the courts are reinstated, it is a gross usurpation of power. Martial rule can never exist where the courts are open and in the proper and unobstructed exercise of their jurisdiction."

§ 714. These sweeping conclusions of the Supreme Court seem to be open to some criticism. Mr. Justice Davis in the passage quoted, seems to have confounded martial law with military government, and to have overlooked the fact that martial law is not in any true sense a judicial proceeding, or a means of executing the civil laws, but is a method of waging war. It may be conceded that the President has no authority to declare or proclaim martial law, and make it general in a district where the courts are open and unobstructed; Congress certainly has none. But the President, as Commanderin-Chief, wages war; the sole object of his hostile endeavors is success. In respect to some of his operations he is certainly untrammelled by the restraining clauses of the Bill of Rights. In an internal war of rebellion the enemies are citizens and traitors, and thus guilty of civil offences; but he may kill or capture them, or seize and destroy their property, and thus break up their armed opposition. The possibility of civil war therefore demands at least one implied exception to the general clauses of the first eight amendments. May it not admit of others? One other is universally conceded. A citizen civilian, in no way connected with the hostile array as a belligerent, who should act as a spy upon the military movements, operations, and preparations, may be seized, tried, and punished by military agents. The explanation of this acknowledged rule is simple and plain. A spy interferes directly with the process of waging war; he perils the success of extensive campaigns; he renders the final result of the struggle doubtful; he is in fact acting as an enemy, may be treated as an enemy, and as an enemy forfeits all civil protection, even though his offence might also be considered as treason. This illustration may serve to indicate the occasions upon which the President may resort to martial law, and the limits upon its exercise by him. Whenever a civilian citizen or alien is engaged in practices which directly interfere with waging war, which directly affect military movements and operations,

and thus directly tend to hinder or destroy their successful result, and when, therefore, these practices are something more than mere seditious or traitorous designs or attempts against the existing civil government, the President as Commander-in-Chief may treat this person as an enemy, and cause him to be arrested, tried, and punished in a military manner, although the civil courts are open, and although his offence may be sedition or treason, or perhaps may not be recognized as a crime by the civil code.

I am aware that such a person would not technically be an enemy, and if arrested would not technically be a prisoner of war; but he would be a quasi-enemy, and would have placed himself beyond the pale of civil protection. If these views are correct, it follows that the legality of every military arrest, trial, and punishment must be determined upon its own circumstances, and not according to any general and inflexible rules. In fact, these proceedings would be placed upon exactly the same footing as those other apparent breaches of the Bill of Rights which consist in destroying the private property of civilians, or appropriating it to use, when military exigencies demand such measures.1

SECTION VIII.

IMPEACHMENT.

§715. The clauses of the Constitution which directly refer to Impeachment are the following: "The House of Representatives shall have the sole power of impeachment." Art. I. Sec. II. § 5. "The Senate shall have the sole power to try all impeachments; when sitting for that purpose they shall be on oath or affirmation. When the President of the United States is tried, the Chief Justice shall preside, and no person shall be convicted without the concurrence of two thirds of the members present. 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 1 See §§ 254-256.

profit under the United States, but the party convicted shall, nevertheless, be liable and subject to indictment, trial, judgment, and punishment according to law." Art. I. Sec. III. §§ 6 and 7. "The President and Vice-President and all civil officers of the United States shall be removed from office on impeachment for, and conviction of, treason, bribery, and other high crimes and misdemeanors." Art. II. Sec. IV. The important questions which arise from these provisions are: (1.) Who may be impeached. (2.) What are the legal grounds of an impeachment. (3.) What punishment may be inflicted. respect to the second of these questions, there is a direct opposition of opinion among public writers and statesmen, and no conclusion has been reached with so much certainty that it may be considered as incorporated into the constitutional law. I can do no more, therefore, than state the positions which have been maintained, the arguments in their support, and my own preferences. All that is said must be, to a certain extent, speculative.

In

§ 716. (1.) Who may be Impeached. The language of the Constitution plainly excludes all private persons, and all officers in the land and naval forces; does it include all individuals holding an official position under the United States, whose duties are civil in their nature as opposed to military? In 1797, upon the trial of an impeachment preferred against William Blount, a Senator, the Senate decided that members of their own body are not "civil officers" within the meaning of the Constitution, and therefore dismissed the charges without any examination upon the merits. This rule must apply also to members of the Lower House; and, as far as the precedent can be considered an authority, it may be regarded as settled that Senators and Representatives are not impeachable. The term "civil officers" embraces, therefore, the judges of the United States courts, and all subordinates in the Executive department. This construction which includes the judiciary and excludes the legislature, is, to say the least, somewhat strained. The discretion given to legislators is and must be very great; no limits can be placed upon its ordinary use within constitutional bounds; but its unlawful, corrupt, or

heedless exercise should be restrained by some compulsive sanction. The law-makers may be guilty of treason, bribery, or other official acts to which the term "high crimes and misdemeanors" is applied; the consequences of their guilt may be ruinous; every consideration in favor of subjecting President or judges to the liability of an impeachment, would seem to apply with equal force to them. It is true that Senators 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 reëxamine 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.

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The second branch of the argument is based upon the peculiar phraseology of the Constitution. It may be condensed as follows: Officers can be impeached only 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,

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.