therefore he cannot be disqualified, as it is to argue that because section 3, article 1, names two punishments, we must impose both or neither. These provisions of the Constitution need no such absurd construction. The latter clause was a limitation of the extent of punishment; the former applied the principle that no man shall be punished until he is proved to be guilty, and was inserted to preserve in his hands the power there vested by the people until a competent tribunal had passed upon his guilt or innocence, as well as to declare his unfitness and compel his removal when convicted. These clauses are descriptive when applied to anything else than their plain purpose, and both of them leave the "power of impeachment" precisely as it stood when ingrafted on the Constitution.

The fourth section of article 2 is a limitation upon the power of impeachment so far as to prohibit the removal from office before conviction, but it does not pretend to restrict the authority given to the House and Senate in any other manner. It describes those who shall be punished when convicted, in general terms. "The President, VicePresident and all civil officers, shall be removed," are its words, but the command to remove the President when convicted does not, and even by a forced construction cannot, prohibit the impeachment, and, upon conviction, the disqualification, of one who had been President, for official crime, if the power to do so be given in other words of the instrument. The words here used are not apt, no necessary implication arises from the whole sentence, nor does a general view of all these provisions require or permit us to limit the express grant of the power of impeachment by this section.

We thus reach the conclusion that the words of the Constitution taken in their plain and ordinary meaning contain no restriction of or limitation upon the "power of impeachment" as it existed at the formation of the Constitution and entered into the government thereby created as a positive and valuable authority.

We now proceed to consider the effect that the construction_contended for by the defendant would have upon the power granted and the government created.

It is apparent from what has been already said, as well as from the description of the leading crimes, "treason and bribery," and of the officials to be punished as the highest in the state, "the President and Vice-President," that the objects to be attained by the use of the power granted were the preservation of the integrity and purity of the Government from the temptations that surround those in power and the perpetual banishment from power of those who had betrayed or dishonored it. Official fidelity and official honesty were the ends sought. Forfeiture of official power and denial of the right to enjoy the marks of confidence of their fellows were the penalties which were meted to those crimes that in former times or in despotic governments were avenged by the knout, the bowstring, or the dripping ax of the headsman. But the defendant argues that if the corrupt official or the traitorous embassador do but resign his place before he is impeached, these penalties are useless and the power of disqualification is gone. Such an argument absolutely destroys the power of punishment with disqualification, for the guilty official will always resign to escape the consequences of his crime, and when he has resigned he is beyond the arm of the law. So absurd and fatuitous a result demonstrates the fallacy of the argument.

construction contended for permitted the President, without the consent of the Senate, to remove his traitorous or corrupt officials, and thus to put them beyond the jurisdiction of the Senate, condone their offenses, and negative one of the plainest provisions of the Constitution. It would necessarily follow such a construction that the power of impeachment would be subject to the whim or caprice of both the President and the accused. The former could remove, and thus pardon; the latter could resign, and escape disqualification. Surely such was not the belief of such men as Jared Ingersoll, James Wilson, or Dr. Franklin, who came to the Federal convention with the full knowledge that the constitution of their own State expressly negatived any such construction, and distinctly declared that an official could be impeached after the expiration of his term, and that one impeached could not be pardoned by the Executive.

From the precedents and history of the power itself, from the necessary implication that follows the words which vest the power, from the absence of any limitation in the words of the Constitution upon the power to cite and to judge, and from the absurd and dangerous results that flow from any other construction, I reach the conclusion that General Belknap is amenable to trial by impeachment for acts done as Secretary of War, notwithstanding his resignation of said office, and therefore vote to require him to answer over. The view which I take of the question considered leaves the remaining ones immaterial.

The House of Representatives shall have the sole power of impeachment.
Third-

that purpose, they shall be on oath or affirmation When the President of the
The Senate shall have the sole power to try all impeachments. When sitting for
United States is tried, the Chief Justice shall preside: and no person shall be con-
victed without the concurrence of two-thirds of the members present.
Fourth-

from office, and disqualification to hold and enjoy any office of honor, trust, or profit
Judgment in cases of impeachment shall not extend further than to removal
under the United States; but the party convicted shall nevertheless be liable and
subject to indictment, trial, judgment and punishment, according to law.

The first provision declares 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, &c. This provision car

from office.

The declaration that the President and other civil officers of the United States shall be removed from office upon impeachment and conviction for treason, &c., by necessary implication carries with it the power of impeachment for that purpose. In itself it gives to Congress the power to initiate, try, and execute an impeachment to remove the officers named. The sole purpose for which impeachment is authorized by this provision is to remove persons from office, and it cannot be extended by inference to persons not in office. It does not say that persons may be impeached and removed from office, viction for treason, &c. It mentions impeachment only as the means but that certain officers shall be removed by impeachment and confor removal from office. It does not speak of impeachment with removal from office as an incident, but only as the means by which removal is to be accomplished. It will not be contended that this provision gives the power for impeachment for any purpose but to remove from office, and, if there be any power to impeach a person not in office, it must be sought elsewhere.

It is urged that unless this construction be placed upon the Con-ries with it the power of impeachment for the purpose of removal stitution, impeachments may follow during his whole life any one who has held office and that the passions of political factions will use this weapon to avenge themselves upon their adversaries. It is always safe to trust the people. They will not approve or authorize an unjust or improper use of this power, and the keen sense of parties as to their approval or disapproval will be a sufficient restraint upon those who have power in their attempt to punish for venial offenses those who have lost it. If an officer has been corrupt his crime should follow him. If he has prostituted his high place for gain or betrayed his country, no statute of limitations can be or ought to be interposed for his protection. A rigid rule of official accountability is imperatively demanded in the public service. Proofs of this fact are now abundant, and our highest duty to the state demands the enforcement of every mode of compelling official fidelity. He who owes the Government a debt has no presumption of payment in his favor. The statute of limitations does not run against the state. So he who owes the Government and the people faithful and honest performance of the duties his trust clothes him with, should have no statute or construction for his protection. He takes the office with its grave responsibilities, and only with his life can those responsibiliThe close of his official term does not, and it ought not to shield the political criminal. The Constitution has no limitations for the immunity of any such offenders, but it demands of all its officials purity, honesty, and fidelity, and it is plain enough and strong enough to enforce its demands at all times and upon every class of those who enjoy its high places.

ties be shaken off.

The construction claimed by the defendant's counsel, if tested by the action of those who made the Constitution and administered the Government up to 1867, would also have the effect of utterly ignoring the denial to the President of the power of pardon in cases of impeachment. The first clause of section 2, article 2, expressly denies to the President this right, and yet for nearly eighty years the exercise of the power of removal was the exercise of the pardoning power, and that, too, the most odious and dangerous form of that powera previous pardon. Until the passage of the tenure-of-office act, the 6

The next provision declares

The House of Representatives shall have the sole power of impeachment. This provides simply that the House shall inaugurate and prosecute impeachments. It defines the office of the House in connection with an impeachment as distinguished from the Senate, but does not assume to determine the causes for which, or the persons against whom, an impeachment may be prosecuted.

Impeachment is a proceeding in which both Houses participate, and this designates the part to be performed by the House.

To the argument that this clause not only designates the part which the House is to take in the proceeding by impeachment, but gives to the House general jurisdiction over persons and the subject-matter, it may be answered that the Senate determined just the other way in the Blount case. In that case it was held that the jurisdiction of the House and Senate in impeachment was absolutely limited by the fourth section of the third article to the President, Vice-President, and

This defines the powers and the duties of the Senate in connection with impeachments. As the House has the sole power to prosecute im-victed shall be liable and subject to indictment, trial, judgment, and peachments, this declares the Senate shall have the sole power to try. The use of the word "sole" in each provision shows that the powers and duties of cach House are exclusive of the other, and that this provision simply designates the part which the Senate shall perform in the proceedings of impeachments and regulates its action in such performance. The Senate has the power to try all impeachments which the House has the power to present.

much stronger than in the cases supposed. The right of the House is to retain jurisdiction to satisfy their double demand, to wit, that the officer be removed, and that he also be disqualified. It would be a strange ruling which should hold that when jurisdiction had vested by the proceedings being commenced while the official was in office, it was divested by his complying with only half of the demand of the actor in the proceedings, to wit, "removal from office," while the demand for "disqualification" is entirely unsatisfied and forever defeated, because the Constitution only authorizes a judgment of dis

removal.

the power to try the impeachment. That case is not before us. William W. Belknap had resigned the office of Secretary of War, and his resignation had been duly accepted before the House of Representatives impeached him. The suggestion that, inasmuch as the resignation and the impeachment were made on the same day, the law will not take notice of the fact that the resignation was in point of time prior to the impeachment, because the law ignores fractions of days, is unsound. The law does observe fractions of days, whenever any right depends upon its doing so. The law never causes or suffers a citizen to suffer anything by a fiction. Abundant authority and ex-qualification as an incident to, and as coupled withi, a judgment of amples to sustain this position could be adduced were it necessary. But if the question was whether Belknap could have avoided the jurisdiction of the Senate by resigning his office after he had been impeached by the House, much might be said against such a claim. As that question is not before the Senate, I will give no opinion on it. Were it here, it might be argued thus: It is essential to every investigation that there be some point of time to which the tribunal shall direct its inquiries as to the truth of the facts alleged. That point of time in civil actions is the service of the original process; in criminal proceedings it is the finding of the indictment; and in proceedings for the judgment of impeachment, it is the time of the impeachment by the House. If the action be to eject from lands, the abandoning or vacating the possession of the land after the process is served cannot be pleaded with effect in bar of the suit; but the suit proceeds to a judgment of eviction and for mesne profits and costs as if possession had been retained. If the action is for a nuisance, the judgment is that the nuisance be abated, even although the nuisance was removed immediately after the suit was commenced. If the judgment be for damages for neglecting some duty, such as the execution of an instrument, performance after the suit has been commenced cannot be pleaded with effect as a bar to the action. If the proceeding be by indictment, say against an accessory, the State cannot sustain its charge by proving that defendant, after indictment found, aided the principal to escape. That fact, at most, could only be proven as persuasive evidence of the substantive fact averred in the indictment. In no legal proceeding will any act of the defendant after the suit is commenced, even though it should be the performance of the very thing sought by the suit, be a bar to the action, unless it be accepted by the party who of right is enforcing the duty.

If the jurisdiction of the court depended on the parties, plaintiff and defendant, being residents of different States, the fact that the defendant the day after suit was commenced became a resident of the same State in which the plaintiff resided would not affect the jurisdiction. When the jurisdiction of a Federal court depends on the fact that one of several defendants resides in a different State from that in which the plaintiff resides, the death of that defendant does not oust the court of jurisdiction. When jurisdiction has attached, it continues to the end. Jurisdiction attaches, if at all, under and by reason of the circumstances that exist when the proceedings are commenced, and no subsequent act but such as extinguishes the claim or abates the suit can divest that jurisdiction And a judgment which is in harmony with the facts and conditions which exist at the time the proceedings are commenced cannot be called incongruous. Justice Story, who, as we shall see, holds that an officer cannot be impeached except while he is in office, gives no effect on the question of jurisdiction to his resignation after he is impeached. He says: "If, then, there must be a judgment of removal from office, it would seem to follow that the Constitution contemplated that the party was still in office at the time of the impeachment. (2 Story on the Constitution, § 801.) And by military law, while one who, by reason of his term of enlistment having expired, is entitled to his discharge from the service is not afterward subject to a court-martial, yet if proceedings are commenced against him before he is so entitled to his discharge they continue after his term of enlistment expires. (De Hart's Military Law, page 35.) I do not mean to say, however, that resignation of office or its termination by lapse of time while proceedings are pending may not, either upon a plea of pais darrein continuance or a mere suggestion on the record, be specially recited in the judgment so as to correspond with the facts of the case. This would not interfere with the jurisdiction of the court to pronounce the constitutional judgment of removal and disqualification. Nor do I mean to say that the judgment would relate to the time of impeachment to such an extent as to render void the official acts of the officer while proceedings for impeachment were pending. The actual removal from office is only effected by conviction and judgment.

If the House of Representatives had the right to impeach when they presented their articles and thus commenced proceedings, the act of the respondent or of the President could not be pleaded as a bar to the proceeding. Neither can it be said, if the House had the right to impeach at the time they presented the articles, that it is absurd or incongruous that the judgment of removal from office, which under the Constitution must be pronounced on conviction, should be entered against one who, since the articles were so presented, has resigned the office. The right of the House to that judgment existed, if at all, when the proceedings were properly commenced, and all action of the respond-by resignation it is not necessary to give an opinion, because that is ent subsequent thereto is, in the eye of the law, in this, as in all like cases, ignored. The House stands before the Senate with all the rights that other suitors have before other courts. Every affirmative judgment in civil or criminal proceedings is a mere judicial declaration of the existence of the right of the actor in the suit to be sustained and assured in the claim made when the legal proceedings were commenced. Where, I ask, would be the incongruity of a judgment of the Senate were it customary to make up a judgment-roll which should in substance read thus:

"William W. Belknap having on the 2d of March, 1876, been impeached by the House of Representatives for high crimes, and the Senate having, on the demand of the House, proceeded to try the truth of the several articles of impeachment so presented, the Senate do, on this day of, 1876, adjudge that the said articles are sustained, and do pronounce as their judgment that the said William W. Belknap be removed from office, and that he be perpetually disqualified from holding any office of honor, trust, or profit under the United States."

-

There would be no incongruity between the judgment and the record, even though it appear that between the time the proceedings by the House were commenced and the rendition of the judgment William W. Belknap had resigned his office. He, by the hypothesis, was an officer when impeached by the House. The evidence had extended to that point of time and not beyond it. Was he, then, guilty had been the question throughout, and the judgment of the Senate in sustaining the claim of the House speaks as of the day the proceedings were commenced. Such a judgment would be no more incongruous than that of a court which, having ascertained that a defendant was in possession of lands when the ejectment was commenced, and that the right of possession was then in the plaintiff, pronounced a judgment that the plaintiff recover, notwithstanding the defendant may have pleaded that he had abandoned the possession. Such a judgment would be no more incongruous than a judgment of six cents and costs against a defendant who, having at the time suit was commenced made default in the execution of an instrument it was his duty to have executed, should make it appear that he did execute it the day after process was served.

It might, in fact, be claimed that the argument in favor of the right of the House to retain jurisdiction, notwithstanding a resignation after the impeachment proceedings were commenced, was

But, as before said, on the question whether one who is impeached by the House while in office can divest the jurisdiction of the Senate not before us. It is clear that much is to be said when that case arises. Enough has been said to show that it is very different from the question whether the House can impeach and whether the Senate have jurisdiction over one who at the time of the impeachment had ceased to be a civil officer.

And in determining the true question before us we need not be influenced by the equivocal and undignified position the two branches of the legislative department of the Government would find themselves in if, after the presentation of articles, after a protracted trial, and after deliberate consultation, and when the Senate was just about to pronounce its judgment, the accused could thwart the whole proceedings by a summary resignation. This consideration, presented to our sense of judicial propriety so frequently and with so much address by the managers, does not belong to this case. When the question of the effect of a resignation made after impeachment arises it will be decided.

We have now to do with the effect of a resignation, not after, but before an impeachment by the House.

II. Has the Senate sitting as a court of impeachment jurisdiction to try a citizen whom the House of Representatives claim to have impeached, such impeachment by the House being made when he had ceased to be a civil officer.

The procedure by impeachment was imported into our Constitution from the common parliamentary law of England, but it was placed. there clipped and pruned of very many of its baneful incidents. Impeachment, associated with bills of attainder and of pains and penalties and ex post facto laws, was made in Great Britain an instrument of political persecution and partisan aggrandizement. It was through those agencies that the grossest injustice was perpetrated in the name of law; that men of political power were destroyed; that families of influence were blotted out, and that their estates were confiscated to become a reward to those who persecuted those who owned them. Bills of attainder, which term includes bills of pains and penalties (1 Story on the Constitution, § 1344; Cummings vs. State of Missouri, 4 Wallace 323) were sometimes directed against whole classes of people without naming the individuals. They were sentences pronounced by the legislative instead of the judicial branch of the government. They were often pronounced without evidence, on the surmise or on the clamor, as the old books term it, of the Commons. The investigation, if any, was in the absence of the accused, without his having

counsel, and without any recognition of the rules of evidence. The punishment, which was often the deprivation of estate, of inheritable blood, and of life, was determined by no pre-existing law.

Ex post facto laws imposed punishments for acts which were innocent at the time they were performed,or greatly changed and increased the punishments after the act punished was done. Impeachments extended to other than officers of the government and to acts that no law had declared criminal. And without counsel, witnesses, or jury, a mere majority of the Lords often pronounced the judgment of banishment and often of death against the accused. Justice Miller, in speaking of the manner in which the framers of the Constitution regarded bills of attainder and of pains and penalties and ex post facto laws, says:

It is no cause of wonder that men who had just passed successfully through a desperate struggle in behalf of civil liberty should feel a detestation for legislation of which these are the prominent features. (Ex parte Garland, 4 Wallace, page 388.) And Justice Story, in speaking of the men who framed the Constitution and modified the English procedure by impeachment, says:

History had sufficiently admonished them that the power of impeachment had been thus mischievously and inordinately applied in other ages; and it was not safe to disregard those lessons which it had left for our instruction written not unfrequently in blood. He then refers to cases where the final overthrow and capital execution of the accused was the result of political resentment. (Story on the Constitution, § 784.)

England had no written constitution, and Parliament was omnipotent; and each political party as it rose to power made use of this machinery of attainder, pains and penalties, ex post facto laws, and impeachments to oppress and weaken the rival party. The fathers of our Republic, familiar with the history of England, to escape these atrocities perpetrated in the name of law, determined that this nation should have a written constitution. They determined that the national Legislature should not be omnipotent, but that it should only possess delegated powers, reserving expressly to the States and to the people all other powers. So careful were they on this point that they even provided that the enumeration in the Constitution of the rights which belonged to the people should not be construed to deny or disparage such rights as were not enumerated in the Constitution.

And there are cases where the house had even assumed to convict on impeachment. And it was intended that it should be clearly understood that the Senate alone, in a judicial and not legislative capacity, was to try the charges which the House alone could make.

In England every description of person of both sexes was subject to impeachment. As the object in retaining the procedure in the Constitution was the removal from office, the Constitution restricted impeachment in its exercise to the President, the Vice-President, and all civil officers" of the United States." I say restricted the power to those named, because, as the powers of the Constitution are delegated and limited, they can extend no further than is expressed. Unless the provision of the Constitution which declares that "the House of Representatives shall have the sole power of impeachment" imports into the Constitution the entire power of impeachment as it existed under the common parliamentary law of England, it is certainly true that the fourth section of the second article, providing that the President, VicePresident, 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, has the same significance as if it stated that no one, excepting the President, Vice-President, and all other civil officers of the United States, shall be liable to impeachment. A person who has duly resigned his civil office before any jurisdiction in impeachment has attached is no more a civil officer than he was before he entered upon the office.

The purpose of the framers of the Constitution was specifically to define who should be subject to impeachment, so as, in view of the scope of impeachment in England, to exclude those they intended should not be so subject. Had they intended to subject to impeachment not only those in office but the larger number of those who ever have been, they would have said so. At all events it is true, according to the established rule of construing a penal provision, that it must be so said before we can by any authority hold that an unmentioned class are subject criminally. Persons not in civil office are not civil officers, and so do not come within the descriptio persona of the Constitution.

Nothing can be more incongruous than that a person who is in no office at the time the House impeaches, which is the time to which the judgment must relate, and when the jurisdiction attaches, should be subject to a judgment that he be removed from office.

In harmony with the provision that only persons in office at the time they are impeached are liable to impeachment is the mandatory provision of the Constitution that the President and Vice-PresiAs to these legalized agencies of tyranny, the framers of the Con-dent and all civil officers shall, on impeachment and conviction of the stitution provided, by article 1, section 9, that Congress should not, crimes named, be removed from office. and by section 10, that the States should not, pass any bills of attainder, and this includes bills of pains and penalties. And as those provisions did not reach the judiciary, they provided, by article 3, section 3, that no attainder of treason should work a forfeiture except during the life of the person attainted. As to ex post facto laws, they prohibited their passage both to Congress and to the States. And what did they provide as to the procedure by impeachment? They omitted to abolish or prohibit it, simply because that instrumentality was indispensable to a well-organized government. A President might be convicted of manslaughter, but that would not divest him of the presidential office. The Secretary of the Treasury might be sentenced for the crime of bribery, but he might still remain Secretary of the Treasury. The sentence of a judicial tribunal would not necessarily deprive any civil officer of his office. It was not desirable that the political power of removing from office should be given to the judiciary. Therefore, just as the House and the Senate were by the Constitution possessed with the right by a two-thirds vote to expel any member, so any civil officer, under greater restrictions than those incident to the expulsion of members of Congress, might, on impeachment, by a two-thirds vote of the Senate, be removed from office. It is clear that but for this necessity the procedure by impeachment would never have been found in the Constitution.

The framers of the Constitution, however, in placing even the limited powers of impeachment in the Constitution were careful to divest it of its historic powers for oppression and tyranny. Let us be careful not to destroy the guards our fathers placed around this power.

They first provided that the House of Representatives should have the sole power of impeachment. It is provided that the House alone shall have the sole power to impeach, because there are cases where the Commons and the Lords joined in the impeachment and then the Lords tried the articles. (Selden's Judicature of Parliament, page 38.) So gross an outrage on justice as that of making the accuser and the judge identical it was determined to forbid by the provision that the House should have the sole power to impeach. And it is strange indeed that these words, inserted for so plain and salutary a purpose, should have been, as they have been, wrested from their purpose and are claimed to have the effect of importing into the Constitution the whole common parliamentary law of Great Britain relative to impeachment, and that by force of this provision persons not civil officers are subject to impeachment by the House, and that the Senate are to try those whom the House may impesch, and that this impeachment extends to military as well as civil officers, and to the citizen as well as to the officer. If any one considers these words so pregnant with meaning his opinion will probably be reversed as we proceed very briefly to consider the provisions of the Constitution.

In still further harmony with the provision that only those in office can be impeached is the provision that judgment in cases of impeachment shall not extend further than removal from office and disqualification to hold or enjoy any office of honor, trust, or profit under the United States. This provision is introduced in view of the past history of impeachment, where forfeiture, banishment, and death were not unfrequently imposed. The provisions of the Constitution relative to the judgment that may be rendered, taken together, amount to this: The judgment shall be removal from office or removal from office and disqualification.

The judgment of disqualification cannot be severed from that of removal any more than a judge can pronounce as a sentence a less penalty than the minimum prescribed. So both the judgment for removal and the judgment of disqualification require that the person proceeded against be in office when the impeachment is made by the House, to which point of time the judgment relates.

I do not see how the Constitution could more plainly have stated that it intended to circumscribe the ancient procedure by impeachment and intended that under our system it should be restricted to those in office when impeached than by saying in effect, first, that it should be restricted to the President, Vice-President, and all civil officers, (for that is what it does say, inasmuch as those words are found in a constitution of delegated powers,) and by secondly saying that the judgment in impeachment shall be removal from office or removal from office and disqualification.

Again, if impeachment is applicable to those not in office, it must be so applicable as a means of imposing punishment for offenses committed while in office.

But this cannot be so, because the exclusive province of impeachment, as found in our Constitution, is the protection of civil office from vicious men. The judgment must be removal, and, as an incident thereto, may be disqualification. The object of impeachment is in no legal sense punishment. Removal from office and disqualification inflict mortification and suffering; but this is in no true sense punishment; it is rather an incident to than the object of the judgment. The pains thus inflicted are always less severe the more abandoned and vicious is the subject of it, and this is the reverse of the rule upon which punishment is imposed.

The greatest abuse of this procedure in England arose from making punishment the end of impeachment; and hence it is that the Constitution contains the prohibition against any further judgment than removal and disqualification, and, to show that punishment is not the object of the Constitution in that connection, it immediately adds:

They also provided that the Senate should have the sole power to try impeachments. This provision was inserted for a like reason as the former. Bills of attainder and pains and penalties, which were legislative conviction, were the work of both Houses of Parliament. I trial, judgment and punishment, according to law.

But the party convicted shall nevertheless be liable and subject to indictment.

To claim that the object of impeachment is punishment is to claim that the Constitution is inconsistent with itself.

If disqualification is a punishment, it is an infamous punishment; and, if so, the offense for which it is imposed is infamous; for the character of the punishment is always held to classify the crime. But the Constitution provides (article 5) that no person shall be held to answer for an infamous crime unless on a presentation or indictment of a grand jury. Here is no such indictment, and yet there is, in fact, no inconsistency in the Constitution, because this procedure is not to punish crime; it is to protect the civil offices of the nation. It makes other provision for the punishment of crime, so as not to be misun

derstood.

Again, it is contrary to natural justice and to the expressed spirit, if not letter, of the Constitution, and contrary to the common law, that one should be twice punished for the same offense, because the law in each case demands full expiation; but here it is claimed that one is to be punished by the Senate, and then, by the express provision of the Constitution, is to be fully punished in the courts. We impose no punishments; we simply protect the offices of the Republic from bad men. Again, the Constitution provides that in all criminal prosecutions the accused shall have a trial by jury, and shall have such trial in the district where the crime was committed. If the proceeding by impeachment is for punishment, it is for the punishment of a crime, and hence comes within the provision of the Constitution which extends to "all criminal prosecutions," and the accused would be entitled to a jury, which is denied him.

There are two criminals before us convicted on impeachments: one is convicted of a treason that has shaken the pillars of the Republic and decimated the land by death; the other is a poor postmaster, who under temptation has appropriated a few stamps; and we are to impose the punishment, and we sentence each to removal from office and disqualification. The claim that our judgment is in any legal sense punishment seems to me an absurdity.

But if the object of the procedure by impeachment is not punishment, what is it that gives us jurisdiction over one out of office? It is not to remove from office, for that is an impossibility. It is not to pronounce a judgment of disqualification, for that the Constitution tells us only extends to one who is a civil officer, and also tells us that the judgment of disqualification must be coupled with a judgment of removal. We have no more authority to pronounce a separate judgment of disqualification than would a judge have to impose a penalty of only $50 for larceny when the statute said the penalty should be twenty days' imprisonment and $50 fine.

No express provision can be found in the Constitution extending impeachment by the House to those who are not, but have been, civil officers, unless, as before stated, the provision that the House shall have the sole power of impeachment imports the whole English system with all its atrocities into our Government. Not only so, but the express provisions of a Constitution conferring limited powers negative such a claim. If impeachment can be extended to those who have been in office it must be by implication, by inference, and because incident to some power that is conferred and because of its marked propriety.

The Constitution provides

First. Who may impeach, namely, the House only. Second. Who may try, namely, the Senate only. Third. For what impeachment may be presented, namely, for treason, bribery, or other high crimes and misdemeanors. Fourth. What shall be the judgment, namely, removal from office or removal from office and disqualification. Fifth. Who may be impeached, namely, the President, Vice-President, and all civil officers of the United States.

In the light of these express provisions it is strange that any one should claim that the provision that "the House of Representatives shall have the sole power of impeachment" has the effect of importing the entire English system of impeachment, and that consequently one need not be in office to be subject to the proceeding.

We have been referred to a few authorities on this subject. Rawle, in his work on the Constitution, says, "It is obvious that impeachment extends only to those in office or to those who have been;" and this is claimed to be an authority in favor of the right to impeach one who has ceased to be an officer. I do not so understand it. Mr. Rawle directly negatives the idea that the impeachment procedure of Great Britain has any place in our Constitution, by saying it is restricted to those who are or who have been in office. Again, he is stating a limitation, and says in the alternate that it is obvious that the power of impeachment extends "only to those in office or to those who have been." That few will question.

The Blount case has been referred to. It is this: It appears that Blount was a Senator and had been expelled. His counsel pleaded: 1. That senatorship was not an office. 2. That he was no longer a Senator. It was decided that the Senate had not jurisdiction. Will any one claim that, if the common parliamentary law of England had been introduced into our Constitution by its provision that "the House of Representatives shall have the sole power of impeachment," the Senate would not have had jurisdiction over Mr. Blount's case? It would unquestionably have had jurisdiction.

Barnard's case has been referred to. He was in a civil office when impeached; the judgment of removal was the very judgment that was needed; and the fact that his offense was committed during a prior term separated from its then existing term only by an imaginary point of time does not affect the question. There is no provision of the Constitution that I know of that would prevent a civil officer from being impeached while in office for a crime committed before he became such officer.

Kent, in his Commentaries, (volume 1, pages 288 and 289,) treats impeachment simply as a procedure for the removal of civil officers who have been guilty of crime.

The convention that formed the present constitution of New Jersey had submitted to it by its committee provisions relative to impeachment identical with those of the Constitution of the United States. On motion of Chief Justice Hornblower, that convention composed of distinguished jurists extended the liability of civil officers for two years after the expiration of their term, thereby showing that in their opinion the liability to impeachment under the Federal Constitution was only while in office.

Nearly ninety years have passed since the adoption of our Constitution, and it does not appear that the procedure by impeachment has in any State of the Union or under the Federal Government been invoked against any one who was not in office.

Proceedings in impeachment in the States and under the General tinued on the resignation of the accused.

Justice Story, in his Commentaries on the Constitution, gives the most thorough dissertation on the subject of impeachment that is anywhere to be found. There is scarcely an authority that he does not refer to or a view that he does not consider. The question we have before us not having been adjudicated, he expresses himself with his usual deference; but no one can read the eight hundred and first section of the second volume of his Commentaries and doubt that the great jurist was clearly of opinion that one could not be impeached except while in office. He says:

Can any one believe that the framers of the Constitution, with the history of impeachment and its associate legal instrumentalities before their minds, while they were providing against its being used as an instrument of tyranny by carefully restricting the penalty, when they knew it had been used as a means of political oppression-Government have been commenced and have uniformly been disconcan any believe that it was their intention, or, more properly, that it is the true intent of the Constitution, when it does not so declare, that impeachments may be resorted to by the successful political party to disable the party defeated from rallying for another contest; that it was intended to place in the Constitution an instrumentality by means of which a popular leader, who perhaps alone could rally the party out of power, could be destroyed; that it is the intent of the Constitution that when the archives have passed into the custody of political opponents, papers misplaced, lost, or intentionally suppressed, that then one who had been honored by the people, had laid down his office without any charge against him, that then he should be called upon, away from As it is declared in one clause of the Constitution that "judgment in cases of imhis district, without jury, no matter what the lapse of time, to anpeachment shall not extend further than to removal from office and disqualification swer a charge the penalty of which is perpetual infamy? My regard to hold and enjoy any office of honor, trust or profit under the United States," and in for the interests of this nation's future, as well as my sense of justice, another clause that "the President, Vice-President and all civil officers of the United were I at liberty, in the absence of any such provision, to have any bribery, or other high crimes and misdemeanors," it would seem to follow that the States, shall be removed from office on impeachment for, and conviction of, treason, judgment on the subject, would revolt at any such conclusion. Senate were bound on the conviction in all cases to enter a judgment of removal But it may be said that if an officer cannot be impeached after he from office, though it has a discretion as to inflicting the punishment of disqualifiis out of office the guilty officer will defeat the provision of the Con- cation. If, then, there must be a judgment of removal from office, it would seem to stitution by resigning when he finds he is about to be impeached; time of the impeachment. If he was not, his offense was still liable to be tried and follow that the Constitution contemplated that the party was still in office at the that he may then be elected again; and so a vicious officer hold place. punished in the ordinary courts of justice. I answer that if he resigns, removal, the main object of impeach-und in the ordinary courts of justice.

ment, is effected.

He is not likely to be elected again; the interests of the nation are safe with the people and with that public sentiment which they create. But, besides, a remedy for this objection can readily be provided by statute by adding the penalty of disqualification to hold office on any one who shall be convicted of crime while in or which relates to any civil office. We have now such a penalty on our statutes as to some crimes.

The provisions of the Constitution on this subject are very few and plain, and may be thus stated:

And it might be argued with some force that it would be a vain exercise of authority to try a delinquent for an impeachable offense when the most important object for which the remedy was given was no longer necessary or attainable. And although a judgment of disqualification might still be pronounced, the language of the Constitution may create some doubt whether it can be pronounced without being coupled with a removal from office. There is also much force in the remark that an impeachment is a proceeding purely of a political nature. It is not so much designed to punish an offender as to secure the state against gross official misdemeanors. It touches neither his person nor his property, but simply divests him of his political capacity.

My opinion is that the Senate has no jurisdiction to try William W. Belknap.