prejudiced in his constitutional rights because of the time or order of raising the question. "The Constitution provides that no person shall be convicted [on impeachment] without the concurrence of two-thirds the members present.' Concurrence means more than occasional union of minds. The word signifies running along with each other. That is, no person can be convicted without the agreement of two-thirds of the members present upon every point necessary to and included in the conviction." 21 All but three of the senators who voted that they had no jurisdiction, voted not guilty, most stating at the time of the vote that they did so for want of jurisdiction.22 That has been the usual practice in the senates of the different States.23 $ 109. Imposition of Penalty upon Conviction. After the respondent has been voted guilty, the Senate proceeds to fix the punishment to which he shall be subjected. The House of Lords has unlimited power to punish upon impeachments. It may and has sentenced upon conviction, to death, exile, fine, forfeiture, imprisonment, or simply removal from office or disqualification from specified offices, according to the nature of the offense.1 The Constitution of the United States provides that, - "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." 2 Most State constitutions are similar in this respect. When the President, Vice-President or an officer of the United States is convicted upon impeachment, he must be removed from office according to the express language of the Constitution.3 The Senate has discretion whether to add to this penalty disquali 20 Senator Conkling in Belknap's Trial, pp. 909, 910. 21 Ex-Senator Matthew H. Carpenter, counsel for respondent, in Belknap's Trial, p. 1017. 22 Belknap's Impeachment Trial, pp. 1049-1059; supra, §§ 90, 92. 23 Botkin's Impeachment Trial, pp. 1379-1400. But see Barnard's Impeachment Trial, pp. 2122-2129, 21442149. § 109. 1 Comyn's Digest, Parliament, L. 44. 2 Constitution, Article I, Section 3. 3 Constitution, Article II, Section 4. fication to hold any office under the United States. In the case of Pickering, removal from office was the sole penalty imposed.1 In Humphreys' case, disqualification to hold any other office of honor or trust under the United States was also imposed.5 The Senate has no power to disqualify the respondent from holding office under any State. It may be that disqualification to hold office under the United States would prevent the party accused from practicing as an attorney and counsellor at law in any of the Federal courts.6 In impeachment trials before the State senates, those convicted. have been sentenced to suspension from office for a short term;7 to removal without any disqualification, to removal with disqualification to hold the office in which the offense was committed,9 to removal with disqualification to hold any judicial office for a term of three years, 10 to removal, disqualification for thirty years, and a fine of six hundred dollars to pay the costs,11 and to removal with perpetual disqualification.12 A discussion took place upon the trial of Humphreys' impeachment as to the form in which the penalty should be determined. It was believed by some senators that the proper method was to first vote whether the convict should be removed from office, and then whether he should also be disqualified. It was feared lest the adoption of the first question might be considered to amount to a judgment imposing a sentence which would prevent the imposition of any further penalty, and lest its rejection might be considered as a judgment of acquittal. So the division was taken upon an amendment adding disqualification to the motion for a removal.13 It seems that although a vote of two-thirds is essen + Pickering's Trial, Annals of Congress, 1803-1804, pp. 366-367. 5 Humphreys' Trial, Congressional Globe, 2d Session, 37th Congress, 1861, 1862, part iv, pp. 2942-2953. 6 See Addison's Trial, pp. 152-154; Ex parte Garland, 4 Wall., 333, 378. 7 In one case a year. Hunt's Impeachment Trial; Appendix to Prescott's Impeachment Trial, p. 216; infra, Appendix. 8 Trials of Robinson and Hillyer, Hardy's Trial, Greenleaf's Trial, Butler's Trial; infra, Appendix. • Addison's Trial, infra, Appendix. 10 Cox' Trial, pp. 2985-2989; infra, Appendix. 11 Osborne's Trial, infra, Appendix. 12 Barnard's Trial, Davis' Trial, Holden's Trial, Frazier's Trial, Goldsmith's Trial; infra, Appendix. 13 Humphreys' Trial, Congressional Globe, 2d Session, 37th Congress, 1861, 1862, part iv, pp. 2951-2953. tial to a conviction, a bare majority may impose the sentence.14 In the Senate of the United States the secretary of that body is usually directed to enter the judgment; and a certified copy thereof is deposited by him in the office of the Secretary of State.15 § 110. Pardons to Impeachments. The Constitution expressly excepts cases of impeachment from those in which the President of the United States has power to grant reprieves and pardons.1 In England, after the conflict in Lord Danby's case, it was provided in the Act of Settlement that the king should have no power to grant a pardon which might be pleaded in an impeachment, but that he might, after conviction, by a pardon relieve the convict from the punishment thereby imposed.2 "The difference is very important, for the pardon is not to be allowed till after judgment; it then comes too late to clear away the consequences of attainder; the blood ceases to be inheritable and cannot be completely restored but by act of Parliament; the king may indeed 14 Barnard's Impeachment Trial, vol. iii, pp. 2184-2193. 15 Senate Rules for Impeachments, XXII. In Holden's Impeachment Trial, pp. 2558-2559, the following judgment was made by the Senate: 66 The State vs. William W. Holden. 66 Whereas, the house of representatives of the State of North Carolina did, on the 26th day of December, 1870, exhibit to the Senate articles of impeachment against William W. Holden, governor of North Carolina, and the said Senate, after a full hearing and impartial trial, has, by the votes of two-thirds of the members present, this day determined that the said William W. Holden is guilty as charged in the 3d, 4th, 5th, 6th, 7th and 8th of said articles; "Now, therefore, it is adjudged by the senate of North Carolina sitting as a court of impeachment, at their chamber, in the city of Raleigh, that the said William W. Holden be re moved from the office of governor and be disqualified to hold any office of honor, trust or profit under the State of North Carolina. "It is further ordered, that a copy of this judgment be enrolled and certified by the chief justice as presiding officer, and the principal clerk of the senate, and that such certified copy be deposited in the office of the secretary of state." In Cox' Impeachment Trial, pp. 2985-2989, the judgment recited at length the articles on which the respondent had been convicted. It has been said that a court of common law upon the trial of an indictment is not bound by the rulings on an impeachment for the same offense. State v. Town Council (R. I.), 27 Atl. Rep., 599, 602. § 110. 1 Article II, Section 2. 2 Howell's State Trials, vol. xi, pp. 725-804; 13 W. III, ch. 2; Hallam's Constitutional History, Widdleton's ed., vol. ii, pp. 392-396. release forfeitures and confer new titles, but cannot revive the family honours in their antient state of precedence." " Moreover, as was shown in the case of Strafford, the king would be less likely to face the storm of public opinion after a conviction, at the end of a public trial in which the proof and the enormity of the offenses had been spread abroad, than before, when it might well be claimed that the pardon was granted to protect an innocent party from the expense of a defense against unjust charges. If an officer of the United States cannot resign his office without the consent of the power that appointed him, and the doctrines supported by the minority in Belknap's case be finally upheld, the President may indirectly, by the acceptance of a resignation, accomplish what he cannot do directly by a pardon. The Georgia Constitution of 1798 pardoned all previous convictions on impeachments. In England a judgment of conviction upon an impeachment can be reversed by an act of Parliament. Whether such a power exists in Congress remains undecided." See the proceedings as to the persons impeached by the Good Parliament (Stubbs, Constitutional History, 2d ed., vol. ii, p. 156), and on the bill to reverse Strafford's attainder, which failed to pass (Howell's State Trials, vol. vii, pp. 1571-1576). Attainders upon convictions before juries and on bills of attainder have been often thus reversed; e. g. in Lord Russell's case (Howell's State Trials, vol. ix, p. 695); in Strafford's case (ibid., vol. iii, p. 1525); Bolingbroke's case (ibid., vol. xv, p. 1004); and others, in Hatsell's Precedents, 3d ed., vol. ii, pp. 337-338, vol. iii, pp. 47-48, 62. Dr. Birch says, in his Life of Sir Walter Raleigh: "Mr. Carew Raleigh mentions that on his addressing himself to the Parliament to be restored in blood, King Charles the First sent to him and told him plainly, that on the obligation of 10,0001, he had promised the Earl of Bristol to secure his title to Sherburne Castle, and the estate belonging to it, against the heirs of Sir Walter Raleigh; that now, being King, he was bound to make good his promise, and therefore, unless Mr. Raleigh would quit all his right and title to Sherburne, he neither would nor could pass his Bill of restoration. Whereupon he, Mr. Raleigh, being then twenty years of age, left friendless and fortuneless, was prevailed on, by the promise of a subsistence, to conform to the King's will." The truth of this story is confirmed by the title of the Bill: "An Act for Restitution in Blood of Carew Raleigh, son of Sir Walter Raleigh, late attainted of High Treason; and for confirmation of certain Letters Patent made by our late Sovereign, Lord King James, to John, Earl of Bristol, by the name of John Digby, Knight." (Hatsell's Precedents, 3d ed., vol. iii, p. 62, note.) The Massa § 111. Concluding Observations upon Impeachments. Jefferson, in his disappointment at the acquittal of Chase, termed impeachment the scarecrow of the Constitution.1 ter metaphor is that of Somers, who called it the sword of Goliath, which is kept in the temple and brought out only on great occasions. To a superficial observer the former term may seem appropriate. Yet even that homely object, which we moderns have put in the place formerly occupied by the god Priapus, has its uses. The fear of the disgrace has caused the resignation of many corrupt judges, State and Federal, who shall here be nameless. It has caused many others to observe a certain respect for public decency which, had it not existed, they would have undoubtedly thrown off. It has made at least one President, Andrew Johnson, obey laws which he considered unconstitutional, but which had been passed over his veto, and in some State courts at least has caused judges to respect statutes of doubtful constitutionality which they would otherwise have disregarded. Now that nearly all the State constitutions permit the removal of judges by the votes of two-thirds or less of the members of a legislature, this simpler remedy is usually applied. But no such proceeding by Congress is authorized by the Constitution, and impeachments have proved efficacious in the United States. Although there have been many acquittals where the guilt charged seems to have been flagrant; yet the Federal judiciary has thus been purged in one case of a drunkard, and in another of a man who was waging war against the Union while retaining the legal power to free by habeas corpus any of his allies who were arrested for treason or made prisoners of war. In the State senates the convictions of Addison, Davis, Barnard and Cox have been chusetts legislature in 1711 reversed the judgments of conviction for witchcraft. The Rhode Island legislature in 1854, after his pardon, reversed the conviction of Dorr for treason, against the protest of the judiciary of that State. (Opinion of Judges, 3 R. I. Supp., 299. See Burgess, Political Science, vol. ii, p. 337. § 111. 1 Jefferson's Works, 1st ed., vol. vii, p. 192. 2 Howell's State Trials, vol. xv, p. 1394; Grey's Debates, vol. x, p. 206. 3 Supra, § 38. 4 Supra, § 98; infra, Appendix. 5 Pickering's case, supra, § 90. 6 Humphreys' case, supra, § 90. 7 Supra, § 94, infra, Appendix. |