ment, which is limited to that and goes no further. Inasmuch as the President and Vice-President were not chosen by the people, but by the Electoral College, a provision to prevent their subsequent eligibility to office seemed also expedient. For the removal of an unworthy senator or representative, the power of expulsion was conferred upon their respective houses. It was not intended to allow either house to regulate the membership of the other. Nor did the people intend impeachment as a check upon themselves.20

§ 92. Impeachment after Expiration of Official Term.

A more difficult question is still undecided. Can an officer of the United States be impeached after he is out of office for his acts while in office? The point was thoroughly discussed in the case of William W. Belknap, who was impeached in 1876 for receiving bribes while Secretary of War. On March 1st, 1876, he was informed by the Chairman of the Committee of the House on the expenditures of the War Department, which was then conducting an investigation, that he would be impeached unless he resigned before the meeting of the House at noon on the following day. At about ten o'clock in the morning of March 2d he presented his resignation to President Grant, who accepted it. At eleven o'clock he notified the committee of his resignation. Later in the day the House of Representatives resolved that he be impeached. A majority of the Senate upon his trial overruled his plea to the jurisdiction, and held that he was subject to impeachment. This question was decided by a vote of thirty-seven to twenty-nine. Upon the final vote as to his conviction of the charges, thirty-six senators voted for, and twenty-five against the conviction, and he was consequently acquitted for want of a condemnation by twothirds of the Senate. But three senators voted for his acquittal upon the express ground that the charges were not proven.1 Nearly all the rest assigned as reasons that they believed the Senate had no jurisdiction; that upon the final vote they were judges of both the law and the fact; and that consequently they could not conscientiously vote for his conviction in a case which they thought they had no right to decide.

The arguments in support of the jurisdiction to impeach an officer after he is out of office for his acts while in office were substantially as follows: The grant of the power of impeachment, in the first article of the Constitution,2 is absolute and unlimited by its terms. Consequently, the power of impeachment here is as extensive as in England. The provision in the second article that

§ 92. 1 Senators Oglesby, Patterson, and Wright. Senator Conover gave

no reason for his vote. This case is also described supra, § 90.

2 Article I, Sections 2 and 3.

"The President, Vice-President, and all Civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of Treason, Bribery, or other High Crimes and Misdemeanors," is not a limitation upon the previous provision for impeachment, but merely a direction that in case of the impeachment of the President, Vice-President, or civil officers of the United States, the defendant, on conviction of the offenses named, must be removed from office; whereas, in other cases, the Senate may impose a less penalty than removal from office, such as censure or suspension for a term of years.3

This argument proves too much; since, if the power of impeachment under the Constitution is co-extensive with that in England, private citizens who have never held office may be impeached, as was Sacheverell, and so may senators and representatives. Blount's case and the practical construction since have settled the rule to the contrary.5

The power of impeachment is granted for the public protection in order to not only remove, but perpetually disqualify for office a person who has shown himself dangerous to the commonwealth by his official acts. The object of this salutary constitutional provision would be defeated, could a person by his resignation from office obtain immunity from impeachment. It was said that in the United States, a resignation of a public office, when duly filed or presented, is valid without the acceptance of anyone. If acceptance by the President is necessary to make a resignation take effect, the President would then have the power indirectly to pardon an impeachable offense, which the Constitution expressly withholds from him.7

3 Manager George A. Jenks, in Belknap's Case, pp. 154-155; Manager George Frisbie Hoar, ibid., pp. 192193; and arguments of other managers and opinions of senators who voted for conviction, passim.

4 Howell's State Trials, vol. xv, p. 1. 5 Supra, § 90. That Blount's Case settled that no senator or representative could be impeached, and that no private citizen can be impeached except for an act done under an official capacity, was conceded by the

managers of the House of Representatives in Belknap's case (Manager Scott Lord, Belknap's Case, p. 109; Manager George A. Jenks, Belknap's Case, p. 171; Manager George Frisbie Hoar, Belknap's Case, p. 179).

6 Manager George Frisbie Hoar in Belknap's Case, pp. 195-196; citing Whittemore's Case. See supra, § 71. Contra, Edwards v. U. S., 103 U. S., 471; Mechem on Public Officers, § 414. 7 Article II, Section 2.

If it be conceded that in any case a person can be convicted by the Senate upon an impeachment when out of office, the rule must apply to all. No arbitrary point of time can be selected, before which, by resignation, he can be absolved from the consequences of his high crimes and misdemeanors, and after which he cannot. Consequently, if the view maintained on behalf of the respondent is correct, a public officer may resign his office during an impeachment, after his conviction, at any time before the sentence has been actually pronounced. That would be to render the whole proceedings nugatory and absurd. It cannot be that the Constitution warrants such an absurdity.8

The last part of this argument seems not beyond dispute. There is a wide distinction between an exit from office pending an impeachment and one before. After the jurisdiction of the court has once attached, by the vote of the House of Representatives that an officer be impeached, it may well be claimed that no subsequent act by him or by the President can divest it. That this was so appears to have been the opinion of a number of senators who thought the Senate had no jurisdiction over Belknap.9

The third point of the argument seems the strongest. The language of the Constitution providing that a civil officer of the United States can be impeached, it is true, limits the jurisdiction to the officers named in that section of the Constitution. The jurisdiction granted, however, is over the person who is the officer; and attaches to him for the rest of his life. There is certainly no express provision in the Constitution, nor does its language necessarily imply that when he ceases to be an officer he is relieved from liability to impeachment. If a statute provided that an officer or a director of a national bank should be liable to punishment for an official act, the courts would not dismiss an indictment,

8 See the arguments of the managers and opinions of the senators who voted for conviction in Belknap's case, passim.

9 Senator Conkling in Belknap's Trial, p. 239; Senator Frelinghuysen, ibid., pp. 259-262; Senator Ingalls, ibid., p. 394. See Montgomery Blair, counsel for the respondent, ibid., p. 883. Ex-Senator Matthew H. Carpenter, respondent's counsel, claimed that

in such a case the Senate would lose jurisdiction, ibid., p. 137. Ex-Judge Jeremiah S. Black declined to express an opinion on this point, ibid., p. 216. Cf. In re Walker, 3 Am. Jurist, 281. The Mississippi senate continued the trial of Lieutenant-Governor Davis and pronounced judgment against him notwithstanding his resignation after the proceedings had begun. (See Appendix, infra.)

because found after the official term had expired. That is said to be the natural and practical meaning of the language used by the Constitution. Public policy may well demand the perpetual disqualification from office of a criminal whom it was not possible to impeach during his official term because the evidence to prove his guilt had then not been discovered. In the Federal Convention, there was some discussion as to whether it would not be well to confine impeachments of the President to a time when he was out of office, as was the practice in Virginia.10 This shows that it was the belief of those who drew the Constitution that impeachments might take place at that time. Several State constitutions before and since have provided for impeachment after the expiration of an official term, as well as during the same.11 The failure to provide against impeachment after an official term shows an intention that it should be included. To this it was replied that the failure to include, showed that it was intended to exclude it.12 In Blount's case both the counsel for the defendant conceded that an officer could not relieve himself from the

10 Elliot's Debates, 2d ed., vol. v, p. 840. See Virginia Constitution of 1776. Similar is the Chilian Constitution, Art. 83.

11 Pennsylvania Constitution of 1776, Sec. 22; Delaware Constitution of 1776, Art. 23; Vermont Constitution of 1786, Ch. II, Art. XXI, and Georgia Constitution of 1798, Art. I, Sec. 10.

12 It is argued that if a resignation should be permitted under such circumstances, the people would be defrauded out of their rights to have the offender disqualified. The argument is that, as the party ought to escape, the law does not prevent it. But this does not follow. It might be the common case of a casus omissus. But I contend that it is not a casus omissus, and point to the debates to show that it was never contemplated that any but persons holding office should be impeached, and also to show that, so far from being a fraud upon the jurisdiction of the Senate to

resign pending an impeachment, those debates show that an influential part of the convention was opposed to impeachment altogether, and thought the better way was an appeal to the people by the accused party; and it is, therefore, consistent with the views of all sides in the convention that a way of escape by resignation should be left to an accused officer in order to enable him to have his day when a more auspicious period for a fair and just judgment could be had upon his case, while effecting the only object contemplated, namely, the removal of the officer. No evil or abuse can result from the resignation. It is a purely imaginary ill which can arise from withholding the hand that would disfranchise a citizen and disable him from vindicating himself in a calmer moment." (Montgomery Blair, Counsel for the Defendant in Belknap's Case, pp. 98–99.)