and Representatives may be expelled by the body to which they belong, but this punishment is plainly inadequate; expulsion removes from the present office, but is no obstacle to a reëlection thereto, nor does it disqualify from holding any other position of honor, trust, or profit. Should the House of Representatives and the Senate ever be called upon to reexamine the rule adopted in the case of William Blount, they may, perhaps, reject the authority of that single precedent.

§ 717. (2.) What are the lawful grounds of an Impeachment. Two answers have been given to this question, resting upon two opposed theories of construction. One theory, maintained with great ability, both upon principle and authority, by a large school of public writers, confines the operation of the impeachment clauses within very narrow limits. According to it, an impeachment can only be preferred against an officer of the United States, on account of some indictable offence which he has committed. Assuming this general doctrine to be correct, and taking into account the further special rule that all crimes against the United States must be statutory, the final conclusion is reached that the officer must have been guilty of an offence which had been made indictable by a positive law of Congress. This law must have been passed prior to the commission of the criminal act, because a statute subsequent thereto declaring the act penal, and imposing a punishment, would be an ex post facto law, and obnoxious to express inhibitions of the Constitution.

§ 718. The course of reasoning which supports the theory and leads to this result, consists of two branches. The first branch of the argument is not based upon any peculiar phraseology of the Constitution, but upon the general nature of impeachment as a method of criminal procedure known to the English law. It may be condensed as follows: The House of Representatives have the same powers to present, and the Senate to try, an offender, that are held by the British Commons and Lords, these and no greater attributes are conferred in the word "impeachment; it is settled in England that an impeachment is only regular and lawful as a mode of presenting, trying, and convicting for an indictable offence;

the two houses of Congress are therefore limited in the same manner; finally, as there are no common law crimes against the United States, but only those created and defined by some statute of Congress, the President, Vice-President, and all civil officers can only be impeached on account of some act which had been declared an indictable offence by a positive law of the national legislature.

The second branch of the argument is based upon the peculiar phraseology of the Constitution. It may be condensed as follows: Officers can only be impeached for "treason, bribery, and other high crimes and misdemeanors;" the phrase "high crimes and misdemeanors" is to be taken in a strict technical sense, and is equivalent to "felonies" and "misdemeanors," which are words of art embracing all indictable offences and no more; therefore the ground of an impeachment must be an act which Congress had made a "felony " or a "misdemeanor" in its positive criminal code.1

§ 719. The second theory does not confine the House of Representatives as the accusers, or the Senate as the triers, within such narrow limits. It regards the process of impeachment as the important personal sanction by which the observance of official duties is secured, as the very keystone by which the arch of constitutional powers is held in place. (See §§ 122, 149.) As the punishment to be inflicted has reference solely to the offender's official position, so the acts for which that punishment was deemed appropriate must have reference, directly or inferentially, to the offender's official duties and functions. Wherever the President, or Vice-President, or any civil officer has knowingly and intentionally violated the express terms of the Constitution, or of a statute which charged him with an official duty to be performed without a discretion, and wherever a discretion being left, within the bounds of which he has an ample choice, he exercises that discretion.

1 This theory is set forth with great ability, the English and American authorities in its support are fully cited, and the arguments in its favor are exhausted in 6 American Law Register (N. S.) 257, and in the Report of the minority of the Judiciary Committee, presented to the House of Representatives Nov. 25, 1867.

in a wilful and corrupt manner, or even in a rash and headstrong manner, unmindful of the ruinous consequences which his acts must produce, he is impeachable; and it makes no difference whether the act has been declared a felony or a misdemeanor by the criminal legislation of Congress, or was regarded as such by the common law of England. Indeed, in this view the officer might be impeachable for very many breaches of public duty which it would be impossible to treat as ordinary crimes and to define in the statute book as indictable offences. Thus the President has a power to grant pardons uncontrolled and uncontrollable by Congress; every pardon which he issues is valid, whatever be his motive and intent. It would be absolutely impossible for the legislature to make the conferring a pardon in any specified case or manner a crime for which an indictment would lie. But it cannot be denied that the President, although not bribed, might exercise this function in a manner which would destroy the efficacy of the criminal law, and evince a design on his part to subvert the very foundations of justice. For such acts he would be impeachable. Again: the President has the sole power to carry on negotiations with foreign governments. Congress may not dictate to him, or restrain him, much less make any kind of diplomatic intercourse on his part an indictable offence. But by a rash, headstrong, wilful course of negotiation carried on against the best and plainest interests of the country, although without any traitorous design, he might plunge the nation into a most unnecessary and disastrous war. For such an act he would be impeachable. Again: the President as Commander-in-Chief has the sole power to wage war. Congress may not dictate to him the campaigns, marches, sieges, battles, retreats, much less make any method of conducting the actual hostilities an indictable offence. But if his conduct was something more than a mere mistake in the exercise of his discretion, although not an adhering to the enemies of the United States giving them aid and comfort, he might, by a stubborn and wilful persistence in his plans after their failure had demonstrated their futility, bring defeat, disgrace, and ruin upon his country. For such an act he would be impeach

able. Many more instances might be given, but these are sufficient for illustration.

§ 720. These two theories will now be subjected to a brief examination, and considerations will be suggested which seem to support the latter, and to give it a preference over the one first stated. A fallacy which often enters into discussions upon the meaning of language, is the tacit or open assumption that two alternatives alone are possible; that if one extreme is rejected, the very pole of this position must be admitted. The fallacy is shown in the present case. It may be said, it is said, that if the House be not restricted to indictable crimes, they may impeach whenever a majority shall choose, they may impeach for a mere difference of opinion. This argument ab inconvenienti, though often resorted to, is of little value. The possible abuse of power is no valid objection to the existence of the power. The Constitution is full of grants which may be abused; wherever there is a discretion, there may be abuse. Indeed it was because discretion must be given, and is liable to abuse, that the convention and the people, after exhausting all the checks of a tripartite government and of frequent elections, inserted the particular and most compulsive sanction of impeachment. The theories stated may be examined (1) by the aid of such authoritative precedents as have been established in the course of our political history, and (2) upon principle independent of positive authority.

§ 721. As far as the House of Representatives and the Senate have already acted, under the impeachment clauses, their proceedings have been directly opposed to the first theory, and in strict accordance with the second. It must be remembered that, if the argument for a restrictive interpretation be valid for any purpose, it proves that an impeachment is only lawful when the officer has been guilty of a statutory offence against the United States. To say that he may be impeached for an act which would be indictable by the English common law though not made so by the legislation of Congress, is to surrender the whole position. If the House may prefer charges for conduct which is not penal by the law of the United States, but is criminal by that of England, they are of course entirely

untrammelled. The legislation of another nation, whether statutory or unwritten, cannot be a rule of conduct for the United States government, cannot be the measure of its powers. How then does the fact stand? The House has preferred an impeachment in five cases. The first was dismissed by the Senate on the preliminary objection that the respondent was not a civil officer. The other four were tried on the merits. In two instances the accused was convicted, and in two was acquitted. In three of these cases not a charge was made in the Articles of Impeachment presented by the House, which imputed an indictable statutory crime to the respondent; most of the charges did not even impute a common law misdemeanor; all, with perhaps a single exception, alleged a corrupt or wilful violation of official duty. In the fourth case the offence was treason. I add a more detailed examination of these precedents in the foot note.1 The House in proposing

1 Case of Judge Pickering. — See Annals of Congress, 8th Congress, 1st Session, pp. 315–368. A. D. 1803-4. - Abstract of the Articles: I. A ship was arrested for violating the revenue laws; proceedings for condemnation were held before Judge P.; allegation, that he delivered said vessel to the claimant without requiring a certain certificate prescribed by an act of Congress, contrary to this act, and "with intent to evade the same." II. Allegation, that on the trial touching said ship, he refused to hear the testimony of witnesses produced on the part of the U. S., "with intent to defeat the just claims of the U. S." III. Allegation, that he refused to allow an appeal by the U. S. from his decree in said case, contrary to an act of Congress, "disregarding the authority of the laws, and wickedly meaning and intending to injure the revenues of the U. S." IV. Alleged acts of personal immorality done in so public a manner as to degrade the office.

The respondent did not appear. He was found guilty on each article by a vote of 19 to 7, and was removed by a vote of 20 to 6.

Case of Judge Chase. See Trial of Judge Chase, also Annals of Congress, 8th Congress, 2d Session, pp. 81-676. A. D. 1804-5. Abstract of the Articles. I. Allegation, that on the trial of one Fries for treason, the respondent was arbitrary, oppressive, and unjust, in expressing an opinion calculated to prejudice the jury against the prisoner, in preventing prisoner's counsel from citing certain authorities, and in preventing said counsel from addressing the jury upon the law. II. Allegation, that on the trial of one Callender for libel, he refused to excuse a juryman who had made up his mind. III. Allegation, that on the same trial he would not permit the evidence of a certain material witness to be given. IV. Allegation, that on the same trial his conduct was marked by manifest injustice and partial