tial to a conviction, a bare majority may impose the sentence.14 In the Senate of the United States the secretary of that body is usually directed to enter the judgment; and a certified copy thereof is deposited by him in the office of the Secretary of State.15 § 110. Pardons to Impeachments. The Constitution expressly excepts cases of impeachment from those in which the President of the United States has power to grant reprieves and pardons.1 In England, after the conflict in Lord Danby's case, it was provided in the Act of Settlement that the king should have no power to grant a pardon which might be pleaded in an impeachment, but that he might, after conviction, by a pardon relieve the convict from the punishment thereby imposed.2 "The difference is very important, for the pardon is not to be allowed till after judgment; it then comes too late to clear away the consequences of attainder; the blood ceases to be inheritable and cannot be completely restored but by act of Parliament; the king may indeed 14 Barnard's Impeachment Trial, vol. iii, pp. 2184-2193. 15 Senate Rules for Impeachments, XXII. In Holden's Impeachment Trial, pp. 2558-2559, the following judgment was made by the Senate: "The State vs. William W. Holden. "Whereas, the house of representatives of the State of North Carolina did, on the 26th day of December, 1870, exhibit to the Senate articles of impeachment against William W. Holden, governor of North Carolina, and the said Senate, after a full hearing and impartial trial, has, by the votes of two-thirds of the members present, this day determined that the said William W. Holden is guilty as charged in the 3d, 4th, 5th, 6th, 7th and 8th of said articles; "Now, therefore, it is adjudged by the senate of North Carolina sitting as a court of impeachment, at their chamber, in the city of Raleigh, that the said William W. Holden be re moved from the office of governor and be disqualified to hold any office of honor, trust or profit under the State of North Carolina. "It is further ordered, that a copy of this judgment be enrolled and certified by the chief justice as presiding officer, and the principal clerk of the senate, and that such certified copy be deposited in the office of the secretary of state." In Cox' Impeachment Trial, pp. 2985–2989, the judgment recited at length the articles on which the respondent had been convicted. It has been said that a court of common law upon the trial of an indictment is not bound by the rulings on an impeachment for the same offense. State v. Town Council (R. I.), 27 Atl. Rep., 599, 602. § 110. 1 Article II, Section 2. 2 Howell's State Trials, vol. xi, pp. 725-804; 13 W. III, ch. 2; Hallam's Constitutional History, Widdleton's ed., vol. ii, pp. 392-396. release forfeitures and confer new titles, but cannot revive the family honours in their antient state of precedence." 3 Moreover, as was shown in the case of Strafford, the king would be less likely to face the storm of public opinion after a conviction, at the end of a public trial in which the proof and the enormity of the offenses had been spread abroad, than before, when it might well be claimed that the pardon was granted to protect an innocent party from the expense of a defense against unjust charges. If an officer of the United States cannot resign his office without the consent of the power that appointed him, and the doctrines supported by the minority in Belknap's case be finally upheld, the President may indirectly, by the acceptance of a resignation, accomplish what he cannot do directly by a pardon. The Georgia Constitution of 1798 pardoned all previous convictions on impeachments.5 In England a judgment of conviction upon an impeachment can be reversed by an act of Parliament. Whether such a power exists in Congress remains undecided. 3 Woodeson's Lectures, vol. ii, p. 615. 4 Belknap's Impeachment Trial, supra, §§ 90, 92. Art. IV., Sec. 8. See the proceedings as to the persons impeached by the Good Parliament (Stubbs, Constitutional History, 2d ed., vol. ii, p. 156), and on the bill to reverse Strafford's attainder, which failed to pass (Howell's State Trials, vol. vii, pp. 1571-1576). Attainders upon convictions before juries and on bills of attainder have been often thus reversed; e. g. in Lord Russell's case (Howell's State Trials, vol. ix, p. 695); in Strafford's case (ibid., vol. iii, p. 1525); Bolingbroke's case (ibid., vol. xv, p. 1004); and others, in Hatsell's Precedents, 3d ed., vol. ii, pp. 337-338, vol. iii, pp. 47-48, 62. Dr. Birch says, in his Life of Sir Walter Raleigh: "Mr. Carew Raleigh mentions that on his addressing himself to the Parliament to be restored in blood, King Charles the First sent to him and told him plainly, that on the obligation of 10,0007, he had promised the Earl of Bristol to secure his title to Sherburne Castle, and the estate belonging to it, against the heirs of Sir Walter Raleigh; that now, being King, he was bound to make good his promise, and therefore, unless Mr. Raleigh would quit all his right and title to Sherburne, he neither would nor could pass his Bill of restoration. Whereupon he, Mr. Raleigh, being then twenty years of age, left friendless and fortuneless, was prevailed on, by the promise of a subsistence, to conform to the King's will." The truth of this story is confirmed by the title of the Bill: "An Act for Restitution in Blood of Carew Raleigh, son of Sir Walter Raleigh, late attainted of High Treason; and for confirmation of certain Letters Patent made by our late Sovereign, Lord King James, to John, Earl of Bristol, by the name of John Digby, Knight." (Hatsell's Precedents, 3d ed., vol. iii, p. 62, note.) The Massa § 111. Concluding Observations upon Impeachments. Jefferson, in his disappointment at the acquittal of Chase, termed impeachment the scarecrow of the Constitution.1 A better metaphor is that of Somers, who called it the sword of Goliath, which is kept in the temple and brought out only on great occasions. To a superficial observer the former term may seem appropriate. Yet even that homely object, which we moderns have put in the place formerly occupied by the god Priapus, has its uses. The fear of the disgrace has caused the resignation of many corrupt judges, State and Federal, who shall here be nameless. It has caused many others to observe a certain respect for public decency which, had it not existed, they would have undoubtedly thrown off. It has made at least one President, Andrew Johnson, obey laws which he considered unconstitutional, but which had been passed over his veto, and in some State courts at least has caused judges to respect statutes of doubtful constitutionality which they would otherwise have disregarded. Now that nearly all the State constitutions permit the removal of judges by the votes of two-thirds or less of the members of a legislature, this simpler remedy is usually applied. But no such proceeding by Congress is authorized by the Constitution, and impeachments have proved efficacious in the United States. Although there have been many acquittals where the guilt charged seems to have been flagrant; yet the Federal judiciary has thus been purged in one case of a drunkard,5 and in another of a man who was waging war against the Union while retaining the legal power to free by habeas corpus any of his allies who were arrested for treason or made prisoners of war. In the State senates the convictions of Addison, Davis, Barnard and Cox have been chusetts legislature in 1711 reversed the judgments of conviction for witchcraft. The Rhode Island legislature in 1854, after his pardon, reversed the conviction of Dorr for treason, against the protest of the judiciary of that State. (Opinion of Judges, 3 R. I. Supp., 299. See Burgess, Political Science, vol. ii, p. 337. § 111. 1 Jefferson's Works, 1st ed., vol. vii, p. 192. 2 Howell's State Trials, vol. xv, p. 4 Supra, § 98; infra, Appendix. well needed and salutary examples. Were the power absent, we should have no check to executive or judicial tyranny. The necessity for its existence and for caution in its exercise is one of the strongest arguments in favor of the perpetuation of the Senate.8 8 Woodeson says in his Lectures, vol. ii, pp 369-370: "For the last century and a half, private persons impeached by the Commons have either sunk under the unequal struggle with the guardians of the public purse, or have been only preserved by large fortunes from absolute ruin." Judge Stephen says of parliamentary impeachments: "It is hardly probable that so cumbrous and unsatisfactory a mode of precedure will ever be resorted to again. The full establishment of popular government and the close superintendence and immediate control exercised over all public officers whatever by parliament, make it not only entirely unlikely that the sort of crimes for which men used to be impeached should be committed, but extremely difficult to commit them." (Stephen, History of the Criminal Law, vol. i, p. 160.) |