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of authority to try a delinquent for an impeachable offence, when the most important object for which the remedy was given was no longer necessary or attainable. And although a judgment of disqualification might still be pronounced, the language of the Constitution may create some doubt whether it can be pronounced without being coupled with a removal from office.1 There is also much force in the remark that an impeachment is a proceeding purely of a political nature. It is not so much designed to punish an offender as to secure the state against gross official misdemeanors. It touches neither his person nor his property, but simply divests him of his political capacity.2
§ 804. The other point is one of more difficulty. In the argument upon Blount's impeachment, it was pressed with great earnestness that there is not a syllable in the Constitution which confines impeachments to official acts, and it is against the plainest dictates of common-sense that such restraint should be imposed upon it. Suppose a judge should countenance or aid insurgents in a meditated conspiracy or insurrection against the government. This is not a judicial act, and yet it ought certainly to be impeachable. He may be called upon to try the very persons whom he has aided. Suppose a judge or other officer to receive a bribe not connected with his judicial office, could he be entitled to any public confidence? Would not these reasons for his removal be just as strong as if it were a case of an official bribe? The argument on the other side was, that the power of impeachment was strictly confined to civil officers of the United States, and this necessarily implied that it must be limited to malconduct in office.4
§ 805. It is not intended to express any opinion in these commentaries as to which is the true exposition of the Constitution on the points above stated. They are brought before the learned
1 See Blount's Trial, 47, 48; Id. 64 to 68 (Philad. 1799); Id. 82.
2 Mr. Bayard. Blount's Trial, 28 (Philad. 1799); Id. 80, 81. 8 Blount's Trial, 39, 40 (Philad. 1799); Id. 80.
✦ Blount's Trial, 46 to 49; Id. 62, 64 to 68 (Philadelphia, 1799). William Blount was expelled from the Senate a few days before this impeachment, (being then a member,) and on that occasion he was, by a resolution of the Senate, [Yeas, 25; Nay, 1,] declared to be "guilty of a high misdemeanor entirely inconsistent with his public trust and duty as a senator." The offence charged was not defined by any statute of the United States. It was for an attempt to seduce an United States Indian interpreter from his duty, and to alienate the affections and confidence of the Indians from the public officers residing among them, &c. Journ. of Senate, 8th July, 1797; Sergeant on Const. Law, ch. 28, p. 286, 287.
reader as matters still sub judice, the final decision of which may be reasonably left to the high tribunal constituting the court of impeachment when the occasion shall arise.
§ 806. This subject may be concluded by a summary statement of the mode of proceeding in the institution and trial of impeachments, as it is of rare occurrence, and not governed by the formalities of the ordinary prosecutions in courts at law.
§ 807. When, then, an officer is known or suspected to be guilty of malversation in office, some member of the House of Representatives usually brings forward a resolution to accuse the party, or for the appointment of a committee to consider and report upon the charges laid against him. The latter is the ordinary course, and the report of the committee usually contains, if adverse to the party, a statement of the charges, and recommends a resolution that he be impeached therefor. If the resolution is adopted by the House, a committee is then appointed to impeach the party at the bar of the Senate, and to state that the articles against him will be exhibited in due time, and made good before the Senate, and to demand that the Senate take order for the appearance of the party to answer to the impeachment.2 This being accordingly done, the Senate signify their willingness to take such order; and articles are then prepared by a committee, under the direction of the House of Representatives, which, when reported to and approved by the House, are then presented in the like manner to the Senate, and a committee of managers are appointed to conduct the impeachment. As soon as the articles are thus presented, the Senate issue a process, summoning the party to appear at a given day before them to answer the articles.4 The process is served by the sergeant-at-arms of the Senate, and due return is made thereof under oath.
§ 808. The articles thus exhibited need not, and indeed do not, pursue the strict form and accuracy of an indictment.5 They are sometimes quite general in the form of the allegations, but al
1 Com. Dig. Parliament, L. 20; 2 Woodeson, Lect. 40, p. 603, 604; Jefferson's Manual, sect. 53.
2 Com. Dig. Parliament, L. 20; 2 Woodeson, Lect. 40, p. 603, 604; Jefferson's Manual, sect. 53.
8 Com. Dig. Parliament, L. 21; Jefferson's Manual, sect. 53.
4 Com. Dig. Parliament, L. 14, 18, 19, 20; Jefferson's Manual, sect. 53.
5 2 Woodeson's Lect. 40, p. 605, 606; Com. Dig. Parliament, L. 21; Foster on Crown Law, 389, 390.
ways contain, or ought to contain, so much certainty as to enable the party to put himself upon the proper defence, and also, in case of an acquittal, to avail himself of it as a bar to another impeachment. Additional articles may be exhibited, perhaps, at any stage of the prosecution.1
§ 809. When the return day of the process for appearance has arrived, the Senate resolve themselves into a court of impeachment, and the senators are at that time, or before, solemnly sworn or affirmed to do impartial justice upon the impeachment, according to the Constitution and laws of the United States. The person impeached is then called to appear and answer the articles. If he does not appear in person or by attorney, his default is recorded, and the Senate may proceed ex parte to the trial of the impeachment. If he does appear in person or by attorney, his appearance is recorded. Counsel for the parties are admitted to appear and to be heard upon an impeachment."
§ 810. When the party appears, he is entitled to be furnished with a copy of the articles of impeachment, and time is allowed him to prepare his answer thereto. The answer, like the articles, is exempted from the necessity of observing great strictness of form. The party may plead that he is not guilty as to part, and make a further defence as to the residue; or he may, in a few words, saving all exceptions, deny the whole charge or charges; 3 or he may plead specially, in justification or excuse of the supposed offences, all the circumstances attendant upon the case. And he is also indulged with the liberty of offering argumentative reasons, as well as facts, against the charges, in support and as part of his answer to repel them. It is usual to give a full and particular answer separately to each article of the accusation.4
§ 811. When the answer is prepared and given in, the next regular proceeding is for the House of Representatives to file a replication to the answer in writing, in substance denying the truth and validity of the defence stated in the answer, and averring the truth and sufficiency of the charges, and the readiness of the House to prove them at such convenient time and place as shall be appointed for that purpose by the Senate.5 A time is then assigned for the
1 Rawle on Const. ch. 22, p. 216.
2 Jefferson's Manual, sect. 53.
8 2 Woodeson, Lect. 40, p. 606, 607; Com. Dig. Parliament, L. 23.
* 2 Woodeson, Lect. 40, p. 607; Jefferson's Manual, sect. 53.
• See 2 Woodeson, Lect. 40, p. 607; Com. Dig. Parliament, L. 24.
trial, and the Senate, at that period or before, adjust the preliminaries and other proceedings proper to be had before and at the trial, by fixed regulations, which are made known to the House of Representatives and to the party accused.1 On the day appointed for the trial, the House of Representatives appear at the bar of the Senate, either in a body or by the managers selected for that purpose, to proceed with the trial.2 Process to compel the attendance of witnesses is previously issued at the request of either party, by order of the Senate, and at the time and place appointed they are bound to appear and give testimony. On the day of trial, the parties being ready, the managers to conduct the prosecution open it on behalf of the House of Representatives, one or more of them delivering an explanatory speech, either of the whole charges or of one or more of them. The proceedings are then conducted substantially as they are upon common judicial trials, as to the admission or rejection of testimony, the examination and crossexamination of witnesses, the rules of evidence, and the legal doctrines as to crimes and misdemeanors. When the whole evidence has been gone through, and parties on each side have been fully heard, the Senate then proceed to the consideration of the case. If any debates arise, they are conducted in secret; if none arise, or after they are ended, a day is assigned for a final public decision by yeas and nays upon each separate charge in the articles of impeachment. When the court is assembled for this purpose, the question is propounded to each member of the Senate by name, by the president of the Senate, in the following manner upon each article, the same being first read by the secretary of the Senate: "Mr., how say you, is the respondent guilty or not guilty of a high crime and misdemeanor, as charged in the article of
impeachment?" Whereupon the member rises in his place, and answers guilty or not guilty, as his opinion is. If upon no article two thirds of the Senate decide that the party is guilty, he is then entitled to an acquittal, and is declared accordingly to be acquitted by the president of the Senate. If he is convicted of all or any of the articles, the Senate then proceed to fix and declare the proper punishment. The pardoning power of the President does not, as
1 See 2 Woodeson, Lect. 40, p. 610.
2 Jefferson's Manual, sect. 53.
8 2 Woodeson, Lect. 611; Jefferson's Manual, sect. 53.
This summary, when no other authority is cited, has been drawn up from the practice, in the cases of impeachment already tried by the Senate of the United States,
will be presently seen, extend to judgments upon impeachment ; and hence, when once pronounced, they become absolute and irreversible.1
§ 812. Having thus gone through the whole subject of impeachments, it only remains to observe that a close survey of the system, unless we are egregiously deceived, will completely demonstrate the wisdom of the arrangements made in every part of it. The jurisdiction to impeach is placed, where it should be, in the possession and power of the immediate representatives of the people. The trial is before a body of great dignity and ability and independence, possessing the requisite knowledge and firmness to act with vigor and to decide with impartiality upon the charges. The persons subjected to the trial are officers of the national government, and the offences are such as may affect the rights, duties, and relations of the party accused to the public in his political or official character, either directly or remotely. The general rules of law and evidence applicable to common trials are interposed to protect the party against the exercise of wanton oppression and arbitrary power. And the final judgment is confined to a removal from and disqualification for office, thus limiting the punishment to such modes of redress as are peculiarly fit for a political tribunal to administer, and as will secure the public against political injuries. In other respects, the offence is left to be disposed of by the common tribunals of justice, according to the laws of the land, upon an indictment found by a grand jury, and a trial by a jury of peers, before whom the party is to stand for his final deliverance, like his fellow-citizens.
§ 813. In respect to the impeachment of the President and VicePresident, it may be remarked that they are, upon motives of high state policy, made liable to impeachment while they yet remain in office. In England, the constitutional maxim is that the king can do no wrong. His ministers and advisers may be impeached and punished; but he is, by his prerogative, placed above all personal amenability to the laws for his acts.2 In some of the State constitutions, no explicit provision is made for the impeachment of the chief magistrate; and in Delaware and Virginia he was
namely, of William Blount, in 1798; of John Pickering, in 1804; of Samuel Chase, in 1804; and of James H. Peck, in 1831. See the Senate Journals of those Trials. See also Jefferson's Manual, sect. 202.
1 Art. 2, sect. 2, clause 1.
2 1 Black. Comm. 246, 247.