“Resolution requiring the Secretary of State to compile and print, once in every two years, a register of all officers and agents, civil, military, and naval, in the service of the United States.”
If Senators are properly included in such a register, it is only as belonging to the “civil department of the public service,” which is precisely where they have been placed by the recent Act of Congress.
The only apology for the objection urged from the beginning of this debate with so much pertinacity is founded on the case of Mr. Blount, the Senator expelled and afterwards impeached, at the close of the last century. I shall not take time to consider this case. It has been amply done by others. On former occasions I have done it at length. And yet I will not leave it without protesting again that it is absolutely inapplicable to the present occasion. If that case were out of the way, nobody would have suggested that a “Senator” was not an “officer in the civil department of the public service.” Now what did this case decide? Let another give the summary. I quote the words of Mr. Wharton, in the notes to his edition of the State Trials.
“In a legal point of view, all that this case decides is, that a Senator of the United States, who has been expelled from his seat, is not, after such expulsion, subject to impeachment; and perhaps from this the broader proposition may be drawn, that none are liable to impeachment except officers of the government, in the technical sense, excluding thereby members of the National Legislature.”[301]
The case of Mr. Blount has no application to the present question. It is not an interpretation of the statute, and so far as it illustrates the Constitution it simply concerns the liability to impeachment. But even this case has often been drawn into doubt. And if we look into the proceedings of the time, we find that the decision, such as it was, encountered an able and earnest opposition.
Among those who took a distinguished part on that occasion was James A. Bayard,[302] of Delaware, the eminent Representative who conducted the impeachment as Manager on the part of the House of Representatives. In his effective argument he has set forth the true signification of the Constitution. From the argument of the Senator from Delaware [Mr. Bayard] in the present debate I confidently appeal to that of the earlier Mr. Bayard. Here is a passage.
“I have submitted, in the course of my argument, that the sound principle of construction to be adopted, in relation to the construction of an instrument having in view the vast object of settling the powers of the Government and the rights of the people, is to give it such an interpretation as is best calculated to give effect generally to all its parts according to its true design. If I am supported in this principle, I shall be able to show, by strong cases under the Constitution, that its undeniable intention must be frustrated, if a Senator be not considered an officer of the United States.
“I find it provided in the seventh clause of the third section of the first article, that conviction on impeachment disqualifies the party convicted from holding any office of honor, trust, or profit under the United States. If a seat in the Senate be not an office, the disqualification does not extend to it. And yet can it reasonably be contended that the policy which incapacitates a citizen, if convicted on impeachment, from holding an office the most mean and humble, does not apply to the case of a Senator? The wisdom of the Constitution, Sir, has considered a conviction as an evidence of moral unfitness for public trust. It never can happen but in the case of a great national offence. And shall such an offender, degraded from the capacity of even being doorkeeper of this Chamber, yet retain the capacity of being a member of a body of the most dignity, trust, and power in the country? This is a solecism in politics, an absurdity in reason, which I trust this honorable court will not willingly by their act attach to an instrument so highly and justly revered as the Constitution of our Government.
“I find also a provision in the seventh [eighth] clause of the ninth section of the first article, that ‘no person holding any office of profit or trust under the United States shall, without the consent of the Congress, accept of any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state.’ If a Senator holds no office of profit or trust under the United States, it is lawful for him to accept a present, title, or office from any king or foreign state. Can it be possible that a public functionary, of all others the peculiar object of this jealous restriction, is, in fact, the sole object of exemption from its operation? Can it be imagined that a Senator, upon whom the Constitution has heaped the powers and trusts of legislator, judge, and executive magistrate, is the only person who is left exposed to the seductions of foreign influence? It can never be admitted that a situation which from its trust and importance most invites corruption is the only one which the Constitution has not guarded against. If, Sir, a Senator be not an officer under this clause, it might happen that the Senate of the United States might become a House of Lords. It would be in the power of any king in Europe to change our free government, and to convert one branch, at least, from a republican into an aristocratic form. You will not suffer an ensign in your army to accept the humble title of Chevalier, and yet you will allow an integral part of the Government to be composed of earls and dukes. And let me pray the honorable Court to remember, at the same time, that the Constitution has provided that a member of either House shall not be allowed to retain his seat and hold any commission, civil or military, under the United States. The President has no titles to grant, nor offices of great emolument to confer; and yet the chaste republicanism of the Constitution will not allow a Senator to feel the influence of his patronage; and yet, at the same time, he may lawfully be the pensioner or the titular noble of a foreign power. Such a doctrine is not simply absurd, but infinitely dangerous.”[303]
In view of these emphatic words, it is difficult to see how any person can insist that a “Senator” is not a “civil officer,” even according to the text of the Constitution. Conceding to the judgment on the trial of impeachment all the authority which can belong to it, you cannot properly deduce from it any conclusion, except that a Senator already expelled is not a “civil officer” liable to impeachment: nothing beyond this.