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pun shment in a given case, than a mere juridical tribunal Suppose the Senate should still deem the judgement irregular, or unjustifiable, how is the removal to take effect, and how is it to be enforced ? A separation of the removing power altogether from the appointing power might create many practical difficulties, which ought not, except upon the most urgent reasons, to be introduced into matters of government. Without at tempting to maintain, that the difficulties would be insuperable, it is sufficient to show, that they might be highly inconvenient in practice.
$ 118. In order to complete our review of the subject of impeachments, it is necessary to cite a clause to be found in a subsequent part of the Constitution, (Art. 2, Sect. 4,) declaring, who shall be liable to impeachment, and for what offences. “The President, Vice President, and all civil officers of the United States, shall be removed from office, on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.” $ 119. From this clause, it appears, that the
that the power of impeachment does not extend to any, but civil officers of the United States, including the President, and Vice President. In England, it extends to all persons, whether peers or commoners, and whether officers or not. There seems a peculiar propriety, in a republican government, in confining the impeaching power to persons holding office. In such a government, all the citizens are equal, and ought to have the same security of a trial by jury, for all crimes and offences laid to their charge, when not holding any official character. They might, otherwise, be subject to gross political oppressions, and prosecutions, which might ruin their fortunes, or subject them to unjustifiable odium. When a person accepts an office, he may fairly be held to consent to a waiver of this privilege ; and there can be no reasonable objection, on his
part, to a trial by impeachment, since it can go no further than to a removal from office, and a disqualification to hold office.
$ 120. Who are " civil officers," within the meaning
of th 3 constitutional provision, is an inquiry, which naturally presents itself; and the answer cannot, perhaps, be deemed settled, by any solemn adjudication. The term “civil” has various significations. It is sometimes used, in contradistinction to barbarous, or savage, to indicate a state of society, reduced to order and regular government. Thus, we speak of civil life, civil society, civil government, and civil liberty; in which cases, it is nearly equivalent, in meaning, to political. It is sometimes used in contradistinction to criminal, to indicate the private rights and remedies of men, as members of the community, in contrast to those, which are public, and relate to the government. Thus, we speak of civil process and criminal process, civil jurisdiction and criminal jurisdiction. It is sometimes used in contradistinction to military or ecclesiastical, to natural or foreign. Thus, we speak of a civil station, as opposed to a military or ecclesiastical station ; a civil death, as opposed to a natural death ; a civil war, as opposed to a foreign war.
The sense, in which the term is used in the Constitution, seems to be in contradistinction to military, to indicate the rights and duties relating to citizens generally, in contradistinction to those of persons engaged in the land or naval service of the government, It is in this sense, that Sir William Blackstone speaks of the laity in England, as divided into three distinct states ; the civil, the military, and the maritime ; the two latter embracing the land and naval forces of the government.
And in the same sense, the expenses of the civil list of officers are spoken of, in contra distinction to those of the army and navy.
$ 121. All officers of the United States, therefore, who hold their appointments under the national government, whether their duties are executive or judicial, in the highest or in the owest departments 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. The reason for excepting military and naval officers is, that they are subject to trial and punishment according to a peculiar military code, the laws, rules, and usages of war. The
very nature and efficiency of military duties and discipline require this summary and exclusive jurisdiction ; and the promptitude of its operations is not only better suited to the notions of military men; but they deem their honor and their reputation more safe in the hands of their brother officers, than in any merely civil tribunal. Indeed, in military and naval affairs, it is quite clear, that the Senate could scarcely possess competent knowledge or experience to decide upon the acts of military men ; so much are these acts to be governed by mere usage and custom, by military discipline, and military discretion, that the Constitution has wisely committed the whole trust to the decision of courts-martial.
$ 122. It is observable, that the clause makes the President and Vice President expressly liable to impeachment. And the question arose, upon an impeachment, in 1799, whetner a Senator is a civil officer of the United States, in the sense of the Constitution, so as to be liable to an impeachment. It was on that occasion decided, by the Senate, that he is not; and, of course, the same principle would apply to a Representative in Congress. The ground of this decision seems to have been chat a Senator does not derive his appointment from or under the National Government, but from the State Legislature ; and that the clause contemplated only such civil officers, as derived their appointment from the National Government, and were responsible for their conduct thereto. Motives of public policy would also conduce to the establishment of this same conclusion, since the impeachment of Legislators for their official acts might have a tendency to overawe or intimidate them in the discharge of their public functions. In the whole history and practice of England and America, no example can be found, of any attempt to introduce such a principle ; and this very silence is expressive of the state of public opinion as to the danger and impolicy of conferring such a power.
$ 123. The offences, to which impeachments extend, are, "treason, bribery, and other high crimes and misdemeanors." No person can reasonably doubt the propriety of the removal, and disqualification from office, of a person, who is guilty of treason,' which aims at the overthrow of the government, or of bribery, which corrupts its due administration. And doubtless there are other high crimes and misdemeanors, to which the power of impeachment may properly be applied, since they may be utterly incompatible with the public safety and interests, or may bring the government itself into disgrace and obloquy
§ 124. But an important inquiry still remains, as to the nature and definition of these crimes. What is the crime of treason? What is the crime of bribery? What are high crimes and misdemeanors in the sense of the Constitution ? For the definition of treason we may resort to the Constitution itself. For the definition of bribery we must resort to the common law, which alone furnishes the proper exposition of the nature and limits of the offence. But neither the Constitution, nor the statutes of the United States, have in any manner defined
any other crimes to be high crimes and misdemeanors, and as such, exposing the party to impeachment. How then are we to ascertain, what offences, besides treason and bribery, are within the scope of the impeaching power ? If we say, that there are no other offences, which are impeachable offences, until Congress has enacted some law on the subject, then the Constitution, as to all crimes except treason and bribery, has remained a dead letter, up to the present hour. Such a doctrine, would be truly alarming and dangerous.
§ 125. Congress have unhesitatingly adopted the conclusion, that no previous statute is necessary to authorize an impeachment for any official misconduct; and the rules of proceeding, and the rules of evidence, as well as the principles of decision, have been uniformly regulated by the known doctrines of the common law, and parliamentary usage. In the few cases of impeachment, which have hitherto been tried, no one of the charges has rested upon any statutable misdemeanors. It seems, then, to be the settled doctrine of the high court of impeachment, that though the common law cannot be a foundation of a jurisdiction not given by the Constitution, or laws, thai jurisdiction, when given, attaches, and is to be exercised,
according to the rules of the common law; and that, what are, and what are not, high crimes and misdemeanors, is to be ascertained by a recurrence to that great basis of American jurisprudence. The reasoning, by which the power of the House of Representatives to punish for contempts (which are breaches of privileges, and offences not defined by any positive laws) has been upheld by the Supreme Court, stands upon similar grounds ; for if the House had no jurisdiction to punish for contempts, until the acts had been previously defined, and ascertained by positive law, it is clear, that the process of arrest would be illegal.
§ 126. 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 is not governed by the formalities of the ordinary prosecu tions in courts at law.
§ 127. 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 a 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 ; ane to demand, that the Senate take order for the appearance of the party to answer to the impeachment. 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 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