078 



PUBLIC DOCUMENTS. 



if a person " b elected to aenre in the Commons, 

 ret may the Commons upon complaint of any crime 

 in iucli penon, and proof thereof, judge him dis- 

 abled to lit aa a member." But this sentence, even 

 if it mean* previous crime, wu But in the flint edi- 

 tion, nnJ wai added on the occasion of Wilkes's ex- 

 pulsion ; and its authority full with the subsequent 

 action of Parliament as to that mm, 



In 1SU WaUb wat expelled for having stolen 

 22,000, which offense wan committed beforo his 

 election. But he was expelled upon a record of his 

 conviction obtained during that same session of 

 Parliament. And as such expulsion can be main- 

 tained on the ground that the being convicted of 

 felony was such a breach of good conduct during the 

 term of office as to justify expulsion, even that case 

 furnishes no precedent for the power, if the usage 

 of Parliament was to control. And that it Is not to 

 control was declared by the Supreme Court in An- 

 derson tt. Dunn, where the court nay " the Ameri- 

 can legislative bodies have never possessed the om- 

 nipotence of Parliament, which may have led occa- 

 sionally to the exercise of caprice under the f pecious 

 ppearance of merited resentment." 



On the other hand, any precedent against the power 

 is equally wanting. Marshall's case, in which the 

 Senate refused, even upon his consent, to try him 

 for an offense committed before his election, I under- 

 stand to have proceeded upon other grounds; and in 

 Matteson's second case, although the resolution for 

 impeachment was rejected, it is impossible to say 

 whether the rejection was because the offense was 

 committed in a previous Congress, or because the 

 previous Congress had proceeded against him for 

 the offense. Bo in the case of Porter, where the 

 House- decided to admit him by a vote of 126 to 4, the 

 debate shows that the case turned on the improprie- 

 ty of excluding a man because of his opinions, not 

 upon whether they Lad been expressed previous to 

 in of office. 



If. having then no precedent to guide us, we turn 

 to authority and opinion, we shall find the question 

 equallv uns. 



In the Convention which framed the Constitution 

 the original resolution provided for " impeachment 

 or removal for malpractice or neglect of duty." (4 

 Elliott, p. 149.) During the debate as to impeach- 

 ment of the Executive, Mr. Randolph said : " Should 

 no regular punishment be provided it will be irreg- 

 ularly inflicted by tumults and Insurrection ; " while 

 Dr. franklin insisted upon impeachment as a sub- 

 stitute for " assassination," which, he said, " had 

 been the previous practice in cases where the chief 

 magistrate rendered himself obnoxious." (fi Elliott. 

 pp.S41-S42) Later the language was changed to 

 impeachment for treason, bribery, and maladminis- 

 tration ; finally to " treason, briherv, and other high 

 crimes, and misdemeanors." Much was said as to 

 the President's being bribed to make improper 

 treaties, corrupt negotiations with foreigner*, snd 

 the like, but I have found no reference in the de- 

 bites to any intention to impeach for offenses before 

 entering upon the office. 



rnry writings afford no better light. 

 Hamilton treats of the power and the tribunal in the 

 sixty-fifth and sixty-sixth numbers of the ttdrralitt. 

 Speaking of " the* delicacy and magnitude of the 

 trust," he snys "that the jurisdiction extends to 

 those offenses which proceed from the miscoinlm't 

 of public men, from the abuse or violation of some 

 public tnist. They are of a nature which may be 

 denominated political, as they relate chiefly to In- 

 juries done Immediately to the society itself." 



In 1798 Jefferson wrote: "I see nothing in the 

 mode of proceeding by impeachment, but the most 

 formidable weapon for the purposes of dominant 

 faction that ever was contrived. It would be the 

 most effectual on* of getting rid of any man whom 

 they consider as dangerous to their views." 



As the apeeia) committee say, none of the eom- 

 s limit the power to the time of the offense. 



But on the other hand none assert it. They all, in- 

 deed, assert that the power is discretionary. But so 

 far from asserting that it should be cv 

 previous offenses, or from " accepting or seeming to 

 rely upon Mr. Adams's exposition," Story expressly 

 declares (section 05) the question to be un 

 and mi judiet, and that he expresses no opinion 

 thereon. Sargeant does not even refer t" ii ': 

 statement of the Smith case. Bawle Mate- tl 

 verse (page 47), and 1 cannot find that Kent, or Ducr, 

 or Bayard, alludes to it. 



Referring to the debates in Congress, wo find that 

 in Blount's case, Mr. Bayard and Mr. Harper main- 

 tained the power ; Mr. Dallas and Mr. Ingcrsoll, de- 

 nied it. In Smith's cose, Mr. Adams and hi.- 

 mittee maintained the power; Mr. Hillbouse di-nii J 

 it. In Mattrson's case, Mr. Harris. Mr. Hughes, Mr. 

 Jones, and Mr. Curtis, maintained the power ; Mr. 

 Scward, Mr. Stanton, Mr. Tnvlor, Mr. Nichols. Mr. 

 Olin, Mr. Grow denied it. V hilt- lately the action 

 of the Senate committee in the Caldwell case, in re- 

 porting that bribery vitiated the election of that 

 Senator, instead of reporting a resolution expelling 

 him for the bribery, would seem to indicate that 

 they regarded the power at least as doubtful. 



So that after ninety vcars this question is] mfented 

 without precedent or settled authority, and thai, 

 under circumstances which, since the impeachment 

 cannot possibly be followed by trial, our dccisi'in in 

 favor ot the power would be in effect the determina- 

 tion of an abstract question. 



Considering, then, the question upon principle, it 

 hns been urged upon the one hand, with LT> a' 

 in the language ot Mr. Adams, as quoted l>v tl 

 cial committee: " The [ <>.' . i r of expelling number 

 for misconduct remits, on the principles of commpn- 

 sense, from the interests of the nation that a liiuh 

 trust of legislation shall be invested in pure hands. 

 the triiM is elective, it is not to be presumed 

 that the constituent 1'oily will commit the deposit to 

 the keeping of worthless characters. But when a 

 man whom his fellow-citizens have honored with 

 their confidence, on a pledge of a spotless reputation, 

 has degraded himself by the c< mmiBsion of infrnious 

 crimes, which become suddenly ami unexpectedly 

 revealed to the world, defective indeed would bo 

 that institution which should be impotent to <l 

 from its bosom the contagion of such a member." 



On the other hand, it is to be rum inhered, the 

 Constitution has defined the qualifications of the 

 Prcsi. rs. mill I!i presi ntntivi s, in resin ct 



of birth. (!}_< 1', and residence. To |MM 



qualifications neither Congress nor any State has 

 power to add other or further qualifications. It will 

 be admitted that neither Congress nor any State, nor 

 both together, can pass any valid law making free- 

 dom from crime, or good character, a qualification of 

 or prcrequi'- .Mati.n. Can cither House, 



then, be at liberty by the exercise of its absolute 

 power of discretion as to expulsion to create such an 

 extra-constitutional qualification? If it \< niMstcd 

 thnt Representiitives nnil Senators have a right, "in 

 order to secure their own dignity and the just influ- 

 ence of the body," to expel from association with 

 them a man guilty of infamous crimes before he 

 came into office, no matter how exemplary his official 

 behavior, may i> not be answered thnt hud the 

 framers of the Constitution so intended they would 

 have made good character and freedom from former 

 crime a qualification to office. Where the ! 

 crime was known to the electors it is generally con- 

 ceded, even by those who sustain the powi r. that 

 it ought not to be ground for impeachment or expul- 

 sion ; and the strongest case for the exercise of tho 

 power in, of course, the case put by Mr. Adams, 

 where the former offense was not known, and where, 

 therefore, the choice of the electors cannot 1 

 sidcred to be overthrown bv the inn of tho 



officer or the expulsion of the member. But even in 

 the cose of & former crime being unknown, the 

 dy of punishment by the ordinary tribunals, and the 



