[Hinds' Precedents, Volume 3]
[Chapter 63 - Nature of Impeachment]
[From the U.S. Government Publishing Office, www.gpo.gov]
NATURE OF IMPEACHMENT.
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1. Provisions of the Constitution. Sections 2001-2003.\1\
2. Rules of Jefferson's Manual. Sections 2004, 2005.
3. Trial proceeds only when House is in session. Section
2006.\2\
4. Accused may be tried after resignation. Section 2007.\3\
5. As to what are impeachable offenses. Sections 2008-2021.\4\
6. General considerations. Sections 2022-2024.\5\
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2001. ``Treason, bribery, or other high crimes and misdemeanors''
require removal of President, Vice-President, or other civil officers
from office on conviction by impeachment. The Constitution, in Article
II, section 4, provides:
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 and misdemeanors.
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\1\ Discussion as to right to demand jury trial. See. 2313 of this
volume.
Impeachment in relation to the courts. See. 2314 of this volume.
A Senator is not a ``civil officer.'' Secs. 2316, 2318 of this
volume.
Argument that the power is remedial rather than punitive. Sec. 2510
of this volume.
May a civil officer be impeached for offenses committed prior to his
term of office? See. 2510 of this volume.
As to the impeachment of territorial judges (secs. 2486, 2493) and
officers removable by the Executive (secs. 2501, 2515).
Is impeachment justified by ascertainment of probable cause? Sec.
2498.
\2\ See also sec. 2462 of this volume.
\3\ See also secs. 2317, 2444, 2459; but in other cases proceedings
have ceased after resignation. Secs. 2489, 2500, 2509, 2512.
\4\ As to the impeachment of citizens not holding an office. Secs.
2056, 2315.
Nature of impeachment discussed. Sec. 2270; also in the Chase trial,
secs. 2356-2362; in the Peck trial, secs. 2379-2382; in the Johnson
trial, secs. 2405, 2406, 2410, 2418, 2433; in the case of Watrous,,
sec. 2498.
The argument that impeachment might be only for indictable offenses.
Secs. 2356, 2379, 2405, 2406, 2410, 2418.
Abuse and usurpation of power as grounds of. Secs. 2404, 2508, 2516,
2518.
Authority of Congress to make nonresidence of a judge an impeachable
offense. Sec. 2512.
\5\ An officer threatened with impeachment may decline to testify.
Sec. 1699.
Impeachment and ordinary legislative investigations contrasted. Sec.
1700.
Sec. 2002
2002. Impeachments are exempted from the constitutional requirement
of trial by jury.--The Constitution, in Article III, section 2,
provides:
The trial of all crimes, except in cases of impeachment, shall be by
jury. * * *
2003. Cases of impeachment are excluded by the Constitution from the
offenses for which the President may grant reprieves and pardons.--
The Constitution in Article II, section 2, provides:
The President * * * shall have power to grant reprieves and pardons
for offenses against the United States, except in cases of impeachment.
2004. The English precedents indicate that jury trial has not been
permitted in impeachment cases.
The Commons are considered, in English practice, as having in
impeachment cases the function of a grand jury.
In Chapter LIII of Jefferson's Manual the following is given in the
``sketch of some of the principles and practices of England'' on the
subject of impeachments:
Jury. In the case of Alice Pierce (I R., 2) a jury was impaneled for
her trial before a committee. (Seld. Jud., 123.) But this was on a
complaint, not on impeachment by the Commons. (Seld. Jud., 163.) It
must also have been for a misdemeanor only, as the Lords spiritual sat
in the case, which they do on misdemeanors, but not in capital cases.
(Id., 148.) The judgment was a forfeiture of all her lands and goods.
(Id., 188.) This, Selden says, is the only jury he finds recorded in
Parliament for misdemeanors; but he makes no doubt if the delinquent
doth put himself on the trial of his country, a jury ought to be
impaneled, and he adds that it is not so on impeachment by the Commons;
for they are in loco proprio, and there no jury ought to be impaneled.
(Id., 124.) The Ld. Berkeley (6 E., 3) was arraigned for the murder of
L. 2 on an information on the part of the King and not on impeachment
of the Commons; for then they had been patria sua. He waived his
peerage, and was tried by a jury of Gloucestershire and Warwickshire.
(Id., 126.) In I H., 7, the Commons protest that they are not to be
considered as parties to any judgment given, or thereafter to be given,
in Parliament. (Id., 133.) They have been generally and more justly
considered, as is before stated, as the grand jury, for the conceit of
Selden is certainly not accurate that they are the patria sua of the
accused, and that the Lords do only judge but not try. It is undeniable
that they do try, for they examine witnesses as to the facts, and
acquit or condemn according to their own belief of them. And Lord Hale
says ``the peers are judges of law as well as of fact'' (2 Hale, P. C.,
275), consequently of fact as well as of law.
2005. Under the parliamentary law an impeachment is not discontinued
by the dissolution of Parliament.--In Chapter LIII of Jefferson's
Manual the following is given in the ``sketch of some, of the
principles and practices of England'' on the subject of impeachments:
Continuance. An impeachment is not discontinued by the dissolution of
Parliament, but may be resumed by the new Parliament. (T. Ray., 383; 4
Com. Journ., 23 Dec., 1790; Lords' Journ., May 15, 1791; 2 Wood., 618.)
2006. It was decided in 1876 that an impeachment trial could only
proceed when Congress was in session.
Instance during an impeachment trial wherein a Member of the Senate
called on the managers for an opinion.
On June 19, 1876,\1\ in the Senate sitting for the impeachment trial
of William W. Belknap, late Secretary of War, the counsel for the
respondent asked for a postponement of the trial until some time in the
next November.
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\1\ First session Forty-fourth Congress, Record of Trial, p. 173.
Sec. 2006
Thereupon a question arose as to whether or not the trial might
proceed when the House of Representatives was not in session, and Mr.
John J. Ingalls, a Senator from Kansas, asked for an opinion from the
managers for the House of Representatives.
Mr. Manager Scott Lord said:
Perhaps, Mr. President, it will be sufficient for the managers to say
in that regard that the managers are not agreed on that question. Some
of us have a very fixed opinion one way, and other managers seem to
have as fixed an opinion the other way; and not being agreed among
ourselves we perhaps ought not to discuss the question until we can
come to some agreement.
I will say further, Mr. President and Senators, that the question
which is presented by the Senator has not been fully considered by the
managers; it has not been very much discussed by them, but it has been
sufficiently discussed to enable us to see that there is this
difference of opinion. I think myself that when the question is fully
discussed by the managers they will come to a conclusion on the subject
unanimously; but perhaps one differing with me might think we should
come unanimously to a different conclusion from that which entertain. I
will say for myself that I have no doubt of the power of this court to
sit as a court of impeachment after the adjournment of the Congress.
* * * * * * *
I ought to say in regard to the opinion which I have expressed that I
predicate that opinion upon the action of both the Houses. I think that
in order to authorize the sitting of this court beyond all question
either the House or the Congress should vote to empower the managers to
appear before this court in the recess or absence of the House.
* * * * * * *
I ought to say in furtherance of the view which I have presented,
that the question his been settled in the State of New York, the State
in which I reside, and I, of course, would naturally be influenced
somewhat by the decision. In the case of Judge Barnard the trial was
had at Saratoga after the adjournment of the legislature, and in the
recent impeachment trial in Virginia the same course was taken--the
impeachment was not tried until after the adjournment of the
legislature. I am also reminded that as far back as 1853 when Mr.
Mather, a canal commissioner, was impeached in New York, he was tried
after the legislature adjourned. In regard to the English authorities
they seem on the whole to warrant the proposition that the House of
Lords may proceed as a court of impeachment after the adjournment of
the Parliament.
Soon after,\1\ while an order was pending providing that the trial
should proceed on July 6, Mr. Oliver P. Morton, of Indiana, proposed to
add thereto as an amendment the following:
Provided, That impeachment can only proceed in the presence of the
House of Representatives.
On motion of Mr. Frederick T. Frelinghuysen, of New Jersey, and
without division, the words ``in the presence of the House of
Representatives'' were stricken out and the words ``while Congress is
in session'' were inserted.
Thereupon Mr. Morton asked and obtained leave to withdraw his
amendment.
Thereupon Mr. Roscoe Conkling, of New York, offered the proviso
again:
Provided, That impeachment can only proceed while Congress is in
session.
This proviso was agreed to, yeas 21, nays 19.
Thereupon Mr. Oliver P. Morton proposed to amend by adding the words,
``and in the presence of the House of Representatives.''
Mr. Eli Saulsbury, of Delaware, proposed to amend Mr. Morton's
amendment by adding the words, ``or its managers.''
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\1\ Senate Journal, pp. 957, 959.
Sec. 2006
Mr. Saulsbury's amendment was disagreed to without division; and Mr.
Morton's amendment was disagreed to by a vote of yeas 9, nays 28.
So it was
Provided, That the impeachment can only proceed while the Congress is
in session.
The reasons actuating the Senate in coming to this decision do not
appear from Senate proceedings, as the debates were in secret; but in a
verbal report made to the House of Representatives by the Chairman of
the Managers, Mr. Scott Lord, of New York, this statement appears: \1\
The plan of the managers on the part of the House has been this: To
induce the Senate, as a court of impeachment, to allow Congress to
adjourn and then sit as a court to carry on the case. But there are two
reasons against that which render it conclusive that the Senate will
not do so. The first is that many Senators doubt the power of the
Senate to sit as a court of impeachment after the adjournment of
Congress. The second, and the really practicable reason, is that it
will be found impossible to keep a quorum of the court together after
the adjournment of Congress.
2007. The Senate decided, in 1876, that William W. Belknap was
amenable to trial notwithstanding his resignation of the office before
his impeachment for acts therein.
In the Belknap trial the managers and counsel for respondent agreed
that a private citizen, apart from offense in an office, might not be
impeached.
Discussion as to effect of an officer's resignation after the House
has investigated his conduct, but before it has impeached.
On May 4, 1876,\2\ in the Senate, sitting for the impeachment trial
of William W. Belknap, late Secretary of War, the President pro tempore
announced that the Senate had adopted the following:
Ordered, That the Senate proceed first to hear and determine the
question whether W. W. Belknap, the respondent, is amenable to trial by
impeachment for acts done as Secretary of War, notwithstanding his
resignation of said office; and that the managers and counsel in such
argument discuss the question whether the issues of fact are material
and whether the matters in support of the jurisdiction alleged by the
House of Representatives in the pleadings subsequent to the articles of
impeachment can be thus alleged if the same are not averred in said
articles.
On the first question, whether or not the respondent was amenable to
trial for acts done as Secretary of War, notwithstanding his
resignation, the argument naturally divided itself into three branches.
1. May a private citizen be impeached, irrespective of whether he has
held office or not?
2. May a private citizen who formerly held an office be impeached for
acts done as an incumbent of that office?
3. Assuming that a person may not be impeached after he is out of
office for acts done in office, does a resignation, after proceedings
for impeachment begin, confer immunity?
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\1\ Record, p. 3871.
\2\ First session Forty-fourth Congress, Senate Journal, p. 928;
record of trial, p. 27.
Sec. 2007
As to the first question, may a private citizen be impeached, Mr.
Montgomery Blair, of counsel for the respondent, said: \1\
Upon the first question I do not know how the managers are to
maintain the jurisdiction of this court upon any other principle than
that which was asserted in the Blount case, which was that ``all
persons are liable to impeachment'' (Annals of Congress of 1797, vol.
2, p. 2251), because, as was alleged there all persons are liable in
England, the country from which we borrow the proceeding, and to whose
laws and usages we must therefore look for the extent of its
application. But as the court on that occasion overruled this doctrine,
and the decision has been acquiesced in for seventy-eight years, the
managers ought not now to expect this court to overrule it.
And Mr. Manager Scott Lord, speaking for the House of
Representatives, said: \2\
The learned counsel, Mr. Blair, suggested that we should be driven to
the position of asserting that a citizen who had never held office was
impeachable. We claim no such thing. We claim first, and admit, that
the authorities have settled that a mere citizen can not be impeached;
and if the authorities had not settled it, the Constitution, not by
express words, but by its intent, does exclude the idea of impeachment
as against a mere private citizen.
Mr. Matt H. Carpenter, of counsel for the respondent, after an
exhaustive discussion of authorities, said: \3\
In Blount's case, where the question I am discussing was first
presented to this court, Messrs. Bayard and Harper, managers,
understanding the task before them, grappled with the subject, and
maintained the broad ground that the power of impeachment under our
Constitution reached to every inhabitant of the United States. Blount,
not as a Senator, but while a Senator, had committed the acts charged
in the articles of impeachment. He pleaded to the jurisdiction, first,
that he was not an officer of the United States when he committed the
acts complained of, and, secondly, that he was not even a Senator at
the time of the impeachment. It appeared from the record that he was a
Senator at the time the acts were committed. The managers argued that a
Senator was a civil officer. But they also contended that whether a
Senator was a civil officer or not was immaterial; because impeachment
was not confined to civil officers. And there was no fault in their
reasoning, upon their premises. If Impeachment lies against any private
citizen of the United States, then Blount should have been convicted;
because surely he could not interpose his senatorial character as a
shield against an impeachment maintainable against any private citizen.
And so the question was distinctly presented, whether or not
impeachment lies against a private citizen.
The court, as is well known, decided that there was no jurisdiction.
And this decision is an authoritative declaration that impeachment can
not be maintained against a private citizen.
* * * * * * *
We have been unable to find any case in which a private citizen has
been held subject to impeachment for misconduct in an office formerly
held by him. In the Barnard case, it is true, the court held that the
accused might be convicted and removed from office on account of
offenses committed in a former term of the same elective office which
he was holding at the time of impeachment.
In the State of Ohio, Messrs. Pease, Huntingdon, and Tod held a
certain act of the legislature unconstitutional and void. At the
session of the legislature 1807-8 steps were taken to impeach them
therefor, but the resolution was not acted upon at that session; but at
the next session steps were taken toward the impeachment of the
offending judges, and articles of impeachment were reported against
Pease and Tod, but not against Huntingdon, who in the meantime had been
elected governor of the State, and of course had ceased to be a judge
of the court. This discrimination is an authority in favor of the
proposition that no man can be impeached after he is out of office.
(Cooley on Constitutional Limitations, p. 160, note 3.)
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\1\ Record of trial, p. 28.
\2\ Page 34.
\3\ Pages 39-42.
Sec. 2007
(2) The main force of the argument was expended on the second
question, whether or not a private citizen who has formerly held an
office may be impeached for acts done as an incumbent of that office.
The question of the right to impeach private citizen was argued only
for its relation to this second question.
Mr. Montgomery Blair, of counsel for the respondent, began the
argument with review of the nature of impeachment in America and
England, and continued: \1\
This settles the principle upon which impeachment must be exercised.
It is strictly confined to the cases expressly enumerated in the
Constitution, as much so as any other court established by the Federal
Constitution.
And this brings me to the consideration of what are the cases
enumerated by this Constitution as within the power of impeachment.
There is no other enumeration except what is contained in the fourth
section of the second article, as follows:
``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 and misdemeanors.''
The enumerated cues of persons, therefore, against whom this court
can entertain articles of impeachment are ``the President, Vice-
President, and all civil officers of the United States;'' not persons
who have been President, Vice President, or civil officers, but only
persons who can be at the time truly described as President, Vice-
President, or as civil officers, and who can ``be removed from office
on impeachment and conviction of treason,'' etc. ``If there must be a
judgment of removal,'' says Story, ``it would seem to follow that the
party was still in office;'' but it is not necessary to rely upon this
inference, plain and necessary as it is, because the only persons
specified as subject to impeachment are officers, and it would be
equally plain that only officers were amenable to impeachment if
nothing was said in the section about removal, and it were simply
``that the President, Vice-President, and all civil officers shall be
subject to impeachment for and conviction of treason, bribery,'' etc.,
because it is only by these descriptions as officers that they are made
subject to impeachment. Hence the only question before the court is
whether the term ``officer'' can be applied to a person not at the time
in the holding of an office.
And this has been the accepted construction. From the day when Blount
was tried until now no attempt has been made to impeach a private
citizen, and that not because there have not been plenty of proper
subjects for impeachment if the law had authorized the proceeding
against ex-officers. Within a few years past it is notorious that a
number of officers who were under investigation and who were threatened
with impeachment resigned to avoid it, and the proceedings against them
were abandoned. Several judges were among the number, all whose names I
do not now recall, and it is not necessary to do so, because the Senate
knows to whom I refer, who resigned their places and thereby arrested
the proceedings. So in New York, where the high court of impeachment is
composed of the judges of the court of appeals and the senate, and the
provisions of whose constitution, if not in identical words with those
of the national Constitution, are substantially the same, an
impeachment was dismissed against Judge Cardozo, within a few years, on
the presentation of his resignation. The judiciary committee of the
house of representatives of that State, composed of persons who will, I
understand, be recognized by some of the managers as among the ablest
lawyers of that State, reported against the power of impeachment of any
person not actually in office. The language of the resolution in
Fuller's case (the case referred to) is:
``That no person can be impeached who was not at the time of the
commission of the alleged offense and at the time of the impeachment
holding some office under the laws of the State.''
This resolution and the accompanying report form part of the report
of the trial of George G. Barnard, page 158.
I have examined all the constitutions of all the States with
reference to the provisions therein contained on the subject of
impeachment. With two exceptions, they correspond in substance with the
national Constitution; and I have not learned that any impeachments
against ex-officers have taken place under those constitutions.
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\1\ Page 29.
Sec. 2007
Mr. Blair next cited opinions of the framers of the Constitution, and
the comments of Judge Story, saying: \1\
All the reasons upon which the proceeding was supposed to be
necessary were applicable only to a man who wielded at the moment the
power of the Government, when only it was necessary to put in motion
the great power of the people, as organized in the House of
Representatives, to bring him to justice. It is a shocking abuse of
power to direct so overwhelming a force against a private man. It may
be deemed by some of small moment, because it can only effect his
disfranchisement; but the effect is to dishonor him, and it is simply
tyranny to put this man's honor in peril by the application of that
overwhelming force. The great authors of England, as well as the great
commentator on our Constitution mentioned, hold that impeachment ought
only to be brought into action to arrest the wrongdoing of another
power in the Government. The arena of impeachment is in fact a place in
which a controversy takes place between the high powers of the
Government. The only theory upon which it can be justified is to enable
the people, massed and organized in their representative houses, to
assail their oppressors, armed with the power of the Executive and the
patronage and prestige which that gives them. Do you seek to prostitute
that power to the oppression of a private individual, wasting his means
by an action that, as this author says, has invariably ruined every
private man who has been the subject of it in Great Britain?
Mr. Matt R. Carpenter held that there were two theories in regard to
impeachment--one that the proceeding was so broad that private persons
might fall within its reach, as in England, and the other that
impeachment ``was only a proceeding to remove an unworthy public
officer.'' And he declared that one of these theories must be accepted,
and that there was no middle ground. He then proceeded at length to
cite authorities \2\ to show that a private citizen might not be
impeached, and then said: \3\
Bearing in mind this method, when we read that the ``House of
Representatives shall have the sole power of impeachment, and the
Senate the sole power to try impeachments;'' and learn from the debates
in the convention that impeachment was intended as a method of removal
from office, we naturally look elsewhere in the Constitution for the
extent of this power; in other words, for the officers who may be
removed by this method, which we find in section 4 of article 2, as
follows:
``The President, Vice-President, and all civil officers of the United
States, shall be removed from office on impeachment, etc.''
There is a strong implication arising from the provision that
punishment in cases of impeachment shall extend no further than removal
from office, or removal and disqualification, that impeachment only
lies against those in office. But section 4 of article 2 is perfectly
conclusive.
Consider the language of this fourth section of the second article.
The President shall be removed, etc. Suppose General Jackson still
alive, and to be impeached to-day for removing the deposits from the
Bank of the United States. Who would preside over the trial?
Section 3 of article 1 provides:
``When the President of the United States is tried, the Chief Justice
shall preside.''
Suppose General Jackson living and impeached for removing the
deposits. Would the Chief Justice preside? Manifestly not, because
General Grant is President, and the case supposed would be an
impeachment of a private citizen, and not of the President. And yet,
upon the theory now maintained, that once a President is always a
President for the purposes of impeachment, the Chief Justice would have
to preside. This is as absurd as it would be to construe a statute
giving Members of Congress the franking privilege, as giving that
privilege to every one who had been a Member of Congress.
The Constitution does not authorize the impeachment of certain
crimes--that is, crimes committed in offices--but it authorizes an
impeachment of certain persons, described by the class to which they
belong; that is, civil officers of the United States.
I may assume therefore that the purpose for which the power of
impeachment was incorporated in the Constitution will be observed by
this court, in exercising the jurisdiction which the Constitu-
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\1\ Pages 30, 31.
\2\ Pages 38, 39.
\3\ Page 40.
Sec. 2007
tion confers. And upon this subject the debates in the convention are
not only satisfactory, but absolutely conclusive.
Before passing from the subject of these debates let me say that
considerable opposition was developed against embodying this power in
the Constitution. Those who opposed it did so upon the ground that
conferring the power would make the President a subservient tool of
Congress and destroy the proper equilibrium of the three departments.
On the other hand, it was urged that without the impeachment clause it
would be in the power of the President, especially in time of war, when
he would have large military and naval forces at command, and public
moneys at his disposal, to overthrow the liberties of the people. Near
the close of the debate Mr. Morris said his views had been changed by
the discussion, and he expressed his opinion to the effect that--
``The Executive ought to be impeached. He should be punished, not as
a man, but as an officer, and punished only by degradation from his
office.''
This was the only debate upon the general subject of impeachment.
Thus it will be seen that those who favored and those who opposed
incorporating the power in the Constitution, contemplated the
impeachment of officers while holding office.
Mr. Jeremiah S. Black, also of counsel for the respondent, said: \1\
We must then fall back on the one question whether an officer who has
resigned is subject to the power of impeachment, or whether he is to be
regarded as a private citizen after he goes out, and therefore amenable
only to the courts.
The words are ``the President, Vice-President, and all civil
officers.'' Who is the President? If that means an ex-President, a
person who has once held the office of President, but whose term has
expired or who has resigned, then the same interpretation must be given
to the other words, and the words ``the Vice-President and all civil
officers'' may include all persons who have held office at any period
of their lives. When we speak about the President, do we ever refer to
anybody except the incumbent of that office? A half-grown boy reads in
a newspaper that the President occupies the White House; if he would
understand from that that all ex-Presidents are in it together he would
be considered a very unpromising lad.
The managers would not assign that absurd meaning to any other part
of the Constitution. Where it is provided that the Vice-President shall
preside in the Senate, they know very well that nobody is included but
the actual incumbent. Statutes have been passed declaring that the
Members of Congress shall have certain privileges, such as franking
letters and receiving an annual compensation out of the Treasury. Did
any body ever claim that this extended to old Members retired from
public life? Any law which declares that public officers as a class
shall be entitled to pay as privileges would be confined to those
persons in office, and no sensible man would think of a Constitution
extending it to former officers. When, therefore, the Constitution says
that all civil officers may be impeached, it is a violation of common
sense to hold that the power may be applied to a late Secretary of War
or other person who does not at the time actually hold any office at
all.
The Constitution declares that when the President is impeached the
Chief Justice shall preside. The question has been propounded
repeatedly, and by several Senators, who would preside if an ex-
President was impeached? I admit that that is a puzzle. The puzzle
arises out of the absurdity of impeaching an ex-President. Our friends
on the other side are so hampered by their own theory that they are
obliged simply to decline answering. There is one answer and only one
consistent with their logic, and that is this: That when an ex-
President is impeached an ex-Chief Justice ought to preside at the
trial.
But then the reductio ad absurdum is furnished to their argument when
they read on that the President, the Vice-President, and all other
civil officers of the United States shall be removed upon conviction.
The single sentence uttered by Governor Johnstone in the North Carolina
convention puts this in a light so perfectly clear that it would be
throwing words away to talk about it. How can a man be removed from
office who holds no office? How turn him out if he is not in? The
object and purpose of impeachment was removal--removal, mind you, not
for a day, not for an hour, not a removal which might be rendered
nugatory the next moment by his reappointment or reelection, but a
permanent removal. You find an officer misbehaving himself, and you get
hold of him while
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\1\ Page 71.
Sec. 2007
he is still in the possession of power. When you get your grasp upon
him, you hurl him down, and give him such a pernicious fall that he can
never rise again.
Removal is not only the object of impeachment, but it is the sole
object. Removal and disqualification are so associated together that
they can not be separated. You cannot pronounce a judgment of removal
without disqualifying; and you can not pronounce a judgment of
disqualification without removal, because the judgment which the
Constitution requires you to pronounce is a judgment of removal and
disqualification-not removal or disqualification; and this is made
perfectly manifest to my mind from the experience we have had in
Pennsylvania. It was thought by the convention that framed our
Constitution desirable that the Senate, upon conviction of an offender
of this kind, should have the discretion to say that he might be
removed without being disqualified; and accordingly they changed the
provision which had previously been copied from the Constitution of the
United States, and instead of saying what is said here, that judgment
shall extend to removal and disqualification, it says it shall extend
to removal, or to removal and disqualification. The effect of that was
to allow of a judgment of removal alone, but not of disqualification
alone--removal alone, or removal and disqualification.
On the other hand, the managers for the House of Representatives
maintained, with careful citation of authorities, that impeachment was
intended to reach a public officer while in office or after he had left
office. Mr. Manager Scott Lord said: \1\
Therefore we claim that the limitation of the Constitution is not as
to time; it simply relates to a class of persons, and the word
``officer'' is used as descriptive precisely as it is used in the very
statute to which the counsel referred. If it be true because the word
``office'' or ``officer'' is used in the Constitution, without saying
anything about a person after he is out of office, that the defendant
is not impeachable, then he can not be indicted, because the statute
relating to his indictment simply speaks of him as an officer.
What is the real intent and meaning of the word ``officer'' in the
Constitution? It is but a general description. An officer in one sense
never loses his office. He gets his title and he wears it forever, and
an officer is under this liability for life; if he once takes office
under the United States, if while in office and as an officer he
commits acts which demand impeachment, be may be impeached even down to
the time to which the learned counsel, Mr. Carpenter, so eloquently
referred the other day--down to the time that he takes his departure
from this life.
It is supposed by many that because an officer must be removed no
judgment can be pronounced without pronouncing the judgment of removal.
This, it seems to me, is a very great error. If he is in office, of
course under the Constitution he must be removed; but if out of office,
the sentence of disqualification or some inferior sentence may be
passed upon him, for the obvious reason that the sentence is divisible.
This was distinctly held in the Barnard case, to which reference has
been made. In that case the court proceeded unanimously to vote that he
should be removed from office; but when the question came up on the
other point, shall he be disqualified? several members of the court
voted in the negative.
I do not see, then, any possible view in which there is difficulty;
and the learned counsel on the other side will not be able to create
any difficulty excepting under the claim that a person in office,
having so conducted himself as to be worthy of impeachment, finding
that it is impossible to escape the facts or pervert them, may, I
repeat, defeat the Constitution for the purpose of preventing his
punishment.
Messrs. Managers George A. Jenks and George F. Hoar examined the
English precedents and the history of the Constitution at length, the
latter summarizing his conclusions \2\ thus:
The history of the steps by which these constitutional provisions
found their place, the few authorities which can be found on the
subject, the narrower argument drawn from the language of the
Constitution and the broader argument drawn from a consideration of the
great public object to be accomplished all point the same way and bring
us irresistibly to the conclusion that the power of the Senate of the
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United States over all grades of public official national wrongdoers, a
power conferred for the highest reasons of state and on fullest
deliberation, to interpose by its judgment a perpetual barrier against
the return to power of great political offenders, does not depend upon
the consent of the culprit, does not depend upon the accidental
circumstance that the evidence of the crime is not discovered until
after the official term has expired or toward the close of that term,
but is a perpetual power, hanging over the guilty officer during his
whole subsequent life, restricted in its exercise only by the
discretion of the Senate itself and the necessity of the concurrence of
both branches, the requirement of a two-thirds' vote for conviction,
and the constitutional limitation of the punishment
* * * * * * *
But I think I can show to the Senate of the United States, from the
history of the formation of this Constitution, that the jurisdiction
conferred was complete, and that the unanimous purpose of the
convention to confer the power of impeachment over everybody committing
crime in office is to be found and proved by its debates, and that the
clause saying that civil officers can be removed on conviction is put
there as an exception to the clauses which previously had determined
the tenure of those offices. In other words, the framers of the
Constitution had given power of impeachment to the House, given the
power of trial to the Senate, extended the power to all cases of
national official wrongdoers, prescribed the mode of proceeding, the
numbers necessary to convict, limited the judgment, and passed from
that question.
Mr. Aaron A. Sargent, a Senator from California, asked if Members of
the Senate who had in times past been civil officers of the United
States were, in Mr. Hoar's view, liable to impeachment. Mr. Hoar
replied: \1\
They are, undoubtedly. The logic of my argument brings us to that
result, and undoubtedly they are as safe from the operation of that
process practically as the newly-born infant in his mother's arms. Does
anybody suppose that there is to be a two-thirds vote of the American
Senate which will rake up and try and punish for political offenses,
when the public judgment of this people has demanded an amnesty? The
whole power to punish, the whole judgment after the offender has left
office is disqualification to hold office, and that judgment is a
judgment in the discretion of the Senate. Hunt in Massachusetts, a
justice of the peace--the language being exactly the same as this--was
sentenced simply to suspension from his office and disqualification to
hold any other for twelve months. That was the case of a justice of the
peace in the town of Watertown, I think, early in this century.
* * * * * * *
Let me sum up the argument, drawn from the language of the
Constitution. The power of impeachment is not defined in the grant in
the Constitution. It is conferred as a general common-law power. The
judgment is then limited to removal and disqualification, and two-
thirds required for conviction. No limit of its application to persons
is inserted in the grant. But a subsequent limitation on the tenure of
office is inserted, namely, the case of a removal by impeachment, to
guard against the argument that officers, whose term is fixed in the
Constitution, can not be removed under the power of impeachment, just
as impeachment is excepted in the clause securing the right of trial by
jury and in the clause conferring the power to pardon.
But suppose we grant the phrase, all civil officers, to be inserted
as a definition of the persons who may be reached by this process. Is
the definition to be taken to apply to them at the time of the
commission of the offense or at the time of the punishment? Suppose a
statute enact that all wrongdoers may be punished. Is it not clear that
if they be wrongdoers when they commit the act the liability to
punishment attaches? The very statute which punishes bribery would fail
by this construction to reach anybody, because it is in this respect,
as has already been said, almost identical with the provision of the
Constitution in its description.
The provision that the judgment shall extend no further than removal
from office and perpetual disqualification authorizes any lesser
penalty included within those limits to be imposed at the discretion of
the Senate. In Hunt's case, in Massachusetts, the sentence was
disqualification for a year under a like constitutional provision.
* * * * * * *
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The whole constitutional provision, so far as affects our present
purpose, can be summed up in two sentences which are scarcely a
paraphase or change of the existing text of the existing law, and these
two sentences I think state precisely the contentions on the one side
and on the other. We say that the Constitution in substance is this:
``The Senate shall have the sole power to try impeachments, and civil
officers shall be removed on conviction.'' The counsel for the
defendant would state it to be: ``Judgment in case of conviction shall
be removal from office and disqualification if the defendant is
willing.'' That is the summing up of the two propositions.
But the meaning of these provisions of the Constitution must be
ascertained after all by a broad consideration of the great public
objects they were intended to accomplish.''Never forget,'' says Chief
Justice Marshall, in McCulloch v. Maryland--and that sentence is the
keynote to his whole judicial power--``Never forget that it is a
constitution you are interpreting.''
(3) As to the third branch of the inquiry, assuming that an ex-
officer may not be impeached, whether or not a resignation after
proceedings begin confers immunity, there was not very extended debate.
Mr. Manager Scott Lord said,\1\
I now propose to call the attention of the court to the other
questions of this case referred to in the order of the Senate. The
first question of the second replication is: ``Can the defendant escape
by dividing the day into fractions?'' This question is also presented
by the articles and plea. The allegation on page 5 is not denied.
Therefore, as I propose to show this court by an unbroken series of
decisions that the law does not permit a day to be divided into
fractions in such a case as this, and if it be true that the defendant
was Secretary of War on the 2d of March, on any part of that day, and
there fore impeachable, then that question, perhaps, can be argued
independent of this replication. I propose, now, to argue the question
under the second replication. The authorities will bear upon both the
plea and replication. First, I say a judicial act dates from the
earliest minute of the day in which it is done.
After citing authorities, he continued--\2\
The next question presented by their replication is, Did the
impeachment relate back to the inception of the proceedings by an
authorized committee of the House? Whether the committee was authorized
or not is a question of fact. Therefore the comments of the learned
counsel relating thereto were not in order, because it is affirmed on
the part of the House of Representatives that this committee had
authority. If it should appear that the committee had no authority,
then another principle would be invoked, and that is the principle of
adoption. But it is not necessary to discuss that now, because for the
purposes of this argument the authority is conceded. In regard to the
principle of relation it is this: That the House of Representatives
before this resignation having instituted proceedings against Mr.
Belknap for the purpose of investigating these crimes and for the
purpose of impeaching the defendant, when the impeachment was made it
related back to the original proceeding which was instituted, as is
confessed, before this resignation. When divers acts concur to a
result, the original act is to be preferred, and to this the other acts
have relation.
And after citing other authorities:
In this case we claim that the House of Representatives, having
obtained jurisdiction of the subject-matter by instituting these
proceedings against the defendant, he could no more defeat them by
resigning midway than he could defeat the Constitution itself. When the
House of Representatives by its solemn act impeached him of high crimes
and misdemeanors, that was a judicial act, the highest judicial act
that can be performed in this nation save one, and that is the act to
be performed by this tribunal when it pronounces ``guilty ``or ``not
guilty'' upon the proofs before it.
Therefore, we say the defendant in this case should not be allowed
his dilatory plea, because these proceedings had been instituted
against him long before he had resigned his office, long before he had
attempted to escape the penalty due to his crime by this resignation.
This impeachment is in furtherance of justice, not in furtherance of
injustice. It is due to the defendant; it is due to the dead whom he
claims to represent; it is due to all the associations that surround
him, if he is an innocent man, that he establish his innocence in this
tribunal. Therefore to hold jurisdiction in this case, to give him the
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\2\ Page 36.
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opportunity to establish his innocence, or the House of Representatives
to establish his guilt, is in furtherance of justice. To deny
jurisdiction under these circumstances would be in furtherance of
injustice.
In this case before the court the doctrine of relation prevents
injustice, for it changes no rule of evidence, and does not affect the
merits.
Mr. Carpenter, of counsel for respondent, argued,\1\ on the other
hand:
If I am right in saying that the only purpose of impeachment is to
remove a man from office, when the man is out of office the object of
impeachment ceases, and the proceedings must abate. There would be no
further object to attain by the proceeding. Suppose the man committed
suicide while his trial was progressing, would not that be good matter
of abatement? Suppose he commits official suicide by resigning, why
should this not have the same effect? I have attempted to show that the
sole object for which the power of impeachment was given is removal
from office.
There is another proposition which I intended to argue in that
connection. The disqualification clause of punishment was evidently put
in for the purpose of making the power of removal by impeachment
effectual. After providing that the officers of the United States might
be removed on impeachment, although the President could not pardon the
offender convicted and removed, yet if he could reinstate him the next
morning he would have substantially the power of pardon. To prevent
this was the object of the disqualifying clause; which Story says is
not a necessary part of the judgment. You might impose it where you had
removed an officer appointed by the President whom the President could
reinstate. You could stop that by fixing disability upon the officer;
and that I take to have been the sole purpose of this clause.
If I am right in this position, if the man died in the middle of the
trial, or if he died after finding against him, but before judgment had
been pronounced, the suit would abate. Must this court go on and
sentence a man after he is dead--either physically or officially dead?
It is equally absurd to talk of removing a man from an office which he
no longer fills, as to talk of removing a man from office after he is
dead. So far as its effect upon the suit is concerned I see no
difference between the case of his natural death and his official
death. The suit abates because there is no further object to be
attained by its prosecution.
Let me remind the Senate that there is not a writer on this subject
who does not maintain that the power of impeachment was never intended
for punishment.
This is conclusively shown by the fact that the party, after he is
impeached, is to be indicted and punished for his crime. And it should
be remarked that, if impeachment lies against one not in office, he
must either not be punished at all, which would show the absurdity of
the proceeding; or you must inflict the disqualification, which, Story
says, you need not inflict on one removed from office.
Returning from this digression to the line of my argument, let me say
that Rawle's Commentaries and the report of the Blount case were
considered by Judge Story in writing his Commentaries; and he quotes
from them both, but evidently disagrees with Rawle's parenthetic
suggestion, and the concessions made by the counsel of Blount.
Mr. Roscoe Conkling, a Senator from New York, asked Mr. Carpenter
this question:
Is there no distinction on the point of jurisdiction to try an
impeachment, between the case of a resignation before articles are
found and the case of resignation not till after articles, have been
found?
Mr. Carpenter replied: \2\
The question put to me by the Senator from New York is very specific,
and, in reply, I would say that a distinction exists between the case
where a resignation precedes the exhibition of the articles and the
case where a resignation comes between the exhibition of the articles
and final judgment. And this court might hold that after jurisdiction
had attached by exhibition of the articles, or even by the formal
impeachment which precedes exhibition of articles, the jurisdiction had
attached, and resignation would not prevent final judgment. Speaking,
however, for myself, I still incline to the opinion that
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\2\ Page 43.
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if the officer, who alone can be impeached, is out of the office before
judgment of removal passes, this would abate a proceeding, which, I
have endeavored to show, can only be had for the purpose of removal. It
is said the law will not require a vain thing; from which I infer that
the highest court in the Republic will not render a vain judgment.
Mr. Carpenter also said,\1\ after citing authorities:
But against this army of authorities, showing that a private citizen
can not be impeached, the managers say that Belknap was in office at
the time of the impeachment. It is not denied that Belknap resigned,
and his resignation was accepted by the President, at 10 o'clock and 20
minutes a. m., March 2, 1876; nor is it denied that the first
proceedings in the House in relation to him took place after 3 p. m. of
that day. But the managers say that, in legal contemplation, he was in
office at the time of impeachment, because the law will not notice
fractions of a day; and, second, that he resigned to evade impeachment,
and therefore was in office for the purpose of impeachment after his
resignation was accepted.
Fractions of a day! I did not suppose this case would be determined
on a question of special pleading, or a fiction of law, until I heard
the argument of the learned manager [Mr. Lord] yesterday. I supposed we
could strike through the fog and place our feet upon the solid rock of
jurisdiction. But the managers propose to hold us by a fiction. They
maintain that, although the respondent had resigned, and his
resignation had been accepted, nevertheless, this court must decide
that he was in office all day, and until after his impeachment on the
afternoon of that day, because this court can not distinguish between
the forenoon and afternoon of a day.
Suppose a man is sentenced by a criminal court to be hanged at 2 p.
m. of a certain day; and suppose the President pardons him at 10 a. m.
of that day. Must he be hanged at 2 p. m. because the law knows no
fraction of a day? We have heard of men being hanged on the gallows;
hanged at the yard-arm; but we never beard of a man being hanged on the
fraction of a day.
Suppose in time of war the colonel of a regiment is relieved from
duty, or his resignation accepted at 9 o'clock in the morning, and at 4
p. m. of the same day the regiment is engaged in battle. Could the
colonel be court-martialed because he was not at the head of his
regiment at 4 o'clock?
But having answered the managers on the substance of their claim of
jurisdiction, we shall not yield to their fictions.
Mr. Manager Jenks replied \2\ to Mr. Carpenter:
Of the second portion of this proposition, which is concerning the
collateral facts, I shall say but little, if anything, more than this:
It has been considered by the chairman of the managers; he has advanced
three or four propositions in support of the view that it is material
to consider all the surrounding facts. One of those propositions is,
that in law there is no fraction of a day. He has cited authorities to
establish that; that was the general rule, that in law there is no
fraction of a day. This being the general rule, an exception was
introduced by the honorable counsel for the defendant, that is, that if
it be necessary to subserve the purposes of justice, a court will
consider the fractions of a day. Then the matter stands thus: As a
rule, courts will not recognize the fractions of a day; but as an
exception, if it be necessary to subserve the purposes of justice, they
will recognize the fractions of a day. Hence, when the counsel cited
those authorities to show that they would consider it as an exception,
it was essential to show that it was necessary to subserve the purposes
of justice to bring his case within the exception. He left off just
where the real contest began: Is it necessary to subserve the purposes
of justice that this court should recognize the fractions of a day? It
seems to me that there is no necessity in subserving the purposes of
justice that this court should recognize any fraction of a day. Put the
question in this form: How can it subserve the interests of justice,
when a defendant is charged with having surreptitiously filched from
the pockets of from eight hundred to a thousand men from 10 to 25 cents
every day for five years, that that defendant shall plead this as an
excuse, that the ends of justice are subserved by recognizing the
fractions of a day? If he had discussed this, and shown that this
defendant would have been wronged did you not consider it, he would
then have brought his case within the exception; but, having failed to
do that, he leaves it as my colleague, the chairman, left it; that is,
that the general
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rule, if the defendant have not brought himself within the exception,
still exists, and the court will not recognize the fractions of a day.
With reference to the question of relation, that was not considered
at all by the counsel for the defendant, and we shall leave it, as our
chairman has left it, with you.
The Senate debated the question from the 15th to the 29th of May.\1\
The debates were behind closed doors and were not reported.
On May 16 \2\ the following questions were submitted by Senators for
consideration:
By Mr. Oliver P. Morton, of Indiana:
Is there power in Congress to impeach a person for crime committed
while in office if such person had resigned the office and such
resignation had been accepted before the finding of articles of
impeachment by the House?
By Mr. Justin S. Morrill, of Vermont:
Has the Senate power to entertain jurisdiction in the pending case of
the impeachment by the House of Representatives of William W. Belknap,
late Secretary of War, notwithstanding the facts alleged in relation to
his resignation?
By Mr. John Sherman, of Ohio, on May 25: \3\
Resolved, That notwithstanding the resignation of William W. Belknap
prior to his impeachment by the House of Representatives he is still
liable to such impeachment for the misdemeanors charged in the articles
presented by the House of Representatives, and his plea of such
resignation is not sufficient in law to bar the trial upon such
articles.
On May 29 \4\ the Presiding Officer announced that the proposition
pending was that offered by Mr. Morton on the 16th instant. Thereupon
Mr. Morton modified his proposition to read as follows:
Resolved, That the power of impeachment created by the Constitution
does not extend to a person who is charged with the commission of a
high crime while he was a civil officer of the United States and acting
in his official character, but who had ceased to be such officer before
the finding of articles of impeachment by the House of Representatives.
Mr. Justin S. Morrill, of Vermont, moved to amend the resolution by
striking out all after the word ``resolved,'' in the first line, and in
lieu thereof inserting:
That the demurrer of the respondent to the replication of the House
of Representatives to the plea of the respondent be, and the same is
hereby, overruled; and that the plea of the respondent to the
jurisdiction of the Senate be, and the same is hereby, overruled; and
that the articles of impeachment are sufficient to show that the Senate
has jurisdiction of the case, and that the respondent answer to the
merits of the accusation contained in the articles of impeachment.
Mr. Isaac P. Christiancy, of Michigan, moved to amend the amendment
of Mr. Morrill, of Vermont, by striking out all after the word ``that''
in the first line thereof, and inserting:
W. W. Belknap, the respondent, is not amenable to trial by
impeachment for acts done as Secretary of War, he having resigned said
office before impeachment.
Mr. George G. Wright, of Iowa, moved to lay the resolution of Mr.
Morton on the table, and this motion was agreed to, yeas 36, nays 30.
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\1\ Senate Journal, pp. 932-947; Record of trial, pp. 72-76.
\2\ Senate Journal, p. 933; Record of trial, p. 73.
\3\ Senate Journal, p. 939; Record of trial, p. 74.
\4\ Senate Journal, pp. 942-947; Record of trial, p. 76.
Sec. 2008
Thereupon Mr. Allen G. Thurman, of Ohio, proposed a resolution, which
was in this form, after the words ``before he was impeached'' had been
added on motion of Mr. Roscoe Conkling, of New York:
Resolved, That in the opinion of the Senate William W. Belknap, the
respondent, is amenable to trial by impeachment for acts done as
Secretary of War, notwithstanding his resignation of said office before
he was impeached.
Mr. Algernon S. Paddock, of Nebraska, moved to amend the said
resolution by striking out all after the word ``resolved'' and in lieu
thereof inserting:
That William W. Belknap, late Secretary of Wax, having ceased to be a
civil officer of the United States by reason of his resignation before
proceedings in impeachment were commenced against him by the House of
Representatives, the Senate can not take jurisdiction in this case.
This amendment was disagreed to, yeas 29, nays 37.
Then the resolution was agreed to, yeas 37, nays 29.
Mr. Thurman also presented a further resolution, which, after
amendment at the suggestion of Mr. Thomas F. Bayard, of Delaware, was
agreed to by a vote of 35 yeas, 22 nays:
Resolved, That at the time specified in the foregoing resolution
[June 1 was fixed by a separate resolution] the President of the Senate
shall pronounce the judgment of the Senate as follows: ``It is ordered
by the Senate sitting for the trial of the articles of impeachment
preferred by the House of Representatives against William W. Belknap,
late Secretary of War, that the demurrer of said William W. Belknap to
the replication of the House of Representatives to the plea to the
jurisdiction filed by said Belknap be, and the same hereby is,
overruled; and, it being the opinion of the Senate that said plea is
insufficient in law and that said articles of impeachment are
sufficient in law, it is therefore further ordered and adjudged that
said plea be, and the same hereby is, overruled and held for naught;''
which judgment thus pronounced shall be entered upon the Journal of the
Senate sitting as aforesaid.
In the final arguments Messrs. Montgomery Blair \1\ and Matthew H.
Carpenter \2\ also argued this question.
2008. Reference to discussions as to what are impeachable offenses.--
In the course of the arguments during the impeachment trial of Andrew
Johnson, President of the United States, the question, ``What are
impeachable offenses?'' was discussed at length and learnedly. Mr.
Manager Benjamin F. Butler, of Massachusetts, argued \3\ learnedly in
favor of this definition:
We define therefore an impeachable high crime or misdemeanor to be
one in its nature or consequences subversive of some fundamental or
essential principle of government or highly prejudicial to the public
interest, and this may consist of a violation of the Constitution, of
law, of an official oath, or of duty, by an act committed or omitted,
or, without violating a positive law, by the abuse of discretionary
powers from improper motives or for any improper purpose.
Mr. Butler also appended to his argument \4\ an exhaustive brief on
the ``law of impeachable crimes and misdemeanors,'' prepared by Mr.
William Lawrence, of Ohio.\5\ This view was also supported by Mr.
Manager John A. Logan, of Illinois.\6\ Of the Senators who filed
written opinions, Mr. Charles Sumner, of Massachusetts, argued at
length that political offenses were impeachable offenses.\7\ So also
argued Mr. Richard Yates, of Illinois.\8\
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\1\ Record of trial, pp. 287-289.
\2\ Pp. 330-334.
\3\ Second session Fortieth Congress, Globe, Supplement, p. 29.
\4\ Pages 41-50.
\5\ Globe, p. 1559.
\6\ Pages 252-254.
\7\ Pages 464-466.
\8\ Page 487.
Sec. 2009
Mr. Benjamin R. Curtis, of Massachusetts, of counsel for the
President, argued, on the other hand, that impeachable offenses could
only be offenses against the laws of the United States.\1\ Mr. Thomas
A. R. Nelson, of Tennessee, also of President's counsel, argued in the
same line,\2\ and Mr. William M. Evarts, of New York, also of counsel
for the President, argued at length against the definition given by Mr.
Manager Butler.\3\ Of the Senators who filed written opinions on the
case, this view was sustained by Mr. Garrett Davis, of Kentucky.\4\
2009. Argument that the phrase ``high crimes and misdemeanors'' is a
``term of art,'' of fixed meaning in English parliamentary law, and
transplanted to the Constitution in unchangeable significance.--On
February 22, 1905,\5\ in the Senate sitting for the impeachment trial
of Judge Charles Swayne, Messrs. Anthony Higgins and John M. Thurston,
of counsel for the respondent, offered a brief in support of their plea
of jurisdiction as to the first seven articles. This brief, which was
signed by them as counsel, but which, as they said, had been prepared
by another, covered many questions relating to impeachments, the
following being among them:
i. what are impeachable ``high crimes and misdemeanors,'' as defined in
article 11, section 4, of the constitution of the
united states?
By a strange coincidence, the death of parliamentary impeachment, as
a living and working organ of the English constitution, synchronizes
with its birth in American constitutions, State and Federal. Leaving
out of view the comparatively unimportant impeachment of Lord Melville
(1805), really the last of that long series of accusations by the
Commons and trials by the Lords, which began in the fiftieth year of
the reign of Edward III (1376), was the case of Warren Hastings, who
was impeached in the very year in which the Federal Convention of 1787
met at Philadelphia. Before that famous prosecution, with its failure
and disappointment, drew to a close, the English people resolved that
the ancient and cumbrous machinery of parliamentary impeachment was no
longer adapted to the wants of a modern and progressive society. But
before this ancient method of trial thus passed into desuetude in the
land of its birth it was embodied, in a modified form, first in the
several State constitutions and finally in the Constitution of the
United States.
Article II, section 4, of the Federal Constitution, provides that
``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 and misdemeanors.'' Article
I, section 2, provides that ``the House of Representatives shall choose
their Speaker and other officers; and shall have the sole power of
impeachment.'' Article I, section 3, provides that ``the Senate shall
have the sole power to try all impeachments. When sitting for that
purpose, they shall be on oath or affirmation. When the President of
the United States is tried, the Chief Justice shall preside; and no
person shall be convicted without the concurrence of two-thirds of the
Members present. 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.''
Article III, section 2, provides that ``the trial of all crimes, except
in cases of impeachment, shall be by jury.''
ii. provisions borrowed from the english constitution.
Mr. Bayard said in his argument in Blount's trial (Wharton's St. Tr.,
264): ``On this subject, the Convention proceeded in the same manner it
is manifest they did in many other cases. They considered the object of
their legislation as a known thing, having a previous definite
existence. Thus existing,
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\1\ Page 134.
\2\ Pages 293, 294.
\3\ Pages 343, 344.
\4\ Pages 439, 440.
\5\ Third session Fifty-eighth Congress, Record, pp. 3026-3028.
Sec. 2009
their work was solely to mold it into a suitable shape. They have given
it to us, not as a thing of their creation, but merely of their
modification. And therefore I shall insist that it remains as at common
law, with the variance only of the positive provisions of the
Constitution. * * * That law was familiar to all those who framed the
Constitution. Its institutions furnished the principles of
jurisprudence in most of the States. It was the only common language
intelligible to the members of the Convention.''
A recent writer of note, speaking on the same subject, has said: ``If
we examine the clauses of the Constitution, we perceive at once that
the phraseology is applied to a method of procedure already existing.
`Impeachment' is not defined, but is used precisely as `felony,'
`larceny,' `burglary,' `grand jury,' `real actions,' or any other legal
term used so long as to have acquired an accepted meaning, might be.
The Constitution takes impeachment as an established procedure, and
lodges the jurisdiction in a particular court, declaring how and by
whom the process shall be put in motion, and how far it shall be
carried. They have given to us a thing not of their creation, but of
their modification. To ascertain, then, what this established procedure
was, what were, at the time of the Constitutional Convention,
impeachable offenses, we must look to England, where the legal notions
contained in the clauses quoted had their origin.'' (American Law
Review, vol. 16, p. 800. Article by G. Willett Van Nest.) Madison, in
No. 65 of the Federalist, said: ``The model from which the idea of this
institution has been borrowed pointed out the course to the Convention.
In Great Britain it is the province of the House of Commons to prefer
the impeachment and of the House of Lords to decide upon it. Several of
the State constitutions have followed the example.''
iii. high crimes and misdemeanors as defined in english parliamentary
law.
The English Parliament as a whole has always been considered and
styled ``The high court of Parliament,'' which is governed by a single
body of law peculiarly its own. As Sir Thomas Erskine May (Parl. Prac.,
pp. 71 and 72) has well expressed it: ``Each house, as a constituent
part of Parliament, exercises its own privileges independently of the
other. They are enjoyed, however, not by a separate right peculiar to
each, but solely by virtue of the law and custom of Parliament.'' In
the words of Lord Coke (4 Inst., 15), ``As every court of justice hath
laws and customs for its direction--some the civil and canon, some the
common law, others their own peculiar laws and customs--so the high
court of Parliament hath also its own peculiar law, called the lex et
consuetudo parliamenti.'' Blackstone (Bk. I, 163) in commenting upon
the statement of Coke, that the law of Parliament, unknown to many and
known by few, should be sought by all observes that, ``It is much
better to be learned out of the rolls of Parliament and other records
and by precedents and continual experience than can be expressed by any
one man.'' Chitty, in commenting upon the statement of Blackstone, has
said:
``The law of Parliament is part of the general law of the land, and
must be discovered and construed like all other laws. The members of
the respective houses of Parliament are in most instances the judges of
that law; and, like the judges of the realm, when they are deciding
upon past laws, they are under the most sacred obligation to inquire
and decide what the law actually is, and not what, in their will and
pleasure, or even in their reason and wisdom, it ought to be. When they
are declaring what is the law of Parliament, their character is totally
different from that with which, as legislators, they are invested when
they are framing new laws; and they ought never to forget the
admonition of that great and patriotic chief justice, Lord Holt, viz,
`that the authority of the Parliament is from the law, and as it is
circumscribed by law, so it may be exceeded; and if they do exceed
those legal bounds and authority their acts are wrongful, and can not
be justified any more than the acts of private men.' (1 Salk, 505.)''
(Chitty's Blackstone, vol. 1, p. 119, note 21.) It has always been
conceded that the phrase ``other high crimes and misdemeanors,''
embodied in Article II, section 4, of the Constitution of the United
States, must be construed in the light of the definitions fixing its
meaning in the parliamentary law of England as that law existed in
1787. The construction then given to the phrase in question was
incorporated into our Federal Constitution as a part of the phrase
itself, which is unintelligible and meaningless without such
construction. The following elementary principles (as stated by Hon.
William Lawrence, in the brief prepared by him for use in the trial of
Andrew Johnson, Vol. I, pp. 125, 136), seem upon that occasion, to have
passed unchallenged:
``As these words are copied by our Constitution from the British
constitutional and parliamentary law, they are, so far as applicable to
our institutions and condition, to be interpreted not by English
municipal law but by the lex parliamentaria. * * * Whatever `crimes and
misdemeanors' were
Sec. 2009
the subject of impeachment in England prior to the adoption of our
Constitution, and as understood by its framers, are therefore subjects
of impeachment before the Senate of the United States, subject only to
the limitations of the Constitution. * * * ` Treason, bribery, and
other high crimes and misdemeanors' are, of course, impeachable.
Treason and bribery are specifically named, but `other high crimes and
misdemeanors' are just as fully comprehended as though each was
specified. The Senate is made the sole judge of what they are. There is
no revising court. The Senate determines in the light of parliamentary
law. Congress can not define or limit by law that which the
Constitution defines in two cases by enumeration and in others by
classification, and of which the Senate is sole judge. * * * Now, when
the Constitution says that all civil officers shall be removable on
impeachment for high crimes and misdemeanors, and the Senate shall have
the sole power of trial, the jurisdiction is conferred and its scope is
defined by common parliamentary law.''
While the Senate sitting as a court of impeachment is the sole and
final judge of what impeachable ``high crimes and misdemeanors'' are,
no arbitrary discretion so to determine is vested. The Power of the
court simply extends to the construction of the phrase in question as
defined in English constitutional and parliamentary law as it existed
in 1787. That is made plain by Story in his Commentary on the
Constitution, section 797, when he says: ``Resort then must be had
either to parliamentary practice, and the common law, in order to
ascertain what high crimes and misdemeanors; or the whole subject must
be left to the arbitrary discretion of the Senate for the time being.
The latter is so incompatible with the genius of our institutions that
no lawyer or statesman would be inclined to countenance so absolute a
despotism of opinion and practice, which might make that a crime at one
time or in one person which would be deemed innocent at another time or
in another person. The only safe guide in such cases must be the common
law.''
iv. a rule of constitutional construction as defined by the supreme
court of the united states.
The fundamental principles of English constitutional law were first
reproduced in the constitutions of the several States. In the light of
the construction put upon them there, they were embodied, so far as
applicable and desirable, in the Constitution of the United States.
Thus the Federal Supreme Court was called upon at an early day to
interpret the immemorial formulas or ``terms of art'' through which the
cardinal principles of English constitutional law were incorporated in
our governmental systems, State and Federal. The uniform rule for
construing such formulas or ``terms of art'' adopted at the outset has
been continued in force until the present time. When, in the trial of
Aaron Burr, Chief Justice Marshall was called upon to construe Article
III, section 3, of the Constitution, which provides that ``treason
against the United States shall consist only in levying war against
them, or in adhering to their enemies, giving them aid and comfort,''
he said, ``What is the natural import of the words `levying war?' and
who may be said to levy it? * * * The term is not for the first time
applied to treason by the Constitution of the United States. It is a
technical term. It is used in a very old statute of that country whose
language is our language and whose laws form the substratum of our
laws. It is scarcely conceivable that the term was not employed by the
framers of our Constitution in the sense which had been affixed to it
by those from whom we borrowed it. So far as the meaning of any terms,
particularly terms of art, is completely ascertained, those by whom
they are employed must be considered as employing them in that
ascertained meaning, unless the contrary be proved by the context. It
is therefore reasonable to suppose, unless it be incompatible with
other expressions of the Constitution, that the term `levying war' is
used in that instrument in the same sense in which it was understood in
England and in this country to have been used in the statute of twenty-
fifth of Edward III, from which it was borrowed.'' (Burr's Trial, Vol.
2, pp. 401, 402.)
When in the case of Murray v. The Hoboken Land Co. (18 How., 272) it
became necessary for the Supreme Court to construe the formula ``due
process of law,'' as embodied in the fifth amendment, Mr. Justice
Curtis, speaking for the court, said: ``The words `due process of law'
were undoubtedly intended to convey the same meaning as the words `by
the law of the land' in Magna Charta. Lord Coke, in his commentary on
those words (2 Inst., 50), says they mean due process of law. The
constitutions which had been adopted by the several States before the
formation of the Federal Constitution, following the language of the
Great Charter more closely, generally contained the words `but by the
judgment of his peers, or the law of the land.' The ordinance of
Congress of July 13, 1787, for the government of the territory of the
United State northwest of the river Ohio, used the words.''
Sec. 2009
When in the case of Davidson v. New Orleans (96 U. S., 97) it became
necessary to again construe the same formula-- ``due process of law,''
as embodied in the fourteenth amendment-Mr. Justice Miller, speaking
for the court, said: ``The prohibition against depriving the citizen or
subject of his life, liberty, or property without due process of law is
not new in the constitutional history of the English race. It is not
new in the constitutional history of this country, and it was not new
in the Constitution of the United States when it became a part of the
fourteenth amendment, in the year 1866. The equivalent of the phrase
`due process of law,' according to Lord Coke, is found in the words
`law of the land,' in the Great Charter, in connection with the writ of
habeas corpus, the trial by jury, and other guarantees of the rights of
the subject against the oppression of the Crown.'' In Smith v. Alabama
(124 U. S., 465) it was held that ``the interpretation of the
Constitution of the United States is necessarily influenced by the fact
that its provisions are framed in the language of the English common
law, and are to be read in the light of its history,'' a statement
affirmed by the adoption in United States v. Wong Kim Ark (169 U. S.
649).
v. immemorial formulas transplanted from the english constitution,
unchangeable by subsequent congressional legislation.
The foregoing authorities put the fact beyond all question that the
immemorial formulas or ``terms of art'' transferred from the English
constitution to our own were adopted, not as isolated or abstract
phrases, but as epitomes or digests of the great principles which they
embodied. That is to say, the term ``levying war'' carried with it the
identical meaning given it as a part of the statute of Edward III; the
term ``due process of law,'' the identical meaning given to it as a
part of Magna Charta; the term ``high crimes and misdemeanors,'' the
identical meaning given it as a part of the law of the High Court of
Parliament. Or, in other words, when such formulas were embedded in the
Constitution of 1787, their historical meaning and construction went
along with them as completely as if such meaning and construction had
been written out at length upon the face of the instrument itself. If
that be true, the conclusion is self-evident that no subsequent
Congressional legislation can change in any way, by addition or
substraction, the definitions embodied in such formulas at the time of
their adoption. If the contrary were true, Congress could any day give
to the term ``levying war'' or ``due process of law'' a definition,
conveying ideas of which the fathers never dreamed. Or if the term
``high crimes and misdemeanors'' could be subjected to a new
Congressional definition, acts which were such in 1787 could be
relieved of all criminality, and new acts not then criminal could be
added to the list of impeachable offenses. So obvious is the fact that
Congress can not legislate at all on the subject that Mr. Lawrence,
whose brief has been heretofore quoted, frankly admitted, while
striving to give to the powers of Congress the widest possible
construction, that ``Congress can not define or limit by law that which
the Constitution defines in two cases by enumeration, and in others by
classification, and of which the Senate is sole judge.''
The last phrase is specially suggestive of the fact that if Congress
could, by subsequent legislation, ``define or limit by law that which
the Constitution defines,'' the Senate sitting as a court of
impeachment could be entirely deprived by such legislation of the power
to determine what were impeachable high crimes and misdemeanors as
defined by the fathers in 1787. In other words, if Congress can add to
or subtract from the constitutional definition in any particular, it
can destroy it altogether. In the great case of Marbury v. Madison (1
Cranch, 137) the first in which an act of Congress was ever declared
unconstitutional, the question of questions was this: Does the fact
that the Constitution itself has defined the original jurisdiction of
the Supreme Court prohibit Congress from enlarging such original
jurisdiction by subsequent legislation? The solemn answer was that the
attempt of Congress to do so was void. Why? Because the dividing line
between the original and appellate jurisdiction having been drawn by
the Constitution itself, it is immovable by legislation. In the words
of the great Chief Justice: ``If Congress remains at liberty to give
this court appellate jurisdiction where the Constitution has declared
their jurisdiction shall be original, and original jurisdiction where
the Constitution has declared it shall be appellate, the distribution
of jurisdiction made in the Constitution is form without substance.''
Thus it follows that any act of Congress which attempts to change the
constitutional definition of impeachable high crimes and misdemeanors,
by adding to the list some offense unknown to the parliamentary law of
England as it existed in 1787, is simply void and of no effect.
Sec. 2010
2010. Argument of Mr. John M. Thurston, counsel, that judges may be
impeached only for judicial misconduct occurring in the actual
administration of justice in connection with the court.
Argument that an impeachment trial is a criminal proceeding.
On February 25, 1905,\1\ in the Senate, sitting for the impeachment
of Judge Charles Swayne, Mr. John M. Thurston, of counsel for the
respondent, in final argument, said:
In the printed brief originally filed in behalf of the respondent a
demonstration, based upon the authorities, was made, to the effect that
no clear light is to be derived as to the meaning of the phrase ``other
high crimes and misdemeanors,'' so far as that phrase relates to the
impeachment of English and American judges, except from the English and
American judicial impeachment cases in which it has been applied to
that subject. Instead of attempting to meet that reasonable and obvious
contention upon its merits, the managers have evaded it by propounding
a series of generalities, based upon principles drawn, in the main,
from political impeachments which throw no real light upon the subject.
In the course of that evasion the following remarkable statement has
been made:
Said the managers in their brief:
``For the first time in impeachment trials in this or any other
country the claim is made that a judge can be impeached only for acts
done in his official capacity.''
The fact that that statement does not fully relate the history of
impeachment cases will appear by consideration of those cases. After
the impeachments for bribery, pure and simple, of English judges are
put aside, but two judicial impeachments remain in the entire history
of the English people--that is, the impeachment of judges.
Judges, like all others, can be impeached for treason not committed
upon the bench or in judicial affairs. They can be impeached for
bribery by the strict terms of the Constitution, bribery committed
anywhere, without regard to whether they were sitting upon the bench at
the time. But as to other causes of impeachment I challenge the
honorable managers to show me any case in history, English or American,
where a judge has been impeached for any other crime or high
misdemeanor except one alleged to have been committed in connection
with his exercise of judicial authority. In saying that, I do not refer
to some impeachment cases that have happened in States and under State
constitutions, for many of the constitutions of the several States have
provisions largely at variance with those of the Constitution of the
United States upon this subject.
But four judicial impeachments have taken place under the
Constitution of the United States. It was admitted by the House of
Commons in England and by the House of Representatives in the United
States by the form of the articles they presented in these judicial
impeachment cases that, excepting treason or bribery, neither an
English nor a Federal judge could be impeached except for judicial
misconduct occurring in the actual administration of justice in
connection with his court, either between private individuals or
between the Government and the citizen.
The statement of the honorable managers in their brief--
``For the first time in impeachment trials in this or any other
country the claim is made that a judge can be impeached only for acts
done in his official capacity''--
is contradicted by the judicial history of every case of impeachment of
a judge in Great Britain and the United States.
Mr. Manager Olmsted was greatly mistaken when he said in his
argument:
``One year later, the Senate having convicted John Pickering, Federal
judge in a New Hampshire district, upon a charge of drunkenness''--
The article exhibited against John Pickering charged him with
drunkenness upon the bench, and was limited to that charge, for the
framers of that impeachment well knew that the drunkenness of the judge
was no ground for impeachment under the Constitution of the United
States unless he carried that drunkenness upon the bench.
The articles against Pickering read:
``Being then judge of the district court in and for the district of
New Hampshire, did appear on the bench of the said court for the
purpose of administering justice in a state of total intoxication, pro
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\1\ Third session Fifty-eighth Congress, Record, pp. 3365, 3366.
Sec. 2010
duced by the free and intemperate use of inebriating liquors, and did
then and there frequently in a most profane and indecent manner''--
That is, on the bench, while administering justice--
``invoke the name of the Supreme Being, etc.''
It was perfectly understood by every constitutional lawyer then, as
it should be understood now, that the personal misconduct of an English
judge off the bench has never furnished the ground for impeachment, and
for the well-understood reason that under the English constitution, as
it has been called, they provided for two methods of removing judges
from the bench--one by impeachment for high crimes and misdemeanors and
the other upon address to the sovereign by both houses of Parliament.
When we came to frame our Constitution we adopted from the English
constitution the term ``treason, bribery, and other high crimes and
misdemeanors.'' The question was mooted in that convention as to
whether or not we should also embody in our Constitution the English
provision for the removal of Federal judges by address of the two
Houses of Congress to the President. Understanding perfectly well, as
the debates will show, that impeachment would only lie for a crime or
offense committed in connection with the judicial office and the
administration of justice, they rejected the proposed clause providing
for removal by address. The framers of our Constitution did this
because they were tenacious of the stability of the tenure of office of
our Federal judges, and were fearful that if they enlarged the
impeachment provision some of the States, by reason of local prejudice,
might proceed criminally against them, and upon conviction of crime
base articles of impeachment thereon.
Mr. President, I state here and now that the contention made by one
of the honorable managers that a judge can be impeached under the
Constitution of the United States for a crime committed as an
individual against a State law has no foundation in any case that has
ever been known of on the earth, was not thought of as possible by the
framers of our Constitution, and is not the law today. It would leave a
Federal judge at the mercy of a local condition, inimical as it might
be to the Federal Constitution.
The case of Humphreys has been cited as a case where a Federal judge
was impeached for other than judicial misconduct. Yes, Humphreys was
impeached for treason. Any judge can be impeached for treason or for
bribery, no matter where or how committed; but the only charge in his
impeachment other than treason was the charge of judicial misconduct as
the judge of the court, in the court, and acting in the administration
of justice.
Mr. President, that the framers of our Constitution well knew the
limitations they were imposing upon the right of impeachment is further
attested by the fact that in the original draft of that great document
the language was ``for treason, bribery, or maladministration,'' and
the word ``maladministration'' has crept into some of the constitutions
of our several States. Upon the consideration of that question on the
floor of the convention it was moved to strike out
``maladministration'' and insert ``other high crimes and
misdemeanors,'' and for the very reason that the term
``maladministration'' was a loose term that might mean, under the
decisions of the Senate in the future, much or little; that it might
cover impeachments at one period of time by one party in power that it
would not cover at another period of time with another party in power.
They struck it out because it was too large a term, too loose a term,
and they inserted in its place those definite words, ``high crimes and
misdemeanors,'' taken from the English constitution with parliamentary
construction already attached.
We took that provision from the English constitution and with it we
took the interpretation that was placed upon it by the lex parliamenti,
the law of Parliament, established by the adjudications in the great
tribunal. That provision meant then what it meant in England at the
time. Mr. President, that provision meant then what it has meant ever
since. It meant then what it always must mean. From the debates in that
convention it does appear that those words were adopted with that
construction upon them because it was claimed that it would be unwise
to permit even the Congress of the United States, by ever making
something a crime that was not then a crime, to enlarge the operation
of that impeachment provision of the Constitution, or to repeal some of
those things which then constituted crimes and thereby prevent the
impeachment of those who committed them.
Sir, that provision of the Constitution was embodied in that great
instrument with a meaning that can never be changed by the Congress of
the United States. It was embodied there with a meaning which will
remain the same to the end of time. It furnishes the limitation with
which the power of Congress can be exercised in impeachment cases.
I insist that for the first time in this case is it even suggested by
constitutional lawyers that that
Sec. 2011
term permits the impeachment of a judge simply because he has been
tried and convicted in a court of a State for a crime against the
statutes of a State, or because in his private life he has been impure
or improvident, or because of any other shortcomings or failures
exhibited in his career except those which relate to the administration
of justice in the court over which he presides.
Mr. President, before proceeding to discuss the articles and the
evidence, I call your attention to the fact that this is a criminal
proceeding, and the respondent is charged with a crime. That question
was settled by the Senate some days since upon the vote taken on the
question of the admissibility of evidence. It is certain that this
proposition is true, because the last portion of section 2 of article 3
of the Constitution of the United States provides that ``the trial of
all crimes except in cases of impeachment, shall be by jury,'' and
thereby the framers of that great instrument declared that an offense
to be impeachable must be a crime, or, what is equivalent to it, a high
misdemeanor.
Mr. President, this respondent, being on trial charged with crime, is
entitled to every reasonable doubt that may arise upon the evidence in
the case. I do not come here to claim that he needs the application of
this rule, for I insist that the evidence in this case shows that he is
guiltless beyond a reasonable doubt; but I invoke the attention of the
Senate to that beneficent rule of law now because it is the outgrowth
of the spirit of liberty and justice so strong in the Anglo-Saxon race.
It is the common safeguard and heritage of every American citizen. It
is the shield of the accused and is a bulwark for the protection of the
liberty and life of every man, woman, and child in the land.
2011. Argument of Mr. Manager Perkins that a judge may be impeached
for personal misconduct.--On February 24, 1905,\1\ in the Senate,
sitting for the impeachment trial of Judge Charles Swayne, Mr. Manager
James B. Perkins, of New York, in concluding argument, said in relation
to the articles charging nonresidents in the district:
The argument made in behalf of the respondent is this: That a judge,
under the precedents of the English courts, can not be impeached for
any act except one done in the course of his duty as a judge, and that
the sixth and seventh articles do not charge an omission of duty as a
judge, but an omission of duty as an individual.
Mr. President, this can best be answered by an illustration of what
is the logical and necessary result of the argument on the other side,
that a judge of the United States court can not be impeached by the
Senate of the United States unless for some strictly judicial act. Let
us suppose that a judge commits a crime; that he forges a note; that he
embezzles money. He is indicted and tried and convicted in the State
courts of these crimes and sentenced to bear the punishment. Then it is
sought to remove him from office by impeachment. The judge having
committed these crimes is impeached. He employs my learned friends on
the other side, and they claim before the Senate then, as they claim
now, that the Senate has no power to impeach a judge except for acts
done as a judge. They say, and say justly, that when this judge forged
a note, or embezzled money, he was not acting as a judge, but as an
individual. And if the argument be just, we have this extraordinary
conclusion: A judge can not be removed except by impeachment. The
judge, for the crime committed in his private capacity, is serving his
term in State's prison. As he marches to perform hard labor, he will
once a month receive the consolation of opening the envelope containing
the check which will be monthly sent to him to pay him his salary as a
judge of the United States court. Such a result shows the absurdity of
the position.
The English cases are cited, but in England, apart from the remedy by
impeachment, a judge can be removed for any cause deemed sufficient by
a bill of attainder. That is unknown in this country. Bills of
attainder were not put in our Constitution, and the remedy by
impeachment by the Senate is the sole remedy by which a judge can be
removed.
But a word more. What offense is Judge Swayne charged with? It is
that he did not reside within his district. The law could not say that
Judge Swayne as an individual should reside in the northern district of
Florida or anywhere else, but the law says that when he is a judge he,
because he is a judge, shall reside within his district; and when he
failed so to do he omitted a judicial requirement made of him just as
much as if he had sold justice or made unrighteous decisions.
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\1\ Third session Fifty-eighth Congress, Record, p. 3246.
Sec. 2012
I shall say no more on that point, but come at once to what is the
important, the great question in this case--not whether the offense is
impeachable, but whether the offense was committed. It has already been
suggested that a judge of the United States court is the one officer in
the land who holds his office by a life tenure. He can not be removed
by the people. He can not be removed by the President. Nothing but the
act of God or the vote of the Senate can remove a man who holds the
office of United States judge. His dignity is great; his responsibility
is correspondingly great. The people who complain, the people who lack
confidence in their judges, can look to the Senate and can look here
alone for relief. If they can not get it here they can not get it
anywhere.
2012. Argument of Mr. Anthony Higgins, counsel, that impeachable
offenses by a judge are confined to acts done on the bench in discharge
of his duties.--On February 24, 1905,\1\ in the Senate, sitting for the
impeachment trial of Judge Charles Swayne, Mr. Anthony Higgins, of
counsel for the respondent, said in final argument:
Mr. President, I conceive it is of no slight interest or importance
to the Senate that of the four learned managers who have now taken part
in the presentation of the prosecution of this case three of them have
devoted as much time as they have to the question whether the offenses
charged in the first seven articles constitute impeachable offenses the
alleged offense or crime of the respondent of making a false claim, or
obtaining money by false pretenses; of using a car belonging to a
railroad company, contrary to good morals, and, third, in not obeying
the statute to reside in his district. All three have united in
presenting the argument of ab inconvenienti--one which seldom weighs
much with courts, and one which, it seems to us, after the conclusive
discussion of the subject in the argument which it has been our
privilege to present to the Senate on the constitutional question, is
not left in the case really for discussion. That argument shows beyond
per adventure that the framers of the Constitution in leaving out of
the Constitution any provision for the removal of an official subject
to impeachment by address did it purposely and with a view of giving
stability to those who hold the offices, and especially the judges.
``Mr. Dickinson,'' says Elliott in his Debates on the Constitution,
``moved, as an amendment to Article XI, section 2, after the words
`good behavior,' the words `Provided, That they may be removed by the
Executive on the application by the Senate and House of
Representatives.'''
This was in respect of the judges.
Mr. Gerry seconded the motion. Mr. Gouverneur Morris thought it a
contradiction in terms to say that the judges should hold their offices
during good behavior and yet be removable without a trial. Besides, it
was fundamentally wrong to subject judges to so arbitrary an authority.
``Mr. Randolph opposed the motion as weakening too much the
independence of the judges.
``Delaware alone voted for Mr. Dickinson's motion.''
Says Judge Lawrence in a paper on this subject, which he filed in the
Johnson impeachment case:
``Impeachment was deemed sufficiently comprehensive to cover every
proper case for removal.
``The first proposition was to use the words `to be removable on
impeachment and conviction for malpractice and neglect of duty.' It was
agreed that these expressions were too general. They were therefore
stricken out.''
Mr. Mason said:
``Treason, as defined in the Constitution, will not reach many great
and dangerous offenses. Hastings is not guilty of treason. Attempts to
subvert the Constitution may not be treason as above defined.''
* * * * * *
He moved to insert after ``bribery'' the words ``or
maladministration.''
Mr. Madison replied:
``So vague a term will be equivalent to a tenure during the pleasure
of the Senate.''
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\1\ Third session Fifty-eighth Congress, Record, pp. 3258-3259.
Sec. 2013
Mr. Mason withdrew ``maladministration'' and substituted ``other high
crimes and misdemeanors against the State.''
Mr. President, there are in the States of Pennsylvania, Delaware,
South Carolina, Alabama, Arkansas, Florida, Illinois, Kentucky,
Louisiana, and Texas provisions substantially the same as those
contained in the constitutions of Pennsylvania and of Delaware. The
constitution of the State of Pennsylvania of 1790 provides:
``Article V.
``Sec. 2. The judges of the supreme court and of the several courts
of common pleas shall hold their offices during good behavior. But for
any reasonable cause, which shall not be sufficient ground of
impeachment, the governor may remove any of them on the address of two-
thirds of each branch of the legislature.''
The clause of the constitution of Delaware is similar. The
Pennsylvania constitution as amended in 1838 provides:
``Sec. 3. The governor and all other civil officers under this
Commonwealth shall be liable to impeachment for any misdemeanor in
office, but judgment in such cases shall not extend farther than to
removal from office and disqualification to hold any office of honor,
trust, or profit under the Commonwealth. The party, whether convicted
or acquitted, shall, nevertheless, be liable to indictment, trial,
judgment, and punishment according to law.'' (Page 1561.)
So that there are in those constitutions the direct provision that
power of removal by address is given as punishment for cases which by
the very words of the constitution are said not to be the subject of
impeachment.
An examination of the constitutions of the several States will show
that there are not more than two or three State constitutions which do
not contain the power of removal by address. That power was placed in
the English constitution by a great and famous historic statute--the
Act of Settlement--passed early in the reign of William and Mary, or of
Anne, at the time when the present dynasty of the British throne was
placed upon the authority of an act of Parliament. Then it was that the
provision was placed in the statute that judges should be removable by
address for causes that were not the subject of impeachment. Therefore,
in the face of this state of the constitutional law and of the terms
and provisions of the Constitution, where is there room for an argument
that that construction shall not hold because there is no other way of
getting rid of judges but by impeachment?
Now, but one word more on this, and that is in respect to the case
that was cited by the learned manager, Mr. Olmsted, of an impeachment
in Massachusetts. I call attention to the fact that the constitution of
Massachusetts of 1780 makes provision for the impeachment of judges
broader than the other States, or at least most of them.
``Art. VIII, The Senate shall be a court with full authority to hear
and determine all impeachments made by the house of representatives
against any officer or officers of the Commonwealth for misconduct and
maladministration in their offices.''
So in Massachusetts the judge who took illegal fees upon the
ministerial side of his probate court was clearly impeachable under the
provision of the Massachusetts constitution, which extended to
ministerial functions.
2013. Argument from review of English impeachments that the phrase
``high crimes and misdemeanors,'' as applied to judicial conduct, must
mean only acts of the judge while sitting on the bench.
History of removal by address in England and the States as bearing on
the nature of impeachable offenses on the part of a judge.
On February 22, 1905,\1\ in the Senate sitting for the impeachment
trial of Judge Charles Swayne, Messrs. Anthony Higgins and John M.
Thurston, of counsel for the respondent, offered a brief in support of
their plea of jurisdiction as to the first seven articles. This brief,
which was signed by them as counsel, but which, as they said,
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\1\ Third session Fifty-eighth Congress, Record, pp. 3028-3031.
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had been prepared by another, covered many questions relating to
impeachments,, the following being among them:
The only pertinent definitions of the term ``high crimes and
misdemeanors,'' as contained in Article II, section 4, of the Federal
Constitution, must be drawn (1) from the law of Parliament as it
existed in 1787; (2) from the contemporaneous expositions of that law
embodied in the constitutions of the several States. In order to
present anything like an adequate statement of the English law of
impeachment as it existed at the time in question, some account must be
given of the process of growth through which it had passed prior to
that time. The history of that growth is divided into two epochs,
easily distinguishable from each other. The first begins with the
proceedings against the Lords Latimer and Neville, which took place in
the Good Parliament in the fiftieth of Edward 111 (1376). These
proceedings are regarded by the constitutional historians as the
earliest instances of a trial by lords upon a definite accusation made
by the Commons. (Hallam, M. A., Vol. III, p. 56; Stubbs, Const. Hist.,
Vol. II, p. 431.) Not until early in the reign of Edward III was
Parliament definitely and finally divided into two houses that
deliberated apart; not until near the dose of that reign did the
Commons, as the grand jury of the whole realm, attempt to present
persons accused of grave offenses against the State to the Lords for
trial. At the outset, the new method of accusation was rivaled by what
were known as ``appeals,'' which have been thus defined: ``It was the
regular course for private persons, even persons who were not members
of Parliament, to bring accusations of a criminal nature in Parliament,
upon which proceedings were had.'' (Stephen, Hist. of the Criminal Law
of England, Vol. 1, 151.)
The results of the private warfare thus instituted were so
inconvenient that ``appeals'' were finally abolished by the statute of
I Hen. 4, c. 14. Thus left without a rival, proceedings by impeachment
were occasionally employed during the reigns of Richard II, Henry IV,
Henry V, and Henry VI. In the reign last named Lord Stanley was
impeached in 1459 for not sending his troops to the battle of
Bloreheath. That trial terminates the first epoch in the history of the
law of impeachment in England. It was not again employed during the
period that divides 1459 from 1621, an interval of one hundred and
sixty-two years. The primary cause for the suspension is to be found in
the fact that during that interval it was that the decline in the
prestige and influence of Parliament was such that the directing power
in the state passed to the King in council, the judicial aspect of
which was known as ``the star chamber.'' There it was that the great
state trials took place during the reign of Edward IV and during the
following reigns of the princes of the house of Tudor. Such impeachment
trials as did take place during the first or formative epoch are not as
distinctly defined as those that occurred during the later period, and
have now only an antiquarian interest.
vii. impeachments in england: second epoch.
With the revival of the powers of Parliament in the reign of James 1,
impeachment was resumed as a weapon of constitutional warfare. From
that time its modern history, with which this discussion is concerned,
really begins. The first impeachment case to occur during the second
epoch was that of Sir Giles Mompesson in 1621, the last that of Lord
Melville in 1805. Including the first and last the total is 54. [Here
follows the list.]
An examination of the foregoing list reveals the fact that many of
the impeachments in question were directed against private individuals,
it having always been the law of England that all subjects, as well out
of office as in office, might be thus accused and tried. A good
illustration may be found in the notable case of Doctor Sacheverell,
rector of St. Savior's, Southwark, who was impeached by the Commons and
convicted by the Lords for having preached two sermons inculcating the
doctrine of unlimited passive obedience. (State Trials, XV, p. 1.) As
that branch of the law of impeachment which authorized the accusation
of private individuals out of office was never reproduced in this
country, cases of that class may be dismissed from consideration. By
far the greater number of the remaining cases are what are known as
``political impeachments,'' whereby one party in the State would
attempt to crush its adversaries in office by impeaching them for high
treason, which generally involved commitment to the Tower.
As illustrations, reference may be made to the case of Portland,
Halifax, and Somers, three Whig peers impeached of high treason by a
Tory House of Commons for their share in promoting the Spanish
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partition treaties in 1700; and to that of Oxford, Bolingbroke, and
Ormond, Tory ministers impeached by the triumphant Whigs in the Commons
for their share in negotiating the peace of Utrecht in 1713. (State
Trials, Vol. XIV, p. 233. Parl. Hist., Vol. VII, p. 105.) A well-known
English writer has described the latter as ``the last instance of
purely political impeachment.'' (Taswell-Langmead, English Const.
Hist., p. 549, note.) Cases of that class shed but a dim light upon the
definition of the term ``high crimes and misdemeanors'' as applied to
those offenses for which English judges have been punished for
misbehavior in office. No clear or authoritative definitions of the
term in question can be found, as applied to that subject, outside of
what are known as judicial impeachments as contradistinguished from
political. As the purely judicial impeachment cases which have occurred
in England are very few in number, their results may be stated within
narrow limits.
The earliest of the accusations which have been made against English
judges have been for the crime of bribery, the crime for which Lord
Bacon was impeached by the Commons in 1621. The changes against Bacon
particularly set forth instances of judicial corruption by the
acceptance of bribes, and in his ``confession and submission ``he said:
``I do plainly and ingeniously confess that I am guilty of corruption,
and do renounce all defense.'' (State Trials, Vol. 11, 1106.) Such
cases, though rare, had occurred before Bacon's time. In the words of
Sir 1. F. Stephen, Coke ``gives two instances in which judges were
punished for taking bribes, namely, Sir William Thorpe, in 1351, who
took sums amounting in all to 90 for not awarding an
exigent against five persons at Lincoln assizes, and certain
commissioners (probably special commissioners) of over and terminer,
who were fined 1,000 marks each for taking a bribe of 4. I
have elsewhere referred to the impeachment of the Chancellor Michael de
la Pole, by Cavendish, the fishmonger, for taking a bribe of
40, 3 yards of scarlet cloth, and a quantity of fish, in
the time of Richard II. * * *
``Lord Macclesfield was also impeached and removed from his office
for bribery in 1725.'' (Hist. of the Crim. Law of Eng., Vol. III, pp.
251-52, citing as to the case of Lord Macclesfield Sixteen State
Trials, p. 767.) That Case was the last judicial impeachment in
England. It is not, therefore, strange that bribery, as a distinct and
substance offense, should have been named, side by side with treason,
as an impeachable crime, in the Constitution of the United States.
After the bribery cases of Lord Chancellor Bacon and Lord Chancellor
Macclesfield have been subtracted from the foregoing list, but two
judicial impeachments remain in the entire history of the English
people. Only in those two cases have the Commons impeached and the
Lords tried English judges upon charges of judicial misconduct other
than bribery.
ix. impeachment of sir robert berkley and other judges.
In 1635 Charles I announced his attention to extend the exaction of
ship money to the inland counties. When the writs of that year were
resisted, the judges gave answers in favor of the prerogative. When in
1636 another set of ship writs were issued, Hampden made a test case by
refusing to pay the assessment on his lands at Great Missenden, and the
issue thus raised was argued in November and December, 1637, before a
full bench. The contention made in favor of the Crown was sustained by
seven of the judges--Finch, chief justice of the common pleas;
Bramston, chief justice of the king's bench; Berkley, one of the
justices of that court; Crawley, one of the judges of the common pleas;
Davenport, lord chief baron of the exchequer; Weston and Trevor, barons
of that court. When the day of reckoning came, Finch fled to Holland,
and the remaining six were impeached by the Commons for their judgments
rendered in favor of the royal contention, the charges being delivered
to the Lords July 6,1641. As Berkley's opinion in favor of the legality
of ship money was the most emphatic, he was made the special object of
attack in articles which charged him not only with the ship-money
opinion, but with other acts of judicial misconduct on the bench. The
nature of the accusations against him can be best explained by extracts
from the articles themselves, which open with the general statement
``that the said Sir Robert Berkley, then being one of the justices of
the said court of king's bench, hath traitorously and wickedly
endeavored to subvert the fundamental laws and established government
of the realm of England, and instead thereof to introduce an arbitrary
and tyrannical government against law, which he bath declared, by
traitorous and wicked words, opinions, judgments, practices, and
actions appearing in the several articles ensuing.''
The following are a fair sample of the special charges: ``4. That he,
the said Robert Berkley, then being one of the justices of the king's
bench, and having taken an oath for the due administration of justice,
according to the laws and statutes of the realm, to His Majesty's liege
people, on or about the
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last of December subscribed an opinion, in haec verba: ` I am of
opinion, that where the benefit doth more particularly redound to the
good of the ports,' etc. * * * 6. That he, the said Sir Robert Berkley,
then being one of the justices of the court of king's bench, and duly
sworn as aforesaid, did on------deliver his opinion in the exchequer
chamber against John Hampden, esq., in the case of ship money. * * * 7.
That he, the said Sir Robert Berkley, then being one of the justices of
the court of king's bench, and one of the justices of the assize for
the county of York, did, at the assizes held at York in Lent, 1636,
deliver his charge to the grand jury, `that it was a lawful and
inseparable flower of the Crown for the King to command, not only the
maritime counties, but also those that were inland, to find ships for
the defense of the kingdom.' * * * 8. The said Sir R. Berkley then
being one of the justices of the court of king's bench, in Trinity term
last, then sitting on the bench in said court, upon debate of the said
case between the said chambers and Sir E. Bromfield, said openly in the
court, `that there was a rule of law, and a rule of government;' and
that `many things which might not be done by the rule of law might be
done by the rule of government;' and would not suffer the point of
legality of ship money to be argued by chambers' counsel. * * * 9. The
said Sir R. Berkley, then and there sitting on the bench, did revile
and threaten the grand jury returned to serve at the said session, for
presenting the removal of the communion table in All Saints Church in
Hertford aforesaid. * * * 11. He, the said Sir R. Berkeley, being one
of the justices of the said court of king's bench, and sitting in said
court, deferred to grant a prohibition to the said Court-Christian in
said cause, although the counsel did move in the said court many
several times and several times for a prohibition.'' (State Trials,
vol. 3, pp. 1283-1291.) The impeachment against Berkley ended in his
paying a fine of 10,000.
x. impeachment of sir william scroggs, chief justice of the king's
bench.
In the reign of Charles II, Sir William Scroggs, chief justice of the
king's bench, was impeached of high crimes and misdemeanors, the nature
of which may be best explained by the following extracts from the
articles themselves. The general accusation is ``that the said William
Scroggs, then being chief justice of the court of king's bench, hath
traitorously and wickedly endeavored to subvert the fundamental laws,
and the established religion and government of this Kingdom of England;
and instead thereof to introduce properly and arbitrary and tyranical
government against law; which he has declared by divers traitorous and
wicked words, opinions, judgments, practices, and actions.'' Chief
among the special charges are the following: II. ``That he, the said
Sir William Scroggs, in Trinity term last, being then chief justice of
the said court, and having taken an oath duly to administer justice
according to the laws and statutes of this realm, in pursuance of his
said traitorous purposes, did, together with the rest of the justices
of the said court, several days before the end of said term, in an
arbitrary manner, discharge the grand jury which then served for the
hundred of Oswaldston, in the county of Middlesex, before they had made
their presentments, etc. * * * III. That, whereas one Henry Carr had,
for some time before, published every week a certain book, entitled
`The Weekly Pacquet of Advice from Rome, or The History of Popery,'
wherein the superstitions and cheats of the Church of Rome were from
time to time exposed, he, the said Sir William Scroggs, then chief
justice of the court of king's bench, together with the other judges of
the said court, before any legal conviction of the said Carr, of any
crime did in the said Trinity term, in a most illegal and arbitrary
manner, make and cause to be entered a certain rule of that court
against the printing of said book, in haec verba. * * * IV. That the
said Sir William Scroggs, since he was made chief justice of the king's
bench, hath, together with the other judges of the said court, most
notoriously departed from all rules of justice and equality in the
imposition of fines upon persons convicted of misdemeanors in said
court.'' The result was that the chief justice was removed from office
and given a pension for life. (State Trials, Vol. VIII, pp. 195, 216.)
xi. proceeding against lord chief justice keeling.
Intervening between the case of Berkley and other judges (1640) and
that of Sir William Scroggs (1680) are proceedings by the Commons
against Lord Chief Justice Keeling, which occurred in 1667, notable for
the reason that they clearly illustrate what kind of judicial acts were
considered as impeachable high crimes and misdemeanors at that time.''
A copy of Judge Keeling's case, taken out of the Parliament Journal,
December 11, 1667: `The House resumed the hearing of the rest of the
report touching the matter of restraint upon juries; and that upon the
examination of divers witnesses, in several causes of restraints put
upon juries, by the Lord Chief Justice Keeling; whereupon the committee
made their resolutions, which are as follows: 1. That the proceedings
of the Lord Chief Justice, in the cases now
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reported, are innovations in the trial of men for their lives and
liberties; and that he hath used an arbitrary and illegal power, which
is of dangerous consequence to the lives and liberties of the people of
England, and tends to the introducing of an arbitrary government. 2.
That in the place of judicature, the Lord Chief Justice hath
undervalued, vilified, and condemned Magna Charta, the great preserver
of our lives, freedom, and property. 3. That he be brought to trial, in
order to condign punishment in such manner as the House shall judge
most fit and requisite.''' (State Trials, Vol. 6, p. 991, seq.)
``On the 16th of October, 1667, the House being informed `that there
have been some innovations of late in trials of men for their lives and
deaths, and in some particular cases restraints have been put upon
juries in the inquiries,' this matter is referred to a committee. On
the 18th of November this committee are empowered to receive
information against the Lord Chief Justice Keeling for any other
misdemeanors besides those concerning juries. And on the 11th of
December, 1667, the committee report several resolutions against the
Lord Chief Justice Keeling of illegal and arbitrary proceedings in his
office. The chief justice desiring to be heard, he is admitted on the
13th of December and heard in his defense to the matters charged
against him, and being withdrawn, the House resolve `that they will
proceed no further in the matter against him.' '' (4 Hatsel Prec., pp.
123-4, cited in Chase's Trial, Vol. II, p. 461.)
xii. removal by address provided by the act of settlement.
By the foregoing analysis of the only English precedents to which we
can look for expositions of the meaning of the phrase ``high crimes and
misdemeanors,'' as applied to the conduct of English judges, the fact
is put beyond all question that the only judicial acts which the House
of Commons ever regarded as falling within that category are such acts
as a judge performs while sitting upon the bench, administering the
laws of the realm, either between private persons or between the Crown
and the subject. In the case of Mr. Justice Berkley the gravamen of the
charge was that he rendered a judgment in the matter of ship money in
conflict with what his triers considered the law of the realm to be. In
the case of Chief Justice Scroggs the gravamen of the charge was that
he arbitrarily discharged grand juries; that in a libel case he
rendered an illegal judgment, and that he imposed unjust fines upon
those convicted of misdemeanors. In the proceedings against Chief
Justice Keeling the gravamen of the charge was that he had put
``restraint'' upon juries by fining them for their verdicts.``Wagstaff
and others of a jury were fined an hundred marks a piece by Lord Chief
Justice Keeling.'' (4 Hatsell Prec., p. 124, note.) Excepting bribery
there is no case in the parliamentary law of England which gives color
to the idea that the personal misconduct of a judge, in matters outside
of his administration of the law in a court of justice, was ever
considered or charged to constitute a high crime and misdemeanor. When
the question is asked, By what means is the personal misconduct of an
English judge, not amounting to a high crime and misdemeanor, punished
? the answer is easy.
Prior to the passage in 1701 of the famous Act of Settlement (12 and
13 Will. III, C. 2) neither the tenure nor the compensation of English
judges rested upon a firm or definite foundation. Hallam (Const. Hist.,
Vol. III, p. 194) tells us that ``it had been the practice of the
Stuarts, especially in the last years of their dynasty, to dismiss
judges, without seeking any other pretense, who showed any disposition
to thwart government in political prosecutions.'' As the hasty and
imperfect Bill of Rights had failed to provide a. remedy for that
condition of things, it became necessary for the authors of the Act of
Settlement, ``the complement of the Revolution itself and the Bill of
Rights,'' to provide that English judges should hold office during good
behavior (quandiu se bene gesserint), and that they should receive
ascertained and established salaries. But, while the judges were being
thus entrenched in their offices, the fact was not forgotten that the
remedy by impeachment extended only to high crimes and misdemeanors
which did not embrace personal misconduct. Therefore a method of
removal was provided by address, which was intended to embrace all
misconduct not included in the term ``high crimes and misdemeanors.''
In the light of that statement it will be easier to understand the
full purport of that section of the Act of Settlement which provides
``that after the said limitations shall take effect as aforesaid,
judges'' commissions be made quandiu se bene gesserint, and their
salaries ascertained and established; but upon the address of both
Houses of Parliament it maybe lawful to remove them.'' Thus, for
seventy-five years prior to the severance of the political tie which
bound the English colonies in America to the parent State, the twofold
method for the removal of English judges was clearly defined and
perfectly understood on both sides of the Atlantic. The twofold method
embraced (1) the removal by impeach-
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ment for all acts constituting ``high crimes and misdemeanors,'' a term
then clearly defined in English parliamentary law; (2) the removal by
address for all lesser acts of personal misconduct not embraced within
that term. That such was the general and accepted view on this side of
the Atlantic in 1776 of the English parliamentary law on impeachment
and address will be put beyond all question by the following references
to the several State constitutions in which that law reappeared.
xiii. impeachment and address as defined in the constitutions of the
several states.
On May 10, 1776, the Continental Congress recommended to the several
conventions and assemblies of the colonies the establishment of
independent governments ``for the maintenance of internal peace and the
defense of their lives, liberties, and properties.'' (Charters and
Constitutions, vol. 1, p. 3.) Before the end of the year in which that
recommendation was made the greater part of the colonies had adopted
written constitutions, in which were restated, in a dogmatic form, all
of the vital principles of the English constitutional system.
Illustrations of the adoption of the English plan for the removal of
judges by impeachment and address may be drawn from the following State
constitutions: The constitution of Pennsylvania of 1776, Article V,
section 2, provides that ``the judges of the supreme court and of the
several courts of common pleas shall hold their offices during good
behavior. But for any reasonable cause, which shall not be sufficient
ground for impeachment, the governor may remove any of them, on the
address of two-thirds of each branch of the legislature.''
The constitution of Delaware of 1792, Article VI, section 2, provides
that ``the chancellor and the judges of the supreme court of common
pleas shall hold their offices during good behavior; but for any
reasonable cause, which shall not be sufficient ground for impeachment,
the governor may in his discretion, remove any of them on the address
of two-thirds of all the members of each branch of the legislature.''
The constitution of South Carolina of 1868, Article VII, section 4,
provides that ``for any willful neglect of duty or other reasonable
cause, which shall not be sufficient ground of impeachment, the
governor shall remove any executive or judicial officer on the address
of two-thirds of each house of the general assembly.'' Here are
explicit and dogmatic statements of the settled rule of English
parliamentary law that judges may be removed by impeachment for grave
offenses of judicial misconduct, and by address for lesser offenses of
personal misconduct. As this distinction was so well known, many of the
State constitutions simply presuppose it without stating it in express
terms. The constitution of Massachusetts of 1780, Chapter III, article
1, after providing for removal by impeachment, declares that ``all
judicial officers duly appointed, commissioned, and sworn shall hold
their offices during good behavior, excepting such concerning whom
there is different provision made in this constitution: Provided,
nevertheless, the governor, with consent of the council, may remove
them upon the address of both houses of the legislature.''
The constitution of Georgia of 1798, Article III, section 1, provides
that ``the judges of the superior court shall be elected for the term
of three years, removable by the governor on the address of two-thirds
of both houses for that purpose, or by impeachment and conviction
thereon.'' The constitution of New Hampshire of 1784, Article I, part
2, provides that ``all judicial officers, duly appointed, commissioned,
and sworn, shall hold their offices during good behavior, excepting
those concerning whom there is a different provision made in this
constitution: Provided, nevertheless, the president, with the consent
of council, may remove them upon the address of both houses of the
legislature.'' The constitution of Connecticut of 1818, Article V,
section 3, provides that ``the judges of the supreme court and of the
superior court shall hold their offices during good behavior; but may
be removed by impeachment, and the governor shall also remove them on
the address of two-thirds of the members of each house of the general
assembly.'' It is said that the constitution of New York of 1777 was
the model from which the impeachment clauses of the Constitution of the
United States were copied. (6 Am. Law Reg., N. S., 277.)
The New York constitution of that date expressly limited impeachment
to persons in office, and omitted removal by address. Such an omission
was, however, exceptional. The rule was to introduce into the State
constitutions both processes of removal by impeachment and address. And
if it were not for fear of wearying the court by reiteration, the list
of instances could be greatly lengthened in which both methods were
introduced into later State constitutions not here mentioned, together
with the recognized distinction between impeachable offenses and the
lesser acts of misconduct justifying only removal by address, expressed
in the words ``not sufficient ground of impeachment.'' (See Appendix.)
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2014. Argument that Congress might not by law make nonresidence a
high misdemeanor in a judge.
Discussion of the intent of a judge as a primary condition needed to
justify impeachment.
On February 22, 1905,\1\ in the Senate sitting for the impeachment
trial of Judge Charles Swayne, Messrs. Anthony Higgins and John M.
Thurston, of counsel for the respondent, offered a brief in support of
their plea of jurisdiction as to the first seven articles. This brief,
which was signed by them as counsel, but which, as they said, had been
prepared by another, covered many questions relating to impeachments,
the following being among them:
First. That the definition of the term ``high crimes and
misdemeanors,'' as employed in Article II, section 4, of the
Constitution, must be drawn from the parliamentary law of England as it
existed in 1787, construed in the light of the contemporaneous
expositions of that law embodied in the provisions of the constitutions
of the several States as to impeachment and address.
Second. That the definition of that term, as thus fixed at the time
of the adoption of the Federal Constitution, is organic and
unchangeable by subsequent Congressional legislation; that no act not
an impeachable offense when the Constitution was adopted can be made so
by a subsequent act of Congress.
Third. That the ``high crimes and misdemeanors'' for which English
judges were impeachable in 1787 can only be clearly ascertained from an
examination of what are known as the English judicial impeachment
cases, as contradistinguished from the political.
Fourth. That English judges have never been impeached except for
bribery, or for judicial misconduct occurring in the actual
administration of justice in court, either between private individuals
or between the Crown and the subject.
Fifth. That since the act of settlement (1701), when the tenure and
compensation of English judges was first fixed on a definite basis,
such judges have been removable for judicial misconduct not amounting
to an impeachable high crime and misdemeanor, by address.
Sixth. That the plain distinction between the acts for which a judge
may be impeached and the acts for which he may be removed by address
was clearly recognized and defined in the constitutions of many of the
States.
Seventh. That after careful consideration and debate the Federal
Convention of 1787, with only one dissenting vote, rejected the
proposition to embody the removal of Federal judges by address in the
Constitution of the United States ``as weakening too much the
independence of the judges.'' After rejecting the more ample provisions
upon the subject of impeachment embodied in some of the State
constitutions, it was resolved that Federal judges should only be
removed by impeachment for and conviction of ``high crimes and
misdemeanors'' in the limited sense in which that phrase was defined in
the parliamentary law of England as it existed in 1787.
Eighth. That in no one of the four judicial impeachments which have
taken place since the adoption of our Federal Constitution has the
House of Representatives ever attempted to impeach a Federal judge for
``high crimes and misdemeanors,'' except in those cases in which he
would have been impeachable under the English parliamentary precedents.
That is to say, the proceedings against Justice Berkley and other
judges (1640), the proceedings against Chief Justice Keeling (1667),
the proceedings against Chief Justice Scroggs (1680), the proceedings
against Judge Pickering (1803), the proceedings against Judge Chase
(1804), the proceedings against Judge Peck (1830), the proceedings
against Judge Humphreys (1862), so far as they relate to judicial
misconduct, rest upon a single proposition, which is this: In English
and American parliamentary and constitutional law the judicial
misconduct which rises to the dignity of a high crime and misdemeanor
must consist of judicial acts, performed with an evil or wicked intent,
by a judge while administering justice in a court, either between
private persons or between a private person and the government of the
State. All personal misconduct of a judge occurring during his tenure
of office and not coming within that category must be classed among the
offenses for which a judge may be removed by address, a method of
removal which the framers of our Federal Constitution refused to embody
therein.
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\1\ Third session Fifty-eighth Congress, Record, pp. 3033-3034.
Sec. 2014
When the allegations contained in articles 1, 2, and 3, presented
against this respondent, are examined, it appears that they set forth
in three forms an identical charge, which is in substance that the
respondent, in settling his accounts with certain United States
marshals under a certain act of Congress providing for the reasonable
expenses for travel and attendance of a district judge, when lawfully
directed to hold court outside of his district, exacted and received in
payment for such expenses from the said marshals sums in excess of the
amounts contemplated in said act. It is charged that such acts
constitute ``a high crime, to wit, the crime of obtaining money from
the United States by a false pretense, and of a high misdemeanor in
office.'' The short answer to such a charge is that no such offense was
ever thought of or defined in the parliamentary law of England as a
high crime and misdemeanor in 1787, or at any other time; that it bears
no relation whatever to the acts known in English parliamentary law as
an impeachable offense. If it be true, as alleged, that the respondent
was guilty in making such settlements of ``obtaining money from the
United States by a false pretense,'' then the remedy is by indictment
by a grand jury and a trial by a petit jury, as in the case of any
other citizen of the country. The Constitution expressly provides,
Article I, section 3, that persons subject to impeachment ``shall
nevertheless be liable and subject to indictment, trial, judgment, and
punishment according to law.'' While it is quite possible to understand
how such personal misconduct upon the part of a judge, entirely
disconnected with the conduct of judicial business on the bench, might
subject him to removal by address in a State which had adopted that
plan of removal for nonimpeachable offenses, it is hard to conceive how
any effort of the imagination could reach the conclusion that such an
act constitutes an impeachable high crime and misdemeanor as defined in
English parliamentary law.
The same comments are applicable to the charges made in articles 4
and 5 as to the use by the respondent of a certain car belonging to a
certain railroad, ``the said railroad company being at the time in the
possession of a receiver appointed by said Charles Swayne, judge as
aforesaid, on the petition of creditors.'' Even if it could be
established that the circumstances attending such a transaction would
warrant removal by address, no advance would be made toward the
conclusion that such acts constitute an impeachable high crime and
misdemeanor as defined in English parliamentary law, because the
further allegation that ``the said Charles Swayne, acting as judge,
allowed the credit claimed by the said receiver for and on account of
the said expenditure as part of the necessary expenses of operating
said road'' falls far short of the English and American rule as to the
evil or wicked intent which must accompany a judgment or opinion
delivered on the bench in order to render it impeachable. Nothing is
better settled than the fact that a judge is not impeachable even for a
judgment, order, or opinion rendered contrary to law unless it is
alleged and proved that it was rendered with an evil, wicked, or
malicious intent. Justice Berkley was impeached not simply because he
decided in favor of ship money, but because he ``traitorously and
wickedly endeavored to subvert the fundamental laws'' of the realm
thereby. Chief Justice Scroggs was impeached not simply for imposing
``fines upon persons convicted of misdemeanors in said court,'' but
because he imposed them ``for the further accomplishing of his said
traitorous and wicked purposes.''
Justice Chase was impeached because he, ``with intent to oppress and
procure the conviction of the said Callender, did overrule the
objection of John Bassett, one of the jury;'' ``that, with intent to
oppress and procure the conviction of the prisoner, the evidence of
John Taylor, a material witness on behalf of the aforesaid Callender,
was not permitted by the said Samuel Chase to be given in.'' Judge Peck
was impeached not because he punished Lawless for contempt, but because
he did so ``with intention wrongfully and unjustly to oppress,
imprison, and otherwise injure the said Luke Edward Lawless under color
of law, * * * under the color and pretense aforesaid and with the
intent aforesaid, in the said court then and there did unjustly,
oppressively, and arbitrarily order and adjudge,'' etc. If further
illustrations of the necessity for averments as to the wicked and
malicious intent with which a judicial act must be performed need be
given, they may be drawn from articles 8, 9, 10, 11, and 12, presented
against this respondent, in which impeachable offenses are properly
charged under the rule which the Constitution prescribes--that is to
say, the rule of English parliamentary law. It is charged in one
article that the said Charles Swayne ``did maliciously and unlawfully
adjudge guilty of contempt of court and impose a fine of $100 upon and
commit to prison for a period of ten days E. T. Davis, an attorney at
law, for an alleged contempt of the circuit court of the United
States;'' and in another that he ``did maliciously and unlawfully
adjudge guilty of a contempt of court and impose a
Sec. 2015
fine of $100 upon and commit to prison for a period of ten days Simeon
Belden, an attorney and counselor at law, for an alleged contempt of
the circuit court of the United States.''
With the plain and settled rule thus recognized clearly in view, the
draftsmen of articles 4 and 5 have not only failed to charge that the
respondent ``allowed the credit claimed by said receiver for and on
account of the said expenditure,'' etc., ``maliciously and
unlawfully,'' but, what is more to the point, they have failed to
charge that he did so ``knowingly.'' There is no reason to suppose, in
the absence of such an allegation, that a judge, approving the mass of
accounts presented to the court by a receiver of a railroad, would have
personal knowledge of every trivial item which such accounts contain.
The presumption is clearly to the contrary. In articles 4 and 5 there
is no charge either that the respondent ever ``knowingly'' passed upon
the items of expense in question or that he approved them ``maliciously
and unlawfully.'' In the absence of such allegations articles 4 and 5
fall to the ground.
The charge of nonresidence contained in article 6 presupposes the
validity of section 551, Revised Statutes of the United States, which
provides that ``a district judge shall be appointed for each district,
except in cases hereinafter provided. Every judge shall reside in the
district for which he is appointed, and for offending against this
provision shall be deemed guilty of a high misdemeanor.'' If the
foregoing argument proves anything, it is the fact that when the phrase
``high crimes and misdemeanors'' was embodied in the Federal
Constitution in 1787 it drew along with it, as an integral part of it,
the definitions which fixed its meaning in English parliamentary law at
that time. The phrase, coupled with the definitions of it, thus became
organic and unchangeable by subsequent Congressional legislation, just
as the definition of the original and appellate jurisdiction of the
Supreme Court became organic and unchangeable. The convention pointedly
refused to make impeachable offenses an uncertain or changeable
quantity. ``The first proposition was to use the words `to be removable
on impeachment and conviction for malpractice and neglect of duty.' It
was agreed that these expressions were too general. They were therefore
stricken out. * * * Colonel Mason said: `Treason, as defined in the
Constitution, will not reach many great and dangerous offenses.
Hastings is not guilty of treason. Attempts to subvert the Constitution
may not be treason as above defined.' He moved to insert after
`bribery' the words `or maladministration.' Madison: `So vague a term
will be equivalent to a tenure during the pleasure of the Senate.'
Mason withdrew `maladministration' and substituted `other high climes
and misdemeanors against the State.' '' (American Law Review, vol. 16,
p. 804.)
The fathers knew exactly the limitations of the phrase adopted, and
they repelled the idea that it was ever to be enlarged or diminished.
If nonresidence of a judge in his district could be added by Congress
to the list of impeachable offenses, that list could be thus
indefinitely extended; or, by the same authority, every impeachable
offense as understood in 1787 could be abolished. If it is admitted
that Congress can change the organic definition, either by addition or
subtraction, it follows as clearly as a mathematical demonstration that
the scheme of impeachment provided in the Constitution can be entirely
remodeled by legislation. The validity of the section in question,
making nonresidence a high misdemeanor, can not be supported by serious
argument. Even if it could be, the fact can not be lost sight of that
its plain provision is that ``every such judge shall reside in the
district for which he is appointed.'' It will not be disputed that
Judge Swayne was so residing in the district for which he was appointed
at the time that subsequent legislation excluded the place of his
residence from such district. Certainly nothing more can be put forward
by those who assert the validity of section 551 than the contention
that it was respondent's duty to remove, within a reasonable time, from
the district for which he was appointed into the new one for which he
was not appointed. It follows, therefore, that the accusation now made
amounts to nothing more than the charge that respondent did not act
with sufficient alacrity; that he did not remove his residence into the
new district with sufficient promptness. How could such laches possibly
constitute an impeachable high crime and misdemeanor?
2015. Argument that an impeachable offense is any misbehavior that
shows disqualification to hold and exercise the office, whether moral,
intellectual or physical.
Answer to the argument that a judge may be impeached only for acts
done in his official capacity.
Answer to the argument that Congress might not make nonresidence a
high misdemeanor.
Sec. 2015
By permission, before the final arguments in the Swayne trial, the
managers filed a brief on the respondent's plea to jurisdiction.
On February 23, 1905,\1\ in the Senate sitting for the impeachment
trial of Judge Charles Swayne, Manager Henry W. Palmer, of
Pennsylvania, filed, by permission the following brief:
a brief of authorities on the laws of impeachment.
The purpose of this brief is to show--
First. That the framers of the Constitution intended that the House
of Representatives should have the right to impeach and the Senate the
power to try a judicial officer for any misbehavior that showed
disqualification to hold and exercise the office, whether moral,
intellectual, or physical.
The provisions of the Constitution relating to the subject of
impeachment are as follows:
``The House of Representatives shall choose their Speaker and other
officers, and shall have the sole power of impeachment. (Art. I, see.
2.)
``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. (Art. II, sec. 1.)
``The President * * * shall have power to grant reprieves and pardons
for offenses against the United States, except in cases of impeachment.
(Art. II, sec. 2.)
``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, and other high crimes and misdemeanors. (Art. II,
see. 4.)
``The trial of all crimes, except in cases of impeachment, shall be
by jury.'' (Art. 3, sec. 2.)
The convention that framed the Constitution did not define words, but
used them in the sense in which they were understood at that time.
The convention did not invent the remedy by impeachment, but adopted
a well-known and frequently used method of getting rid of objectionable
public officers, modifying it to suit the conditions of a new country.
In England all the King's subjects were liable to impeachment for any
offense against the sovereign or the law. Floyd was impeached for
speaking lightly of the Elector Palatine and sentenced to ride on
horseback for two successive days through certain public streets with
his face to the horse's tail, with the tail in his hands; to stand each
day two hours in pillory; to be pelted by the mob, then to be branded
with the letter ``K'' and be imprisoned for life in the Tower. The
character and extent of the punishment was in the discretion of the
House of Lords.
The Constitution modified the remedy by confining it to the
President, Vice-President, and all civil officers, and the punishment
to removal from office and disqualification to hold office in future.
That it was not intended as a punishment of crime clearly appears
when we read that a party convicted shall nevertheless be liable and
subject to indictment, trial, judgment, and punishment according to
law.
Said Mr. Bayard, in Blount's trial:
``Impeachment is a proceeding of a purely political nature. It is not
so much designed to punish the offender as to secure the State. It
touches neither his person nor his property, but simply divests him of
his political capacity.'' (Wharton's State Trials, 263.)
Subject to these modifications and adopting the recognized rule, the
Constitution should be construed so as to be equal to every occasion
which might call for its exercise and adequate to accomplish the
purposes of its framers. Impeachment remains here as it was recognized
in England at and prior to the adoption of the Constitution.
These limitations were imposed in view of the abuses of the power of
impeachment in English history.
These abuses were not guarded against in our Constitution by
limiting, defining, or reducing impeachable crimes, since the same
necessity existed here as in England for the remedy of impeach
-----------------------------------------------------------------------
\1\ Third session Fifty-eighth Congress, Record, pp. 3179-3181.
Sec. 2015
ment, but by other safeguards thrown around it in that instrument. It
will be observed that the sole power of impeachment is conferred on the
House and the sole power of trial on the Senate by Article I, sections
2 and 3. These are the only jurisdictional clauses, and they do not
limit impeachment to crimes and misdemeanors. Nor is it elsewhere so
limited. Section 4 of Article II makes it imperative when the
President, Vice-President, and all civil officers are convicted of
treason, bribery, or other high crimes and misdemeanors that they shall
be removed from office. There may be cases appropriate for the exercise
of the power of impeachment where no crime or misdemeanor has been
committed.
Whatever crimes and misdemeanors were the subjects of impeachment in
England prior to the adoption of our Constitution, and as understood by
its framers, are, therefore, subjects of impeachment before the Senate
of the United States, subject only to the limitations of the
Constitution.
``The framers of our Constitution, looking to the impeachment trials
in England, and to the writers on parliamentary and common law, and to
the constitutions and usages of our own States, saw that no act of
Parliament or of any State legislature ever undertook to define an
impeachable crime. They saw that the whole system of crimes, as defined
in acts of Parliament and as recognized at common law, was prescribed
for and adapted to the ordinary courts.'' (2 Hale, Pl. Crown, ch. 20,
p. 150; 6 Howell State Trials, 313, note.)
They saw that the high court of impeachment took jurisdiction of
cases where no indictable crime had been committed, in many instances,
and there was then, as there yet are, two parallel modes of reaching
some, but not all offenders--one by impeachment, the other by
indictment.
With these landmarks to guide them, our fathers adopted a
Constitution under which official malfeasance and nonfeasance, and, in
some cases, misfeasance, may be the subject of impeachment, although
not made criminal by act of Congress, or so recognized by the common
law of England, or of any State of the Union. They adopted impeachment
as a means of removing men from office whose misconduct imperils the
public safety and renders them unfit to occupy official position. All
American text writers support this view.
[Story on the Constitution, p. 583.]
``Congress have unhesitatingly adopted the conclusion that no
previous statute is necessary to authorize an impeachment for any
official misconduct; and the rules of proceeding and the rules of
evidence, as well as the principles of decision, have been uniformly
regulated by the known doctrines of the common law and parliamentary
usage. In the few cases of impeachment which have hitherto been tried
no one of the charges has rested upon any statutable misdemeanors. It
seems, then, to be the settled doctrine of the high court of
impeachment that, though the common law can not be a foundation of a
jurisdiction not given by the Constitution or laws, that jurisdiction,
when given, attaches, and is to be exercised according to the rules of
the common law, and that what are and what are not high crimes and
misdemeanors is to be ascertained by a recurrence to that great basis
of American jurisprudence. The reasoning by which the power of the
House of Representatives to punish for contempts (which are breaches of
privileges and offenses not defined by any positive laws) has been
upheld by the Supreme Court stands upon similar grounds; for if the
House had no jurisdiction to punish for contempts until the acts had
been previously defined and ascertained by positive law it is clear
that the process of arrest would be illegal.
``In examining the parliamentary history of impeachments it will be
found that many offenses not easily definable by law, and many of a
purely political character, have been deemed high crimes and
misdemeanors worthy of this extraordinary remedy. Thus lord
chancellors, and judges, and other magistrates have not only been
impeached for bribery and acting grossly contrary to the duties of
their offices, but for misleading their sovereign by unconstitutional
opinions, and for attempts to subvert the fundamental laws and
introduce arbitrary power. So where a lord chancellor has been thought
to have put the great seal to an ignominious treaty, a lord admiral to
have neglected the safeguard of the sea, an ambassador to have betrayed
his trust, a privy councilor to have propounded or supported pernicious
and dishonorable measures, or a confidential adviser of his sovereign
to have obtained exorbitant grants or incompatible employments--these
have been all deemed impeachable offenses. Some of these offenses,
indeed, for which persons were impeached in the early ages of British
jurisprudence would now seem harsh and severe; but perhaps they were
rendered necessary by existing corruptions, and the importance of
suppressing a spirit of favoritism and court intrigue.
Sec. 2015
``Thus persons have been impeached for giving bad counsel to the
King, advising a prejudicia peace, enticing the King to act against the
advice of Parliament, purchasing offices, giving medicine to the King
without advice of physicians, preventing other persons from giving
counsel to the King except in their presence, and procuring exorbitant
personal grants from the King. But others, again, were founded in the
most salutary public justice, such as impeachments for malversations
and neglects in office, for encouraging pirates, for official
oppression, extortions, and deceits, and especially for putting good
magistrates out of office and advancing bad. One can not but be struck,
in this slight enumeration, with the utter unfitness of the common
tribunals of justice to take cognizance of such offenses, and with the
entire propriety of confiding the jurisdiction over them to a tribunal
capable of understanding and reforming and scrutinizing the policy of
the state, and of sufficient dignity to maintain the independence and
reputation of worthy public officers.
[Page 587.]
``The other point is one of more difficulty. In the argument upon
Blount's impeachment it was pressed with great earnestness, while there
is not a syllable in the Constitution which confines impeachments to
official acts, and it is against the plainest dictates of common sense
that such restraint should be imposed upon it. Suppose a judge should
countenance or aid insurgents in a meditated conspiracy or insurrection
against the Government. This is not a judicial act, and yet it ought
certainly to be impeachable. He maybe called upon to try the very
persons whom he has aided. Suppose a judge or other officer to receive
a bribe not connected with his judicial office, could he be entitled to
any public confidence? Would not these reasons for his removal be just
as strong as if it were a case of an official bribe? The argument on
the other side was that the power of impeachment was strictly confined
to civil officers of the United States, and this necessarily implied
that it must be limited to malconduct in office.''
[American and English Encyclopedia of Law, Vol. XV, p. 1066.]
``In the United States.--The Constitution of the United States
provides that 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 and misdemeanors.
If impeachment in England be regarded merely as a mode of trial for the
punishment of common-law or statutory crimes, and if the Constitution
has adopted it only as a mode of procedure, leaving the crimes to which
it is to be applied to be settled by the general rules of criminal law,
then, as it is well settled that in regard to the National Government
there are no common-law crimes, it would seem necessarily to follow
that impeachment can be instituted only for crimes specifically named
in the Constitution or for offenses declared to be crimes by Federal
statute. This view has been maintained by very eminent authority. But
the cases of impeachment that have been brought under the Constitution
would seem to give to the remedy a much wider scope than the above rule
would indicate.
``In each of the only two cases of impeachment tried by the Senate in
which a conviction resulted the defendant was found guilty of offenses
not indictable either at common law or under any Federal statute, and
in almost every case brought offenses were charged in the articles of
impeachment which were not indictable under any Federal statute, and in
several cases they were such as constituted neither a statutory nor a
common-law crime. The impeachability of the offenses charged in the
articles was, inmost of the cases, not denied. In one case, however,
counsel for the defendant insisted that impeachment would not lie for
any but an indictable offense, but after exhaustive argument on both
sides this defense was practically abandoned. The cases, then, seem to
establish that impeachment is not a mere mode of procedure for the
punishment of indictable crimes-, that the phrase 'high crimes and
misdemeanors' is to be taken, not in its common-law but in its broader
parliamentary sense, and is to be interpreted in the light of
parliamentary usage; that in this sense it includes not only crimes for
which an indictment may be brought, but grave political offenses,
corruptions, maladministration, or neglect of duty involving moral
turpitude, arbitrary and oppressive conduct, and even gross
improprieties, by judges and high officers of state, although such
offenses be not of a character to render the offender liable to an
indictment either at common law or under any statute. Additional weight
is added to this interpretation of the Constitution by the opinions of
eminent writers on constitutional and parliamentary law and by the fact
that some of the most distinguished members of the convention that
framed it have thus interpreted it.''
Sec. 2015
[Rawls on the Constitution, p. 210.]
``Impeachments are thus introduced as a known definite term, and we
must have recourse to the common law of England for the definition of
them.''
In England the practice of impeachments by the House of Commons
before the House of Lords has existed from very ancient times. Its
foundation is that a subject intrusted with the administration of
public affairs may sometimes infringe the rights of the people and be
guilty of such crimes as the ordinary magistrates either dare not or
can not punish. Of these, the representatives of the people, or House
of Commons, can not judge, because they and their constituents are the
persons injured, and can therefore only accuse. But the ordinary
tribunals would naturally be swayed by the authority of so powerful an
accuser. That branch of the legislature which represents the people,
therefore, brings the charge before the other branch, which consists of
the nobility, who are said not to have the same interests or the same
passions as the popular assembly.
``The delegation of important trusts, affecting the higher interests
of society, is always from various causes liable to abuse. The fondness
frequently felt for the inordinate extension of power, the influence of
party and of prejudice, the reductions of foreign states, or the basest
appetite for illegitimate emoluments are sometimes productive of what
are not inaptly termed political offenses, which it would be difficult
to take cognizance of in the ordinary course of judicial proceedings.''
[Cushing's Law and Practice of Legislative Assemblies, p. 980, par.
2539.]
``The purpose of impeachment, in modem times, is the prosecution and
punishment of high crimes and misdemeanors, chiefly of an official or
political character, which are either beyond the reach of the law, or
which no other authority in the State but the supreme legislative power
is competent to prosecute, and, by the law of Parliament, all persons,
whether peers or commoners. may be impeached for any crimes or offenses
whatever.''
[Trial of Judge Peck, p. 427. Mr. Buchanan's argument.]
``What is an impeachable offense? This is a preliminary question
which demands attention. It must be decided before the court can
rightly understand what it is they have to try. The Constitution of the
United States declares the tenure of the judicial office to be ``during
good behavior.'' Official misbehavior, therefore, in a judge is a
forfeiture of his office. But when we say this we have advanced only a
small distance. Another question meets us. What is misbehavior in
office? In answer to this question and without pretending to furnish a
definition, I freely admit we are bound to prove that the respondent
has violated the Constitution or some known law of the land. This, I
think, was the principle fairly to be deduced from all the arguments on
the trial of Judge Chase, and from the votes of the Senate in the
articles of impeachment against him, in opposition to the principle for
which his counsel in the first instance strenuously contended, that in
order to render an offense impeachable it must be indictable. But this
violation of law may consist in the abuse as well as in the usurpation
of authority.
``The abuse of a power which has been given may be as criminal as the
usurpation of a power which has not been granted. Can there be any
doubt of this? Suppose a man to be indicted for an assault and battery.
He is tried and found guilty, and the judge, without any circumstances
of peculiar aggravation having been shown, fines him a thousand dollars
and commits him to prison for one year. Now, although the judge may
possess the power to fine and imprison for this offense, at his
discretion, would not this punishment be such an abuse of judicial
discretion and afford such evidence of the tyrannical and arbitrary
exercises of power as would justify the House of Representatives in
voting an impeachment? But why need I fancy cases? Can fancy imagine a
stronger case than is now, in point of fact, before us? A member of the
bar is brought before a court of the United States guilty, if you
please, of having published a libel on the judge--a libel, however,
perfectly decorous in its terms and imputing no criminal intention, and
so difficult of construction that though the counsel of the respondent
have labored for hours to prove it to be a libel still that question
remains doubtful. If in this case the judge has degraded the author by
imprisonment and deprived him of the means of earning bread for himself
and his family by suspending him from the practice of his profession
for eighteen months, would not this be a cruel and oppressive abuse of
authority, even admitting the power to punish in such a case to be
possessed by the judge?
Sec. 2015
``A gross abuse of granted power and an usurpation of power not
granted are offenses equally worthy of and liable to impeachment. If,
therefore, the gentleman could establish, on the firmest foundation,
that the power to punish libels as contempts may be legally exercised
by all the courts of the United States, still he would not have
proceeded far toward the acquittal of his client.
``It has been contended that even supposing the judge to have
transcended his power and violated the law, yet he can not be convicted
unless the Senate should believe he did the act with a criminal
intention. It has been said that crime consists in two things, a fact
and an intention; and in support of this proposition the legal maxim
has been quoted that `actus non fit reum, nisi mens rea.' This may be
true as a general proposition, and yet it may have but a slight bearing
upon the present cue.
``I admit that if the charge against a judge be merely an illegal
decision on a question of property in a civil cause, his error ought to
be gross and palpable, indeed, to justify the interference of a
criminal intention and to convict him upon an impeachment. And yet one
case of this character has occurred in our history. Judge Pickering was
tried and condemned upon all the four articles exhibited against him,
although the three first contained no other charge than that of making
decisions contrary to law in a cause involving a mere question of
property, and then refusing to grant the party injured an appeal from
his decision, to which he was entitled.
``And yet am I to be told that if a judge shall do an act which is in
itself criminal; if he shall, in an arbitrary and oppressive manner and
without the authority of law, imprison a citizen of this country and
thus consign him to infamy, you are not to infer his intention from the
act?
[Judge Spencer's argument, p. 290.]
``It is necessary to a right understanding of the impeachment to
ascertain and define what offenses constitute judicial misdemeanors. A
judicial misdemeanor consists, in my opinion, in doing an illegal act
colore officii with bad motives, or in doing an act within the
competency of the court or judge in some cases, but unwarranted in a
particular case from the facts existing in that case, with bad motives.
To illustrate the last proposition: The eighth article of the
amendments of the Constitution forbids the requirement of excessive
bail, the imposition of excessive fines, or the infliction of cruel or
unusual punishment. If a judge should disregard these provisions, and
from bad motives violate them, his offense would consist, not in the
want of power, but in the manner of his executing an authority
intrusted to him and for exceeding a just and lawful discretion.''
[Mr. Wickliffe's argument, p. 308.]
``By the third article of the Constitution of the United States it is
declared that the judges of the supreme and inferior courts shall hold
their office during good behavior.
``I maintain the proposition that any official act committed or
omitted by the judge, which is a violation of the condition upon which
he holds his office, is an impeachable offense under the Constitution.
``The word misdemeanor, used in its parliamentary sense as applied to
offenses, means maladministration, misconduct not necessarily
indictable, not only in England, but in the United States.
``'In the Senate, July 8, 1797, it was resolved that William Blount,
esq., one of the Senators of the United States, having been guilty of a
high misdemeanor, entirely inconsistent with his public trust and duty
as a Senator, be, and he hereby is, expelled from the Senate of the
United States.' (Wharton's State Trials, 202.)
``He was not guilty of an indictable crime. (Story on the
Constitution, see. 799, note.)
``The offense charged, Judge Story remarks, was not defined by any
statute of the United States. It was an attempt to Seduce a United
States Indian interpreter from his duty, and to alienate the affections
and conduct of the Indians from the public officers residing among
them.''
Blackstone says: ``The fourth species of offense more immediately
against the King and Government axe entitled `misprisions and
contempts.' Misprisions are, in the acceptance of our law, generally
understood to be all such high offenses as are under the degree of
capital, but nearly bordering thereon. * * * Misprisions which are
merely positive are generally denominated contempts or high
misdemeanors, of which the first and principal is maladministration of
such high offices as are in public trust and employment. This is
usually punished by the method of parliamentary impeachment.'' (Vol. 4,
p. 121. See Prescott's trial, Mass., 1821, pp. 79-N, 109,117-120, 172-
180,191.)
Sec. 2015
On Chase's trial the defense conceded that to misbehave or to
misdemean is precisely the same. (2 Chase's Trial, 145.)
The Constitution declares that judges, both of the Supreme and
inferior courts, shall hold their commissions during good behavior.
This tenure of office was introduced into the English law to enable a
removal to be made for misbehavior. (Chase's Trial, 357.)
At common law, an ordinary violation of a public statute, even by one
not an officer, though the statute in terms provides no punishment, is
an indictable misdemeanor. (Bishop, Constitutional Law, 3d ed., 187,
535.)
The term ``misdemeanor'' covers every act of misbehavior in a popular
sense. Misdemeanor in office and misbehavior in office mean the same
things. (7 Dane Abgt., 365.) Misbehavior, therefore, which is a mere
negative of good behavior, is an express limitation of the office of a
judge.
We may therefore conclude that the House has the right to impeach and
the Senate the power to try a judicial officer for any misbehavior or
misconduct which evidences his unfitness for the bench, without
reference to its indictable quality. All history, all precedent, and
all text writers agree upon this proposition. The direful consequences
attendant upon any other theory are manifest.
For the first time in impeachment trials in this or any other country
the claim is made that a judge can be impeached only for acts done in
his official capacity.
If that position is well taken, a judge might be a common drunkard,
an open frequenter of disreputable resorts; he might be a common thief,
an embezzler of trust funds, a gambler, even a murderer. If he could
manage to keep out of jail and attend to his judicial duties, the
remedy by impeachment would not reach him. To state the proposition, is
to argue it.
Removal of a judge for misbehavior or lack of good behavior is
impossible unless it can be done through the impeaching power.
Otherwise the people are powerless to rid themselves of the most
unworthy, disgraceful, and unfit official.
But the exigencies of this case do not demand even a discussion of
the proposition that a judge can be impeached only for acts done in his
official capacity.
The claim is in the nature of a demurrer to the first seven articles.
It admits the truth of the averments contained in them. It admits that
the respondent, as judge of the district court he held at Waco, Tex.,
that as judge he knowingly made a false certificate; that as judge he
receipted for and received money to which he was not entitled as
reimbursement for expenses incurred as judge which he never did incur.
All these acts were done in his official capacity. If he had not been a
judge, he could not have held the court, incurred any expense, or
receipted for or received any money. The stamp of his official
character is on every act. His official position enabled him to do what
he did do; without it he could not have violated the law.
In the case of the use of the property of the bankrupt corporation,
which was in his hands for preservation, it was because he was judge
that he had the opportunity to use the property. It was to bring him to
hold court that the car was sent. An officer of his court sent it. He
had the right and it was his duty to approve the account covering the
expenses of the trip. If he had not been a judge, he could not have
used the property of the railroad company. The article charges that
Charles Swayne, judge, appropriated the property to his own use without
making compensation under a claim of right, viz, that what he did was
done in his official capacity.
The articles that charge him with violation the residence law assert
that he did it while exercising his office of judge. The act is
directed against judges; a private person can not violate it. The act
commands a judge to reside in his district--that is, the official must
live there; it is to be his official residence, so that he will be
where he is wanted to perform his official duty. The violation of the
law is the violation of an official duty, which the law imposes on him
in his official character. All this the demurrer confesses, and yet the
argument is made that for a violation of the act a judge is not
impeachable, because it is not an official act.
But the proposition is seriously advanced that no act of Congress can
create an impeachable offense or make a crime or misdemeanor the
subject of impeachment for which impeachment would not lie in England
before the adoption of the Constitution.
Impeachable offenses were not defined in the English law by act of
Parliament or otherwise; any offense was impeachable that Parliament
chose to so consider. Therefore when Congress makes that a crime or
misdemeanor which was not so denominated at the time of the adoption of
the Constitution
Sec. 2016
it does not follow that the acts made crimes were not the subject of
impeachment before the adoption of the Constitution.
For example, suppose no English law condemned the making of false
certificates by a judge for the purpose of obtaining money from the
Treasury. Can it be said that if an English judge had been guilty of
such an offense that he would not have been subject to impeachment? If
so, then neither can it be said that Congress created new impeachable
offenses when the act was passed pertaining to false certificates.
The power to impeach for misbehavior of civil officials is vested in
the House and the power to try in the Senate as fully as it was
exercised by the English Parliament before 1787. That power covered
every offense from high treason to slander against a ruler. Subject
only to the limitation that the remedy by impeachment is confined to
civil officers--for high crimes and misdemeanors--the power was
conferred and may be exercised as fully now as then.
We have seen that according to the law of Parliament misdemeanor and
misbehavior of public officers are synonymous terms. Another
proposition advanced by counsel for respondent is that no judge was
ever impeached in England for a misbehavior not committed in the
discharge of his judicial functions. This is believed to be an error;
judges were impeached for giving extrajudicial opinions. But suppose
the fact to be as stated, the conclusion would not follow that because
no English judge ever so misbehaved himself outside of his official
duties as to make him a subject of impeachment that therefore he could
not have been impeached if he had so misbehaved.
But however interesting discussion of such question may be it is
quite unimportant in this case. All the charges against this respondent
grow out of his official acts. Nothing that he did of which complaint
is made could have been done by a private person, or by anyone who did
not hold a judicial office. Because the respondent was a judge he had
the right to make a certificate upon which to draw money from the
Treasury; because he was a judge a private car was sent to bring him
from Guyencourt to hold court at Jacksonville; because he was a judge
the law imposed upon him the duty of living in a certain district;
because he violated the law in all these cases in his official capacity
he is charged.
The conclusion is therefore not to be resisted that even if the
contention of the respondent's counsel is correct a judge can be
impeached for nothing but official misconduct, these offenses are
within the rule, and of them this court has jurisdiction.
2016. Argument of Mr. Manager Clayton that a judge may be impeached
for misbehavior not necessarily connected with his judicial
functions.--On February 24, 1905,\1\ in the Senate sitting for the
impeachment trial of Judge Charles Swayne. Mr. Manager Henry D.
Clayton, of Alabama, said in final argument:
Mr. President, I desire to call attention to the fact that repeatedly
in impeachment trials before the Senate it has been asserted that civil
officers can not be impeached except for the commission of indictable
offenses, but it was never before this time seriously contended that a
judge can not be impeached except for wrongful conduct committed
strictly in the performance of an act purely judicial.
Therefore in this case we are brought to a consideration of what is
an impeachable offense. The Constitution denounces impeachable offenses
under the terms of ``treason, bribery, and other high crimes and
misdemeanors.'' ``Other high crimes and misdemeanors'' are general
terms, and for their import and meaning reference may be had to English
jurisprudence and parliamentary law, to the provisions of the
constitutions of the several States relating to impeachments in
existence prior to and at the time of the adoption of the Federal
Constitution, and to the interpretation put upon the words in the
debates in and by the action of the United States Senate in impeachment
cases which have heretofore been tried.
In the present case the House of Representatives has charged this
judge with crimes and misdemeanors, and also contends that he has
forfeited his tenure of office because he has not conformed to the good
behavior required by Article III, section 3. upon which his right to
hold office is predicated. The judge is entitled to hold his office
during good behavior, but not otherwise. The provision of the
Constitution conversely stated would be that he shall not hold office
after having been guilty of mis-
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\1\ Third session Fifty-eighth Congress, Record, pp. 3249-3250.
Sec. 2016
behavior. If I understand the contention of the counsel for the
respondent here, they insist that high crimes and crimes and
misdemeanors and the words ``the judges both of the Supreme and
inferior courts shall hold their offices during good behavior'' are
limited or restricted to such acts as may be committed by a judge in
his purely judicial capacity. In other words, however serious the
crime, the misdemeanor, or misbehavior of tie judge may be, if it can
be said to be extrajudicial he can not be impeached. To illustrate this
contention, the judge may have committed murder or burglary and be
confined under a sentence in a penitentiary for any period of time,
however long, but because he has not committed the murder or burglary
in his capacity as judge he can not be impeached. That contention,
carried out logically, might lead to the very defeat of the performance
of the function confided to the judicial branch of the Government.
In the History of the Constitution of the United States. by George
Ticknor Curtis, in volume 2, page 260, is found this language:
``The purposes of an impeachment lie wholly beyond the penalties of
the statute or the customary law. The object of the proceeding is to
ascertain whether cause exists for removing a public officer from
office. Such a cause may be found in the fact that, either in the
discharge of his office or aside from its functions, he has violated a
law or committed what is technically denominated a crime. But a cause
for removal from office may exist when no offense against positive law
has been committed, as when the individual has from immorality or
imbecility or maladministration become Unfit to exercise the office.''
In the Commentaries on the Constitution of the United States, by
Roger Foster, volume 1, page 569, this statement is made:
``The object of the grant of the power of impeachment was to free the
Commonwealth from the danger caused by the retention of an unworthy
public servant.''
Again, on page 586, this statement:
``The Constitution provides that `the judges, both of the Supreme and
inferior courts, shall hold their office during good behavior.'
``This necessarily implies that they may be removed in case of bad
behavior. But no means, except impeachment, is provided for their
removal, and judicial misconduct is not indictable by either a statute
of the United States or the common law.''
Again, on page 591, this statement:
``An impeachable offense may consist of treason, bribery, or a breach
of official duty by malfeasance or misfeasance, including conduct such
as * * * an abuse or reckless exercise of a discretionary power.
In Rawle on The Constitution, page 201, in speaking of the court of
impeachment, it is said:
``The subjects of its jurisdiction are those offenses which proceed
from the misconduct of public men, or, in other words, from the abuse
or violation of some public trust.''
In Story on The Constitution (5th edition), section 796, it is said:
``Is the silence of the statute book to be deemed conclusive in favor
of the party until Congress have made a legislative declaration and
enumeration of the offenses which shall be deemed high crimes and
misdemeanors? If so, then, as has been truly remarked (citing Rawle on
The Constitution), the power of impeachment, except as to the two
expressed cases, is a complete nullity and the party is wholly
dispunishable, however enormous may be his corruption or criminality.
It will not be sufficient to say that, in the cases where any offense
is punished by any statute of the United States, it may and ought to be
deemed an impeachable offense. It is not every offense that by the
Constitution is so impeachable. It must not only be an offense, but a
high crime and misdemeanor.''
The further answer to this contention may be that it is repugnant to
the Constitution, which especially provides for the impeachment of a
civil officer for high crimes and misdemeanors, and especially provides
that the judge shall hold his office during good behavior.
Again, it is repugnant to the spirit and genius of our institutions;
and, if it were correct, it would be to throw around the judge, as a
civil officer, a protection not afforded any other officer under the
Government. It is also repugnant to the precedents in impeachment
trials before the Senate, to the precedents in impeachment trials in
the different States that had similar provisions in their constitutions
and had had impeachment trials before the adoption of the Federal
Constitution.
Any civil officer can be impeached. The President of the United
States can be impeached. The removal from office can be had in respect
to any officer under the Government, and it would be
Sec. 2016
anomaly to say that in a free representative government the people are
deprived of the power and the right to remove from office an unworthy
officer. If it be true that a judge can not be impeached except for
what he may have done strictly in his capacity as judge, then this
extraordinary protection is afforded to him: He is put upon a pedestal
by himself; he is raised above the military, because they can be tried
and gotten rid of; he is raised above the Executive, for he can be
tried by impeachment and removed from office; he is raised above the
members of the Senate and the Members of the House of Representatives,
for they may be expelled upon a two-thirds vote of the members of their
respective bodies. I say it would be anomaly. So far as the power of
getting rid of an unworthy official is concerned, if that contention be
correct it would be a hiatus in the power of government.
Did the fathers intend that it should ever come to pass that an
unworthy officer, although a judge, guilty of murder or burglary or any
other disgraceful crime which brings his high position into disrepute,
can wrap a mantle of protection around him and say, ``Although I am
guilty of an infamous crime, I did not commit it in my judicial
capacity, and therefore, convicted felon though I am, I can continue to
be judge and to draw the emoluments of that high office?'' I do not
believe that this contention has ever been made in any of the cases
heretofore presented to the Senate.
In Judge Pickering's case it will be remembered that he was accused
of drunkenness. He was also accused of releasing a ship which had been
libeled without requiring bond. It might be argued that he did not get
drunk in his official capacity; and yet the Senate in that case did
impeach him and remove him from office, and that was one of the
charges.
In the case of Judge Humphreys, the other judge who was convicted and
removed from office, the charge was that he had made secession speeches
and that he had acted as a judge of a Confederate court. Certainly he
did not make secession speeches in his capacity as a judge of the
United States court; it was not done in the trial of any cause before
him. He did that in his individual capacity, and yet the Senate did
vote to convict him, and did remove him from office, because, among
other things, he had made these speeches and had held and exercised the
office of a Confederate judge during the civil war.
I have here Foster on the Constitution. I will not tax the patience
of the Senate by reading it; but, availing myself of the privilege
heretofore referred to, I shall ask to have inserted in the Record that
portion of the text which I have marked.
The extract referred to is as follows:
``The only difficulty arises in the construction of the term, `other
high crimes and misdemeanors.' As to this, four theories have been
proposed: That, except treason or bribery, no offense is impeachable
which is not declared by a statute of the United States to be a crime
subject to indictment. That no offense is impeachable which is not
subject to indictment by such a statute or by the common law. That all
offenses are impeachable which were so by that branch of the common law
known as the `law of Parliament.' And that the House and Senate have
the discretionary power to remove and stigmatize by perpetual
disqualification an officer subject to impeachment for any cause that
to them seems fit. The position that, except treason or bribery, no
offense is impeachable which is not indictable by law was maintained by
the counsel for the respondents on the trials of Chase and Johnson. * *
*
``The first two theories are impracticable in their operation,
inconsistent with other language of the Constitution, and overruled by
precedents. If no crime, save treason and bribery, not forbidden by a
statute of the United States, will support an impeachment, then almost
every kind of official corruption or oppression must go unpunished.
Suppose the Chief Justice of the United States were convicted in a
State court of a felony or misdemeanor, must he remain in office
unimpeached and hold court in a State prison?
``The term `high crimes and misdemeanors' has no significance in the
common law concerning crimes subject to indictment. It can be found
only in the law of Parliament, and is the technical term which was used
by the Commons at the bar of the Lords for centuries before the
existence of the United States.
``The Constitution provides that--
`` `The judges, both of the Supreme and inferior courts, shall hold
their offices during good behavior.'
``This necessarily implies that they may be removed in case of bad
behavior. But no means except impeachment is provided for their
removal, and judicial misconduct is not indictable by either a statute
of the United States or the common law.
``In 1803 Pickering, a district judge of the United States, was
convicted on impeachment for his
Sec. 2017
official action in surrendering to the claimant, without requiring the
statutory bond, a vessel libeled by the United States, for refusing to
allow an appeal from this order, and for drunkenness and profane
language on the bench.
``None of these offenses was indictable by the common law or by
statute.
``Humphreys, a district judge of the United States, was convicted on
impeachment, not only for treason, but also for refusing to hold court,
for holding office under the Confederate States, and for imprisoning
citizens for expressing their sympathy with the Union. The managers of
the House of Representatives who opened the case admitted that none of
these offenses except the treason was indictable.
``Some advocates have gone so far as to maintain by a misapplication
of a term of the common law that the proceedings on an impeachment are
not a trial, but a so-called `inquest of office,' and that the House
and Senate may thus remove an officer for any reason that they approve.
That Congress has the power to do so may be admitted. For it is not
likely that any court would hold void collaterally a judgment on an
impeachment where the Senate had jurisdiction over the person of the
condemned. And undoubtedly a court of impeachment has the jurisdiction
to determine what constitutes an impeachable offense. But the judgments
of the Senate of the United States in the cases of Chase and Peck, as
well as those of the State senates in the different cases which have
been before them, have established the rule that no officer should be
impeached for any act that does not have at least the characteristics
of a crime. And public opinion must be irremediably debauched by party
spirit before it will sanction any other course.
``Impeachable offenses are those which were the subject of
impeachment by the practice in Parliament before the Declaration of
Independence, except in so far as that practice is repugnant to the
language of the Constitution and the spirit of American institutions.
An examination of the English precedents will show that, although
private citizens as well as public officers have been impeached, no
article has been presented or sustained which did not charge either
misconduct in office or some offense which was injurious to the welfare
of the State at large.
``In this class of cases, which rests so much in the discretion of
the Senate, the writer would be rash who were to attempt to prescribe
the limits of its jurisdiction in this respect.
``An impeachable offense may consist of treason, bribery, or a breach
of official duty by malfeasance, or misfeasance, including conduct such
as drunkenness, when habitual or in the performance of official duties,
gross indecency, and profanity, obscenity, or other language used in
the discharge of an official function which tends to bring the office
into disrepute, or an abuse or reckless exercise of a discretionary
power, as well as a breach or omission of an official duty imposed by
statute or common law; or a public speech when off duty which
encourages insurrection. It does not consist in an error in judgment
made in good faith in the decision of a doubtful question of law,
except, perhaps, in the violation of the Constitution.''
2017. Review of impeachments in Congress to show that judges have
been impeached only for acts of judgment performed on the bench, as
contradistinguished from personal acts performed while in office.--On
February 22, 1905,\1\ in the Senate sitting for the impeachment trial
of Judge Charles Swayne, Messrs. Anthony Higgins and John M. Thurston,
of counsel for the respondent, offered a brief in support of their plea
of jurisdiction as to the first seven articles. This brief, which was
signed by them as counsel, but which, as they said, had been prepared
by another, covered many questions relating to impeachments, the
following being among them:
Seven impeachment trials have taken place under the machinery
provided for that purpose by the Constitution of the United States:
That of William Blount (1798), that of John Pickering (1803), that of
Samuel Chase (1804), that of James H. Peck (1830), that of West H.
Humphreys (1862), that of Andrew Johnson (1868), and that of William W.
Belknap (1876). Three of the foregoing were political impeachments and
four judicial, as those terms are understood in English parliamentary
law. The articles presented by the House of Representatives against the
four judges--Pickering, Chase, Peck, and Humphreys--illustrate in the
most emphatic manner possible that the popular branch of Congress has
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\1\ Third session Fifty-eighth Congress, Record, pp. 3032, 3033.
Sec. 2017
heretofore always perfectly understood the meaning of the term ``high
crimes and misdemeanors,'' as applied to the misconduct for which a
judge may be impeached. When placed side by side with the English
precedents on that subject heretofore examined they agree in every
particular. The House of Representatives, in the only four cases of the
kind ever tried, limited its accusations, with the greatest strictness,
to the acts of judgment performed by the judge on the bench, as
contradistinguished from personal acts performed by the judge while in
office, which might have been the ground of removal by address.
Turning first to the case against John Pickering, judge of the
district court of New Hampshire, for practical illustrations, we find
that judge charged with misconduct while adjudicating a certain
admiralty case pending in said district court: ``Yet the said John
Pickering, being then judge of the said district court, and then in
court sitting, with intent to defeat the just claims of the United
States, did refuse to hear the testimony of the said witnesses so as
aforesaid produced in behalf of the United States, and without hearing
the said testimony so adduced in behalf of the United States in the
trial of said cause did order and decree the ship Eliza, with her
furniture, tackle, and apparel, to be restored to the said Eliphalett
Ladd, the claimant, contrary to his trust and duty as judge of the said
district court, in violation of the laws of the United States and to
the manifest injury of their revenue.'' (Art. II.) Again (Art. III),
when an appeal was prayed in open court in behalf of the United States,
the charge is that ``the said John Pickering, judge of the said
district court, disregarding the authority of the laws, and wickedly
meaning and intending to injure the revenues of the United States, and
thereby to impair their public credit, did absolutely and positively
refuse to allow the said appeal as prayed for.''
And again (Art. IV), after the statement was made that said Pickering
was ``a man of loose morals and intemperate habits,'' he was thus
accused: ``On the eleventh and twelfth days of November, in the year
one thousand eight hundred and two, being then judge of the district
court in and for the district of New Hampshire, did appear upon the
bench of said court, for the purpose of administering justice, in a
state of total intoxication, produced by the free and intemperate use
of inebriating liquors, and did then and there frequently, in a most
profane and indecent manner, invoke the name of the Supreme Being, to
the evil example of all good citizens of the United States, and was
then and there guilty of other high misdemeanors, disgraceful to his
own character as a judge and degrading to the honor and dignity of the
United States.'' It should be specially noted here that no pretense was
made that ``loose morals and intemperate habits'' or profanity
constituted a high crime and misdemeanor. Upon the contrary, the
accusation was strictly limited to acts done ``upon the bench of the
said court'' while ``administering justice in a state of total
intoxication.'' There was no attempt in Pickering's case to claim that
personal misconduct, which might have been the ground of removal by
address, was an impeachable offense.
The articles of impeachment presented against Judge Samuel Chase
contain equally pointed illustrations. In Article I he is charged with
delivering an opinion in writing on the question of law, on the
construction of which the defense of the accused materially depended,
tending to prejudice the minds of the jury against the said John Fries,
the prisoner, before the counsel had been heard in his defense; in
Article II the charge is that'' the said Samuel Chase, with intent to
oppress and procure the conviction of the said Callender, did overrule
the objection of John Bassett, one of the jury, who wished to be
excused from serving on said trial;'' in Article III the charge is that
on the trial the judge refused to permit a witness to testify; in
Article IV the charge is of various acts of judicial misconduct during
a trial; and in the remaining articles the charges are of various acts
of judicial misconduct on the bench in charging and refusing to
discharge grand juries.
The accusation against Judge James H. Peck was contained in a single
article, based upon the judicial conduct of the judge while sitting
upon the bench in a case of contempt against Luke E. Lawless, who had
published a newspaper article criticizing a judgment rendered by Judge
Peck in a case in which Lawless was plaintiff's counsel. The gravamen
of the charge was this: ``The said James H. Peck, judge as aforesaid,
did afterwards, on the same day, under the color and pretenses
aforesaid, and with intent aforesaid, in the said court, then and there
unjustly, oppressively, and arbitrarily order and adjudge that the said
Luke Edward Lawless, for the cause aforesaid, should be committed to
prison for the period of twenty-four hours, and that he should be
suspended from practicing as an attorney or councellor at law in the
said district court for the period of eighteen calendar months from
that day; and did then and there further cause the said unjust and
oppressive sentence to be carried into execution.''
The impeachment of Judge West E. Humphreys was begun and concluded
during the civil war. He was tried and condemned in his absence and
without a hearing. While such an anomalous proceed-
Sec. 2018
ing can have but little weight as a precedent, what it does contain of
matter relevant to a judicial impeachment supports the contention made
herein. The first charge contained in the articles presented against
Judge Humphreys was that he was guilty of treason, in that he ``then
being district judge of the United States, as aforesaid, did then and
there, to wit, within said State, unlawfully and in conjunction with
other persons, organize armed rebellion against the United States and
levy war against them.'' When the allegations incident to the
accusation of treason are subtracted from the articles, all that
remains is a charge of judicial misconduct upon the part of Judge
Humphreys while sitting in a court of the Confederate States.
The words of the accusation axe that the said Humphreys ``did
unlawfully act as judge of an illegally constituted tribunal within
said State, called the district court of the Confederate States of
America, and as judge of said tribunal last named, said West H.
Humphreys, with the intent aforesaid, then and there assumed and
exercised powers unlawful and unjust to wit, in causing one Perez
Dickinson, a citizen of said State, to be unlawfully arrested and
brought before him, as judge of said alleged court of said Confederate
States of America, and required him to swear allegiance to the
pretended government of said Confederate States of America; * * * In
decreeing within said State, and as judge of said illegal tribunal, the
confiscation to the use of said Confederate States of America of
property of citizens of the United States, and especially of property
of one Andrew Johnson and one John Catron.'' Thus in this anomalous
proceeding, carried on amid the passions of a great civil war, the idea
was not for one moment lost sight of that the misconduct upon the part
of a judge, which constitutes an impeachable high crime and
misdemeanor, must occur while he is actually presiding in a judicial
tribunal and abusing its powers.
2018. Review of the deliberation of the Constitutional Convention as
bearing on the use of the words ``high crimes and misdemeanors.''--On
February 22, 1905,\1\ in the Senate sitting for the impeachment trial
of Judge Charles Swayne, Messrs. Anthony Higgins and John M. Thurston,
of counsel for the respondent, offered a brief in support of their plea
of jurisdiction as to the first seven articles. This brief which was
signed by them as counsel but which as they said had been prepared by
another, covered many questions relating to impeachments, the following
being among them.
After reviewing the accepted meaning of tile words ``high crimes and
misdemeanors,'' as used in England and the colonies, the argument
proceeds:
Before the Federal Convention of 1787 met the original State
constitutions had been in operation for at least ten years. As a
general rule the framers looked to that source of light when the
adoption of a principle of English constitutional law was concerned.
The questions that constantly arose were: In what form has such a
principle reappeared in the several States? Is its operation an effect
satisfactory therein? Such examples were sometimes taken, however, not
as guides but as warnings. It did not always follow that a principle
adapted to the wants of a single State was to be ingrafted without
modification upon the constitution of a Federal State. The debates
touching the adoption of impeachment and address pointedly illustrate
that fact, as the Convention resolved to adopt the one without the
other. The record is specially clear and direct upon that point. In the
Madison papers (pp. 481-482) the following appears:
``Article XI being taken up, Doctor Johnson suggested that the
judicial power ought to extend to equity as well as law, and moved to
insert the words `both in law and equity' after the words `United
States' in the first line of the first section.''
Mr. Read objected to vesting these powers in the same court.
On the question, New Hampshire, Connecticut, Pennsylvania, Virginia,
South Carolina, Georgia, aye--6; Delaware, Maryland, no--2;
Massachusetts, New Jersey, North Carolina, absent.
On the question to agree to Article XI, section 1, as amended, the
States were the same as on the preceding question.
Mr. Dickinson moved, as an amendment to Article XI, section 2, after
the words ``good behavior,'' the words ``Provided that they may be
removed by the Executive on the application by the Senate and
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\1\ Third session Fifty-eighth Congress, Record, pp. 3031, 3032.
Sec. 2018
House of Representatives.'' (The words of the act of settlement are,
``but upon the address of both Houses of Parliament it maybe lawful to
remove them.'') Mr. Gerry seconded the motion. Mr. Gouverneur Morris
thought it a contradiction, in terms, to say that the judges should
hold their offices during good behavior, and yet be removable without a
trial. Besides, it was fundamently wrong to subject judges to so
arbitrary an authority.
Mr. Sherman saw no contradiction or impropriety if this were made a
part of the constitutional legislation of the judiciary establishment.
He observed that a like provision was contained in the British
statutes.
Mr. Rutledge. If the Supreme Court is to judge between the United
States and particular States, this alone is an insuperable objection to
the motion.
Mr. Wilson considers such a provision in the British Government as
less dangerous than here; the House of Lords and House of Commons being
less likely to concur on the same occasions. Chief Justice Holt, he
remarked, had successively offended, by his independent conduct, both
Houses of Parliament. Had this happened at the same time, he would have
been ousted. The judges would be in a bad situation if made to depend
on any gust of faction which might prevail in the two branches of our
Government. Mr. Randolph opposed the motion as weakening too much the
independence of the judges.
Mr. Dickinson was not apprehensive that the legislature, composed of
different branches, constructed on such different principles, would
improperly unite for the purpose of displacing a judge.
On the question for agreeing to Mr. Dickinson's motion, it was
negatived.
Connecticut, aye; all the other States present, no.
Thus the proposition to ingraft upon our Federal Constitution that
provision of the act of settlement, specially referred to in the debate
by Mr. Sherman, was rejected with only one dissenting voice. When, at
another time, Mr. Dickinson attempted to provide that the President
should be removed by address, his proposal was rejected by the same
majority. As Mr. William Lawrence (Impeachment of Andrew Johnson, Vol.
I, p. 135) has stated it: ``Removal on the address of both Houses of
Parliament is provided for in the act of settlement (3 Hallam, 262). In
the convention which framed our Constitution, June 2, 1787, Mr. John
Dickinson, of Delaware, moved `that the Executive be made removable by
the National Legislature on the request of a majority of the
legislatures of individual States.' Delaware alone voted for this and
it was rejected. Impeachment was deemed sufficiently comprehensive to
cover every proper case for removal.'' The last sentence states the
essence of the whole matter. The Convention resolved that neither the
executive nor judicial officers of the United States should be removed
from office except ``on impeachment for, and conviction of, treason,
bribery, or other high crimes and misdemeanors.''
As a well-known authority has expressed it: ``The first proposition
was to use the words, `to be removable on impeachment and conviction of
malpractice and neglect of duty.' It was agreed that these expressions
were too general. They were therefore stricken out. It was voted that
the clause should be simply `removable on impeachment.' The debate
shows that the Members did not wish the Senate to be able to remove a
civil officer whenever he acted in a way detrimental to the public
service, for such a power was expressly refused. (Citing Madison
Papers, p. 481, heretofore quoted.) A general debate took place on a
clause in one draft which made the President triable only for treason
and bribery. It was urged that the jurisdiction was too limited. The
following are extracts from the debate which ensued: Colonel Mason
said: `Treason, as defined in the Constitution, will not reach many
great and dangerous offenses. Hastings is not guilty of treason.
Attempts to subvert the Constitution may not be treason as above
defined.' He moved to insert after `bribery' the words `or
maladministration.' Madison: `So vague a term will be equivalent to a
tenure during the pleasure of the Senate.' Mason withdrew
`maladministration' and substituted `other high crimes and misdemeanors
against the State.' In the final draft the words `against the State'
were omitted, doubtless as surplusage, and the expressions finally
adopted, `crimes' and `misdemeanors,' were words which had a well-
defined signification in the courts of England and in her colonies as
meaning criminal offenses at common (parliamentary) law.'' (American
Law Review, vol. 16, p. 804, article on ``Impeachable offenses under
the Constitution of the United States.'') The term ``common'' instead
of ``parliamentary'' law is carelessly used in that excellent
statement, as it often is elsewhere. After quoting Rawle on
Constitution (200, Lawrence (Johnson's Imp., Vol. I, p. 125) remarks:
``This author says in reference to impeachments, `we must have recourse
to the common law of England for the definition of them;' that is, to
the common parliamentary law. (3 Wheaton, 610; 1 Wood and Minot,
448.)''
Sec. 2019
2019. Abandonment of the theory that impeachment may be only for
indictable offenses.
Discussion of the theory that an impeachable offense is one in its
nature or consequence subversive of some fundamental or essential
principle of government or highly prejudicial to the public interest.
On February 22, 1905,\1\ in the Senate sitting for the impeachment
trial of Judge Charles Swayne, Messrs. Anthony Higgins and John M.
Thurston, of counsel for the respondent, offered a brief in support to
their plea of jurisdiction as to the first seven of the articles. This
brief, which was signed by them as counsel, but which, as they said,
had been prepared by another, covered many questions relating to
impeachments, the following being among them:
When sitting as a high court of impeachment the Senate is the sole
and final judge of the meaning of the phrase ``high crimes and
misdemeanors.'' It has been well said that `` `Treason, bribery, and
other high crimes and misdemeanors' are of course impeachable. Treason
and bribery are specifically named. But `other high crimes and
misdemeanors' are just as fully comprehended as though each was
specified. The Senate is made the sole judge of what they are. There is
no revising court. The Senate determines in the light of parliamentary
law. Congress can not define or limit by law that which the
Constitution defines in two cases by enumeration and in others by
classification, and of which the Senate is sole judge.'' (Lawrence,
Johnson's Imp., Vol. I, p. 136.) And yet the Senate sitting as a court
of impeachment has in no one of the seven cases tried before it ever
attempted to define the momentous phrase in question, and probably
never will. When a new case arises nothing can be learned except what
may be gleaned from the individual utterances of Senators, and from the
arguments of counsel made in preceding cases, too often under the
temptation to bend the precedents to the necessities of the particular
occasion. One good result has, however, been the outcome of such
discussions, and that is the elimination of two propositions which have
perished through their own inherent weakness. On the one hand, a
grotesque attempt has been made to narrow unreasonably the jurisdiction
of the Senate sitting as a court of impeachment by the claim that the
power of impeachment is limited to offenses positively defined by the
statutes of the United States as impeachable crimes and misdemeanors.
Apart from its other infirmities, this contention loses sight of the
fact that Congress has no power whatever to define a high crime and
misdemeanor. On the other hand, an equally untenable attempt has been
made to widen unreasonably the jurisdiction of the Senate sitting as a
court of impeachment by the claim that, under the general principles of
right, it can declare that an impeachable high crime or misdemeanor is
one in its nature or consequence subversive of some fundamental or
essential principle of government or highly prejudicial to the public
interest, and this may consist of a violation of the Constitution, of
law, of an official oath, or of duty, by an act committed or omitted,
or, without violating a positive law, by the abuse of discretionary
powers for improper motives or for an improper purpose. This expansive
and nebulous definition embodies an attempt to clothe the Senate
sitting as a court with such a jurisdiction as it would have possessed
had the Federal Convention seen fit to extend impeachment ``to
malpractice and neglect of duty,'' or to ``maladministration,'' a
proposition rejected with a single dissent because, as Madison
expressed it, ``So vague a term will be equivalent to a tenure during
the pleasure of the Senate.''
Even that school which gives the widest possible interpretation to
the Federal Constitution will hardly be willing to go so far, even
under the general-welfare clause, as to write into the Constitution
phrases and meanings which the framers expressly rejected, in order to
accomplish what may be considered by some a convenient end. Certainly
that school which still respects the canons of strict construction can
not listen to such an argument. Between the two extremes, those who
have made a careful study of the subject find no difficulty in reaching
the obvious conclusion that the term ``high crimes and misdemeanors''
embraces simply those offenses impeachable under the parliamentary law
of England in 1787, subject to such modifications as that law suffered
in the process of reproduction. When the objection is made that the
phrase thus construed covers too narrow an area, the answer is
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\1\ Third session Fifty-eighth Congress, Record, pp. 3034, 3035.
Sec. 2020
that it was the expressly declared purpose of the framers so to
restrict it within narrow limits perfectly understood at the time. In
the first place, the proposition to adopt removal by address was
rejected with only one dissent; in the second, the proposal to adopt
such a comprehensive term as ``maladministration. was rejected and the
limited phrase in question substituted. The declaration was clearly
made at the time that there must be no undue weakening of the
independence of the Federal judiciary. The necessity for such a
precaution was soon justified by events.
A leading authority upon the subject tells us that upon the
destruction of the Federalist party on the election of Jefferson ``An
assault upon the judiciary, State and Federal, was made all along the
lines. In some States, as New Hampshire, old courts were abolished and
new ones, with similar jurisdiction, created for the sole purpose of
obtaining new judges. In Pennsylvania an obnoxious Federal judge was
removed from the common pleas by impeachment; and an impeachment of all
the Federal judges of the highest court was made, but failed through
the uprising of the entire bar, irrespective of party lines, in defense
of their official chiefs. A similar attack was made upon the Federal
judiciary.'' (Foster on the Constitution, Vol. I, p. 531.) With the
possibility of such an assault impending it is not strange that the
makers of our Federal Constitution should have confined the power of
removing judges by impeachment within the well-known limits which the
English constitution had defined.
2020. Mr. Manager Olmsted's argument that impeachment is not
restricted to offenses indictable under Federal law and that judges may
be impeached for breaches of ``good behavior.''
Discussion of English and American precedents as bearing on the
meaning of the phrase ``high crimes and misdemeanors.''
On February 23, 1905,\1\ in the Senate sitting for the impeachment
trial of Judge Charles Swayne, Mr. Manager Marlin E. Olmsted, of
Pennsylvania, in final argument, said:
Although it would seem that the question must now be considered
settled, nevertheless in nearly every impeachment trial the question is
raised as to the character of and offenses for which impeachment will
lie. In times past men of great learning and authority have contended
that no officer can be impeached except for indictable offenses, and
that as there are no common-law offenses against the United States, it
follows that there can be no impeachment except for an offense
expressly declared and made indictable by act of Congress. This view of
the matter fades away in the bright light of reason and of precedent.
Such a construction would render the constitutional provision
practically a nullity. Congress has defined and made indictable by
statute comparatively few offenses. It would be impossible in any
statute to define or describe all the various ways in which a judge or
other civil officer might so notably and conspicuously misbehave
himself as to justify and require his removal. Even murder is not
defined in any act of Congress. When it so appears, reference to some
other source must be had to ascertain the meaning of the term. Murder
is not made indictable by any act of Congress, nor has any Federal
court jurisdiction of that crime unless committed upon the high seas.
Suppose a judge to commit murder upon the dry land within the
confines of a State. That would not be a high crime or misdemeanor
within the provision of any act of Congress. Could it successfully be
maintained that it was not a high crime and misdemeanor within the
meaning of Article II, section 4, of the Constitution, or that it was
not such a breach of good behavior as would justify removal from
office? If that be the proper construction, then it is possible to
imagine that as the respondent transacted official business at and
dated his communications from ``United States district court, northern
district of Florida, judge's chambers, Guyencourt, Del.,'' so a more
violent and vicious man might conduct business at ``Judge's chambers,
State penitentiary,'' and still be free from all danger of impeachment
or removal from the judicial office.
I have shown, Mr. President, that men have formerly argued that only
indictable offenses are subjects for impeachment; that as there were no
common-law offenses against the United States there can be no
impeachment except for crimes declared and defined by act of Congress.
But now, in the 48-page brief served upon us last evening, bearing the
names of the honorable counsel for respondent,
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\1\ Third session Fifty-eighth Congress, Record, pp. 3182-3194.
Sec. 2020
but the authorship of which they distinctly disavowed--and I now know
the reason why--we find the astounding doctrine that no man can be
impeached for any offense declared by Congress. Therefore no officer
can be impeached, no matter what he does, unless we can find that in
England some judge had been impeached for the same specific offense
prior to the adoption of our Constitution, which borrowed something
from the mother country in this matter.
Now, we admit, Mr. President, that the term ``impeachment'' is
imported from the English law, and so is the constitutional phrase
``high crimes and misdemeanors'' used in relation thereto. They are
both without definition, either in the Constitution or in any act of
Congress. Where, then, shall their definition and construction be
found? Our Supreme Court has declared that--
``Where English statutes--such, for instance, as the statute of
frauds and the statute of limitations--have been adopted into our
legislation, the known and settled construction of those statutes by
courts of law has been considered as silently incorporated into the
acts or has been received with all the weight of authority.'' (Pennock
v. Dialogue, 2 Peters, 2-18.)
That was an unanimous decision in which Chief Justice John Marshall
participated and concurred, and the opinion was written by Mr. Justice
Story.
To the same effect is the case of United States v. Jones (3 Wash. C.
C. R., 209), and many other authorities that might be cited.
We may therefore look to the law of England for the meaning of the
term ``impeachment'' and of the phrase ``high crimes and
misdemeanors,'' as used in connection therewith--not so much to the
statute law, nor to the common law, as generally understood, but to the
common parliamentary law of England, as found in the precedents and
reports of impeachment cases.
The Senate has always been governed in impeachment cases by the lex
et consuetudo parliamenti. It requires but a brief investigation to
show that according to the English parliamentary practice in vogue at
and prior to the adoption of the Constitution, the greatest possible
variety of offenses, not indictable, were nevertheless held proper
causes for impeachment.
In II Wooddeson's Law Lectures, an acknowledged authority, the
learned author, in his lecture upon ``Parliamentary Impeachment,'' says
(p. 596):
``It is certain that magistrates and officers intrusted with the
administration of public affairs may abuse their delegated powers to
the extensive detriment of the community and at the same time in a
manner not properly cognizable before the ordinary tribunals. The
influence of such delinquents and the nature of such offenses may not
unsuitably engage the authority of the highest court and the wisdom of
the sagest assembly. The Commons, therefore, as the grand inquest of
the nation, become suitors for penal justice, and they can not
consistently, either with their own dignity or with safety to the
accused, sue elsewhere but to those who share with them in the
legislature.
``On this policy is founded the origin of impeachments, which began
soon after the constitution assumed its present form.''
And again (p. 601):
``Such kind of misdeeds, however, as peculiarly injure the
commonwealth by the abuse of high offices of trust, are most proper,
and have been the most usual grounds for this kind of prosecution.
Thus, if a lord chancellor be guilty of bribery, or of acting grossly
contrary to the duty of his office; if the judges mislead their
sovereign by unconstitutional opinions; if any other magistrate attempt
to subvert the fundamental laws or introduce arbitrary power, these
have been deemed cases adapted to parliamentary inquiry and decision.
So where a lord chancellor has been thought to have put the seal to an
ignominous treaty, a lord admiral to neglect the safeguard of the sea,
an ambassador to betray his trust, a privy counselor to propound or
support pernicious and dishonorable measures, or a confidential adviser
of his sovereign to obtain exorbitant grants or incompatible
employments, these imputations have properly occasioned impeachments,
because it is apparent how little the ordinary tribunals are calculated
to take cognizance of such offenses or to investigate and reform the
general polity of the state.''
In several cases English judges were impeached for giving
extrajudicial opinions and misinterpreting the law. (4 Hatsell, 76.)
Such is the undoubted parliamentary law of England, from which our
process and practice of impeachment and the very term itself are
derived. That it has been adopted and followed here is equally certain.
Judge Curtis, in his History of the Constitution (pp. 260-261), says:
``The purposes of an impeachment lie wholly beyond the penalties of
the statute or the customary law. The object of the proceeding is to
ascertain whether cause exists for removing a public officer from
Sec. 2020
office. * * * Such a cause may be found in the fact that either in the
discharge of his office or aside from its functions he has violated a
law or committed what is technically denominated a crime, but a cause
for removal from office may exist where no offense against positive law
is committed, as where the individual has from immorality, imbecility,
or maladministration become unfit to exercise the office.''
And Judge Story says, in section 799 of his work on the Constitution:
``Congress has unhesitatingly adopted the conclusion that no previous
statute is necessary to authorize an impeachment for any official
misconduct. * * * In the few cases of impeachment which have hitherto
been tried no one of the charges has rested upon any statutable
misdemeanor.'' (1 Story on Con., sec. 799.)
Such writers as Cooley and Wharton and Rawle maintain the same
position and support it not only by reason, but by authority and
precedent. For a very able discussion of this subject I refer to the
brief of Mr. Lawrence, adopted by the managers and published among the
proceedings in the impeachment of Andrew Johnson and also in 6 American
Law Register, new series, page 641.
Every impeachment case ever presented to the United States Senate has
been founded upon articles, some or all of which charged offenses not
indictable; and Judge West, of Tennessee, as well as Judge Pickering,
was convicted and removed for offenses not subject to indictment under
either State or Federal laws.
We agree with respondent's brief, the authorship of which his counsel
disavow, that the general character of offenses impeachable may be
studied to advantage by a consideration of the English precedent, but I
can never agree that in order to convict an American judge we must
first show that some English judge has been convicted of the same
specific offense.
No English judge has been impeached for murder, or perjury, or
forgery, or larceny; and yet they were undoubtedly impeachable offenses
in England as they are here to-day. They, or any of them, would
certainly constitute a breach of that ``good behavior'' during which
Federal judges hold their commissions. Surely an offense which would
have been impeachable without a statute is none the less so because
Congress has declared it a misdemeanor. Taking money out of the
Treasury on a false certificate would have been impeachable in England
before our Constitution. It is none the less so here, Statute or no
statute.
jurisdiction of first seven articles.
Respondent denies that the offenses charged in the first seven
articles are proper subjects of impeachment on the ground, as we
understand it, that they were committed by him in his private and not
in his official capacity; or, in other words, that the articles do not
charge misbehaviors or misdemeanors in office. We labor under the
impression that the respondent is ``in office,'' and that any
misdemeanor committed by him, either in his private or official
capacity, since he accepted the President's commission was a
misdemeanor ``in office.'' He may have been out of his court room and
out of his district, but he has never been out of office.
The Constitution and his commission each defines his term as ``during
good behavior,'' and provides for his removal from office for
``treason, bribery, and other high crimes and misdemeanors,'' meaning
thereby misbehavior, for misbehavior is misdemeanor, and misdemeanor is
misbehavior. There is no limitation to offenses actually committed upon
the bench, nor to those committed while in the performance of any
judicial or official function, or in any way under color of office.
The Century Dictionary gives this definition:
``During good behavior: As long as one remains blameless in the
discharge of one's duties or the conduct of one's life; as, an office
held during good behavior.''
Judge Curtis, in his History of the Constitution (pp. 260-261), says:
``The purposes of an impeachment lie wholly beyond the penalties of
the statute or the customary law. The object of the proceeding is to
ascertain whether cause exists for removing a public officer from
office. * * * Such a cause maybe found in the fact that either in the
discharge of his office or aside from its functions he has violated a
law or committed what is technically denominated a crime, but a cause
for removal from office may exist where no offense against positive law
is committed, as where the individual has from immorality, imbecility,
or maladministration become unfit to exercise the office.''
Such is manifestly the intention of the Constitution. That instrument
says ``during good behavior.'' It does not, as some of the State
constitutions do, add the words ``in office.'' It says ``high crimes
Sec. 2020
and misdemeanors,'' but it does not add ``in office.'' In the brief of
respondent's honorable counsel the authorship of which they disavow,
they tell us, and it is entirely true, that at one stage of its
formation the provision read ``misdemeanors against the State.'' But as
the words ``against the State'' were stricken out they argue that it
must be construed as if they had been left in.
judge humphrey's case.
Mr. President, there are plenty of authorities, both English and
American, that in order to be the subject of impeachment it is not
necessary that an offense shall be committed even under color of
office, and just here I take issue in the most emphatic manner with the
statements of that 48-page brief as to the causes for which convictions
have been had in impeachment. It is full of historical inaccuracies. It
declares, for instance, that Judge West H. Humphreys, of Tennessee, was
convicted only for offenses committed in his judicial capacity.
I say that he was convicted upon each one of the seven articles, only
one of which--the fifth--had any relation at all to his duties as a
Federal judge. The very first article charged him with advocating
secession. Where? Upon the bench? No. In the court room? No. In a
written opinion? No; but in a public speech in the city of Nashville.
Five other of those counts were of the same character. How could a
judge commit that offense upon the bench? He did not speak as a judge,
but as a citizen at a public meeting.
Mr. President, Andrew Johnson came within one vote of being impeached
upon the eleventh article in his case, a portion of which I will read:
``That said Andrew Johnson, President of the United States, unmindful
of the high duties of his office, and of his oath of office, and in
disregard of the Constitution and laws of the United States, did,
heretofore, to wit, on the 18th day of August, A. D. 1866, at the city
of Washington and the District of Columbia, by public speech, declare
and affirm, in substance, that the Thirty-ninth Congress of the United
States was not a Congress of the United States.''
Upon that article the vote against him was 35 to 19. A change of one
vote would have expelled him from the Presidency.
Treason, removal for which is made compulsory, is specifically
defined by the Constitution in these words:
``Treason against the United States shall consist only of levying war
against them or adhering to their enemies, giving them aid and
comfort.''
It would hardly be possible for a judge, sitting upon the bench, or
in any other way except entirely aside from any function of his office,
to be guilty of this offense. But suppose that, disassociating himself
as far as possible from his judicial position, he should in his
individual capacity participate in ``levying war against them or in
adhering to their enemies, giving them aid and comfort.''
That would surely be treason, as constitutionally defined, and yet,
upon the argument of the honorable counsel for respondent, he could not
be impeached and removed from office for that offense. Think of that. A
traitor to his country, sitting securely upon the bench, secure from
removal by any power on earth, for in no way can he be removed except
by the Senate, upon impeachment by the House of Representatives. A
Federal judge, upon that reasoning, might commit murder upon the public
highway, or be convicted of housebreaking, or forgery, or perjury, or
in any other way bring into contempt his high office, and yet we are
told that if the offense be not committed upon the bench, nor in the
court room, nor in any way relating to his judicial duties, he can not
be impeached and removed.
It is hardly necessary to prolong this branch of the discussion, in
view of the fact that the question has already been determined by the
Senate itself.
blount's case.
In 1797 William Blount was expelled from the Senate for attempting to
seduce a United States Indian interpreter from his duty and to alienate
the affections and conduct of the Indians from the public officers
residing among them. That was not a statutory offense, nor committed in
the Senate Chamber, nor in the exercise or omission of any Senatorial
function, nor under color of office; but the Senate, nevertheless,
resolved that he ``having been guilty of a high misdemeanor entirely
inconsistent with his public trust and duty as a Senator, be, and he is
hereby, expelled from the United States Senate.''
That was not upon an impeachment proceeding, but the principle
involved was precisely the same, and later it was sustained in the
impeachment case of Judge Humphreys, as I have shown.
Sec. 2021
THE ARTICLES DO CHARGE OFFENSES HAVING STRICT RELATION TO HIS OFFICIAL
OFFICE.
It is difficult in any event to see any force in respondent's plea to
the jurisdiction. The offenses charged in the first seven as well as in
all the other articles do relate entirely to his judicial office and
not to his private conduct.
2021. Argument of Mr. Manager De Armond that Congress may make
nonresidence of a judge a high misdemeanor.
Argument that a judge may be impeached for misbehavior generally.
On February 25, 1905,\1\ in the Senate, sitting for the impeachment
trial of Judge Charles Swayne, Mr. Manager David A. De Armond, of
Missouri, in final argument, said:
Thirty years before Judge Swayne was born the Congress of the United
States enacted a law, now embodied in section 551, Revised Statutes,
requiring a district judge to reside in his district. The question of
the enactment of such a law arose years earlier. The discussion was
participated in by makers of the Constitution as well as by
contemporaries of those illustrious men. In the body which passed the
law were those who had gathered in the spirit of the Constitution, not
merely from the lips of those who had made it, but through
participation in the making of it. The law was passed in the full
belief, unchallenged by anybody, that the power rested in the Congress
to pass such a law, and it was declared that a violation or disregard
of that law should constitute a high misdemeanor, employing the very
language of the Constitution itself.
And yet we find, thanks to the facile pen of some modern essayist
whose product is embodied in the record in this case, some unknown
great man, that it is impossible for Congress to add to or take from
the category of ``high crimes and misdemeanors'' as embodied in the
Constitution in the clause relating to impeachments.
Those who lived in that early day, those who participated in the
discussions that led up to that early legislation, and those who
enacted that law did not think just as this modern writer and essayist
does think. This graceful writer, but, as he has demonstrated,
evidently poor lawyer, confesses that be can not define, and he says
nobody can define, just what was meant by ``high crimes and
misdemeanors;'' but he insists that there was such a fixed, settled,
immovable, unchangeable, ever-enduring meaning and limitation attached
to and embodied in it that nothing can be added to it or taken from it;
and yet he does not know what it is; he does not tell us, and he says
nobody else can tell, what it is.
The doctrine, aside from this authority which the respondent's
counsel quoted with so much approval and indorsed so fully, the
doctrine of other essayists and other commentators upon the
Constitution, the doctrine of men whose names have gone into our
history as illustrating it in its best phases and as demonstrating the
greatest capacity and the highest achievements of the human mind, was
and is that Congress could add to what might be embraced in the term,
and that the Senate of the United States, on the trial of an
impeachment, was made by the Constitution itself, and ever must be, the
final authorized judge of the meaning.
Suppose that this Republic were to endure, as all of us most
sincerely hope it will, for centuries and multiplied centuries, and
suppose that a thousand years hence, or five thousand years hence,
after agencies and forces undreamed of to-day, as those playing
important parts in the drama of to-day were undreamed of a short time
ago, were brought into requisition, and out of their use and
development new and strange conditions, unthought of and unthinkable
to-day, should arise, and that the Congress, in its enlightened wisdom,
should conclude to declare this, that, or the other thing arising out
of the development of these new conditions high crimes and
misdemeanors. These wise commentators of the school of this essayist
and their successors, if they are to have succession in a more
enlightened age of the world and of the country, would say: ``You can
not impeach for that. You must go back into the English parliamentary
law for the chart of your powers. At the adoption of the Constitution
you were confined within the Englishman's definition of high crimes and
misdemeanors, and confined to his catalogue of them; but what his
definition was or is and what was or is embraced within his catalogue
we do not know, and nobody knows. Those who framed the Constitution
meant to deny and did deny to the Congress all power whatsoever to
declare anything a high crime or misdemeanor which was not such when
the Constitution was made.''
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\1\ Third session Fifty-eighth Congress, Record, pp. 3376, 3377.
Sec. 2022
Then if you or your successors should modestly say to these
gentlemen, ``Pray tell us, then, what are the things for which an
impeachment will lie? What is comprehended within the term `high crimes
and misdemeanors?' What, within the meaning of the Constitution, made
by those short-sighted men, so long, long ago in their graves, is
embodied in these words?'' They would answer then, I suppose, as this
wise commentator of to-day answers, ``I do not know; nobody ever has
said, and nobody will ever be able to say.''
Drifting back to English history, counsel claim to have discovered--
and it is a discovery of something which does not exist, I think; but I
pass that by--that no judge in English history ever was impeached or
tried on impeachment except for an offense committed in the actual
discharge of the duties of a judge, sitting on the bench itself. Well
now, if that were true, what does it prove? It proves nothing--
absolutely nothing.
Reflect upon it for a moment. Suppose all these trials had been with
reference to some particular offense. It would be just as logical to
contend that for no other offense committed upon the bench in the
discharge of judicial duty would impeachment lie. How many cases must
there be before this is settled? They say there have been but few, and
that is true. How many are necessary to fix it that there can not be a
trial by impeachment for any other offense? There again they can not
answer.
The truth of the matter is that this question of impeachment and the
right and power to impeach, and the things for which people could be
impeached in Great Britain, shifted and changed with the shifting and
changing judgment and legislation of the times. At one time it was
supposed to be legitimate and proper, and the supposed power was
exercised, to impeach and convict and remove from office and imprison
for the advocacy of religious views and the propagation of religious
doctrines which, at another time, were held to be the correct views and
the sound doctrines relating to the subject of religion in that great
realm. So it has been and so it is and so it will be.
These gentlemen ignore entirely the question as to good conduct--
``during good behavior.'' They say that the provision for removing
judges by address is not embodied in the Constitution. What do they say
then? They say there is no way of removing them except in a few cases
to which, they say, the constitutional provision respecting impeachment
implies.
As was said by Mr. Morris, when that matter was under discussion in
the Constitutional Convention, the judges ought not to be removed on
the ground of lacking in good behavior except upon a trial. What trial
is provided? The kind of trial you have here now. The trial before the
Senate of the United States, on impeachment by the House of
Representatives. There has been embodied in that one method all the
power that resides in the Government in all its branches--all the power
of the people of this vast country, this great and mighty Republic--to
remove from office an offending civil officer. And precisely the same
provision that applies to the judges applies to all other civil
officers.
The gentlemen discriminate respecting the judges. Where do they get
the ground for the discrimination? It is not in the Constitution. There
is nothing in the Constitution suggesting that a judge can be removed
from office only for offending on the bench, and that as to other civil
officers they may be removed for offenses off duty, or not so narrowly
official.
The learned counsel for the respondent who closed the case on the
other side seemed to take lightly the suggestion of Mr. Manager Palmer
in the brief which he filed, and of my other colleagues who argued this
case, that according to the commentators upon the Constitution,
according to the spirit of the Constitution, according to the just
principles of law governing impeachment, it is within the power of the
House of Representatives to vote impeachment, and it is within the just
and constitutional powers of the Senate to convict, for conduct in a
judge off the beach and away even from his judicial transactions. The
logical conclusion from the contention of respondent's counsel is that
no matter how vile any civil officer of the Government may be, no
matter how great the sum total of the individual items of his
offending, so long as the offending is not on the bench or in the
active technical conduct of his office the whole power of the
Government is too weak, the arm of the House of Representatives too
short, and the judgment of the Senate too puny to reach the offender
and protect the public from the vile contamination of his continued
presence in office. We do not take that view of the matter.
2022. Opinion of Attorney-General Felix Grundy that Territorial
judges are not civil officers of the United States within the meaning
of the impeachment clause of the Constitution.--On February 4, 1839,\1\
as perti-
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\1\ Third session Twenty-fifth Congress, Journal, p. 452, House Ex.
Doc. No. 154.
Sec. 2023
nent to the consideration of a pending bill to amend the law
establishing the Territorial government of Wisconsin, Mr. Isaac H.
Bronson, of New York, chairman of the Committee on Territories,
presented to the House a letter of the Attorney-General of the United
States, Hon. Felix Grundy, giving an opinion on the subject of the
removal of Territorial judges by impeachment:
The provision of the Constitution which relates most directly to this
subject is contained in the first section of the third article, which
declares that ``the judicial power of the United States shall be vested
in one Supreme Court and in such inferior courts as the Congress may,
from time to time, ordain and establish. The judges, both of the
Supreme and inferior courts, shall hold their offices during good
behavior, and shall, at stated times, receive for their services a
compensation which shall not be diminished during their continuance in
office.''
The construction of this part of the Constitution has been settled,
it seems to me, by the opinion of Congress, expressed by various acts,
and also by the Supreme Court of the United States.
By the article of the Constitution referred to the judges are to hold
their offices during good behavior. Congress can not consistently with
this provision provide any other or different tenure of office within
the States.
Congress has inmost cases limited the tenure of office of Territorial
judges to four years. This Could not be done were they judges under or
provided for by the Constitution, because by that instrument the tenure
is during good behavior. It should be noticed that Congress has imposed
this limitation of four years, not in a single instance only, but in
many. It has been imposed in the Territories embraced within the limits
of the original States, where the Territory has been ceded to the
General Government, and Territorial governments have been created
therein. It has also been done in the Territories purchased by the
United States from foreign nations. I think these acts clearly prove
the sense of Congress to be that Territorial judges are not judges
under the Constitution, but are mere creatures of legislation.
I have said that the Supreme Court of the United States have also
decided upon this point. In the case of the American Insurance Company
and others v. Canter, reported in first Peters, the court very
distinctly recognized the opinion above expressed, and convey their
views in the following strong language: ``These courts (meaning
Territorial courts), then, are not constitutional courts, in which the
judicial power conferred by the Constitution on the General Government
can be deposited; they are incapable of receiving it; they are
legislative courts, created in virtue of the general rights of
sovereignty.''
The only remaining inquiry is as to the liability of Territorial
judges to impeachment under the Constitution. The fourth section of the
second article of the Constitution is in these words: ``The President,
Vice-President, and all civil officers of the United States shall be
removed from office on impeachment and conviction of treason, bribery,
or other high crimes and misdemeanors.''
If the construction Of the Constitution be correct, as I suppose it
is, that these judges are not constitutional but legislative judges, I
can see nothing in the Constitution which would warrant their being
embraced by the expression, ``and all civil officers of the United
States.'' They are not civil officers of the United States in the
constitutional meaning of the phrase. They are merely Territorial
officers, and therefore, in my opinion, not subject to impeachment and
trial before the Senate of the United States.
2023. Reference to a summary of provisions of State constitutions
relating to impeachment and removal by address.--On February 22,
1905,\1\ in the Senate, sitting for the impeachment trial of Judge
Charles Swayne, Messrs. John M. Thurston and Anthony Higgins, of
counsel for respondent, filed as part of an argument on a plea as to
jurisdiction a summary of provisions in the constitutions of the
various States at various periods of their existence. It appears in
full in the Congressional Record of that date.
2024. The question of reimbursement of respondent for his expenses in
an impeachment trial.--On February 28, 1905.\2\ in the Senate, the
President
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\1\ Third session Fifty-eighth Congress, Record, pp. 3035-3041.
\2\ Third session Fifty-eighth Congress, Record, p. 3601.
Sec. 2024
pro tempore laid before the Senate the following communication from the
counsel of Judge Charles Swayne; which was referred to the Committee on
the Judiciary:
To the President pro tempore of the United States Senate:
The undersigned have the honor to request that, inasmuch as Judge
Charles Swayne has been declared not guilty by the Senate of the
impeachment charges preferred against him by the House of
Representatives, an allowance may be made as a part of the expenses of
the Senate in connection with the impeachment which shall enable him to
defray the expenses of his counsel and the other expenses incurred by
him in making his defense.
The undersigned will submit a statement of such expenses whenever
requested to do so by the Senate.
Anthony Higgins.
John M. Thurston.
Washington, February 27, 1905.
The joint resolution \1\ appropriating for the expenses of the Senate
in the trial made no provision for granting this request.
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\1\ 33 Stat. L., p. 1280.