Page:The Green Bag (1889–1914), Volume 14.pdf/350

 yonathan E. Arnold. ors, it was the province of the Assembly to determine the matter, and that the Court was bound by that determination." He characterized the suggestion as " a mon strous proposition," and then continued : "If he (the opposing counsel) had asserted that parliamentary usage could not be re ferred to — that the common law could not be referred to for light — that the meaning of these terms were wholly unsettled, and that it was left to the arbitrary power. and caprice of the Senate — that proposition might not have surprised mc; and that proposition in the language of these author ities is the only alternative left when you discard parliamentary usage and common law. But no lawyer has ever contended that it was for the House of Representa tives, that it was for the impeaching body, not only to fix the nature of the accusations, but to say that they constitute necessarily impeachable matter, and that the Court, the Senate, must take jurisdiction, and must act, too, upon the judgment already obliga tory upon them, by the very body which accuses, making the Senate, in point of fact, the mere instruments to carry out the de sign of the prosecuting body. Such is not the theory of the law of impeachments. Such is not the theory of the jurisdiction and power of the Court which is to try them. If it were so, I should, indeed, pity the pub lic officers of a State. I should pity, in this case, the respondent at the bar. It is one thing to accuse, it is another thing to prove, and it is another thing to convict; and if the Assembly may declare what is impeachable matter, and send that matter to the Senate, and the Senate is bound to accept it as impeachable matter, then there is no safety in holding office. The argu ment goes to the extent, if I understand it, that if the Assembly see fit, in any given case of impeachment, of any public officer

to accuse him before the Senate in the form of impeachment, with certain acts — that the Senate is bound to entertain that im peachment after the judgment is already entered up, that these acts are impeachable, and that the only duty of the Senate is the duty of a jury to find the facts to be truly alleged; the Assembly, in fact, constituting the Court that renders the judgment, and lenders it in advance. This is not the doc trine of the law. If so, what protection is there for any public officer, accused against party spirit, against personal rancor, against the spirit of persecution that may pervade the Assembly, and may prompt it to put charges of a trifling character, of no ac count, totally malicious, against the victim it wishes to hunt! And, forsooth, the Senate must regard it as impeachable mat ter, and all it has to do is to be the party to impeach .... If this doctrine be true, as contended for by the learned coun sel, it invests the Honorable Assembly of this State with the power of passing the most odious ex post facto laws, and, in sub stance, directly violating the inhibitions of the Constitution, because it clothes the As sembly with the power to declare what was innocently intended, a criminal and im peachable act. It converts the Assembly into an inquisition, which may seek out and inform on the conduct of the accused party; and although it may have been innocent, and known to have been innocent, yet it may de clare it impeachable, and send it to the Senate in the form of an accusation, and in that way determine the judgment that is already entered. It is only making that a criminal and impeachable act, which, at the time it was committed, was entirely innocent." Mr. Arnold's argument was followed with authorities sustaining his contention, but they are too lengthy to even attempt a synopsis of them for this article.