misdemeanors " is to be taken in a strict technical sense as a phrase of the English law equivalent to "felonies and misdemeanors," and that the words are not merely indicative and descriptive of general classes of acts.

§723. This whole theory is therefore another illustration of the constant tendency among political writers and statesmen to argue from the British Constitution to our own, without any regard to the fundamentally different ideas upon which they are based, and the fundamentally different methods by which these ideas are made practical. The powers of Congress are measured by those of Parliament, the powers of the President by those of the Crown. The principle that words having a technical meaning in the English jurisprudence as it stood when our organic law was framed, are to receive the same and no greater meaning if found in the Constitution, has been advocated in every great political and forensic contest which has arisen since the organization of the government. This principle, as far as it purports to embody a general rule of interpretation, has been repeatedly repudiated by the judiciary and by the political departments. Thus, Congress has given to the words "Admiralty" and "Bankruptcy" a far broader signification than belonged to them by the English law when the Constitution was adopted, and the courts have approved the legislative construction. The true rule would seem to be this: Where words having a well known technical sense by the English law are used in the Constitution, and these words are the keys of clauses which protect the private rights and liberties of the people, and especially of clauses which impose direct restraints upon the government in respect of such rights and liberties, and the technical sense itself is necessary for the complete protection of the individual citizen, this signification must still be retained in any interpretation of those provisions. But on the other hand, where words which had a technical meaning by the English law, are used in clauses which relate to the general functions of legislation and of administration, and to the political organization and powers of the government, such a sense must be attributed to them as will best carry out the design of the whole organic law, whether that

signification be broader or narrower than the one which had received the sanction of the English Parliament and Courts.

§ 724. Applying this criterion, we must reject the interpretation which makes impeachment under the Constitution coextensive only with impeachment as it practically exists in England. The word is borrowed, the procedure is imitated, and no more; the object and end of the process are far different. We must adopt the second and more enlarged theory, because it is in strict harmony with the general design of the organic law, and because it alone will effectively protect the rights and liberties of the people against the unlawful encroachments of power. Narrow the scope of impeachment, and the restraint over the acts of rulers is lessened. If any fact respecting the Constitution is incontrovertible, it is that the convention which framed, and the people who adopted it, while providing a government sufficiently stable and strong, intended to deprive all officers, from the highest to the lowest, of any opportunity to violate their public duties, to enlarge their authority, and thus to encroach gradually or suddenly upon the liberties of the citizen. To this end elections were made as frequent, and terms of office as short, as was deemed compatible with an uniform course of administration. But lest these political contrivances should not be sufficient, the impeachment clauses were added as a sanction bearing upon official rights and duties alone, by which officers might be completely confined within the scope of the functions committed to them. We cannot argue from the British Constitution to our own, because the English impeachment is not, nor was it intended to be, such a sanction. But the English law recognizes a compulsive measure far more terrible, because far more liable to abuse than impeachment. What the British. Commons and Lords may not do by impeachment, the Parliament may accomplish by a Bill of Attainder. If the Commons can only present, and the Lords can only try, articles which charge an indictable offence, there is no such restriction upon their resort to a Bill of Attainder, or of Pains and Penalties. The Constitution has very properly prohibited this species of legislation; but the Constitutional impeachment was

intended to partially supply its place under another and better form, by introducing the orderly methods of judicial trial, and by requiring a majority of two thirds of the Senate to convict.

§725. The same considerations will apply with equal force to that branch of the argument which is based upon the phrase "high crimes and misdemeanors." Even had the words been "felonies and misdemeanors," we should not be obliged to take them in a strict technical sense; they would be susceptible of a more general meaning descriptive of classes of wrongful acts, of violations of official duty punishable through the means of impeachment. But in fact the language used cannot be reconciled with the assumed technical interpretation. The phrase "high crimes and misdemeanors seems to have been left purposely vague; the words point out the general character of the acts as unlawful; the context and the whole design. of the impeachment clauses show that these acts were to be official, and the unlawfulness was to consist in a violation of public duty which might or might not have been made an ordinary indictable offence.1

§ 726. These views are strengthened by a reference to the practical results which would follow from the restriction of impeachment to those offences that had been made indictable. Such a construction would remove from this sanction its chief compulsive efficacy. The importance of the impeaching power consists, not in its effects upon subordinate ministerial officers,

1 It is sometimes proper to meet a very narrow argument by a very narrow answer. In truth the word "crime" was not a word of strict technical import, was not a term of art, in the English law when the Constitution was adopted, much less the words "high crimes." Crime" was of course used in literature and in conversation, and was found in treatises by approved writers on law, such as Blackstone. But if we go to indictments, which were drawn in accurate legal phraseology, we shall not discover the word "crime" or "criminally" employed. The accused was alleged to have done an act "feloniously," or "wrongfully" or "unlawfully," or "with force and arms," or "against the peace of our lord the King," but never "criminally." If it appears then that "crime" was not a technical word of art, but only a word of general description, the whole of this branch of the argument at once falls to the ground. And if "crimes" be not a word of art, the inference is irresistible that "misdemeanors" is also used in a general descriptive and not in a technical sense.

but in the check which it places upon the President and the judges. They must be clothed with an ample discretion; the danger to be apprehended is from an abuse of this discretion. But at this very point where the danger exists, and where the protection should be certain, the President and the judiciary are beyond the reach of Congressional legislation. Congress cannot, by any laws penal or otherwise, interfere with the exercise of a discretion conferred by the Constitution. Even had the legislature been clothed with express authority to define and punish crimes generally, they could not make criminal any kind of act which the Constitution permits the President or the judges to do, and subject these individuals to indictment therefor. But in fact the express authority of Congress to define and punish crimes, is very limited. If the offence for which the proceeding may be instituted, must be made indictable by statute, impeachment thus becomes absolutely nugatory against those officers and in those cases where it is most needed as a restraint upon the violations of public duty.

§727. As far as can be gathered from their proceedings. and debates, the convention which framed the Constitution did not intend to limit the operation of the impeachment clauses to indictable offences. At an early stage of the discussions, the following was added to the series of general propositions respecting the President: "He shall be removed on impeachment and conviction of malpractice or neglect of duty." This form was preserved through all the important debates upon the impeaching power. No suggestion was made that an offence must be indictable in order to be impeachable. The opposition came from another quarter. Gouverneur Morris, who favored a very short term of office, objected to the provision because it would destroy the independence of the Executive; but when the term was fixed at four years he withdrew all opposition. The propositions having been referred to a committee, they were reported back with the clause as follows: "He [the President] shall be removed from his office on impeachment by the House of Representatives, and conviction in the Supreme Court, of treason, bribery, or corrup

tion." A reference of the whole draft having been made to a revising committee, they reported back the clause so changed as to make the President removable upon impeachment and conviction "for treason or bribery." A short debate arose upon this report. Col. Mason objected to the provision because it was not broad enough. He urged that the President might be guilty of many public offences besides bribery and treason. He said, "As bills of attainder are forbidden, it is more necessary to extend the power of impeachment." He moved to add the words" or maladministration." Mr. Madison objected to this term as too vague. Gouverneur Morris saw no harm in it. Col. Mason then withdrew the proposed words, and substituted" and other high crimes and misdemeanors against the state," which was adopted. The revising committee finally reported the clause as it now stands.1

When the Constitution was presented to the people for adoption, one of its most able opponents was Luther Martin. In his celebrated letter to the Maryland legislature he objected with great vehemence to the Presidential powers and office. He also considered the effect of the impeachment clauses. Had they been deemed insufficient in theory to meet the dangers he feared, no man would have been more ready or able to point out the defect, because no man was more conversant with the English law than he. But he distrusted the efficacy of impeachment, not because it was inapplicable to any offences except those against positive law, but because he believed the House would never impeach. Mr. Madison, in 1789, expressed his opinion in the most formal and authoritative manner that the President is impeachable for "the wanton removal of meritorious officers."3 These references indicate how the impeaching power was regarded by the framers of the Constitution.

-The Con

§ 728. (3.) What Punishment may be inflicted. stitution prescribes the nature and limit, removal from

1 See Journal of the Convention, 1 Elliott's Deb. pp. 158, 213, 222, 228. Also Madison's Debates, 5 Elliott's Deb. pp. 149, 335, 340-343, 366, 380, 507, 528.

2 See § 644.

8 See § 649.