[Hinds' Precedents, Volume 3]
[Chapter 75 - The First Attempts to Impeach the President]
[From the U.S. Government Publishing Office, www.gpo.gov]
THE FIRST ATTEMPTS TO IMPEACH THE PRESIDENT.
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1. Refusal of the House to impeach President Tyler. Section
2398.
2. First proposition to impeach President Johnson. Section
2399.
3. Investigation of charges made by a Member. Sections 2400-
2402.
4. Proceedings and report of investigating committee. Section
2403.
5. Usurpation of power as an impeachable offense. Section 2404.
6. Nature of the power of impeachment elaborately discussed.
Sections 2405, 2406.
7. House decides not to impeach. Section 2407.
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2398. The House refused in 1843 to impeach John Tyler, President of
the United States, on charges preferred by a Member.
A proposition to impeach a civil officer of the United States is
received in the House as a question of privilege.
Form of impeachment of a civil officer by a Member on the floor of
the House.
On January 10, 1843,\1\ Mr. John M. Botts, of Virginia, proposed the
following:
I do impeach John Tyler, Vice-President, acting as President of the
United States, of the following high crimes and misdemeanors:
First. I charge him with gross usurpation of power and violation of
law, in attempting to exercise a controlling influence over the
accounting officers of the Treasury Department, by ordering the payment
of accounts of long standing that had been by them rejected for want of
legal authority to pay, and threatening them with expulsion from office
unless his orders were obeyed; by virtue of which threat thousands were
drawn from the Public Treasury without the authority of law.
Second. I charge him with a wicked and corrupt abuse of the power of
appointment to and removal from office: First, in displacing those who
were competent and faithful in the discharge of their public duties,
only because they were supposed to entertain a political preference for
another; and, secondly, in bestowing them on creatures of his own will,
alike regardless of the public welfare and his duty to the country.
Third. I charge him with the high crime and misdemeanor of aiding to
excite a disorganizing and revolutionary spirit in the country, by
placing on the records of the State Department his objections to a law
as carrying no constitutional obligation with it; whereby the several
States of this Union were invited to disregard and disobey a law of
Congress which he himself had sanctioned and sworn to see faithfully
executed, from which nothing but disorder, confusion, and anarchy can
follow.
Fourth. I charge him with being guilty of a high misdemeanor, in
retaining men in office for months after they have been rejected by the
Senate as unworthy, incompetent, and unfaithful, with an utter defiance
of the public will and total indifference to the public interests.
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\1\ Third session Twenty-seventh Congress, Journal, pp. 157-163;
Globe, pp. 144-146.
Sec. 2399
Fifth. I charge him with the high crime and misdemeanor of
withholding his assent to laws indispensable to the just operations of
government, which involved no constitutional difficulty on his part; of
depriving the Government of all legal means of revenue, and of assuming
to himself the whole power of taxation, and of collecting duties of the
people without the authority or sanction of law.
Sixth. I charge him with an arbitrary, despotic, and corrupt abuse of
the veto power, to gratify his personal and political resentments
against the Senate of the United States for a constitutional exercise
of their prerogative in the rejection of his nominees to office, with
such evident mark of inconsistency and duplicity as leave no room to
doubt his disregard of the interests of the people and his duty to the
country.
Seventh. I charge him with gross official misconduct, in having been
guilty of a shameless duplicity, equivocation, and falsehood with his
late Cabinet and Congress, which led to idle legislation and useless
public expense, and by which he has brought such dishonor on himself as
to disqualify him from administering the Government with advantage,
honor, or virtue, and for which alone he would deserve to be removed
from office.
Eighth. I charge him with an illegal and unconstitutional exercise of
power, in instituting a commission to investigate past transactions
under a former Administration of the custom-house in New York, under
the pretense of seeing the laws faithfully executed; with having
arrested the investigation at a moment when the inquiry was to be made
as to the manner in which those laws were executed under his own
Administration; with having directed or sanctioned the appropriation of
large slim of the public revenue to the compensation of officers of his
own creation, without the authority of law, which, if sanctioned, would
place the entire revenues of the country at his disposal.
Ninth. I charge him with the high misdemeanor of having withheld from
the Representatives of the people information called for and declared
to be necessary to the investigation of stupendous frauds and abuses
alleged to have been committed by agents of the Government, both upon
individuals and the Government itself, whereby he himself became
accessory to these frauds.
Mr. Botts also submitted this resolution, for the action of the
House:
Resolved, That a committee of nine members be appointed, with
instructions diligently to inquire into the truth of the preceding
charges preferred against John Tyler, and to report to this House the
testimony taken to establish said charges, together with their opinion
whether the said John Tyler hath so acted in his official capacity as
to require the interposition of the constitutional power of this House;
and that the committee have power to send for persons and papers.
Mr. Botts stated in his place as a Member that he was himself able to
prove every charge made, and he not only asked but demanded the
opportunity to do so.
The Speaker \1\ having decided that the charges involved a question
of privilege, the House proceeded to consideration of the resolution.
Mr. Cave Johnson, of Tennessee, moved that the proposition lie on the
table. This motion was disagreed to, yeas 104, nays 119.
On the question of agreeing to the resolution, there appeared yeas
84, nays 127. So the resolution was disagreed to.
2399. The first attempt to impeach Andrew Johnson, President of the
United States.
The impeachment of President Johnson was first proposed indirectly
through general investigations.
On December 17, 1866,\2\ Mr. James M. Ashley, of Ohio, moved that the
rules be suspended so as to enable him to report from the Committee on
Territories \3\ the following resolution:
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\1\ John White, of Kentucky, Speaker.
\2\ Second session Thirty-ninth Congress, Journal, p. 89; Globe, p.
154.
\3\ At that time reports could not be made at any time.
Sec. 2400
Resolved, That a select committee to consist of seven Members of this
House be appointed by the Speaker, whose duty it shall be to inquire
whether any acts have been done by any officer of the Government of the
United States which in contemplation of the Constitution are high
crimes or misdemeanors, and whether said acts were designed or
calculated to overthrow, subvert, or corrupt the Government of the
United States, or any department thereof, and that said committee have
power to send for persons and papers and to administer the customary
oath to witnesses, and that they have leave to report by bill or
otherwise.
In the brief debate permitted objection was made to such a general
inquest on all the officers of the United States. On the vote there
appeared yeas 90, nays 49. So the rules were not suspended.
On January 7, 1867,\1\ in the morning hour for the presentation of
resolutions,\2\ Mr. Benjamin F. Loan, of Missouri, submitted this
resolution:
Resolved, That for the purpose of securing the fruits of the
victories gained on the part of the Republic during the late war, waged
by rebels and traitors against the life of the nation, and of giving
effect to the will of the people as expressed at the polls during the
recent elections by a majority numbering in the aggregate more than
400,000 votes, it is the imperative duty of the Thirty-ninth Congress
to take without delay such action as will accomplish the following
objects:
1. The impeachment of the officer now exercising the functions
pertaining to the office of President of the United States of America,
and his removal from said office upon his conviction, in due form of
law, of the high crimes and misdemeanors of which he is manifestly and
notoriously guilty, and which render it unsafe longer to permit him to
exercise the powers he has unlawfully assumed.
2. To provide for the faithful and efficient administration of the
executive department of the Government within the limits prescribed by
law.
3. To provide effective means for immediately reorganizing civil
government in those States lately in rebellion, excepting Tennessee,
and for restoring them to their practical relations with the Government
upon a basis of loyalty and justice; and to this end
4. To secure by the direct intervention of Federal authority the
right of franchise alike, without regard to color, to all classes of
loyal citizens residing within those sections of the Republic which
were lately in rebellion.
After some discussion this resolution was, under the requirements of
a rule of the House, referred to the Committee on Reconstruction.
Immediately thereafter Mr. John R. Kelso, of Missouri, offered as a
new proposition the first portion of the resolution, having stricken
out all of subdivisions 3 and 4.
Mr. Thomas T. Davis, of New York, moved to lay the resolution on the
table, and the motion was disagreed to, yeas 40, nays 104. The question
was then put on ordering the previous question, when the morning hour
expired, and the House proceeded to other business.
2400. The first attempt to impeach President Johnson, continued.
On January 7, 1867, President Johnson was formally impeached in the
House on the responsibility of a Member.
The House voted to investigate the conduct of President Johnson on
the strength of charges made by a Member on his own responsibility
only.
A Member having impeached the President and presented a resolution of
investigation, the Speaker admitted it as a question of privilege.
In the first attempt to impeach President Johnson the investigation
was made by the Judiciary Committee.
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\1\ Journal, pp. 118, 119; Globe, pp. 319-321.
\2\ This order of business does not now exist.
Sec. 2400
On the same day, January 7,\1\ Mr. James M. Ashley, of Ohio, rising
in his place, declared:
On my responsibility as a Representative, and in the presence of this
House, and before the American people, I charge Andrew Johnson, Vice-
President and acting President of the United States, with the
commission of acts which, in contemplation of the Constitution, are
high crimes and misdemeanors. I therefore submit the following--
which was presented as a question of privilege:
I do impeach Andrew Johnson, Vice-President and acting President of
the United States, of high crimes and misdemeanors.
I charge him with a usurpation of power and violation of law:
In that he has corruptly used the appointing power.
In that he has corruptly used the pardoning power.
In that he has corruptly used the veto power.
In that he has corruptly disposed of public property of the United
States.
In that he has corruptly interfered in elections, and committed acts
which, in contemplation of the Constitution, are high crimes and
misdemeanors: Therefore,
Be it resolved, That the Committee on the Judiciary be, and they are
hereby, authorized to inquire into the official conduct of Andrew
Johnson, Vice-President of the United States, discharging the powers
and duties of the office of President of the United States, and to
report to this House whether, in their opinion, the said Andrew
Johnson, while in said office, has been guilty of acts which were
designed or calculated to overthrow, subvert, or corrupt the Government
of the United States, or any department or officer thereof; and whether
the said Andrew Johnson has been guilty of any act, or has conspired
with others to do acts, which, in contemplation of the Constitution,
are high crimes or misdemeanors, requiring the interposition of the
constitutional power of this House; and that said committee have power
to send for persons and papers and to administer the customary oath to
witnesses.
A question of order being raised, the Speaker \2\ held that the
resolution presented a question of privilege.
A motion by Mr. Rufus P. Spalding, of Ohio, that the resolution be
laid on the table, was disagreed to--yeas 39, nays 106.
Then the previous question was ordered, and a motion to reconsider
the vote whereby it was ordered was laid on the table by a vote of yeas
95, nays 47.
Then the question being put: ``Will the House agree to the
proposition submitted by Mr. James M. Ashley?'' there appeared yeas
108, nays 39. So the resolution was agreed to.
On January 14,\3\ Mr. Loan's resolution was debated, Mr. Loan, in a
speech at length, using language interpreted to be a charge that
President Johnson was guilty of complicity in the murder of President
Lincoln, and further charging him with participation in a conspiracy to
capture the Government in the interest of the late participants in the
secession movement. On January 28 and February 4 the resolution was
further considered, the debate on the later days being principally on a
motion made by Mr. Thomas A. Jenckes, of Rhode Island, that the
resolution be referred to the Committee on the Judiciary, which was
already considering the subject.
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\1\ Journal, pp. 121-124; Globe, pp. 320, 321.
\2\ Schuyler Colfax, of Indiana, Speaker. The Speaker cited as a
precedent the decision made in the Twenty-seventh Congress on a point
of order made by Mr. Horace Everett, of Vermont.
\3\ Journal, pp. 163, 277, 320; Globe, pp. 443-446, 806-808, 991.
Sec. 2401
This motion was agreed to, although it was urged in opposition that
there was much business before the Judiciary Committee, and that the
matter would be expedited by reference to a select committee.
2401. The first attempt to impeach President Johnson, continued.
The Thirty-ninth Congress having expired during investigation of
President Johnson's conduct, the House in the next Congress directed
the Judiciary Committee to resume the investigation.
A resolution directing the Judiciary Committee to resume an
investigation with a view to an impeachment was held to be privileged.
On February 28,\1\ Mr. James F. Wilson, of Iowa, chairman of the
Judiciary Committee, submitted a report which in effect stated that
considerable testimony had been taken, but that it would be
impracticable to conclude the subject during the then existing
Congress; and expressed the opinion that the evidence indicated the
desirability of a further prosecution of the case. This report was
signed by eight members of the committee. Mr. Andrew J. Rogers, of New
Jersey, submitted minority views, in which he declared ``that the most
of the testimony that has been taken is of a secondary character, and
such as would not be admitted in a court of justice,'' and advised
discontinuance of the proceedings.
On March 2 \2\ the report was laid on the table and ordered printed.
At the beginning of the next Congress, on March 7, 1867,\3\ Mr. James
M. Ashley, of Ohio, as a question of privilege, submitted a preamble
and resolution, which, after modification, were as follows:
Whereas the House of Representatives of the Thirty-ninth Congress
adopted on the 7th of January, 1867, a resolution authorizing an
inquiry into certain charges preferred against the President of the
United States; and
Whereas the Judiciary Committee, to whom said resolution and charges
were referred, with authority to investigate the same, were unable for
want of time to complete said investigation before the expiration of
the Thirty-ninth Congress; and
Whereas in the report submitted by said Judiciary Committee on the 2d
of March, they declare that the evidence taken is of such a character
as to justify and demand a continuation of the investigation by this
Congress: Therefore, be it
Resolved by the House of Representatives, That the Judiciary
Committee when appointed, be, and they are hereby, instructed to
continue the investigation authorized in said resolution of January 7,
1867, and that they have power to send for persons and papers, and to
administer the customary oath to witnesses; and that the committee have
authority to sit during the sessions of the House, and during any
recess which Congress or this House may take.
Resolved, That the Speaker of the House be requested to appoint the
Committee on the Judiciary forthwith, and that the committee so
appointed be directed to take charge of the testimony taken by the
committee of the last Congress; and that said committee have power to
appoint a clerk at a compensation not to exceed $6 per day, and employ
the necessary stenographer.
Resolved further, That the Clerk of the House of Representatives be
directed to pay, out of the contingent fund of the House, on the order
of the Committee on the Judiciary, such sum or sums of money as may be
required to enable the said committee to prosecute the investigation
above directed, and such other investigations as it may be ordered to
make.
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\1\ House Report No. 31; Globe p. 1754.
\2\ Journal, p. 585; Globe, p. 1754.
\3\ First session Fortieth Congress, Journal, pp. 19-21; Globe, pp.
18-25.
Sec. 2402
Mr. Samuel J. Randall, of Pennsylvania, having raised a question as
to the presentation of the resolution, the Speaker \1\ said:
The Chair has entertained the resolution as a question of privilege,
as it has reference to proceedings for the impeachment of the President
of the United States.\2\
A motion by Mr. William S. Holman, of Indiana, that the resolutions
be laid on the table was disagreed to, yeas 33, nays 119; and then
after debate, largely as to the political expediency of reviving the
proceedings, the preamble and resolutions were agreed to by the House,
without division.
Throughout this session of Congress, which continued with
intermissions until November 30, various resolutions were offered \3\
with the object of hastening the work of the Judiciary Committee or of
procuring the printing of the testimony. On March 29 a resolution
requesting the committee to report within a certain time was agreed to.
2402. The first attempt to impeach President Johnson, continued.
A verbal report as to progress made by a committee in an impeachment
investigation was offered as privileged.
A proposition to instruct a committee to investigate new charges in
an impeachment case was held to be privileged.
On July 10,\4\ Mr. James F. Wilson, of Iowa, claiming the floor for a
question of privilege, reported verbally from the Judiciary Committee,
by direction of that committee, that they expected to be able to report
on or after October 16. He also stated that as the case now stood five
members of the committee were of the opinion that such high crimes and
misdemeanors had not been developed as to call for the exercise of the
impeachment power on the part of the House. The remaining four members
of the committee took the opposite view.
On July 17, 1867,\5\ Mr. John Covode, of Pennsylvania, claiming the
floor for a question of privilege, offered the following preamble and
resolution:
Whereas Andrew Johnson, President of the United States, did, upon the
4th day of July, 1867, at the request of the counsel of John H.
Surratt, caused to be issued to Stephen F. Cameron, of the rebel army,
and one of the most notorious violators of the laws of war, a full
pardon for all his crimes, in order that his credibility might be
increased as a witness to aid in the exculpation of said Surratt from
his participation in the murder of Mr. Lincoln, thus showing his
sympathy with the men who murdered the President: Therefore, be it
Resolved, That the Committee on the Judiciary be instructed to
inquire into the foregoing charge, and report the evidence to the House
in the first week of its next session, together with all the testimony
already taken in the impeachment case.
Mr. Benjamin M. Boyer, of Pennsylvania, raised a question as to the
privilege of the resolution.
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\1\ Schuyler Colfax, of Indiana, Speaker.
\2\ It is to be noticed that several nonprivileged matters are
contained in the resolutions, which under the present practice would
destroy the privilege--notably the provisions for a clerk and for
payments from the contingent fund.
\3\ Journal, pp. 146, 189, 211, 213, 220, 226, 248; Globe, pp. 446,
452, 592, 656, 657, 720, 725, 762, 765, 766, 778, 779.
\4\ Globe, p. 565.
\5\ Journal, pp. 220, 221; Globe, p. 697.
Sec. 2403
The Speaker \1\ said:
It does unquestionably, in the opinion of the Chair, present a
question of the very highest privilege.
The resolution was then agreed to; but the preamble was amended by
striking out all after the word ``whereas'' and inserting the words:
``It is reported that a pardon has been issued by the President to
Stephen F. Cameron,'' and as amended was agreed to.
2403. The first attempt to impeach President Johnson, continued.
The first proposition to impeach President Johnson was reported from
a committee divided as to fact and law.
In the first attempt to impeach President Johnson the committee
reported the testimony and also majority and minority arguments.
The first investigation of President Johnson's conduct was conducted
ex parte and in executive session.
It does not appear that President Johnson sought to be represented
before the committee making the first investigation.
Instance wherein a Member of the House not a member of the committee
was permitted to examine a witness.
In the first investigation of the conduct of President Johnson the
committee relaxed the strict rules of evidence.
On November 25 \2\ Mr. George S. Boutwell, of Massachusetts, from the
Committee on the Judiciary, submitted the report of the majority of
that committee, signed by five of the members, while Mr. James F.
Wilson, of Iowa, presented minority views signed by himself and Mr.
Frederick E. Woodbridge, of Vermont. Also Mr. Samuel S. Marshall, of
Illinois, presented other minority views, signed by himself and Mr.
Charles A. Eldridge, of Wisconsin.
On motion of Mr. Boutwell,
Ordered, That the said testimony and reports be printed (the report
of the majority and the views of the minorities to be printed
together), and that the further consideration of the subject be
postponed until Wednesday, the 4th day of December next.
The report of the committee presents the testimony in full. It
appears that the examination was conducted ex parte, there being no one
present to crossexamine witnesses on behalf of the President, nor does
it appear that any testimony was introduced at his suggestion or sought
to be introduced. The witnesses were examined generally by the chairman
or other members of the committee. In one instance \3\ Mr. Benjamin F.
Butler, a Member of the House, but not a member of the committee, was
permitted to examine a witness; but his examination was in no sense an
appearance in behalf of the President, but rather the reverse. In the
minority views \4\ presented by Mr. Marshall the investigation is
spoken of as ``a secret, ex parte one.''
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\1\ Schuyler Colfax, of Indiana, Speaker.
\2\ Journal, p. 265; Globe, pp. 791, 792; House Report No. 7, First
session Fortieth Congress. Although presented by Mr. Boutwell, this
report was prepared principally by Mr. Thomas Williams, of
Pennsylvania.
\3\ See p. 56 of the testimony.
\4\ See p. 110 of the report.
Sec. 2404
As to the nature of the testimony taken in the course of the
investigation, the majority say \1\ that they--
have spared no pains to make their investigations as complete as
possible, not only in the explorations of the public archives, but in
following every indication that seemed to promise any additional light
upon the great subjects of inquiry.
And in the minority views submitted by Mr. Wilson it is stated: \2\
A great deal of matter contained in the volume of testimony reported
to the House is of no value whatever. Much of it is mere hearsay,
opinions of witnesses, and no little amount of it utterly irrelevant to
the case. Comparatively a small amount of it could be used on a trial
of this case before the Senate.
It seems to have been assumed in the committee that this was the
proper course, since in the minority views presented by Mr. Marshall it
is stated: \3\
In what we have said of the character of evidence taken before us,
and the means used to procure it, we must not be understood as
reflecting upon the action of the committee or any member thereof. Such
an interpretation of our remarks would do great injustice to us and to
them. Whether such latitude should have been given in the examination
of witnesses we will not now inquire. In an investigation before a
committee it would be difficult and perhaps impossible to confine the
evidence to such as would be deemed admissible before a court of
justice. Indeed, it may be questioned whether it would be proper so to
restrict it, and it is perhaps better, even for the President, that
those who were managing the prosecution from the outside were permitted
to present anything that they might call or consider evidence.
The majority of the committee embodied their conclusion in this
resolution:
Resolved, That Andrew Johnson, President of the United States, be
impeached of high crimes and misdemeanors.
The minority, taking issue, were united in recommending a resolution
as follows:
Resolved, That the Committee on the Judiciary be discharged from the
further consideration of the proposed impeachment of the President of
the United States, and that the subject be laid upon the table.
The fact that all the minority did not unite in submitting views did
not arise from any disagreement as to essential facts or law, but
merely as to a difference as to whether or not the conduct of the
President should be criticized as improper, although not impeachable.
2404. The first attempt to impeach President Johnson, continued.
The first attempt to impeach President Johnson was based on the
salient charge of usurpation of power, with many specifications.
The discussion of the committee touched two main branches (1) as to
the facts, and (2) as to the law.
1. As to the facts.
In moving the impeachment Mr. Ashley had specified six offenses. The
majority of the committee found in general that the evidence sustained
these charges, and say that ``the great salient point of accusation,
standing out in the foreground, and challenging the attention of the
country, is usurpation of power.'' The majority specify as follows:
1. That the President of the United States, assuming it to be his
duty to execute the constitutional guaranty, has undertaken to provide
new governments for the rebellious States without the consent or
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\1\ See p. 1 of the report.
\2\ See p. 104 of the report.
\3\ See p. 110 of the report.
Sec. 2404
cooperation of the legislative power, and upon such terms as were
agreeable to his own pleasure, and then to force them into the Union
against the will of Congress and the people of the loyal States, by the
authority and patronage of his high office.
2. That to effect this object he has created offices unknown to the
law, and appointed to them without the advice or consent of the Senate,
men who were notoriously disqualified to take the test oath, at
salaries fixed by his own mere will, and paid those salaries, along
with the expenses of his work, out of the funds of the War Department,
in clear violation of law.
3. That to pay the expenses of the said organizations, he has also
authorized his pretended officers to appropriate the property of the
Government, and to levy taxes from the conquered people.
4. That he has surrendered, without equivalent, to the rebel
stockholders of southern railroads captured by our arms, not only the
roads themselves, but the rolling stock and machinery captured along
with them, and even roads constructed or renovated at an enormous
outlay by the Government of the United States itself.
5. That he has undertaken, without authority of law, to sell and
transfer to the same parties, at a private valuation, and on a long
credit, without any security whatever, an enormous amount of rolling
stock and machinery, purchased by and belonging to the United States,
and after repeated defaults on the part of the purchasers has postponed
the debt due to the Government in order to enable them to pay the
claims of other creditors, along with arrears of interest on a large
amount of bonds of the companies guaranteed by the State of Tennessee,
of which he was himself a large holder at the time.
6. That he has not only restored to rebel owners large amounts of
cotton and other abandoned property that had been seized by the agents
of the Treasury, but has presumed to pay back the proceeds of actual
sales made thereof at his own will and pleasure, in utter contempt of
the law, directing the same to be paid into the Treasury, and the
parties aggrieved to seek their remedy in the courts, and in manifest
violation of the true spirit and meaning of that clause of the
Constitution of the United States which declares that ``no money shall
be drawn from the Treasury but in consequence of appropriations made by
law.''
7. That he has abused the pardoning power conferred on him by the
Constitution, to the great detriment of the public, in releasing,
pending the condition of war, the most active and formidable of the
leaders of the rebellion, with a view to the restoration of their
property and means of influence, and to secure their services in the
furtherance of his policy; and, further, in substantially delegating
that power for the same objects to his provisional governors.
8. That he has further abused this power in the wholesale pardon, in
a single instance, of 193 deserters, with restoration of their justly
forfeited claims upon the Government for arrears of pay, without proper
inquiry or sufficient evidence.
9. That he has not only refused to enforce the laws passed by
Congress for the suppression of the rebellion, and the punishment of
those who gave it comfort and support, by directing proceedings against
delinquents and their property, but has absolutely obstructed the
course of public justice by either prohibiting the initiation of legal
proceedings for that purpose, or where already commenced, by staying
the same indefinitely, or ordering absolutely the discontinuance
thereof.
10. That he has further obstructed the course of public justice, by
not only releasing from imprisonment an important state prisoner, in
the person of Clement C. Clay, charged among other things, as asserted
by himself in answer to a resolution of the Senate (Ex. Doc., Thirty-
ninth Congress, No. 7), ``with treason, with complicity in the murder
of Mr. Lincoln, and with organizing bands of pirates, robbers, and
murderers in Canada, to burn the cities and ravage the commercial
coasts of the United States on the British frontier,'' but has even
forbidden his arrest in proceedings instituted against him for treason
and conspiracy, in the State of Alabama, and ordered his property, when
seized for confiscation by the district attorney of the United States,
to be restored.
11. That he has abused the appointing power lodged in him by the
Constitution:
``1. In the removal, on system, and to the great prejudice of the
public service, of large numbers of meritorious public officers, for no
other reason than because they refused to endorse his claim of the
right to reorganize and restore the rebel States on conditions of his
own, and because they favored the jurisdiction and authority of
Congress on the premises.
``2. In reappointing in repeated instances, after the adjournment of
the Senate, persons who had been nominated by him and rejected by that
body as unfit for the place for which they had been so recommended.''
Sec. 2405
12. That he has exercised the dispensing power over the laws, by
commissioning revenue officers and others unknown to the law, who were
notoriously disqualified by their participation in the rebellion from
taking the oath of office required by the act of Congress of July 2,
1862, allowing them to enter upon and exercise the duties appertaining
to their respective offices, and paying to them salaries for their
services therein.
13. That he has exercised the veto power conferred on him by the
Constitution, in its systematic application to all the important
measures of Congress looking to the reorganization and restoration of
the rebel States, in accordance with a public declaration that he
``would veto all its measures whenever they came to him,'' and without
other reasons than a determination to prevent the exercise of the
undoubted power and jurisdiction of Congress over a question that was
cognizable exclusively by them.
14. That he has brought the patronage of his office into conflict
with the freedom of elections by allowing and encouraging his official
retainers to travel over the country, attending political conventions
and addressing the people, instead of attending to the duties which
they were paid to perform, while they were receiving high salaries in
consideration thereof.
15. That he has exerted all the influence of his position to prevent
the people of the rebellious States from accepting the terms offered to
them by Congress, and neutralized to a large extent the effects of the
national victory by impressing them with the opinion that the Congress
of the United States was bloodthirsty and implacable and that their
only hope was in adhering to him.
16. That, in addition to the oppression and bloodshed that have
everywhere resulted from his undue tenderness and transparent
partiality for traitors, he has encouraged the murder of loyal citizens
in New Orleans by a Confederate mob pretending to act as a police, by
hireling correspondence with its leaders, denouncing the exercise of
the constitutional right of a political convention to assemble
peacefully in that city as an act of treason proper to be suppressed by
violence, and commanding the military to assist instead of preventing
the execution of the avowed purpose of dispersing them.
17. That he has been guilty of acts calculated, if not intended, to
subvert the Government of the United States by denying that the Thirty-
ninth Congress was a constitutional body and fostering a spirit of
disaffection and disobedience to the law and rebellion against its
authority by endeavoring, in public speeches, to bring it into odium
and contempt.
The minority of the committee generally dissent from the conclusions
of the majority as to the facts. After reviewing the six specifications
alleged by Mr. Ashley, they find from a review of the evidence that the
acts of the President bear a very different construction from that
given by the majority. Messrs. Wilson and Woodbridge admit that many of
his acts have been wrong politically, saying:
In approaching a conclusion we do not fail to recognize two
standpoints from which this case may be reviewed: The legal and the
political. Viewing it from the former, the case upon the law and the
testimony fails; viewing it from the latter, the case is a success.
They then go on to state generally that the President
has disappointed the hopes and expectations of those who placed him in
power. He has betrayed their confidence and joined hands with their
enemies. * * * Judge him politically, we must condemn him. But the day
of political impeachments would be a sad one for this country.
But Messrs. Marshall and Eldridge dissent from all criticism of the
President, and confine themselves to the simple finding that on the law
and the facts he may not be impeached.
2405. The first attempt to impeach President Johnson, continued.
Whether or not an offense must be indictable under a statute in order
to come within the impeaching power was discussed fully in the first
attempt to impeach President Johnson.
Discussion of the nature of the impeaching power with reference to
American and English precedents.
Sec. 2405
2. As to the law.
On this point the majority, composed of Messrs. Boutwell; Francis
Thomas, of Maryland; Thomas Williams, of Pennsylvania; William
Lawrence, of Ohio, and John C. Churchill, of New York, advocate one
view, and the united minority a radically different one.
The majority first review the English authorities as set forth in
May's work and the utterances of Cushing, Story, and Rawle to show that
the purpose of impeachment in modem times is the punishment of high
crimes and misdemeanors, chiefly of an official or political character,
which axe either beyond the reach of the law or which no other
authority in the State but the supreme legislative power is competent
to prosecute. The Federalist is also quoted to show that such offenses
are of a nature which may be denominated political, as they relate
chiefly to injuries done immediately to the society itself. The
question then arises as to whether the terms of the United States
Constitution are such as to change the view which has been taken in
England. The majority say in this connection:
The fourth section of its second article 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 high
crimes and misdemeanors.'' It therefore names but two offenses
specifically, and they are not charged here. Do the facts involved
fill, then, within the general description of ``other high crimes and
misdemeanors,'' or are they excluded by the enumeration?
It is insisted, for the first time, we think, that they do not come
within the meaning of the language used, because, although all
confessedly in the popular sense the highest and gravest of
misdemeanors, and many of them in the technical and common-law
signification of the terms, indictable as such in England, and perhaps
in most of the older States, they are neither crimes nor misdemeanors
here, because it has been held with much diversity of opinion on the
bench, and more at the bar, that there is no jurisdiction in the courts
of the United States to punish criminally except where an act has been
made indictable by statute, which, as the committee are constrained to
think, is not a necessary logical result, even if the doctrine were
incontrovertible and to be considered as no longer open to discussion
in the courts. It would not follow, as they suppose, that what was
undoubtedly a crime or misdemeanor at the common law, in view of the
framers of the Constitution who sat under it and used its language and
recurred so often to its principles, had become any the less a crime
before the highest court for the purposes of impeachment because
another tribunal, having no jurisdiction at all over the subject, may
have decided that it is no longer cognizable before them, even if it
were essential, as there is no authority to show, that it should be a
true crime within the meaning of the common law. There is a law of
Parliament, which is a part of the common law, and by which only this
question must be determined.
The objection has the merit at least of being a novel as well as a
subtle one; well enough, perhaps, for the range of a criminal court,
but too subtle by far for those canons of interpretation that are
supposed to rule in the construction of the fundamental law of a great
state. If it be a sound one, then there is no remedy in the
Constitution but for the specific offenses of treason and bribery, as
there was no such thing as what it describes as ``high crimes or
misdemeanors ``then known to the laws of the United States, and the
Government must perish whenever it is attacked from a quarter that
could not have been foreseen. But could the statesmen who framed the
Constitution have perpetrated so grave a blunder as this? Did they
intend, instead of anchoring that power to the rock by a precision that
should fix it there, and leave nothing open to construction, to leave
it all afloat for future Congresses to say what offenses should be from
time to time impeachable? Did they, when dealing with a question so
mighty as the safety of the state, use words without a meaning, except
what might be thereafter given to them by an ephemeral legislature or
invented by an uncertain and not always consistent court? Or did they
stand in the august presence and under the not uncertain light of the
common law of England, which they had claimed as their birthright,
speaking the language, with a thorough understanding of its import, of
the sages and statesmen who had illustrated its principles? Are their
oracles to be read as they would
Sec. 2405
have been in England or would be now in any of its colonies past or
present or are their solemn utterances to be measured by a language
that they did not know? They committed no such error, and the
suggestion that they did is one that does not seem to antedate the case
to which it is at present applied.
To ascertain the meaning of the terms in question there are but three
possible sources to which the explorer can recur, and they are the
Constitution itself, the statutes, and the parliamentary practice, or
the common law of which it is a part. The Constitution, however, goes
no further, as already shown, than to declare the two political
offenses of treason and bribery to be ``high crimes and misdemeanors,'
and as such impeachable, while no statute has ever attempted it. Nor
does it by any means follow that where an offense has been made so
punishable as a crime the right to impeach is a corollary. It is not
every offense that by the Constitution is made impeachable. It must be
not a crime or misdemeanor only, but a ``high'' one, within the meaning
of the law of Parliament. There are, moreover, as suggested by Judge
Story in his Commentaries, many offenses of great enormity which are
made punishable by statute only when committed in a particular place.
What is to be said of them? Are they impeachable if committed under one
jurisdiction, and not so if perpetrated under another? There are, too,
many others of a purely political character, which have been held again
and again to be impeachable, that are not even named in our statute
books, and many more may be imagined in the long future for which it
would be impossible for human sagacity or perspicuity to provide. There
is no alternative, then, left, unless the remedy is to fail altogether,
except to resort to the parliamentary practice and the common law, or
leave the whole subject in the discretion of the Senate, which would be
inadmissible, of course, in a government of law.
The argument asserts that the offense must be an indictable one by
statute to authorize an impeachment. It is not even admitted, however,
that this high and radical and only effective remedy for official
delinquencies--and in this country, at least, it is no more than that--
is to be confined to those offenses which are known by these terms,
within the technical meaning that has been assigned to them. In such a
case as this no narrow interpretation can be allowed to defeat the
object of the law. A constitution of government is always to be
construed in a broad, catholic sense, in order to suppress the possible
mischief and advance the remedy. Those who maintain this doctrine
strangely forget that there is a parliamentary sense, which conforms to
the popular one, and is as much a common-law sense as the one on which
they rely. The object of the law is not to punish crime. That duty is
assigned to other tribunals. The purpose here is only to remove the
officer whose public conduct has been such as to disqualify him for the
proper discharge of his functions, or to show that the safety of the
state--which is always the supreme law--requires that he should be
deposed. It refers not so much to moral conduct as to official
relations--not, indeed, to moral conduct at all, except so far as it
may bear on the performance of official duty. The judgment is not fine
or imprisonment, as it may be in England, but only removal from office
and disqualification for the future. One of the very objects of this
extraordinary tribunal, as has been shown already and will be further
enforced hereafter, is to reach those very cases of official
delinquency against which no human foresight could provide and which
the ordinary tribunals are inadequate to punish. No ingenuity of
invention, no fertility of resource, can hedge round a high public
officer by boundaries which the greater ingenuity of fraud or
wickedness may not be able to pass by sap or scale. If a President, it
may be that he may prove impracticable. He may ignore the law, and even
wage war on the power that is intrusted with the making of it. He may
nullify its acts by misconstruing or disregarding them or denying their
authority. He may be guilty of offenses which are in their very nature
calculated to subvert the Government--all which things Andrew Johnson
is shown clearly to have done. And yet these things, although high
misdemeanors against the state, and fraught with peril to its life, may
not be indictable as crimes. But will anybody say that the Constitution
affords no remedy--that the arch offender must be borne with, and the
state must die--merely because Congress has failed to provide, not the
same, but a different punishment for the same offense? The cases in
England show that this is not law there, as it is not reason, which is
said to be the life of the law. The ewes here, though all of offenses
that were not statutory crimes or misdemeanors, have been so few as to
leave this question open, to be decided hereafter upon those great
reasons of state that lie at the foundation of the law of Parliament,
which is the rule that must govern ultimately here.
The report then goes on to quote from the works of Story and Curtis
in support of the view just advanced, and to the effect that, as said
by Story, ``the offenses to
Sec. 2405
which the power of impeachment has been and is ordinarily applied as a
remedy are of a political character,'' ``growing out of personal
misconduct, or gross neglect or usurpation, or habitual disregard of
the public interests in the discharge of the duties of political
office;'' and, as said by Curtis, that ``although an impeachment may
involve an inquiry whether a crime against any positive law has been
committed, yet it is not necessarily a trial for a crime.''
Further the report quotes the following from Judge Story:
The Congress of the United States has itself unhesitatingly adopted
the conclusion that no previous statute is necessary to authorize an
impeachment for any official misconduct, and the rules of proceeding
and the rules of evidence, as well as the principles of decision, have
been uniformly regulated by the known doctrines of the common law and
parliamentary usage. * * * In the few cases of impeachment that had
theretofore been tried no one of the charges had rested on any
statutable misdemeanor.
The report then says:
When he wrote the cases had been only three. In the first, which was
that of Blount, in 1798, where the charge was of a conspiracy to invade
the territories of a friendly power, although there was no decision on
the merits, the impeachable character of the offense was affirmed by an
almost unanimous vote of the Senate, expelling the delinquent from that
body as having been guilty of a high misdemeanor in the very language
of the Constitution. The second (Pickering's), in which a conviction
took place, was against a judge of a district court and purely for
official misconduct. The third (Chase's) was against a judge of the
Supreme Court of the United States, and was also a charge of official
misconduct, but terminated in an acquittal. It is a noteworthy fact,
however, that in the last-named case (the only one in which the point
was raised) it was conceded by the answer that a civil officer was
impeachable for ``corruption, or some high crime or misdemeanor,
consisting in some act done or omitted in violation of a law commanding
or forbidding it.'' Two other cases have occurred since that time. The
first, that of Judge Peck, in December, 1830, was for punishing a
refractory barrister for contempt, as for ``an arbitrary, unjust, and
oppressive arrest and sentence, with intent to injure and oppress under
cover of law.'' The case was clearly not of an indictable offense under
any statute of the United States, but, though defended by the very
ablest counsel (Messrs. Wirt and Meredith), it did not seem to have
occurred to them that the offense charged was not impeachable within
the meaning of the Constitution. The other, that of Judge Humphreys, at
the commencement of the rebellion, was upon charges of disloyal acts
and utterances, some of which clearly did not set forth offenses
indictable by statute of the United States, and yet upon all those
charges, with one exception only, he was convicted and removed.
It is only necessary to add that the conclusion of Judge Story upon
the whole case is that ``it seems to be the settled doctrine of the
high court of impeachment that, though the common law can not be the
foundation of a jurisdiction not given by the Constitution or laws,
that jurisdiction, when given, attaches, and is to be exercised
according to the rules of the common law, and that what are and what
are not `high crimes and misdemeanors' is to be ascertained by a
recurrence to that great basis of American jurisprudence.'' And he adds
to this that ``the power of the House to punish contempts, which are
breaches of privilege not defined by positive law, has been upheld on
the same ground; for if the House had no jurisdiction to punish until
the acts had been previously ascertained and defined by positive law,
it is clear that the process of arrest would be illegal.''
And this, it is hoped, will dispose forever of the novel objection
that is now interposed in the path of the nation's justice in the
defense of its greatest offender, and in a case that has no parallel in
enormity in the parliamentary history of England. It is scarcely
necessary to repeat that the charges, resting mainly upon record
evidence, are not only of usurpation and abuse of admitted power, but
of a contempt of law and of the legislative power that transcends
anything in the annals of either the Tudore or the Stuarts.
It may be answered, however, as it has been, that all this was with
the best intent, and that positive corruption must be shown to make the
act impeachable. The President alleges a necessity, in one case, of
dispensing with the laws in consequence of the absence of Congress. The
Attorney-General insists that it was not the true policy of the country
to enforce the laws against the rebels, and he accordingly refuses to
do it. The Secretary of the Treasury holds the same opinion also as to
the subject of
Sec. 2406
captured and abandoned property, and he returns the proceeds, as the
President returns the property itself.
An old but homely proverb says that the place most dreaded by the
wicked is paved with good intentions. If such intentions, or even a
supposed necessity, could excuse the violation of the law, no
transgressor would ever be punished, and no tyrant fail to show that
what he had done was with the best designs and for the purpose of
saving the constitution of the state. If Andrew Johnson can plead that
he gave away or sold the public property to rebels to promote their
commerce, or that he dispensed with the test oath only to conciliate
the disaffected, or collect the revenue, because of the absence of that
Congress which he had refused to convene, the self-willed James II
might even with a better grace have asserted that he had dispensed with
the religious test in the interests of universal toleration. By way,
however, of disposing of this apology, it may not be amiss to cite a
few authorities:
``The rule is, that if a man intends to do what he is conscious the
law--which every one is conclusively presumed to know--forbids, there
need not be any other evil intention. (Bish. Crim. Law, sec. 428.; 11
S. and R., 325.) It is of no avail to him that he means at the same
time an ultimate good.'' (Ibid.)
``When the law imposes a prohibition it is not left to the discretion
of the citizen to comply or not. He is bound to do everything in his
power to avoid an infringement of it. The necessity which will excuse
him for a breach must be instant and imminent. It must be such as to
leave him without hope by ordinary means to comply with the
requisitions of the law.'' (Fir. Story, I; 1 Gall., 150 S. P.; 3
Wheat., 39; 1 Bish., sec. 449.)
``Whenever the law, statutory or common, casts on one a duty of a
public nature, any neglect of the duty or act done in violation of it
is indictable.'' (I Bish., secs. 389-537.)
``The same doctrine requires all those who have accepted, to
discharge faithfully all public trusts. Any act or omission in
disobedience of this duty, in a matter of public concern, is, as a
general principle, punishable as a crime.'' (Ibid., see. 913.)
The only remaining question is whether, in view of all these facts,
it will be the duty of this House to call the President to answer
before the Senate, or whether any consideration of mere public or party
expediency, on either side of the House, ought to be allowed to prevail
on them to let the accused go free.
2406. The first attempt to impeach President Johnson, continued.
In the first attempt to impeach President Johnson, the minority of
the Judiciary Committee held that an indictable offense must be
charged.
Elaborate discussion of meaning of the words ``high crimes and
misdemeanors.''
American and English precedents were reviewed carefully by the
minority of the Judiciary Committee in the first attempt to impeach
President Johnson.
The minority views take issue with the argument of the majority,
beginning the argument as follows:
The Constitution of the United States declares that ``the House of
Representatives * * * shall have the sole power of impeachment.'' What
is the nature and extent of this power? Is it as boundless as it is
exclusive? Having the sole power to impeach, may the House of
Representatives lawfully exercise it whenever and for whatever a
majority of the body may determine? Is it a lawless power, controlled
by no rules, guided by no reason, and made active only by the likes or
dislikes of those to whom it is intrusted? Have civil officers of the
United States nothing to insure them against an exercise of this power
except an adjustment of their opinions and official conduct to the
standard set up by the dominant party in the House of Representatives?
Happily for the nation this power is not without its constitutional
boundaries, and is not above the law. When we examine the Constitution
to ascertain in what cases the power of impeachment may be exercised--
for what acts civil officers may be impeached--we are informed 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.'' (Art.
II, see. 2.)
Sec. 2406
In these cases only can the power of impeachment be lawfully used. It
would seem to be difficult to mistake the import of this plain
provision of the fundamental law of the land; and yet it is not free
from conflicting interpretations. This conflict does not arise upon the
terms ``treason'' and ``bribery,'' for they are too well understood and
too clearly defined in the Constitution and the laws of the land to
admit of any disputation concerning them. They are both crimes of a
high grade and punishable upon indictment in the courts of the United
States. They are offenses against the public weal, with just and
adequate penalties prescribed for them by the law of the nation. There
is no difficulty in ascertaining the meaning of the Constitution in so
far as it relates to these crimes. Whatever conflict of opinion has
arisen respecting the extent of the power of impeachment finds its
origin in the terms ``other high crimes and misdemeanors.'' These
terms, it has been claimed, give a latitude to the power reaching far
beyond the field of indictable offenses. This doctrine is denied. Here
arises the only doubt concerning the jurisdiction of the impeaching
power of the House of Representatives.
The fact that the framers of the Constitution selected by name two
indictable crimes as causes of impeachment would seem to go far toward
establishing as the true construction of the terms ``high crimes and
misdemeanors'' that all other offenses for which impeachment will lie
must also be indictable. Having fettered the House of Representatives
by naming two well-defined crimes of the highest grade, it is not to be
presumed that the same hands which did it clothed the House with the
right to ramble through all grades of crimes and misdemeanors, all
instances of improper official conduct and improprieties of official
life, grave and unimportant, harmful and harmless, alike. It is
unreasonable to say that the men who framed our Constitution, after
undertaking to place a limitation on the power of impeachment, ended
their effort by throwing away all restraints upon its exercise and
placing it entirely within the keeping of those upon whom it was
intended to confer only a limited power. There is something more stable
than the whims, caprices, and passions of a majority established as a
restraint upon this power by the Constitution. The House of
Representatives may impeach a civil officer, but it must be done
according to law. It must be for some offense known to the law and not
created by the fancy of the Members of the House. As was very
pertinently remarked by Hopkinson on the trial of Chase, ``The power of
impeachment is with the House of Representatives, but only for
impeachable offenses. They are to proceed against the offense, but not
to create the offense and make any act criminal and impeachable at
their will and pleasure. What is an offense is a question to be decided
by the Constitution and the law, not by the opinion of a single branch
of the legislature; and when the offense thus described by the
Constitution or the law has been committed, then, and not till then,
has the House of Representatives power to impeach the offender.''
A civil officer may be impeached for a high crime. What is a crime?
It is such a violation of some known law as will render the offender
liable to be prosecuted and punished. ``Though all willful violations
of rights come under the generic name of wrongs, only certain of those
made penal are called crimes.'' (Encyc. Brit., vol. xiii, 275.) The
offense must be a violation of the law of the sovereignty which seeks
to punish the offender; for no act is a crime in any sovereignty except
such as is made so by its own law. In England no act is a crime save
such as is so declared either by the written or unwritten law of the
Kingdom, and therefore only crimes by the law of England are indictable
in England. Crimes are defined and punished by law--by the law of the
sovereignty against which the crime is committed--and nothing is a
crime which is not thus defined and punished. ``Municipal law'' (which,
among its multiplicity of offices, defines and punishes crimes) ``is a
rule of action prescribed by the supreme power in a state, commanding
what is right and prohibiting what is wrong.'' (1 Blackstone, 44.)
Nothing is a crime which is not such a breach of this command or
prohibition as carries with it a prescribed penalty. Hence Blackstone
said: ``All laws should be, therefore, made to commence in futuro.''
The citizen must be notified of what acts are crimes, and he can not be
lawfully punished for any others. The reasonableness of this rule was
appreciated, and its enforcement provided for, by the convention which
framed the Constitution of the United States, when they placed in that
instrument the declaration that ``no * * * ex post facto law shall be
passed.'' No act which was not a crime at the time of its commission
can be made so by subsequent legislative or judicial action; and this
doctrine is as binding on the House of Representatives when exercising
its powers of impeachment as when employed in ordinary criminal
legislation.
All that has been said herein concerning the term ``crimes'' may be
applied with equal force to the term ``misdemeanors'' as used in the
Constitution. The latter term in no wise extends the juris-
Sec. 2406
diction of the House of Representatives beyond the range of indictable
offenses. Indeed, the terms ``crime'' and ``misdemeanor'' are, in their
general sense, synonymous, both being such violations of law as expose
the persons committing them to some prescribed punishment; and,
although it can not be claimed that all crimes are misdemeanors, it may
be properly said that all misdemeanors are crimes.
In elaboration of its discussion of misdemeanors as crimes the
minority views quote Blackstone's Commentaries and Hale's Pleas of the
Crown, concluding:
Thus it appears that the terms ``crime'' and ``misdemeanor'' merely
indicate the different degrees of offenses against law--crime marking
the felonious degree, misdemeanor denoting ``all offenses inferior to
felony.'' Both indicate indictable offenses. They are terms of well-
established legal signification. There is nothing uncertain about them.
The framers of the Constitution used these term as terms of art, and we
have no authority for expounding them beyond their true technical
limits.
The views then go on to examine provisions of the Constitution to
show that--
When the Senate is organized * * * as a high court of impeachment, it
is simply a court of special criminal jurisdiction--nothing more,
nothing less. It is bound by the rules which bind other courts. It is
as much restrained by law as any other criminal court. It is not a
tribunal above the law and without rule to guide it.
The views quote Burke, Blackstone, and Woodeson to show that this
view is in accordance with the character of the House of Lords sitting
as a court of impeachment, and continue:
If the Senate sitting as a high court of impeachment is not to be
bound by the laws which bind other courts, why require the Senators to
be put on oath or affirmation? If this court may declare anything a
high crime or misdemeanor which may be presented as such by the House
of Representatives, and pronounce judgment against a civil officer
thereon, why swear the members of the court at all? The oath is not a
solemn mockery. It is prescribed for some good purpose. What is it? The
form of oath adopted by the Senate in Chase's case affords a very
satisfactory answer, and it is, therefore, here quoted, as follows:
``You solemnly swear or offirm, that in all things appertaining to the
trial of the impeachment of ------ ------, you will do impartial
justice according to the Constitution and laws of the United States.''
(Chase's Trial, vol. 1, p. 12.) This oath is very comprehensive. It
covers the charge, the evidence, and all the rules thereof; the
decisions upon all questions arising during the progress of the trial,
and the final judgment. In all these several respects the members of
the court are to be guided by the Constitution and laws of the United
States. They can try upon no charges other than treason, bribery, or
other high crimes and misdemeanors; and the offense charged must be
known to the Constitution, or to the laws of the United States. The
rules of evidence under and in pursuance of which crimes may be proved
upon indictment in the courts of the United States are to be observed.
The judgment ``shall not extend further than a removal from office and
disqualification to hold and enjoy any office of honor, trust, or
profit under the United States.'' The office of the oath is to insure a
strict observance of these requirements of the Constitution and the
laws. This seems clear without further reference to other provisions of
the Constitution; but it is proper that we should look at all of its
clauses bearing upon the question under discussion.
The Constitution having created a court for the trial of
impeachments, prescribed its jurisdiction and placed a limitation on
its power to pronounce judgment, then declares that ``the party
convicted shall nevertheless be liable and subject to indictment,
trial, judgment, and punishment, according to law.'' It would seem
difficult, indeed, to misunderstand this language. A civil officer
convicted on impeachment is, notwithstanding such conviction, still
liable to a prosecution for the same offense in the courts of ordinary
criminal jurisdiction. How can this be if his offense be not an
indictable crime? The court of impeachment can not apply the usual
statutory punishment. It can not go beyond removal from, and
disqualification to hold, office under the United States. The
enforcement of other penalties for the same criminal conduct is left to
the criminal courts of the country, after conviction upon indictment.
Is not this substantially a constitutional direction to the court of
impeachment not to convict a civil officer of any crime or misdemeanor
for which an indictment will not lie? This view of the question was
very forcibly stated by Mr. Martin, in his argument in Chase's case, in
these
Sec. 2406
words: ``The very clause in the Constitution, of itself, shows that it
was intended the persons impeached and removed from office might still
be indicted and punished for the same offense, else the provision would
have been not only nugatory but a reflection on the enlightened body
who framed the Constitution; since no person ever could have dreamed
that a conviction on impeachment and a removal from office, in
consequence, for one offense, could prevent the same person from being
indicted and punished for another and different offense.'' (Chase's
Trial, vol. 2, p. 137.) How can the force of this argument be avoided?
Wherein does it lack the support of sound reason and good sense? But it
does not rest merely upon the clauses of the Constitution above quoted;
others, yet to be noticed, give it much additional strength, and these
will now be examined.
The section of the Constitution securing the trial by jury reads as
follows: ``The trial of all crimes, except in cases of impeachment,
shall be by jury.'' (See. 2, art. 3.) Can it be successfully claimed
that the word ``crimes,'' as here used, is less comprehensive than it
is where it occurs in section 4 of article 2? If not, then the crimes
for which a civil officer may be impeached are the subjects of
indictment or presentment; for such only can be tried by a jury. Any
act which is a crime within the meaning of the last-named section is
also a crime within the intent of the former, although the converse of
this proposition is not true, as it is not every crime which a jury may
try that will render a civil officer committing it liable to
impeachment. For the latter purpose the crime must ``have reference to
public character and official duty.'' (Rawle on the Constitution, 204.)
The plain inference to be drawn from the section is ``that cases of
impeachment are cases of trials for crimes.''
Again, in that part of the Constitution which clothes the President
with the power to grant pardons, it is said, ``He shall have power to
grant reprieves and pardons for offenses against the United States,
except in cases of impeachment.'' (Art. 2, sec. 2.) What is the meaning
of the term ``offenses?'' It can not mean less than such acts as render
offenders liable to punishment, else why is a pardon necessary, or even
desirable? No one needs a pardon who has not committed a crime. A
pardon shields from or relieves of punishment. Punishment follows trial
and conviction. Trial and conviction for crime can be had only for a
violation of an existing law declaring the act done a crime. The term
offenses, then, means crimes, in which, of course, is included
misdemeanors. High crimes and misdemeanors are subject to two
jurisdictions--first, in the ordinary criminal courts of the country;
second, in the high court of impeachment. The same party, for the same
acts, may be on trial in both tribunals at the same time. If convicted
in both cases the President may pardon the criminal and relieve him of
the consequences resulting from a conviction by the first-named
jurisdiction, but the Constitution forbids his interference with the
last. The grant of power and the exceptions are both in the same clause
of the same section, and the fact that they are thus intimately
associated shows that they relate to the same subjects--indictable
offenses.
The views refer in this connection to a fact recorded in the Chase
trial as significant:
Eight articles were preferred against him by the House of
Representatives. It seems to have been admitted that all of the
articles except the fifth charged him with criminal conduct. In regard
to the fifth, his counsel made the point that it did not ``charge in
express terms some criminal intent on the respondent.'' The proof was
as clear upon this point as it was upon the remaining seven. Thirty-
four Senators voted on the several articles, and while the votes on
seven of them ranged from 4 to 19 for conviction, every Senator
answered ``not guilty'' on the fifth. It is fair to conclude, in view
of the proof submitted in proof of the several articles, that the
members of the court approved the position taken by the counsel of
Chase on the trial.
The minority next examine the precedents, denying that either in this
country or in England did they sustain the contention of the majority.
(a) As to precedents in this country.
The views discuss first the Blount case, saying of the charges that
``they were undoubtedly regarded as indictable offenses;'' but the
court did not pass upon them, deciding that Blount was not a civil
officer, and hence not within the jurisdiction of the court.
Sec. 2406
The Pickering case is next discussed, and after setting forth the
charges, the views take up the issue of insanity raised by Judge
Pickering's son, and say:
This issue was a grave and pertinent one, and yet the court, after
deciding to entertain it, and proceeding to its trial, finally disposed
of the case as though no such issue had been raised. This conduct of
the court is both remarkable and discreditable; but not more so than
its final action on the question of the guilt or innocence of the
accused. Pickering was impeached for high crimes and misdemeanors. If
convicted at all, the Constitution required that it should be for high
crimes and misdemeanors, as there were no charges of treason or bribery
in the case. In order that the guilt or innocence of the respondent
should be directly passed upon by the court, without any improper
evasion of its real and legal merits, Senator White moved that the
``following question be put to each Member upon each article of
impeachment, viz, Is John Pickering, district judge of the district of
New Hampshire, guilty of high crimes and misdemeanors upon the charges
contained in the ---- article of impeachment, or not guilty?'' The
mover stated that he had borrowed the form of the question from the one
used in the case of Warren Hastings. The question was fair in form, and
presented the identical issue which the court was about to decide; but
it did not suit the purposes of those who were determined to convict,
and it was rejected by a vote of yeas 10, nays 18. Thereupon Senator
Anderson moved the following form, viz, ``Is John Pickering, district
judge of the district of New Hampshire, guilty as charged in the ----
article of the impeachment exhibited against him by the House of
Representatives?'' This form was adopted by yeas 18, nays 9. (Ibid.,
364.) So the court, after entertaining the plea of insanity and
neglecting to decide it, on the foregoing evasive and unmeaning
question, convicted Pickering on each article, and removed him from
office; but this end was reached by a strict party vote. Senator Dayton
said of the form of the question and the reason of its adoption: ``They
were simply to be allowed to vote whether Judge Pickering was guilty as
charged--that is, guilty of the facts charged in each article--aye or
no. If voted guilty of the facts, the sentence was to follow, without
any previous question whether those facts amounted to a high crime or
misdemeanor. The latent reason of this course was too obvious. There
were members who were disposed to give sentence of removal against this
unhappy judge upon the ground of the facts alleged and proved who could
not, however, conscientiously vote that they amounted to high crimes
and misdemeanors, especially when committed by a man proved at the very
time to be insane, and to have been so ever since, even to the present
moment.'' (Ibid., 365.) If this rule is to be followed, any civil
officer may be impeached, convicted, and removed from office for acts
entirely proper and strictly lawful. Who can wonder that members of the
court denounced the whole proceeding as ``a mere mockery of trial?''
Surely the case reflects no credit on the Senate which tried it, and in
one short year the members of the body seem to have arrived at the same
conclusion; for, on the trial of Judge Chase, the form of the question
adopted to be propounded to each member of the court was as follows,
viz, ``Mr. ----, how say you; is the respondent, Samuel Chase, guilty
or not guilty of a high crime or misdemeanor, as charged in the ----
article of impeachment?'' (Ibid., 2d sess., 8th Cong., 664.) It is to
be hoped that no one will ever quote the Pickering case as an authority
to guide the House in presenting, or the Senate in trying, a case of
impeachment. It decided nothing except that party prejudice can secure
the conviction of an officer impeached in spite of law and evidence.
The case against Judge Chase is next reviewed at length:
The next case carried to the Senate by the House of Representatives
has gone into history as one ``without sufficient foundation in fact or
law.'' (Hildreth's History of the United States, Vol. V, 254.) The case
of Samuel Chase, a judge of the Supreme Court of the United States, is
now referred to. Chase was impeached for high crimes and misdemeanors
in eight articles. It is not necessary to set out the substance of
these articles. One of them was founded on his conduct at the trial of
John Fries for treason, before the circuit court of the United States
at Philadelphia, in April and May, 1800--more than four years before
his impeachment. Five of them were based on his conduct at the trial of
James Thompson Callender ``for printing and publishing, against the
form of the act of Congress, a false, scandalous, and malicious
libel,'' etc., ``against John Adams, then President of the United
States,'' etc. The remaining two rested on his charge to the grand jury
in and for the district of Maryland, in May, 1803, and his refusal to
discharge the grand jury in and for the district of Delaware, in June,
1800. The articles portrayed the conduct of Judge Chase in as offensive
a manner as the committee could command. The bitterness of Randolph
appeared in every article, and the enemies of the accused felt
confident of his conviction.
Sec. 2406
Chase answered minutely and elaborately to the several articles, and
filed against each the following plea, viz: ``And the said Samuel
Chase, for plea to the said article of impeachment, saith that he is
not guilty of any high crime or misdemeanor, as in and by said first
article is alleged; and this he prays may be inquired of by this
honorable court in such manner as law and justice shall seem to them to
require.'' (Ibid., 117.) This was the issue on which the case went to
trial. The result was the acquittal of Chase on each article. This
result was not owing to a failure of the evidence produced to support
the facts alleged; for, so far as at least four of the articles are
concerned, the allegations were supported in almost every particular;
and had the same form of question been used on the conclusion of the
trial as was adopted in the Pickering case, Chase doubtless would have
been convicted. The questions propounded in both cases have already
been quoted, and a mere glance at them will show how Pickering was
convicted and Chase acquitted.
If this case establishes anything, it is that an impeachment can not
be supported by any act which falls short of an indictable crime or
misdemeanor. This point was urged by the able counsel for Chase with
great ability and pertinacity; and the force with which it was
presented drove the managers of the House of Representatives to seek
shelter under that clause of the Constitution which says: ``The judges,
both of the Supreme and inferior courts, shall hold their offices
during good behavior.'' (Manager Nicholson's speech, ibid., 597.) This
provision, respecting the tenure of the judicial office, it was
claimed, would authorize the impeachment of a judge for misbehavior
which would not support an indictment. The court did not approve this
position, and very properly, for as the Constitution provides that
civil officers may be impeached for high crimes or misdemeanors, and
nothing is known to the law as a high crime or misdemeanor which is not
indictable, of course an impeachment for anything else would be
improper.
If the position assumed by the managers in the Chase case, that a
judge may be impeached for mere misbehavior in office not amounting to
an indictable offense, because such conduct is a breach of the tenure
by which the judicial office is held, is correct, what would be its
effect on the case which this committee now have in hand? If resort
must be had to the clause of the Constitution which prescribes the
tenure of the judicial office to justify an impeachment of a judge on
account of conduct not known to the law as a crime, does it not reach
too far to serve the purposes of those who would impeach the President
of the United States because of acts for which he may not be indicted?
The President holds his office by a different tenure. The Constitution
says: ``The executive power shall be vested in a President of the
United States of America. He shall hold his office during the term of
four years.'' (Art. 2, sec. 1.) This provision of the Constitution
stands firmly in the way of those persons who would tone down the term
misdemeanor below the indictable standard by resorting to the clause
fixing the judicial tenure. Judges hold their respective offices during
good behavior; the President holds for a definite time--four years. If,
therefore, the argument proves anything in the former case, it proves
too much for the latter. If a judge may be impeached for nonindictable
conduct, because he holds his office during good behavior, it follows
logically that an officer who holds for a term of years can not be so
impeached. This exposes the fallacy of the entire argument.
The case of Judge Peck is commented on only so far as to record that
the court sustained the respondent's contention that his conduct was
proper, lawful, and right.
As to the case of Judge Humphries, the views say:
Humphries was convicted, as it was right he should be. He was charged
with a crime against the known law of the land; he was a traitor
against the Government of the United States.
(b) As to the English precedents.
At the outset of this branch of the inquiry, the minority say:
Cases can doubtless be found wherein Parliament has exercised this
high power in a most extraordinary manner and convicted persons upon
charges not indictable. The power of Parliament over the subject is far
greater than that which the two Houses of Congress can exercise over
the citizen. * * * In times of high party excitement this power has
been in some cases most shamefully and oppressively exercised.
Sec. 2406
Then follows a review of some of these cases, concluding:
Individual resentment, partisan prejudice and excitement, and desire
for revenge, instigated very many of the English impeachment cases.
This is very well illustrated in the speech of Lord Carnarvon on the
trial of the Earl of Danby--a speech that forms one of the footprints
in the history of parliamentary impeachments which should ever remind
the people of this nation that great caution should be used in the
selection of English precedents. Carnarvon said: ``My lords, I
understand but little of Latin, but a good deal of English, and not a
little of English history, from which I have learned the mischiefs of
such kind of prosecutions as these, and the ill fate of the
prosecutors. I could bring many instances, and those ancient; but, my
lords, I shall go no further than the latter end of Queen Elizabeth's
reign, at which time the Earl of Essex was run down by Sir Walter
Raleigh. My Lord Bacon, he ran down Sir Walter Raleigh, and your
lordships know what became of my Lord Bacon. The Duke of Buckingham, he
ran down my Lord Bacon, and your lordships know what happened to the
Duke of Buckingham. Sir Thomas Wentworth, afterwards Earl of Strafford,
ran down the Duke of Buckingham, and you all know what became of him.
Sir Harry Vane, he ran down the Earl of Strafford, and your lordships
know what became of Sir Harry Vane. Chancellor Hyde (Lord Clarendon)
ran down Sir Harry Vane, and your lordships know what became of the
chancellor. Sir Thomas Osborn, now Earl of Danby, ran down Chancellor
Hyde; but what will come of the Earl of Danby your lordships best can
tell. But let me see that man that dare run the Earl of Danby down, and
we shall soon see what will become of him.'' (11 Howell, S. T., 632,
633.)
Did chance weld the chain which so closely holds these names together
in the history of parliamentary impeachment? Was it not rather the
natural product of misused power? The officer or party who misuses
power may be considered fortunate indeed if the wheel of fortune
returns no retribution.
The minority, then go on to discuss the ``well-considered cases of
parliamentary impeachments,'' those of the Earl of Macclesfield, Warren
Hastings, and of Viscount Melville, and to deduce therefrom support for
the view which they take. In their.opinion these cases should be
followed, and they say:
The idea that the House of Representatives may impeach a civil
officer of the United States for any and every act for which a
parliamentary precedent can be found is too preposterous to be
seriously considered.
The minority views then take up the remaining branch of the question:
If only indictable crimes and misdemeanors are impeachable, by what
law must they be ascertained? Must it be by the law of the United
States, of the States, the common law, or by any or all of these?
In the case of the United States v. Hudson and Goodwin (7 Cranch, 32)
it was held that ``the legislative authority must first make an act a
crime, affix a punishment to it, and declare the court that shall have
jurisdiction of the offense'' before the courts of the United States
can exercise jurisdiction over it. This doctrine was affirmed by the
case of the United States v. Coolidge et al. (1 Wheaton, 415), and
Chief Justice Marshall, in delivering the opinion of the court in Ex
parte Ballman and Swartwout (4 Cranch, 95), said: ``Courts which
originate in the common law possess a jurisdiction which must be
regulated by the common law until some statute shall change their
established principles; but courts which are created by written law,
and whose jurisdiction is defined by written law, can not transcend
that jurisdiction.'' And it was in following these cases that Justice
McLean held, in the United States v. Lancaster (2 McLean's R., 433),
that ``the Federal Government has no jurisdiction of offenses at common
law. Even in civil cases the Federal Government follows the rule of the
common law as adopted by the States, respectively. It can exercise no
criminal jurisdiction which is not given by statute, nor punish any
act, criminally, except as the statute provides.'' The same doctrine is
followed in 1 Wash. C. C. R., 84; 2 Brock, 96; 1 Wood. and Minot, 401;
3 Howard, 103; 12 Peters, 654; 4 Dallas, 10, and note; 1 Kent's Com.,
354; Sedgwick on Statutory and Constitutional Law, 17; and Wharton, in
reviewing this question, says: ``However this may be on the merits, the
line of recent decisions puts it beyond doubt that the Federal courts
will not take jurisdiction over any crimes which have not been placed
directly under their control by act of Congress.'' (Am. Criminal Law,
174.)
Sec. 2406
Are these authorities founded in reason? If they are, why should they
not be followed by the high court of impeachment, as well as other
courts of the United States? The principle on which they proceed is
that nothing is a crime against the United States which has not been
declared so to be by the sovereignty of the Republic; that only the
laws of the United States can be enforced in the courts of the United
States; that the United States do what other civilized and Christian
governments do--enforce their own laws, for such only are rules of
conduct prescribed for their own citizens. This seems to be reasonable;
and if it is so, it would be difficult to find an excuse, or form a
pretext, for not applying it to the tribunal intrusted with the
jurisdiction to try cases of impeachment.
But it is claimed that the high court of impeachment is exempt from
this jurisdictional limitation by the terms of the Constitution itself;
that the Constitution establishes the courts, confers its jurisdiction,
and includes within it common-law crimes, inasmuch as it says: ``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.'' This, it is
said, opens the broad field of the common law for the ascertainment of
offenses for the commission of which civil officers may be impeached;
that the terms treason, bribery, and other high crimes and misdemeanors
are common-law terms, and are to be understood in the sense given them
by the common law; that, as used in the Constitution, their import is
the same as at common law. Is this true to the extent stated? Suppose
the impeachment is to be for treason and some common-law treason is
attempted to be set up, what would be the result? The Constitution
says: ``Treason against the United States shall consist only in levying
war against them or in adhering to their enemies, giving them aid and
comfort.'' This puts an end to all attempts to impeach a civil officer
of the United States for treason at common law. Then the term treason,
as used in the Constitution, although it be a common-law term, is
shoorn of its common-law signification.
But it may be said that the term ``bribery'' is not defined in the
Constitution, and therefore a civil officer may be impeached for
bribery at common law. If this be true, why is it true? Bribery was, at
the time the Constitution was formed, a crime known not only to the
common law, but also to the laws of each of the thirteen States
participating in the organization of the Government of the United
States. It was selected by name because it affected the administration
of the affairs of the Government in all of its departments--executive,
legislative, and judicial--as treason touched the very life of the
nation. Being thus selected by name, recourse may be had to the common
law to ascertain the constituent elements of the crime thus named.
``Courts may properly resort to the common law to aid in giving
construction to words used in the Constitution'' (3 Wheaton, 610; 1
Wood. and Minot, 448); and as the Constitution used the word bribery,
resort can be had to the common law to determine its meaning. Thus, the
framers of the Constitution placed within the jurisdiction of the high
court of impeachment the two crimes which peculiarly affect the life
and well-being of the nation--both being specifically named.
How is it with other offenses? The Constitution says: ``or other high
crimes and misdemeanors.'' What other high crimes and misdemeanors? To
what extent can the common law aid us in answering this question? If we
go to the common law to find what a crime is, we discover that it is
some act or omission in violation of law which may be punished in the
mode prescribed by law. This is the general signification of the term
crime at common law. It is not a naming of a specific offense. If the
Constitution had named murder, arson, burglary, larceny, or any other
crime by its title the common law could have aided us in arriving at
its meaning, for all these, and a multitude of others, are crimes at
common law. After wandering over the entire field of common-law crimes,
how are we to tell those which will support an impeachment? Learned
writers assert that those offenses which may be committed by any
person--such as murder, burglary, robbery, etc.--are not the subjects
of impeachment. (Rawle on the Constitution, 204.) But these are all
crimes, high crimes, and they meet us at every step in our gropings
among the winding passages of the common law engaged in vain endeavors
to determine what the Constitution means by the terms high crimes and
misdemeanors. Can any mode of escape from this perplexity be devised
except that which shall affirm that the phrase ``or other high crimes
and misdemeanors'' means such other high crimes and misdemeanors as may
be declared by the lawmaking power of the United States? It is
unreasonable to conclude that a civil officer can be impeached only for
some crime or misdemeanor named by the Constitution or laws of the
United States? This is the course pursued toward the citizen in private
life. Why should greater uncertainty attend the public officer?
Sec. 2407
It will not do to answer these suggestions by stating hypothetical
cases and affirming that an officer who should do this, that, or
another thing ought to be impeached, and that it would be unsafe for
the nation to permit such conduct to pass unchallenged and unpunished.
The obvious answer to all this is that everything which ought to be
made a crime can be made so by legislation. The power is ample and the
machinery perfect for all such work. If they are not used, the fault
may not lie at the door of the delinquent officer. The statement of a
supposed case of itself proves that a remedy may be provided. The
remedy is to prohibit the doing of the thing supposed, and declaring
its commission a crime. A case can not be stated which will not suggest
its own remedy. Every difficulty may be surmounted by appropriate
legislation; and the question may very well be asked, What right has
the House of Representatives and the Senate of the United States to
sleep on their undisputed legislative powers and then resort to the
common law of England for the punishment of civil officers, when no
civil court of the United States can punish a citizen or foreigner for
any crime from the highest to the lowest degree, except it be first
prescribed by an act of Congress? The decisions of the courts of the
United States that they have jurisdiction of no crimes not found in the
statutes of Congress give great force to the statement of Mr. Rawle in
his work on the Constitution, that ``The doctrine that there is no law
of crimes except that founded in statutes, renders impeachment a
nullity in all cases except the two expressly mentioned in the
Constitution--treason and bribery--until Congress shall pass laws
declaring what shall constitute the other high crimes and
misdemeanors.'' (P. 265.)
Rawle combatted the doctrine of the decisions referred to, and this
it is which gives peculiar force to the language just quoted from him;
for had he accepted the doctrine of the decision in the case of the
United States v. Hudson and Goodwin, it is perfectly evident that he
would have declared the impeaching power inoperative, except so far as
it relates to treason and bribery, until Congress, by legislation,
should give it vitality.
Story also combatted this doctrine and denied the correctness of the
decisions upon which it is based. It was this which gave direction to
those parts of his Commentaries on the Constitution so freely quoted by
those who claim that the power of impeachment is unlimited. He cites
approvingly the works of Rawle above quoted. (Sec. 796.) He affirmed
that the courts of the United States have jurisdiction of common-law
crimes; but the decisions are against him. He states in his
Commentaries on the Constitution that impeachments will lie for
nonindictable offenses; but the authorities which he cites are against
him. He cites Rawle; but it has already appeared how that author
surrenders the entire position. He quotes 2 Woodeson, Lecture 40, but
in this very lecture Woodeson says: ``Impeachments, as we have seen,
are founded and proceed upon the laws in being. A more extraordinary
course is sometimes adopted. New and occasional laws have been passed
for the punishment of offenders. Such ordinances are called bills of
attainder and bills of pains and penalties.'' (2 Woodeson, 620.)
Offenses known to the laws in being are indictable; and the Congress
of the United States may not resort to bills of attainder and bills of
pains and penalties; these are forbidden by the Constitution. But to
what laws must the offenses be known? To the law of the sovereignty
against which they are alleged to have been committed.
Is there any foundation on which to rest a contrary doctrine? May not
the case be stated as a syllogism thus: No officer is subject to the
impeaching power for the commission of an act which is not indictable;
common-law crimes are not indictable in the courts of the United
States; ergo, common-law crimes will not sustain an impeachment by the
House of Representatives of the United States?
The case of the United States v. Hudson and Goodwin was decided by
the Supreme Court of the United States in February, 1812, and its
doctrine has been adhered to from that day to the present time. It is
of some importance to remember this date, as it is subsequent to the
impeachment of Blount, Pickering, and Chase, which may account for the
failure to raise the question in those cases: ``Can a civil officer be
impeached for an offense which is not indictable under the laws and in
the courts of the United States?'' It was not necessary to raise it in
the Peck case, for his defense, as has already been stated, was a
justification of his conduct, while the Humphreys case was founded on
statutory offenses, and no defense was made.
2407. The first attempt to impeach President Johnson, continued.
The first attempt to impeach President Johnson continued over a
recess of the Congress.
Sec. 2407
In the first inquiry the House decided not to impeach President
Johnson.
At the time of the impeachment of President Johnson it was conceded
that he was entitled to exercise the duties of the office until
convicted by the Senate.
Reference to argument of Senator Charles Sumner that President
Johnson should be suspended during impeachment proceedings.
An instance where the power of obstruction by dilatory motions was
used to compel a direct vote on an issue.
On December 6, 1867,\1\ at the next session of Congress, the House
took up for consideration the resolution proposed by the majority of
the committee:
Resolved, That Andrew Johnson, President of the United States, be
impeached of high crimes and misdemeanors.
The debate was confined to two speeches, one by Mr. Boutwell in favor
of the resolution and one by Mr. Wilson against it.\2\ While the
speakers discussed both the law and the facts, Mr. Boutwell laid
greatest stress on the law, as he conceded that--
if the theory of the law submitted by the minority of the committee be
in the judgment of this House a true theory, then the majority have no
case whatever.
It appears also that some question had been raised as to the effect
of impeachment on the duties of the office of President, and Mr.
Boutwell said:
After much deliberation I can not doubt the soundness of the opinion
that the President, even when impeached by this House, is still
entitled to his office until he has been convicted by the Senate.\3\
At the close of his speech, Mr. Wilson moved to lay the resolution on
the table. As the effect of this motion was to prevent debate and also
a direct vote on the issue, dilatory proceedings were begun by those
favoring impeachment and continued until December 7, when Mr. Wilson
withdrew his motion to lay on the table as a compromise step and thus
conceded to the obstructors their demand for a direct vote.
On the question on the resolution, ``Will the House agree thereto?''
there appeared--yeas 57, nays 108.\4\
So the first attempt to impeach the President failed.
Although debate was not permitted generally when the resolution was
under consideration, Members availed themselves of the freedom of
debate in Committee of the Whole House on the state of the Union, and
on December 13 \5\ the subject was discussed at length by several
Members.
-----------------------------------------------------------------------
\1\ Second session Fortieth Congress, Journal, pp. 42, 44-54; Globe,
pp. 61, 65-68.
\2\ See Appendix of Globe, pp. 54, 62.
\3\ Globe, appendix, p. 54. This view was sustained by the event. The
House impeached President Johnson on February 24, 1868, and the trial
ended May 26, 1868. During that time he continued in the ordinary
performance of his duties, as is shown by his communications to the
House. (See House Journal, pp. 480, 515, 572, 655, second session
Fortieth Congress.) On March 5, 1868 (second session Fortieth Congress,
Globe, pp. 1676, 1677), Mr. Charles Sumner, of Massachusetts, in the
Senate, made an interesting and elaborate argument to show that it was
the intention of the framers of the Constitution that the President
should be suspended during impeachment proceedings.
\4\ Journal, p. 53; Globe, p. 68.
\5\ Globe, pp. 172-193.