but not with such clearness as to prevent some uncertainty. Treason and bribery are perfectly well understood. Not so the other high crimes and misdemeanors of the clause. It has been maintained that the impeachment and conviction of a civil officer is constitutional only when he has been guilty of some offense that has been made punishable by some positive law of Congress. This is a very narrow view. A juster one is that such an officer may be impeached for offenses relating to his official conduct that are not defined, and that cannot be defined, in the law at all, since they cannot be anticipated. History sustains this view. Impeachment is an extraordinary remedy for extraordinary evils. Judge Pickering was impeached and found guilty of drunkenness and profanity on the bench, neither of which is prohibited by law; and nearly all the offenses charged against the persons whom the House of Representatives has impeached, were non-indictable offenses. In fact, the great reason for giving the House and Senate jurisdiction in such cases is, that the offenses are official and not covered by the statutes. 257. THE TWO-THIRDS VOTE.-Obviously the votes of all the Senators voting should not, as in the case of a jury, be required to convict; nor should a mere majority be sufficient. The reasons for a two-thirds vote are stated thus cogently by Judge Cooley: "The danger that Senators, chosen as representatives of political parties, will be swayed, consciously or unconsciously, by considerations that should not influence them is much greater on the trial of a political officer from whose removal or retention party advantage might be expected. than on that of a judge. This was forcibly illustrated by the case of President Johnson, in which, with a few exceptions, Senators divided on the question of guilt strictly according to their political affini ties. It would be a calamity of the highest moment if the precedent should be set of the conviction and removal of the President on a partisan vote, and on grounds not sanctioned by the sober sense and mature reflection of the people." 258.-IMPEACHMENT CASES.-There have been seven such cases under the Constitution, six trials and two convictions. (1). William Blount, Senator from Tennessee; 1797, 98; five articles relating to violation of the neutrality laws; no trial. (2). John Pickering, District Judge for New Hampshire; 1803, 1884; four articles charging drunkenness and profanity on the bench, and imprisonment of an attorney for contempt of court; tried, found guilty, removed from office, but not pronounced disqualified to hold office. (3). Samuel Chase, Justice of the Supreme Court; 1804, 1805; eight articles charging arbitrary and oppressive conduct on the bench, and improper criticisms of the National administration; tried and acquitted. (4). James Peck, District Judge for Missouri; 1829, 1830; one article, alleging arbitrary conduct on the bench in punishing an attorney; tried and acquitted. (5). W. W. IIumphreys, District Judge for Tennessee; 1862; seven articles charging disloyalty in a public speech and in accepting a judgship under the Southern Confederacy; tried, convicted, and removed. (6). Andrew Johnson, President of the United States; 1867; eleven articles charging repeated violations of the Tenure of Office Act, and making indecent and unbecoming threats and harangues about Congress, and declaring that the Thirty-ninth Congress was no constitutional Congress; tried and acquitted, votes being had on but three articles. (7). W. W. Belknap, Secretary of War; 1876; five articles charging malfeasance in accepting bribes for appointing and retaining in office a post-trader on the fontier; tried and acquitted. 259. THE BLOUNT AND BELKNAP CASES.-Both of these cases presented a perplexing question. The Senate had expelled Blount 1 Story's Commentaries, 780, NOTE. (4th edition). before the case came on for trial, while Belknap had resigned and President Grant had accepted his resignation immediately on the discovery of his crime. The question was, whether a man no longer an officer was amenable to conviction on impeachment. The Senate declined to try Blount on the ground that he was not a civil officer, but did not pass on the other point. In the other case, the Senate decided, 37 votes to 29, that the accused was still subject to trial, although a private citizen. The final vote stood, guilty 37, not guilty 25. There was no doubt that Belknap had been guilty of the offenses charged, but the minority voted No on the ground that the Senate had no jurisdiction in such a case and that to punish him would be illegal. 260. IMPEACHMENT, IN ENGLAND. The process called impeachment originated in England, where the first case bears the date of 1376. There it is a much more sweeping process than in the United States. Not officers alone, but all subjects of the crown may be impeached. The King, however, is not impeachable; the theory being that the King can do no wrong, and so is not accountable. Punishment may extend to fine, imprisonment, banishment, and even death, as well as to removal from office. The use of this power in many English cases now seems to us severe, and in some even absurd. There has been no case of impeachment in England since 1804,' and arguments have been 1 "Impeachment by the Commons for high crimes and misdemeanors beyond the reach of the law, or which no other authority in the state will prosecute, is a safe-guard of public liberty well worthy of a free country, and of so noble an institution as a free Parliament; but happily in modern times this extraordinary judicature is rarely called into activity. The times in which its exercise was needed were those in which the people were jealous of the Crown; when the Parliament had less control over prerogative; when courts of justice were impure; and when, instead of vindicating the law, the Crown and its officers resisted its execution and screened political offenders from justice; but the limitations of prerogative, the immediate responsibility of the ministers of the Crown to Parliament, the vigilance and activity of that body in scrutinizing the actions of public men, the settled administration of the law, and the direct influence of Parliament over courts of justice, which are at the same time independent of the Crown, have prevented the consummation of those crimes which impeachments were designed to punish. The Crown is entrusted by the constitution with the prosecution of all offences; there are few which the law cannot punish; and if the executive officers of the Crown be negligent or corrupt, they are directly amenable to public opinion, and to the censure of Parliament., -Sir T. E. May: Parliamentary Practice, 733. But in the adduced showing that its exercise is uncalled for. United States, where legislatures have so much less control over executives and courts of law than in England, the case is otherwise. For example, the period following the civil war abounded in impeachments, State and National. Three governors were impeached, and two convicted, while a fourth vacated his office to escape impeachment; a President and a Secretary of War were impeached, and several judges, State and National, were either impeached or driven from the bench to escape impeachment. CHAPTER VI. ELECTIONS OF SENATORS AND REPRESENTATIVES. ARTICLE I. Section 4, Clause 1.-The times, places, and manner of holding elections for Senators and Representatives, shall be prescribed in each State by the legislature thereof; but the Congress may at any time by law make or alter such regulations, except as to the places of choosing Senators. 261. STATE CONTROL.-The grant to the legislatures of power to prescribe the times, places, and manner of holding these elections was a concession to the States. It was made partly to take advantage of the existing machinery for conducting elections, but mainly to avoid arousing State jealousy There was especial propriety in giving the legislatures immediate control of the Senatorial elections, since the Senators represent the States. Then the States could manage the elections of Representatives much more easily than the Nation, and with far more satisfaction to the people. The proposition to deny the States participation in the management of these elections, would have defeated the whole scheme. 262. THE LIMIT OF STATE CONTROL.-Still it would not do in a National system to put these elections in the exclusive control of the States. Mr. Hamilton said in "The Federalist:" "Every government ought to contain in itself the means of its own preservation; while it is perfectly plain that the States, or a majority of them, by failing to make the necessary regulations, or by making improper ones, could break up or prevent the first election of the Houses of Congress.' Hence the pro 1 No. 59. 991 |