^ "J ^ ,*> Vtc^k-V"'" P ^ cr ^ v < H*. *\V^ ?*+ y" 7 * ^ ^ -y^% v > ^ c* 5,°^ <$» T D k ^ ^ p <• V* r c ( > : V » ' " ° » 'A IMPEACHMENT. SPEECH HON. GEORGE S. BOUTWELL, OE MASSACHUSETTS, IN THE HOUSE OF REPRESENTATIVES, DECEMBER 5 AND G, 1867. The House having under consideration the follow- ing resolution, reported from the Committee on the Judiciary: Resolved. That Andrew Johnson. President of the United States, be impeached of high crimes and mis- demeanors — Mr. BOUTWELL said: Mr. Speaker: In opening this cause to the House I shall confine myself to a concise pre- sentation of the views which the occasion im- peratively demands at my hands, giving no rein whatever to those efforts and forms of speech which other men in similar circum- stances have freely employed with great pro- priety and power. The gravity of the occasion is unusual : lead- ing us, as it ought, to exercise great care in speech and action, but not inducing us to swerve in any manner from the line of duty. It is one of the incidents of public life that public men are called to take responsibility ; but it is one of the achievements of life to meet and bear successfully such responsibility when tendered by circumstances or events. It is not strange that a sensitive, a conscien- tious public opinion shrinks from a proceeding so solemn in its character, the end of which man cannot foresee. In one scale they place all the present material and political interests of the country and in the other the project for the removal of a President who has fifteen months'only of official life. If this were a full statement of the case, and there were no con- secjiiences of evil likery to follow, I certainly should not hesitate to yield to the suggestion which invites us to leave the President where he is. In the first place, the impeachmentof the President does not involve any neglect of the questions and subjects to which the atten- tion of the country is chiefly directed. In any event Congress will have time to deal with all these questions, and it will deal with them undoubtedly in a manner acceptable to the country. On the other hand, if the conclusion of the majority of the committee be correct, we are charged with a grave duty concerning the country in all its material and political interests during the present Administration, and furnishing an example affecting favorably or unfavorably its fortunes in all future time. The public mind is influenced also by the vast powers and supposed evil character of the President ; and the larger these powers are assumed to be so the more do the people dread a contest with a man whose capacity for wrong- doing even they have learned to respect. There is also a small class, but not an unimportant class, of the community who are attracted by the courage and persistency of the President's course. They have seen him carry on for two years a contest, apparently an unequal contest, with the legislative department of the Gov- ernment in which there has been a two-thirds majority against him ; butsuch has been his suc- cess that it is not strange that they now antici- pate for him a speedy, decisive victory. And even his enemies must admit that he has exhib- ited talents and courage in a bad cause which would have rendered the truth triumphant in every part of the land. Others have received the impression that the suspension of the President would follow his impeachment by this House. It certainly will not be out of place for me in this connection to present the views I entertain on this subject. After much deliberation I cannot 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 ; and I have reached that con- clusion in the presence of many difficulties which in my judgment are incident to the question. I know it may be said that it is an extraor- dinary feature in the Government that the President of the United States, impeached by this House, and arraigned and on trial before the other, should still have command of the Army and the Navy and remain in possession of the vast emoluments, power, and patron- age of office. There are grave difficulties in the way of this view. But if, on the other hand, it be the doctrine that the President of the United States is to be temporarily sus- pended from his office whenever the House of Representatives, by a majority of one, shall choose to prefer articles of impeachment against him, it is perfectly apparent that a mere majority might take out of the hands of the Executive, for any purpose that might seem to it fit, the power which by the people and under the Constitution had been confided to him. It V is worthy of notice, also, that the House having the management of the prosecution might pro- long the trial for the purpose of controlling the Government. Therefore, after careful exam- ination, I reach the conclusion that whatever may be the difficulty in the way of prosecuting the trial while the President remains actually in control of all the powers of the Government, it is a difficulty incident to the question, and a difficulty which we cannot remove. 1 refer briefly to what seemed to me to be the duty of the committee ; and in this con- nection I will also speak of what I understand to be the discretion of this House incident to its great authority under the Constitution, having in its hands the sole power of impeachment. The committee had no discretion. It was called by the order of the House under the Constitu- tion to investigate the conduct of the Presi- dent and to ascertain whether he had committed impeachable offenses. It was the duty of the committee to report its conclusion upon its conscience and best judgment. But in this House the jurisdiction is larger. This House has the sole power of impeachment. Its action i's not subject to revision. Therefore it follows unquestionably that, in the exercise of its best judgment and conscience, it may give heed to the great rule of municipal and public life, that the law takes no notice of trifles. While the committee might feel compelled to bring here as a result of their investigation a con- clusion based upon unimportant but technical violations of the laws of the land, amounting, in their judgment, to crimes and misdemean- ors, it still would be in the power of the House to say that these matters are too unimportant to attract and engross the attention of that great tribunal, the Senate of the United Stales, acting in its highest character as a branch of the Government. I also assume that this House may go still further. It may say, notwithstanding it shall appear from the record and from the evidence that the President is guilty of impeachable offenses of so high a character that under other circumstances it would be compelled to proceed to his trial and conviction, that the evil of attempting to correct them in the manner ap- pointed by the Constitution is greater than submission to the continued evil of his admin- istration. And this statement comprehends, I think, the entire powers of this House. It acts in its judgment upon the evidence first, but upon its conscience in its regard to public policy whether it will proceed or not. I very much doubt, however, the power of this House to censure the President as an independent proposition, though I cannot doubt its power to declare, if it choose so to do, that the President is guilty of impeachable high crimes and misde- meanors, but that upon considerations of public policy it is not for the present wise to prose- cute those charges to trial and final judgment. It was found by the investigation, as has been very fully set forth in the reports submitted to the House by the different branches of the com- mittee, that this inquiry involves the determina- tion of questions of law on which, in my judg- ment, the whole proceeding depends. 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. If, on the other hand, as I believe, the opinion entertained by the majority of the committee be a true view of the law, then I am unable to avoid the conclusion that the President is guilty of high crimes and misde- meanors, subjecting him to impeachment ac- cording lo the authority of the Constitution. I have therefore felt it to be my first duty, if not my chief duty, in the discussion of this matter, to present to the House the view of the law entertained by the majority of the committee as fully, as carefully, but as concisely, as I am able to present it. The attention of the committee was directed almost constantly to the nature and extent of the power of impeachment as it exists under the Constitution of the United States, and to the practice of the British Parliament, from the earliest historical times to the commence- ment of the present century. The experience of Great Britain affords much instruction and something of warning in reference to proceed- ings by impeachment, but it does not furnish precedents which ought to control or in a large degree to influence the House of Representa- tives acting under the Constitution of the United States. There are four provisions of the Constitu- tion relating to impeachment, and I present them together for easier reference, and that the views I entertain may be more readily compared with the law upon the subject: ^"The House of Representatives shall choose their Speaker and other officers: and shall have thesole power of iiiip' i"!niicnt."— .! w. //, wee :;, pur. 5. "The .Senate shall have the sole power to try all impeachments. When sitting for that purpose they shall l> i oath or affirmation, when the President of the 1'niti il States is tried, the Chief Justice shall preside: and no person shall be eouv icted without the concurrence of two thirds of the members pres- ent."— Art II. ■■'■'■. :;, pur. (I. "Judgment in cases of impeachment shall not extend farther than to romoval from office, and dis- qualification to hold and enjoy any office of honor, trust, or profit tinder the United States: but the party convicted shall nevertheless be liableand sub- ject to indictment, trial, judgment, and punishment according: to law." — Art, II, .«"•.."., bar. 7. "The President. Viee President, and all civil offi- cers of the United States, shall bo removed from office on impeachment for, and conviction of, trea- son, bribery, or other high crimes and misdemean- ors." — Art. II, sec. 4. It is apparent from these provisions that the power of impeachment is not vested in the two Houses of Congress for the purpose of punishing criminals, but for the sole purpose of removing from and rendering ineligible to office those persons who by their crimes or misdemeanors may be unfit for a particular public trust, or, in extreme cases, for any public trust whatever. It is true that a judgment by which an officer who is charged with an act tainted with crim- inality is removed from office, and in some cases declared to be disqualified to hold and enjoy any office of honor, trust, or profit under the United States, is in its very nature a severe punishment; but that punishment is an inci- dent of the proceeding and not its object. The object is to secure the country against the presence of the offender in any place of trust or power. If the judgment of the Senate be regarded as punishment, then the seventh para- graph of the third section of the first article of the Constitution, which provides that ' 'the party convicted shall nevertheless be liable and sub- ject to indictment, trial, judgment, and punish- ment according to law," would be wholly inconsistent with the nature of our institutions. This phrase of the Constitution lias been drawn aside, as I think, or rather torn from its legitimate connections and office for the purpose of furnishing a prop to the doctrine that those acts that are indictable, and those alone, are impeachable offenses. The true and different meaning of this phrase is easily discovered. Its office was to change the common law practice of England. By that law a person convicted by the House of Lords upon a proceeding by impeachment could plead that conviction and sentence in .Bar of an indictment in a criminal court for the same offense. The reason of this is also apparent. The judgment of the lords carried a punishment with it entirely distinct from removal from office. Indeed in England re- moval from office was an incident or conse- quence of the proceeding, while its main object, as in ordinary criminal trials, was the punish- ment of the guilty party. Hence, when a man had been convicted and sentenced through the process of impeachment, and was subse- quently arraigned in an ordinary criminal court, he put himself upon the common law maxim, incorporated substantially as an amendment to the Constitution of the United States, in these words : "Nor shall any person be subject for the same offense to be twice put in jeopanly of life or limb." — Art. V of Amendments. The framers of the Constitution foresaw when they limited the sentence in cases of impeach- ment to removal from office and inability to hold office, that persons so convicted and sen- tenced, if afterwards arraigned upon an indict- ment would plead the judgment of the court of impeachment as a bar to the proceeding. Hence they employed affirmative and specific language controlling the English practice. This clause of the Constitution furnishes adequate support to the position I hold that impeach- ment is not in this country, as in England it is, a mode by which crimes are punished. The proceedings, under the Constitution of the United States, for the impeachment of a public officer are essentially and fundamentally different from proceedings in cases of impeach- ment under the system of Great Britain; and this difference impairs materially, if it does not utterly destroy, the value of the English cases as authority in the United States. Under the English system the accused is subjected to trial in the House of Lords by processes anal- ogous to those of an ordinary criminal court, with the singular and apparently unreasonable difference that he may be condemned by the voices of a majority merely of his triers, not less, perhaps, than twelve in number, while in a criminal court the accused cannot be sen- tenced and punishment inflicted unless the jury are unanimous in pronouncing him guilty. Further, under the English system the House of Lords fixes the penalty, which may be death, imprisonment, loss of property, of office, or only the smallest fine in nioney. The accused can have no previous knowledge of the penalty to which his acts have exposed him. By the process of impeachment in Eng- land greater power is exercised by the House of Lords than is or can be exercised by the Senate of the United States and any criminal court, if the authority that each possesses is considered as vested in one body. There are five manifest and important dis- tinctions between the English and American systems in the nature and scope of the pro- ceeding by impeachment: 1. In the United States the object is not the punishment of the offender, but security against his presence as a public officer. 2. In the United States the power of im- peachment is limited to public officers ; while in Great Britain a private citizen may be sub- jected to the proceeding. 3. In the United States the accused cannot be convicted without the concurrence of two thirds of the Senators present, while in Eng- land judgment follows if a majority of the lords present pronounce the accused guilty. 4. In the United States judgment cannot extend further than removal from office and disqualification to hold and enjoy any office of honor, trust, or profit under the United States, while in England the party convicted ma}' be deprived of office, estate, and life at the will of a majority of his judges. 5. In England judges of the courts, singe the time of William III, may be removed by the king upon an address by both houses of Par- liament. This power does not exist under the Constitution of the United States. In view of these manifest and important distinctions between the English and Ameri- can systems the cases furnished by the prac- tice of Great Britain possess but little import- ance as authority in America. It follows naturally and necessarily from the distinctions stated that in this country a pro- ceeding by impeachment is not a criminal pro- ceeding. The absence of the party charged does not delay the trial. He cannot challenge the triers. Whoever is qualified as a Senator is thereby authorized to act as a judge. The Government is not bound to provide counsel or to pay the expenses of witnesses for the accused ; nor can he avail himself of those technical rules relating to the verbiage of the charge established by law and usage in purely criminal proceedings, by whose aid the felon often passes from the dock or the prison and escapes the punishment due to his crimes. An address to the throne would be resorted to in those cases where the matter for which the removal of a public officer is sought is free from color or taint of criminality. This power does not exist under the Constitution of the United States ; and inasmuch as its exercise depends necessarily upon the concurrence and action of the Executive it could not be resorted to for the removal of the Executive. It is unnecessary, and consequently unwise, to anticipate the result should the House and Senate ever be called to consider the case of an imbecile or insane executive or judicial officer. Mr. Johnson is mentally competent for the performance of his official duty, and the only question is whether he has done acts that legally and technically are "high crimes and misdemeanors" in the sense in which those words are used in the Constitution. Recently, in a more formal manner than ever before, the position has been taken that civil offi- cers, including the President and Vice Presi- dent, are not liable to removal by impeach- ment unless proved guilty of acts that are declared to be indictable high crimes or misde- meanors by the written statute laws of the United States. In the presence of the fact that this tech- nical theory of the law is a shield, operating though not designed to protect Mr. Johnson from responsibility for acts which, as I believe, are high crimes and misdemeanors, according to the principles of the English parliamentary common law of crimes, I am led to make a full statement of my views of the constitutional powers of the two Houses of Congress for the removal of civil officers by the process of im- peachment. In entering upon this branch of the subject it is not out of place for me to state that when I speak of the English common law of crimes, or the criminal common law of England, I mean that law as it was administered by Par- liament in cases of impeachment. This law was based upon the municipal criminal law, if it did not in all particulars correspond to it. Inasmuch as the process of impeachment under the English system was a criminal proceeding solely, and in that particular, as already shown, distinguished from the process by impeachment under our system, it natu- rally happened, as in the case of Lord Mel- ville, that the lords declined to proceed when the law judges gave the opinion that the charges did not set forth an indictable offense. It is also true that the principles of the Eng- lish criminal courts in regard to the admission of testimony, the nature of the proof, and the rights of the accused, prevail in courts of im- peachment in this country ; and this rather from the necessity of the case than by virtue of the Constitution or by specific authority of law. This practice shows how generally and thor- oughly woven into our system of jurisprudence is the English common law, and how it is only by violent wrenching of the whole system that we escape from its control. We learn the meaning of the words "pardon," "reprieve," "jury," "bribery," " crime," "cruel a-id un- usual punishments," "good behavior," "fel- ony," "breach of the peace," and even of "impeachment," all words used in the Constitu- tion, by reference to the English common law, and this, by the necessity of the case, sanc- tioned by the authority of the Supreme Court of the United States, and upon the ground that without such reference the Constitution would be inoperative and void ; and yet when we propose to go to the same fountain of wis- dom for the meaning of the words "high crimes and' misdemeanors" we are told that these words are exceptions. When, as is admitted, every other word used in the Constitution and known to the common law is interpreted by the common law, I ask for the authority, the constitutional authority, by which these words are made exceptions to this great rule, incident to our public life, sanc- tioned by the Constitution, and necessary to the existence of the Government? Isitto be found in the fact that these are general words and not specific? The minority of the committee, as I understand them, so assert and maintain. They admit that if following the words " trea- son" and "bribery" were the names of specific crimes, as arson, burglary, and murder, there would then remain no doubt that the com- mission of a crime so specified would consti- tute an impeachable offense. How does the case now differ? It would have been impos- sible to enumerate every crime and misde- meanor in the Constitution, yet those acts which by the English common law were " high crimes and misdemeanors" were perfectly well known. Blackstone in successive chapters has specified and named the acts which were "crimes and misdemeanors' ' under the general head of public wrongs. He has divided them into five principal classes, described the acts that were criminal, and given to each its name. Eirst, crimes against justice, among which are mentioned bribery, perjury, barratry, main- tenance, champerty, and other crimes well known to the common law and the laws of all civilized countries as crimes against justice. Secondly, he enumerates under the head of "crimes and misdemeanors" "crimes agaiust peace," such as riot^s. carrying weapons, chal- lenges, &c. Thirdly, he mentions "crimes against trade," such as smuggling, owling, &c. Fourthly, " crimes against health," such as selling unwholesome provisions. Fifthly, "crimes against the police or the public econ- omy of the State," as bigamy, polygamy, nuis- ances, &c. Can there beany doubt that when our ancestors went to the common law of Eng- land as it was laid down by Blackstone and selected treason and bribery as two great public political crimes, thus indicating the nature of tho crimes which by the Constitution they intended to make impeachable, and drew from Black- stone, or even older authorities than Black- stone, the intelligible and well understood phrase, "other high crimes and misdemean- ors," they intended to include those crimes which were as well known to the common law of England as were the crimes of treason and perjury? Blackstone also divided crimes and misde- meanors into such as are more immediately injurious to God and His holy religion ; such, as violate or transgress the law of nations ; such as especially affect the king ; such as more directly infringe the rights of the public or commonwealth taken in its collective capacity : such as in a peculiar manner affect or injure individuals. Under this last head he mentions "murder," "mayhem," "abduction," "rape," "kidnapping," " false imprisonment." Every lawyer and statesman in England and America understood precisely what offenses were embraced by the phrase "high crimes and misdemeanors." The division and enumeration made by Black- stone* was familiar to every court in England and America, for the English common law prevailed in all the thirteen colonies. More- over, in the last days of royal power in Mas- sachusetts, its House of Representatives, upon the motion of John Adams, had impeached Chief Justice Oliver of "high crimes and mis- demeanors." And yet we are now told that these solemn, majestic, omnipotent words of the common law were used by the lawyers, patriots, and statesmen of America in the most important part of the Constitution without any present meaning, destined to wait, and wait, for Congress to breathe into them the breath of life. Nor can any enumeration in words meet all the cases of misdemeanor in office which would be the subject of impeachment, and Congress, after a struggle with difficulties which "could not be mastered, would fiually flee for refuge and security to some general phrase, and can any be suggested better than the comprehen- sive and well understood language employed by the framers of the Constitution? Again, I say the view of the majority of the committee does not rest, solely upon contem- poraneous history or ancient authorities. The Supreme Court and the admissions of the mi- nority of the committee fully sustain our posi- tion. The word " bribery"' is not defined by the Constitution, and the minority admit what the Supreme Court with the .clearest reason has declared, that for the definition of a com- mon law word used, but not defined in the Constitution, we must refer to the common law and there ascertain its meaning. The chairman goes to the common law for the meaning of the word "bribery." The general and specific meaningofthe words " high crimes and misdemeanors" was as well known to the common law as was the meaning of the word "bribery." The decision of the Supreme Court accepted by the minority of the commit- tee refers us necessarily to the common law for the meaning of the words " high crimes and misdemeanors," and that meaning it must be admitted is not in any degree doubtful. Indeed " bribery," as we have seen from Blackstone's arrangement, is one of the crimes embraced ander the head of crimes against justice in his s classification of crimes and misdemeanors to which we are compelled to go to ascertain the meaning of the word "bribery," and wherein also we cannot avoid seeing the names and learning the nature of the other offenses in- cluded under the general phrase "high crimes and misdemeanors." In pursuing this branch of inquiry I again refer to the provisions of the Constitution, already quoted, from which several distinct powers are derived: 1. The House of Representatives has "the sole power of impeachment." The word im- peachment was known to the common law of England : and by the authority of the Supreme Court of the United States every common law word or phrase used in the Constitution is to be interpreted and defined by the rules and definitions of the English common law. _ By that law the power of impeachment included inquiry, the presentation of articles of impeachment, and the prosecution of the case before the Senate to final judgment, and all this at the will of the House of Representatives. 2. The Senate has the sole power to try all impeachments, and the sixth paragraph of the third section of the second article makes provis- ion in detail for the organization of the Senate as a special judicial tribunal. 3. The Constitution enumerates the per- sons who may be the subjects of impeachment, to wit : "the President, Vice President, and all civil officers of the United States," and by necessary implication excludes all other per- sons. Thus does the Constitution create a court of impeachment, composed of a body charged with the duty of examination and prosecution, a tribunal to hear and decide with the juris- diction as to persons prescribed and limited, leaving nothing whatever to future legislative discretion and action. 4. The Constitution specifies the acts which render the " President, Vice President, and all civil officers" liable to impeachment, to wit: "treason, bribery, or other high crimes and misdemeanors." The open and remaining questions are: did these words have a specific and understood meaning when the Constitution was made, or did the men who framed it, the conventions and the people who ratified it, leave these words without meaning or force? Is it not certain from the nature of the case, from the provisions adopted, from the language employed, that it was the design of the framers of the Constitution to create a tribunal with all the needful qualities and attributes of a court, including a statement of the extent and limits of its jurisdiction and authority in regard to persons and offenses, leaving nothing to legislative discretion and wisdom? The meaning of the words "treason, bribery, high crimes, misdemeanors," as used in the common law of England and America, was then perfectly understood. The legal and general literature of both countries is replete with evi- dence in support of this statement. Could the framers of the Constitution have used these words without ascribing to them any meaning; and if any meaning was ascribed to* thein what meaning except that ascribed to them wherever the English language was spoken or English laws and customs prevailed? But the view I am maintaining is not dependent upon infer- ence, reason, or contemporaneous history even, 6 for a careful consideration of the clause in question shows that legislative action would prove entirely impotent. Assume that it is not possible to impeach the President or any civil officer for any offense of which he may be guilty, unless such offense shall have been declared previously by a law of the United States to be an indictable high crime or misdemeanor. But will it be assumed further on the one hand that Congress may by law declare an act to be a misdemeanor which, according to the principles of the common law, contains no one element or quality of a crime, and upon the doing of the thing inhibited proceed to impeach and remove the President of the United States from his office? The statement of the proposition furnishes ita own refutation, and all just men must admit that in the presence of the provision of the Con- stitution now under consideration there is no power in Congress available for the purpose of laying a foundation for proceeding by impeach- ment to declare an act a crime which would not be so upon a judicial application of the principles of the English common law. On the other hand, can Congress by law declare that acts which by the common judg- ment of mankind are crimes are relieved from all taint and impurity and that civil officers who may be guilty of those acts are free from responsibility? Can the constitutional powers of a court established under the Con- stitution, and for the highest purposes known to it, be thus annulled by an act of Congress and the court itself rendered utterly incapable of performing its only function, and that func- tion essential to the existence of the Govern- ment? Is it possible in the nature of the case that the Fortieth Congress by law may limit and control the House or Senate of a succeed- ing Congress in the discharge of duties imposed upon them by the Constitution ? Is it not, then, true, if the power to legislate on the subject be admitted, that Congress from the necessity of the case can neither enlarge nor limit the meaning or scope of the words used in the Constitution? liouest and constitutional legislation would present the subject finally as it now appears in the Constitution itself. Those acts, and those only, would be "high crimes" which are so according to the principles of the English par- liamentary common law of crimes ; and those acts would still be " misdemeanors " which are so by virtue of the same principles. Thus, upon an analysis of the subject, are we com- pelled to fall back upon the phraseology and substance of the constitutional provision we are considering ; and most certainly we should be compelled by experience to fall back upon its substance and phraseology if legislative action were undertaken. In continuing the analysis we see yet more clearly how futile and dangerous all attempts to legislate upon this subject will iu the end prove. Treason is one of the offenses for which civil officers are liable to impeachment. This eriine is defined by the Constitution, and will it be contended that it is in the power of Congress to enlarge, limit, or in any degree to qualify the jurisdiction of the Senate when sitting as a court for the trial of the President or other officer charged with that crime? If it be said that the circumstance that this crime is defined in the Constitution has deprived Congress of the power to legislate upon this branch of the subject, and that its authority is therefore limited to " bribery and other high crimes and misdemeanors," it may be stated in answer that the Constitution did not create the crime of treason, but simply limited the definition of the crime to a single offense; while by the common law of England it in- cluded several distinct offenses. It should be observed, however, that by the English law every form of treason was a crime or mis- demeanor, and while by the Constitution of the United States only one of these forms is declared to be treason the other acts still rest in the class of crimes and misdemeanors. Bribery was an offense as well known to and as well defined by the common law of England at the time the Constitution was framed as was the crime of treason. The phrase " high crimes and misdemeanors" had been in use in the courts and in the books of England for centuries. Legislative wisdom is and ever must be in- capable of rendering the meaning of these words more certain than it is when subjected to the principles which lie at the foundation of the English common law. The Constitu- tion makes the President and all civil officers liable to impeachment if guilty of bribery ; is it to be assumed that this power in the Consti- tution was to remain dormant until Congress by law should declare what bribery is, and what acts are acts of bribery ; and also pro- vide that bribery as defined by law shall be an indictable offeuse? If it had happened, for example, that an aspirant for the Presidency at the organization of the Government had bribed a sufficient number of electors to secure his own election and tu defeat the choice of the people, would the country have been compelled to submit to the administration of such a man for four 'years, or would the House of Repre- sentatives and Senate have proceeded under tlie authority conferred by the Constitution to impeach, to try, and remove him from office? And be it remembered that although bribery is named in the Constitution it was not, when the Government was organized in 1?89, an indict- able offense, which the minority of the commit- tee say it must be before it can be impeachable. The Government was in existence from the 4th day of March, 17S'.), to the &0th day of April, 1790, before a crimes act was passed, and dur- ing that time neither treason nor bribery was indictable by law in any court of the United States. Will anybody say in view of this pro- vision of the Constitution that our fathers would have sat silently and submitted to the * administration of a man who was elected by bribery, but whose offense was by no law of the land indictable ? Still further, it is constitutionally impossible for Congress to declare that certain offenses are crimes and misdemeanors everywhere and under all circumstances within the territory of the United States. For example, the power of Congress to provide for the punishment of the crime of murder is limited to the forts and arsenals, to the District of Columbia, and to the Territories of the Union. Upon the the- ory that those offenses only are impeachable which are made crimes by the laws of the Uni- ted States a civil officer might be guilty of mur- der within the jurisdiction of a State where the crime is not and cannot be punishable by any law of Congress, and the House and Senate would have no power to arraign, try, and remove him from office. Practically it would be found impossible to anticipate by specific legislation all cases of misconduct which will occur in the career of criminal men. At the present moment we have no law which declares that it shall be a high crime or misdemeanor for the President to decline to recognize the Congress of the United States, and yet should he deny its lawful and constitutional existence and authority, and thus virtually dissolve the Government, would the House and Senate be impotent and unable to proceed by process of impeachment to secure his removal from office? The theory I am combating is virtually the end of the Government. It offers substan- tially free license to executive and judicial offi- cers. Legislative wisdom has not yet attempted to declare by statutory provisions what acts executive and judicial officers may not law- fully do, but when such wisdom shall have been exercised for a century and exhausted the President of the United States may examine and avoid all statutes of restraint or inhibition, and then fearlessly and successfully usurp power, oppress the people, encourage discord, promote rebelliou, corrupt public officers, humiliate and disgrace the nation by multitudinous acts of wrong, and there will be neither redress nor re- lief. Thetheory thatwe mustlookto the statutes of the United States alone, and that the Presi- dent and other officers, as long as they do not violate the criminal statute laws of the country, may do any act or thing, however detrimental to the public interests, however contrary to the public morals, however heinous in its nature, and still retain their offices, is a theory so at variance with civilization, with the principles of law, and with the existence of the Govern- ment, that it ought not to receive our support or countenance unless the language of the Constitution imperatively requires us to yield to its authority. The history of the Government shows con- clusively that this theory was not entertained by its founders. The men who framed the Constitution were for a quarter of a century in the Government of the country, and they never took one step or suggested that one step should be taken for the purpose of rendering the power of impeachment of practical value if it be true that no act, however base, danger- ous, or criminal, is a crime or misdemeanor in the contemplation of the Constitution unless it has been previously so declared by an act of Congress and made an indictable offense. The omission upon their part to legislate upon the subject, with the knowledge they had as to the meaning of the Constitution, would have been criminal in character if they entertained the opinion that legislation was necessary in order to render the power of removal by impeach- ment of any practical value for the preserva- tion of the liberties of the country. I now call the attention of the House to the opinion of the Supreme Court given in 1812 touching the jurisdiction of the courts of the United States, in which they held that the courts have no common- law criminal juris- diction, and that such jurisdiction cannot be taken unless authorized by an act of Congress. The opinion was given in a case which was not fully argued, and it was not the unanimous opinion of the court. But I have no occasion to question its soundness. The courts of the United States under the Constitution have no common-law criminal jurisdiction, and for the reason that the Constitution has not conferred it upon them. The Senate of the United States, as I maintain, as a high court of im- peachment, has the power to deprive the Pres- ident or any civil officer of his office who lias been guilty of treason, bribery, or other high crime or misdemeanor, because the Constitu- tion has conferred this power upon the Senate. The Supreme Court in the case referred to held that the law must first make an act a crime, affix a punishment to it, and declare the court that shall have jurisdiction of the offense. All these conditions are satisfied in the provisions of the Constitution by which the Senate is con- stituted a tribunal with the sole power to try impeachments. The officers liable to impeach- ment and the offenses rendering them so liable are distinctly specified. Is it not reasonably certain that if the words "bribery or other high crimes and misdemean- ors' ' were not to be interpreted by the rule of the common law their meaning would have been limited in the Constitution itself, as was done in the case of treason, or that specific authority would have been given to Congress to act on the subject ? The simple addition to the phrase "high crimes aud misdemeanors" of the words "as may by law be prescribed" would have settled the question in favor of the theory which gives to Congress authority to change the powers of the Senate as a court of impeachment according to its own changing opinions. I rest firmly in the conclusion that the phrase "bribery or other high crimes and misdemean- ors" is used in the Constitution in accord- ance with and subject to the rule of reason, which Kes at the foundation of the English common law. This rule is that no person in office shall do an act contra bo?ws mores, con- trary to good morals ; and subjecting the provis- ions of the Constitution concerning impeach- ment to that rule the result is that neither the President, the Vice President, nor any civil offi- cer of the United States can lawfully do any act, either official or otherwise, which in a large, a public sense is contrary to the good morals of 8 the office lie holds. Misconduct in office, mis- behavior in office, misdemeanor in office, are equivalent terms. It follows also that the scope of the rule of the common law is not to be ascertained by reference to cases which have arisen either in Great Britain or in the States of the United States where the English common law of crimes exist, however numer- ous such cases may be. The principle of the English common law furnishes not only the foundation for the cases which have arisen, but for others that may arise and to which the same great principles of law must be applied. This principle has been elucidated by the most eminent writers of England and of this country, and it is especially recognized, applied, and elaborated by one of the great jurists of modern times. 1 refer to Chief Justice Shaw, of the supreme court of Massachusetts. By the Constitution this House may deter- mine the rule of its proceedings, punish its members for disorderly behavior, and with the concurrence of two thirds expel a member. But are we to sit here without authority to pro- tect ourselves until those acts which amount to disorderly behavior are enumerated in the laws of the country or by the rules of the House ? Our security is first in the reason and con- science with which we are individually guided and warned ; and then in the reason and con- science of our judges applied in the light of the principle which lies at the foundation of the com- mon law, municipal, public, and parliamentary. Upon the view of the Constitution which I present and maintain honest public officers are safe in all their rights. In the nature of the case, a civil officer, guided by his conscience and judgment, will do no act which the Senate of the United States upon its conscience and judgment, and by a two-thirds majority of the members present, will pronounce a high crime and misdemeanor. On the* other hand, the theory that I aim to refute seems to me to be fraught with danger to civil officers and with peril to the Government. With this view of the law I turn now to the authorities, and then I shall pass briefly over the precedents which the history of this coun- try furnishes. The great authority upon im- peachment, whose writings are, indeed, the result of all English experience, all English law, and all English learning upon the subject, is that of Wooddeson, who was the first English law writer, as far as I know, who treated the subject of impeachment upon broad, general grounds of public policy. A part of the extract which 1 now read has been furnished, I believe, in both the majority and minority reports of the committee, but I enlarge the quotation as stating more fully the ground upon which I Btand in the opinions i entertain upon this question. He says : "All the king's subjects are impeachable in Par- liament, but with this distinction: that a peer maybe so accused before his peers of any crime, a commoner (though perbaps it was formerly otherwise) can now be charged with misdemeanors only, not witn any capital offense. For when Fitzharris, in the year 16S1, was impeached of high treason, the lords remitted the prosecution to the inferior court, though it greatly exasperated the accusers. Such kind of misdeed?, however, aspeeuliarly injure the Commonwealth by the abuse of high offices of trust are the most proper and have been the most usual ground for this kind of prosecution. "Thus, if a lord chancellor be guilty of bribery or of acting grossly contrary to the duty of his office, if the judges mislead their sovereign by unconstitutional opinions, if any other magistrate attempt to subvert tho fundamental laws or introduce arbitrary power, these have been deemed cases adapted to parlia- mentary inquiry and decision. "So where a lord chancel lor has been thought to have put the seal to an ignominious treaty, a lord admiral to neglect the safeguard of t tie sea, an embassador t» betray his trust, a privy councilor to propound or support dishonorable measures, or a confidential adviser of his sovereign to obtain exorbitant grants or incompatible employments — these imputations have properly occasioned impeachments; because it is apparent how little the 7 ordinary tribunals are calculated to take cognizance of such offenses, er to investigate and reform the general polity of tho State." — Wooddeson'a Lectures, edition of 17'J2, Dub- lin, vol. 2, lecture 40. In accordance with this learned and clear opinion of. the great commentator upon the English law are the authorities on this side of the Atlantic, beginning with Hamilton, who in the sixty-fifth number of the Federalist says, speaking of the power of the Senate in the matter of impeachment: "The subjects of its jurisdiction are those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust."— Federalist, No. 05. Nathan Dane, in his Digest of American Law, says: "Judge Chase in his defense under the first articlo of impeachment contended that no civil officer of the United States can be impeached except for some offense tor which ho may be indicted at law; and that no evidence can be received oh an impeachment except such as on an indictment at law for the same offense would bo admissible. This ground taken by the respondent occupied a large portion of tho argu- ments on both sides; but his counsel did not insist on this groun 1, and most clearly it was not tenable. It was agreed on all hands that ho was charged with misdemeanor in office; that, a misdemeanor in office and misbehavior in office mean the same thing." * * * * * * * * * * * '.'Suppose the President of tho United States were to attempt to influence tho votes of members of Con- gress upon a particular question, and should promise them offices, he would bo impeachable clearly, but surely not indictable." • * * * * "Now, what is good behavior in office is certainly a very general and indefinite question, not defined by statute, Constitution, or adjudged cases, nor can it be in the nature of things; but what is good behavior or not in office must ever essentially depend on tho actions of the officer and circumstances of the par- ticular case, too numerous and various to be reduced within any known in the proper souso of the expres- sion."— Chap. 222, articles 8 and 9. It follows from these authorities that those acts are especially impeachable offenses which affect the welfare or existence of the State, or render the officer unlit for the discharge of his duties. It does not follow that every act which is a crime at law is therefore impeach- able, or that impeachable offenses are indict- able. Chief Justice Story says, in his various para- graphs on this subject : "However much it may fall within the political theories of certain statesmen and jurists to deny tho existence of a Common luw belonging touhd applicable to the nation in ordinary cases, no ouo lias yet been bold enough to nssertttiat tho power of impeachment is limited to offenses positively defined in the stat- ute-book of tho Union as impeachable high crimes and misdenioauors." 9 Again : "It seems to be the settled doctrine of the high Court of impeachment that, though the common law cannot be the foundation of a jurisdiction notgiven by the Constitution or laws, tbat 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 arc breaches of privilege notdclined by posi- tive law, lias been upheld on the same ground; for if the House had no jurisdiction to punish until the acts had been previously ascertained and denned by positive law, it is clear that the process of arrest would be illegal." — Vol. 2, tee. 797. Again lie says: "The offenses to which the power of impeachment has been and is ordinarily applied as a remedy are of a political character. Not but that crimes of a strictly legal character fall within the scope of the power, but that it has a more enlarged operation, anil reaches what are aptly termed political offenses, growing out of personal misconduct, or gross neglect, or usurpation, or habitual disregard of the pub ic interests in the discharge of the duties of political office. These are so various in their character and so indefinable in their actual involutions that it is almost impossible to provide for them by positive law. They must bo examined on very broad and comprehensive principles of policy and duty." — Vol. 2, sec. 764. If this concise and clear paragraph illus- trating the law of impeachment had been written in view of the facts which we are now called to consider, it would not have more clearly set forth in its general language the offenses of which the majority of the commit- tee complain. Again he says : "Congress have unhesitatingly adopted tho con- clusion that no previous statute is necessary to au- thorize an iinpcaehment for any official misconduct." * * * * "In tho few cases of impeachment wh'Hi havehitherto been tried no one of the charges has rested upon statutable misdemeanors." — Sec. 799. That was the opinion of Mr. Justice Story, writing about the year 1830, when the cases of Blount, of Chase, and of Pickering were before him and known to him. He says that, no one of the cases of impeachment which had then been tried rested upon statutable misdemeanors. I here close, Mr. Speaker, the authorities, and tur-n to the cases which the history of this country has furnished for the purpose of sus- taining by a distinct reference thereto the doc- trine which Judge Story maintained, and which is set forth in the report of the majority of the committee. The first case is that of William Blount, a Senator from the State of Tennessee in the Congress of the United States. He was im- peached by the House of Representatives upon the ground that he had excited the Indians of the Southwest against the Government of the United States, or at least to ally themselves through the agency of other persons with for- eign Powers in such a way as to promote a rup- ture with Spain. The charges against him rested entirely, or almost entirely, upon a letter writ- ten by himself and upon the testimony of a person who was in a certain sense his confidant and agent ; but I believe upon a careful exam- ination of the whole of the testimony it amounts to this only, that there was probable cause to believe that he had some purpose to alienate the Indians of the Southwest from the Government of the United States, and indirectly to interfere with the neutrality laws of 1794. But however that may be, whoever reads the charges made by the House of Representatives will be satis- fied that they did not set forth an indictable offense under any law of the United States. What did the House of Representatives do ? It impeached William Blount of high crimes and misdemeanors on the 3d day of J uly, 1797. The Senate, upon the question of law being raised whether a Senator was in such a sense a civil officer as to be liable to the process of impeachment, held that he was not a civil officer, and therefore the case was disposed of upon a point of law. But what did the Senate do? By a vote of twenty-five to one they expelled William Blount from the Senate, and in the resolution of expul- sion it was expressly declared that he had been guilty of a high misdemeanor. Therefore iu the case of William Blount we have the judg- ment of the House of Representatives of 1797 and the judgment of the Senate of 1797 that an offense which, as set forth in the charges preferred by the House, was not an indictable offense, was nevertheless a high misdemeanor. Judge Story, in commenting upon the action ' of the Senate, says: "It may be supposed that the first charge in tho article of impeachment against William Llount was a statutable offense, but on an accurate examination of tho actof 1791 it will be found not to have beonso." The next case is that of Judge Chase, an associate justice of the Supreme Court of the United States, a signer of the Declaration of Independence, a member of the Convention that framed the Constitution of the United States, a learned lawyer, present, making his answer and managing his own cause before the Senate. Upon the eighth article there were nineteen votes in the Senate for conviction and fifteen for acquittal. He had been impeached by the House of Representatives for high crimes and misdemeanors. By a majority of the Sen- ate, but not by the requisite two thirds major- ity, it was declared that under the eighth article he was guilty of high crimes and misdemean- ors. What is set up in the eighth article? If the House will bear with me I think it would be not uninstructive to listen to the concise statement of the grounds on which the House of Representatives, in lSO^proceeded to carry the case of Judge Chase before the Senate of the United States. The eighth article. is in these words : "And whereas mutual respect and confidence be- tween the Government of the United States and those of the individual States, and between the people and those governments, respectively, are highly condu- cive to that public harmony without which there can be no public happiness, yet the s lid Samuel Chase, disregarding the duties and dignity of his judicial character, did, at the circuit court for the district v •*••' \ *+ 'J%& w < a** ,%*** - 1 ' ^ . . . <-v . » • • A V ,\ ^ J* C WERT BOOKBINDING Crantville Pa V, ■,•-- /- .<0 ^-v