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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 o 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 ; ano 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 Repre. sentatives, which, when reported to, and approved by 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 the party to appear, at a given day, before them, to an swer the articles. The process is served by the sergeant at-arms of th: Senate, and due return is made thereof under oath.
$ 128. The articles thus exhibited, need not, and indeed do not, pursue the strict form and accuracy of an indictment. They are sometimes quite general in the form of the allegations ; but always contain, or ought to contain, so much certainty, as to enable the party to put himself upon the proper defence, and also, in case of an acquittal, to avail himself of it, as a bar to another impeachinent. Additional articles may be exhibited, perhaps, at any stage of the prosecution.
§ 129. When the return day of the process for appearance has arrived, the Senate resolve themselves into a court of impeachment, and the Senators are at that time, or before, solemnly sworn, or affirmed, to do impartial justice upon the impeachment, according to the Constitution and laws of the United States. The person impeached is then called to appear and answer the articles. If he does not appear in person, or by attorney, his default is recorded, and the Senate may proceed ex parte (that is, on the claim of one side) to the trial of the impeachment. If he does appear in person, or by attorney, his appearance is recorded. Counsel for the parties are admitted to appear, and to be heard upon an impeachment.
$ 130. When the party appears, he is entitled to be furnished with a copy of the articles of impeachment, and iime is allowed him to prepare his answer thereto. The answer, like the articles, is exempted from the necessity of observing great strictness of form. The party may plead, that he is not guilty, as to part, and make a furiher defence, as to the residue; or he may, in a few words, saving all exceptions, deny the whole charge or charges; or he may plead specially, in justification or excuse of the supposed offences, all the circumstances attendant
the case. And he is also indulged with the liberty of offering argumentative reasons, as well as facts, against the charges, in support, and as part, of his
inswer, to repel them. It i: usual to give a full and particular answer separately to ezh article of the accusation. · § 131. When the answer is prepared and given in, the next regular proceeding is for the House of Representatives to file a replication to the answer in writing, in substance denying the truth and validity of the defence stated in the answer, and averring the truth and sufficiency of the charges, and the readiness of the House to prove them at such convenient time and place, as shall be appointed for that purpose by the Senate. A time is then assigned for the trial; and the Senate, at that period or before, adjust the preliminaries and other proceedings proper to be håd, before and at the trial, by fixed regulations ; which are made known to the House of Representatives, and to the party accused. On the day appointed for the trial, the House of Representatives appear at the bar of the Senate, either in a body, or by the managers selected for that purpose, to proceed with the trial. Process to compel the attendance of witnesses is previously issued at the request of either party, by order of the Senate ; and at the time and place appointed, they are bound to appear and give testimony. On the day of trial, the parties being ready, the managers to conduct the prosecution open it on behalf of the House of Representatives, one or more of them delivering an explanatory speech, either of the whole charges, or of one or more of them. The proceedings are then conducted substantially, as they are upon common judicial trials, as to the admission or rejection of testimony, the examination and cross-examination of witnesses, the rules of evidence, and the legal doctrines, as to crimes and misdemeaniors. When the whole evidence has been gone through, and the parties on each side have been fully neard, the Senate then proceed to the consideration of the case. If any debates arise, they are conducted in secret ; if none arise, or after they are ended, a day is assigned for a final public decision by yeas and nays
ipez each separate charge in the articles of impeachme: When the court is assembled for this purpose, the "estion is propounded to each member of the Sen.
ate by name, by the President of the Senate, in the following manner, upon each article, the same being first read by the Secretary of the Senate. how say you, is the respondent guilty, or not guilty. of a high crime ana misdemeanor, as charged in the article of impeachment ?” Whereupon the member rises in his place, and answers guilty, or not guilty, as his opinion is. If upon no one article, two thirds of the Senate decide, that the party is guilty, he is then entitled to an acquittal, and is declared accordingly to be acquitted by the President of the Senate. If he is convicted of all, or any, of the articles, the Senate then proceed to fix, and declare the proper punishment. The pardoning power of the President does not, as will be presently seen, extend to judgements upon impeachment ; and hence, when once pronounced, they become absolute and irreversible.
§ 132. Having thus gone through the whole subject of impeachments, it only remains to observe, that a close survey of the system, unless we are egregiously deceived, will completely demonstrate the wisdom of the arrangements made in every part of it. The jurisdiction to impeach is placed, where it should be, in the possession and power of the immediate representatives of the people. The trial is before a body of great dignity, and ability, and independence, possessing the requisite knowledge and firmness to act with vigor, and to decide with impartiality upon the charges. The persons subjected to the trial are officers of the national government ; and the offences are such, as may affect the rights, duties, and relations of the party accused, to the public in his political or official character, either directly or remotely. The general rules of law and evidence, applicable to common trials, are interposed, to protect the party against the exercise of wanton oppression, and arbitrary power. And the final judgement is confined to a removal from, and disqualification for, office; thus limiting the punishment to such modes of redress, as are peculiarly fit for a political tribunal to administer, and as will secure the public against political injuries. In other respects, the offence