The evening telegraph. [volume] (Philadelphia [Pa.]) 1864-1918, 1866-12-01

gna vs Wyatt Sakoids r. 38l. Russell on
lbe great principle of the parliamentary law and
the common law IS that any official misconduct is a
An Interesting inquiry arises here-Is IL necessary
before the Senate can act ON case Of Impeach.
ment, that stature law should have been previously
passed defining Tor what offenses Impeachment
hesY Ii is familiar principle that the courts of
criminal eeSss Snless Il il aSs Of any
statute of the United States. In other words, the
United States courts exercise no CRIMINAL jurisdIo.
ton oerivabe merely from the common law
Does the same RUE prevail IN gard 10 the Senate
OF the United States acting as court OF Impeaon-
decides this question in the NEGATIVE lie says;-
mo one asserts that the power OF impeachment
no Is hmuee to statute ohenses "-Second Story, p.
Yet he protests against the whole subject being
insists that resort must be had elthor to parlia-
mentary practice and the common law in order to
aseeitain' what are impeacnab.e ofenses.
but when we consider tha' the parliamentary
practice gives The House of Commons an unlimited
discretion IN the nature of the chaIRes, provided
they 81 ege some olation OF duty, and the common
law lays down principe equally comprehensive as
TO indictab ofenses in officers we DO not perceive
leaving the hole subject 10 the arbtrarS dsere.
ton OF the Senate" which nc objects 10 so vehe-
mently, and leaving 1t to them under the restrc
CT par lamentary practice and the common law,
winch, III effect as we have seen, is richon at
all ACCORDING TO judge Story, you cannot iwpeach
the fresldent for having red headSa meIe arbi.
tTary ohepse. But that you have to do, in order
70 lmpeach, is TO charge some alleged violation of
I6e practice of the Senate, in the four cases of
impeachment which they have had before them,
mes jurisdIct on to proceed without any pre-
vIous statutory enactments
II may be interesting to note what Judge Curtis
an eminent member at one time of the Bench OF the
supreme Court OF the United states, says ON this
general subject -
The purpo,es of an impeachment lie wholly be.
YoDd the pt nalties OF the statute customary law
The object Of the proceeding is 10 ascertain whether
the cause exists Ior removing public officer from
Office cause for removal from
office may exist where no ofense against positive
law has been committed, where the In dlvidual
traon, Iecome unfit to exeI else he ofice. second
Curtis. History o. the Origin OF Courts, 26l.l
Practically, the President holds his Office at the
discretion of a majority of the House of Represen-
taives and twO-thrds of the Senate. 1t may be- as
Mr. curtis suggests IN another passage than the one
concl ed themselves 10 the great prerogatIves
ferred on the Executive by making him removable,
in erect at the viii oil majority of the House and
1t is said OF the Government of Russia that it is
desponsm tempered by ASSASSINATION. Our President
may be then oeflned an authority tempered by the
power of impeachment.
The result OF our examination of this subject has
been TO give us the impression that the impeach-
ment lower is q preIopatIve, which places the Pre-
sIGent in gre ater degree OF dependence and inse.
cury than IN our casual election upon The suoect
we had previously supposed
1he real outrage, IN the case OF President Johnson
would be to ex rcise this great prerogatve in the
absence the Senators of ten States
There is ore further question OF immense import
Can the impeachment be made to operate sue
pension OF the President from the exercise of the
uDct ons OF his Office ITS lnstituuonS In other
words can the senate, sitting as hlgn court of inn
peachment order a cessation of the executive func-
tiOns IN the person of Mr. johnson during the
Unfortunately. the Constitution Is silent on this
vita point, and, so far as we nave been abe to dis
covtr. the information from the practice of the
House Of LoIds IL not conclusive.
There Is one provision OF the Constitution which
may be considered to have some bearing ON tnis
point 1t Is the provision that the inability"
OF u President "to dI charge the powers and duties
OF the sald Office the same shall devove on the Vice.
rIis is a different thing from his removal" That
is nso provided against Inability" might arise
from lunacy, as was the case with George III
Us there anything IN the practical operation of an
impeachment to constitute this "habilIiyT We
According to our conception of the law the
Senate would, until a conviction, have no power
over the President, more than was necessary as a
court to try him We do not think That this po yer
to Try him would give the Senate the power to i'm
pIlson bIm during the trlsl.
1t must be remembered that the object of impri-
sonment IS to make sure that the accused will be in
contro OF the Court to receive sentence. Hence
ordinarily, party not entitled to bail in capital
cases. but is in all other cases.
When II Is further remembered that the only SEN
tence that can be passed on convection by impeach
ment is removal from office and disqualification fol
further office, it would seem to follow that, there
| beng no necessity for imprisonment 1t would moi
be within the power of the Senate
This distinction seems to have been taken in Eng
| land Hence 1t is laid down:-
"ln an impeachment for a capital offense he
shall be committed TO custody"-5 Comyn Title
Parlament, p. lS9.
| Therefore Commons complained in the case OF
| LORD Clarendon that ne was not committed."-
| Idem 239.
Party Impeached for a misdemeanor, whether q
| peer or commoner; not to be committed uutl
| judgment" ."-Idens 239.
| $50 pc ter may continue in his place. except upon
debate in his own case, till Judgment" "-Ident, 259
II We argue from the reason OF the matter, II is
clear that the Senate, on Impeachment of the Pres
| dent, has Lo power to imprIson him. because an
order OF this kind could be issued by majority
whereas the Constitution requires two.thlrds to
| move lhus by impTIsoning him, less than the con
| stiIutIonal number might practically remove HIM.
The inconvenience of lnterrupting the operations
| of the great Executive branch of the Government {
on q charge against the President is a power
| full argument against the exercise OF the power to
| imprlson him.
| The practice of the Senate may be considered as
| almost conclusive on the subject.
| In all the cases of impeachment the Senate have
proceeded by summons notI1YIng the accused, wit O.
| out any arrest of the person
| We conclude, therefore, that the Senate have nc
| right to commit the President to prison, without
| bsIl on his impeachment, and as this way alone
could an 'inabiIty" be produced, which would open
| the way Tor vacancy in his Office; therefore, al
impeachment OF the President does not, and cannot
be made before conviction. to operate as a suspen
sion OF the President from the Executive functions