The limitation of impeachment to the President and Vice-Pres dent and to civil officers of the United States would, however, seem to be implied in the provision that these persons shall be removed from office on impeachment, and that judgment in cases of impeachment shall not extend further than to removal from office and disqualification to hold office under the United States, and it is now generally agreed that only civil officers may be impeached.

§ 650. Who are Civil Officers.

Military officers are not subject to impeachment. No attempt has ever been made to impeach an officer of the army or of the navy, and, therefore, there have been no pronouncements upon this point. But there has been no question as to this doctrine.

Members of Congress are not officers of the United States, not being commissioned by the President. This point was made at the time of the impeachment of Senator Blount, a resolution to the effect that he was an officer being negatived by a vote of fourteen to eleven.

§ 651. When a Civil Officer May Be Impeached.

By Story it was held that, to be impeachable, the accused must be at the time in office. IIe 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 impeachment. If he was not his offense was still liable to be tried and punished in the ordinary tribunals of justice. And it might be argued, with some force, that it would be a vain exer cise 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." This view, however, has not been accepted, and its reasoning would not seem to be adequate to support it. For, in the first place, it is recognized by the Constitution that the object of impeachment may be not only the removal of the accused from office, but also his disqualification to hold office in the future. In the second place, as will presently appear, impeachment may be based upon other than

2 Commentaries, § 804.

criminal offenses, and, therefore, the argument that the accused may be punished in the ordinary courts of justice has, in those cases, no validity.

When articles of impeachment were brought against Senator Blount his counsel urged, inter alia, that the Senate having already expelled him from that body, he was no longer subject to impeachment. It was not urged, however, that this nonamenability to impeachment would have followed from voluntary resignation. "I shall certainly never contend," declared Mr. Ingersoll, one of his counsel, "that an officer may first commit an offense and afterwards avoid punishment by resigning his office." Inasmuch as the Senate held that a Senator was not, under any circumstance, subject to impeachment, it was not necessary to pass upon the plea based upon his prior expulsion. The impeachment finally failed, not, however, upon the question of guilt, but upon the ground that the Senate was without jurisdiction for the reason that members of Congress are not civil "officers" of the United States.

In the case of the impeachment of Secretary of War Belknap, however, the issue was squarely raised whether a civil officer, in anticipation of impeachment, may escape by resignation from liability to trial by the Senate. By a vote of thirty-seven to twenty-nine, seven not voting, it was held that the jurisdiction of that body had not been ousted by the resignation, and by a later vote it was held that for this decision a two-thirds approving majority was not needed. And it may be noted that, in general, it has been held that the constitutional requirement as to the majority needed for conviction applies only to the final votes upon the question of guilt.

§ 652. For What Offenses Impeachment Will Lie.

The constitutional provision is that impeachment may be had for "treason, bribery, or other high crimes or misdemeanors." The terms "treason" and "bribery" require no definition. Treason is, indeed, defined in the Constitution itself, and the 4 Cf. article by Prof. Thomas in American Political Science Review.

offense of bribery is sufficiently definite and well known. To the term "high crimes and misdemeanors," practice has given a broad meaning that brings within its connotation offenses not penal by federal statute. Professor Thomas, in the article to which reference has been made, points out that in the first four impeachment trials not a single charge rested upon a statute, and the same was true of some at least of the articles in most of the trials.

It would also seem to be established that the offense charged need not be one committed in the discharge of official duties." In short, then, it may be said that impeachment will lie whenever a majority of the House of Representatives are for any reason led to hold that the incumbent of a civil office under the United States is morally unfit for and should no longer remain in his position of public trust.

§ 653. Punishment.

It is constitutionally provided that conviction upon impeachment must result in removal from office. To this may be added disqualification to hold and enjoy in the future any office of honor, trust, or profit under the United States. Where a criminal offense has been committed the party convicted is still "liable and subject to indictment, trial, judgment and punishment according to law."

The power of the President to grant reprieves or to pardon does not extend to cases of impeachment.

§ 654. Effect of Dissolution of Congress.

Whether or not the dissolution of the House preferring the impeachment operates to terminate the charges made has not been determined, the occasion for the determination not having arisen. Reason and analogy with ordinary criminal proceedings and with English practice would seem to answer the question in the negative.

It is scarcely necessary to say that the proceedings and determinations of the Senate when sitting as court of impeachment are not subject to review in any other court.

5 But see the argument of the defense in the Swayne Trial, Sen. Doc. 194, 58th Cong., 2d Sess.

CHAPTER LVII.

THE ELECTION OF THE PRESIDENT AND VICE-PRESIDENT.

§ 655. The Executive Department.

The President and Vice-President are the only federal executive officers for whose selection and functions the Constitution makes direct provision, unless, indeed, one includes the Senate to which is intrusted participation in the executive functions of appointments and approval of treaties. That certain great executive departments should be legislatively established was taken for granted, as shown, for example, in the provision that the President may require the opinion, in writing, of the principal officers in each of the executive departments, upon any subject relating to the duties of their respective offices;" and that the appointment of inferior officers may be by Congress vested in the "Heads of Departments." 1 From time to time these great executive departments, as well as certain "commissions" and other executive bodies not falling within any one of the departments," have been created. The description of the organization and functions of these bodies does not fall within the scope of a treatise on constitutional law. We shall be concerned, however, with the manner in which all these executive agencies are integrated into one great system with the President at its head and with the extent of the directive power which the President may exercise over the civil and military service, and which the higher executive officials may exercise over their subordinates.

66

In the present chapter will be considered the qualification for the Presidency and the Vice-Presidency, and the constitutional provisions governing the selection of persons to fill these offices.

§ 656. Appointment of Presidential Electors; Plenary Powers of the States.

The Constitution provides that "Each State shall appoint, in such manner as the legislature thereof may direct, a number of 1 Art. II, Sec. II, Cl. 1; Art. II, Sec. II, Cl. 2.

electors, equal to the whole number of senators and representatives to which the State may be entitled in the Congress; but no senator or representative, or person holding an office of trust or profit under the United States shall be appointed as elector." 2

It will be observed that the Constitution gives complete power to the States in the selection of presidential electors. The provision is that each State shall appoint, in such manner as the legislature thereof may direct. There is no requirement as to their election by the people. And, so plenary is the power thus given to the States in this respect, they may, if they see fit, as Representative Storrs once said, vest the appointment of electors in "a board of bank directors, a turnpike corporation, or a synagogue." 3

As a matter of fact during the early years under the Constitution in many of the States presidential electors were not elected at all, but appointed by the legislatures, and this practice did not wholly disappear until quite recently. South Carolina practiced legislative appointment until 1860, and Colorado appointed in this manner in 1876. At the present time, in all the States, the electors are chosen by popular ballot on a general ticket. It is, however, within the power of the States to provide for their election by districts, and this was done in Michigan in 1892. The constitutionality of this law was questioned in the Supreme Court of the United States, but was upheld by that tribunal in McPherson v. Blacker.5 ·

In its opinion the court enter into an exhaustive historical review of the debate in the constitutional convention and of the practice of the States since the adoption of the Constitution, and show that the provision that "each State shall appoint" the electors, is to be construed as granting to each commonwealth plenary discretion as to the manner in which, and the agencies through which, these electors are to be selected. "If," declares the opinion," the legislature possesses plenary authority to direct the manner of appointment, and might itself exercise the ap

2 Art. II, Sec. 1.

Quoted by Dougherty, The Electoral System of the United States, p. 21. 4 Finley, The American Executive, 332.

146 U. S. 1; 13 Sup. Ct. Rep. 3; 36 L. ed. 869.