impeachment by resignation.13 John Quincy Adams said in Congress that an officer could be impeached for an official act at any 13 The principal argument on both sides was on the question whether a Senator was an impeachable civil officer, and there is no doubt that the judgment sustaining the plea was on that ground. But the opinions of the very able counsel on both sides constitute very weighty evidence of the contemporaneous understanding of the Constitution. The two managers, Mr. Bayard and Mr. Harper, and the two counsel for the defendant, Mr. Dallas and Mr. Ingersoll, were among the ablest lawyers of their day. Mr. Bayard said: "It is also alleged in the plea that the party impeached is not now a Senator. It is enough that he was a Senator at the time the articles were preferred. If the impeachment were regular and maintainable when preferred, I apprehend no subsequent event grounded on the willful act, or caused by the delinquency of the party, can vitiate or obstruct the proceeding. Otherwise the party, by resignation or the commission of some offense which merited and occasioned his expulsion, might secure his impunity. This is against one of the sagest maxims of the law, which does not allow a man to derive a benefit from his own wrong.' Mr. Dallas, for the defendant, said: There was room for argument whether an officer could be impeached after he was out of office; not by a voluntary resignation to evade prosecution, but by an adversary expulsion.'" (Blount's Case, Wharton's State Trials, p. 284.) Mr. Ingersoll, for the defendant, said: It is among the less objections of the cause that the defendant is now out of office not by resignation. I certainly shall never contend that an officer may first commit an offense and afterward avoid punishment by resigning his office; but the defendant has been expelled. Can he be removed at one trial and disqualified at another for the same offense? Is it not the form rather than the substance of a trial? Do the Senate come, as Lord Mansfield says a jury ought, like a blank paper, without a previous impression on their minds? Would not error in the first sentence naturally be productive of error in second instance? Is there not reason to apprehend the strong bias of a former decision would be apt to prevent the influence of any new lights brought forward upon a second trial?'" (Blount's Case, Wharton's State Trials, p. 296.) "It seems to me that the consenting opinion of these leaders of the American bar, two of them making a concession against their client, is entitled to great respect. They all agree that the fact that there can be no judgment of removal is not decisive against the maintenance of the proceeding; for that is true whenever the office has been laid down. But the defendant's counsel confine their objection solely to the fact that the removal has been accomplished by another constitutional mode of dealing with the same offense, and one which has disqualified the tribunal itself from proceeding to give judg ment in impeachment. I do not agree with the distinguished gentlemen on the other side as to the statement of a principle of constitutional law made by Jared Ingersoll and Mr. Dallasa concession directly against the interest of their client- because they were conceding that under some circumstances a person could be impeached after he had left an office. time during his subsequent life.14 State senates have sustained articles of impeachment for offenses committed at previous and immediately preceding terms of the same or a similar office.15 It It was for the interest of their client to maintain the general doctrine that under no circumstances a person could be impeached after he had left an office. It was for the interest of their client to maintain the general doctrine that under no circumstances could that be done. One of these distinguished gentlemen says he is not capable, he never will be led by any professional necessity, to argue that a man who lays down his office to avoid the penalty of his crime can so escape, and the others in different language but in substance concurred in the same opinion. They put their argument on the ground that under another constitutional provision the man had been expelled for the same cause from the Senate within a few days. In other words, a constitutional and quasi judicial proceeding had been had which not only exempted the defendant but disqualified the tribunal. One of the gentlemen goes on to argue, How is it possible to have a trial on impeachment before a body that by a two-thirds vote has just determined every question of fact which is involved in the issue?' That was the argument which those counsel submitted to the Senate at that time. Of the soundness of the decision to the Blount case no question, as far as I can remember, has been raised since. That the members of either house of Congress should be impeachable by or before the other, or that an officer whose duties are legislative should be called in question elsewhere for official acts, could never be tolerated and is repugnant to the nature of the office itself." (Manager George Frisbie Hoar in Belknap's Case, pp. 186, 187.) 6 66 14 The manager from Massachusetts cited John Quincy Adams, and coupled the citation with as lofty a eulogy as one man can make upon another. I, of course, do not detract from the merits of that distinguished man. He must have had some attractive qualities, since he was considered by a very large number of his countrymen fit to be set up as a candidate for President against him who was then the foremost man of all this world. But the public history of Mr. Adams shows that he of all men that ever lived was the least reliable upon a question of law. He was too fond of personal controversy to care which side he took. It appears from the citation itself that the general opinion of the House, as expressed by other members, was that the power of impeachment applied only to persons actually in office. Mr. Adams of course opposed what everybody else believed to be true. Nothing, indeed, would have given him greater pleasure than to be impeached. It would have given him an opportunity to come over here, and lay about him right and left. His organ of combativeness always in a state of chronic inflammation. He enjoyed nothing so much as he did the certaminis gaudia - the rapture of the strife. That was the strongest passion of his nature. He tried to provoke a motion for his own expulsion from the House, and that failing, he presented a petition from some outside enemy to expel himself." (Jeremiah S. Black, Counsel for the Defendant in Belknap's Case, p. 218.) was 15 Barnard's Impeachment Trial, vol. i, p. 191. Butler's Impeachment Trial; Hubbell's Impeachment Trial. has been held that after a man has ceased to be a soldier he may be tried by a court-martial for an offense committed while he was subject to the articles and rules of war.16 In the arguments on the other side it was claimed that the provisions for impeachments were penal and must be construed strictly. They deprive the accused of a trial by a jury and of the other safeguards granted to criminals by the Constitution; and he may be put twice into jeopardy for the same offense, since an impeachment is not a bar to a subsequent indictment in a court of common law for the same crime.17 If a private citizen can be successfully impeached one day after his exit from office, he may be impeached at any time during his subsequent life. To authorize such proceedings would place a terrible weapon in the hands of a dominant political party. That no such attempt was made before the case of Belknap, was a sign of the belief that the power did not exist, since party feeling was quite as bitter after the defeat of the Federalists by the Democrats, and the defeat of the Democrats by the Republicans, as at any subsequent time. It has been the repeated practice in the House of Representatives to drop the proceedings when the accused has resigned, pending an investigation as to whether he had committed an impeachable offense. It was held by the New York Assembly, in the cases of Fuller and Cardozo, that after a resignation a public officer could not be "There was good reason for overruling the plea to the jurisdiction in the three cases just mentioned. Each respondent was a civil officer at the time he was impeached, and had been such uninterruptedly since the alleged misdemeanors in office were committed. The fact that the offense occurred in the previous term was immaterial. The object of impeachment is to remove a corrupt or unworthy officer. If the term has expired and he is no longer in office, that object is attained, and the reason for his impeachment no longer exists. But if the offender is still an officer, he is amenable to impeachment, although the acts charged were committed in his pre vious term of the same office." (State v. Hill, Ex-Treasurer, 37 Nebraska, 80.) "The term officer cannot properly be applied to a person who is not at the time in the holding of an office. When a person ceases to hold office, he immediately becomes a private citizen." (Ibid., p. 90.) 16 Lord George Sackville's Case, A. D. 1760, Tytler on Military Law, ch. ii.; In re William Walker, 3 American Jurist, 281. But see Winthrop, Digest of Opinions of Judge Advocate Generals, ed. 1880, p. 209. 17 Ex-Judge Jeremiah S. Black, Counsel for Defendant in Belknap's Case, pp. 226–227. impeached.18 The Supreme Court of Nebraska has held that no one can be impeached after the expiration of his official term.19 "The Constitution declares that when the President is impeached the Chief-Justice shall preside. The question has been propounded repeatedly, and by several Senators, who would preside if an Ex-President was impeached? I will admit that is a puzzle. The puzzle arises out of the absurdity of impeaching an Ex-President. Our friends on the other side are so hampered by their own theory that they are obliged simply to decline answering. There is one answer and only one consistent with their logic, and that is this: That when an Ex-President is impeached an Ex-Chief-Justice ought to preside at the trial." 20 The doubt upon the question and the unsatisfactory result of Belknap's case, make it highly improbable that a similar attempt will be made in the future. § 93. Impeachable Offenses. The provision in the Constitution of the United States concerning impeachable offenses is, that "the President, Vice-President and all civil officers of the United States shall be removed from Office on Impeachment for and Conviction of Treason, Bribery, and other high Crimes and Misdemeanors."1 It has been claimed, as has been shown above, that this clause does not limit the power of impeachment; but that under the previous provision on the subject, the persons liable to impeachment are the same here as in England. It is, however, well settled that the sole impeachable offenses are "Treason, Bribery and other high Crimes and Misdemeanors." Treason has been defined in the Constitution as follows: "Treason against the United States shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort." 18 Cited in Barnard's Trial, vol. i, pp. 158,451. See the Mississippi cases in the Appendix, infra. 19 State v. Hill, Ex-Treasurer, 37 Nebraska, 80; quoted supra, note 15. See Appendix, infra. 20 Ex-Judge Jeremiah S. Black in Belknap's Case, p. 225. § 93. 1 Article II, Section 4. 2 Article I, Section 2. 3 Supra, § 91. 4 Article III, Section 3. See the discussion of the Judicial Power, infra. For the definition of the crime of bribery we must look to the common law. The only difficulty arises in the construction of the term, "other high Crimes and Misdemeanors." As to this four theories have been proposed: That except treason or bribery no offense is impeachable which is not declared by a statute of the United States to be a crime subject to indictment. That no offense is impeachable which is not subject to indictment by such a statute or by the common law. That all offenses are impeachable which were so by that branch of the common law known as the law of Parliament. And that the House and Senate have the discretionary power to remove and stigmatize by perpetual disqualification an officer subject to impeachment for any cause that to them seems fit. The position that, except treason or bribery, no offense is impeachable which is not indictable by law, was maintained by the counsel for the respondents on the trials of Chase 6 and Johnson. Out of abundant caution in this respect certain 5 Story on the Constitution, 5th ed., § 796. See the debate in Barnard's Impeachment Trial, pp. 2059-2075; and the proceedings in Belknap's Impeachment Trial, supra, § 90. The twentieth article of Barnard's Impeachment charged that suitors who had cases then pending in his court had presented $1,000 to his child, and on another occasion had given to him a number of costly chairs of the value of $500 and upwards. The testimony proved the present to the child, but was conflicting as to whether the judge had paid for the chairs. A majority of the New York Court of Impeachment, including all the judges of the Court of Appeals, except Judge Grover, voted not guilty on this article upon the ground that the present to the child was given in such a manner as to create a trust which he had no power to refuse. (Ibid.) 6 Luther Martin's argument in Chase's Impeachment Trial, published by Samuel H. Smith, vol. ii, pp. 137-144. Benjamin R. Curtis, Ex-Justice of the Supreme Court of the United States, counsel for the defendant in Johnson's Impeachment Trial, vol. i, pp. 408-411: "In the front of this inquiry the question presents itself: What are impeachable offences under the Constitution of the United States ? Upon this question learned dissertations have been written and printed. One of them is annexed to the argument of the honorable manager who opened the cause for the prosecution. Another one on the other side of the question, written by one of the honorable managers themselves, may be found annexed to the proceedings in the House of Representatives upon the occasion of the first attempt to impeach the President. And there have been others written and published by learned jurists touching this subject. I do not propose to vex the ear of the Senate with any of the precedents drawn from the middle ages. The framers of our Constitution were quite as familiar with them as the learned authors of these treatises, and the framers of our Constitution, as I conceive, have drawn from them the les |