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while an impeachment against him is pending, has been often asked but never answered by any competent tribunal.
307. Limitation of the Power.—The second of the clauses quoted limits impeachment to the President, VicePresident, and civil officers of the United States. Who are, and who are not, civil officers, are questions that have been much disputed. In 1797 the House of Representatives impeached William Blount, a Senator from Tennessee; the Senate decided by a vote of 14 to that Senators are not civil officers in the sense of the Constitution, and dismissed the case without trial, although it expelled Blount under clause 2, section 5, of Article I. If Senators are not civil officers, neither are Representatives. The result is that, according to this view, impeachment is practically limited to the Executive and Judicial Departments of the Government. Soldiers and sailors are tried and punished for offenses in connection with such service by military and naval courts:
The action of the Senate in 1797 rests on two or three clauses of the Constitution that appear to exclude Seuators and Representatives from the category of officers of the United States. Thus, clause 2, section 6, of Article I., says, “No person holding any office under the United States shall be a member of either House during his continuation in office,” and “No Senator or Representative shall, during the time for which he was elected, be appointed to any civil office," etc.
308. Grounds of Impeachment.-Section 4, Article II., states the grounds of impeachment, but not with such clearness as to prevent some uncertainty. Treason and bribery are perfectly well understood. Not so the other high crimes and misdemeanors of the section. It has been maintained, for instance, that the impeachment and conviction of a civil officer is constitutional only when he is guilty of an offense that has been made punishable by an act of Congress. This is a narrow view ; the proper one is that such an officer may be impeached for offenses relating to his official conduct that are not defined, and that cannot be defined, in the law at all, since they cannot be anticipated.
Impeachment is an extraordinary remedy for extraordinary evils. Judge Pickering was impeached and found guilty of drunkenness and profanity on the bench, neither of which offenses is prohibited by law; and nearly all the offenses charged against the persons whom the House of Representatives has impeached were non-indictable
In fact, the great reason for giving the House and Senate rather than the Courts jurisdiction in impeachment cases is, that the offenses are often official and not covered by the statutes.
309. Two-Thirds Vote.-Obviously, the votes of all the Senators voting should not, as in the case of a jury, be required to convict; nor should a mere majority be sufficient.
The reasons for a two-thirds vote are stated thus cogently by Judge Cooley: “The danger that Senators, chosen as representatives of political parties, will be swayed, consciously or unconsciously, by considerations that should not influence them, is much greater on the trial of a political officer from whose removal or retention party advantages might be expected, than on that of a judge. This was forcibly illustrated by the case of President Johnson, in which, with a few exceptions, Senators divided on the question of guilt strictly according to their political affinities.
It would be a calamity of the highest moment if the precedent should be set of the conviction and removal of the President on a partisan vote, and on grounds not sanctioned by the sober sense and mature reflection of the people."
310. Impeachment Cases.—There have been seven such cases under the Constitution, six trials and two convictions.
William Blount, Senator from Tennessee ; 1797, 1798 ; five articles relating to violation of the neutrality laws; no trial.- John Pickering, District Judge for New Hampshire; 1803, 1804; four articles charging drunkenness and profanity on the bench, and imprison. ment of an attorney for contempt of court; tried, found guilty, removed from office, but not pronounced disqualified to hold office. -Samuel Chase, Justice of the Supreme Court; 1804, 1805 ; eight articles charging arbitrary and oppressive conduct on the bench, and improper criticisms of the National administration; tried and acquitted.- James Peck, District Judge for Missouri ; 1829, 1830; one article alleging arbitrary conduct on the bench in punishing an attorney; · tried and acquitted.-W. W. Humphreys, District Judge for Tennessee, 1862; seven articles charging disloyalty in a public speech and in accepting a judgship under the Southern Confederacy; tried, convicted, and removed.-Andrew Johnson, President of the United States; 1867 ; eleven articles charging repeated violations of the Tenure of
1 Story's Commentaries, 780 NOTE (4th edition).
Office Act, and making indecent and unbecoming threats and harangues about Congress, and declaring that the Thirty-ninth Congress was no constitutional Congress; tried and acquitted, votes being had on but three articles.-W. W. Belknap, Secretary of War; 1876; five articles charging malfeasance in accepting bribes for appointing and retaining in office a post-trader on the frontier ; tried and acquitted.
311. The Blount and Belknap Cases. Each of these cases presented a perplexing question. The Senate had expelled Blount before the case came on for trial, while Belknap had resigned and President Grant had accepted his resignation immediately on the discovery of his crime and before the House began proceedings against him. The question in either case was whether a nan no longer in the service of the Government was amenable to conviction on impeachment. The Senate declined to try Blount on the ground that he was not a civil officer, but did not pass on the other point. In the other case, the Senate decided, 37 votes to 29, that the accused was still subject to trial, although now a private citizen. The final vote stood, guilty 37, not guilty 25. There was no doubt that Belknap had been guilty of the offenses charged, but the minority voted No on the ground that the Senate had no jurisdiction in such a case.
NOTE.-The process called impeachment originated in England, where the first case bears the date of 1376. There it is a much more sweeping process than in the United States. Not officers alone, but all subjects of the Crown may be impeached. The King, however, is not impeachable, the theory being that he can do nowroug, and that responsibility for his actsattachesonly to his ministers. Punishment may extend to fine, imprisonment, banishment, and even death, as well as to removal from office. The use of the power in many English cases now seems severe, and in some absurd. There has been no case of impeachment in England since 1804, and arguments have been adduced showing that its exercise is now uncalled for. But in the United States, where Legislatures have so much less control over executives and courts of law than in England, the case is otherwise. Sir T. E. May thus speaks for England:
“Impeachment by the Commons for high crimes and misdemeanors beyond the reach of the law, or which no other authority in the state will prosecute, is a safeguard of public liberty well worthy of a free country, and of so noble an institution as a free Parliament; but happily in modern times this extraordinary judicature is rarely called into activity. The times in which its exercise was needed were those in which the people were jealous of the Crown; when the Parliament had less control over prerogative; when courts of justice were impure; and when, instead of vindicating the law, the Crown and its officers resisted its execution and screened political offenders from justice; but the linitations of prerogative, the immediate responsibility of the ministers of the Crown to Parliament, the vigilance and activity of that body in scrutinizing the actions of public men, the settled administration of the law, and the direct influence of Parliament over courts of justice, which are at the same time independent of the Crown, have prevented the consummation of those crimes which impeachments were designed to punish. The Crown is intrusted by the constitution with the prosecution of all offenses; there are few which the law cannot punish; and if the executive officers of the Crown be negligent or corrupt, they are directly amenable to public opinion, and to the censure of Parliament."-Parliamentary Practice, p. 733.
THE POWERS OF THE SEPARATE HOUSES.
Section 5, Clause 1.-Each House shall be the judge of the elections, returns, and qualifications of its own members, and a majority of each shall constitute a quorum to do business ; but a smaller number may adjouru from day to day, and may be authorized to compel the attendance of absent members, in such manner, and under such penalties as each House may provide.
312. The Houses Judges, Etc.--A house of legislation to be a really independent body, must know that the persons claiming membership have been duly elected and that they are duly qualified. Hence it must be the judge of those matters. Both Houses have rejected men duly elected because they were disqualified, and contested elections have been numerous, particularly in the House of Representatives. For example, at the opening of the Fiftyfirst Congress there were seventeen such cases in that body.
313. Contests in the House of Representatives.--The State authorities conduct all elections of Representatives, under the laws of the State and Congress. They canvass the votes and decide what persous are elected. The Governor gives the Representative his certificate of election. The Clerk of the next preceding House makes a roll of the members-elect before the House meets, placing thereon only the names of those persons whose certificates show that they have been regularly elected. Any person whose name is on this roll may take part in organizing the House; but it is still open to the House to inquire into his right to a seat. If a contestant appears to deny the right of such person, all the papers relating to the case required by law are referred by the Clerk to the House, and then by the House to its Committee on Elections. These papers are sometimes very voluminous, as the law gives detailed directions for conducting such contests : the serving of notice by the contestant upon the person declared elected, and the answer of such person; the taking of depositions relating to irregularities in elections at any precinct, and forwarding them to the seat of government. The expense of taking testimony is paid out of the contingent fund of the House, except the personal expenses of the parties. The Committee on Elections investigates the case, not taking new testimony, however, and reports its conclusions to the House. The House decides that one, or the other, or neither of the parties is elected; in the latter case declaring the seat vacant. From this decision there is no appeal. If a vacancy is declared, a new election must be held under clause 4, section 2 of this Article.
As neither the law nor the rules of the Senate make any provision for contested Senatorships, contests there lie within much narrower compass. The question is not commonly between two men; it is generally whether the single claimant has been duly elected, and this is an inquiry into forms and records.
314. Quorums.–Forty members make a quorum in the House of Commons, although it consists of 670 members. While the Constitution requires a majority in each House of Congress, it gives a smaller number power to adjourn from day to day, and to compel the attendance of absent members. In the House of Representatives, such number is fixed at fifteen; in the Senate, no particular number is named.
315. Counting a Quorum.—The practice having grown up in the House of Representatives for members to abstain from voting on certain questions, hoping thus to defeat, or at least to delay them, by breaking up the quorum as shown by the roll-call, that body adopted at the first session of the Fifty-first Congress, after a severe party struggle, the following rule : “On the demand of any member, or at the suggestion of the Speaker, the names of members sufficient to make a quorum in the hall of the House who do not vote, shall be noted by the Clerk and recorded in the Journal, and reported to the Speaker with the names of the members voting, and be counted and announced in determining the presence of a quorum to do business." The Fifty-third Congress adopted a similar rule, but it put the counting of members not voting, who were present, in the hands of two tellers named by the Speaker, one from each side of the pending question if practicable, rather than in the hands of the Speaker himself.
316. Power to Compel Attendance.-This power is essential to an efficient house of legislation. Otherwise