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ernment, 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 are 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 tribunals. 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.

§ 403. The next inquiry is, what are impeachable offences? They are "treason, bribery, or other high crimes and misdemeanours." For the definition of treason, resort may be had to the constitution itself; but for the definition of bribery, resort is naturally and necessarily had to the common law; for that, as the common basis of our jurisprudence, can alone furnish the proper exposition of the nature and limits of this offence. The only practical question is, what are to be deemed high crimes and misdemeanours? Now, neither the constitution, nor any statute of the United States, has in any manner defined any crimes, except treason and bribery, to be high crimes and misdemeanours, and as such impeachable. In what manner, then, are they to

be ascertained? Is the silence of the statute book to be deemed conclusive in favour of the party, until congress have made a legislative declaration and enumeration of the offences, which shall be deemed high crimes and misdemeanors? If so, then, as has been truly remarked, the power of impeachment, except as to the two expressed cases, is a complete nullity; and the party is wholly dispunishable, however enormous may be his corruption or criminality. It will not be sufficient to say, that in the cases, where any offence is punished by any statute of the United States, it may, and ought to be, deemed an impeachable offence. It is not every offence, that by the constitution is so impeachable. It must not only be an offence, but a high crime and misdemeanour. Besides; there are many most flagrant offences, which, by the statutes of the United States, are punishable only, when committed in special places, and within peculiar jurisdictions, as, for instance, on the high seas, or in forts, navy-yards, and arsenals, ceded to the United States. Suppose the offence is committed in some other, than these privileged places, or under circumstances not reached by any statute of the United States, would it be impeachable?

§ 404. Again, there are many offences, purely political, which have been held to be within the reach of parliamentary impeachments, not one of which is in the slightest manner alluded to in our statute book. And, indeed, political offences are of so various and complex a character, so utterly incapable of being defined, or classified, that the task of positive legislation would be impracticable, if it were not almost absurd to attempt it. What, for instance, could positive legislation do in cases of impeachment, like the charges against Warren Hastings, in 1788? Resort, then, must be had either

to parliamentary practice, and the common law, in order to ascertain, what are high crimes and misdemeanours; or the whole subject must be left to the arbitrary discretion of the senate, for the time being. The latter is so incompatible with the genius of our institutions, that no lawyer or statesman would be inclined to countenance so absolute a despotism of opinion and practice, which might make that a crime at one time, or in one person, which would be deemed innocent at another time, or in another person. The only safe guide in such cases must be the common law, which is the guardian at once of private rights and public liberties.

§ 405. 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 misdemeanour. 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, that 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 misdemeanours, is to be ascertained by a recurrence to that great basis of American jurisprudence.

§ 406. As it is declared in one clause of the constitution, that "judgment, in cases of impeachment, shall not extend further, than a removal "from office, and disqualification to hold any office of

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"honour, trust, or profit, under the United States;" and in another clause, that "the president, vice-presi"dent, and all civil officers of the United States, shall "be removed from office on impeachment for, and con"viction of, treason, bribery, or other high crimes or "misdemeanours ;" it would seem to follow, that the senate, on the conviction, were bound, in all cases, to enter a judgment of removal from office, though it has a discretion, as to inflicting the punishment of disqualification. If, then, there must be a judgment of removal from office, it would seem to follow, that the constitution contemplated, that the party was still in office at the time of the impeachment. If he was not, his offence was still liable to be tried and punished in the ordinary tribunals of justice. And it might be argued with some force, that it would be a vain exercise of authority to try a delinquent for an impeachable offence, when the most important object, for which the remedy was given, was no longer necessary, or attainable. And although a judgment of disqualification might still be pronounced, the language of the constitution may create some doubt, whether it can be pronounced without being coupled with a removal from office. There is also much force in the remark, that an impeachment is a proceeding purely of a political nature. It is not so much designed to punish an offender, as to secure the state against gross official misdemeanors. It touches neither his person, nor his property; but simply divests him of his political capacity.

§ 407. Having thus gone through the 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 jurisdic

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tion 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 vigour, 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 judgment 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 is left to be disposed of by the common tribunals of justice, according to the laws of the land, upon an indictment found by a grand jury, and a trial by jury of peers, before whom the party is to stand for his final deliverance, like his fellow citizens.

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