[Hinds' Precedents, Volume 3]
[Chapter 75 - The First Attempts to Impeach the President]
[From the U.S. Government Publishing Office, www.gpo.gov]



   1. Refusal of the House to impeach President Tyler. Section 
   2. First proposition to impeach President Johnson. Section 
   3. Investigation of charges made by a Member. Sections 2400-
   4. Proceedings and report of investigating committee. Section 
   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.


  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 

  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 
  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.
  \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 
  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 

  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:

  \1\ John White, of Kentucky, Speaker.
  \2\ Second session Thirty-ninth Congress, Journal, p. 89; Globe, p. 
  \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 

  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 

  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 
  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 
  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 
  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.
  \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 
  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 

  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.
  \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 
  \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. 
                                                            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 

  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.
  \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.''
  \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 
  \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 

  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
  \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 
  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 
  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 

  ``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 
  Elaborate discussion of meaning of the words ``high crimes and 
  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 
  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 

  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 
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 

  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 
  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, 
  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, 
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 
  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 
  \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.