right in the members of the electoral college, and in the number of the representatives to the Congress of the United States?

Lest any one should doubt the correctness of this piece of history or the truth of this common fame, we shall show you that while the legislature of Alabama was deliberating upon the reconsideration of the vote whereby it had rejected the constitutional amendment, the fact being brought to the knowledge of • Andrew Johnson and his advice asked, he, by a telegraphic message under his own hand, here to be produced, to show his intent and purposes, advised the legislature against passing the amendment, and to remain firm in their opposition to Congress. We shall show like advice of Andrew Johnson upon the same subject to the legislature of South Carolina, and this, too, in the winter of 1867, after the action of Congress in proposing the constitutional amendment had been sustained in the previous election by an overwhelming majority. Thus we charge that Andrew Johnson, President of the United States, not only endeavors to thwart the constitutional action of Congress and bring it to naught, but also to hinder and oppose the execution of the will of the loyal people of the United States expressed in the only mode by which it can be done, through the ballot-box, in the election of their representatives. Who does not know that from the hour he began these, his usurpations of power, he everywhere denounced Congress, the legality and constitutionality of its action, and defied its legitimate powers, and, for that purpose, announced his intentions and carried out his purpose, as far as he was able, of removing every true man from office who sustained the Congress of the United States? And it is to carry out this plan of action that he claims the unlimited power of removal, for the illegal exercise of which he stands before you this day. Who does not know that, in pursuance of the same plan, he used his veto power indiscriminately to prevent the passage of wholesome laws, enacted for the pacification of the country? and, when laws were passed by the constitutional majority over his vetoes, he made the most determined opposition, both open and covert, to them, and, for the purpose of making that opposition effectual, he endeavored to array and did array all the people lately in rebellion to set themselves against Congress and against the true and loyal men, their neighbors, so that murders, assassinations, and massacres were rife all over the southern States, which he encouraged by his refusal to consent that a single murderer be punished, though thousands of good men have been slain; and further, that he attempted by military orders to prevent the execution of acts of Congress by the military commanders who were charged therewith. These and his concurrent acts show conclusively that his attempt to get the control of the military force of the government, by the seizing of the Department of War, was done in pursuance of his general design, if it were possible, to overthrow the Congress of the United States; and he now claims by his answer the right to control at his own will, for the exccution of this very design, every officer of the army, navy, civil, and diplomatic service of the United States. He asks you here, Senators, by your solemn adjudication to confirm him in that right, to invest him with that power, to be used with the intents and for the purposes which he has already shown.

The responsibility is with you; the safeguards of the Constitution against usurpation are in your hands; the interests and hopes of free institutions wait upon your verdict. The House of Representatives has done its duty. We have presented the facts in the constitutional manner; we have brought the criminal to your bar, and demand judgment at your hands for his so great crimes. Never again, if Andrew Johnson go quit and free this day, can the people of this or any other country by constitutional checks or guards stay the usurpations of executive power.

I speak, therefore, not the language of exaggeration, but the words of truth

and soberness, that the future political welfare and liberties of all men hang trembling on the decision of the hour.

The following is the brief referred to by Mr. Butler in the course of his argu

ment:

A brief of the authorities upon the law of impeachable crimes and misdemeanors, prepared by Hon William Lawrence, M. C., of Ohio; revised and presented by B. F. Butler, of Massachusetts, one of the managers, as a part of his opening argument on the impeachment of the President.

In order to ascertain the impeachable character of an act done or omitted, reference must be had to the Constitution, expounded as it is by history, by parliamentary and common law.

The provisions of the Constitution which relate to or illustrate the law of impeachment are these:

"The House of Representatives shall choose their Speaker and other officers, and shall have the sole power of impeachment." Art. 1, § 2.

"The Senate shall have the sole power to try all impeachments. When sitting for that purpose, they shall be on oath or affirmation. When the President of the United States is tried, the Chief Justice shall preside; and no person shall be convicted without the concurrence of two-thirds of the members present.

"Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust, or profit under the United States; but the party convicted shall nevertheless be liable and subject to indictment, trial, judgment, and punishment, according to law." Art. 1, § 3.

"In case of the removal of the President from office, or of his death, resignation, or inability to discharge the powers and duties of the said office, the same shall devolve on the Vice-President, and the Congress may by law provide for the case of removal, death, resignation, or inability, both of the President and Vice-President, declaring what officer shall then act as President, and such officer shall act accordingly, until the disability be removed or a President shall be elected." Art. 2, § 1.

"The President shall be commander-in-chief of the army and navy of the United States, and of the militia of the several States when called into the actual service of the United States; he may require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices; and he shall have power to grant reprieves and pardons for offences against the United States, except in cases of impeachment." Art. 2, § 2.*

"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." Art. 2, § 4.

"The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the State where the said crimes shall have been committed; but when not committed within any State, the trial shall be at such place or places as the Congress may by law have directed." Art. 3, § 2.

The convention which framed the Constitution on the subject of impeachment "proceeded in the same manner it is manifest they did in many other cases; they considered the object of their legislation as a known thing, having a previous definite existence. Thus existing, their work was solely to mould it into

*The clauses of the Constitution which declare that a party impeached shall be "liable to indictment;" that "the trial of all crimes, except in cases of impeachment, shall be by jury;" that the President shall have power to grant "pardons for offences against the United States, except in cases of impeachment," are all either parts of or modifications of the British constitution; they recognize statutory and common law crimes as a portion, but not all, of the impeachable offences here as they were and are in Eugland.

a suitable shape. They have given it to us, not as a thing of their creation, but merely of their modification."

In England, a majority of the lords impeach, though, by common law, twelve peers must be present and concur. † Here, the concurrence of two-thirds of the members [of the Senate] present is requisite.

In England, the character and extent of the punishment is in the discretion of the lords. Here, it cannot extend further than to removal from and disqualification to hold office.

In England, "all the King's subjects are impeachable in Parliament." Here, according to the received construction, "none are liable to impeachment except officers of the government." §

In England, the lords are not sworn in trying an impeachment, but give their decision upon their honor. Here, senators act under the solemn sanction of an oath or affirmation. In England, the Crown is not impeachable. Here, the President is.

In England, impeachment may, to some extent, be regarded as a mode of trial designed, inter alia, to punish crime, though not entirely so, since a judgment on an impeachment is no answer to an indictment in the King's bench. || Here, impeachment is only designed to remove unfit persons from office; and the party convicted is subject to indictment, trial, and punishment in the proper

courts.

It is absurd to say that impeachment is here a mode of procedure for the punishment of crime, when the Constitution declares its object to be removal from and disqualification to hold office, and that "the party convicted shall nevertheless be liable and subject to indictment, trial, judgment, and punishment, according to law," for his “crimes.”

Subject to these modifications, and adopting the recognized rule, that the Constitution should be construed so as to be equal to every occasion which might call for its exercise, and adequate to accomplish the purposes of its framers, impeachment remains here as it was recoguized in England at and prior to the adoption of the Constitution.

*Bayard on Blount's Trial, 264; and he added: "And therefore I shall insist that it remains as at common law, [parliamentary, with the variance only of the positive provisions of the Constitution." (Wharton's State Trials, 264; Rawle on Const., 200.)

"The Constitution * * refers to * * impeachment without defining it. It assumes the existence * and silently points us to English precedents for knowledge of details, We are reminded of the statement that the Constitution is an instrument of enumeration, and not of definition."" (Prof. Dwight, 6 Am. Law Reg., N. S., 257.)

*

+ 5 Comyn's Digest, 308, Parliament L.

2 Wooddeson's Lectures, 602.

§ In Chase's Trial Mr. Rodney "utterly disclaimed the idea that" any but officers were liable to impeach

ment.

Wharton says in reference to Blount's Trial: "In a legal point of view all that this case decides is that a senator of the United States who has been expelled from his seat is not, after such expulsion, subject to impeachment, and perhaps from this the broader proposition may be drawn that noue are liable to impeachment except officers of the government, in the technical sense, excluding thereby members of the national legislature. Afterwards, from the expulsion of Mr. Smith, a senator from Ohio, for connection with Burr's conspiracy, instead of his impeachment, the same implication arises." (Wharton's State Trials, 317, note,) In this case Mr. Bayard maintained "that all persons** are liable to impeachment;" that the Constitution does not define the cases or describe the persons designed as the objects of impeachment. "We are designedly left to the regulations of the common [parliamentary] law." This view is confirmed by the fact that Art. 2, § 4, imperatively requires "removal from office" in case of the President. Vice-President, and officers, while Art. 1, § 3, seems to admit of less punishment than this, and which must, therefore, apply to persons other than officers.-See Wickliffe's argument, Peck's Trial, 309. The constitution of New York of 1777 is said to have been the model from which the impeachment clauses of the Constitution of the United States were copied.-6 Am. Law Reg., N. S., 277. That of New York limits impeachments to officers in terms; that of the United States does not. There may be agents and others for whom impeachments would be salutary. In England, military and naval officers are impeachable. If a military or naval officer here should conspire with the President to overthrow Congress the impeachment of both would be a necessary protection, which it may be doubted if the Constitution intended to surrender. In such case a court-martial could not, against the President's will, remove from office; impeachment alone would be effectual. (Wharton's State Trials, 290.)

||Fitzharris's Case, 6 Am. Law Reg., N. S., 262.

¶ "Impeachment is a proceeding purely of a political nature. It is not so much designed to punish the offender as to secure the state. It touches neither his person nor his property, but simply divests him of his political capacity." (Bayard's Speech on Blount's Trial; Wharton's State Trials, 263.)

These limitations were imposed in view of the abuses of the power of impeachment in English history.

These abuses were not guarded against in our Constitution by limiting, defining, or reducing impeachable crimes, since the same necessity existed here as in England for the remedy of impeachment, but by other safeguards thrown around it in that instrument. It will be observed that the "sole power of impeachment" is conferred on the House, and the sole power of trial on the Senate by Art. 1, §§ 2 and 3. These are the only jurisdictional clauses, and they do not limit impeachment to crimes or misdemeanors. Nor is it elsewhere so limited. Sec. 4 of Art. 2 only makes it imperative when "the President, Vice-President, and all civil officers" are convicted "of treason, bribery, or other high † crimes and misdemeanors," that they shall be removed from office."‡

But so far as the questions now before the country are concerned, it is not material whether the words "treason, bribery, or other high crimes and misdemeanors" confer, or limit, jurisdiction, or only prescribe an imperative punishment as to officers or a class of cases, since every act which by parliamentary usage is impeachable is defined a "high crime or misdemeanor;" and these are the words of the British constitution which describe impeachable conduct. § There may be cases appropriate for the exercise of the power of impeachment where no crime or misdemeanor has been committed.

As these words are copied by our Constitution from the British constitutional and parliamentary law, they are, so far as applicable to our institutions and condition, to be interpreted, not by English municipal law, but by the lex parliamentaria. ||

When, therefore, Blackstone ¶ says that "an impeachment before the lords by

* "The earliest recorded instance of impeachment by the Commons at the bar of the House of Lords was in the reign of Edward III, (1376.) Before that time the lords appear to have tried both peers and commoners for great public offences, but not upon complaints addressed to them by the Commons. During the next four reigns cases of regular impeachment were frequent; but no instances occurred in the reigns of Edward IV, Henry VII, Henry VIII, Edward VI, Queen Mary, and Queen Elizabeth.

"The institution had fallen into disuse," (says Mr. Hallam, 1 Const. Hist., 357,) "partly from the loss of that control which the Commons had obtained under Richard II and the Lancastrian kings, and partly from the preference the Tudor princes had given to bills of attainder or of pains and penalties, when they wished to turn the arm of Parliament against an obnoxious subject."

**Prosecutions also in the Star Chamber, during that time, were perpetually resorted to by the Crown for the punishment of State offenders. In the reign of James I the practice of impeachment was revived, and was used with great energy by the Commons, both as an instrument of popular power and for the furtheranco of public justice.

Between the year 1620, when Sir Giles Mompesson and Lord Bacon were impeached, and the revolution in 1688, there were about 40 cases of impeachment. In the reigns of William III, Queen Anne, and George I, there were 15; and in the reign of George II none but that of Lord Lovat, in 1746, for high treason. The last memorable cases are those of Warren Hastings in 1788, and Lord Melville in 1805." (May on Parliament, 49-50; Ingersoll's speech on Blount's trial, Wharton's State Trials, 285; 4 Hatsell, passim.)

The word "high" applies as well to misdemeanors" as to "crimes." 2 Chase's Trial, 383.

On Chase's Trial Mr. Rodney so argued; and so Wickliffe on Peck's Trial, 309. In Blount's trial Mr. Ingersoll insisted that Art. 2. sec. 4, designates the extent of the power of impeachment both as to the offences and the persons liable." (Wharton's State Trials, 289; see p. 99 per Harper.)

$4 Hatsell's Precedents, 73-76.

By the constitution of the State of Massachusetts the senate is "to hear and determine all impeachments made by the house of representatives against any officer or officers of the commonwealth for misconduct and maladministration in office."

On the trial of Judge Prescott in 1821, Mr. Blake in defence, referring to the words misconduct and maladministration, said: "What then are the legal import and signification of these terms? We answer precisely the same as of crimes and misdemeanors; that they are in every respect equivalent to the more familiar terms that are employed by the constitution of Great Britain in its description of impeachable offences, subject only to the wholesome limitation which in this commonwealth confines this extraordinary method of trial to the official misdemeanors of public functionaries." (Prescott's Trial, 117, 118.)

Pennock v. Dialogue, 2 Peters, 2-18. When foreign statutes are "adopted into our legislation the known and settled construction of those statutes by courts of law has been considered as silently incorporated into the acts:" United States v. Jones, 3 Wash. C. C. R., 209; Ex parte Hall, 1 Pick., 261; Sedgwick on Stat. p. 262, 426; Story on Const., § 797; Rawle on Const., 200. This author says in reference to impeachments, "We must have recourse to the common law of England for the definition of them;" that is, to the common parliamentary law. 3 Wheaton, 610; 1 Wood. and Minot, 448.

The Constitution contains inherent evidence of this. By it "treason, bribery, and other high crimes and misdemeanors" are impeachable "Treason" is defined in the Constitution; "bribery" is not; and it therefore means what the common law has defined it. As the Constitution thus itself resorts to the common and parliamentary law for the definition of its terms, the words "high crimes and misdemeanors" are to be inter pretated by the same codes. They are as completely included as though every crime had been specifically named. Whatever by the common law was treason and which is not covered by the definition in the Constitution which defined it for the ordinary courts, is still impeachable crime so far as applicable to our institutions. ¶4 Blackstone's Com. 260, read in Öxford 1759. He says, also, "It may happen that a subject intrusted with the administration of public affairs may infringe the rights of the people and be guilty of such crimes as the ordinary magistrate either dares not or cannot punish," that is, cannot punish because not falling within his risdiction.

the commons of Great Britain in Parliament is a prosecution of the alreadyknown and established law, and has been frequently put in practice," he must be understood, to refer to the "established" parliamentary, not common municipal law, as administered in the ordinary courts, for it was the former that had been frequently put in practice.

Whatever "crimes and misdemeanors" were the subjects of impeachment in England prior to the adoption of our Constitution, and as understood by its framers, are therefore subjects of impeachment before the Senate of the United States, subject only to the limitations of the Constitution.

The framers of our Constitution, looking to the impeachment trials of England, and to the writers on parliamentary and common law, and to the constitutions and usages of our own States, saw that no act of Parliament or of any State legislature ever undertook to define an impeachable crime. They saw that the whole system of crimes, as defined in acts of Parliament and as recognized at common law, was prescribed for and adapted to the ordinary courts. (2 Hale, Pl. Crown., ch. 20, p. 150; 6 Howell St. Trials, 313, note.)

They saw that the high court of impeachment took jurisdiction of cases where no indictable crime had been committed, in many instances, and there were then, as there yet are, "two parallel modes of reaching" some, but not all, offenders: one by impeachment, the other by indictment.

In such cases, a party first indicted "may be impeached afterwards, and the latter trial may proceed notwithstanding the indictment." On the other hand, the King's Bench held in Fitzharris's case that an impeachment was no answer to an indictment in that court.†

The two systems are in no way connected, though each may adopt principles applicable to the other, and each may shine by the other's borrowed light.

With these landmarks to guide them, our fathers adopted a Constitut on under which official malfeasance and nonfeasance, and, in some cases, misfeasance, may be the subject of impeachment, although not made criminal by act of Congress, or so recognized by the common law of England or of any State of the Union. They adopted impeachment as a means of removing men from office whose misconduct imperils the public safety and renders them unfit to occupy official posi

tion.

All this is supported by the elementary writers, both English and American, on parliamentary and common law; by the English and American usage in cases of impeachment; by the opinions of the framers of the Constitution; by contemporaneous construction, all uncontradicted by any author, authority, case, or jurist, for more than three-quarters of a century after the adoption of the Constitution.

The authorities are abundant to show that the phrase "high crimes and misdemeanors," as used in the British and our Constitution, are not limited to crimes defined by statute or as recognized at common law ‡

Christian, who may be supposed to have understood the British constitution when he wrote, says: "When the words high crimes and misdemeanors are used in prosecutions by impeachment, the words high crimes have no definite signification, but are used merely to give greater solemnity to the charge.§

Wooddeson, whose lectures were read at Oxford in 1777, declared that impeachments extended to cases of which the ordinary courts had no jurisdiction. He says: "Magistrates and officers * * * may abuse their delegated powers to the extensive detriment of the community, and at the same time in a manner not properly cognizable before the ordinary tribunals." And he proceeds to say the remedy is by impeachment.

*Stafford's Trial, 7 Howard's State Trials, 1297.

16 Am. Law. Reg., N. S., 262.

If an act to be impeachable must be indictable, then it might be urged that every act which is indictable must be impeachable. But this has never been pretended. As the Senate must, therefore, decide what acts are impeachable, it canugt be governed by their indictable character.

§ Note to 4 Blackstone, 5.

2 Wooddeson's Lectures, 596.