeanors before the Senate of
the United States: And whereas the said House of Representatives did,
on the 7th day of February, of the present year, exhibit to the Senate
their articles of impeachment against you, the said William Blount,
charging you with high crimes and misdemeanors, therein specially set
forth (a true copy of which articles of impeachment is annexed to this
writ), and did demand that you, the said William Blount, should be put
to answer the said crimes and misdemeanors; and that such proceedings,
examinations, trials, and judgments might be thereupon had as are
agreeable to law and justice--you, the said William Blount, are
therefore summoned to be and appear before the Senate of the United
States of America, at their Chamber, in the city of Philadelphia, in
the State of Pennsylvania, on the third Monday of December next, at the
hour of 11 of that day, then and there to answer the said articles of
impeachment, and then and there to abide by, obey, and perform such
orders and judgments as the Senate of the United States shall make in
the premises, according to the Constitution and laws of the said United
States. And hereof you are in nowise to fail. Witness, the honorable
Thomas Jefferson, esq., Vice-President of the United States of America,
and President of the Senate thereof, at the city of Philadelphia, the
1st day of March, in the year of our Lord 1798, and of the independence
of the United States the twenty-second.
``Which summons shall be signed by the Secretary of the Senate.
``That the said summons shall be served on the said William Blount by
the Sergeant-at-Arms of this House, or a special messenger, who shall
leave a true copy of the writ and the articles annexed with the said
William Blount, if he can be found, showing him the original; or at the
usual place of residence of the said William Blount, if he can not be
found. Which messenger shall make return of the writ of summons, and of
his proceedings in virtue thereof, to the Senate, on the appearance day
therein mentioned.
``And that a message be sent to the House of Representatives, giving
information that the Senate have directed the said writ to be issued,
and of the day mentioned therein for the appearance of the said William
Blount.''
It was then
Resolved, That the Secretary of the Senate do issue the summons
hereinbefore directed, and that service thereof be made sixty days at
the least before the return day mentioned in the said writ of summons.
This report was communicated to the House by message and appears in
full on the Journal of that body.\1\ The following order was then
agreed to:
Ordered, That the said proceedings of the Senate be referred to the
managers appointed on the part of this House to conduct the said
impeachment against William Blount, with instructions to inquire and
report whether any, and, if any, what, provisions are necessary to be
made by law for regulating proceedings in cases of impeachment.
On April 6 \2\ Mr. Sitgreaves, from the managers, reported the
following resolutions, which were agreed to:
Resolved, That a conference be desired with the Senate on the subject
of their resolution of the 1st of March last, relative to the
impeachment of William Blount, and that the managers appointed to
conduct the said impeachment be the managers for this House at the
proposed conference.
Resolved, That the managers of this House do request, at the said
conference, that the Senate will appoint a day, during the present
session of Congress, for the return of the summons directed by their
resolution of the 1st of March aforesaid, to be issued to the said
William Blount.
-----------------------------------------------------------------------
\1\ House Journal, p. 211.
\2\ House Journal, pp. 253, 254; Annals, pp. 1376, 1377.
Sec. 2305
On April 9,\1\ in the Senate,
Resolved, That they do agree to the proposed conference, and that
Messrs. Ross and Livermore be managers at the same on the part of the
Senate.
On April 13,\2\ Mr. Bayard, from the managers appointed on the part
of the House, submitted the following report, which was laid on the
table:
That they laid before the conferees appointed by the Senate the
resolution of the 6th instant, requesting the appointment of a day
during the present session of Congress for the return of the summons
against the said William Blount, the reasons upon which the said
resolution was founded; and were assured by the conferees that the said
request and the reasons for making it, suggested by the managers,
should be reported and submitted to the Senate.
This report was ordered to lie on the table.
In the Senate, on April 16,\3\ Mr. Ross, from the conferees, made a
report; whereupon, it was
Resolved, That it is not, at this time, expedient to alter the return
day of the summons directed to be issued to William Blount, so as to
make it returnable in the present session of Congress as requested by
the managers of the House of Representatives, there being no certainty
that it will continue long enough to afford reasonable time for a
proper service and return of this process.
On April 16 \4\ this resolution was communicated to the House by
message, and was read and ordered to lie on the table.
2305. Blount's impeachment, continued.
In Blount's impeachment the return of service of the summons was
filed in the Senate before the day set for the appearance.
In the Blount impeachment a letter from respondent's attorneys
announcing their readiness to attend was filed in the Senate before the
day set for appearance.
In the Senate on December 6, 1798,\5\ in the next and third session
of the Congress, ``the return of service on the summons to William
Blount, made by the Sergeant-at-Arms, pursuant to the resolution of the
Senate of the 1st of March last, was read.'' This is the entry of the
Senate Journal, which does not give the return in full.
Then the President communicated a letter from Jared Ingersoll, esq.,
stating that he, together with A. J. Dallas, esq., were employed as
counsel for William Blount, and that they were ready to attend the
trial when ordered by the Senate. This letter does not appear in full
in the Senate Journal.
2306. Blount's impeachment, continued.
A manager of an impeachment having accepted an incompatible office,
the House chose a successor.
The chairman of managers of an impeachment having ceased to be a
Member, the next in order succeeded to the chairmanship.
-----------------------------------------------------------------------
\1\ Senate Journal, p. 469; Annals, p. 537.
\2\ House Journal, p. 261; Annals, p. 1412.
\3\ Senate Journal, p. 472; Annals, p. 541.
\4\ House Journal, p. 263.
\5\ Third session Fifth Congress, Senate Journal, p. 558; Annals, p.
2190.
Sec. 2307
In the House, on December 13,\1\ Mr. Harper, in the absence of Mr.
Bayard, ``the present chairman'' of the managers,\2\ offered the
following, which was agreed to:
Resolved, That another Member be appointed, by ballot, as one of the
managers to conduct the impeachment against William Blount, in the room
of Mr. Sitgreaves, appointed a commissioner of the United States, under
the sixth article of the treaty of amity, commerce, and navigation,
with Great Britain.
The House accordingly chose Mr. John Wikes Kittera, of Pennsylvania.
2307. Blount's impeachment, continued.
The Senate, by message, informed the House that the summons had been
served on William Blount and a return made thereon to the Secretary's
office.
Rules adopted by the Senate for reading the return, calling the
respondent, and entering appearance or default in the first
impeachment.
In the first impeachment the Senate by rule described itself as a
court of impeachment.
Impeachment trials in the Senate have from the first been recorded in
a separate journal.
Form used by the Sergeant-at-Arms in calling William Blount to appear
and answer articles of impeachment.
Form of return of writ of summons in Blount impeachment.
William Blount appeared neither in person nor by attorney to answer
the articles of impeachment.
The House did not attend the return of summons to William Blount to
appear and answer articles of impeachment.
In the Senate on December 13: \3\
Ordered, That the Secretary notify the House of Representatives that
the summons issued by order of the Senate of the United States against
William Blount, on the 1st day of March last, to appear at their bar on
the third Monday of December instant and answer to the impeachment made
by the House of Representatives, for high crimes and misdemeanors, has
been duly served on the said William Blount by the Sergeant-at-Arms,
and a return thereon is made to the office of the Secretary of the
Senate.
This message was received in the House on the same day.
On December 17,\4\ in the Senate, Messrs. James Ross, of
Pennsylvania; Jacob Read, of South Carolina, and Samuel Livermore, of
New Hampshire, were appointed to report rules for conducting the trial
of impeachment and reported--
That the legislative and executive business of the Senate be
postponed, and that the Senate form itself into a court of impeachment
by taking the oath prescribed by a resolution of this House on the 9th
of February, last.
After the oath has been administered to the President and Senate, the
process which, on the 1st of March last, was directed to be issued and
served upon William Blount, and the return made there-
-----------------------------------------------------------------------
\1\ Third session Fifth Congress, House Journal, p. 406; Annals, pp.
2440, 2441.
\2\ Mr. Bayard was second on the committee of managers and apparently
succeeded to the position without election, although such usage was not
incorporated in the rule until 1804.
\3\ Senate Journal, p. 563; Annals, p. 2194.
\4\ Senate Journal, p. 565; Annals, p. 2196.
Sec. 2308
upon, shall be read. The officer who served the process shall be sworn
to the truth of the return thereof. The defendant, William Blount,
shall be called to appear and answer the articles of impeachment
exhibited against him. If he appears, his appearance shall be recorded.
If he does not appear, his default shall be recorded.
The House of Representatives shall be notified of the appearance or
default of the defendant, William Blount, and that the Senate will be
ready at 12 o'clock to-morrow to receive the managers appointed by that
House, and to take further order in this trial.
The report was adopted, and the Senate ``formed itself into a court
of impeachment accordingly.'' The daily Journal of the Senate does not
record the proceedings of the court of impeachment, but they were as
follows on this day: \2\
On this day the Senate formed itself into a high court of
impeachment, in the manner directed by the Constitution, and the oath
prescribed was administered to the Senators present. The process issued
on the 1st of March last against William Blount, together with the
return made thereon, was read, and the return was sworn to as follows:
``James Mathers, Sergeant-at-Arms of the Senate of the United States,
maketh oath that, in obedience to the within summons, he did repair to
the usual place of residence of the within-named William Blount, at
Knoxville, in the State of Tennessee, and on the 27th day of August, in
the present year, did then leave a true copy of the said writ of
summons, and of the articles of impeachment annexed, with the wife of
the said William Blount, he not being to be found; and that, on the
next day, meeting with the said William Blount at the Blue Springs, the
deponent showed and read the said original writ to the said William
Blount, and informed him that he had left a copy at the usual place of
his residence.
``James Mathers.''
The doors of the court were then opened by order of the President,
and by his order the Sergeant-at-Arms called the said William Blount
three several times, in the words following, to appear and answer:
``Hear ye! Hear ye! Hear ye!
``William Blount, late a Senator from the State of Tennessee, come
forward and answer the articles of impeachment exhibited against you by
the House of Representatives.''
William Blount not appearing, the court adjourned till 12 o'clock to-
morrow.
2308. Blount's impeachment, continued.
The House being informed that William Blount had failed to appear and
answer the articles, instructed the managers to ask of the Senate time
to prepare proceedings.
After William Blount had failed to appear and answer, counsel were
admitted on his behalf.
William Blount having failed to appear and answer, the House, after
discussing English precedents, declined to ask that he be compelled to
appear.
The House declined to instruct its managers as to further proceedings
after William Blount had failed to appear and answer.
In the House on December 18,\3\ a message was received from the
Senate notifying the House that William Blount, impeached of high
crimes and misdemeanors before the Senate, by this House, though he had
been duly summoned, had not
-----------------------------------------------------------------------
\1\ The Senate kept in journal form a ``Record of the Proceedings of
the High Court of Impeachment on the Trial of William Blount,'' which
was published separately at a later date. Senate Journal, Eighth
Congress, pp. 484-491.
\2\ Annals, p. 2245.
\3\ House Journal, p. 415; Annals, p. 2458.
Sec. 2308
appeared at the bar of the Senate at the time appointed; and that the
Senate would be ready to receive the managers at 12 o'clock this day,
to take further order in this trial.
On motion of Mr. Harper, this message was referred to the managers of
the impeachment, who had leave to sit during the session of the House.
Later, on the same day, Mr. Harper reported, and in accordance
therewith it was--
Resolved, That the said managers do attend before the Senate, at 12
o'clock this day, and request a further day for preparing their
proceedings in the said impeachment.
In the Senate, on December 18,\1\ Messrs. Ross, Livermore, and
Stockton were appointed a committee to take into consideration and
report what rules were necessary to be adopted on the trial of the
impeachment.
On the same day the Senate resolved itself into a court of
impeachment, wherein occurred the following proceedings: \1\
The President communicated a letter, signed ``Jared Ingersoll and A.
J. Dallas,'' praying to be admitted to appear as counsel for the
defendant. It was accordingly so ordered, and that the House of
Representatives be informed thereof.
The managers on the part of the House of Representatives and the
defendant's counsel appeared at the bar.
On motion of Mr. Harper (in the absence of Mr. Bayard, the chairman),
in behalf of the managers, that further time be allowed them to prepare
their proceedings in the case, it was,
``Ordered, That they have time till Monday next, at 12 o'clock, for
that purpose.''
The court adjourned till that time.
In the House, on December 20,\2\ Mr. Harper submitted the report of
the managers, which was as follows:
That, pursuant to the resolution of this House, of the 18th instant,
they did attend before the Senate of the United States, and request a
further day for preparing their proceedings in the said impeachment;
whereupon, a further day was granted till Monday next, at 12 o'clock.
That the managers, having carefully considered the subject, are of
opinion that it is neither consistent with the solemnity which ought to
attend this high constitutional proceeding, nor with the principles,
which, as far as they have been able to discover, have invariably
obtained in impeachments, and all other trials of a criminal nature, to
proceed to trial against the defendant in this case in his absence;,
and that the said William Blount, having failed to make personal
appearance, as has been notified to the House by the above-mentioned
message from the Senate, the next step, on the part of this House,
ought to be a motion before the Senate that further order be taken by
them for compelling his personal appearance at their bar, to answer to
the articles of impeachment exhibited against him by this House.
The managers, however, do not think it proper for them to take a step
involving so important a principle without the direction of the House,
for the purpose of obtaining which, they beg leave to submit to its
consideration the following resolution:
``Resolved, That the managers appointed, on the part of this House,
to conduct the impeachment against William Blount, late a Senator of
the United States, be instructed to request, at their next attendance
before the Senate, that further order be taken for compelling the
personal appearance of the said William Blount, to answer to the
articles of impeachment exhibited against him on the part of this
House.''
-----------------------------------------------------------------------
\1\ Annals, p. 2245.
\2\ House Journal, pp. 416, 417; Annals, pp. 2469-2487.
Sec. 2308
On the next day the House debated the report at length. It appeared
that the managers were nearly unanimous in favor of their report, but
it was vigorously assailed in the House. Mr. Harrison G. Otis, of
Massachusetts, opposed:
Mr. Otis said he did not know what had been the rule observed in
similar cases in England; he had not had leisure to examine; nor did he
think we ought to be bound by British precedents in a case of this
kind. It is, said he, a new case, and he saw no difficulty in
determining to prosecute this man to conviction, and in obtaining for
him the punishment which he deserves. There is some analogy between
this process and a process (well known in common law) against a man's
property, distinct from his person. Every one knows that such a
prosecution is a prosecution of forfeiture. For instance, we libel a
vessel, and notice is given to all the parties to defend. If they do
not appear, judgment and execution are obtained.
The present process is against the office of William Blount; it has
nothing to do with his person; he is afterwards liable to a prosecution
at common law for any crime which he may have committed.
Mr. Samuel W. Dana, of Connecticut, also supported this view:
Let gentlemen who say that a person, in a case like the present,
should be required to appear, answer, if a sentence can neither affect
a man's person nor his property, why he should appear in person? If a
man were liable to be punished with imprisonment, fine, or ransom, his
person ought to be secured; and it is because courts will have
security, that in such cases persons are either imprisoned or held by
efficient bail is refused, it is where it does not afford a sufficient
security. Is any such security required in this case? asked Mr. Dana,
There is not. The process would be a rare one if the party were
required to appear.
The Constitution, continued Mr. Dana, has proceeded on a different
principle. The process in cases of impeachment in this country is
distinct from either civil or criminal--it is a political process,
having in view the preservation of the Government of the Union.
Impeachments under the British Government are wholly different from
impeachments carried on under this Government. The Constitution
proceeds on the high authority of public opinion and of the high value
of reputation to every man who is a candidate for public office, and
that the declaration of public reprobation, expressed by the
constitutional organ, is one of the severest punishments. It considers
that the punishment of fine and imprisonment may be endured, but that
public abhorrence is not to be borne.
The punishment in this case therefore is wholly a declaration of
public opinion, not only that the person receiving it has proved
himself unworthy of his present office, but that there is such a
baseness attached to his character as to render him unfit for any
office in future. Taking the matter up in this view, the propriety of
not considering the offense as criminal will clearly appear. Were the
offense to be considered as a crime merely, the judgment of the court
should involve the whole punishment; whereas, it has no connection with
punishment or crime, as, whether a person tried under an impeachment be
found guilty or acquitted, he is still liable to a prosecution at
common law. This process therefore is perfectly sui generis--equally
unknown to the British Government or to this country.
Upon this view of the subject, Mr. Dana said his opinion was, that
the House ought to instruct the managers, but in a way directly
opposite to that proposed by the resolution under consideration.
Mr. Dana also cited the case of Robert Tresylliam and others, tried
before the British House of Lords in 1388, in support of his opinion,
but it was alleged in opposition that this precedent had been highly
censured by English law writers.
Mr. Harper defended the report of the managers:
It had been the practice, from the earliest records of our
jurisprudence to the present time, that a man shall never be tried in
his absence for a criminal offense. Gentlemen say the reason of this
is, that he may be ready to receive judgment. If so, it would be
foolish, because the court might direct the person of a criminal to be
brought before them to receive sentence as well as they could do it
before his trial. What, then, said he, is the reason? Ask the great
sages of the English law, and they will give an answer very different
from his learned friends. They will say that it is because a man ought
always to be face to face with his judges and accusers; that no witness
ought to be heard against a man, or his life or property put in
jeopardy, without his personal presence; and so sacred is the principle
held that a man is not permitted to depart from it. This is not a
solitary instance in which personal
Sec. 2809
convenience is sacrificed to natural convenience; this is frequently
the case, in order to make sure the barriers which protect individual
security. It is in this respect that our jurisprudence is chiefly
distinguished from the inquisitorial proceedings of former times, where
a man might be found guilty of the highest crimes without knowing who
were his accusers, witnesses, or judges. It is by this sacred maxim
that no man can be put in jeopardy without being confronted by his
accusers. And shall we, said he, depart from this principle? Why shall
we do this? Because the judgment to be awarded in this case does not
extend to person or property? Is the judgment less than if it affected
person of property? Gentlemen will not say so. They will say that a
man's reputation is the dearest possession which he can enjoy; and
certain he was that gentlemen who are opposed in opinion to him on this
subject would sooner be deprived of their property or personal liberty
than lose their fame and reputation. It was, in his opinion, the
highest punishment that could be inflicted upon a man of worth.
The House disagreed to the resolution proposed by the managers, yeas
11, nays 69.
Mr. Samuel Sewall, of Massachusetts, one of the managers, in order
that there might be positive instructions from the House, proposed this
resolution:
Resolved, That the managers appointed on the part of this House for
conducting the impeachment against William Blount proceed in the
prosecution of the said impeachment, although William Blount should not
appear in person to answer to the same.
It was urged against this resolution that it was improper to give any
instructions at all and that the Senate should be left to proceed as
they should think proper.
The resolution was disagreed to, ayes 37, noes 46.
2309. Blount's impeachment, continued.
Rule adopted by the Senate for the trial of William Blount in 1797.
The rule providing for the putting in of the answer or plea in the
Blount case.
The rules in the Blount case provided that respondent's answer should
be communicated to the House of Representatives.
The Senate rules in the Blount case required that respondent's answer
should be spread on the journal.
The Senate rules in the Blount case provided that all questions
arising should be decided in secret session and by yeas and nays.
Form of oath and mode of examination of witnesses prescribed in the
Blount impeachment.
It was provided in the Blount case that Senators called as witnesses
should be sworn and testify standing in their places.
The Senate communicated to the House its rules for the trial of
William Blount; and they appear in the House Journal.
The Senate decided that the counsel for William Blount need not file
any warrant of attorney or other written authority.
During proceedings in impeachment before the Senate the President pro
tempore presides during temporary absence of the Vice-President.
In the Senate, on December 20,\1\ Mr. Ross, from the committee
appointed to prepare rules, made a report which, after amendment, was
on December 21 agreed to, as follows:
Resolved, That at the next opening of the court of impeachment the
President shall inquire whether the managers have any request to make
before the counsel of the defendant are called on to put in his answer.
-----------------------------------------------------------------------
\1\ Senate Journal, p. 566; Annals, p. 2197.
Sec. 2309
If no motion or request is made, the defendant's counsel shall be
required to put in his answer or plea to the articles of impeachment.
The answer or plea shall be read by the Secretary and entered by him
on the Journal.
A copy of the defendant's answer or plea shall be communicated to the
House of Representatives by the Secretary.
The President shall then inform the managers that the Senate is ready
to hear any reply or motion which they may think proper to make.
All questions, arising in the course of the trial, shall be decided
with closed doors. The decisions shall be by ayes and noes, which shall
be entered upon the Journal. When the question is decided, the doors
shall be opened, the parties called in, and the result made known to
them by the President.
Witnesses shall be sworn by the Secretary, and shall take the
following oath:
``I, A, B, do swear (or affirm, as the case may be) that the evidence
I will give to this court, touching the impeachment of William Blount,
now here depending, shall be the truth, the whole truth, and nothing
but the truth. So help me God.''
Witnesses shall be examined by the party producing them, and then
cross-examined in the usual form. If a Senator wishes any question to
be asked, it shall be put by the President.
If Senators are called as witnesses, they shall be sworn, and give
their testimony standing in their places.
It was also--
Ordered, That the Secretary inform the House of Representatives that
the Senate, taking into their care the ordering of the trial of William
Blount, late a Senator of United States from the State of Tennessee, on
Monday, the 24th of December instant, have prepared some rules to be
observed at said trial, which they have thought fit to communicate to
the House of Representatives.
The message was accordingly delivered in the House, and the rules
appear in full in the House Journal of December 21.\1\
On December 24 \2\ the Senate resolved themselves into a court of
impeachment whereupon the proceedings were as follows:
The managers and counsel attended as on the 18th instant.
On the motion of Mr. Harper, in behalf of the managers, that the
counsel exhibit and file the power, or powers, by which they are
authorized to appear in behalf of William Blount, and that the managers
be furnished with a copy thereof.
Mr. Dallas, one of the counsel, exhibited sundry letters to the
President, which, he alleged, contains the powers and also the
confidential instructions of Mr. Blount to his counsel.
The court was cleared in order to take into consideration the motion
made by the managers of the impeachment; and, on the motion that it be
ruled,
``That the court having, on the 18th day of the present month,
admitted Jared Ingersoll and A. J. Dallas, esqs., to appear and plead
for William Blount, to the impeachment now pending against him, and the
court having then been satisfied that the said counsel were duly
authorized to appear for the said William Blount, are of opinion that
it is not necessary that any warrant of attorney, or other written
authority, be now filed in this court.''
It was determined in the affirmative, 20 to 2.
The managers and counsel being again admitted, the President \3\
stated to them the opinion of the court on the motion of the managers,
and returned to Mr. Dallas the letters by him exhibited, unopened.
The President then asked the managers if they had further motion to
make prior to permission to the counsel for the defendant to file a
plea on his behalf.
To which the managers replied in the negative.
-----------------------------------------------------------------------
\1\ House Journal, p. 416.
\2\ Annals, p. 2246.
\3\ It is evident that in the absence of the Vice-President the
President pro tempore presided. The Vice-President had not attended
this session at this time. Senate Journal, p. 567.
Sec. 2310
2310. Blount's impeachment, continued.
The plea filed by counsel of William Blount in answer to the articles
of impeachment.
William Blount, in his plea, demurred to the jurisdiction of the
Senate to try him on impeachment charges.
William Blount pleaded that he was not, at the time of pleading, a
Senator; and that a Senator was not impeachable as a civil officer.
The plea of William Blount being received by the House of
Representatives, was referred to the managers.
Whereupon the President notified to the counsel that they were
permitted to file their plea, which was done by Mr. Ingersoll and read
by the Secretary as follows:
United States v. William Blount.
Upon impeachment of the House of Representatives of the United States,
of high crimes and misdemeanors.
In the Senate of the United States, December 24, 1798.
The aforesaid William Blount, saving and reserving to himself all
exceptions to the imperfections and uncertainty of the articles of
impeachment, by Jared Ingersoll and A. J. Dallas, his attorneys, comes
and defends the force and injury, and says, that he, to the said
articles of impeachment preferred against him by the House of
Representatives of the United States, ought not to be compelled to
answer, because he says that the eighth article of certain amendments
of the Constitution of the United States, having been ratified by nine
States, after the same was, in a constitutional manner, proposed to the
consideration of the several States of the Union, is of equal
obligation with the original Constitution, and now forms a part
thereof, and that by the same article it is declared and provided, that
``In all criminal prosecutions the accused shall enjoy the right to a
speedy and public trial, by an impartial jury of the State and district
wherein the crime shall have been committed, which district shall have
been previously ascertained by law, and to be informed of the nature
and cause of the accusation, to be confronted with the witnesses
against him, to have compulsory process for obtaining witnesses in his
favor, and to have the assistance of counsel for his defense.''
That proceedings by impeachment are provided and permitted by the
Constitution of the United States, only on charges of bribery, treason,
and other high crimes and misdemeanors, alleged to have been committed
by the President, Vice-President, and other civil officers of the
United States, in the execution of their offices held under the United
States, as appears by the fourth section of the second article, and by
the seventh clause of the third section of the first article, and other
articles, and clauses contained in the Constitution of the United
States.
That although true it is, that he, the said William Blount, was a
Senator of the United States, from the State of Tennessee, at the
several periods in the said articles-of impeachment referred to; yet,
that he, the said William, is not now a Senator, and is not, nor was at
the several periods, so as aforesaid referred to, an officer of the
United States; nor is he, the said William, in and by the said
articles, charged with having committed any crime or misdemeanor, in
the execution of any civil office held under the United States, or with
any malconduct in civil office, or abuse of any public trust, in the
execution thereof.
That the courts of common law, of a criminal jurisdiction, of the
States, wherein the offenses in the said articles recited are said to
have been committed, as well as those of the United States, are
competent to the cognizance, prosecution, and punishment, of the said
crimes and misdemeanors, if the same have been perpetrated, as is
suggested and charged by the said articles, which, however, he utterly
denies. All which the said William is ready to verify, and prays
judgment whether this high court will have further cognizance of this
suit, and of the said impeachment, and whether he, the said William, to
the said articles of impeachment, so as aforesaid preferred by the
House of Representatives of the United States, ought to be compelled to
answer.
Jared Ingersoll.
A. J. Dallas.
Sec. 2311
On request of Mr. Harper, in behalf of the managers, that they be
allowed a further delay, to wit, until Thursday sennight, to file their
replication, it was allowed and the court adjourned to that time.
On December 26 \1\ a message from the Senate, by their Secretary,
announced:
Mr. Speaker, the counsel in behalf of William Blount, by permission
of the Senate, having filed their plea, I am directed to communicate a
copy thereof to the House of Representatives.
This plea, as above given, appears in full in the Journal of the
House. It does not appear from the Senate Journal that the Senate
itself ordered this message sent. If the court of impeachment ordered
it sent, the fact is not noted in the proceedings. But under the rule
the Secretary would send it without further order of the Senate or
court.
The House:
Ordered, That the said message be referred to the managers appointed
on the part of this House to conduct the impeachment against William
Blount, with instructions to proceed thereon as they shall deem
advisable.
2311. Blount's impeachment, continued.
The House sent to the Senate a replication to respondent's plea; and
his counsel presented a rejoinder.
The replication of the House was signed by the Speaker and attested
by the Clerk.
In the Blount impeachment the rejoinder on behalf of respondent was
signed by his attorneys.
In the Blount impeachment the replication was presented by the House
managers, but was read by the Secretary of the Senate.
In the Blount impeachment the Senate dispensed with the requirement
for yeas and nays on questions of adjournment and on allowing further
time for the parties.
On December 31,\2\ in the House, Mr. Bayard, from the managers
appointed on the part of this House to conduct the impeachment against
William Blount, to whom was referred, on the 26th instant, a message
from the Senate communicating a copy of the plea filed by the counsel
in behalf of the said William Blount, with instructions to proceed
thereon, as they shall deem advisable, made a report, which he
delivered in at the Clerk's table, where the same was twice read and
agreed to by the House, as follows:
That the replication annexed be put into the said plea on behalf of
this House, and that the managers be instructed to proceed to maintain
the said replication at the bar of the Senate, as such time as shall be
appointed by the Senate:
``The replication of the House of Representatives of the United
States, in their own behalf, and also in the name of the people of the
United States, to the plea of William Blount, to the jurisdiction of
the Senate of the United States, to try the articles of impeachment
exhibited by them to the Senate against the said William Blount:
``The House of Representatives of the United States, prosecuting, on
behalf of themselves and the people of the United States, the articles
of impeachment exhibited by them to the Senate of the United States
against the said William Blount, reply to the plea of the said William
Blount, and say, that the matters alleged in the said plea are not
sufficient to exempt the said William Blount from answering the said
articles of impeachment, because they say that, by the Constitution of
the United States, the House
-----------------------------------------------------------------------
\1\ House Journal, p. 419; Annals, p. 2491.
\2\ House Journal, p. 423; Annals, p. 2551.
Sec. 2312
of Representatives had power to prefer the said articles of
impeachment, and that the Senate have full and the sole power to try
the same: Wherefore, they demand that the plea aforesaid of the said
William Blount be not allowed, but that the said William Blount be
compelled to answer the said articles of impeachment.''
It does not appear from the Journals of either the Senate or House
that this replication was transmitted to the Senate by message before
it was presented in the court of impeachment by the managers.
In the Senate, on January 3, 1799,\1\ it was
Resolved, That in all questions of adjournment of the court of
impeachment, as also in all questions on a motion that further time be
allowed to the parties, the taking the question by yeas and nays be
dispensed with.
Also on January 3 the Senate resolved itself into a court of
impeachment, the proceedings of which are recorded: \2\
The court being opened, and the managers and counsel being present,
Mr. Bayard, chairman of the managers, in behalf of the House of
Representatives, offered a replication, which was read by the Secretary
as follows:
``The replication of the House of Representatives of the United
States, in their own behalf. [Here follows the text of the replication
as given above.]
``Signed by order, and in behalf of the House.
``Jonathan Dayton, Speaker.
``Attest:
``Jon. W. Condy, Clerk.''
Mr. Ingersoll, counsel for the defendant, thereupon presented a
rejoiner, which was read by the Secretary, as follows:
``United States v. William Blount.
``In the Senate of the United States.
``And the aforesaid William Blount, by Jared Ingersoll and Alexander
J. Dallas, his attorneys, Says that the matter by him before alleged,
which he is ready to verify, is sufficient reason in law to show that
this court ought not to hold jurisdiction of the said impeachment, and
the articles therein set forth; which said matter so as aforesaid by
him alleged, the said House of Representatives not having denied or
made answer thereto, he prays the judgment of this honorable court,
whether they will hold further jurisdiction of the said impeachment or
take cognizance thereof, and whether the said William Blount shall make
further answer thereto.
``Jared Ingersoll.
``A. J. Dallas.
``January 3, 1799.''
It does not appear that this rejoinder was transmitted by message to
the House.
2312. Blount's impeachment, continued.
In the Blount impeachment it was arranged that the managers should
open and close in arguing respondent's plea in demurrer.
Mr. Bayard, the chairman, having communicated with Mr. Ingersoll, the
leading counsel for the defendant, it was agreed between them that the
managers should proceed in the argument first on the part of the
prosecution, and that the right to reply should belong to the managers,
whereupon,
Mr. Bayard rose and proceeded.
-----------------------------------------------------------------------
\1\ Senate Journal, p. 568; Annals, p. 2199.
\2\ Annals, p. 2248.
Sec. 2313
At the conclusion of his address Mr. Ingersoll, on behalf of the
defendant, moved \1\ for further time to reply, and it was allowed
until 11 o'clock the next day to which time the court adjourned.
On January 4,\1\ the court having convened, Mr. Dallas, in behalf of
the defendant, spoke during that day's sitting.
On January 5 \2\ the court convened again, Mr. Ingersoll speaking
further in defense. Mr. Ingersoll having concluded, Mr. Harper,\3\ of
the managers, closed.
After Mr. Harper had closed his observations, the Vice-President
inquired of the managers if they had any further observations to offer,
on which Mr. Bayard, in their behalf, requested permission to withdraw
for a few moments; and, returning into the court, he replied in the
negative.
The argument touched upon five points, although on two of these
little stress was laid.
2313. Blount's impeachment continued.
Discussion as to the right to demand a trial by jury in a case of
impeachment.
(1) The plea of the respondent had set forth that the power of
impeachment as established in the original Constitution had been
limited by the eighth amendment. Mr. Bayard, of the managers, answering
this, contended that it had no bearing on the question of jurisdiction
in this case, whatever it might have should there be a trial. But he
further urged that if the contention of the plea were well founded
there would be an end of the judicial character of the Senate and it
must part with the power expressly given it by the Constitution to try
all impeachments. The same rule of construction would require jury
trials in courts-martial.\4\
In reply on this point Mr. Dallas, speaking for the respondent, said:
The honorable manager had misunderstood the object of the plea when
he supposed it asserted a right to a trial by jury in cases properly
impeachable, since the clause to which he referred was merely inserted
to show that, unless this was a case in which an impeachment would lie,
the party was entitled to a trial by jury in the ordinary courts having
cognizance of the matters charged.
2314. Blount's impeachment continued.
Argument that impeachment should not fail simply because the offense
may be within jurisdiction of the courts.
(2) The plea that the courts of law were competent to try the cause
was answered by Mr. Bayard \1\ by calling attention to the fact that no
court at common law could give judgment of disqualification; and that
was the just punishment for the offenses alleged.
He also said:
In the second place, if the suggestion were true it would not be
effectual, because by the seventh clause of the seventh section of the
first article of the Constitution delinquents shall be liable both to
the punishment upon impeachment and that inflicted in the courts of
common law. It is no objection to say that the courts have cognizance
of the offense, because it is expressly provided that the one
punishment shall not be an exemption from the other.
-----------------------------------------------------------------------
\1\ Annals, p. 2262.
\2\ Annals, p. 2278.
\3\ Annals, p. 2318.
\4\ Annals, p. 2250.
Sec. 2315
2315.--Blount's impeachment continued.
In the Blount impeachment the managers contended, although in vain,
that all citizens of the United States were liable to impeachment.
The law of Parliament was referred to in 1797 in discussing the power
of impeachment.
(3) The first point of essential importance in the contending
arguments of managers and counsel related to the nature of the power of
impeachment. Mr. Bayard showed that in no places had the Constitution
defined the cases or described the persons who should be objects of
impeachment.\1\ This, like other portions of the Constitution, left one
to seek in the common law the answer to the questions.
The question,\2\ therefore, is, what persons, for what offenses, are
liable to be impeached at common law? And I am confident, as to this
point, the learning and liberality of the counsel will save me the
trouble of argument, or the citation of authorities, to establish the
position that the question of impeachability is a question of
discretion only, with the Commons and Lords. Not that I mean to insist
that the Lords have legal cognizance of a charge of a capital crime
against a commoner, but simply that all the King's subjects are liable
to be impeached by the Commons, and tried by the Lords, upon charges of
high crimes and misdemeanors. And this, sir, goes to the extent of the
articles exhibited against William Blount. And for my part I do not
conceive it would have been sound policy to have laid any restriction
as to person upon the power of impeaching.
It is not difficult to imagine a case in which the punishment it
imposes would be the most suitable which could be inflicted. Let us
suppose that a citizen not in office, but possessed of extensive
influence, arising from popular arts, from wealth or connections,
actuated by strong ambition, and aspiring to the first place in the
Government, should conspire with the disaffected of our own country, or
with foreign intriguers, by illegal artifice, corruption, or force, to
place him in the Presidential chair. I would ask, in such a case, what
punishment would be more likely to quell a spirit of that description
than absolute and perpetual disqualification for any office of trust,
honor, or profit under the Government; and what punishment could be
better calculated to secure the peace and safety of the State from the
repetition of the same offense?
Mr. Dallas, counsel for the respondent, combated this proposition at
length. It was contrary to the ``principles of the Federal Compact:''
\3\
For although it is in some of its features Federal, in others it is
consolidated; in some of its operations it affects the people as
individuals; in others it applies to them in the aggregate as States;
yet, in every view, all the powers and attributes of the National
Government are matters of express and positive grant and transfer;
whatever is not expressly granted and transferred must be deemed to
remain with the people, or with the respective States; and as the
motive for establishing the Federal Constitution arose from the want of
a competent national authority in cases in which it was essential for
the people inhabiting the different States to act as a nation, so far
the people gave power to the Federal Government; but the delegation of
that power is evidently limited by the reason which produced it.
Mr. Dallas asserted that the United States, as a nation distinguished
from the States, had no common law, and that it would be unwise to
apply the theory of impeachments taken ``from the dark and barbarous
pages of the common law'' to the existing situation, since it would
render the Government dependent upon the laws and usages of a foreign
country. The same doctrine would also give the Federal courts
jurisdiction beyond the enumerated cases. The doctrine was also
inconsistent with the general policy of the law of impeachments, which
was to afford a means of reaching offenders who could not be reached by
the ordinary
-----------------------------------------------------------------------
\1\ Annals, p. 2251.
\2\ Annals, p. 2254.
\3\ Annals, p. 2263.
Sec. 2315
tribunals. The doctrine was also inconsistent with a fair construction
of the terms of the Constitution itself:
The operative words \1\ are express: ``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
other high crimes and misdemeanors.''--Art. 2, sec. 4. The previous
clauses are only descriptive of the power and distributive of its
exercise; declaring that the sole power to institute and the sole power
to try impeachments shall belong to the branches of the Legislature
respectively. They contain no description of the persons liable to
impeachment, nor of the offenses for which the impeachment may be
brought. To suppose that they include a jurisdiction over all persons,
for all offenses, is to annihilate the trial by jury where a punishment
more severe than death to an honorable mind may be inflicted; it is to
overthrow all the barriers of criminal jurisprudence; for every petty
rogue may be tried by impeachment before this high court for every
offense within the indefinite classification of a misdemeanor.
The reason of the thing, as well as the expression, shows, however,
that the offender must be a civil officer to vest the jurisdiction of
impeachment. For every other offender a competent punishment is
provided in the ordinary tribunals; but, in the case of a public
officer, no sentence strictly judicial, in any common law court, can
affect the tenure of his office. In the business of offices, to
appoint, to reappoint, or to abstain from reappointing are attributes
and exercises of Executive authority; the ordinary judicial authority
can not exercise them, nor restrain or regulate their exercise by the
proper magistrate. Hence arose the necessity of the judgment in case of
a conviction on impeachment, which, by declaring that the delinquent
officer shall be removed, and that he shall never be reappointed,
affixes, in effect, a check or limitation to the general power of the
Executive.
But, if civil officers are not exclusively contemplated, why limit
the judgment on impeachment simply to a removal and disqualification?
The common law maxim says that no man shall be twice tried for the same
offense; and if the Senate may, on any charge against any offender, try
the whole merits of the accusation and defense, why restrain them from
pronouncing the whole judgment? Why multiply trials, and parcel out
jurisdictions, when one trial, one jurisdiction, would accomplish every
purpose of justice? There is an appearance of absurdity in the doctrine
that can not be overlooked. A private citizen who holds an office may
be impeached on the speculation that, at some period of his life, it is
possible he should be appointed a public officer. And if any sentence
is pronounced it must, in his case, be a perpetual disqualification;
whereas, in the case of a man actually in office, the sentence may only
extend to a present removal.
Again, if the bare designation of the party who should impeach, and
of the party who should try impeachments, creates a jurisdiction over
all persons for all offenses, why should the subsequent clause
specially name the President, Vice-President, and all civil officers of
the United States? They would certainly be included in the general
authority; and it can be no answer to say that it was with a view,
imperatively, to command their removal on conviction, because the
restricted judgment of the Senate points emphatically at their case--a
removal from office and a perpetual disqualification. Would not those
officers be removed or disqualified for any offense for which a private
citizen might be disqualified on impeachment, though it is not one of
the enumerated offenses? It is here, likewise, to be remarked that the
persons subject to removal are to be ``civil officers of the United
States,'' excluding all idea of affecting the station of State
officers; and yet State officers as well as private citizens are liable
to impeachment before this Senate, according to the present claim of
jurisdiction.
Mr. Ingersoll also argued on this point in support of the contention
of his colleague.
In concluding for the managers, Mr. Harper replied: \2\
The learned counsel who first replied to my colleague took great
pains and displayed much ability to show the pernicious and absurd
consequences which would result from adopting the penal common law of
England, or the penal code of any State, as a rule of conduct for the
Federal Government. But this was merely fighting a phantom; for my
colleague contended for no such thing, nor is it in the least necessary
for our purpose. We do not wish the Federal Government to adopt the
penal laws of England
-----------------------------------------------------------------------
\1\ Annals, p. 2267.
\2\ Annals, p. 2298.
Sec. 2316
or of any particular State in the Union, but we contend that when a
term, borrowed from the law of England, is introduced without comment
or explanation into our Constitution or our statutes, every question
respecting the meaning of that term must be decided by a reference to
the code from whence it was drawn in the same manner as a term in
chemistry, or any other science, being introduced into one of our
statutes or constitutions, must be explained by a reference to the
writers on that science. Surely this is a different thing from adopting
the penal code of England or of any particular State as a rule of
conduct for the Federal Government.
Mr. Harper further said: \1\
Nor can I conceive how the universal extent of the power of
impeachment, contended for by my honorable colleague, is contrary to
the spirit, the objects, or the policy either of the law of impeachment
or of the Federal Constitution. The use of the law of impeachment is to
punish, and thereby prevent, offenses which are of such a nature as to
endanger the safety or injure the interests of the United States; and
the object of the Federal Constitution was to provide for that safety
and to protect those interests. Such offenses may be committed as well
by persons out of office as by persons in office; and although the
punishment can go no further than removal and disqualification, which
restriction was, perhaps, wisely introduced in order to prevent those
abuses of the power of impeachment which had taken place in another
country, yet it may often be extremely important to prevent such
offenders from getting into office, as well as to remove them when they
are in; and it is, therefore, as consistent with the policy of
impeachments and the principles of the Federal compact to punish them
in the one case as in the other. This doctrine, it is further said,
would enable Congress to interfere with the State governments by
impeaching their officers. But those impeachments must be founded on
offenses against the United States; and if such offenses were committed
by State officers, I can not see why they ought not to be punished as
well as in any other case. Surely they would not be less dangerous. If
the convictions in such impeachments could remove men from State
offices, or disqualify them for holding such offices, there might be
something in the objection; but that could not be the case, since the
removal and disqualification apply to offices under the General
Government alone. * * * But the learned counsel for the defendant have
told us that the power of impeachment is limited in the Constitution
itself by the restriction which it imposes on the power of punishment.
The power of punishment on conviction by impeachment is restricted, say
they, to ``removal from office and disqualification to hold or enjoy
any office of honor, trust, or profit under the United States;'' and it
would be absurd to impeach, try, and convict a man who held no office
from which he could be removed, and could, of consequence, be not
otherwise affected than by a disqualification to hold in future offices
which he, perhaps, never had a prospect of obtaining. Of this absurdity
the Constitution can not be supposed to be guilty; and therefore it
could not have intended to subject to the power of impeachment any
persons except those who actually hold offices and may be punished by
removal.
But where, Mr. President, did the honorable counsel for the defendant
learn that disqualification to hold any office of trust, honor, or
profit under the Government of our country is no punishment? Would
either of those honorable gentlemen think it no punishment in his own
case?
2316. Blount's impeachment, continued.
Elaborate argument of the question whether or not a Senator is a
civil officer within the meaning of the impeachment clause of the
Constitution.
(4) The fourth branch of the discussion involved an inquiry as to
whether or not--it being assumed that only officers of the United
States might be impeached--a Senator was an officer within the meaning
of the Constitution.
Mr. Bayard, for the managers, contended that he acted as a
legislator, an executive magistrate, and a judge. The ordinance of
Congress for establishing a government for the Northwest Territory,
passed in 1787, had contemplated members of the legislature as
officers. This use of the word ``office'' was contemporaneous with the
formation of the Constitution.
-----------------------------------------------------------------------
\1\ Annals, p. 2299.
Sec. 2316
Furthermore, he contended that a Senator was not only an officer, but
was an officer within the meaning of the Constitution itself. He then
discussed the following portions as confirmatory of this view:
Article I, section 3, clause 7; Article I, section 6; Article I,
section 9, clause 7; Article II, sections 3 and 4.
As to two of these provisions he said: \1\
The first of these is the third section of the second article, which
declares that the President shall commission all officers of the United
States; and as it is clearly not designed that he should commission a
Senator, it will be inferred that a Senator is not to be considered as
an officer.
I humbly trust I can show, that it was not the intention of the
Constitution that these words should take effect in their full extent;
and I shall submit that they ought to be understood according to the
subject to which they apply.
A commission is simply an evidence of authority delegated to a
particular person. And surely it is proper that that evidence should
show from the same source from which the appointment is derived. By the
Constitution the President is made the fountain of office. The
officers, properly speaking, under the United States are all appointed
by him; and it was right, therefore, as the general power of appointing
was given to him, that he should also have the general power of
commissioning.
It is certain that it was intended that the power of commissioning
should not exceed that of appointing, because the President does not
commission anyone whom he does not appoint. The provision in question
was not intended to define who should be considered as officers, but to
introduce a plain and just rule of policy that the power of appointing
and commissioning should reside in the same person. The practice under
this constitutional regulation, explains its meaning and extent. It is
clearly not true that he commissions all officers of the United States.
He is an officer himself, and so expressly denominated throughout the
second article, and yet he has no commission. It is equally clear that
the Vice-President is an officer, and yet not commissioned. Again, the
Speaker of the House of Representatives is an officer, as I shall have
occasion to show hereafter, but has no commission. And there are also a
variety of subordinate officers, appointed by heads of Departments and
courts of justice, whom the President does not commission. I am
therefore justified in concluding that it does not follow, because a
person has no commission from the President, that therefore he is not
to be considered as an officer.
There is another objection of a similar nature, arising from the
provision in the sixth section of the first article, of which it is
probable much use will be made. That section declares that no person
holding an office under the United States shall be a Member of either
House during his continuance in office. It will therefore be said, if
the place of a Senator is an office, this clause is repugnant and
absurd.
This provision, I humbly apprehend, has the same limits with the one
which I have just adverted to. The intention of it was to erect a
barrier between the Executive and legislative departments; to prevent
Executive patronage from influencing legislative councils. It was
designed therefore to apply solely to the officers of Executive
appointment. I am not much disposed, sir, to place reliance in an
argument upon so great a subject, upon nice distinctions or verbal
criticism; but I think I shall be excused for paying some attention to
the peculiar language of the clause in question. The regulation is that
no person holding an office under the United States shall be a Member
of either House during his continuance in office. The United States
here means the Government of the United States, for the United States
grants no office but through the Government. Now, it is clear that a
Senator is not an officer under the Government. The Government consists
of the President, the Senate, and House of Representatives, and they
who constitute the Government can not be said to be under it. Besides,
a Senator does not derive his authority from the Government. The
Senatorial power is an emanation of the State sovereignties; it is
coordinate with the supreme power of the United States; in its
aggregate, it forms one of the highest branches of the Government.
Giving every effect to this section, it would only prove that a Senator
is not an officer under the Government of the United States, but still
he may be an officer of the United States; and give me leave to say
that the distinction which I have here taken is supported by the
variance of language to be found in another part of the Constitution.
-----------------------------------------------------------------------
\1\ Annals, p. 2258.
Sec. 2316
Mr. Bayard also cited the law of March 1, 1792, enacting that in case
of vacancy in the office of President the Speaker of the House of
Representatives should exercise the office, as showing that in
legislative interpretation the Speaker is an officer.
Mr. Dallas, in replying, discussed the articles of the Constitution
referred to by Mr. Bayard, especially to show that a distinction could
not be drawn between ``officers of'' and ``officers under'' the United
States. The two terms, in his view, were used indiscriminately.
There were no words in the Constitution extending the impeaching
power to a Senator: \1\
The second section of the second article provides, that ``the
President shall nominate, and, by and with the advice and consent of
the Senate, shall appoint ambassadors, other public ministers and
consuls, judges of the Supreme Court, and all other officers of the
United States, whose appointments are not herein otherwise provided
for, and which shall be established by law.'' The President having then
power to appoint all the officers of the United States, including
military as well as civil officers; the third section of the same
article, declaring that ``he shall commission all the officers of the
United States;'' and the fourth section, providing for the removal of
all civil officers excluding military officers, on impeachment and
conviction; it would seem inevitably to result that no man is an
officer of the United States unless he has been appointed and
commissioned by the President; and that, therefore, unless he is so
appointed and commissioned, he can not be an object of impeachment.
Here Mr. Dallas requested that it might be remembered that the
provision respecting impeachments was a part of the Executive article
of the Constitution; and was immediately connected with the
arrangements for making appointments, and issuing commissions, under
the authority of the President.
Then Mr. Dallas proceeded to inquire, Does the President nominate or
commission Senators or Representatives? No; nor does the Constitution,
in any part of it, term them officers, or call their representative
station an office. But the honorable manager has said that the latitude
to which this position extends would render it necessary that the
President should issue a commission to himself, to the Vice-President,
and to the Speaker of the House of Representatives, since they are all
expressly denominated officers. The Constitution, however, is not
chargeable with this absurdity. The President and Vice-President have
their commissions from the Constitution itself, and the speaker of the
House of Representatives is emphatically an officer of the House, not
of the United States. But the objection affords an opportunity to
illustrate the meaning of the Constitution. It is provided that the
President shall commission all officers, and that all civil officers
shall be removed on impeachment and conviction; but the President does
not commission himself and the Vice-President, and therefore as it was
intended to affect them by the impeachment power, it became necessary
expressly to name them. The President does not commission Senators and
Representatives; but it was not intended to affect them by the
impeachment, and therefore they are not named.
Mr. Dallas continued to analyze various parts of the Constitution,
and argued from the operation of them that a legislator never was
considered as an officer of the United States, in the ordinary or
constitutional acceptation of the term. The sixth section of the first
article contains the following passage: ``No Senator or Representative
shall, during the time for which he was elected, be appointed to any
civil office under the authority of the United States, which shall have
been created, or the emoluments whereof shall have been increased
during such time; and no person holding any office under the United
States shall be a member of either House during his continuance in
office.'' Nothing could more strongly mark the discrimination between a
legislator and an officer than the language which is here used. It is
declared that no member holding any office shall be a member of either
House while he continues in office. If a member was deemed an officer,
the phraseology would doubtless have been, ``no member holding any
other office.'' Again let it be supposed that previously to the
amendment of the Constitution (which merely provides that no law
varying the compensation for the services of Senators and
Representatives shall take effect until an election of Representatives
has intervened) the pay of Senator had been increased by an act of
Congress, could not a Representative, who had assisted in passing the
act, be chosen a Senator before the expiration of the two years for
which he was originally elected?
-----------------------------------------------------------------------
\1\ Annals, pp. 2271-2274.
Sec. 2316
Again let it be supposed that a new State was erected and admitted into
the Union; if a Senator is an officer, the office of Senator for the
new State would be created during the time for which Congress, who
created it, was elected; and yet might not a member of that Congress be
chosen a Senator for the new State, before the expiration of the time
for which he was elected a Representative? When, for instance, Kentucky
was separated from Virginia, and erected into a State, was not a
Representative elected for Virginia, residing within the boundaries of
Kentucky, eligible immediately as a Senator of Kentucky, though he
resigned his Representative seat before the term of his election had
elapsed?
The first section of the second article likewise pointedly
distinguishes between a legislator and a public officer, declaring
``that no Senator or Representative, or person holding an office of
trust or profit under the United States, shall be appointed an
elector.'' If Senators or Representatives were considered as persons
holding offices of profit or trust under the United States, it was
superfluous to specify them at all; or, if named, it would have been
correct to say, ``no Senator or Representative, or person holding any
other office of trust or profit,'' etc. But it is important also to
remark that here, where the Constitution intends to work a
disqualification, as to Senators and Representatives, they are
expressly named; and no sound reason can be offered why they should not
have been equally named, if the Constitution had intended to subject
them to impeachment. * * * But, Mr. D. contended, that, independent of
all precedent and authority, the distinction was founded upon the very
nature of a free Government. The legislature is, in theory, the people;
they do not themselves assemble, but they depute a few to act for them;
and the laws which are thus made are the expressions of the will of the
people. Over their Representatives the people have a complete control,
and if one set transgress they can appoint another set, who can rescind
and annul all previous bad laws. But the power of the people is only to
make the laws; they have nothing to do with executing them; they have
nothing to do with expounding them; and hence arises the diversity in
the modes of remedying any grievance which they may suffer from the
conduct of their Representatives or agents. If a legislator acts wrong,
he may be expelled before the term for which he was chosen has expired;
he may be rejected at the next periodical election; and the laws which
he has sanctioned may be repealed by a new representation. But if an
executive, or a judicial magistrate, acts wrong, the people have no
immediate power to correct; prosecution and impeachment are the only
remedies for the evil. Then, it is manifest, that, by the power of
impeachment, the people did not mean to guard against themselves, but
against their agents; they did not mean to exclude themselves from the
right of reappointing, or pardoning; but to restrain the Executive
magistrate from doing either with respect to officers whose offices
were held independent of popular choice.
The argument that every person who executes an authority is in fact
an officer was, in Mr. Dallas's opinion, too broad. The Speaker of the
House of Representatives was an officer of the House, but not of the
United States. And it was only on being chosen to the chair that he
acquired the denomination of officer, contradistinguished from the
character of Member.
Mr. Dallas continued further:\1\
From a just consideration of the principles of our Government, it was
thus manifest that the moment there was a departure from the immediate
choice of the people, the law of impeachment became necessary to secure
them from the favoritism, or perverseness of the Executive Magistrate.
Impeachment, he observed, is, with respect to executive and judicial
officers, what expulsion is with respect to the members of the
legislature. As expulsion enables the people to decide whether they
will restore the evicted Member to their service, a conviction on
impeachment enables the Representatives of the people to decide whether
the delinquent shall be partially or totally excluded from the honors
and emoluments of public office. But the very circumstance of declaring
that a pardon shall not avail in cases of impeachment, though a
reelection shall avail in cases of expulsion, demonstrates (as was
before intimated) that the people did not mean to guard against the
exercise of their own sovereignty, but against an abuse of the power
delegated to their agents.
Mr. Ingersoll, speaking also in behalf of the respondent, discussed
the extent of the power of impeachment under the Constitution, which,
as he claimed,\2\ was restricted to the President, Vice-President, and
civil officers of the United States, for
-----------------------------------------------------------------------
\1\ Annals, p. 2275.
\2\ Annals, p. 2282.
Sec. 2316
malconduct in office. He stated that he should afterwards endeavor to
make it appear that Senators were not the objects of this power, not
being comprehended under the designation of civil officers of the
United States.
After discussing the limited powers granted by the Constitution, he
said: \1\
My position is that the clause in question was intended and operates
for the purpose of designating the extent of the power of impeachment,
both as to the offenses and the persons liable to be thus proceeded
against. It will be of use here to recollect that the Constitution had
previously provided for the purity of the legislature in the second
clause of the fifth section of the first article by empowering each
House to punish its Members for disorderly behavior, and, with the
concurrence of two-thirds, to expel a Member. No clause similar to that
which is introduced into some of the State constitutions (that a member
expelled and then returned is not liable to be expelled again for the
same offense) is to be met with in the Constitution of the United
States; and therefore the Senate has an unlimited power to expel any
Member they shall deem unworthy their society.
Here, then, I flatter myself, the dispute admits of a clear
solution--is reduced within a narrow compass, and brought to a point.
It is a rule of construction that every part of an instrument be, if
possible, made to take effect and every word operate in some shape or
other.
There are but two constructions suggested as possible--the one for
which the honorable managers contend, to wit: That the fourth section
of the second article was intended as an imperative injunction upon the
Senate that when judgment was rendered against a civil officer of the
United States it should be for removal from office; the other, that for
which we, as counsel for the defendant, insist--that is, that it was
intended to designate the extent of the practice of proceeding by
impeachment, specifying who are the persons to be proceeded against,
and for what offenses. If, then, I am able to show that the words of
the fourth section of the second article will not have any effect or
operation at all, unless they receive the construction for which I
contend; if I establish these premises, the inference will necessarily
follow that the construction for which the honorable managers contend
is not well founded, and that the construction for which we contend is
the true meaning of the Constitution in this particular. To this fair,
short, and decisive test be the appeal.
He then proceeded to give emphasis to the word ``further'' in the
Constitution, and to show that disqualification for office necessarily
implied removal: \2\
It is impossible to pronounce a judgment that a man shall be
incapable of holding an office and not remove him. The incapacity takes
effect immediately. It is coeval with the judgment. There is not any
interval between the judgment pronounced and the disqualification and
incapacity. It is of course ridiculous to say that the fourth section
of the second article was introduced to make it imperative upon the
Senate to remove from office on conviction, when it was previously made
so imperative that it was impossible to avoid pronouncing a judgment
that would operate a removal from office. As it is thus clear beyond
the possibility of doubt that the fourth section of the second article
was not introduced for the purpose suggested by the honorable managers,
which I have considered, and as no third construction has been
attempted on either side, I infer that the construction contended for
by the counsel for the defendant is well founded, to wit: That the
fourth section of the second article was intended for the purpose of
designating the extent of the power of proceeding by impeachment, at
least so far as respects the persons liable to be thus proceeded
against.
Further, if anything further be necessary upon a matter so very
plain, if, as the honorable managers insist, all persons are within the
extent of this mode of proceeding, why make it imperative on the Senate
to remove civil officers only? Why make it absolutely imperative to
remove the marshal of a district, whose sphere of influence is
comparatively inconsiderable, and leave a general at the head of an
army or an admiral in the command of a navy? Would not the public
security be much more endangered by leaving a man convicted of high
crimes and misdemeanors in these situations than those of many civil
offices? It may be said that these military characters are liable to be
proceeded against by courts-martial. Be it so; that consideration is a
good reason why they should not be considered as within the power of
impeachment, as we assert to be the case; but none at all for not
removing them on conviction,
-----------------------------------------------------------------------
\1\ Annals, p. 2283.
\2\ Annals, p. 2286.
Sec. 2316
if they are within the provision of the Constitution in this
particular. And if Senators were within the power of proceeding by
impeachment, would it not also have been made imperative upon the
Senate to remove them, who have a veto upon every bill proposed to be
passed into a law and every nomination for appointment to office?
I add, that I conceive the proceedings by impeachment are restricted
not only to civil officers, but that the only causes cognizable in this
mode of proceeding are malconduct in office.
Proceeding to consider whether or not Senators are ``civil officers
of the United States,'' after quoting Blackstone's definition, ``a
right to exercise a public or private employment, and to take the fees
and emoluments thereunto belonging,'' Mr. Ingersoll called attention to
the fact that an officer excluded from his office might obtain
admission by mandamus proceedings. Might a Senator avail himself of
these remedies? This question he answered in the negative.
To be an officer of the Government one must receive a commission from
the Executive. A Senator was not such an officer. Nor was there force
in the argument that a Senator had a judicial as well as an executive
character. All those qualities of his position emanated from the same
source as his legislative qualities.
He said on another point:
Senators and Members of the House of Representatives have one set of
words appropriated to them in the Constitution--civil officers, other
terms; as thus, ``office,'' ``appointment,'' ``commission,''
``removal;'' Senator, or one of the House of Representatives,
``Member,'' ``election,'' ``expulsion,'' ``seat vacated.''
What interpretation shall we give to the sixth section of the fourth
article? ``No person holding any office under the United States shall
be a Member of either House during his continuance in office;'' and yet
a Senator is, ipso facto, it is said, an officer of the United States.
Identity is incompatibility. The exception of a Senator is implied, say
the honorable managers; but how do they show it? Is not this section to
be understood as importing that the character of a Member of either
House and that of an officer of the United States are, by the
Constitution, distinct and incompatible? The distinction is observed
throughout. Can the Clerk of this House, or the Clerk of the other
House, be proceeded against by impeachment? I conceive not; because
they are not appointed nor commissioned by the United States
Government, or by the Executive thereof, but by the respective Houses.
I believe that not an instance can be found in the Constitution of the
United States in which a Senator is classed under the denomination of
an officer, or civil officer of the United States.
Some observation was made on the ninth section of the first article
of the Constitution of the United States, ``that no person holding any
office of profit or trust under the United States should, without the
consent of Congress, accept of any present from any king, prince, or
foreign state.'' Might a Senator, one in so important a public
situation, accept of a present from a foreign state? No, I answer. The
power of expulsion is a sufficient check. The impropriety of the
measure would be a sufficient guard. The laws, in consonance with the
Constitution of the United States, distinguish between the Members of
the legislature and the officers of the United States, and also of the
several States.
In the first volume of the laws of the United States, page 18,
section 3, it is provided ``that all members of the State legislatures,
and the executive and judicial officers of the several States, shall
take an oath to support the Constitution;'' and by section 2 it is
provided ``that the Members of the Senate and House of
Representatives,'' and by section 4, ``that all officers of the United
States'' shall take the same oath, distinguishing between the Members
of either House and the officers of the United States. In the
constitution of the State of Pennsylvania, of New York, of
Massachusetts, and of New Hampshire the same distinction of language is
observed. The distinction is equally familiar in the English law. In
the first volume of Blackstone's Commentaries, page 368, it is said
``that the oath of allegiance must be taken by all persons in any
office, trust, or employment;'' yet members of either House are not
considered as included. On page 374 of the same volume it is declared
``that no denizen can be of the Privy Council, or either House of
Parliament, or have any office of trust, civil or military.'' Such, I
believe, has been the universal understanding of the expressions until
the present prosecution.
-----------------------------------------------------------------------
\1\ Annals, p. 2291.
It is a rule of construction that when a law is only doubtful,
arguments ab inconvenienti are most powerful. The rule will apply, with
equal propriety, to the construction of a constitution. If the most
numerous branch, already, I repeat it, sufficiently formidable, may
proceed by impeachment against a Senator--at their will doom to
temporary disgrace any Member--this would form an engine of immense
additional weight in their hands. I know that it is not always an
objection against intrusting power that it may be abused; but when it
is unnecessary to make the trust, and the danger great, the risk ought
not to be incurred.
In concluding for the managers, Mr. Harper joined issue \1\ with Mr.
Ingersoll as to the intent of the clause relating to impeachments:
But admitting, Mr. President, that the power of impeachment is
restricted by the Constitution to officers of the Government of the
United States, still I contend that a Senator of the United States, a
Member of this honorable body, is an officer of the Government, in the
constitutional meaning of the word, and consequently liable to
impeachment on the doctrine of the learned counsel themselves.
The learned counsel have, indeed, contended by their plea and in
their arguments that none but civil officers are liable to impeachment
by the Constitution; but in this they are plainly contradicted by the
Constitution itself. They found their argument on that clause which
provides ``that 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 other high crimes and
misdemeanors.'' But this clause is, evidently, not restrictive, but
imperative. It does not point out what persons or what officers shall
be liable to impeachment, but expressly orders that such and such
officers, when convicted on impeachment, shall be punished to the
extent, at least, of removal from office. The former clause had
declared that ``judgment in cases of impeachment shall not extend
further than to removal from office, and disqualification to hold or
enjoy any office of honor, trust, or profit, under the United States,''
leaving the Senate to apportion the punishment, according to its
discretion, within those limits. They might censure the person
convicted, suspend him for a limited time, or disqualify him
perpetually for certain offices, or for all offices during a certain
period. But beyond absolute removal and perpetual disqualification for
all offices they could not go. This was fixed as the utmost limit of
their power and of their discretion.
It was judged, however, that in case of the President, Vice-
President, or any civil officer the punishment ought not to be less
than removal, though it might be more, according to circumstances. This
provision was, therefore, inserted. Its object, manifestly, is, not to
designate the persons who shall be liable to impeachment, but to
prevent the Senate, in the exercise of their discretion, from retaining
in a civil office a person convicted of ``treason, bribery, or other
high crimes and misdemeanors.'' As to the distinction here made between
civil officers and other officers, there is no need to examine or
defend it. It may, however, be supposed to have arisen from an opinion,
certainly well founded, that, under certain circumstances, there might
be danger or great inconvenience in removing from his command a
military officer, whom, nevertheless, it might be very proper to
censure or suspend, or even to disqualify for some particular offices.
As to military officers, therefore, a complete discretion was left to
the Senate; but not in the case of civil officers, to whom the same
reasons could not apply. They, on conviction, must be removed. Military
officers may be removed or not, according to circumstances.
He further contended that a Senator was an officer in the sense of
the Constitution, and after exhaustively considering the definitions of
the term ``office,'' he said: \1\
The manner in which the term ``office'' is used by legal writers, and
their formal definitions of it, support the interpretation which I have
drawn from its received and common acceptation. Without going into a
detail on this point, which might be tedious, let it suffice, Mr.
President, to refer to Blackstone, who has been justly relied on by the
learned counsel for the defendant, as a standard authority on subjects
of this kind. Speaking of ``offices,'' in the second volume of his
Commentaries, page 36,
-----------------------------------------------------------------------
\1\ Annals, p. 2302.
\2\ Annals, p. 2307.
Sec. 2316
as cited by the learned counsel who preceded me, that great writer lays
it down that ``offices are a right to exercise a public or private
employment, and to take the fees and emoluments thereunto belonging.''
Now, let me ask, is not a seat in this honorable body ``a public
employment?'' Has not the Member ``a right to exercise this employment,
and to receive the emoluments thereunto belonging?'' Surely to answer
in the negative would be a strange abuse of language.
The learned counsel who immediately preceded me has contended that a
Senator can not be considered as an ``officer,'' because there could be
no quo warranto to remove him from his place if he held it improperly,
nor mandamus to place him in it if unjustly kept out. But surely this
can not be a well-founded argument, for, if it be, it applies as well
to the President, the Judges, the Secretaries, and the Commander in
Chief of the Army as to a Senator. Not one of them could be removed by
quo warranto or replaced by mandamus. Did anyone ever hear of a quo
warranto to remove a colonel of a regiment? Was a quo warranto ever
brought in England against the Chancellor of the Exchequer or a
Secretary of State, or a Lord of the Admiralty? Certainly not, and yet
that these are officers will not be denied. The truth is, Mr.
President, that the doctrine of quo warranto and mandamus, as far as it
relates to officers, is confined exclusively to certain local municipal
officers of a subordinate nature, who are placed, by the common law of
England, under the superintendence of the supreme court of justice; to
which, from the nature of their offices, recourse could most
conveniently and effectually be had for their punishment, their
removal, or their reinstatement. But this reason did not extend to the
great officers of the State, of the Army, or the Navy, or to any of
their subordinates. They could best be punished, removed, and replaced
in a different manner and by a different authority. To them, therefore,
nobody ever dreamt of extending the power of the supreme courts by quo
warranto and mandamus, and yet nobody ever, on this account, thought of
denying that they were ``officers,'' which, however, would be just as
reasonable as to contend that a Senator of the United States is not an
``officer,'' because he can not be removed by a quo warranto or
admitted by mandamus. I admit that it would be absurd to talk of an
office from which a man could not be removed, however flagitious his
conduct; or into which, when entitled to it, and improperly kept out,
he had no means of obtaining admission. But a Senator may be removed by
a vote of expulsion, and if duly elected, but not returned, may obtain
his seat by a petition to the Senate.
I conceive, therefore, that no argument can be more destitute of
foundation than that which would divest a seat in this honorable body
of the quality of an ``office,'' because it is not within the scope of
writs of mandamus and quo warranto.
If from Blackstone, Mr. President, we turn to our own laws, our own
writers, and even our own constitutions, we shall equally find that a
seat in the legislature is considered as an ``office.''
After discussing the legislator as an officer, especially in the
light of the State and national constitutions and laws, especially
discussing one clause of the National Constitution--\1\
A clause from the sixth section of the first article, in the
following words, has also been relied on:
``No Senator or Representative shall, during the time for which he
was elected, be appointed to any civil office, which shall have been
created, or the emoluments whereof shall have been increased, during
such time; and no person holding any office under the United States
shall be a Member of either House during his continuance in office.''
I am ready to admit, Mr. President, with my honorable colleague, who
opened the case, that this clause wears an aspect more hostile to our
construction of the term ``office'' than any other part of the
Constitution, but I contend with him that the Constitution, like all
other instruments, must be construed in each separate part of it,
secundum subjectam materiem, according to the subject-matter of each
part, and in such a manner as to effectuate every part and render the
whole consistent. These rules of construction will not be denied. When
this clause comes to be analyzed and tried by these rules, it will, I
think, appear satisfactorily that our construction is not infringed by
it.
What is the object of this clause? It is threefold: First, to prevent
a blending of the different departments of Government--the legislative,
executive, and judicial--by uniting their functions in the hands of the
same individual, which would be contrary to the spirit of the
Constitution; secondly,
-----------------------------------------------------------------------
\1\ Annals, p. 2312.
Sec. 2316
to prevent the executive from acquiring an undue influence in the
legislature, by appointing its most active and able Members to offices
which must be held at his pleasure, and, thirdly, to take away from
aspiring or avaricious Members the temptation to create offices or
increase their emoluments, which might arise from the expectation of
speedily filling those offices themselves. What description of officers
was it necessary to exclude from the legislature in order to effect
these three objects? First, those whose duties might be incompatible
with a strict and regular attendance in the legislature; secondly,
those who derive their appointments from the Executive, and, thirdly,
those whose offices are of a nature to be considered as lucrative--to
be sought after on account of their pecuniary emoluments. It is evident
that some one or other of these characteristics belongs to every
description of officers, except ``legislative''--to military, to
executive, judicial, and diplomatic. It is to be presumed that the
Constitution here used the word ``office'' in that sense, and that
only, which was necessary in order to effectuate its intentions, and
consequently that the clause extends to those officers only whom it was
the intention of the Constitution to exclude from the legislature. The
clause therefore is to be understood as if, instead of the general
expressions, ``any civil office,'' ``any office,'' ``it had said, ``any
other civil office,'' ``any other office.'' This will render the whole
Constitution consistent with itself and with the well-established
meaning of language. In the clause relative to commissions we have an
instance where, in order to prevent the Constitution from pronouncing a
palpable absurdity, it was necessary to explain the general term ``all
officers,'' so as to mean ``all officers appointed by the President.''
If the general expression may be controlled by the subject-matter and
intent in one case, it may in another, and certainly the subject-matter
and intent could not speak more strongly against the general expression
in the former, or in any other case, than in this.
If this reasoning be well founded, it follows that the clause in
question proves nothing against our doctrine of a Senator being an
officer in the sense of the Constitution. It only proves that the
Constitution, being obliged to use the same word in application to
different matters, and for different purposes, has used it generally
and left it to be explained by a reference to the intent and subject-
matter, instead of explaining it by express modifications. The object
here was to exclude certain officers from the legislature, and the term
is used generally; but it by no means follows, from thence, that
Members of the legislature are not themselves officers.
Also another argument was answered: \1\
An objection has also been drawn from the supposed intention with
which the power of impeachment was established by the Constitution. The
sole object of this power, it is said, was to provide a remedy against
the favoritism or obstinacy of the Supreme Executive Magistrate, by
affording a means of removing from office improper persons, whom he
might be inclined to retain in place to the detriment of the nation.
This necessity does not exist, we are told, with respect to members of
the legislature who are removable by the people themselves at stated
periods, and to whom, consequently, the power of impeachment ought not
to extend.
But this can not be the sole object of the power of impeachment,
because the President himself is liable to be impeached, as well as the
officers whom he appoints. So also is the Vice-President. And yet these
two great officers axe appointed by the people themselves, in a manner
far more direct and immediate than Senators and removable at shorter
periods. If the power of impeachment be, as the learned counsel insist,
intended as an aid to the control which the people, by the right of
election, have over their public servants, or to supply the place of
that control where it does not exist, surely there is much stronger
reason for its extending to Senators than to the President or Vice-
President, for Senators are much farther removed from the power of the
people and the control of elections than those officers. They are
elected for a much longer period; their election being made by
legislative bodies, who are chosen by the people for other purposes
and, for a considerable time, is far less influenced by popular opinion
or popular feelings than that of the President, who is chosen by
electors elected for that sole purpose, and selected, in almost every
instance, according to their known attachment to the favored candidate.
The election of the President and Vice-President therefore partakes far
more of the nature of a popular election than that of Senators. Indeed,
of all the component members of our Government the Senate, both in the
mode of its appointment and the term of its duration, is intended
-----------------------------------------------------------------------
\1\ Annals, p. 2315,
Sec. 2317
to be, and actually is, the most permanent and independent--the
furthest elevated above the region and the influence of those storms
whereby a popular government must sometimes be agitated. God forbid,
Mr. President, that I should find fault with these ingredients in the
composition of the Senate or do anything which could tend in the least
to diminish their efficiency. I consider them as among the most
valuable principles of the Constitution.
And finally he urged: \1\
But the effect of an impeachment, it is said, may be produced in
another manner, more conformable to the dignity of the Senate. The same
majority of two-thirds which can convict on an impeachment may also
expel, and thus an improper person may be driven from the Senate. But,
in the first place, he can not be thus kept out in future; for, though
the Senate may expel, it can not disqualify. And if we suppose the case
(which may very well happen) of a great and wicked man, supported by a
strong party in the legislature of his own State, he may return again,
after being expelled and may go on in the commission of ``high crimes
and misdemeanors,'' in the very station which gives him the greatest
means of committing them with effect.
In the second place, an offender has a much better chance to escape
from an expulsion than from an impeachment. Where the offense is of a
very dark and complicated nature, consists in transactions or plots
carried on at a distance or in many places at once, and of consequence
can not be brought to light and fully substantiated without a
laborious, long-continued and systematic inquiry, it must be admitted
that the aid of a prosecutor will be necessary, and that the Senate of
itself and for the mere purpose of expulsion will be little disposed to
undertake so tedious and disagreeable a task.
2317. Blount's impeachment, continued.
In the Blount case it was conceded that a person impeached might not
avoid punishment by resignation.
(5) As to the status of Mr. Blount at the time of the argument, Mr.
Bayard said: \2\
It is also alleged in the plea that the party impeached is not now a
Senator. It is enough that he was a Senator at the time the articles
were preferred. If the impeachment were regular and maintainable when
preferred, I apprehend no subsequent event, grounded on the willful
act, or caused by the delinquency of the party, can vitiate or obstruct
the proceeding. Otherwise the party, by resignation or the commission
of some offense which merited and occasioned his expulsion, might
secure his impunity. This is against one of the sagest maxims of the
law, which does not allow a man to derive a benefit from his own wrong.
Speaking for the respondent, Mr. Dallas said: \3\
It is among the less objections of the cause that the defendant is
now out of office, not by resignation. I certainly shall never contend
that an officer may first commit an offense and afterwards avoid
punishment by resigning his office; but the defendant has been
expelled. Can he be removed at one trial and disqualified at another
for the same offense? Is it not the form rather than the substance of a
trial? Do the Senate come, as Lord Mansfield says a jury ought, like
blank paper, without a previous impression upon their minds? Would not
error in the first sentence naturally be productive of error in the
second instance? Is there not reason to apprehend the strong bias of a
former decision would be apt to prevent the influence of any new lights
brought forward upon a second trial?
2318. Blount's impeachment, continued.
The Senate decided that it had no jurisdiction to try an impeachment
against William Blount, a Senator.
The Senate notified the House that it had made a decision in the
Blount case and set a time for receiving the managers and rendering
judgment.
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\1\ Annals, p. 2317.
\2\ Annals, p. 2261.
\3\ Annals, p. 2293.
Sec. 2318
The House did not attend its managers during the Blount impeachment,
even at the judgment.
Form of judgment pronounced by the Vice-President in the Blount
impeachment.
Judgment being given in the Blount impeachment, the managers
submitted to the House a report in writing.
The Senate delivered to the managers for transmission to the House an
attested copy of its judgment in the Blount case.
On January 7 \1\ the Senate resolved itself into a court of
impeachment, and the following resolution was offered:
That William Blount was a civil officer of the United States within
the meaning of the Constitution of the United States, and therefore
liable to be impeached by the House of Representatives;
That as the articles of impeachment charge him with high crimes and
misdemeanors, supposed to have been committed while he was a Senator of
the United States, his plea ought to be overruled.
This resolution was debated in the court of impeachment until January
10,\2\ when it was disagreed to, yeas 11, nays 14.
On January 11,\3\ it was determined by a vote of 14 yeas and 11 nays,
the division of Members being exactly as on the preceding day:
The court is of opinion that the matter alleged in the plea of the
defendant is sufficient in law to show that this court ought not to
hold jurisdiction of the said impeachment, and that the said
impeachment is dismissed.
It was further ordered by the court of impeachment:
Ordered, That the Secretary notify the House of Representatives that
the Senate will be ready to receive the managers of the House of
Representatives and the counsel of the defendant on Monday next, at 12
o'clock, to render judgment on the impeachment against William Blount.
The Journal of the Senate has no record of this order; but it was
received in the House the same day as a message from the Senate.\4\
On January 14,\5\ the managers alone attended, the House going on
with the transaction of its business. The court being opened and
silence being proclaimed, the parties attending, judgment was
pronounced by the Vice-President as follows:
Gentlemen, managers of the House of Representatives, and gentlemen,
counsel for William Blount: The court, after having given the most
mature and serious consideration to the question, and to the full and
able arguments urged on both sides, has come to the decision which I am
now about to deliver.
The court is of opinion that the matter alleged in the plea of the
defendant is sufficient in law to show that this court ought not to
hold jurisdiction of the said impeachment, and that the said
impeachment is dismissed.
Copies of the judgment were delivered to the managers and to the
counsel for the defendant, respectively.
After which they withdrew; and, on motion, the court adjourned
without day.
On the same day, in the House,\6\ Mr. Bayard, from the managers
appointed on
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\1\ Senate Journal, p. 568; Annals, p. 2318.
\2\ Annals, p. 2318.
\3\ Annals, p. 2319.
\4\ House Journal, p. 430.
\5\ House Journal, pp. 431, 432. Annals, pp. 2648, 2319
\6\ House Journal, pp. 431, 432.
Sec. 2318
the part of this House to conduct the impeachment against William
Blount, made a further report, which was read, as follows:
That agreeably to the notification of the Senate they attended at
their bar to hear their judgment upon the plea of the said William
Blount, and that the President of the Senate pronounced judgment upon
the said plea, a copy whereof was ordered to be delivered to the
managers and is annexed to this report.
``United States of America, Friday, January 11, 1799. High Court of
Impeachment.
``united states v. william blount.
``The court is of opinion, etc. [Here follows the decision as given
above.]
``Attest:
``Sam A. Otis, Secretary.''
The report and copy were ordered to lie on the table.