[Hinds' Precedents, Volume 3]
[Chapter 79 - Impeachment Proceedings Not Resulting In Trial]
[From the U.S. Government Publishing Office, www.gpo.gov]
IMPEACHMENT PROCEEDINGS NOT RESULTING IN TRIAL.
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1. Inquiries into the conduct of judges:
George Turner in 1796. Section 2486.
Peter B. Bruin in 1802. Section 2487.
Harry Toulmin in 1811. Section 2488.
William P. Van Ness, Mathias B. Talmadge, and William
Stephens in 1818. Section 2489.
Joseph L. Smith in 1825 and 1826. Section 2490.
Buckner Thruston in 1825 and 1837. Section 2491.
Alfred Conkling in 1829. Section 2492.
Benjamin Johnson in 1833. Section 2493.
P.K. Lawrence in 1839. Section 2494.
John C. Watrous in 1852 and following years. Sections 2495-
2499.
Thomas Irwin in 1859. Section 2500.
A Justice of the Supreme Court in 1868. Section 2503.
Mark H. Delahay in 1872. Sections 2504, 2505.
Edward H. Durell in 1873. Sections 2506-2509.
Charles T. Sherman in 1873. Section 2511.
Richard Busteed in 1873. Section 2512.
William Story in 1874. Section 2513.
Henry W. Blodgett in 1879. Section 2516.
Aleck Boarman in 1890. Sections 2517, 2518.
J.G. Jenkins in 1894. Section 2519.
Augustus J. Ricks in 1895. Section 2520.
2. Inquiry as to conduct of Collector of Port of New York.
Section 2501.
3. Investigation of charges against Vice-President Colfax.
Section 2510.
4. Inquiry as to consular officers at Shanghai. Sections 2514,
2515.
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2486. The inquiry into the conduct of Judge George Turner in 1796.
In 1796 the House discontinued impeachment proceedings against a
Territorial judge on assurance that he would be prosecuted in the
courts.
Opinion of Attorney-General Charles Lee as to impeachment of a
Territorial judge holding office during good behavior.
Advice of Attorney-General Lee as to mode of instituting and
continuing impeachment proceedings.
On receipt of a petition containing charges against a judge, the
House, in 1796, instituted an investigation.
Sec. 2486
On April 25, 1796,\1\ a petition was presented in the House from
sundry inhabitants of the county of St. Clair, in the Territory
northwest of the Ohio River, stating certain grievances and
inconveniences to which they had been subjected by the unwarrantable
conduct of George Turner, one of the judges of the said Territory, in
the exercise of his official duties, and praying that such relief might
be granted in the premises as should seem meet to the wisdom of
Congress. This petition specified that the judge held a court ``unknown
to and contrary to the laws of the Territory'' at a remote and
inconvenient place; that he imposed heavy fines and forfeitures; that
he denied the right reserved to the people by the constitution of the
Territory, especially as regarded the descent and conveyance of
property, and the use of the French language; and that he managed the
affairs of interstate persons to the damage of the heirs and creditors.
The House referred the petition to a committee composed of Messrs.
Theophilus Bradbury, of Massachusetts; Nicholas Gilman, of New
Hampshire; Thomas Hartley, of Pennsylvania; John Heath, of Virginia,
and Alexander D. Orr, of Kentucky.
On May 5,\2\ the committee were discharged from further consideration
of the petition and the same was referred to the Attorney-General for
his opinion thereon.
On May 9,\3\ Charles Lee, the Attorney-General, transmitted his
opinion:
That the charges exhibited in the petition against Judge Turner, and
especially the first, second, and fifth, are of so serious a nature as
to require that a regular and fair examination into the truth of them
should be made, in some judicial course of proceeding; and if he be
convicted thereof, a removal from office may and ought to be a part of
the punishment. His official tenure is during good behavior; and,
consequently, he can not be removed until he be lawfully convicted of
some malversation in office. A judge may be prosecuted in three modes
for official misdemeanors or crimes: by information, or by an
indictment before an ordinary court, or by impeachment before the
Senate of the United States. The last mode, being the most solemn,
seems, in general cases, to be best suited to the trial of so high and
important an officer; but, in the present instance, it will be found
very inconvenient, if not entirely impracticable, on account of the
immense distance of the residence of the witnesses from this city
[Philadelphia]. In the prosecution of an impeachment, such rules must
be observed as are essential to justice; and, if not exactly the same
as those which are practiced in ordinary courts, they must be
analogous, and as nearly similar to them as forms will permit. Thus,
before an impeachment is sent to the Senate, witnesses must be
examined, in solemn form, respecting the charges, before a committee of
the House of Representatives, to be appointed for that purpose, as in a
case of indictment witnesses are examined by a grand jury. Upon the
trial the witnesses must give their testimony before the Senate, as in
a case of indictment they do before the ordinary court and petit jury;
so, also, perhaps, it would be proper that some responsible person or
persons should undertake to answer the costs of trial to the accused,
in the event of his acquittal. It ought to be remarked that, if the
mode of impeachment be deemed preferable, the aforesaid petition,
subscribed by forty-nine citizens, may be regarded as sufficient
inducement to the House to appoint a committee of inquiry, with
authority to examine witnesses and report the substance of their
testimony respecting the charges therein set forth, at the present or
next session; and, if the report of the testimony will warrant an
impeachment, articles are to be directed to be drawn and presented to
the Senate, who will appoint a time of trial, giving reasonable notice
thereof to the accused and to the accusers, etc.
However, the Attorney-General is of opinion that it will be more
advisable, on account of the expense, the delay, the certain
difficulty, if not impossibility, of obtaining the attendance here of
the witnesses who reside in the Territory northwest of the Ohio, about
the distance of 1,500 miles, that the prosecution should not be carried
on by impeachment, but by information on indictment
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\1\ First session Fourth Congress, Journal, p. 522; American State
Papers (miscellaneous), Vol. I, p. 151.
\2\ Journal, p. 539.
\3\ American State Papers (miscellaneous), Vol. I, p. 151.
Sec. 2487
before the supreme court of that Territory, which is competent to the
trial; and he prays leave to inform the House that, in consequence of
affidavits stating complaints against Judge Turner, of oppressions and
gross violations of private property, under color of his office, which
have been lately transmitted to the President of the United States, the
Secretary of State has been by him instructed to give orders to
Governor St. Clair to take the necessary measures for bringing that
officer to a fair trial, respecting those charges, before the court of
that Territory, according to the laws of the land; which course is also
recommended to be pursued relative to the matters charged in said
petition.
Judge Turner was one of three supreme court judges, ``any two of whom
to form a court, who shall have a common-law jurisdiction, * * * and
their commissions shall continue in force during good behavior.'' \1\
The report of the Attorney-General was, on May 10,\2\ referred to a
committee composed of the same members originally appointed to consider
the petition, and they were directed to ``examine the matter thereof,
and report the same, with their opinion thereupon, to the House.''
On February 16, 1797,\3\ a memorial was presented from Judge Turner
praying that the House enter upon an investigation of the allegations
and charges brought against him in the petition. On February 22 \4\
this memorial was referred to the same committee.
On February 27 \5\ that committee reported that the case should come
to a hearing before the court of the Territory, where the judge would
have an opportunity of defending himself.
The report was laid on the table and not acted on further.\6\
2487. The inquiry into the conduct of Judge Peter B. Bruin, in 1808.
Instance of proceedings looking to the impeachment of a judge of a
Territory.
The investigation of Judge Bruin's conduct was set in motion by
charges preferred by a Territorial legislature.
The House in the Bruin case declined to impeach before it had made an
investigation by its own committee.
Instance wherein a Delegate was made chairman of a committee to
investigate the conduct of a judge.
On April 11, 1808,\7\ the Speaker presented to the House sundry
resolutions of the legislative council and house of representatives of
the Mississippi Territory, preferring certain charges against Peter B.
Bruin, presiding judge of the Territory, and instructing Mr. George
Poindexter, Delegate in Congress from the said Territory, to impeach
the said judge, and pledging themselves, ``in behalf of the people of
this Territory, to substantiate and make good'' the said charges, which
were specified as ``neglect of duty and drunkenness on the bench.''
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\1\ Organic law of Northwest Territory, 1 Stat. L., pp. 51, 286.
\2\ Journal, p. 548.
\3\ Second session, Journal, p. 701.
\4\ Journal, p. 714.
\5\ Journal, p. 724; Annals, p. 2320. 8
\6\ It appears that Jonathan Return Meigs was appointed Judge on
February 12, 1798, but the records of the State Department do not show
whose place he took. The appointment of Judge Meigs was made two years
after the proceedings in the House against Judge Turner.
\7\ First session Tenth Congress, Journal, p. 204; Annals, p. 2068;
American State Papers (miscellaneous), Vol. I, pp. 921, 922.
Sec. 2488
Mr. Poindexter thereupon presented resolutions as follows:
Resolved, That a committee be appointed to prepare and report
articles of impeachment against Peter B. Bruin, one of the judges, of
the superior court of the Mississippi Territory; and that the said
committee have power to send for persons, papers, and records.
In the debate it was objected by Mr. Timothy Pitkin, Jr., of
Connecticut, that it would hardly be dignified for the Congress to
proceed to an impeachment on the authority of a resolution of the
legislature of a State or Territory. A committee should first be
appointed to inquire into the propriety of impeaching. Mr. John Rhea,
of Tennessee, drew a distinction between the legislature of a State and
that of a Territory, and, furthermore, did not consider the resolutions
of a legislature conclusive evidence of fact.
Thereupon Mr. Poindexter modified his resolution by striking out the
words ``prepare and report,'' and inserting the words ``inquire into
the expediency of preferring.'' He further stated that he had seen
Judge Bruin on the bench in a state of intoxication.
On April 18 \1\ the House further amended the resolution, and agreed
to it, as follows:
Resolved, That a committee be appointed to inquire into the conduct
of Peter B. Bruin, a judge of the superior court of the Mississippi
Territory, and report whether, in their opinion, he hath so acted, in
his official capacity, as to require the interposition of the
Constitutional powers of this House; and that the said committee have
power to send for persons, papers, and records.
The committee were appointed as follows: Messrs. Poindexter, Samuel
W. Dana, of Connecticut; Jesse Wharton, of Tennessee; Benjamin Howard,
of Kentucky; Jeremiah Morrow, of Ohio; Joseph Calhoun, of South
Carolina; and John Campbell, of Maryland.
On April 21 \2\ Mr. Morrow reported a resolution which, after
amendment, was agreed to as follows:
Resolved, That George Poindexter, chairman of the said committee, be
authorized to cause to be taken before a magistrate or other proper
officer such depositions in relation to the official conduct of the
said judge as, in his judgment, may be material to the inquiry, having
first notified the said Bruin of the time and place, or places, of
taking such depositions, so that he may give his attendance; and that
the depositions so taken be laid before Congress at their next session.
On April 25 this session of Congress adjourned.
It does not appear that the matter was again taken up. On March 7,
1809, as the records of the State Department show, Francis Xavier
Martin was appointed judge, indicating the death or resignation of
Judge Bruin.
It appears that the judges of the court of Mississippi Territory,
like the judges of the territory northwest of the Ohio, held office
``during good behavior,'' such being the provision of the statutes.\3\
2488. The inquiry into the conduct of Judge Harry Toulmin, in 1811.
Instance of proceedings looking to the impeachment of a judge of a
Territory.
The inquiry as to Judge Toulmin was set in motion by action of a
grand jury forwarded by a Territorial legislature.
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\1\ Journal, p. 277; Annals, p. 2189.
\2\ Journal, p. 286; Annals, p. 2251.
\3\ 1 Stat. L., pp. 51, 550.
Sec. 2488
In Judge Toulmin's case the House, after investigating in a
preliminary way, declined to order a formal investigation.
On December 16, 1811,\1\ the Speaker laid before the House a letter
from Cowles Mead, speaker of the house of representatives of the
Mississippi Territory, inclosing the copy of a presentment against
Harry Toulmin, judge of the superior court for the Washington district,
in said Territory \2\ made by the grand jury of Baldwin County,
specifying charges against the said judge, which were read and ordered
to lie on the table.
Mr. George Poindexter, Delegate from Mississippi Territory, also
presented a copy of the same presentment; which was ordered to lie on
the table.
On December 19 \3\ Mr. Poindexter submitted this resolution:
Resolved, That a committee be appointed to inquire into the conduct
of Harry Toulmin, judge of the district of Washington, in the
Mississippi Territory, and report whether, in their opinion, he hath so
acted, in his official capacity, as to require the interposition of the
constitutional powers of this House; and that said committee have power
to send for persons and papers.
On December 21 \4\ Mr. Poindexter withdrew the resolution, and moved
that the letter of Cowles Mead, with the accompanying papers, be
referred to a select committee to consider and report thereon to the
House.
The committee was appointed as follows: Messrs. Poindexter, John
Rhea, of Tennessee, John C. Calhoun, of South Carolina; John
Taliaferro, of Virginia; Abijah Bigelow, of Massachusetts, and
Epaphroditus Champion, of Connecticut.
On January 14, 1812,\5\ sundry documents in refutation of the charges
were presented and referred to the committee. Also on February 1 \6\
other papers of a similar tenor were presented and referred. On March
19 and 25 also, similar papers were referred.
On March 11 \7\ a motion of Mr. Rhea that the committee be discharged
from consideration of the subject was decided in the negative, and on
April 13 a motion that the committee be directed to report was likewise
decided in the negative.
On May 21 \8\ Mr. Poindexter, from the committee, reported--
That the charges contained in the presentment aforesaid have not been
supported by evidence; and from the best information your committee
have been enabled to obtain on the subject it appears that the official
conduct of Judge Toulmin has been characterized by a vigilant attention
to the duties of his station, and an inflexible zeal for the
preservation of the public peace and tranquillity of the country over
which his judicial authority extends. They therefore recommend the
following resolution:
``Resolved, That it is unnecessary to take any further proceeding on
the presentment of the grand jury of Baldwin County, in the Mississippi
Territory, against Judge Toulmin.''
This report was concurred in by the House.
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\1\ First session Twelfth Congress, Journal, p. 67; Annals, p. 522;
American State Papers, Vol. II (Miscellaneous), p. 162; Annals, p.
2162.
\2\ The Mississippi judges were created by statute which made the
tenure during good behavior. (1 Stat. L., pp. 51, 550; 2 Stat. L., pp.
301, 564.)
\3\ Journal, p. 78; Annals, p. 559.
\4\ Journal, p. 87; Annals, p. 567.
\5\ Journal, p. 125.
\6\ Journal, pp. 155, 255, 265.
\7\ Journal, pp. 242, 288.
\8\ Journal, p. 347; Annals, p. 1436.
Sec. 2489
2489. The inquiry into the conduct of Judges William F. Van Ness,
Mathias B. Tallmadge, and William Stephens, in 1818.
Judge William Stephens having resigned his office, the House
discontinued its inquiry into his conduct.
In 1818 the House inquired into the official conduct of Judges
William P. Van Ness and Mathias B. Tallmadge, of the district courts of
New York, and William Stephens of the district court of Georgia.\1\ The
committee found that Judge Van Ness had shown some remissness in not
exercising constant vigilance over the money of the court, which had
been purloined by the clerk, and in not vigorously enforcing the
provisions of the law and rules of the court. There were also
complaints against some decisions and orders of Judge Van Ness, ``but
the respect which this committee entertains for the constitutional
rights of a judge, and for the laws which provide adequate remedies for
any errors he may commit, forbids their questioning any judicial
opinions.'' The committee say that they have discovered nothing which
furnishes ``any ground for the constitutional interposition of the
House.'' \2\ The inquiry into the conduct of Judge Van Ness was
instituted by a resolution reported from the Judiciary Committee, who
had been examining the conduct of the clerk of the court, and found
some circumstances connected with the judge's conduct which justified
investigation.\3\ And the names of Judges Tallmadge and Stephens had
been added by way of amendment to the resolution of inquiry.
On November 24, 1818,\4\ on motion of Mr. John C. Spencer, of New
York, it was
Ordered, That the committee appointed at the last session of
Congress, to inquire into the official conduct of certain judges of the
courts of the United States, be discharged from so much of their duty
as relates to the conduct of William Stephens, who has resigned his
office of judge of the court of the United States for the district of
Georgia.
On February 17, 1819,\5\ Mr. Spencer reported on the case of Judge
Tallmadge, who was charged with having omitted to hold the terms of the
district court for which he was appointed, according to law. The
committee found that at certain times he had omitted sessions, but say:
It appears satisfactorily, from the testimony of several physicians,
and of the Hon. Nathan Sanford, given on a former inquiry into the
conduct of Judge Tallmadge, that in 1810 his health became extremely
delicate, and that very great exertion of body, or any unusual
agitation of mind, invariably produced severe sickness, so as to
disqualify him for any official duties; and that his life was prolonged
by visiting a more genial climate in the winter season.
On entering upon the duties of his office in 1805, Judge Tallmadge
encountered a mass of business which had accumulated from the ill
health and the death of his predecessor, and from the want of any judge
in the court for the time immediately preceding his appointment. The
sickness of Judge Patterson, who should have presided in the circuit
court, materially increased the labors of the district judge.
The committee are of opinion that there is nothing established in the
official conduct of Judge Tallmadge to justify the constitutional
interposition of the House.
The report was laid on the table.
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\1\ First session Fifteenth Congress, Journal, p. 447; Annals, p.
1715.
\2\ Second session Fifteenth Congress, Report No. 136.
\3\ Annals, p. 1715.
\4\ Second session Fifteenth Congress, Journal, p. 35; Annals, p.
313.
\5\ Journal, p. 279; Annals, p. 1222.
Sec. 2490
2490. The investigations into the conduct of Judge Joseph L. Smith,
in 1825 and 1826.
The House decided to investigate the conduct of Judge Smith, on
assurance of a Territorial Delegate that the person making the charges
was reliable.
Instance wherein charges were presented against a judge in three
Congresses.
On February 3, 1825,\1\ Mr. Richard K. Call, Delegate from Florida
Territory, presented this resolution:
Resolved, That the Committee on the Judiciary be instructed to
inquire whether either of the judges of the district courts of Florida
have received fees for their services not authorized by law; and, if
any, what other malpractices have been committed by the said judges, or
either of them; and that the said committee be authorized to compel the
attendance of persons and the production of papers to promote this
investigation.
In support of this resolution Mr. Call presented a letter addressed
to himself by Edgar Macon, United States attorney for East Florida, in
response to a request made by Mr. Call for information.
At the May term of the superior court of East Florida--
Says Mr. Macon's letter--
in 1824 Judge Smith established a number of rules for the government of
the practice of his court, by which provision is made for the
transacting and doing of much business in vacation, which previously
had been done in term, viz, such as making orders for commissions to
take foreign testimony, and hearing and deciding on motions for
amending pleadings, etc., and other matters and questions generally
aiding in the usual progress of a suit; for all which services, when
performed, Judge Smith has charged fees. I have paid them, and I
believe every attorney of his (Judge Smith's) court has done the game.
It is proper to mention that in the United States and Territorial cases
Judge Smith has never charged fees.
Mr. Call vouched for the reliability of Mr. Macon's word, and asked
that the resolution be agreed to.
The House, without division, agreed to the resolution.
On February 28 \2\ Mr. William Plumer, jr., of New Hampshire, from
the Committee on the Judiciary, submitted a report, saying that the
committee were--
not able to perceive how any law of the Territory can authorize the
judge to receive any compensation in the shape of fees for his official
services in the place which he holds under the authority of the United
States. The distance of the parties, however, from the seat of
government, renders it wholly impracticable to make any investigation
into the particular circumstances of the case during the present
session of Congress. The committee therefore pray that they may be
discharged from any further consideration of the resolution.
The report was read and laid on the table.
At the beginning of the next Congress on December 27, 1825,\3\ Mr.
Joseph M. White, Delegate from Florida, presented the petition of
Joseph L. Smith, judge of the supreme court of said Territory, praying
that his conduct as judge might be
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\1\ Second session Eighteenth Congress, Journal, pp. 197, 198;
Debates, pp. 438, 439.
\2\ Journal, p. 279; Report No. 87.
\3\ First session Nineteenth Congress, Journal, p. 93.
Sec. 2491
inquired into, and that his character might be freed from the public
imputation to which it had been subjected.
Mr. White also presented the petition of Edgar Macon charging Judge
Smith with malfeasance and corruption in office, and praying that the
charges might be investigated by Congress.
These papers were ordered referred to the Judiciary Committee.
On January 9 \1\ Mr. White presented a memorial of the legislative
council of Florida soliciting an investigation of the charges preferred
against Judge Smith.
This paper also was referred to the Judiciary Committee.
On February 7, 1826,\2\ Mr. John C. Wright, of Ohio, from the
Committee on the Judiciary, reported that the committee had examined
the petition, memorial, and evidence offered, and asked that they be
discharged from the further consideration of the subject.
This report was agreed to by the House.
On January 11, 1830,\3\ Mr. White presented a memorial addressed to
the President of the United States, and sundry documents signed by the
citizens of East Florida, charging Judge Smith with tyrannical and
oppressive conduct, and imploring his removal from the office of judge.
These papers were referred to the Judiciary Committee, but it does
not appear that they were ever reported on.\4\
2491. The investigations into the conduct of Judge Buckner Thurston,
in 1825 and 1837.
The investigations into the conduct of Judge Thurston were set in
motion by memorials.
Form of memorial praying for the impeachment of Judge Thurston, in
1837.
The House sometimes refers for preliminary inquiry a memorial praying
impeachment and sometimes orders investigation at once.
In 1825 the House preferred that charges against a judge should be
investigated by a committee.
During the investigation of Judge Thurston with a view to impeachment
he was present and cross-examined witnesses.
On February 21, 1825,\5\ Mr. James Strong, of New York, presented a
petition of John P. Van Ness complaining of the official conduct of
Buckner Thurston, one of the associate judges of the Circuit Court of
the United States for the District of Columbia, and praying that the
subject of his complaint might be inquired into by Congress.
The petition was referred to the Committee on the District of
Columbia, but on February 24 the reference was changed to the Judiciary
Committee.
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\1\ Journal, p. 129.
\2\ Journal, p. 233.
\3\ First session Twenty-first Congress, Journal, p. 146.
\4\ The judge of the supreme court of Florida held his office by
virtue of a statute, and for the term of four years. (3 Stat. L., p.
753; 4 Stat. L., p. 45.)
\5\ Second session Eighteenth Congress, Journal, pp. 254, 267.
Sec. 2491
On February 28 \1\ Mr. William Plumer, Jr., of New Hampshire, from
the Judiciary Committee, submitted a report that the committee--
Having investigated the matter of the memorial, they are unanimously
of opinion that there is nothing in the conduct of Judge Thurston which
requires the interposition or reprehension of this House. They
therefore ask to be discharged from the further consideration of this
memorial.
The report was laid on the table.
On January 30, 1837,\2\ the Speaker presented a memorial of Richard
S. Coxe and William L. Brent, of the District of Columbia, praying an
investigation into the judicial conduct of Judge Thurston. The memorial
in part was as follows:
Should this memorial be referred to the appropriate committee we
pledge ourselves to prove to the satisfaction of Congress--
1. That Judge Thurston is grossly and avowedly ignorant and
regardless of the law which it is his duty to administer.
2. That he is habitually inattentive and neglectful in the discharge
of his official duties.
3. That his deportment on the bench is rude, insolent, and
undignified, and calculated to bring the administration of the law into
contempt.
4. That he is habitually rude and insolent toward his brethren on the
bench, to their great annoyance and to the hindrance of justice.
5. That he is habitually rude, insolent, and quarrelsome toward the
members of the bar; constantly in a state of irritation and excitement,
applying to them, without cause or provocation, the most harsh and
vulgar epithets in our vocabulary.
6. That, in these different modes, he incessantly interferes with the
administration of justice, gratifies his own personal passions at the
expense of truth and justice, involves the Government and the community
in enormous expenses and vexatious delays, and employs his official
power and station in outraging the feelings and illegally and unjustly
injuring those who may accidentally become the objects of his infuriate
resentment.
7. That on several occasions he has, from the bench, actually invited
members of the bar to leave the court and enter into a personal
encounter with him.
8. That he is, from want of professional information, from his
neglect of his duties, from his furious and ungovernable temper, wholly
unfit for the station he occupies.
These general heads of accusations, with all the necessary details of
time, place, person, and circumstance, we tender ourselves ready and
prepared to establish by the most plenary proof.\3\
On January 31 \4\ Mr. Francis Thomas, of Maryland, proposed this
resolution, which was agreed to by the House:
Resolved, That the Committee on the Judiciary be authorized to send
for persons and papers, and to inquire into the truth of the charges
made in the memorial of William L. Brent and Richard S. Coxe,
complaining of the official conduct of Buckner Thruston, one of the
judges of the circuit court of the United States for the District of
Columbia.
On March 3,\5\ the last day of the Congress, Mr. Thomas reported from
the committee, without recommendation of any kind, the testimony taken
before the committee. The report was ordered to lie on the table and be
printed.
The report shows that many witnesses were examined, and that Judge
Thurston was permitted to cross-examine.
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\1\ Journal, p. 279; Report, No. 85.
\2\ Second session Twenty-fourth Congress, Journal, pp. 316, 317.
\3\ The memorialists subscribed their names to the memorial, but the
signatures were not attested.
\4\ Journal, p. 332.
\5\ Journal, p. 586; Report No. 327.
Sec. 2492
Judge W. Cranch, an associate of Judge Thurston, having been called
upon to testify in this case, objected on behalf of himself and Judge
Morsell to giving testimony, on account of their official relations to
the respondent, but the committee overruled this objection.
It does not appear that any action was taken further than the
printing of the report.
The records of the State Department indicate that Judge Thurston
remained in office until he died, on August 30, 1845. On October 3,
1845, James Dunlop was appointed judge.
2492. The investigation into the conduct of Judge Alfred Conkling in
1829.
In the case of Judge Conkling the memorial preferring charges was
referred to the Judiciary Committee for examination before an
investigation was ordered.
Views of the minority of the Judiciary Committee, in 1830, as to
offenses amounting to high misdemeanor.
On February 16, 1829,\1\ Mr. Selah R. Hobbie, of New York, presented
a memorial of Martha Bradstreet, of the State of New York, preferring
charges against Alfred Conkling, judge of the district court of the
United States for the northern district of New York, as grounds for an
impeachment of the said judge.
This memorial was referred to the Committee on the Judiciary.
On February 23 the House ordered the committee discharged from
consideration of the memorial and gave the memorialist leave to
withdraw.
In the next Congress, on February 22, 1830,\2\ on motion of Mr.
Churchill C. Cambreleng, of New York, it was ordered that the memorial
of Martha Bradstreet in relation to Judge Conkling be referred to the
Committee on the Judiciary.
On March 22 \3\ Mr. Cambreleng presented a memorial of Martha
Bradstreet, preferring additional charges and praying to be permitted
to substantiate them. This memorial was referred to the Judiciary
Committee.
On March 26 \4\ the Judiciary Committee were granted leave to sit
during sessions of the House for the purpose of investigating the
matters set forth in the memorial.
On April 3 \5\ Mr. Charles A. Wickliffe, of Kentucky, from the
Committee on the Judiciary made an unfavorable report on the memorial,
finding no cause for impeachment. This report was concurred in by all
the members of the committee except Mr. Warren R. Davis, of South
Carolina. Presumably those concurring were Messrs. James Buchanan, of
Pennsylvania; Henry R. Storrs, of New York; Thomas T. Bouldin, of
Virginia; William W. Ellsworth, of Connecticut, and Edward D. White, of
Louisiana. Mr. Davis dissented, and on April 8 \6\ filed minority
views. He states in his views that the memorialist presented thirty-
three charges for misdemeanors in office. The majority had concluded
that there was nothing in the
-----------------------------------------------------------------------
\1\ Second session Twentieth Congress, Journal, pp. 291, 292, 324.
\2\ First session Twenty-first Congress, Journal, 319.
\3\ Journal, p. 447.
\4\ Journal, p. 462.
\5\ Journal, p. 494.
\6\ Journal, p. 514; Report No. 342.
Sec. 2493
charges or in the testimony adduced to support them that required the
constitutional interposition of the House. The minority believed that
two charges were supported by adequate testimony, and if true amounted
to a high misdemeanor:
(a) His causing the name of John L. Tillinghast to be struck from the
rolls of the said court, for having expressed out of court his opinion
of the said Judge Conkling.
(b) His having thereby illegally and unconstitutionally assumed to
himself the power to act as judge in his own cause. And, in pursuit of
his object, violated the immemorial course and practice of courts of
justice, and disregarded even the form of law. And this for the mere
gratification of his private revenge.
Mr. Davis argued at some length in support of his claim that the two
specifications, as supported by the evidence, contained matter
amounting to misdemeanor in office.
The report of the majority was laid on the table, and no further
action appears.
2493. The investigation of the conduct of Benjamin Johnson, a judge
of the superior court of the Territory of Arkansas, in 1833.
In 1833 the Judiciary Committee held that a Territorial judge was not
a civil officer of the United States within the meaning of the
Constitution.
On January 15, 1833,\1\ the Speaker submitted to the House a letter
from Egbert Harris, of the Territory of Arkansas, inclosing charges and
specifications made by William Cummins against Benjamin Johnson, one of
the judges of the superior court of the Territory of Arkansas.
Mr. Ambrose H. Sevier, Delegate from Arkansas, presented sundry
documents exculpatory of Judge Johnson.
The letter of Mr. Harris and the other papers were referred to the
Committee on the Judiciary.
On February 8 \2\ Mr. John Bell, of Tennessee, presented the report
of the committee on the memorial. The committee included besides Mr.
Bell, Messrs.William W. Ellsworth, of Connecticut; Henry Daniel, of
Kentucky; Thomas F. Foster, of Georgia; Wm. F. Gordon, of Virginia;
Samuel Beardsley, of New York, and Richard Coulter, of Pennsylvania.
The report first dealt with a preliminary question:
A majority of the committee are strongly inclined to the opinion that
such an officer is not a proper subject of trial by impeachment. Some
of the reasons upon which that opinion may be supported will be stated.
The Constitution, in Article II, section 4, provides that ``all civil
officers of the United States shall be removed from office by
impeachment.'' The institution by Congress of those political
corporations, denominated, in the language of our legislation upon that
subject, Territorial governments, is only authorized by a very liberal
construction of the general power given by the Constitution to Congress
over the public domain. But, admitting that exercise of power to be
well enough founded, still, can a judge of such a government be said to
be an officer of the United States within the meaning of the clause
already quoted? Should the doubt thrown out by the committee upon this
point appear to the House to be without reasonable foundation, they
think they will be fully sustained in the opinion, that, whether liable
to impeachment or not, the practice of impeaching subordinate officers,
and especially such as hold their offices by a tenure not more firm and
durable than the judge of a Territorial court, would
-----------------------------------------------------------------------
\1\ Second session Twenty-second Congress, Journal, p. 179.
\2\ Journal, p. 290; Report No. 88.
Sec. 2494
soon be found highly inconvenient and injurious to the public interest.
The judge whose conduct in the present instance is alleged to be such
as to call for the exercise of the impeaching power of the House, holds
his office for a term of four years only, and may, by the express
provision of the act of Congress establishing his office, be removed at
any time within that term by the President. The trial by impeachment is
the highest and most solemn in its nature known in the administration
of public justice. It is established for high political purposes, and
would seem to be proper only against judges who hold their offices
during good behavior, and other high officers of the Government, for
such crimes or misdemeanors as the public service and interest require
to be punished by removal from office.
Proceeding to the merits of the case, the report says:
The general charges against him are favoritism or partiality to
particular counsel in the trial of causes, irritability of temper and
rudeness on the bench toward his brother judges and the bar;
incapacity, manifested by a vacillating and inconsistent course of
judicial decision, and habitual intemperance.
The committee did not find these charges well sustained, and
furthermore they found decided and unequivocal testimony in favor of
the judge.
The report was laid on the table.
2494. The investigation into the conduct of Judge F. K. Lawrence, in
1839.
The proceedings in the case of Judge Lawrence were set in motion by a
memorial setting forth specific charges.
The memorial setting forth charges against Judge Lawrence was
referred for examination before an investigation was ordered.
The House referred the charges made against Judge Lawrence, in 1839,
to a select committee instead of to the Judiciary Committee.
A select committee recommended the impeachment of Judge P. K.
Lawrence, in 1839.
The investigation into the conduct of Judge P. K. Lawrence, in 1839,
was entirely ex parte.
On January 7, 1839,\1\ Mr. Henry Johnson, of Louisiana, presented a
memorial of Duncan N. Hennen, a citizen of the State of Louisiana,
making charges of high crimes and misdemeanors against P. K. Lawrence,
judge of the district court of the United States for the eastern
district of Louisiana, and praying that the House of Representatives
would inquire into the facts whether the said Judge Lawrence, in the
exercise of the high trust and confidence reposed in him, had not been
guilty of corrupt, malicious, and dangerous abuses of power.
The memorial set forth specifically that the memorialist had been
appointed clerk of the said court in 1834, and had served until May 18,
1838, when Judge Lawrence sent him a letter of removal and informing
him that John Winthrop had been appointed in his place; that the
memorialist, being advised that Judge Lawrence had acted without power,
refused to deliver the records of the court to the said Winthrop; that
Judge Lawrence had issued a writ without authentication of the seal of
the court, commanding the marshal to seize the records; that the
memorialist, as clerk of the district court, became ex officio clerk of
the circuit court for the ninth circuit; that on May 21, 1838, both the
memorialist and the said
-----------------------------------------------------------------------
\1\ Third session Twenty-fifth Congress, Journal p. 222; Globe, p.
404; Report, No. 272.
Sec. 2494
Winthrop presented themselves, each as clerk, before the circuit court,
Judge John McKinley and the aforesaid Judge Lawrence, sitting; that the
memorialist objected, when arguments were to be heard on the rival
claims, to Judge Lawrence sitting in the matter, (a) because he
professed to have formed and delivered an opinion on the question; (b)
because, from expressions in the letter of removal, he had confessed
partiality toward the said Winthrop; (c) because there was no need of
the said Judge Lawrence passing on the case since memorialist was
willing to acquiesce if Judge McKinley held the removal legal; (d) and
because a difference of opinion between the judges would lead to
adjournment of court until a final decision by the Supreme Court of the
United States; that Judge Lawrence persisted in sitting, and there
resulted a difference of opinion between him and his associates; that
Judge McKinley held that the removal was illegal and that the
memorialist was de jure and de facto clerk, to which Judge Lawrence
dissented; that the circuit court adjourned without transaction of
business; that the memorialist continued in possession of the seals and
records of both courts, and that the records of the district court were
not seized by the marshal under the writ until the next June; that in
November 19, 1838, at the holding of the circuit court, in the absence
of Judge McKinley, Judge Lawrence declined to allow the memorialist's
deputy to perform the duties of clerk, but made a rule in a civil cause
calling upon the deputy to produce the records, and on the succeeding
day committed the deputy to prison for alleged contempt; that after
release by habeas corpus the deputy was a second time committed for
refusing to deliver the records; that the said proceedings were in
violation of the act of April 29, 1802, providing ``that imprisonment
is not allowed, nor punishment in any case inflicted, where the judges
of the said court are divided in opinion upon the question touching
such imprisonment;'' that the said proceedings of Judge Lawrence to
take the records were made after the Supreme Court of the United States
had granted a rule requiring Judge Lawrence to show cause why the
memorialist should not be allowed to discharge the duties of the
office; that Judge Lawrence had caused a new seal, not in form required
by law, to be made; that Judge Lawrence, on November 26, 1838, had
issued a writ authorizing the seizure of the records of the circuit
court wheresoever found, thus illegally authorizing a seizure out of
his district; that Judge Lawrence had refused to obey a mandate of the
Supreme Court in a certain case, giving out that the Supreme Court had
grossly mistaken the law; that he had illegally absented himself from
his district; that he had for five years been notoriously and
inveterately addicted to the intemperate use of ardent spirits, and
that by his course in regard to the clerkship he had suspended the
administration of justice for a judicial year.
This memorial was signed by the memorialist, but the signature was
not attested.
Mr. Johnson asked that the memorial be referred to a select
committee. Although it was suggested that the Judiciary Committee
should consider it, Mr. Johnson's motion was agreed to, and the
committee was composed of Mr. Johnson and Messrs. John Pope, of
Kentucky; Thomas T. Whittlesey, of Connecticut; John Campbell, of South
Carolina; George W. Owens, of Georgia; William B. Calhoun, of
Massachusetts; and George C. Dromgoole, of Virginia.
Sec. 2495
On January 21,\1\ on motion of Mr. Johnson, it was:
Resolved, That the select committee appointed to inquire into the
charges of high crimes and misdemeanors against P. K. Lawrence, judge
of the district court of the United States for the State of Louisiana,
be authorized to send for persons and papers.
On February 11,\2\ Mr. Johnson submitted the report of the committee.
This report consisted largely of affidavits and records of testimony
taken in Louisiana. It is all ex parte. The report concludes:
That, in consequence of the evidence * * * they are of the opinion
that Philip K. Lawrence, judge of the district court of the United
States for the eastern and western districts of Louisiana, be impeached
for high misdemeanors in office.
It was ordered that the report be considered on February 21, but the
Congress was nearing its close and no action by the House appears.
On September 3, 1841, as the records of the State Department show,
Theodore H. McCaleb was appointed judge of this district.
2495. The investigations into the conduct of John C. Watrous, United
States judge for the district of Texas.
The House, in 1852, on the strength of a memorial setting forth
charges, investigated the conduct of Judge Watrous with a result
favorable to him.
In the investigation of 1852 Judge Watrous, the accused, was
permitted to appear before the committee with counsel. (Footnote.)
The conduct of Judge Watrous was the subject of reports, favorable
and unfavorable, in four Congresses.
On February 13, 1852,\3\ Mr. Abraham W. Venable, of North Carolina,
from the committee on the Judiciary reported a resolution as follows:
Resolved, That the Committee on the Judiciary be authorized to send
for persons and papers, with authority to examine witnesses,\4\ under
oath, in relation to the charges made against John C. Watrous, judge of
the United States court for the district of Texas.
Mr. Venable explained that a memorial of William Alexander, a lawyer
of Texas, had been presented to the House, charging Judge Watrous with
practicing law and receiving fees in the State of Texas touching
matters which had come before and been decided upon by himself, with
adjudicating cases in which he was personally interested, and with
certain violations of the laws of Texas militating against his judicial
purity.
The resolution was agreed to by the House.
On August 27 \5\ the Speaker laid before the House a letter from
Judge Watrous, wherein he stated that the pending inquiry was
preventing the decision of important cases in his court, and asked for
speedy action by the House. This communication
-----------------------------------------------------------------------
\1\ Journal, p. 332.
\2\ Journal, p. 521; Report, No. 272.
\3\ First session Thirty-second Congress, Journal, p. 348; Globe, p.
560.
\4\ In his answer filed with the Judiciary Committee in 1858 (first
session Thirty-fifth Congress, House Report No. 540, p. 18) Judge
Watrous makes a statement which shows that during these proceedings in
1852 he was present with counsel before the committee. It also appears
that witnesses were examined at that time (p. 437 of Report No. 540).
\5\ Journal, p. 1087; Globe, p. 2382.
Sec. 2496
was referred to the Committee on the Judiciary, and then, on motion of
Mr. Richardson Scurry, of Texas, it was
Ordered, That the Committee on the Judiciary have leave to report
upon the case of the said Judge John C. Watrous at any time.
At the next session of Congress, on January 13, 1853,\1\ Mr. William
A. Howard, of Michigan, presented additional evidence in the case,
which was referred to the Judiciary Committee.
On February 28,\2\ Mr. Venable submitted the report of the committee,
which was as follows:
That after an examination of much documentary evidence, as well as
many witnesses, summoned from Texas, they do not recommend that
articles of impeachment be directed by this House against the said John
C. Watrous.
This report was laid on the table.
2496. The Watrous investigation continued.
In the investigation of 1856 the Judiciary Committee made a report
favoring impeachment on the strength of memorials and without the power
to compel testimony being given by the House.
The memorials submitting the charges against Judge Watrous, in 1856,
were accompanied by a large amount of documentary evidence.
The investigation of the conduct of Judge Watrous, in 1856, was
conducted entirely ex parte, but the evidence was documentary and
voluminous.
In the Watrous investigation of 1856 the Judiciary Committee,
following precedents, reported the evidence but made no specific
charges.
The Watrous report of 1856 led to a debate as to the propriety of ex
parte investigations and to a citation of English and American
precedents.
It appears that a report impeaching a civil officer was not
considered, in 1856, privileged to be made at any time. (Footnote.)
On July 30, 1856,\3\ Mr. Miles Taylor, of Louisiana, presented the
memorial of Jacob Mussina, a citizen of Louisiana, praying for an
investigation into the conduct of Judge Watrous; and on August 6, Mr.
Peter H. Bell, of Texas, presented a memorial of Eliphas Spencer, of
Texas, asking for the impeachment of Judge Watrous. These papers were
referred to the Judiciary Committee.
The memorial of Jacob Mussina, who was a party to a chancery suit
litigated in Judge Watrous's court in Galveston, set forth in detail
charges of conduct oppressive and partial and in entire disregard of
the well-established rules of law and evidence and the rights of
litigants. The memorial of Eliphas Spencer, who was interested in a
tract of land in Texas, charged Judge Watrous with entering into a
conspiracy for the purpose of fraudulently and corruptly adjudicating
and determining the validity of a certain grant, by means of which the
said judge himself secured the title of a portion of the land, or the
proceeds of the sale of it.
The two memorials were accompanied by a mass of records and
documents,
-----------------------------------------------------------------------
\1\ Second session Thirty-second Congress, Journal, p. 125.
\2\ Journal, p. 350; Globe, p. 927; Report No. 7.
\3\ Second session Thirty-fourth Congress, Journal, pp. 1326, 1376;
Globe, p. 1818.
Sec. 2496
among which was a joint resolution of the legislature of Texas,
approved March 20, 1848, charging Judge Watrous with improper conduct,
and suggesting corrupt acts, and requesting him to resign his office.
It is not wholly certain from the report of the Judiciary Committee
whether or not they sought evidence beyond the documents furnished with
the memorials. If they did, it was purely documentary. It does not
appear that they asked the House for authority to take testimony, and
they did not take any, unless documentary.
On February 2, 1857,\1\ Mr. Lucian Barbour, of Indiana, asked a
suspension of the rules to enable him to report from the Committee on
the Judiciary,\2\ and on February 9, by a vote of yeas 156, nays, 32,
the rules were suspended and the report was made, accompanied by this
resolution:
Resolved, That John C. Watrous, United States district judge for the
district of Texas, be impeached of high crimes and misdemeanors.
In their report, which was unanimous with the exception of one
dissenting member, two members being absent, the committee say:
Upon referring to the proceedings in cases of former impeachments,
the committee find that specific charges of impeachment have not been
preferred in the report of the committee to the House; but in most
cases they have simply reported the testimony, with a resolution that
the accused be impeached of high crimes and misdemeanors. Specific
charges have been preferred afterwards, when the Senate has signified
its readiness to proceed with the trial The committee would, however,
state very briefly the substance of the charges in the petitions and
the grounds upon which they have resolved to report the resolution.
After reviewing the charges, the report concludes:
The committee have examined numerous records, consisting of
pleadings, orders of court, affidavits, and depositions, and after a
patient and laborious research they have reluctantly come to the
conclusion that the conduct of Judge Watrous in the cases above
referred to can not be explained without supposing that he was actuated
by other than upright and just motives; that in his disregard of the
well-established rules of law and evidence he has put in jeopardy and
sacrificed the rights of litigants, and in acquiring a title to
property in litigation, or held by adverse possession, he has given
just cause of alarm to the citizens of Texas for the safety of private
rights and property, and of their public domain, and has debarred them
from the rights of an impartial trial in the Federal courts of their
own district.
The report having been read, two questions at once arose. Mr. Howell
Cobb, of Georgia, asked if the testimony had been printed and declared
that he should be unwilling to act on the resolution presented by the
committee until he had been enabled to read the testimony.
Mr. Humphrey Marshall, of Kentucky, desired, as a member of the
Judiciary Committee, to state that he had had nothing to do with the
proceedings resulting in the report, since he had come to the
conclusion that the investigation ought not to proceed without notice
to the party. Mr. John A. Quitman, of Mississippi, said he was
unwilling to assist in bringing on the expense and trouble of an
impeachment trial without the strongest probable cause, and he was not
willing to take as probable cause the strongest ex parte testimony
where the opposite party had not been heard. Mr. John S. Caskie, of
Virginia, cited the precedents in the cases of Judge Peck and Warren
Hastings, and while not claiming that it was absolutely
-----------------------------------------------------------------------
\1\ Third session Thirty-fourth Congress, Journal pp. 347, 381, 507;
Globe, pp. 542, 627-630, 797, 798; Report No. 175.
\2\ At that time such a report does not seem to have been held
privileged.
Sec. 2496
incumbent for a committee charged with the consideration of a memorial
praying an impeachment to give notice to the person against whom the
charges were made and allow him to cross-examine witnesses before them,
yet such was evidently the fair and judicious course.
Mr. George A. Simmons, of New York, speaking for the committee, said:
I am perfectly aware that in many such cases, in perhaps the majority
of cases of impeachment, the party accused has been before the
committee just as both parties are sometimes examined before
magistrates. But there have been one or two cases in the House where
the party accused has not been before the committee. It seems to me to
be the opinion of the House--and probably well-founded on the
Constitution--that a judge can not be displaced incidentally by
remodeling his jurisdiction, or anything of that sort, although it was
once done by Mr. Jefferson on a very large scale, to the satisfaction
of the Democratic party. Notwithstanding that, the committee have come
to the conclusion that it is the sense of the House, as it is
undoubtedly the opinion of commentators, such as Judge Story, that
there is no way to get rid of a judge, however unpopular he may be,
however destitute he may be of the confidence of the people, unless by
impeachment. The committee think that an impeachment ought to lie in
all cues where there is a want of good behavior. It is not necessary to
prove him guilty of high treason, or of highway robbery, or of some
indelicate crime. It is enough that he has not fulfilled his duty as a
judge in all respects so as to entitle himself to the confidence of the
people. * * * It does not always follow that a man must be present when
he is indicted by a grand jury. Neither does it always follow that
because he is indicted he must be convicted. There undoubtedly should
be prima facie evidence sufficient before the grand jury to satisfy
them that the man whom they indict is guilty of the crime, just as
there should be sufficient prima facie evidence in cases of
impeachment--which are analogous--to show that the judge has failed in
good official behavior.
Mr. Abram Wakeman, of New York, said:
The evidence is almost entirely of a documentary character, and if
there is no other reason that alone would absolve the committee from
the necessity of calling Judge Watrous before them. They are also of
opinion that it was not within their province or their duty, in
reference to the charge placed in their hands, to compel or require the
attendance of Judge Watrous at this stage of the proceeding. They were
called upon to inquire whether there was a prima facie case of
corruption against him. If there was, they considered it their duty to
present him before the Senate of the United States, where his case
could be properly heard and tried. If * * * we were under an obligation
to investigate and pronounce a decision upon this case, Judge Watrous
would have two trials--first, before the Committee on the Judiciary,
where he would be under the necessity of calling witnesses and counter
witnesses, and the committee would stand in the capacity of judges, in
the first instance, to try the guilt or innocence of Judge Watrous. * *
* In one case of impeachment alone, where a judge was charged with high
crimes or misdemeanors, was he summoned before the committee prior to
the presentation of his case to the House.
Mr. Wakeman later stated this case specifically--that of Judge
Pickering.
The House, without division, decided that the testimony should be
printed, and that the consideration of the resolution should be
postponed to Saturday, February 21.
On that day it was announced that a delay had occurred at the
printing office and the testimony had not yet been printed. Mr. Caskie
urged that the matter should be allowed to go over to the next
Congress. A few days only remained of this Congress, and if they should
agree to the resolution of impeachment new men would have to carry on
the trial, as very few of this House were elected to the next, and not
a single member of the Judiciary Committee had been returned.
Mr. Barbour, however, moved that the matter be postponed to Saturday,
February 28, and this motion was agreed to.
But on February 28 only three legislative days remained to the
Congress, and the resolution was not considered.
Sec. 2497
2497. The Watrous investigation continued.
In 1857 memorials before the House in a preceding Congress were
reintroduced as a basis for investigation of the conduct of Judge
Watrous.
The Watrous investigation of 1857 was limited in its scope by the
withdrawal from the Judiciary Committee of a memorial containing
certain charges.
In the Watrous investigation of 1857, the committee being equally
divided, reported the evidence and two propositions, each supported by
minority views.
In the investigation of 1857 the committee formally permitted Judge
Watrous to file a written explanation and cross-examine witnesses in
person or by counsel.
The committee investigating Judge Watrous, in 1857, appears to have
informally permitted the accused to adduce testimony.
Discussion of the proper mode of examination in an investigation with
a view to impeachment.
In the Watrous investigation of 1857 the written explanation of the
accused was printed as part of the report.
An argument that judges may be impeached for any breach of good
behavior.
After the report on his conduct by a committee, Judge Watrous
presented to the House a memorial embodying his defense, and it was
ordered printed and laid on the table.
At the beginning of the next Congress, on December 17, 1857,\1\ Mr.
Guy M. Bryan, of Texas, presented the memorial of Eliphas Spencer,
praying for the impeachment of Judge Watrous; and on the next day \2\
Mr. Miles Taylor, of Louisiana, reintroduced the memorial of Jacob
Mussina, which had been presented in the preceding Congress.
On January 15, 1858,\3\ Mr. George S. Houston, of Alabama, from the
Committee on the Judiciary, presented this resolution, which was agreed
to:
Resolved, That the Committee on the Judiciary be authorized to send
for persons and papers and examine witnesses on oath in relation to the
charges made against John C. Watrous, judge of the United States court
for the western district of the State of Texas.
On February 18 \4\ Mr. Bryan presented resolutions of the legislature
of Texas, which were referred to the Judiciary Committee; and on
February 23 \5\ Mr. John H. Reagan, of Texas, presented the memorial of
William Alexander on the same subject, and it was referred to the same
committee.
On May 15 \6\ Mr. Horace F. Clark, of New York, from the Committee on
the Judiciary, moved that that committee be discharged from the further
consideration of the memorial of William Alexander. He said that in
investigating the charges
-----------------------------------------------------------------------
\1\ First session Thirty-fifth Congress, Journal, p. 81.
\2\ Journal, p. 85.
\3\ Journal, p. 175; Globe, p. 304.
\4\ Journal, p. 404; Globe, p. 782.
\5\ Journal, p. 412.
\6\ Journal, pp. 826, 835, 836; Globe, pp. 2167-2169, 2195.
Sec. 2497
made in the memorials of Jacob Mussina and Eliphas Spencer the
committee had taken up the matter de novo, as they were not satisfied
with the methods of the committee in the preceding Congress. But they
found that the allegations in the memorial of Alexander had been
investigated by the committee in the Thirty-second Congress, and the
committee had reported against impeachment proceedings. Therefore, with
the great amount of labor involved in hearing the other charges, the
committee did not wish to pursue the Alexander charges. It was urged
also that the committee in the preceding Congress had taken no notice
of the Alexander charges. Mr. John H. Reagan urged that the Alexander
charges should be investigated, especially in the view that articles of
impeachment might be prepared.
The House, on May 17, agreed to the motion of Mr. Clark that the
committee be discharged.
On June \1\ Mr. Houston presented the report of the committee, which
was simply to the effect that they were equally divided, one portion
recommending a resolution that Judge Watrous be impeached and the other
portion a resolution that the testimony did not afford sufficient
grounds for impeachment.
On June 7 \2\ both portions of the committee, by permission of the
House, presented minority views, which gave the respective opinions of
the two portions.
The regular report, although giving no opinions, was accompanied by
the record of the evidence and also by record of certain proceedings.
It appears that on January 8 \3\ Mr. Houston, chairman of the
committee, addressed a letter to Judge Watrous informing him of the
reference of the memorials, and notifying him that the subject-matter
would be taken up on February 2, next. To this Judge Watrous replied:
I most respectfully ask to be informed whether, at the approaching
investigation by the committee, * * * I may be permitted to be present,
together with my counsel. And I also desire to be informed whether the
investigation will be confined to the testimony against me, or will be
extended to all sources of information which are necessary to a proper
understanding of the case. * * * Should a full and fair investigation
of both sides of the case be determined on, I should take great
pleasure (if permitted to do so) in furnishing a list of witnesses,
whose testimony will put the whole case before the committee.
To this the committee replied by this resolution:
Resolved, That Hon. John C. Watrous be informed that the Committee on
the Judiciary will, on Tuesday, the 2d day of February, 1858, take up
for investigation and action the memorials of Jacob Mussina and Eliphas
Spencer, and that the committee will receive from the said John C.
Watrous at any time previous to the said 2d day of February any
explanation in writing relative to the charges contained in said
memorials, and that after having made such communication in answer to
said charges, the said John C. Watrous will be permitted by himself or
counsel to cross-examine witnesses who may be examined before said
committee.
Mr. Horace F. Clark, of New York, one of the four members of the
committee who found against impeachment, while concurring with his
three associates on the question of fact, filed supplemental views, in
which he said: \4\
I am not satisfied to vote an impeachment upon the ascertainment of
what is commonly termed probable causes; nor do I regard the principles
of common law relative to proceedings before grand juries applicable to
cases of impeachment under the Constitution of the United States. The
House of
-----------------------------------------------------------------------
\1\ Journal, p. 1004; Globe, p. 2659; House Report No. 540.
\2\ Journal, p. 1045; Globe, p. 2774; House Report No. 548.
\3\ Report No. 540, p. 14.
\4\ House Report No. 548, p. 30.
Sec. 2497
Representatives ought, in my judgment, to look beyond a prima facie
case, and failing to discover in the evidence disclosed any fact
inconsistent with judicial integrity on the part of Judge Watrous, and
finding satisfactory explanations of the circumstances from which
suspicions of such integrity may have arisen, should decline subjecting
the accused to the expense and hazard of an impeachment.
Although the committee did not give in express terms permission for
Judge Watrous to call witnesses on his own behalf, yet he did so. One
witness, Robert Hughes, was called and examined in chief by Judge
Watrous, and afterwards crossexamined by the committee.\1\ And also
Robert Hughes, apparently the same person, was on March 2 \2\ given
leave by the committee to appear as counsel for Judge Watrous. With him
as counsel was associated Mr. Caleb Cushing.\3\
In the course of a later debate, Mr. Mason W. Tappan, of New
Hampshire, a member of the committee, said :\4\
Testimony was taken on both sides. A long and tedious examination was
had. Judge Watrous was permitted to come in and defend his cause and to
produce witnesses.
And Mr. Horace F. Clark, of New York, another member of the
committee, said further: \5\
The committee determined that it was their province * * * to look
into the facts of the case beyond the point necessary to ascertain
whether there did or did not exist that technical probable cause which,
under the well-settled principles of the common law, justifies a
magistrate in holding a person for trial, or may, perhaps, justify a
grand jury in finding a bill of indictment. * * * The committee
applied, in its broadest sense, that generous maxim, audi alteram
partem. * * * They determined to break down all the barriers which, it
is admitted by professional men, the rigid rules of the common law
sometimes throw in the way of the search after truth.
Judge Watrous's explanation, which treated only questions of fact,
was printed as part of the report.
The minority views signed by the four members favoring impeachment,
Messrs. Henry Chapman, of Pennsylvania; Charles Billinghurst, of
Wisconsin; Miles Taylor, of Louisiana, and George S. Houston, of
Alabama, found from the evidence \6\----
That while holding the office of district judge of the United States
he engaged with other persons in speculating in immense tracts of land
situated within his judicial district, the titles to which he knew were
in dispute, and where litigation was inevitable.
That he allowed his court to be used as an agent to aid himself and
partners in speculation in land and to secure an advantage over other
persons with whom litigation was apprehended. That he sat as judge on
the trial of cases where he was personally interested in questions
involved, to which may be added a participation in the improper
procurement of testimony to advance his own and partner's interests.
Also they concluded as to another charge urged against him:
Every irregular and wrongful decision of the judge [in the Cavazos
case dealt with in the Mussina memorial] was in favor of the
complainants and against the defendant, Mussina, and those occupying a
similar position, and was to their particular injury. By maintaining
the proceeding as one rightfully brought on the chancery side of the
court, these defendants were illegally deprived of their right to a
trial by jury, and were compelled to submit to an adjudication upon
their rights to the property in such a manner that the decision would
be final and conclusive as to the title of the property, instead of one
upon the right of possession, which would at once have been pronounced,
on the law side of the court, in an action of ejectment. By maintaining
jurisdiction over the case, when a portion of the defendants
-----------------------------------------------------------------------
\1\ Report No. 540, pp. 38-76.
\2\ Page 77 of Report.
\3\ Pages 185, 230 of Report.
\4\ Globe, second session Thirty-fifth Congress, p. 17.
\5\ Globe, p. 39.
\6\ Report No. 548, pp. 14, 23, 24.
Sec. 2497
as well as plaintiffs were aliens, these defendants were deprived of
their rights to have the questions involved in it decided by the courts
of Texas, to whose jurisdiction they were rightfully amenable, and
whose laws were to govern in that decision. By admitting incompetent
witnesses to testify, their rights were affected by evidence given by
persons who had an interest in the litigation adverse to theirs. And,
finally, they are prevented from having the decision against them
reviewed in the appellate court by the failure of the judge to perform
his full duty to them in facilitating the exercise of the right of
appeal, given to them by law, from motives of public policy, for their
own private advantage, and that, too, when there is some reason to
believe that the decree by the court is not in conformity with the
principles of law as recognized in Texas. Such a course of action
continued through the whole progress of a cause, in favor of some of
the parties and against others, is, to our minds conclusive evidence of
the existence of a purpose on the part of the judge to favor one party
or set of parties at the expense and to the injury of others, which is
inconsistent with an upright, honest, and impartial discharge of the
judicial functions. And this, we believe, constitutes a breach of the
``good behavior'' upon which, by the Constitution, the tenure of the
judicial office is made to depend.
The Constitution of the United States declares that ``the judges,
both of the Supreme and inferior courts shall hold their offices during
good behavior.'' Does not this necessarily imply that their offices are
to determine, and they are to be removed when they are guilty of a
breach of ``good behavior?'' Clearly so. But how are they to be
removed? No power of removal is vested in the Executive, nor is there
any provision in the Constitution of the United States like that to be
found in many if not all the State constitutions, by which the
Executive is authorized to remove on the address of two-thirds of the
members of the two houses of the legislature. The only mode of removal
of judges known to the Constitution is by impeachment, and it therefore
necessarily follows that whenever a judge has, in the course of his
official conduct, been guilty of actions which are inconsistent with an
impartial discharge of the high duties intrusted to him, then it is
both the right and duty of this House to proceed in the only way known
to the Constitution to effect the removal of the magistrate who misuses
or abuses the trust reposed in him for the public good.
The other minority views, concurred in by Messrs. Charles Ready, of
Tennessee; Mason W. Tappan, of New Hampshire; Burton Craige, of North
Carolina, and Horace F. Clark, of New York, concluded from an
examination of the testimony that many of the charges were ``utterly
frivolous,'' that some of them were not proven or attempted to be
proven, and ``that none of them establish, import, or imply, upon the
evidence, the commission of any act of malfeasance in office, nor any
high crime or misdemeanor.'' The four members saw nothing in the case
but the ``resentfulness of two disappointed litigants.''
One minority had recommended this resolution:
Resolved, That John C. Watrous, United States district judge for the
district of Texas, be impeached of high crimes and misdemeanors.
The other minority recommended:
Resolved, That the testimony taken before the Committee on the
Judiciary in the case of the Hon. John C. Watrous, judge of the
district court of the United States for the eastern district of Texas,
is insufficient to justify the preferment of articles of impeachment
against him for high crimes and misdemeanors in office.
On June 10,\1\ at the suggestion of the Judiciary Committee, the
House postponed further consideration of the subject to the next
session of Congress.
At the same time a memorial from Judge Watrous, which had already
been placed on the desks of Members and appears to have embodied a
defense of his conduct, was ordered to be laid on the table and
printed.
-----------------------------------------------------------------------
\1\ Journal, pp. 1075, 1076; Globe, pp. 2908-2910.
Sec. 2498
2498. The Watrous investigation continued.
In the Watrous case the House discussed whether or not ascertainment
of probable cause justified proceeding in impeachment.
As to what are impeachable offenses was a subject of argument in the
Watrous case.
After the investigation of 1857 the House decided that the evidence
did not justify the impeachment of Judge Watrous.
At the next session the subject was debated at length from December 9
to 15.\1\ The principal portion of the debate was on the strength of
the evidence to sustain the facts alleged; but two other questions were
touched on at some length:
1. Whether the ascertainment of probable cause was sufficient ground
for the House to proceed in an impeachment.
Messrs. Chapman and Houston argued \2\ at some length in opposition
to the views advanced by Mr. Clark. Mr. Clark \3\ had argued that the
case could not be sent to the Senate on proof short of what would be
sufficient to convict. Mr. Houston combated that view, referring to the
argument of Mr. Wirt in the Peck trial as conclusive on the point that
the action of the House was similar to that of a grand jury; that while
the investigation of the House was not necessarily ex parte, the office
of the House was not to ascertain whether the party was guilty or
innocent of the charges preferred against him, but whether the proof
was sufficient to make the case worthy of a further trial. Mr. Chapman
called attention to the fact that the trial of the case belonged to the
Senate under the Constitution and to the Senate alone. If the House
advanced one step beyond the ascertainment of probable cause it was
plunged into the trial. The House, in the exercise of its discretion,
might examine witnesses on both sides, but there must be a boundary
line marking the powers of the House and Senate, and there was no line
to be observed, except the ascertainment of probable cause. ``Such I
understand to have been the views,'' he said, ``entertained in the case
of Judge Peck and the case of Judge Chase, of Macclesfield in 1705, in
the case of Warren Hastings in 1778, and of Lord Melville in 1805.
Probable cause is such a state of facts and circumstances as would
induce a cautious man to believe that the party charged is guilty of
the offense.\4\
2. As to what are impeachable offenses.
The point was argued at considerable length. In his memorial to the
House Judge Watrous had made the point that impeachable acts were only
such as were also punishable by the ordinary laws of the land. This
view was sustained in argument by Messrs. James A. Stewart, of
Maryland,\5\ Clark B. Cochrane, of New York,\6\ and Alexander H.
Stephens, of Georgia .\7\
On the other hand, Messrs. John Cochrane, of New York,\8\ Miles
Taylor, of
\1\ Second session Thirty-fifth Congress, Journal, pp. 56, 69; Globe,
pp. 12, 21, 31, 56, 78, 95-102.
\2\ Globe, pp. 16, 99.
\3\ Mr. Clark's view was upheld by Mr. James A. Stewart, of Maryland,
Globe, p. 38.
\4\ Mr. Clement L. Vallandigham, of Ohio, held this view also, Globe,
p. 85.
\5\ Globe, pp. 37, 38.
\6\ Globe, p. 84.
\7\ Globe, pp. 95, 96.
\8\ Globe, p. 56.
Sec. 2499
Louisiana,\1\ Clement L. Vallandigham, of Ohio,\2\ and John A. Bingham,
of Ohio,\3\ argued that the power of impeachment was broader, and went
to an ascertainment of whether or not he had offended against the
dignity of the people of the United States, transgressed the grave
obligations of his office, or soiled the purity of the ermine. Mr.
Bingham discussed especially the precedent of the Peck trial in this
particular.
On December 15 \4\ a motion was made to strike out all after the word
``resolved'' in the resolution for impeachment, and insert the text of
the second minority resolution, declaring the testimony insufficient to
justify impeachment. This amendment was agreed to, yeas 111, nays 91.
Then the resolution as amended was agreed to, yeas 112, nays 87.
So the House decided that the evidence did not justify impeachment
proceedings.
2499. The Watrous investigation continued.
Memorials which had been before preceding Congresses were
reintroduced as a basis of the Watrous investigation of 1860.
A minority of the Judiciary Committee were authorized to take
testimony in the Watrous case.
In the Watrous investigation of 1860 the Judiciary Committee
proceeded ex parte.
In the Watrous investigation of 1860 the Judiciary Committee, without
special leave, considered the evidence and reports in preceding
Congresses relating to this case.
The Judiciary Committee reported, in 1860, in favor of the
impeachment of Judge Watrous.
On March 8, 1860,\5\ during the next Congress, the memorial of Jacob
Mussina was again introduced by Mr. Miles Taylor, of Louisiana, and
that of Eliphas Spencer was presented by Mr. Andrew J. Hamilton, of
Texas; and on March 12 \6\ the memorial of William Alexander, first
presented in 1851, was again presented by Mr. Hamilton. All these
papers were referred to the Committee on the Judiciary.
On March 28 \7\ the House gave the Judiciary Committee authority to
send for persons and papers and to examine witnesses on oath or
affirmation.
On May 18 \8\ Mr. John Hickman, of Pennsylvania, stated that the
committee found itself obliged to sit during sessions of the House, and
therefore it was very difficult to keep a quorum. Hence he proposed
this resolution, which was agreed to by the House without objection:
Resolved, That a minority of the Committee on the Judiciary be, and
are hereby, authorized to take the testimony of all witnesses in the
matter of the petitions heretofore referred to said committee praying
the impeachment of Hon. John C. Watrous, a judge of the United States
for the eastern district of Texas.
On May 21 \9\ the House empowered the committee to print the memorial
and testimony taken and to be taken in the case.
-----------------------------------------------------------------------
\1\ Globe, pp. 60, 61.
\2\ Globe, p. 85.
\3\ Globe, p. 90.
\4\ Journal, pp. 69-71; Globe, p. 102.
\5\ First session Thirty-sixth Congress, Journal, p. 476.
\6\ Journal, p. 493.
\7\ Journal, p. 607.
\8\ Journal, p. 856; Globe, p. 2171.
\9\ Journal, p. 877; Globe, p. 2215.
Sec. 2499
On December 17, 1860,\1\ at the second session of the Congress, Mr.
John H. Reynolds, of New York, asked unanimous consent to submit the
report of the committee.\2\ Mr. Horace Maynard, of Tennessee, reviewed
the former proceedings in this case, intimated that the Committee on
the Judiciary had been organized to further this impeachment, and
declared that the time of the session was required for ``the gravest
and most important questions, going to the very existence and
perpetuity of our Union.'' Therefore he objected.
On December 20 \3\ Mr. Reynolds submitted the report, which
concluded:
Resolved, That John C. Watrous, United States district judge for the
eastern district of Texas, be impeached for high crimes and
misdemeanors.
The committee say in their report:
That in view of the previous proceedings touching the matters
committed to them, they entered upon the investigation at the first
session of the present Congress in the belief that it was of the
highest importance to the public interest, as well as to the accused,
that some definite result should be reached, and some action taken
which should be regarded as final. In the Thirty-fifth Congress much
time was expended by the Judiciary Committee in the investigation of
the charges preferred, upon which Judge Watrous was heard by person and
by counsel before the committee, a large amount of testimony was taken,
and the committee were equally divided on the question of impeachment.
The House, upon a consideration of the case, refused to adopt the
resolution for an impeachment. Upon the present investigation the
committee came to the conclusion to proceed ex parte, and they have
accordingly taken additional evidence only in support of the charges
against the accused. They have also considered the evidence before them
taken during the Thirty-fifth Congress and the reports made to the
House thereon, * * * and their proceedings are more properly to be
regarded as a continuation of the former investigation than as an
entirely original one. The additional evidence taken by the committee
during the present Congress in respect to the charges upon which four
members of the Judiciary Committee of the Thirty-fifth Congress
recommended the adoption of a resolution of impeachment does not
materially change the facts as they then appeared. But considerable
evidence has been produced showing the connection of Judge Watrous with
transactions of a character unfitting a judicial officer or an honest
man, and which may not only present an independent ground of
misbehavior deserving impeachment, but tends also to shed light upon
the nature of his associations and private interests.
The committee adopt the conclusions of the four members who favored
impeachment in the preceding Congress as to the charges in the Mussina
and Spencer memorials, and then proceed to discuss the charges of the
Alexander memorial, which they consider established and as justifying
impeachment.
The report was postponed to December 27 but was not taken up on that
day, and thereafter successive attempts to take it up on January 16,
January 21, and January 28, 1861, failed,\4\ through the objections of
individual Members.
The Congress expired on March 3 and the report was not considered.
Amos Morrell was appointed judge on February 5, 1872, for the eastern
district of Texas, and the records of the State Department show that
this was the first appointment after the investigation of Judge
Watrous.
-----------------------------------------------------------------------
\1\ Second session Thirty-sixth Congress, Globe, p. 105.
\2\ In the later practice such reports are privileged.
\3\ Journal, p. 106; Globe, p. 159; Report No. 2.
\4\ Globe, pp. 411, 499, 599, 600.
Sec. 2500
2500. The investigation of the conduct of Judge Thomas Irwin in 1859.
Judge Irwin having resigned before the report of an investigation,
the House discontinued proceedings.
On January 13, 1859,\1\ the House authorized the Judiciary Committee
to investigate charges made against Judge Thomas Irwin, of the United
States district court of the western district of Pennsylvania. On
January 28 \2\ Mr. George S. Houston, of Alabama, reported from that
committee that pending the investigation, ``they had satisfactory
evidence before them that the said judge had this day resigned his said
office, and that the committee now ask the further direction of the
House.''
There was some discussion as to the publication of the testimony
already taken; but as it had been taken only on one side it was thought
best not to print it. Then, on motion of Mr. John S. Phelps, of
Missouri, it was--
Ordered, That the said committee be discharged from the further
consideration of the subject, and that the same be laid on the table.
2501. The investigation into the conduct of Henry A. Smythe,
collector of the port of New York.
The House declined to institute impeachment proceedings before a
committee had examined specially whether or not there was ground for
impeachment.
A question as to the expediency of impeaching an officer removable by
the Executive.
It is for the House to say whether or not a person whose conduct is
being investigated shall be allowed to appear before the committee by
counsel.
The House declined to ask of the Executive the removal of an officer
whom a committee had found delinquent.
On March 15, 1867,\3\ the House had directed the Committee on Public
Expenditures to inquire into the conduct of Henry A. Smythe, collector
of the port of New York, and to report thereon to the House if in their
opinion the said Smythe had been guilty of bribery or other crimes and
misdemeanors.
On March 25, 1867,\4\ the Speaker, by unanimous consent, laid before
the House a letter from Mr. Smythe, requesting that he might be
permitted to appear with counsel to produce and examine witnesses
before the committee.
Thereupon, Mr. Samuel J. Randall, of Pennsylvania, proposed the
following:
Resolved, That the request of Henry A. Smythe, now collector of the
port of New York, asking the privilege and permission to appear by
counsel before the Committee on Public Expenditures, in defense of his
conduct as collector, now being examined into by said committee, be
granted.
Considerable discussion was occasioned by this proposition. It was
urged that it was not the custom of the House to allow persons
implicated by investiga-
-----------------------------------------------------------------------
\1\ Second session Thirty-fifth Congress, Journal, p. 178; Globe, p.
360.
\2\ Journal, p. 278; Globe, p. 656.
\3\ First session Fortieth Congress, Journal, pp. 51, 111; Globe, pp.
334-336.
\4\ Journal, pp. 111, 112; Globe, pp. 334-336.
Sec. 2501
tions before a committee to appear, especially by counsel, and Mr.
Hulburd, while saying that his committee had allowed any person to come
before them and produce witnesses under such circumstances, yet they
had not allowed counsel, and should not do so without the consent of
the House. Mr. John Covode, speaking from experience as chairman of an
important investigating committee, said that he never allowed parties
to appear by counsel except in one case, when Judge Black, a member of
Mr. Buchanan's cabinet, was allowed counsel in a case where he was
indirectly interested. On the other hand, it was recalled that in the
Thirty-ninth Congress both Mr. Conkling and General Fry had appeared
before the investigating committee by counsel; that in the
investigation of the infringement of the privileges of the House by
General Houston, he was allowed to appear with counsel; in the Thirty-
seventh Congress a Member against whom charges had been made was
allowed to appear by counsel; in the Thirty-fifth Congress Judge
Watrous had also appeared with counsel, and also in a former Congress
Judge Irwin had done the same. Mr. John A. Bingham, of Ohio, argued
that the House ought always to judge of the propriety of allowing the
official under investigation to appear; but in this case, of a
subordinate officer of the Government, incapable in the nature of
things of influencing the House or its committee, he should be allowed
to appear by counsel.
The House, by a vote of 80 yeas to 35 nays, voted to suspend the
rules for the consideration of the resolution, and then agreed to it.
On March 21, 1867,\1\ Mr. Calvin T. Hulburd, of New York, from the
Committee on Public Expenditures, had reported this resolution:
Resolved, That it is the sense of this House that Henry A. Smythe
should be immediately removed from the office of collector of the port
of New York, and that the Clerk of the House cause a certified copy of
this resolution to be laid before the President of the United States.
Objection was made by Mr. Benjamin F. Butler, of Massachusetts, that
the House should not request from the Executive the removal of any
officer, but should proceed by impeachment. On March 22 \2\ Mr.
Thaddeus Stevens, of Pennsylvania, moved to amend by striking out all
after the word ``Resolved,'' and inserting--
That it is the sense of this House that Henry A. Smythe, collector of
the port of New York, ought to be impeached; and that the Committee on
Public Expenditures proceed forthwith to prepare articles of
impeachment.
Objection was made to this amendment, especially by Mr. Samuel
Shellabarger, of Ohio, that there was no precedent in the history of
the Government for proceeding to an impeachment without investigation
by a committee charged with finding whether or not there was ground for
articles of impeachment. A question was also raised by Mr. Fernando
Wood, of New York, as to whether the House ought to proceed to impeach
an officer whom the President (or the President and Senate as provided
under the tenure of office act) could remove. The right of the House to
impeach such an officer was not disputed, but the expediency was
questioned.
-----------------------------------------------------------------------
\1\ Journal, p. 80; Globe, pp. 255, 256.
\2\ Globe, pp. 282-285.
Sec. 2502
In accordance with the suggestions made, Mr. Stevens modified his
amendment to read as follows:
That the testimony taken by the Committee on Public Expenditures
relating to the conduct of Henry A. Smythe, collector of the port of
New York, be referred to the said committee, with a view to ascertain
whether or not said Smythe has been guilty of high crimes and
misdemeanors sufficient to justify his impeachment; and if said
committee find from that and other evidence that he has been thus
guilty, then to proceed and prepare articles of impeachment, and report
the same to this House; and that they have leave to send for persons
and papers.
On March 22 and 23 \1\ this amendment was considered and agreed to.
The resolution as amended was then agreed to also.
On February 20, 1868,\2\ on motion of Mr. Hulburd, the House agreed
to a resolution empowering the committee to inquire into the receipts
of Mr. Smythe in his official capacity, with authority to send for
persons and papers.
It does not appear that the committee reported.
2502. The proposition to inquire into the conduct of William B. West,
consul at Dublin.
The House declined to order an investigation of Consul West on
evidence presented by a Member and referred the subject to a committee.
Mr. Speaker Colfax held that in order to be received as privileged a
resolution must positively propose impeachment.
On December 2, 1867,\3\ Mr. William E. Robinson, of New York,
proposed as a question of privilege this resolution:
Resolved, That the Committee on Foreign Affairs be instructed to
inquire into the conduct of William B. West, American consul at Dublin,
in Ireland, regarding American prisoners in that city, and to report
thereon forthwith, to the end that if he has been guilty of conduct
which would be liable to impeachment this House may take measures to
have articles of impeachment presented to the Senate.
Mr. John F. Farnsworth, of Illinois, raised the question of order
that no question of privilege was involved.
The Speaker \4\ held that as the resolution did not positively
propose impeachment, it did not present a question of privilege.
Thereupon Mr. Robinson modified the resolution to read as follows:
Resolved, That William B. West, consul of the United States at
Dublin, Ireland, be impeached before the Senate.
Mr. Robinson presented copies of correspondence between Mr. West and
one Patrick J. Condon, who had been held as a political prisoner in
Ireland, and other documents, which he considered as showing that Mr.
West had not been sufficiently aggressive in maintaining the rights of
American citizens abroad.
After debate on the general question of the rights of citizenship,
the resolution was, on motion of Mr. Nathaniel P. Banks, of
Massachusetts, referred to the Committee on Foreign Affairs.
It does not appear that further action was taken.
-----------------------------------------------------------------------
\1\ Journal, pp. 89, 95; Globe, pp. 294, 289, 290.
\2\ Second session Fortieth Congress, Journal, pp. 371, 372.
\3\ Second session Fortieth Congress, Journal, p. 9; Globe, pp. 3-9.
\4\ Schuyler Colfax, of Indiana, Speaker.
Sec. 2503
2503. The House, on the strength of a newspaper statement, ordered an
investigation looking toward the impeachment of a justice of the
Supreme Court.--On January 30, 1868,\1\ Mr. Glenni W. Scofield, of
Pennsylvania, by unanimous consent, presented the following:
Whereas it is editorially stated in the Evening Express, a newspaper
published in this city, on the afternoon of Wednesday, January 29, as
follows:
``At a private gathering of gentlemen of both political parties, one
of the justices of the Supreme Court spoke very freely concerning the
reconstruction measures of Congress, and declared in the most positive
terms that all these laws were unconstitutional, and that the court
would be sure to pronounce them so. Some of his friends near him
suggested that it was quite indiscreet to speak so positively, when he
at once repeated the views in a more emphatic manner.''
And whereas several cases under said reconstruction measures are now
pending in the Supreme Court: Therefore,
Resolved, That the Committee on the Judiciary be directed to inquire
into the truth of the declarations therein contained, and to report
whether the facts as ascertained constitute such a misdemeanor in
office as to require this House to present to the Senate articles of
impeachment against said ``justice of the Supreme Court,'' and the
committee may have power to send for persons and papers, and have leave
to report at any time.
Objection was made that a newspaper charge was insufficient ground
for action by the House. Mr. Scofield disclaimed any knowledge himself.
The House agreed to the preamble and resolution, yeas 97, nays 57.
On June 18 \2\ Mr. George S. Boutwell, of Massachusetts, by
instructions of the committee, moved that it be discharged from further
consideration of the resolution, and that the same be laid on the
table. This motion was agreed to without division or debate.
2504. The impeachment of Mark H. Delahay, United States district
judge for Kansas.
The House voted to investigate the conduct of Judge Delahay after the
Judiciary Committee had examined the charges in a memorial.
The Judiciary Committee was empowered in the Delahay ease to take
testimony in Kansas through a subcommittee.
In the investigation into the conduct of Judge Delahay he was
permitted to present testimony.
On March 19, 1872,\3\ Mr. Benjamin F. Butler, of Massachusetts, from
the Committee on the Judiciary, proposed a resolution, which was agreed
to without debate:
Resolved, That the Committee on the Judiciary be, and they are
hereby, authorized to send for persons and papers, to administer oaths,
and to take testimony in the matter of the memorial and charges against
Mark H. Delahay, district judge of the United States district for the
State of Kansas.
On May 28 \4\ Mr. John A. Bingham, of Ohio, from the Judiciary
Committee, reported the following resolution, which was agreed to:
Resolved, That the Committee on the Judiciary be directed to further
investigate the charges against the character and official conduct of
M. H. Delahay, United States district judge for the district of Kansas,
and for that purpose a subcommittee shall be authorized to sit during
the recess of Congress,
-----------------------------------------------------------------------
\1\ Second session Fortieth Congress, Journal, p. 274; Globe, p. 862.
\2\ Journal, pp. 881, 882; Globe, p. 3266.
\3\ Second session Forty-second Congress, Journal, p. 538; Globe, p.
1808.
\4\ Journal, pp. 989, 990; Globe, p. 3926.
Sec. 2505
and may proceed to Kansas, subpoena witnesses, send for persons and
papers, administer oaths, take testimony, and employ a clerk and
reporter, the expense of which shall be paid from the contingent fund
of the House on the order of the chairman.
In another case, relating to Judge Charles T. Sherman, Mr. Butler,
citing the case of Judge Delahay, said that this subcommittee heard in
Kansas such witnesses as Judge Delahay chose to have summoned.\1\
2505. Delahay's impeachment continued.
The House, without division, voted to impeach Judge Delahay for
improper personal habits.
The House voted the impeachment of Judge Delahay at the end of one
Congress, intending to present articles in the next.
Forms and ceremonies for carrying of the impeachment of Judge Delahay
to the Senate.
The Speaker gave the minority party representation on the committee
to carry the impeachment of Judge Delahay to the Senate.
The impeachment of Judge Delahay was carried to the Senate by a
committee of three.
On February 28, 1873,\2\ Mr. Butler reported this resolution from the
Judiciary Committee:
Resolved, That a committee of three be appointed to go to the Senate,
and at the bar thereof, in the name of the House of Representatives,
and of all the people of the United States, to impeach Mark H. Delahay,
judge of the United States district court for the district of Kansas,
of high crimes and misdemeanors in office, and acquaint the Senate that
the House of Representatives will, in due time, exhibit particular
articles of impeachment against him and make good the same, and that
the committee do demand that the Senate take order for the appearance
of said Mark H. Delahay to answer to said impeachment.
Two questions arose from this report:
1. Mr. Henry L. Dawes, of Massachusetts, asked if the Judiciary
Committee, in view of the fact that the Congress was about to expire,
had settled the question whether or not the next House of
Representatives could present the articles of impeachment, of which
this House might notify them. Mr. Butler said:
The Committee on the Judiciary do not expect to prepare articles of
impeachment against Judge Delahay and present them for trial at this
session. In the earliest case of impeachment of a judge in this
country, in 1803, the case of Judge Pickering, which was in all
respects like this, this exact question arose and was settled. One
House presented articles of impeachment to the Senate and another House
at the next session prosecuted those articles, as will be done in this
case. We do not expect any other action except the formal presentation
of the articles of impeachment to the Senate. The Senate is a perpetual
court of impeachment, and in presenting these articles we act only as a
grand jury.
2. As to the offense for which the impeachment was to be the remedy,
Mr. Butler stated that--
The most grievous charge, and that which is beyond all question, was
that his personal habits unfitted him for the judicial office; that he
was intoxicated off the bench as well as on the bench. This question
has also been decided by precedent. That was the exact charge against
Judge Pickering, of New Hampshire, who, with one exception, is the only
judge who has been impeached.
Mr. Butler then had read testimony showing that the judge had
sentenced prisoners when intoxicated, to the great detriment of
judicial dignity.
-----------------------------------------------------------------------
\1\ Third session Forty-second Congress, Globe, p. 2123.
\2\ Third session Forty-second Congress, Journal, p. 512; Globe, pp.
1899, 1900.
Sec. 2505
There was also a question as to certain alleged corrupt transactions,
but Mr. Daniel W. Voorhees, of Indiana, said it was not proven to the
satisfaction of several members of the committee that there was any
malfeasance. Mr. Butler said:
The committee agree that there is enough in his personal habits to
found a charge upon, and that is all there is in this resolution.
The resolution of impeachment was then agreed to without division.
On March 3 \1\ the Speaker announced the appointment of Mr. Butler,
Mr. John A. Peters, of Maine, and Mr. Clarkson N. Potter, of New York,
members of the committee. Two of these were members of the majority
party in the House, and the third represented the minority.
On the same day \2\ the committee appeared at the bar of the Senate
and, having been announced, advanced toward the area in front of the
Secretary's desk, and Mr. Butler said:
Mr. President, in obedience to the order of the House of
Representatives, this committee of the House appear at the bar of the
Senate of the United States, and do impeach Mark H. Delahay, district
judge of the United States district court for the district of Kansas,
in the name of the House of Representatives and all the people of the
United States, for high crimes and misdemeanors in office. And we do
further acquaint the Senate, by the order of the House, that the House
will in due time furnish particular articles against said Delahay and
make good the same. And this committee is further charged by the House
to demand of the Senate that they will take order for the appearance of
Mark H. Delahay, as such judge, to answer the same.
The Presiding Officer \3\ said:
The Senate will take order in the premises, of which due notice shall
be given to the House of Representatives.
Later, on the same day, on motion of Mr. George F. Edmunds, of
Vermont, it was
Ordered, That the Secretary inform the House of Representatives that
the Senate will receive articles of impeachment against Mark H.
Delahay, judge of the district court of the United States for the
district of Kansas, this day impeached by the House of Representatives
before it of high crimes and misdemeanors, whenever the House of
Representatives shall be ready to receive the same.
Meanwhile the committee had returned to the House of Representatives,
where Mr. Butler, the chairman, submitted the following written report:
\4\
That, in obedience to the order of the House, the committee have been
to the Senate, and, in the name of the House of Representatives and of
all the people of the United States, have impeached Mark, H. Delahay,
district judge of the United States for the district of Kansas, of high
crimes and misdemeanors; and have acquainted the Senate that the House
of Representatives will, in due time, exhibit particular articles
against him, and make good the same. And further, that the committee
have demanded that the Senate take order for the appearance of the said
Mark H. Delahay to answer to the said impeachment.
A message was also received \5\ in the House from the Senate in these
terms:
The Senate is ready to receive articles of impeachment against Mark
H. Delahay, judge of the United States district court for the State of
Kansas.
No further proceedings took place. On March 10, 1874, as shown by the
records of the State Department, Cassius G. Foster was appointed judge
to fill a vacancy in this district.
-----------------------------------------------------------------------
\1\ Journal, p. 551.
\2\ Senate Journal, pp. 542, 543; Globe, pp. 2153, 2165.
\3\ Henry A. Anthony, of Rhode Island, presiding officer.
\4\ House Report No. 92.
\5\ House Journal, p. 560.
Sec. 2506
2506. The investigation of the conduct of Edward H. Durell, United
States district judge for Louisiana.
Instance wherein the House ordered an investigation of the conduct of
a judge without a statement of charges, but in a case wherein common
fame had made the facts known.
Instances wherein the House gave authority to prepare articles of
impeachment at the time the investigation was ordered.
On January 13, 1873,\1\ Mr. William D. Kelley, of Pennsylvania, moved
that the rules be suspended so as to enable him to submit and the House
to consider and agree to this resolution:
Resolved, That the Judiciary Committee be instructed to inquire into
the conduct of Edward H. Durell, judge of the United States district
court for the district of Louisiana, and ascertain and report whether,
in the opinion of the committee, he has, for the purpose of
overthrowing or controlling the government of the State of Louisiana,
usurped jurisdiction not vested in the said district court by the
Constitution or laws of the United States; and to report articles
proposing the impeachment of the said Edward H. Durell if, in the
judgment of the committee, he has abused his judicial functions by such
usurpation of jurisdiction and unlawful interference with the
constitutional privileges and rights of the people of said State; and
that the committee have power to send for persons and papers.
The question being put, the rules were suspended, and the resolution
was presented. And thereupon it was agreed to, without debate or
division.
On January 21 \2\ Mr. Jeremiah M. Wilson, of Indiana, from the
Committee on the Judiciary, stated that there was some uncertainty in
the resolution first adopted, and asked for the adoption of the
following:
Resolved, That in addition to the inquiries heretofore directed by
the House to be made into the official conduct of Judge E. H. Durell,
the Judiciary Committee be instructed further to inquire whether said
Durell should be impeached for high crimes and misdemeanors in office,
and that said committee have leave to report at any time.
The resolution was agreed to by the House without division.
2507. The Durell investigation continued.
Instance wherein a House committee charged with an investigation
examined testimony taken before a Senate committee.
The Durell investigation was postponed in the Forty-second Congress
because there was no time to permit Judge Durell to present testimony.
On March 3,\3\ the last day of the Congress, Mr. John A. Bingham, of
Ohio, submitted the report of the committee:
That they have examined to some extent the voluminous testimony taken
before the Committee on Privileges and Elections of the Senate of the
United States, and the bills, petitions, processes, and orders pending
before said district court, and the action of said E. H. Durell
thereon; and upon the legality and propriety of that action the most
serious questions arise, and if the time at which this matter was
brought before your committee by testimony permitted that proper
investigation which ought to be had in a subject of so grave
importance, your committee would proceed thereto.
It has been the practice of the Committee on the Judiciary to hear
the accused in matters of impeachment whenever thereto requested, by
witnesses or by counsel, or by both, as in their discretion would seem
proper. Judge Durell has appeared before your committee and asked to be
heard. At
-----------------------------------------------------------------------
\1\ Third session Forty-second Congress, Journal, p. 164; Globe, p.
541.
\2\ Journal, p. 225; Globe, p. 761.
\3\ Journal, p. 583; Globe, p. 2133; House Report No. 96.
Sec. 2508
that hour in the session there was no time in which he could be heard,
and for this reason only no further action has been taken by your
committee.
We therefore report back the resolution with the recommendation that
it be referred to the next House of Representatives for consideration,
and that your committee be discharged from the further consideration
thereof.
The report was laid on the table and ordered printed by the House.
2508. The Durell investigation continued.
A subcommittee, with power to send for persons and papers, was sent
to Louisiana to investigate the conduct of Judge Durell.
A majority of the Judiciary Committee reported in favor of impeaching
Judge Durell, principally for usurpation of power.
At the beginning of the next Congress, on December 17, 1873,\1\ Mr.
Jeremiah M. Wilson, of Indiana, submitted this resolution, which was
agreed to:
Resolved, That the Committee on the Judiciary be, and is hereby,
authorized and directed to inquire and report to the House whether
Judge E. H. Durell, judge of the district court of the United States
for the southern district of Louisiana, shall be impeached for high
crimes and misdemeanors; and that said committee shall have power to
send for persons and papers.
On December 19 \2\ Mr. Benjamin F. Butler, of Massachusetts, from the
Judiciary Committee, reported the following resolution, which was
agreed to by the House:
Resolved, That the Committee on the Judiciary be, and is hereby,
authorized to send a subcommittee of two members of said committee to
New Orleans for the purpose of taking testimony in the matter of the
impeachment of Judge E. H. Durell, heretofore referred to said
committee, and that said subcommittee have power to send for persons
and papers and to employ a stenographer.
Mr. Butler explained that the charges against Judge Durell related to
bankruptcy proceedings, and that unless the committee, should be sent
it might be necessary to have the bankruptcy records brought to
Washington, or have copies of them made. Such a task would be long and
expensive.
On June 17, 1874,\3\ very near the end of the session, Mr. Wilson
submitted the report of the majority of the committee, consisting of
Messrs. Benjamin F. Butler, of Massachusetts; Jeremiah M. Wilson, of
Indiana; Alexander White, of Alabama; Charles A. Eldredge, of
Wisconsin; Clarkson N. Potter, of New York, and Hugh J. Jewett, of
Ohio. The report begins:
Among the charges brought to the notice of your committee were those
of drunkenness and the improper procurement of money by means of his
judicial office. These charges are not sustained by the testimony, in
the opinion of your committee, and therefore will not be further
noticed.
The report finds more serious certain charges relating to the
bankruptcy business of the court. Judge Durell had appointed E. E.
Norton ``official assignee in bankruptcy,'' and the latter had taken
possession of the assets and estates of bankrupts in about 1,300 cases.
``His charges were outrageously extortionate and seem to have been
generally framed to absorb the estate,'' says the report; and it
further cites an order by Judge Durell which prevented scrutiny into
such charges. Norton also was found to have collusion with the
auctioneers who made sales of bankrupt property, receiving more than
$20,000 therefrom. The committee could not trace
-----------------------------------------------------------------------
\1\ First session Forty-third Congress, Journal, p. 141; Record, p.
266.
\2\ Journal, p. 165; Record, p. 337.
\3\ Journal, p. 1218; Record, pp. 5124, 5125; House Report No. 732.
Sec. 2508
these facts directly to the knowledge of Judge Durell, although some
testimony tended to show such knowledge. After citing evidence the
report continues:
The manner in which Norton was managing these affairs and the
extortionate charges he was making were the subject of severe criticism
in the newspapers of the city of New Orleans.
The most intimate social relations existed between Judge Durell and
Norton during all of this time. Judge Durell spent much of his time at
Norton's house in the city of New Orleans. They traveled North together
in the summer and spent much of their time together while North,
returning South again together when the summer was over.
These facts so notorious in regard to the management of so important
trusts as those of the bankrupt estates, when taken in connection with
the order hereinbefore referred to, lead to the inevitable conclusion
by your committee that Judge Durell must have been cognizant of them,
and therefore a corrupt party thereto, or that he was grossly negligent
in the discharge of his official duties, so that, quacumque via data,
he comes under a like condemnation.
And, finally, the report discusses a charge growing out of the
Louisiana election of November 4, 1872. William P. Kellogg, Republican
candidate for governor at that election, filed a bill in the United
States circuit court against the then Governor Warmouth, McEnery, the
Democratic candidate for governor, and certain others, alleging frauds
for the purpose of disfranchising colored voters, and such an illegal
purging of the State registration board as would enable the destruction
of the evidence of the frauds; and therefore Mr. Kellogg prayed that a
writ of injunction should issue, enjoining Warmouth from canvassing the
returns except in the presence of the unpurged returning board, called
the Lynch board. Warmouth filed answer denying the allegations. The
motion for an injunction was heard and submitted on December 4, and on
December 6 Judge Durell granted the injunction restraining Warmouth as
prayed for in the bill. The report, after setting forth these
preliminary facts, continues:
In his opinion the judge speaks of Kellogg's bill as a bill ``to
preserve evidence.'' Assuming that this court had the power, by virtue
of the acts of Congress, to preserve the evidence relating to the
election of State officers, that end would have been answered and that
power exercised by the injunction which prevented the destruction of
the ballots, certificates, and evidences in question; and that was, as
the Senate Committee on Privileges and Elections have said in their
report of January, 1873, ``the utmost that the court had authority upon
this bill to do.'' The Constitution and acts of Congress gave no color
of authority to a Federal court to determine what were the proper
officers of the State or to restrain those who claimed to be so from
action in respect of State matters.
On the 20th of November Warmouth signed an act passed by the last
legislature which until that time he had delayed signing, which act
appointed Wiltz, Deferiet, and others a returning board, and
subsequently he submitted to them the votes and returns, which were
compiled by that board, and they returned certifying the McEnery ticket
as elected, and Warmouth, as governor, on the 4th of December, made
proclamation thereof accordingly.
About these facts there is no dispute whatever.
The legislature thus declared to have been elected were about to
assemble in the State house on the 6th of December. About 9 o'clock on
the evening of the 5th of December Judge Durell sent for S. B. Packard,
the United States marshal for the district. Packard went to his room.
The judge told him to send for Mr. Billings and Mr. Beckwith, Kellogg's
solicitors; that he proposed issuing an order for the occupation of the
State house. The solicitors were sent for; they came, and the judge
told them the same thing, and after some consultation the preparation
of the order was set about. Judge Durell dictated it to Mr. Billings,
who wrote it down, and the marshal's deputy, De Klyne, made a clean
copy of the order thus dictated. The judge then signed it and delivered
it to Packard, who thereupon set about executing it, which he did by
calling on General Emory for a detachment of Federal troops, which
occupied the State house that same night. This occupation resulted in
securing the State gov-
Sec. 2508
ernment to Kellogg. This order declared that, whereas Warmouth had, in
violation of the restraining order herein, issued the following
proclamation and returns of certain persons claiming to be a board of
returning officers, all in violation and contempt of the said
restraining order, as follows, to wit [setting out the proclamation and
returns], and proceeded:
Now, therefore, in order to prevent the further obstruction of the
proceedings in this cause, and further to prevent a violation of the
orders of this court, to the imminent danger of disturbing the public
peace, it is hereby ordered that the marshal of the United States for
the district of Louisiana shall forthwith take possession of the
building known as the Mechanics' Institute, and occupied as the State
house for the assembling of the legislature therein, in the city of New
Orleans, and hold the same subject to the further order of this court;
and meanwhile to prevent all unlawful assemblage therein under the
guise or pretext of authority claimed by virtue of pretended canvass
and returns made by said pretended returning officers, in contempt and
violation of said restraining order; but the marshal is directed to
allow the ingress and egress to and from the public offices in said
building of persons entitled to the same.
E. H. Durell, Judge.
New Orleans, La., December 5, 1872.
And it contained no other pretenses, recitals, or reasons for its
issue.
It will be observed that none of the persons who composed the Wiltz
and Deferiet board were members of the Lynch board, or named or
mentioned in Kellogg's bill or Judge Durell's injunction. The act under
which the Wiltz board was appointed seems to have been wholly
overlooked, and no effort was made to restrain or prevent action under
it; and although the judge declared that his midnight order was
intended to prevent the obstruction of the proceedings in the Kellogg
suit, and the violation of the orders of the court, the fact was these
orders had not been violated nor the proceedings obstructed, nor was it
possible that the canvass and return by the Deferiet board could
obstruct or defeat the proceedings in that case, unless the object of
that case was not, as pretended, to preserve evidences of right, but
really to determine the validity of State elections. But the law had
conferred and could confer no such power on a Federal court, and any
proceedings to that end were necessarily coram non judice and void.
The report discusses at length the alleged usurpation practiced by
Judge Durell, concluding:
Such action, from whatever motive, is at variance with every
principle of good government, is calculated to confound and subvert the
distinctions between the State and Federal governments, and to
overthrow the Constitution itself, without which neither Judge Durell
nor any other judge has any rightful authority whatever.
Therefore the committee reported these resolutions:
Resolved, That Edward H. Durell, judge of the district court of the
United States for the district of Louisiana, be impeached of high
crimes and misdemeanors in office.
Resolved, That a committee of two be appointed to go to the Senate,
and, at the bar thereof, in the name of the House of Representatives
and of all the people of the United States, to impeach Edward R.
Durell, judge of the district court of the United States for the
district of Louisiana, of high crimes and misdemeanors in office, and
acquaint the Senate that the House of Representatives will in due time
exhibit particular articles of impeachment and make good the same; and
that the committee do demand that the Senate take order for the
appearance of said Edward H. Durell to answer to said impeachment.
Resolved, That a committee of seven be appointed to prepare and
report articles of impeachment against Edward H. Durell, judge of the
district court of the United States for the district of Louisiana, with
power to send for persons, papers, and records, and to take testimony
under oath.
Mr. Lyman Tremain, of New York, submitted minority views, which were
concurred in by Messrs. William P. Frye, of Maine; John Cessna, of
Pennsylvania, and Jasper D. Ward, of Illinois, dissenting, from the
majority report and recommending the discontinuance of all proceedings.
Sec. 2509
Mr. Luke P. Poland, of Vermont, filed individual views, saying:
First. In relation to the midnight order, although he believes the
judge had no proper legal jurisdiction to make it, still he is not able
to find that the judge acted corruptly or with any belief that he was
going beyond his jurisdiction in making it. The law under which he
acted was new and no rules or precedents had been established under it.
The whole people were excited, the times were violent and turbulent,
and judicial calmness or correctness could hardly be expected.
Second. The evidence seems to establish that some of the officers of
Judge Durell's court were guilty of very corrupt practices, and that he
was not watchful to scrutinize their conduct, but there is no claim
that he ever shared in any of the proceeds of their gains and no direct
evidence that he knowingly sanctioned or approved their action.
Third. Where the evidence obtained by substantially an ex parte
examination only secures a bare majority of the committee, it does not
appear to me that the public interest will be furthered by presenting
articles of impeachment to the Senate for trial.
A few days after this report was submitted this session of Congress
adjourned without further action on it.
2509. The Durell investigation continued.
Judge Durell having resigned, the House discontinued impeachment
proceedings.
Discussion of the effect of resignation of the officer upon
impeachment proceedings.
Discussion of usurpation of power as a ground for impeachment.
At the next session, on January 7, 1875,\1\ the resolutions came
before the House, and it was then announced that Judge Durell had
resigned his office, and that his resignation had been accepted.
A discussion arose as to two points:
1. As to the sentiments of the committee on the charges against Judge
Durell.
Mr. Benjamin F. Butler said that he had favored impeachment solely
because of the midnight order. He did not consider the other charges
proven. As to the midnight order, he said:
That seemed to me not within the enforcement act. There was no bill
under the enforcement act to put that order in action, but simply a
proceeding to perpetuate testimony. It seemed to me so gross an
exercise of power that if the judge did not know he was exceeding his
powers he ought to have known it. And, in either case, if he did know,
of course he was wrong; and if he did not know, he ought to have known,
and therefore he did not conduct himself well in office. And upon that
ground I voted as I did. * * * He acted upon his own motion, without
any motion or argument before him, and that is what makes the gravamen
of the offense charged against him; for without motion of the counsel
for the complainant on this bill of equity, he, upon his own
consideration and judgment, acted, and without any moving cause except
in his own mind. * * * Now, while I will not hold a judge to be
impeachable where he simply makes a mistake, yet if a judge, clearly
outside of all possible jurisdiction, interferes with the liberty of a
single citizen, I will hold him impeachable.
Mr. Lyman Tremain, of New York, who at the previous session had been
one of the minority dissenting from impeachment, said that he had
studied the case during the recess and had come to the conclusion that
if the resolutions came to a vote he should vote for them, because of
the midnight order. After reviewing the history of that order, Mr.
Tremain said:
Instead of being a judicial order, it seems to me to be a military
order, an order which it seems was afterwards upheld and supported by
the troops of the United States, and which it may therefore be fairly
assumed was contemplated and intended to be so used. I find also that
the marshal testifies that
-----------------------------------------------------------------------
\1\ Second session Forty-third Congress, Journal, p. 139; Record, pp.
319-324.
Sec. 2510
the judge gave him discretionary power by an oral direction to
determine what persons should be admitted to the State-house and what
persons should be excluded; thus deputing, not in writing, this vast
discretionary power, and clothing the marshal with it. I can not
believe that such an order as that can be justified by any
consideration of charity.
Messrs. Storm and Poland, who had been of the dissenting minority,
stated their belief that the order was wrong, but they did not consider
that a wrongful intent was established. ``Because this judge made an
order he had no legal jurisdiction to make,'' said Mr. Poland, ``it by
no means follows he is amenable to impeachment, unless it can be
established that that order was made corruptly or made with a knowledge
on his part--with a belief that he was exceeding his legal
jurisdiction.''
Mr. Jeremiah M. Wilson stated that he believed the general opinion of
those concurring in the majority report, was that Judge Durell was also
impeachable for the irregularities in the bankruptcy proceedings.
2. As to the power to impeach a person who has resigned.
Mr. Butler stated that he had no doubt, as the Constitution imposed
the punishment of disability for holding office thereafter, that the
impeachment might proceed. But Judge Durell was an old man and there
would be no practical benefit in going on with this case. Mr. Luke P.
Poland stated that, while he had not examined the matter carefully, he
had a very strong impression that the resignation would not avail as a
legal obstacle to prevent the House from continuing the proceedings. It
was a matter for the discretion of the House, according to the
circumstances of the case.
Mr. Tremain said he had examined the question with considerable care,
and he had very serious doubt ``whether the House has any
Constitutional power whatever to proceed by impeachment after the
officer has resigned, his resignation has been accepted, and his
successor has been appointed. The power to impeach rests entirely upon
the Constitution of the United States. The whole system of English
parliamentary impeachment, with the tremendous powers possessed by
Parliament, has been superseded by our Constitution.'' Mr. Tremain said
that the whole subject had been discussed by Judge Story, whose
Commentaries he quoted in support of his view.
The question was taken on laying the resolutions on the table, and
the motion was agreed to, yeas 129, nays 69. So the proceedings were
discontinued.
2510. The inquiry as to the conduct of Schuyler Colfax, Vice-
President of the United States.
In the Colfax case the majority of the Judiciary Committee concluded
that the power of impeachment was rather remedial than punitive.
Discussion as to whether or not a civil officer may be impeached for
an offense committed prior to his term of office.
A proposition to investigate the conduct of an officer and prepare
articles of impeachment was held to be privileged.
On February 20, 1873,\1\ Mr. Fernando Wood, of New York, proposed as
a question of privilege, the following:
Resolved, That the testimony reported to this House by the special
committee appointed under the resolution of the House of
Representatives of December 2, 1872, for the investigation of charges
of
-----------------------------------------------------------------------
\1\ Third session Forty-second Congress, Journal, pp. 451, 452;
Globe, pp. 1544, 1545.
Sec. 2510
bribery in influencing Members of the House of Representatives, be
referred to the Committee on the Judiciary, with instructions to report
articles of impeachment against Schuyler Colfax, Vice-President of the
United States, if in its judgment there is evidence implicating that
officer and warranting impeachment.
Mr. Horace Maynard, of Tennessee, asked if a question of privilege
was presented.
The Speaker \1\ stated that such a question had been presented.
Mr. James N. Tyner having raised the question of consideration, the
House, by a vote of yeas 105, nays 109, voted not to consider it.
Thereupon Mr. Tyner presented this resolution, which was agreed to
without debate or division:
Resolved, That the testimony taken by the Committee of this House, of
which Mr. Poland, of Vermont, is chairman, be referred to the Committee
on the Judiciary, with instructions to inquire whether anything in such
testimony warrants articles of impeachment of any officer of the United
States not a Member of this House, or makes it proper that further
investigation should be ordered in this case.
This resolution was offered as involving a question of privilege, and
its status as such was not questioned.
On February 24 Mr. Benjamin F. Butler, of Massachusetts, submitted
the report \2\ of the committee. This report, so far as it related to
the subject of impeachment, was concurred in by Messrs. John A.
Bingham, of Ohio, Benjamin F. Butler, of Massachusetts, Charles A.
Eldredge, of Wisconsin, John A. Peters, of Maine, Lazarus D. Shoemaker,
of Pennsylvania, Daniel W. Voorhees, of Indiana, and Jeremiah M.
Wilson, of Indiana. Mr. Clarkson N. Potter, of New York, dissented.
For the purpose of applying the principles and precedents, the
committee assumed all that could be inferred from the testimony in
regard to the Vice-President, Schuyler Colfax, who was the official
referred to. They assumed that in the winter of 1867-68 he purchased of
Oakes Ames stock of the Credit Mobilier at par when it was known to be
worth much more than par; and that, from 1867 to 1869, while holding
such stock, and while the House was considering subjects affecting the
value of that stock, he presided over the House as Speaker. They found
it undisputed that Mr. Colfax became interested in the Credit Mobilier
before he became Vice-President, and that the motives which impelled
the transaction were expected to operate upon him only as a Member of
the House. Continuing, the committee say:
But we are to consider, taking the harshest construction of the
evidence, whether the receipt of a bribe by a person who afterwards
becomes a civil officer of the United States, even while holding
another official position, is an act upon which an impeachment can be
grounded to subject him to removal from an office which he afterwards
holds. To elucidate this we first turn to the precedents.
Your committee find that in all cases of impeachment or attempted
impeachment under our Constitution there is no instance where the
accusation was not in regard to an act done or omitted to be done while
the officer was in office. In every case it has been heretofore
considered material that the articles of impeachment should allege in
substance that, being such officer, and while in the exercise of the
duties of his office, the accused committed the acts of alleged
inculpation.
The committee then cite briefly the impeachments of Judges Pickering,
Chase, Peck, and Humphries, and President Johnson, in each of which the
offense charged occurred during the term of office. Of impeachments
under the State constitutions
-----------------------------------------------------------------------
\1\ James G. Blaine, of Maine, Speaker.
\2\ House Report No. 81, third session Forty-second Congress; Globe,
p. 1651.
Sec. 2510
the rule seemed to be the same, unless the recent cases of Judges
Barnard and McCunn, in New York, might present some exceptional
features. In the Parliament of England, also, the committee found the
same rule prevailing in all years since the rights of the subject and
the principles of law and justice have become established.
From this so nearly ``invariable current of precedent and authority''
the committee turn to inquire:
What is the nature and what the objects of impeachments under our
Constitution? Are they punitive or remedial? Or, in other words, is
impeachment a constitutional remedy for removing obnoxious persons from
office and preventing their again filling office, or a power given for
punishing an officer, while he is an officer, for some crime alleged to
have been committed by him before he was such officer?
The report answers these questions as follows:
Your committee are very strongly inclined to the opinion that
impeachment was intended by the framers of the Constitution to be
wholly remedial and not punitive, except as an incident to the
judgment, because we find that the Constitution limits the judgment in
impeachment by strongly restrictive words: ``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.''
If such judgment is a punishment for an alleged high crime and
misdemeanor, then why does the same article provide for the punishment
of the accused a second time for the same offense? Because the words we
have quoted are followed by the provision: ``But the party convicted
shall, nevertheless, be subject to indictment, trial, judgment, and
punishment according to law.''
This, therefore, would leave the party who had been removed from
office and disqualified from holding office by the judgment of
impeachment, if that is a punishment for his crime, to be the second
time punished for the same offense, which is contrary to natural
justice, against Magna Charta, and is most positively forbidden by the
fifth article of amendment to the Constitution.
This article also throws some further light on this subject, because
in its nervous language it enacts that ``No person shall be held to
answer for a capital or otherwise infamous crime, unless upon
presentment or indictment of a grand jury, except in cases arising in
the land or naval forces, or in the militia when in actual service in
time of war or public danger.''
Nor does it appear that this view is affected by the exception in
section 2, Article III, of the Constitution, that the trial of all
crimes, except in cases of impeachment, shall be by jury; this
exception being necessary only to make the instrument consistent in all
its parts with itself, as it had already provided that the impeached
could be tried by jury for his crime.
Again, we find impeachment to be remedial in this, that it only
provides, as a further consequence, disqualification for office, by
which the evil is cured; that thereafter the Government may not have an
officer who has so far forgotten his obligations to his official oath
and to his duty as a citizen as to have been removed from office for
high crimes and misdemeanors; again, by vote of the electors or
appointment by the Executive, put in place of honor or trust.
We are also inclined to believe that proceedings of impeachment were
intended to be remedial and not punitive, because we have already seen
that if punitive at all an entirely inadequate punishment has been
provided by the judgment; because the very highest offenses are triable
by impeachment, such as treason and bribery, and the sentence may be
only removal from an office whose term extends for a few days only, as
in the case under consideration.
Again, we are brought to the conclusion that proceedings of
impeachment are remedial and not punitive, because, in the case of
Judge Pickering, before referred to, impeached for habitual
intoxication, the officer was condemned because he became incapacitated
for the performance of the duties of his office, and we find that
impeachment is the only means known to our Constitution by which a
civil officer of the United States, elected by the people, or a judge
appointed by the Executive, can be removed from office. And certainly
habitual intoxication, while it may not be a crime at common law or by
statute, in a private person, may readily enough seem to be a very high
crime and misdemeanor in a high civil officer, wholly incapacitating
him from performing all his duties; so much so as to be made by the
Articles of War a ground for removing an officer from the military
service.
Sec. 2511
Again, your committee are inclined to believe that impeachment is not
punitive, because, although an officer may have been tried and
convicted of a high crime, yet he may be impeached for that very crime
as a remedy for public mischief, and thus, in the converse of the
proposition above stated, be twice punished for the same offense.
If the conclusions to which your committee have arrived in this
regard are correct, it will readily be seen that the remedial
proceedings of impeachment should only be applied to high crimes and
misdemeanors committed while in office, and which alone affect the
officer in discharge of his duties as such, whatever may have been
their effect upon him as a man, for impeachment touches the office only
and qualifications for the office, and not the man himself.
The report was made in the House, February 24, and was briefly
debated, after which it was postponed to February 26. But it was not
considered that day, and does not appear to have been taken up
thereafter.\1\
2511. The investigation into the conduct of Charles T. Sherman,
district judge of the United States for the northern district of Ohio.
The House declined to vote the impeachment of a judge who had not
been heard before the investigating committee.
Discussion of precedents in relation to ex parte investigations with
a view to impeachment, including the case of President Johnson.
On February 22, 1873,\2\ Mr. Ellis H. Roberts, of New York, presented
as a question of privilege, and at the request of the Committee on Ways
and Means, this resolution:
Resolved, That the evidence taken by the Committee on Ways and Means,
under their authority to send for persons and papers in matters under
examination pending before said committee, arising out of business
referred to them by the House, be referred to the Committee on the
Judiciary, with instructions to examine so much thereof as relates to
Charles T. Sherman, judge of the district court of the United States
for the northern district of Ohio, and determine whether further
investigation of the conduct of said Sherman should not be had with a
view of presenting articles of impeachment, if such investigation
should, in their judgment, justify such action.
Without any question as to whether or not the resolution was
privileged, and without division, the House agreed to it.
On March 3,\3\ the last day of the Congress, Mr. Benjamin F. Butler,
of Massachusetts, from the Committee on the Judiciary, reported that
the testimony had come to the committee on the preceding day. There was
therefore no time for the accused or his counsel to be heard, and as it
had become the established practice of the Judiciary Committee to give
such hearings in cases of impeachment, they reported the testimony
back, to be placed on file for the consideration of the next House.
Therefore Mr. Butler proposed this resolution:
Resolved, That the testimony be placed on file for the consideration
of the next House of Representatives, and that the committee be
discharged from the further consideration of the same.
Mr. Clarkson N. Potter, of New York, proposed the following as a
substitute:
Whereas it appears by the letters of Charles T. Sherman, a judge of
the district court of the United States for the northern district of
Ohio, that he proposed to corruptly control legislation for money, to
be paid to him by the stock exchange of New York, and subsequently
insisted on such payment on the ground of such control, and threatened
adverse legislation if the same was not paid; and whereas it
-----------------------------------------------------------------------
\1\ Globe, pp. 1655, 1656; Journal, pp. 472, 473.
\2\ Third session Forty-second Congress, Journal, p. 461; Globe, p.
1628.
\3\ Journal, pp. 571, 572; Globe, pp. 2122-2127.
Sec. 2512
further appears by the testimony of said Sherman before the Committee
on Ways and Means of this House that his said pretenses of power to
control legislation and his said assertions of services he had rendered
in this respect were false: Therefore,
Resolved, That a committee of three Members of this House be
appointed by the Speaker to go to the Senate and at the bar thereof, in
the name of the House of Representatives and of all the people of the
United States, to impeach Charles T. Sherman, judge of the district
court of the United States for the northern district of Ohio, of high
misdemeanors in office, and acquaint the Senate that the House of
Representatives will in due time exhibit particular articles of
impeachment against him and make good the same; and that said committee
do demand that the Senate take further order for the appearance of the
said Charles T. Sherman to answer to said impeachment.\1\
The presentation of this proposed substitute caused an issue to be
joined as to whether or not an officer ought to be impeached without an
opportunity to be heard. It was explained that Judge Sherman had
appeared before the Ways and Means Committee only as a witness, to
answer such questions as were asked, and without power to explain or
adduce evidence in his own behalf.
Those who favored delay to permit Judge Sherman to be heard seemed
generally to consider that his conduct merited impeachment, Mr. Henry
L. Dawes, of Massachusetts, saying that he did not see how he could
make a satisfactory explanation, yet he believed that the opportunity
should be given him.
Mr. Butler said that in the cases of Judges Pickering and Chase the
opportunity to be heard was not given, but it had been conceded in
``the case of Judge Watrous, in the case of Judge Peck, in the case
even of Andrew Johnson.'' There was dissent at this statement as to
President Johnson, and Mr. Butler qualified it by saying:
He was notified of what was going on, but never asked to appear.\2\
Mr. Butler went on to say that in the case of Judge Delahay they did
not hear counsel, but sent a subcommittee to Kansas to hear such
witnesses as Judge Delahay might choose to summon. Judge Busteed was
heard by himself and by counsel. In this case Judge Sherman had made
application to be heard, but the committee had no time to hear him.
Mr. Potter read letters of Judge Sherman which appeared to support
the allegations of the preamble, and urged the adoption of the
substitute.
After further debate the preamble and substitute were disagreed to by
a vote of 32 ayes and noes not counted.
Then the resolution proposed by Mr. Butler was agreed to without
division.
The records of the State Department show that Martin Walker was
appointed judge of this district on November 25, 1873, and the vacancy
was occasioned by the resignation and death of Judge Sherman.\3\
2512. The investigation into the conduct of Richard Busteed, United
States district judge for Alabama.
The majority of the Judiciary Committee recommended the impeachment
of Judge Busteed, principally for nonresidence.
A question as to the authority of Congress to make nonresidence of a
judge an impeachable offense.
-----------------------------------------------------------------------
\1\ At this stage the simple resolution to impeach is usually
presented. The above form is used after impeachment has been voted, to
provide for taking the charge to the Senate.
\2\ Globe, p. 2123.
\3\ John Sherman's Recollections, Vol. II, p. 726.
Sec. 2512
Judge Busteed having resigned, the House discontinued impeachment
proceedings.
On December 15, 1873,\1\ Mr. E. Rockwood Hoar, of Massachusetts, by
unanimous consent, submitted the following resolution, which was agreed
to:
Resolved, That the Committee on the Judiciary be directed to inquire
and report whether the action of this House is requisite concerning the
official conduct of the judge of the United States district court for
the district of Alabama; and especially whether said judge has held
terms of his court required by law; whether he has continuously and
persistently absented himself from the said State; and whether his acts
and omissions in his office of judge have been such as in any degree to
deprive the people of that State of the benefit of a district court
therein, and amount to a denial of justice.
On December 17,\2\ Mr. Jeremiah M. Wilson, of Indiana, submitted the
following resolution, which was agreed to:
Resolved, That the Committee on the Judiciary, to whom has been
referred \3\ the resolution requiring said committee to inquire into
the conduct of the judge of the district court of the United States of
the district of Alabama, shall have power to send for persons and
papers.
On June 20, 1874,\4\ Mr. Wilson presented the report of the committee
for printing and recommitment.
The official referred to in these proceedings was Judge Richard
Busteed.
It appears incidentally from the report that at least one witness was
called at Judge Busteed's request, and was examined by ``Mr. Busteed,''
which would suggest that the respondent acted in person or was
represented by some attorney of the same name. Some of the testimony
elicited shows pretty conclusively that Judge Busteed examined the
witness personally.
Three charges appear in this case:
1. That Judge Busteed did not reside in the district as required by
the acts of September 24, 1789, and December 18, 1812, the latter of
which provided that ``any person offending against the injunction or
prohibition of this act shall be deemed guilty of a high misdemeanor.''
The majority of the committee determined that the residence required
by these laws was an actual residence. They say that Judge Busteed was
appointed in 1865, being then a resident and large property owner in
New York. Soon after his appointment he leased for three years a
residence in Mobile, Ala., and removed his family there to reside. The
report assumes that this removal was with the intent of becoming a
permanent resident of the State. About two years afterwards, the house
becoming untenantable, he abandoned his lease, his family came North,
and have not since returned to Alabama. For the past seven years his
family had not been in Alabama. The testimony showed that Judge Busteed
had in New York real estate and personal property to a total value of
about $300,000, including a house, but that he had no real estate in
Alabama, and that his personal effects consisted of ``a carpet, a music
box, and a double-barreled gun.'' He lived with a relative in the New
York house much of the year, going to Alabama in the fall to hold
court,
-----------------------------------------------------------------------
\1\ First session Forty-third Congress, Journal, p. 127, Record, p.
209.
\2\ Journal, p. 141; Record, p. 266.
\3\ This is hardly accurate. The House agreed to the resolution,
thereby instructing the committee.
\4\ Journal, p. 1262; Record, p. 5316; House Report No. 773.
Sec. 2512
and returning in June, as soon as the courts were over. From this
testimony the majority of the committee concluded that Judge Busteed
was no resident of Alabama, ``but only a sojourner from time to time
for the purpose of holding terms of court.''
2. The evidence showed much irregularity in holding courts--that in
each division of the district he had frequently failed to hold the
courts at the terms created by law. In one of them he had held no court
since the spring of 1872, and in none of them had he held any court
since the spring of 1873. Besides this, before those dates he held his
courts irregularly, sometimes omitting altogether to hold them, being
absent from the State. The committee concluded that the plea of ill
health was not a sufficient excuse for these numerous and continued
absences from duty.
3. It was also charged that Judge Busteed had used improperly the
money of the United States and his official position to promote his
personal interests. The committee found this charge sustained in
respect to the remission of a fine by the judge in his court in order
to relieve himself of a libel suit in the State courts.
Therefore the majority of the committee, Messrs. Benjamin F. Butler,
of Massachusetts; Jeremiah M. Wilson, of Indiana; Luke P. Poland, of
Vermont; Alexander White, of Alabama; Charles A. Eldredge, of
Wisconsin; Clarkson N. Potter, of New York, and Hugh J. Jewett, of
Ohio, concurred in recommending this resolution:
Resolved, That Richard Busteed, judge of the district court of the
United States for the southern, middle, and northern districts of
Alabama, be impeached for misdemeanors in office.\1\
Messrs. John Cessna, of Pennsylvania; William P. Frye, of Maine;
Jasper D. Ward, of Illinois, and Lyman Tremain, of New York, dissented
from the conclusion of the majority of the committee.
Soon after this report was printed the session of Congress ended.
At the next session, on January 7, 1875 \2\ the report was taken up.
In the meantime Judge Busteed had resigned his office and the
resignation had been accepted.
Mr. Tremain expressed a doubt as to whether or not nonresidence was
an impeachable offense. ``High crimes and misdemeanors'' must be taken
to mean such offenses as were high crimes and misdemeanors when the
Constitution was framed. It might be doubted whether a subsequent law
proposing to make a specific offense a high crime or high misdemeanor
would be constitutional.
This report being taken up immediately after the disposition of the
Durell case, Messrs. Butler and Wilson took occasion to emphasize their
opposition to the theory that an officer might escape impeachment by
resignation.
The question being taken on discharging the Committee on the
Judiciary from the consideration of the subject and laying it on the
table, the motion was agreed to without division. So the proceedings
were discontinued.
-----------------------------------------------------------------------
\1\ Two other resolutions providing for carrying the impeachment to
the Senate and for a committee to prepare articles accompanied this
resolution. They were similar to the resolutions in the Durell Case
\2\ Second session Forty-third Congress, Journal, pp. 140, 141;
Record, pp. 324-326.
Sec. 2513
2513. The investigation into the conduct of William Story, United
States judge for the western district of Arkansas.
Memorials containing charges against Judge Story were referred to the
Judiciary Committee for examination before the House voted a formal
investigation.
On February 26, 1874,\1\ Mr. James G. Blaine, of Maine, presented to
the House memorials of James S. Robinson, of Fort Smith, Ark., and of
Ben. T. Du Vol, James S. Gage, and others, practicing attorneys of Fort
Smith, containing charges and specifications against William Story,
judge of the United States district court for the western district of
Arkansas. These memorials were presented at the Clerk's desk under the
rule, and under the rule were referred to the Committee on the
Judiciary.
On April 28 \2\ Mr. Jeremiah M. Wilson, of Indiana, from the
Committee on the Judiciary, stated that the memorials presented
contained nineteen specifications. The committee had been examining the
case for some time, but now needed further authority, and he proposed
this resolution, which was agreed to by the House without division:
Resolved, That the Committee on the Judiciary be, and is hereby,
instructed to inquire whether Judge William F. Story, judge of the
district court of the United States for the western district of
Arkansas, shall be impeached for high crimes and misdemeanors, and that
said committee have power to send for persons and papers.
On June 20, 1874,\3\ Mr. John Cessna, of Pennsylvania, from the
Committee on the Judiciary, presented a resolution providing that the
evidence taken in this matter by the Judiciary Committee be furnished
by the Clerk of the House to the Attorney-General, Secretary of the
Treasury, and Third Auditor and First Comptroller of the Treasury,
``for their information and guidance, with the recommendation that such
action be taken by the said Departments as will restore to the Treasury
of the United States any moneys wrongfully paid to any of the officers
of said court, and to prevent any such wrongful payments hereafter.''
This resolution was agreed to with an amendment including also a copy
of testimony taken before the Committee on Expenditures in the
Department of Justice.
2514. The investigation into the conduct of George F. Seward, late
consul-general at Shanghai.
The Seward investigation was set in motion by a memorial.
In the Seward investigation the respondent was represented by counsel
and in person before the committee.
An opinion of the Judiciary Committee that a person under
investigation with a view to impeachment may not be compelled to
testify.
An instance wherein a committee charged with the investigation
reported articles with the resolution of impeachment.
On January 23, 1878,\4\ the Speaker laid before the House a
communication from John C. Myers, late consul-general at Shanghai,
China, asking that an inves-
-----------------------------------------------------------------------
\1\ First session Forty-third Congress, Journal, p. 511; Record, p.
1825.
\2\ Journal, p. 869; Record, p. 3438.
\3\ Journal, p. 1262; Record, p. 5316.
\4\ Second session Forty-fifth Congress, Journal, pp. 268, 269, 273.
Sec. 2514
tigation might be had concerning the administration of the consulate-
general at Shanghai, during the terms in office of Hon. George F.
Seward, present minister to China; O.B. Bradford, vice-consul-general
and consular clerk; and himself as consul-general.
The memorial was first referred to the Committee on Foreign Affairs,
but later the reference was changed to the Committee on Expenditures in
the State Department.
The Committee on Expenditures in the State Department, by a
resolution of January 11, 1878,\1\ had been empowered generally to
investigate the affairs of the State Department, and under this
authority they proceeded to take testimony on the subject of the
memorial.
It appears \2\ that counsel was permitted to represent Mr. Seward
before the committee, and later the investigation was suspended in
order that Mr. Seward might leave his post and appear before the
committee to assist in cross-examination of witnesses. The committee,
however, made the condition of this concession, that Mr. Seward should
produce papers in his possession relating to the consul-generalship at
Shanghai during his incumbency of the office. Mr. Seward did not
produce the papers, did not obey a subpoena duces tecum, and declined
the oath as a witness, urging that the fifth amendment to the
Constitution provided that ``no person shall be compelled, in any
criminal case, to be a witness against himself.''
The issue thus raised was referred to the Committee on the Judiciary,
who reported on March 3, 1879,\3\ Mr. Benjamin F. Butler, of
Massachusetts, making the report. The general question of the
production of papers was discussed,\4\ and also the report said on the
question of testimony:
Investigations looking to the impeachment of public officers have
always been finally examined before the Judiciary Committee of the
House, so far as we are instructed; and it is believed that the case
can not be found as a precedent where the party charged has ever been
called upon and compelled to give evidence in such case. We distinguish
this case from the case of an ordinary investigation for legislative
purposes, where all parties are called upon to give such evidence (oral
or written) as may tend to throw light upon the subject of
investigation; but even in those cases it was early held that a person
called as a witness, and not a party charged before the committee, was
not bound to criminate himself; and a statute familiar to the House,
for the protection of witnesses under such circumstances, from having
the evidence given used against them, was passed.
In making an investigation of the facts charged against an officer of
the United States looking to impeachment, the House acts as the grand
inquest of the nation to present that officer for trial before the
highest court known to our Constitution--the Senate of the United
States--for such punishment as may be constitutionally imposed upon
him, which is very severe in its penalties, and even then does not
exonerate the party from further prosecution before the proper courts
for offenses against the laws.
On March 1, 1879,\5\ before the report of the Judiciary Committee had
been submitted to the House, Mr. Springer presented the report of the
majority of the Committee on Expenditures in the State Department.\6\
The report consisted of seventeen articles of impeachment, charging
that as judge of the consular court, while
-----------------------------------------------------------------------
\1\ Journal, pp. 158, 159.
\2\ House Report No. 117, third session Forty-fifth Congress.
\3\ Third session Forty-fifth Congress, Report No. 141.
\4\ See sections 1699, 1700 of this volume for general aspects of the
subject.
\5\ Journal, pp. 621, 624, 625, 642, 649, 659, 664; Record, pp. 2374,
2378, 2384, 2778.
\6\ For this report in full, see Journal, pp. 624-633.
Sec. 2515
consul-general, he had corruptly received money in the settlement of
estates and in other judicial matters; that be had converted to his own
use certain funds intrusted to him as consul-general; that he had used
his official influence to promote the construction of a railway in
violation of law and treaty; that he had converted to his own use fees
belonging by law to the marshal of the consulate, by virtue of an
unlawful agreement with the said marshal; that he had, by means of
falsified accounts, converted to his own use certain premiums of
exchange; that he unlawfully took the salary of his office as consul-
general after he had become minister of the United States to China, and
while receiving the salary of the latter office; that as minister to
China he unlawfully suspended John C. Myers, then being consul-general
at Shanghai, and procured the appointment of one Oliver B. Bradford to
the place, for the purpose ``to secrete and conceal the crimes
committed as aforesaid;'' and that he had neglected willfully to render
true and just quarterly accounts of his office, and embezzled the
public moneys of the United States; that as minister to China he
unlawfully endeavored to procure and did procure the release of Oliver
B. Bradford from the consular jail, whither he had been committed for
embezzlement, and permitted him to go at liberty; and that he
unlawfully took from the consulate-general at Shanghai certain account
books, the property of the United States, and carried them away ``with
intent to conceal, destroy, or steal the same, and ever since has and
still does conceal the same, and refuses to deliver the same up as
required by law.''
The committee therefore recommended this resolution:
Resolved, That George F. Seward, late consul-general of the United
States of America at Shanghai, China, and now envoy extraordinary and
minister plenipotentiary of the United States of America to China, be
impeached of high crimes and misdemeanors while in office.
Two other resolutions accompanied, providing for presentation of the
impeachment in the Senate and for the appointment of a committee to
frame articles of impeachment.
Mr. Solomon Bundy, of New York, presented views of the minority, with
this resolution:
Whereas, in view of the great importance of the subject and matters
embraced in the report of the majority of the committee in the matter
of the proposed impeachment of George F. Seward for alleged high crimes
and misdemeanors, and the complicated questions of law involved
therein: Therefore
Resolved, That the matters embraced in such report, together with the
evidence in the case, be referred to the Committee on the Judiciary.
On March 3,\1\ the last day of the Congress, the House, by a vote of
yeas 132, nays 109, voted to consider the report; but thereafter
dilatory proceedings prevented action on it.
2515. The investigation into the conduct of Oliver B. Bradford, late
vice-consul-general at Shanghai.
A question as to whether a vice-consul-general is such an officer as
is liable to impeachment.
The Bradford investigation was set in motion by a memorial in which
charges were preferred.
-----------------------------------------------------------------------
\1\ Journal, pp. 621, 622.
Sec. 2516
On March 22, 1878,\1\ Mr. William M. Springer, of Illinois, from the
Committee on Expenditures in the State Department, to whom had been
referred a memorial of John C. Myers relating to the affairs of the
consulate-general at Shanghai, China, reported a recommendation that
Oliver B. Bradford, late vice-consul-general at Shanghai, China, and
now holding the office of postal agent of the United States at
Shanghai, and also the office of consular clerk of the United States
assigned at Shanghai, be impeached at the bar of the Senate of high
crimes and misdemeanors in office. The committee transmitted with their
report the testimony taken, and also as part of their report, ten
articles of impeachment, setting forth the charges against the said
Bradford: (1) That in abuse of his official position he became
interested in the construction of a railroad in China, violating
treaties between the United States and China, and in violation of acts
of Congress; (2) that in the construction of the said railroad he used
his official position to further a fraudulent scheme; (3) that in five
specified cases he has used his office to exercise oppressive,
extortionate, and corrupt activity against American citizens; (4) that
he embezzled a letter from the post-office at Shanghai; (5) that he
unlawfully took from the post-office and opened another letter; (6)
that he transmitted a false salary voucher to the United States
Treasury to cover the withholding of a portion of the salary of an
employee; (7) that as disbursing officer he defrauded the United States
Government; (8) that he again was guilty of fraud as disbursing
officer; (9) that he embezzled a sum of money belonging to the United
States; (10) and that he unlawfully deposited to his own account a sum
of money belonging to the United States.
In view of these specifications the committee recommended this
resolution:
Resolved, That Oliver B. Bradford, now consular clerk of the United
States, assigned to Shanghai, China, and postal agent of the United
States at Shanghai, China, and late vice-consul-general of the United
States at Shanghai, China, and late clerk of the consular court of the
United States at Shanghai, China, be impeached by the House of
Representatives at the bar of the Senate, for high crimes and
misdemeanors while in office.
Mr. Springer announced in the report that two members of the
committee, Messrs. Mark H. Dunnell, of Minnesota, and Solomon Bundy, of
New York, entertained grave doubts whether Mr. Bradford was such an
officer as was liable under the Constitution to impeachment. All of the
committee agreed that the evidence sustained the charges. In view of
the constitutional question involved, Mr. Springer moved that the whole
subject be referred to the Judiciary Committee. This motion was agreed
to without division.
2516. The investigation of the conduct of Henry W. Blodgett, United
States judge for the northern district of Illinois.
In the case of Judge Blodgett the House ordered an investigation upon
the presentation of a memorial specifying charges.
In the investigation of Judge Blodgett both the complainants and the
respondent were represented by counsel and produced testimony before
the committee.
The most liberal latitude was allowed in the examination of witnesses
before the committee which investigated the conduct of Judge Blodgett.
-----------------------------------------------------------------------
\1\ Second session Forty-fifth Congress, Journal, p. 1127; Record, p.
3667; House Report No. 818.
Sec. 2516
The committee and the House acted adversely on a proposition to
impeach Judge Blodgett for an act in excess of his jurisdiction, bad
faith not being shown.
On January 7, 1879,\1\ Mr. Carter H. Harrison, of Illinois, presented
the memorials of certain citizens of Chicago asking for the appointment
of a special committee to visit that city and investigate certain
charges, therein set forth, against Henry W. Blodgett, district judge
of the northern district of Illinois. Mr. Harrison also presented a
preamble and resolution, which, after amendment, was agreed to by the
House, giving the Judiciary Committee authority to investigate the
charges.
On March 3,\2\ Mr. J. Proctor Knott, of Kentucky, presented the
report of the committee.
As to the method of investigation the report says:
That during the taking of the testimony herewith submitted, Judge
Blodgett and Messrs. Cooper, Knickerbocker, and Sheldon, upon whose
memorial the resolution recited above was introduced and adopted, were
present in person and with counsel. Both parties were permitted to
introduce evidence, and the most liberal latitude was allowed to each
in the examination of witnesses to the end that every fact bearing
directly or remotely upon the subject under consideration might be
clearly ascertained. In order to facilitate the investigation as much
as possible, however, and to enable the committee to confine the
testimony within reasonable limits, and present it to the House in
something like a systematic form, the memorialists were requested to
present their charges and specifications in writing, which was
accordingly done, and copies thereof delivered to Judge Blodgett with
the request that he would file written answers thereto, if such answers
should be deemed by him necessary or desirable.
The report then discusses the charges, which were:
1. That Judge Blodgett had entered into a dishonest conspiracy to
defraud, by aid of his acts as judge, the creditors of a certain
corporation.
2. That he had improperly attempted to prevent the grand jury from
finding an indictment against one Homer N. Hibbard, for perjury.
3. That while holding the office of judge he had knowingly borrowed
and converted to his own personal use money belonging to or deposited
in the registry of his court.
4. That as judge he had willfully employed the power and authority of
the court to perpetrate acts of gross judicial oppression upon the
rights of a private citizen, and sanction and direct the commission of
a flagrant trespass which constituted a criminal offense under the laws
of the State of Illinois, punishable by fine and imprisonment.
5. That in administering the bankrupt law he had willfully violated
the letter and spirit of the law by making an unlawful use of his power
as judge to enrich his friends and favorites, to the reproach and
scandal of the court.
6. That he had corruptly used his official position to aid a
conspiracy to defraud the stockholders of a certain insurance company,
by enabling certain persons to buy up the stock at a discount.
The committee found in general that the charges were not sustained by
the evidence; but in discussing the fourth charge they say:
It maybe conceded that Judge Blodgett acted in this instance in
excess of his jurisdiction. * * * However justly, therefore, Judge
Blodgett may be amenable to criticism or censure on account of his
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\1\ Third session Forty-fifth Congress, Journal, p. 138.
\2\ Journal, p. 671; Record, pp. 2388, 2390-2395; House Report No.
142.
Sec. 2517
action in this matter * * * it is impossible to see how he can be held
liable to impeachment therefor, unless it can be shown that he did not
act in good faith for the best interests of those concerned, as he
understood them, but with such malice and corruption as to render his
act in the premises an official misdemeanor.
In view of all the evidence the committee, without dissent,
recommended this resolution:
Resolved, That the charges against Henry W. Blodgett, United States
district judge for the northern district of Illinois, be laid on the
table, and the House take no further action thereon.
This resolution was agreed to by the House without division.
2517. The investigation into the conduct of Aleck Boarman, United
States judge for the western district of Louisiana.
A Member of the House presented specific charges against Judge
Boarman to the Judiciary Committee, which had been empowered to
investigate the judiciary generally.
A subcommittee visited Louisiana and took testimony against and for
Judge Boarman.
The Member who lodged charges against Judge Boarman conducted the
case against him before the subcommittee.
Judge Boarman made a sworn statement or answer to the committee
investigating his conduct in 1890, but did not testify.
The inquiry of 1890 into the conduct of Judge Boarman was conducted
according to the established rules of evidence.
In 1890 the Judiciary Committee concluded that Judge Boarman should
be impeached for an act in violation of the statute.
On March 1, 1890,\1\ Mr. William C. Oates, of Alabama, from the
Committee on the Judiciary, to whom had been referred, on February 18,
1890, a resolution providing for an investigation of ``the practice of
certain United States district courts and other officers in criminal
cases,'' reported the resolution with an amendment in the nature of a
substitute. To show the desirability of such investigation the report
cites a letter from the Attorney-General to the chairman of the
committee and letters from the Commissioner of Internal Revenue and one
of the Auditors of the Treasury. In addition to these letters numerous
complaints had been made by persons seeming to be well informed and
reputable; and also there had been complaints in the newspapers.
Therefore an investigation seemed to the committee desirable, and they
recommended a substitute amendment providing for a general
investigation, including ``maladministration or corrupt official
conduct of any of the officers connected with the judicial department
of the Government.''
On April 1 \2\ the House agreed to the resolution with the proposed
amendment; and on September 16 \3\ the committee was given authority to
continue its investigation through the recess of Congress.
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\1\ First session Fifty-fifth Congress, Journal, p. 296; House Report
No. 566.
\2\ Journal, p. 416; Record, p. 2877.
\3\ Journal, p. 1046.
Sec. 2517
On February 17, 1891,\1\ Mr. Albert C. Thompson, of Ohio, submitted
the report of the committee. This report dealt generally with the
subject referred to the committee, and also presented an ascertainment
of fact in relation to Aleck Boarman, district judge for the western
district of Louisiana. The report states that while the committee were
investigating the general subject a letter was, in May, 1890, addressed
to the chairman of the committee by Mr. C. J. Boatner, Member of the
House from the Fifth District of Louisiana, preferring seven specific
charges against Judge Boarman, and asking that a date be fixed when the
charges might be substantiated by witnesses. Thereupon a subcommittee
of the Committee on the Judiciary visited Shreveport and New Orleans
and took testimony relating to the charges. Both Judge Boarman and Mr.
Boatner were present at Shreveport, but neither attended at New
Orleans. Mr. Boatner conducted the examination of witnesses called to
sustain the charges, and Mr. Albert H. Leonard appeared as counsel for
Judge Boarman. The report further says:
The subcommittee before whom the testimony was taken aimed to admit
nothing inadmissible under the well established rules of evidence, but,
notwithstanding the care exercised, much is found in the record that is
not legal evidence. In reaching the conclusions, however, hereinafter
stated, the committee endeavor to eliminate from their consideration
those matters that are plainly hearsay and neighborhood gossip, and
base their judgment, it is believed, upon substantial and trustworthy
evidence.
Judge Boarman did not testify before the subcommittee, nor did he
introduce any oral testimony whatever, except that of Mr. Albert H.
Leonard and a ``statement'' made by Mr. M. C. Elstner, the latter being
entirely personal to Mr. Elstner himself and having no bearing upon any
of the issues raised. The answer of Judge Boarman, hereinbefore
referred to, is given its full legal effect, as an answer, and is taken
to be true except in those particulars wherein its averments axe
overcome by countervailing legal testimony.
The answer of Judge Boarman, filed at the first meeting of the
committee, is printed in the report, and begins as follows:
In the matter of certain charges and complaints made by C. J. Boatner
against Aleck Boarman, judge, western district of Louisiana, to the
subjudiciary committee of the House of Representatives, sitting at
Shreveport, La., the Hon. A. C. Thompson, chairman.
Respondent, in answer to said charges, respectfully makes the
following answer and statements under oath:
He denies each and every allegation made against him, except what is
hereinafter admitted.
First charge. Respondent denies, etc.
* * * * * * *
Respondent submits this answer to said charges, and respectfully asks
now, as he has, to the knowledge of the committee, heretofore done,
that such a thorough investigation Shall be made as will best subserve
the public interest.
Aleck Boarman.
Sworn to and subscribed before me this November 17, 1890.
[seal.]
J. B. Beattle, Clerk.
Upon the filing of the answer Mr. Boatner asked and was granted leave
to amend the charges against Judge Boarman by the addition of another
specification.
The committee concluded as to all the charges except the fourth that
while there was much in the testimony warranting severe criticism of
his acts yet he
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\1\ Second session Fifty-first Congress, Journal, pp. 254, 270;
Record, pp. 2797, 2937; House Report No. 3823.
Sec. 2518
should be acquitted; but on the fourth charge the committee were
unanimous that he should be impeached. This charge was that he had
``used for his own purposes the funds paid into the registry of his
court, and has unlawfully and corruptly failed and refused to decide
causes in which the funds in dispute were or should have been in the
registry of his court, and also (additional charge) that the respondent
repeatedly borrowed money from the marshal of this court, contrary to
law.'' The report quotes sections 995, 996, and 5505 of the Revised
Statutes, and rule 42 governing district courts in admiralty cases, and
says:
The committee profoundly regret that from the evidence taken and
fully appearing in the record there appears to have been no attempt on
the part of Judge Boarman to comply with the statute and the rules of
court as to moneys paid to the clerk. His practice in this regard, if
not criminal, is reprehensible in the extreme.
Therefore the committee, without dissent, reported this resolution:
Resolved, That Aleck Boarman, judge of the United States district
court for the western district of Louisiana, be impeached of high
crimes and misdemeanors.
The House considered the resolution on February 28,\1\ which was next
to the last legislative day of the Congress, but the debate, which was
entirely in favor of impeachment, was not concluded, and the resolution
failed to be acted on.
2518. The Boarman investigation continued.
In 1892 the House referred to the Judiciary Committee the evidence
taken in the Boarman investigation of 1890 as material in a new
investigation.
At the investigation of 1892 Judge Boarman testified and was cross-
examined before the committee.
The second investigation of Judge Boarman having revealed an absence
of bad intent in his censurable acts, the committee and the House
decided against impeachment.
A Member who had preferred charges against Judge Boarman declined, as
a member of the Judiciary Committee, to vote on his case.
In the first session of the next Congress, on January 13, 1892,\2\
Mr. Boatner submitted a resolution directing an investigation of the
charges against Judge Boarman and it was referred to the Committee on
the Judiciary.
On January 30 \3\ Mr. Oates reported from the committee, in lieu of
that resolution, a preamble reciting the proceedings in the former
Congress, especially citing the fact that the evidence taken was not ex
parte, and that the respondent had been present in person or by counsel
when it was taken, and a resolution referring the report made in the
last Congress, the charges and the evidence, to the Committee on the
Judiciary, with instructions to investigate the same thoroughly, and
further providing: ``And for the purpose of making the investigation
hereby ordered the said Committee on the Judiciary may adopt and use as
legal evidence the testimony taken as aforesaid,'' and ``may take and
consider any additional and explanatory evidence of a legal character
which may be offered either for or against said judge.''
-----------------------------------------------------------------------
\1\ Journal, p. 330; Record, pp. 3595-3597.
\2\ First session Fifty-second Congress, Journal, p. 26.
\3\ Journal, p. 49; Record, p. 689.
Sec. 2518
This resolution was agreed to, and the committee made the
investigation
On June 1,\1\ Mr. Oates submitted the report of the committee.
As to the manner of investigation the report shows that it was
conducted by a subcommittee, and says:
Your committee found it unnecessary to take any additional testimony
after having adopted that taken by its predecessor in the Fifty-first
Congress. Upon due inquiry it was found that there were no other
witnesses to be examined in behalf of the Government touching the said
charges, and therefore the said judge was notified that if he had any
exculpatory or explanatory evidence which he wished to offer that he
should have the opportunity of doing so. He then came to Washington,
appeared before said special subcommittee, and gave his testimony.
A reference to the printed testimony \2\ shows that Judge Boarman
testified at length and was then cross-examined by members of the
committee. He explained his conduct as to the various charges.
The committee investigated the seven former charges and one new one.
The committee found in favor of the judge as to the new charge; and
also found in his favor as to the old charges, including that numbered
four, on which the committee had found against him in the preceding
Congress. As to the fourth charge the report says:
It will be seen in this testimony that the judge claims to have been
entirely ignorant of the existence of this statute. (Sec. 5505 relating
to receiving from the clerk money belonging to the registry.) He says
that it looks like a humiliating confession for a judge to make, and
the committee agree with him in that statement. Ignorantia legis non
excusat is a maxim of the law, applicable alike to the ignorant and the
learned. It can not, therefore, be taken as any excuse whatever for his
conduct in this case. He is, by his own confession, technically guilty
of embezzlement. There are, however, extenuating circumstances.
Wheaton, the clerk, was upon his death bed when he gave the judge the
orders * * * for this money. He told the judge that he was going to
die, and that this money belonged in the registry of the court, and he
did not wish it to go into his succession or estate. The judge swears
that his motive in receiving the money was to preserve it unincumbered
for the suitors who would be entitled to it when the distribution was
decreed; and while he admits that he may have converted a part of it to
his own use, if he did he replaced it with the new clerk, and thus
those who were entitled to it received their money. While, therefore,
the taking of the money by the judge was a statutory embezzlement, it
can not be said from the evidence that he took it lucri causa, or with
dishonest intent.
The committee find the second branch of the fourth charge--relating
to corrupt failure to decide cases--not sustained.
The committee found that judge Boarman's conduct had not been such as
to absolve him from censure, but they failed to find that he ``had been
influenced by corrupt or dishonest motives.'' Therefore they asked to
be discharged from further consideration of the case.
The report also says:
Hon. C. J. Boatner, now a member of this committee, having preferred
the charges against Judge Boarman in the Fifty-first Congress, declined
to vote on any of the propositions embraced in the foregoing report.
The report of the committee was concurred in by the House without
division.
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\1\ Journal, p. 207; Record, p. 4908; House Report, No. 1536.
\2\ See pp. 57-72 of Report No. 1536.
Sec. 2519
2519. The inquiry into the conduct of J. G. Jenkins, United States
circuit judge for the seventh circuit.
The investigation of the conduct of Judge Jenkins was suggested by a
resolution offered by a Member and referred to the Judiciary Committee.
Form of resolution authorizing the investigation into the conduct of
Judge Jenkins.
Instance wherein a majority of the Judiciary Committee reported a
resolution censuring a judge for acts not shown to be with corrupt
intent.
On February 5, 1894,\1\ Mr. Lawrence E. McGann, of Illinois, proposed
a resolution to investigate and report whether or not the Hon. J. G.
Jenkins, judge of the United States circuit court for the seventh
circuit, has abused the powers and process of said court or
oppressively exercised the same to oppress the employees of the
Northern Pacific Railroad Company. This resolution was referred to the
Committee on the Judiciary.
On March 6, 1894,\2\ Mr. Charles J. Boatner, of Louisiana, from the
Committee on the Judiciary, reported the following resolution, which
was agreed to:
Resolved, That the Committee on the Judiciary of the House be, and is
hereby, authorized to speedily investigate and inquire into all the
circumstances connected with the issuance of writs of injunction in the
case of the Farmers' Loan and Trust Company, complainant, against the
Northern Pacific Railroad Company, defendant, in the United States
circuit court for the eastern district of Wisconsin, and the several
matters and things referred to in the resolution introduced on the 5th
day of February, instant, charging illegalities and abuse of the
process of said court therein and report to this House whether in any
of said matters or things the Hon. J. G. Jenkins, judge of said court,
has exceeded his jurisdiction in granting said writs, abused the powers
or process of said court, or oppressively exercised the same, or has
used his office as judge to intimidate or wrongfully restrain the
employees of the Northern Pacific Railway Company, or the officers of
the labor organizations with which said employees or any of them were
affiliated, in the exercise of their rights and privileges under the
laws of the United States; and if so, what action should be taken by
this House or by Congress.
On June 8 \3\ Mr. Boatner submitted the report of the committee. This
report relates the history of the appointment of receivers for the
Northern Pacific Railroad Company by Judge Jenkins, in conjunction with
other judges in whose territory the property lay; of the successive
reductions of the wages of employees made by the receivers; of great
dissatisfaction which finally arose among the employees affected; and
finally the issuance of a writ of injunction by Judge Jenkins, on
application of the receivers, restraining the employees ``from
combining and conspiring to quit, with or without notice, the service
of the said receivers, with the object and intent of crippling the
property in their custody or embarrassing the operation of the said
railroad, and from so quitting the service of the said receivers with
or without notice as to cripple the property or prevent or hinder the
operation of the said railroad.'' This writ was followed by a second
writ prohibiting the representatives of labor organizations from
``ordering, recommending, approving, or advising others to quit the
service of the receivers.''
Although witnesses and the judge himself in an opinion denied that
there was an intention to coerce the services of the employees, yet the
majority of the committee find this explanation inconsistent with the
words used, and hold that
-----------------------------------------------------------------------
\1\ Second session Fifty-third Congress, Journal, p. 137.
\2\ Journal, p. 229; Record, pp. 2629, 2661.
\3\ House Report No. 1049.
Sec. 2520
Judge Jenkins's writs were ``not sustained either by reason or
authority,'' were ``in violation of a constitutional provision, an
abuse of judicial power, and without authority of law.'' The report of
the majority continues:
The testimony adduced before us fails to show any corrupt intent on
the part of the judge.
The majority, in conclusion, recommend the adoption of this
resolution--
Resolved, That the action of Judge James G. Jenkins in issuing said
order of December 19, 1893, being an order and writ of injunction, at
the instance of the receivers of the Northern Pacific Railroad Company,
directed against the employees of said railroad company, and in effect
forbidding the employees of said Northern Pacific Railroad Company from
quitting its service under the limitations therein stated, and in
issuing a similar order of December 22, 1893, in effect forbidding the
officers of labor organizations with which said employees were
affiliated from exercising the lawful functions of their office and
position, was an oppressive exercise of the process of this court, an
abuse of judicial power, and a wrongful restraint upon said employees
and the officers of said labor organizations; and that said orders have
no sanction in legal precedent, were an invasion of the rights of
American citizens, and contrary to the genius and freedom of American
institutions, and therefore deserving of the condemnation of the
American people.
The minority views, signed by Messrs. William A. Stone, of
Pennsylvania; George W. Ray, of New York; H. Henry Powers, of Vermont,
and Thomas Updegraff, of Iowa, hold that if Judge Jenkins acted
corruptly he should be impeached, while if he erred honestly the wrong
would be righted by an appellate tribunal, and conclude:
To propose that a judge, who, as the majority declare, had no
``corrupt intent'' and ``who sincerely believes'' in his conclusions,
shall, without impeachment, be censured by the legislative branch of
the Government, is to confound all distinctions between the legislative
and judicial powers and create a side tribunal of appeal where justice
would be for sale to the suitor who could poll the largest vote.
It does not appear that the resolution was acted on by the House.
2520. The investigation into the conduct of Augustus J. Ricks, United
States judge for the northern district of Ohio.
The House ordered an investigation of the conduct of Judge Ricks on
the strength of charges preferred in a memorial.
In the investigation of Judge Ricks the respondent made a statement
before the committee and offered testimony in his behalf.
The majority of the Judiciary Committee reported a resolution
censuring Judge Ricks.
On January 7, 1895,\1\ Mr. Tom L. Johnson, of Ohio, presented the
memorial of Samuel J. Ritchie, praying for the impeachment of Augustus
J. Ricks, United States district judge for the northern district of
Ohio. This memorial was referred under the rule.
On the same day Mr. Johnson, by unanimous consent, offered the
following resolution, which was agreed to without debate and without
the reading of the memorial or any statement of its contents beyond the
mere announcement by Mr. Johnson that it was ``the memorial of Samuel
J. Ritchie, praying for the impeachment of Augustus J. Ricks,'' etc.:
Resolved. That the Committee on the Judiciary be, and they are
hereby, instructed to investigate the charges against the Hon. Augustus
J. Ricks, United States district judge for the northern district of
Ohio, contained in the memorial of Samuel J. Ritchie, presented to the
House this day, and report what action in their judgment should be
taken thereon.
-----------------------------------------------------------------------
\1\ Third session Fifty-third Congress, Journal, pp. 50, 51; Record,
p. 709.
Sec. 2520
On January 25 \1\ Mr. George P. Harrison, of Alabama, from the
majority of the Committee on the Judiciary, submitted a report,
accompanied by this resolution:
Resolved, That while the committee is not satisfied that Judge
Augustus J. Ricks has been guilty of any wrong committed while judge
that will justify it in reporting a resolution of impeachment, yet the
committee can not too strongly censure the practice under which Judge
Ricks made up his accounts.
Minority views were presented by Mr. Joseph W. Bailey, of Texas,
accompanied by these resolutions:
Resolved, That Augustus J. Ricks, judge of the United States court of
the northern district of Ohio, be impeached for high crimes and
misdemeanors.
Resolved, That the Committee on the Judiciary is hereby instructed to
prepare without unnecessary delay and report to this House suitable
articles of impeachment against the said Augustus J. Ricks, judge of
the United States court for the northern district of Ohio.
It appeared from the report and the minority views that at first the
committee, by a vote of seven to six, had agreed to recommend
impeachment, one member being present and not voting and three being
absent. But before a report was made in accordance with this vote an
order was agreed to inviting Judge Ricks to appear before the
committee, and also providing for the testimony of such other witnesses
as might be called. It was ``after hearing the statement of Judge Ricks
on his own behalf, and the testimony of Martin W. Sanders,'' that the
committee, by a vote of nine to seven. one member being absent, agreed
to the resolution reported by the majority.
It appears further from the report that the committee took testimony
at Cleveland, Ohio, through a subcommittee, and in Washington before
the whole committee. This testimony was such as was offered both
against and in behalf of Judge Ricks.
The minority views were concurred in by Messrs. Joseph W. Bailey, of
Texas; Edward Lane, of Illinois; Thomas R. Stockdale, of Mississippi;
David A. De Armond, of Missouri; D. B. Culberson, of Texas; Thomas
Updegraff, of Iowa, and C. J. Boatner, of Louisiana. The charges which
they discussed were:
First. That as judge the said Augustus J. Ricks had defrauded the
United States out of certain moneys, which he appropriated to his own
use.
Second. That he corruptly persuaded Martin W. Sanders, his successor
in the clerk's office, to omit from his emolument report fees which
ought to have been included in it.
Third. That he approved the emolument report of said Martin W.
Sanders, knowing it to be incorrect.
The minority found that the third charge was not reasonable, and that
the second in the form made was not sustained by the evidence, although
he had evidently taken fees to which he was not entitled. But on the
first charge they concluded that the evidence sustained the guilt of
the judge. The minority discuss at some length the evidence which led
them to their conclusion.
The report was made near the close of the Congress, and it does not
appear that any action was taken on it.
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\1\ Journal, p. 84; Record, p. 1360; House Report No. 1670.