Impeachment is a political process. The decision as to what the law is is made by the powers which act in this process as accuser and judge, inasmuch as they carry out the constitutional provisions in accordance with the interpretation which seeins to them just. There is no appeal from their decision.

The constitution presupposes that it is well known what an impeachment is. And as it is a technical expression, this implies that the proceeding known in English law by this name is meant. But it is by no means to be said that the English idea must be accepted without any modification. Whether it has been changed, and if so how, must be deduced from the further provisions of the constitution on this point, as interpreted by both houses of congress, when engaged in their respective functions in conducting impeachments.

Art. II., sec. 4, reads: "The president, vice-president, and all civil officers of the United States shall be removed from office on impeachment for and conviction of treason, bribery, or other high crimes or misdemeanors." The wording of this paragraph raises a most significant question. Farrar (p. 436) thinks that emphasis must be laid upon the effect which conviction is to have upon the designated persons impeached for the causes assigned, and thus he comes to the conclusion that any other person may also be impeached. But since there is nowhere else in the constitution anything said as to who shall be subject to impeachment or in what cases it shall come to pass, while another paragraph contains more definite provisions as to the consequences of conviction,— in view of this it has always been the opinion of the most prominent jurists and statesmen as well as of the entire public, that the clause cited must be held to settle these two questions, and, of course, that only the persons named

are subject to impeachment and they only for the causes mentioned. This must be held to be the valid constitutional law, as long as the house of representatives does not impeach, and the senate does not hold itself competent to try, under impeachment, a person who is not a "civil officer" of the United States. The two houses did not at first agree as to the limit of the power. Senator Blount was impeached by the house in 1798, but the senate, by a majority vote, declared itself incompetent to hear the case. It is self-evident that neither the house of representatives nor the senate is bound by this decision. But it will scarcely be questioned that members of congress are not "civil officers" of the United States, within the meaning of this constitutional provision. It has never been disputed that judges come under this designation. It has been asserted, however, that impeachment is admissible only as long as the person concerned remains in office. One effect of this would be that every official threatened with impeachment could escape it by resignation. The house of representatives decided against this doctrine, in 1876, by the impeachment of Secretary of War Belknap.

There have been more vigorous discussions over the proper interpretation of the constitutional provisions in regard to the grounds of impeachment. It is agreed that the incriminating acts must have some relation to the official action of the person concerned, since impeachment aims at the preservation of public interests. But the two houses have by no means assented to the view, so energetically defended, that only official acts present a constitutional ground for an impeachment. Just as little have they ever held that the words "high crimes and misdemeanors" are to be understood in their technical sense, and that an impeachment can be based only upon

acts which the federal laws have expressly declared to be "felonies" or "misdemeanors;" that is, "indictable offenses." Some authorities — and they agree in this with congress-are, nevertheless, of the opinion, that the words are not to be understood in the misty and vague sense they have in ordinary speech, but are to be interpreted by the rules of the common law. This opinion will never go unquestioned, because the very existence of a general common law" of the United States is strenuously denied.1 Practically the matter takes this form, that the individual views of the then members of congress must always determine what they will regard as high crimes and misdemeanors within the meaning of the constitution. Neither the arguments of authorities on jurisprudence nor precedents can bind them any further than they wish to be bound.

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As to the effect of impeachment, art. I., sec. 3, § 7, says: "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." It is evident from the second clause that the purpose of impeachment is not the punishment of the guilty person,

1 Apart from this, the common law, as is well known, plays nearly as large a part in American as in English legal life. An American common law may therefore be spoken of even by one who, like myself, holds the opinion stated in the text, provided that the expression is understood to mean the common law in the United States and not the common law of the United States. On the common law in the United States, see J. D. Wheeler, American Common Law, 8 vols., N. Y., 1833-1836; W. A. Cocke, Common and Civil Law in the U. S. Courts, N. Y., 1871; O. W. Holmes, Jr., The Common Law, Boston, 1881.

but the protection of public interests from danger or injury by abuse of official power, neglect of duty or conduct incompatible with the dignity of the office. The punishment of all crimes and punishable misdemeanors according to law remains entirely with the ordinary courts, in the regular course of judicial proceedings. As to the consequences of a conviction in an impeachment trial, the wording of the constitution admits of a twofold interpretation. In theoretical circles it is usual to assume that, according to the constitution, conviction incapacitates the culprit for filling any federal office. This view is, however, not only not shared by the most profound jurists, but the senate has already in one case (that of John Pickering, 1804) passed sentence of only a removal from the office then held. The theory which has also been advanced, that a less penalty than removal from office may be imposed (Farrar, pp. 434, 435), will probably never be approved by the senate. It is founded, indeed, only upon far too subtle verbal criticism, and it conflicts. with the very substance and purpose of impeachment. In cases of impeachment the president has no right of pardon (art. II., sec. 2, § 1).

As to the method of procedure, the constitution contains three provisions. The senators shall be on oath or affirmation when the senate meets as a court of impeachment; if the president is impeached, the chief justice of the supreme court shall preside; and for conviction a two-thirds majority of all the members present shall be necessary (art. I., sec. 3, § 6). Everything else as to procedure is left to congress. But it is self-evident that congress is bound by all the provisions of the constitution in point. Tiffany's view (p. 354) is therefore to be rejected

1 See the detailed description in Story, § 807 et seq.

without question. He holds that congress may arrest an impeached president and suspend him from office during the proceedings. But this would place the president, who is a co-ordinate, and within his constitutional sphere an independent, factor of the federal government, completely in the hands of a hostile majority of both houses of congress.1 Pomeroy (p. 494) may be cited against Tiffany. He holds that, in the case of an official whose term of office is not fixed by the constitution, the question is to be decided upon grounds of equity and expediency, because there are no insuperable constitutional objections to suspension in such a case.

INTERNATIONAL RELATIONS AND MILITARY SOVER

EIGNTY.

§ 47. INTERNATIONAL RELATIONS. The powers of congress in regard to international relations are few in number. The first provision on this point which authorizes congress "to define and punish . . . offenses against the law of nations" (art. I., sec. 8, § 10), considered from a certain point of view, should be discussed in the paragraphs concerning justice. The right in this case is clearly also a duty, and the duty has been met and discharged by the passage of so-called neutrality laws, which have often played an important part in the inner history of the United States.3

The other powers of congress in this respect all relate to the condition of war, and must be discussed in con

1 The disposition prevailing against Andrew Johnson in 1868 leaves little room for doubt that congress would have proceeded against him in this way if it had considered itself able to do so.

2 Judges are thus excluded.

3 The other laws enacted by virtue of this provision need no special mention.