President and Vice-President, are embraced in its provisions. Senators and Representatives are not liable to impeachment, not being civil officers within the meaning of this clause.26 Neither are military and naval officers included. These officials have always been subject to trial by a code peculiar to their professions, and Judge Story says that it was for that reason that they were exempted from impeachment. In the impeachment of Secretary Belknap, Mr. Jenks, one of the managers on behalf of the House of Representatives, said: "Why should it be that a civil officer should be impeachable rather than a military officer? Is the one more dangerous than the other? Were the framers of the Constitution more careful to guard one than the other? No. They simply took this into consideration: this provision simply meant that it was imperative that on impeachment for certain crimes of a high grade, civil officers should be removed. Why not military officers? Because military talent is of a peculiar character. One man in an army may not represent only one man, but his name may be good for a thousand; ten thousand or more. Suppose you take the case of the Duke of Marlborough -a man noted perhaps for his avarice-a man who, if he had been prosecuted for official malpractice under our Constitution, would have been removed from office, had this power been extended to military officers as well as civil officers; but to remove the Duke of Marlborough from the head of the armies of England would have been equivalent to yielding her place as a military nation in the face of the world. So there is a reason why military officers should not be necessarily removed. You may remove them. If the demands of the Republic require you should remove them, you should do it, but you are not compelled by the Constitution to do it. This is why it was made applicable to civil officers alone and in reference to civil officers we have daily and hourly indications that if the very best of civil officers were to be removed, highest or lowest, abundance of people would spring up, numerous as the frogs of Egypt, fully competent and amply willing to fill the places. It is restricted as to 26 Senate Journal, January 10, 1797; Rawle on Const. 213. military officers because of the character of the duties they have to perform; it was restricted as to naval officers for the same reason; and it was not as I apprehend, for the cause suggested by Judge Story, that there were courtsmartial to try their crimes. "The spirit of our institutions is that the people shall all the time hold their hand on every officer in the United States. As to those that were elected by themselves Congressmen, they placed it in the power of Congress to remove them. As to those that represented the States, they placed it in the power of those representing the States to remove them. That is, they held the power of removal all the time, directly or indirectly, and intrusted it to no single individual. As to the officers of the United States, who are those under the Executive they meant to hold the same hand upon them, and they did hold it. They meant that the military, the maritime, and the civil alike shall be subject to impeachment and trial, and that if it is necessary this court can drag from his height the military hero, or may drag from his depths the depredating customhouse officers."27 It is the accepted doctrine that the language of the Constitution is not broad enough to include military and naval officers among those who may be impeached. The word "civil," as used in the Constitution, is understood as contradistinguishing civil from military and naval officers of the Government. Judge Story, citing with approval Rawle on the Constitution on this subject, says: "All officers of the United States who hold their appointments under the National Government, whether their duties are executive or judicial in the highest or in the lowest department of the Government, with the exception of officers in the army and navy, are properly civil officers within the meaning of the Constitution, and liable to impeachment."'28 For what offenses Impeachment will lie.-There are two offenses mentioned for which civil officers can be impeached, treason and bribery. It may be asked why these offenses were specifically named to the exclusion of other high crimes. The answer, no doubt, is due to the fact that 27 Belknap's Impeachment Trial, 172, 173. 28 1 Story on the Constitution, Sec. 792. English history showed that treason and bribery were the principal crimes for which impeachment had been resorted to by the House of Commons. It was natural that the Convention should assume that those crimes public officials had committed, they would commit again, and therefore the framers named them in the Constitution. As to what constitutes treason, the Senate would not, in case it impeached an officer for that offense, go beyond the definition found in the Constitution. It is probable that the Convention used the term bribery in its common law meaning, which is, "the receiving or offering any undue reward by or to any person whomsoever, whose ordinary profession or business relates to the administration of public justice, in order to influence his behavior in office, and to incline him to act contrary to his duty and the known rules of honesty and integrity. "29 The term bribery is said to extend further than the above definition, and to include the offense of giving a bribe to other classes of officers, and also to extend to voters, cabinet ministers, legislators, and sheriffs. The difficulty lies in the meaning of the expression "other high crimes and misdemeanors." Upon this subject a learned writer has forcefully said: "As to this, four theories have been proposed: First, 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. Second, that no offense is impeachable which is not subject to indictment. by such a statute or by the common law. Third, that all offenses are impeachable which were so by that branch of the common law known as the law of Parliament. Fourth, 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.''30 To this classification but little exception is taken, but the doctrine is rejected which holds that an offense is not impeachable unless made a crime by the statutes of the United States, although this position has been maintained 20 Bouvier's Law Dictionary. 30 Foster on the Constitution, 582. by eminent authority.31 After enumerating that impeachment will lie for treason and bribery, the Constitution says that it will also lie for "other high crimes and misdemeanors." Blackstone says that a crime or misdemeanor is an act committed, or omitted, in violation of a public law either forbidding or commanding it, though crime in a narrower sense is distinguished from a misdemeanor as being an offense of a deeper and more atrocious dye, and usually amounting to a felony.32 A misdemeanor comprehends all indictable offenses which do not amount to a felony; as perjury, battery, libels, conspiracies, attempts and solicitations to commit felonies, etc.33 These seem to be the definitions of these terms at common law, but it would be strange if a civil officer could be impeached for only such offenses as are embraced within the common law definition of "other high crimes and misdemeanors," There is a parliamentary definition of the term "misdemeanor," and a modern writer on the Constitution has said: "The term 'high crimes and misdemeanors' has no significance in the common law concerning crimes subject to indictment. It can only be found in the law of Parliament, and is the technical term which was used by the Commons at the Bar of the Lords for centuries before the existence of the United States.34 Synonymous with the the term "misdemeanor" are the terms misdeed, misconduct, misbehavior, fault, transgression.35 Suppose the President of the United States should insist upon using the White House for some purpose which would bring moral disgrace upon the nation and the established rules of civilized society. Is it to be claimed that he would not be liable to impeachment for such conduct because the offense was not indictable under a federal law? Or suppose he should refuse to perform the duties, or some of them, which the Constitution enjoins upon him? Would it be claimed that he was not 31 Judge Curtis' notable argument in his defense of President Johnson, and Professor Dwight's article on impeachment in VI American Law Register, 268. 32 4 Blackstone, 5. 38 4 Blackstone, 5, note. 34 Foster on the Constitution, 586. impeachable? In Mississippi v. Johnson, supra, Chase, C. J., asked, "May not the House of Representatives impeach the President for refusing to execute the laws of Congress?" Suppose the Vice-President should refuse to preside over the Senate, or to discharge any of the duties incumbent upon his high office? There is no statute under which he could be indicted and consequently he would escape punishment and would continue to hold his office and embarrass the operation of the Government, but will it be claimed that he would not be subject to impeachment? The managers on behalf of the House of Representatives in the impeachment of President Johnson crystallized the doctrine of impeachable offenses into the following rule: "An impeachable crime or misdemeanor is one in its nature or consequence subversive of some fundamental or essential principle of Government or highly prejudicial to the public interest, and this may consist of a violation of the Constitution, of law, of an official oath, or of duty, by an act committed or omitted, or, without violating a positive law, by the abuse of discretionary powers from improper motives, or from any improper purpose."з This states the doctrine and supports it by a long line of authorities that the Senate of the United States is not deprived of its jurisdiction to impeach an offending officer, unless his offense is indictable under a federal statute. Misconduct in office, whether it be the exercise of assumed power, or the nonexercise of a rightful power, is ground for impeachment. John Quincy Adams, after he had been President, said in a printed report to Congress, that a President might be impeached for an abuse of the veto power.37 When the Constitution was being considered in the Virginia Convention, the subject of treaty being under consideration, Madison said: "Were the President to commit anything so atrocious as to summon only a few States, he would be impeached and convicted, as a majority of the States would be affected by his misdemeanor. "'38 And he also stated that incapacity, negligence or perfidy of the Chief Magistrate would con 36 Proceedings in the Trial of Andrew Johnson, 58. 37 House of Representatives on the veto of the Tariff Bill, 22nd Congress, Second Session, Vol. 5, No. 998. 88 Elliot's Debates, Vol. 5, 500, 516. |