we should gather from all this that it dwelt in the mind of the President of the United States that the only reason why he was not a Judas was that he had not been able to find a Christ toward whom to play the Judas.

It will appear that this bit of "opinion," given in pursuance of his constitutional obligation, was received with cheers and hisses. Whether the cheers were that certain patriotic persons named by him might be hanged, or the hissing was because of the inability of the President to play the part of Judas for the reason before stated, I am sorry to say the evidence will not inform us.

His answer makes the President say that it is his " duty to express opinions concerning the public characters, and the conduct, views, purposes, objects, motives, and tendencies of all men engaged in the public service."

Now, as the character, motives, tendencies, purposes, objects, and views" of Judas alone had opinions expressed" about them on this "fit occasion," (although he seemed to desire to have some others, whose names he mentioned, hanged,) I shall leave his counsel to inform you what were the public services of Judas Iscariot, to say nothing of Moses, which it was the constitutional duty and right of the President of the United States to discuss on this particularly fit occasion.

But I will not pursue this revolting exhibition any further.

I will only show you at Cleveland the crowd and the President of the United States, in the darkness of night, bandying epithets with each other, crying, "Mind your dignity, Andy;" "Don't get mad, Andy;' "Bully for you, Andy." I hardly dare shock, as I must, every sense of propriety by calling your attention to the President's allusion to the death of the sainted martyr, Lincoln, as the means by which he attained his office, and if it can be justified in any man, public or private, I am entirely mistaken in the commonest proprieties of life. The President shall tell his own story:

"There was, two years ago, a ticket before you for the Presidency. I was placed upon that ticket with a distinguished citizen now no more. [Voices, 'Its a pity: Too bad;' Unfortunate.'] Yes, I know there are some who say unfortunate.' Yes, unfortunate for some that God rules on high and deals in justice. [Cheers.] Yes, unfortunate. The ways of Providence are mysterious and incomprehensible, controlling all who exclaim unfortunate.'

Is it wonderful at all that such a speech, which seems to have been unprovoked and coolly uttered, should have elicited the single response from the crowd, "Bully for you?"

I go no further. I might follow this ad nauseam. I grant the President of the United States further upon this disgraceful scene the mercy of my silence. Tell me now, who can read the accounts of this exhibition, and reflect that the result of our institutions of government has been to place such a man, so lost to decency and propriety of conduct, so unfit, in the high office of ruler of this nation, without blushing and hanging his head in shame as the finger of scorn and contempt for republican democracy is pointed at him by some advocate of monarchy in the Old World. What answer have you when an intelligent foreigner says, "Look! see! this is the culmination of the ballot unrestrained in the hands of a free people, in a country where any man may aspire to the office of President. Is not our Government of a hereditary king or emperor a better one, where at least our sovereign is born a gentleman, than to have such a thing as this for a ruler ?"

Yes, we have an answer. We can say this man was not the choice of the people for the President of the United States. He was thrown to the surface by the whirlpool of civil war, and carelessly, we grant, elected to the second place in the Government, without thought that he might ever fill the first.

By murder most foul he succeeded to the Presidency, and is the elect of an assassin to that high office, and not of the people. "It was a grievous fault, and grievously have we answered it;" but let me tell you, O advocate of monarchy! that our frame of government gives us a remedy for such a misfortune, which

yours, with its divine right of kings, does not. We can remove him-as we are about to dofrom the office he has disgraced by the sure, safe, and constitutional method of impeachment; while your king, if he becomes a buffoon, or a jester, or a tyrant, can only be displaced through revolution, bloodshed, and civil war.

This, this, O monarchist! is the crowning glory of our institutions, because of which, if for no other reason, our form of government claims precedence over all other governments of the earth.

Article eleven charges that the President, having denied in a public speech on the 18th of August, 1866, at Washington, that the ThirtyNinth Congress was authorized to exercise legislative power, and denying that the legis lation of said Congress was valid or obligatory upon him, or that it had power to propose certain amendments to the Constitution, did attempt to prevent the execution of the act entitled "An act regulating the tenure of certain civil offices, by unlawfully attempting to devise means by which to prevent Mr. Stanton from resuming the functions of the office of Secretary of the Department of War, notwithstanding the refusal of the Senate to concur in his suspension, and that he also contrived means to prevent the execution of an act of March 2, 1867, which provides that all military orders shall be issued through the General of the Army of the United States, and also another act of the same 2d of March, commonly known as the reconstruction act.

To sustain this charge proof will be given of his denial of the authority of Congress as charged; also his letter to the General of the Army, in which he admits that he endeavored to prevail on him by promises of pardon and indemnity to disobey the requirements of the tenure-of-office act, and to hold the office of Secretary of War against Mr. Stanton after he had been reinstated by the Senate; that he chided the General for not acceding to his request, and declared that had he known that he (Grant) would not have acceded to his wishes he would have taken other means to prevent Mr. Stanton from resuming his office; his admission in his answer that his purpose was from the first suspension of Mr. Stanton, August 12, 1867, to oust him from his office, notwithstanding the decision of the Senate under the act; his order to General Grant to refuse to recognize any order of Mr. Stanton purporting to come from himself after he was so reinstated, and his order to General Thomas as an officer of the Army of the United States to take possession of the War Office, not transmitted, as it should have been, through the General of the Army, and the declarations of General Thomas that as an officer of the Army of the United States he felt bound to obey the orders of the Commander-in-Chief.

To prove further the purpose and intent with which his declarations were made, and his denial of the power of Congress to propose amendments to the Constitution, and as one of the means employed by him to prevent the execution of the acts of Congress, we shall show he has opposed and hindered the pacification of the country and the return of the insurrectionary States to the Union, and has advised the Legislature of the State of Alabama not to adopt the constitutional amendment known as the fourteenth article, when appealed to to know if it was best for the Legislature so to do; and this, too, after that amendment had been adopted by a majority of the loyal State Legislatures, and after, in the election of 1866, it had been sustained by an overwhelming majority of the loyal people of the United States. I do not propose to comment further on this article, because, if the Senate shall have decided that all the acts charged in the preceding articles are justified by law, then | so large a part of the intent and purposes with which the respondent is charged in this article would fail of proof that it would be difficult to say whether he might not, with equal impunity, violate the laws known as the reconstruc

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tion acts, which, in his message, he declares

66

as plainly unconstitutional as any that can be imagined." If that be so, why should he not violate them? If, therefore, the judgment of the Senate shall sustain us upon the other articles, we shall take judgment upon this by confession, as the respondent declares in the same message that he does not intend to execute them.

To the bar of this high tribunal, invested with all its great power and duties, the House of Representatives has brought the President of the United States by the most solemn form of accusation, charging him with high crimes and misdemeanors in office, as set forth in the several articles which I have thus feebly presented to your attention. Now, it seems necessary that I should briefly touch upon and bring freshly to your remembrance the history of some of the events of his administration of affairs in his high office, in order that the intents with which and the purposes for which the respondent committed the acts alleged against him may be fully understood.

Upon the first reading of the articles of impeachment the question might have arisen in the mind of some Senator, Why are these acts of the President only presented by the House when history informs us that others equally dangerous to the liberties of the people, if not more so, and others of equal usurpation of powers, if not greater, are passed by in silence?

To such possible inquiry we reply: that the acts set out in the first eight articles are but the culmination of a series of wrongs, malfeasances, and usurpations committed by the respondent, and therefore need to be examined in the light of his precedent and concomitant acts to grasp their scope and design. The last three articles presented show the perversity and malignity with which he acted, so that the man as he is known to us may be clearly spread upon record to be seen and known of all men hereafter.

What has been the respondent's course of administration? For the evidence we rely upon common fame and current history as sufficient proof. By the common law common fame, si oriatur apud bonos et graves," was ground of indictment even; more than two hundred and forty years ago it was determined in Parliament "that common fame is a good ground for the proceeding of this House, either to inquire of here or to transmit the complaint, if the House find cause, to the king or lords."

Now, is it not well known to all good and grave men "bonos et graves' that Andrew Johnson entered the office of President of the United States at the close of the armed rebellion making loud denunciation, frequently and everywhere, that traitors ought to be punished and treason should be made odious; that the loyal and true men of the South should be fostered and encouraged; and, if there were but few of them, to such only should be given in charge the reconstruction of the disorganized States?

Do not all men know that soon afterward he changed his course and only made treason odious, so far as he was concerned, by appointing traitors to office and by an indiscriminate pardon of all who "came in unto him?" Who does not know that Andrew Johnson initiated, of his own will, a course of reconstruction of the rebel States which at the time he claimed was provisional only, and until the meeting of Congress and its action thereon? Who does not know that when Congress met and undertook to legislate upon the very subject of reconstruction of which he had advised them in his message, which they alone had the constitutional power to do, Andrew Johnson last aforesaid again changed his course, and declared that Congress had no power to legislate upon that subject; that the two Houses had only the power separately to judge of the quali fications of the members who might be sent to each by rebellious constituencies, acting under State organizations which Andrew Johnson had called into existence by his late fiat, the electors of which were voting by his permis

sion and under his limitations? Who does not know that when Congress, assuming its rightful power to propose amendments to the Constitution, had passed such an amendment, and had submitted it to the States as a measure of pacification, Andrew Johnson advised and counseled the Legislatures of the States lately in rebellion, as well as others, to reject the amendment, so that it might not operate as a law, and thus establish equality of suffrage in all the States and equality of right in the mem. bers of the Electoral College and in the number of the Representatives to the Congress of the United States?

Lest any one should doubt the correctness of this piece of history or the truth of this common fame we shall show you that while the Legislature of Alabama was deliberating upon the reconsideration of the vote whereby it had rejected the constitutional amendment, the fact being brought to the knowledge of Andrew Johnson and his advice asked, he, by a telegraphic message under his own hand, here to be produced, to show his intent and purposes, advised the Legislature against passing the amendment, and to remain firm in their opposition to Congress. We shall show like advice of Andrew Johnson, upon the same subject, to the Legislature of South Carolina, and this, too, in the winter of 1867, after the action of Congress in proposing the constitutional amendment had been sustained in the previous election by an overwhelming majority. Thus we charge that Andrew Johnson, President of the United States, not only endeavors to thwart the constitutional action of Congress and bring it to naught, but also to hinder and oppose the execution of the will of the loyal people of the United States expressed, in the only mode by which it can be done, through the ballot-box, in the election of their Representatives. Who does not know that from the hour he began these his usurpations of power he everywhere denounced Congress, the legality and constitutionality of its action, and defied its legitimate powers, and, for that purpose, announced his intentions and carried out his purpose, as far as he was able, of removing every true man from office who sustained the Congress of the United States? And it is to carry out this plan of action that he claims the unlimited power of removal, for the illegal exercise of which he stands before you this day. Who does not know that, in pursuance of the same plan, he used his veto power indiscriminately to prevent the passage of wholesome laws enacted for the pacification of the country; and when laws were passed by the constitutional majority over his vetoes he made the most determined opposition, both open and covert, to them, and, for the purpose of making that opposition effectual, he endeavored to array and did array all the people lately in rebellion to set themselves against Congress and against the true and loyal men, their neighbors, so that murders, assassinations, and massacres were rife all over the southern States, which he encouraged by his refusal to consent that a single murderer be punished, though thousands of good men have been slain; and, further, that he attempted by military orders to prevent the execution of acts of Congress by the military commanders who were charged therewith. These and his concurrent acts show conclusively that his attempt to get the control of the military force of the Government, by the seizing of the Department of War, was done in pursuance of his general design, if it were possible, to overthrow the Congress of the United States; and he now claims by his answer the right to control at his own will, for the execution of this very design, every officer of the Army, Navy, civil, and diplomatic service of the United States. He asks you here, Senators, by your solemn adjudication, to confirm him in that right, to invest him with that power, to be used with the intents and for the purposes which he has already shown.

The responsibility is with you; the safeguards of the Constitution against usurpation are in your bands; the interests and hopes of free II

institutions wait upon your verdict. The House of Representatives has done its duty. We have presented the facts in the constitutional manner; we have brought the criminal to your bar, and demand judgment at your hands for his so great crimes.

Never again, if Andrew Johnson go quit and free this day, can the people of this or any other country by constitutional checks or guards stay the usurpations of executive power.

I speak, therefore, not the language of exaggeration, but the words of truth and soberness, that the future political welfare and liberties of all men hang trembling on the decision of the hour.

A Brief of the Authorities upon the Law of Impeachable Crimes and Misdemeanors, prepared by Hon. WILLIAM LAWRENCE, M. C., of Ohio; revised and presented by B. F. BUTLER, of Massachusetts, one of the Managers, as a part of his opening argument on the Impeachment of the President.

In order to ascertain the impeachable character of an act done or omitted reference must

be had to the Constitution, expounded as it is by history, by parliamentary and common law.

The provisions of the Constitution which relate to or illustrate the law of impeachment are these:

"The House of Representatives shall choose their Speaker and other officers, and shall have the sole power of impeachment." (Art. 1, sec. 2.)

In England a majority of the lords impeach, though, by common law, twelve peers must be present and concur.* Here the concurrence of two thirds of the members [of the Senate] present is requisite.

In England the character and extent of the punishment are in the discretion of the lords. Here it cannot extend further than to removal from and disqualification to hold office.

In England "all the king's subjects are impeachable in Parliament." Here, according to the received construction, "none are liable to impeachment except officers of the Govern ment."

In England the lords are not sworn in trying an impeachment, but give their decision upon their honor. Here Senators act under the solemn sanction of an oath or affirmation. In England the crown is not impeachable. Here the President is.

In England, impeachment may, to some extent, be regarded as a mode of trial designed, inter alia, to punish crime, though not entirely so, since a judgment on an impeachment is no answer to an indictment in the designed to remove unfit persons from office; king's bench. Here impeachment is only and the party convicted is subject to indictment, trial, and punishment in the proper

courts.

It is absurd to say that impeachment is here a mode of procedure for the punishment of crime, when the Constitution declares its object to be removal from and disqualification to hold office, and that "the party convicted shall nevertheless be liable and subject to indictment, trial, judgment, and punishment,

The Senate shall have the sole power to try all impeachments. When sitting for that purpose they shall be on oath or affirmation. When the President of the United States is tried the Chief Justice shall preside; and no person shall be convicted without the concurrence of two thirds of the members present.according to law," for his "crimes." "Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any oflice of honor, trust, or profit under the United States; but the party convicted shall nevertheless be liable and subject to indictment, trial, judgment, and punishment, according to law." (Art. 1, sec. 3.)

"In case of the removal of the President from office, or of his death, resignation, or inability to discharge the powers and duties of the said office, the same shall devolve on the Vice President, and the Congress may by law provide for the case of removal, death, resignation, or inability, both of the President and Vice President, declaring what officer shall then act as President, and such officer shall act accordingly, until the disability be removed or a President shall be elected." (Art. 2, sec 1.)

"The Presieent shall be Commander-in-Chief of the Army and Navy of the United States, and of the militia of the several States when called into the actual service of the United States; he may require the opinion, in writing, of the principal officer in each of the Executive Departments, upon any subject relating to the duties of their respective offices; and he shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment." (Art. 2, sec. 2.*)

"The President, Vice President, and all civil officers of the United States shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors." (Art. 2, sec. 4.)

"The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the State where the said crimes shall have been committed; but when not committed within any State the trial shall be at such place or places as the Congress may by law have directed." (Art. 3, sec. 2.)

The convention which framed the Constitution on the subject of impeachment "proceeded in the same manner it is manifest they did in many other cases; they considered the object of their legislation as a known thing, having a previous definite existence. Thus existing, their work was solely to mold it into a suitable shape. They have given it to us, not as a thing of their creation, but merely of their modification."†

The clauses of the Constitution which declare that a party impeached shall be liable to indictment;" that "the trial of all crimes, except in cases of impeachment, shall be by jury;" that the President shall have power to grant "pardons for offenses against the United States, except in cases of impeachment," are all either parts of or modifications of the British constitution; they recognize statutory and common law crimes as a portion, but not all, of the impeachable offenses here as they were and are in England.

Subject to these modifications, and adopting the recognized rule, that the Constitution should be construed so as to be equal to every

to " 'impeachment without defining it. It assumes the existence

*

"and silently points us to English precedents for knowledge of details. We are reminded of the statement" "that the Constitution is an instrument of enumeration and not of definition."" (Professor Dwight, 6 Am. Law Reg., N. S., 257.)

*5 Comyn's Digest, 308, Parliament L. †2 Wooddeson's Lectures, 602.

In Chase's Trial Mr. Rodney "utterly disclaimed the idea that" any but officers were liable to impeachment.

Wharton says, in reference to Blount's trial: "In a legal point of view all that this case decides is that a Senator of the United States who has been expelled from his seat is not, after such expulsion, subject to impeachment, and perhaps from this the broader proposition may be drawn that none are liable to impeachment except officers of the Government, in the technical sense, excluding thereby members of the national Legislature. Afterward, from the expulsion of Mr. Smith, a Senator from Ohio, for conneetion with Burr's conspiracy, instead of his impeachment, the same implication arises." (Wharton's State Trials, 317, note.)

*

In this case Mr. Bayard maintained "that all perare liable to impeachment;" that the Constitution does not define the cases or describe the persons designed as the objects of impeachment. "We are designedly left to the regulations of the common [parliamentary] law." This view is confirmed by the fact that art. 2, sec. 4, im

peratively requires "removal from office" in case of the President, Vice President, and officers, while art. 1, sec. 3, seems to admit of less punishment than this, and which must, therefore, apply to persons other than officers. (See Wickliffe's argument, Peck's Trial, 309.) The constitution of New York of 1777 is said to have been the model from which the impeachment clauses of the Constitution of the United States were copied. (6 Am. Law Reg., N. S., 277.) That of New York limits impeachments to officers in terms; that of the United States does not. There may be agents and others for whom impeachments would be salutary.

In England military and naval officers are impeachable. If a military or naval officer here should conspire with the President to overthrow Congress the impeachment of both would be a necessary protection, which it may be doubted if the Constitution intended to surrender. In such case a court-martial could not, against the President's will, remove from office; impeachment alone would be effectual. (Wharton's State Trials, 290.)

Fitzharris's Case, 6 Am. Law Reg., N. S., 262.

"Impeachment is a procecding purely of a political nature. It is not so much designed to punish the offender as to secure the State. It touches neither his person nor his property, but simply divests him of his political capacity, (Bayard's Speech on Blount's Trial; Wharton's State Trials, 263.)

occasion which might call for its exercise, and adequate to accomplish the purposes of its framers, impeachment remains here as it was recognized in England at and prior to the adoption of the Constitution.

These limitations were imposed in view of the abuses of the power of impeachment in English history.*

These abuses were not guarded against in our Constitution by limiting, defining, or reducing impeachable crimes, since the same necessity existed here as in England for the reinedy of impeachment, but by other safeguards thrown around it in that instrument. It will be observed that the "sole power of impeachment" is conferred on the House, and the sole power of trial on the Senate by article one, sections two and three. These are the only jurisdictional clauses, and they do not limit impeachment to crimes or misdemeanors. Nor is it elsewhere so limited. Section four of arti cle two only makes it imperative when "the President, Vice President, and all civil officers' are convicted of treason, bribery, or other hight crimes and misdemeanors," that they shall be removed from office. I

But, so far as the questions now before the country are concerned, it is not material whether the words "treason, bribery, or other high crimes and misdemeanors" confer or limit jurisdiction, or only prescribe an imperative punishment as to officers or a class of cases, since every act which by parliamentary usage is impeachable is defined a "high crime or misdemeanor;" and these are the words of the British constitution which describe impeachable conduct. There may be cases appropriate for the exercise of the power of impeachment where no crime or misdemeanor has been committed.

As these words are copied by our Constitution from the British constitutional and parlia

The earliest recorded instance of impeachment by the Commons at the bar of the House of Lords was in the reign of Edward III, (1376.) Before that time the Lords appear to have tried both peers and commoners for great public offenses, but not upon complaints addressed to them by the Commons. During the next four reigns cases of regular impeachment were frequent; but no instances occurred in the reigns of Edward IV, Henry VII, Henry VIII, Edward VI, Queen Mary, and Queen Elizabeth.

The institution had fallen into disuse," (says Mr. Hallam, 1 Const. Hist., 357,) "partly from the loss of that control which the Commons had obtained under Richard II and the Lancasterian kings, and partly from the preference the Tudor princes had given to bills of attainder or of pains and penalties, when they wished to turn the arm of Parliament against an obnoxious subject."

"Prosecutions, also, in the Star Chamber, during that time, were perpetually resorted to by the Crown for the punishment of State offenders. In the reign of James Ithe practice of impeachment was revived, and was used with great energy by the Commons, both as an instrument of popular power and for the furtherance of public justice.

"Between the year 1620, when Sir Giles Mompesson and Lord Bacon were impeached, and the revolution in 1688, there were about forty cases of impeachment. In the reigns of William III, Queen Anne, and George I, there were fifteen; and in the reign of George II none but that of Lord Lovat, in 1746, for high treason. The last memorable cases are those of Warren Hastings in 1788, and Lord Melville in 1805." (May on Parliament, 49, 50; Ingersoll's speech on Blount's Trial, Wharton's State Trials, 285; 4 Hatsell, passim.)

+ The word high" applies as well to "misdemeanors" as to "crimes." (2 Chase's Trial, 383.)

the

On Chase's trial Mr. Rodney so argued; and so Wickliffe on Peck's trial, 309. In Blount's trial Mr. Ingersoll insisted that art. 2, sec. 4, designates extent of the power of impeachment both as to the offenses and the persons liable." (Wharton's State Trials, 289; see p. 99 per Harper.)

4 Hatsell's Precedents, 73-76.

By the constitution of the State of Massachusetts the Senate is "to hear and determine all impeachments made by the House of Representatives against any officer or officers of the Commonwealth for misconduct and maladministration in office."

On the trial of Judge Prescott in 1821, Mr. Blake in defense, referring to the words misconduct and maladministration, said: "What, then, are the legal import and signification of these terms? We answer precisely the same as of crimes and misdemeanors; that they are in every respect equivalent to the more familiar terms that are employed by the constitution of Great Britain in its description of impeachable offences, subject only to the wholesome limitation which in this Commonwealth confines this extraordinary method of trial to the official misdemeanors of public functionaries." (Prescott's Trial, 117, 118.)

mentary law, they are, so far as applicable to our institutions and condition, to be interpreted not by English municipal law, but by the lex parliamentaria.*

When, therefore, Blackstone says that "an impeachment before the Lords by the Commons of Great Britain in Parliament is a prosecution of the already known and established law, and has been frequently put in practice," he must

be understood to refer to the established parliamentary, not common municipal law, as administered in the ordinary courts, for it was the former that had been frequently put in practice.

Whatever "crimes and misdemeanors' were the subjects of impeachment in England prior to the adoption of our Constitution, and as understood by its framers, are, therefore, subjects of impeachment before the Senate of the United States, subject only to the limitations of the Constitution.

The framers of our Constitution, looking to the impeachment trials in England, and to the writers on parliamentary and common law, and to the constitutions and usages of our own States, saw that no act of Parliament or of any State Legislature ever undertook to define an impeachable crime. They saw that the whole system of crimes, as defined in acts of Parliament and as recognized at common law, was prescribed for and adapted to the ordinary courts. (2 Hale, Pl. Crown, ch. 20, p. 150; 6 Howell State Trials, 313, note.)

They saw that the High Court of Impeachment took jurisdiction of cases where no indictable crime had been committed, in many instances, and there were then, as there yet are, two parallel modes of reaching" some, but not all offenders: one by impeachment, the other by indictment.

66

In such cases a party first indicted "may be impeached afterward, and the latter trial may proceed notwithstanding the indictment." On the other hand, the king's bench held in Fitzharris's case that an impeachment was no answer to an indictment in that court.

The two systems are in no way connected, though each may adopt principles applicable to the other, and each may shine by the other's borrowed light.

With these landmarks to guide them, our fathers adopted a Constitution under which official malfeasance and nonfeasance, and, in some cases, misfeasance, may be the subject of impeachment, although not made criminal by act of Congress, or so recognized by the common law of England or of any State of the Union. They adopted impeachment as a means of removing men from office whose misconduct imperils the public safety and renders them unfit to occupy official position.

All this is supported by the elementary writ

Pennock vs. Dialogue, 2 Peters, 2-18. When foreign statutes are "adopted into our legislation the known and settled construction of those statutes by courts of law has been considered as silently incorporated into the acts." (United States vs. Jones, 3 Wash. C. C. R., 209; Ex parte Hall, 1 Pick., 261; Sedgwick on Stat. p. 262, 426; Story on Const., sec. 797; Rawle on Const., 200.) This author says in reference to impeachments, "We must have recourse to the common law of England for the definition of them;" that is, to the common parliamentary law. (3 Wheaton, 610; 1 Wood, and Minot. 448.)

The Constitution contains inherent evidence of this. By it "treason, bribery, and other high crimes and misdemeanors" are impeachable. "Treason" is defined in the Constitution; "bribery" is not; and it therefore means what the common law has defined it. As the Constitution thus itself resorts to the common and parliamentary law for the definition of its terms, the words "high crimes and misdemeanors" are to be interpreted by the same codes. They are as completely included as though every crime had been specifically named. Whatever by the common law was treason and which is not covered by the definition in the Constitution which defined it for the ordinary courts, is still impeachable crime so far as applicable to our institutions.

† 4 Blackstone's Com., 260, read in Oxford 1759. He says, also: "It may happen that a subject intrusted with the administration of public affairs may infringe the rights of the people and be guilty of such crimes as the ordinary magistrate either dares not or cannot punish," that is, cannot punish because not falling within his jurisdiction.

Stafford's Trial, 7 Howard's State Trials, 1297. 16 Am. Law. Reg., N. S., 252,

ers, both English and American, on parlia mentary and common law; by the English and American usage in cases of impeachment; by the opinions of the framers of the Constitution; by contemporaneous construction, all uncontradicted by any author, authority, case, or jurist, for more than three quarters of a century after the adoption of the Constitution. the

authorities are abundant to show that phrase "high crimes and misdemeanors," as used in the British and our Constitution, are not limited to crimes defined by statute or as recognized at common law.*

Christian, who may be supposed to have understood the British constitution when he wrote, says: "When the words high crimes and misdemeanors are used in prosecutions by impeachment, the words high crimes have no definite signification, but are used merely to give greater solemnity to the charge."†

Wooddeson, whose lectures were read at Oxford in 1777, declared that impeachments extended to cases of which the ordinary courts had no jurisdiction. He says:

"may

"Magistrates and officers" * * abuse their delegated powers to the extensive detriment of the community, and at the same time in a manner not properly cognizable before the ordinary tribunals."

And he proceeds to say the remedy is by impeachment.

English history presents many examples of this kind.

*If an act to be impeachable must be indictable, then it might be urged that every act which is indictable must be impeachable. But this has never been pretended. As the Senate must, therefore, decide what acts are impeachable it cannot be governed by their indictable character.

† Note to 4 Blackstone, 5.

2 Wooddeson's Lectures, 596.

I See Comyn's Digest, tit. Parliament. "In 1388 there are several proceedings before the Lords against the Archbishop of York and other great officers and against several of the judges, for having given extrajudicial opinions and misinterpreting the law;" 4 Hatsel, 76; and in a note it is said the Lords determined that such cases I cannot be tried elsewhere than in Parliament, nor by any other law than the law and course of Parliament." *

*

*

It is elsewhere said, "such kind of misdeeds as peculiarly injure the Commonwealth by the abuse of high offices of trust are the most proper" grounds for this kind of prosecutions. Thus" * "if the judges mislead their sovereign by unconstitutional opinions, if any other magistrate attempt to subvert the fundamental laws or introduce arbitrary power." *

*

*

put the seal to an ignominious treaty; a lord admiral

"So when a lord chancellor has been thought to

to neglect the safeguard of the sea; an embassador to betray his trust; a privy counselor to propound or support pernicious and dishonorable measures, &c., &c." (2 Wooddeson's Lectures, 602; 1 Blackstone, 257.) In the Virginia convention, Madison said, "If the President got up a treaty by surprise he would be impeached." (3 Eliot's Debates, 660, 516, 514, 496.) In Ohio, before it was settled that the courts had power to declare legislative acts anconstitutional, one judge of the supreme court and one president judge of the common pleas were tried on impeachments for the exercise of this power, and each escaped conviction by only one vote. (20 Ohio Rep., Appendix, p. 3.)

The Duke of Suffolk was impeached for neglect of duty as an embassador; the Earl of Bristol that he gave counsel against a war with Spain, whose king had affronted the English nation; the Duke of Buckingham that he, being admiral, neglected the safeguard of the sea; Michael de la Pole that he, being chancellor, acted contrary to his duty; the Duke of Buckingham for having a plurality of office: and he whom the poet calls the greatest. wisest, meanest of mankind,' for bribery in his office of lord chancellor; the Lord Finch for unlawful methods of enlarging the forest, in his office of assistant to the justices on Eyre; the Earl of Oxford for selling goods to his own use captured by him as admiral without accounting for a tenth to others." (Ingersoll's Speech on Blount's Trial, Wharton's State Trials, 291.).

Dr. Sacheverel was impeached for preaching an improper sermon. (Harper's Speech, Blount's Trial, Wharton, 301.)

"Andrew Horne, in his Mirror of Justice, mentions many judges punished by King Alfred before the conquest for corrupt judgments."

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"Ourstories mention many punished in the time of Edward I; our Parliament rolls of Edward III's time, of Richard II's time for the pernicious resolutions given at Nottingham Castle, afford examples of this kind. In later times, the Parliament journals of 18 and 21 Jac., the judgment of the ship-money in the time of Charles I questioned, and the particular judges impeached." (Vaugh.. 139; cited in Appendix to Addison's (Pennsylvania) Trial.)

Cases decided in England since the adoption of our Constitution cannot limit the powers it confers. But no case can be found in England which limits impeachment to crimes indietable by common law or

sense.

In the parliamentary sense, as applied

act of Parliament. The power of impeachment for offenses against the State has been distinctly and continuously maintained.

The case of the Earl of Clarendon sustains this position. On the 10th July, 1663, the Earl of Bristol, without any action of the Commons, presented to the House of Lords articles of high treason and other misdemeanors" against the Lord Chancellor. One

Was

"That being in places of high trust, &c., he hath traitorously and maliciously endeavored to alienate the hearts of his majesty's subjects from him by words of his own." "That his majesty was inclined to popery, and had a design to alter the religion established in this kingdom."

The statute 13, Charles II, chapter 1, provides that if any person shall maliciously affirm the king to be a heretic, a papist, or that he endeavors to introduce popery, every person shall be disabled to hold office, &c.

The Lords ordered the Chief Justice and judges to

"Consider whether the said charge hath been brought in regularly and legally, and whether it may be proceeded in, and how, whether there be any treason in it or no."

The judges reported that they did not consider the question whether the impeachment could be proceeded in or not if it came from the Commons, but as the statute of 1 Henry IV, chapter fourteen, provides that "all appeals of things within the realm shall be tried and determined by the laws of the court," articles of impeachment could not be preferred "by the said earl or any private person," that appeals meant 'accusation by single persons." The judges then

And in like manner was most of the articles upon which the character of treason seemed to be fixed. I said that it is a transcendent misprision or offense to endeavor to bring the king into contempt, or to endeavor to alienate the people's affections from him, but yet it was not treason.' "We did not meddle with anything concerning accusing him of misdemeanor.'

And so the Lords resolved, concurring in all these opinions. (6 Howard's State Trials, 318, 346.)

The Commons afterward presented articles of impeachment.

November 16, 1867, Sir R. Howard, in discussing the heads of charges in the Commons, said: "Though common law has its proper sphere, it is not in this place-we are in a higher sphere."

November 11. The Commons resolved to impeach and notified the Lords, and demanded that Clarendon be sequestered from Parliament and committed. (6 Howell, 395.)

The Lords refused until the articles should be presented; and before the question was settled Clarendon escaped to the continent, and the statute 19 Charles II, chapter ten, of December 12, banished him.

The Lords therefore decided nothing.

Among the articles agreed on in the House were these:

IX. That he introduced an arbitrary government in his majesty's plantations, and hath caused such as complained therof before his majesty and counsel to be long imprisoned for so doing.

XI. That he advised and effected the sale of Dunkirk to the French king, being part of his majesty's dominions, together with ammunition, artillery, and all sorts of stores there, and for no greater value than the said ammunition, artillery, and stores were worth.

XVII. That he was a principal author of the fatal counsel of dividing the fleet about June, 1666.

The case of the Earl of Orrery proves nothing as to the law.

November 25, 1669, a petition was presented in the House of Commons charging the Earl with

"Raising moneys by his own authority upon his majesty's subjects, defrauding the king's subjects of their estates. The money raised was for bribing hungry courtiers to come to his ends, and if the king would not he had fifty thousand swords to compel them." The earl answered in person and denied the charges. Then

The question being propounded that a day be appointed for the accusers to produce witnesses to make good the charge," it was negalived-121 to 118."

It was then resolved

That the accusation against the Earl of Orrery be left to be prosecuted at law."

It never was prosecuted. (6 Howell, State Trials, 915.)

Sir Adam Blair was impeached in 1690 by the Com

mons

For dispersing [distributing] a seditious and treasonable paper, printed and entitled 'A declaration of King James II.""

On the question whether articles of impeachment should be preferred, Mr. Hawles said:

"I do not think this to be a plain case of treason by statute 25 Edward III. I do say no court can judge this offense to be treason; and that statute did plainly not bind the superior court of Parliament but the inferior only. The proper way is to judge this high treason; and therefore I am for proceeding by impeachment."

And it was resolved to impeach of high treason.

April 7, 1690, he was admitted to bail, and at the next session of Parliament he was discharged from bail.

Here was a case in which there was clearly no treason under the statute, and yet the Cominons resolved that he should be impeached and so far decided that he was guilty of an impeachable, though not an indictable crime, and which they called treason; adopting the idea prevailing at the time as to constructive treason, but which might as well have been simply called an impeachable misdemeanor. (12 Howell, State Trials, 1213.)

Thomas, Earl of Macclesfield, Lord High Chancellor of England, was tried in May, 1725, before the House of Lords, on articles of impeachment, charging that he

In the office of chancellor did illegally and corruptly insist upon and take of divers persons great sums of money in order to and before their admission into their offices of master in chancery," to which he appointed them.

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The answer was that the sums of money received were presents"Reckoned among the ancient and known perquisites" "and never before looked upon to be criminal;" that the giving or receiving a present on such occasion is not criminal in itself, or by the common law of the realm, and that there is not any act of Parliament whatsoever by which the same is made criminal or subject to any punishment or judgment."

Replication that "the charge of high crimes and misdemeanors is true."

In the argument it was insisted by the managers that the acts complained of violated the statutes of 5 and 6 Edward VI, chapter 16, against selling offices, and violated the oath prescribed by statute 12 Richard II. (Moor, 781, Stock with & Worth.)

But as a question of parliamentary law it was asserted, and not controverted, that acts may be impeachable which are not indictable by common law or act of Parliament.

Mr. Sergeant Pengelly, May 21, 1725, said:

Your lordships are now exercising a power of judication reserved in the original frame of the English constitution for the punishment of offenses of a public nature which may affect the nation, as well in instances where the inferior courts have no power to punish the crimes committed by the ordinary rules of justice as in cases within the jurisdiction of the courts of Westminster Hall, where the person offending is by his degree raised above the apprehension of danger from a prosecution carried on in the more usual course of justice, and whose exalted station requires the united accusation of all the commons of Great Britain by their representatives in Parliament.

This high jurisdiction may be exercised for the preservation of the rights of the Lords and Commons against the attempts of powerful evil ministers who depend upon the favor of the Crown; or it may be put in execution for the ease and relief of a good prince whose honor has been betrayed by a corrupt servant, and yet whose clemency makes him unwilling to punish; so that it becomes necessary for his faithful Commons to take into their care the proteetion of such an offender.

Former reigns have supplied your journals with many examples of the first kind. The present reign produces an instance of the latter sort, wherein the Commons bring before your lordships in judgment a peer offending with the greatest ingratitude against a most just and most merciful sovereign." (6 State Trials, (Hargrave,) 733.)

And again it was said:

My lords, if the misdemeanors of which the earl impeached stands accused were not crimes by the ordinary rules of law in inferior courts, as they have been made out to be, yet they would be offenses of a public nature against the welfare of the subject and the common good of the kingdom, committed by the highest officer of justice and attended with so great and immediate loss to a multitude of sufferers, and as such they would demand the exercise of the extraordinary jurisdiction vested in your judication for the public safety by virtue whereof your lordships can inflict that degree and kind of punishment which no other court can impose." (Page 746; 6 State Trials, (Hargrave,) 477, London, 1777. Same case, 16 Howell's State Trials, 823; and see 4 Campbell's Lord Chancellors, 536; 15 (sixth N. S.) American Law Register, 266.)

He was convicted.

Lord Melville was impeached before the Lords in 1806 for that, as treasurer of the navy, he had used the public money for purposes of private gain, prior to and since the statute of June, 1785. (25 George III, chapter 31.) It was conceded that he had properly accounted for all money; that he had properly paid all demands upon him as treasurer; that it had even been down to a certain period

"Irreproachable to those who exercised that office to make use of the public money which passed through their hands." (Asperne's Report, 6.)

"misconduct," not necessarily indictable,* not only in England, but in the United States.†

the credit of the treasurer of the navy in the Bank of England may be lawfully drawn therefrom by him for the purpose of paying bills actually drawn upon the treasurer, but not yet actually presented; and whether money so drawn may be deposited with a banker until the payment of such bills, and for the purpose of paying them; or whether such acts are in law a crime or offense.

Answer. The judges answered that such drawing and deposit of money were lawful and no crime.

2. Whether moneys issued from the exchequer to the credit of the treasurer of the navy in the Bank of England may be lawfully drawn there from by him to be ultimately applied to navy services, but in the meantime and until required for the purpose of being deposited with a private banker in the name and under the control of his (Melville's) private clerk.

Answer. The judges answered that if the object of drawing the money from the Bank of England was to deposit it with a private banker it was not lawful, although intended to be and in fact ultimately applied to naval service; but if so deposited bona fide as the means or supposed means of more conveniently applying the money to naval services the money may be lawfully drawn.

3. Whether it was lawful for the treasurer, before the statute 25 George III, chapter 31, (and especially as his salary had been augmented by the king's warrant in full satisfaction of all wages, fees, and profits,) to apply money impressed to him for naval services to any other use whatever, public or private, and whether such application would have been a misdemeanor punishable by information or indictment. The judges answered it was not unlawful, so as to constitute a misdemeanor punishable by information or indictment.

The form of these questions implies that Melville had not used the public money for private purposes since the statute of 25 George III, chapter 31, and it was not at common law a misdemeanor to do so prior to the statute.

The case was one not calling for any decision of the general question whether an act to be impeachable must be indictable, nor was any such proposition discussed. The Lords decided he was not guilty.

The first charge against Judge Humphreys was for advocating secession in a public speech, December 29, 1860, which was no crime by common or statute law, and yet he was impeached and removed. There was no rebellion then and no confederate government. (4 Cranch, 75; 1 Dallas, 35; 2 Wallace, jr., 139; 2 Bishop, Criminal Law, 1186-1204: 23 Boston Law Reporter, 597, 705; 1 Bishop, 514; Burr's Trial, Coombe's edition, 322.

*On the 16th of October, 1667, the House being informed that there have been some innovations of late in trials of men for their lives and deaths, and in some particular cases restraints have been put upon juries in the inquiries, this matter is referred to a committee. On the 18th of November this committee are empowered to receive information against the Lord Chief Justice Kelynge, for any other MISDEMEANORS besides those concerning juries; and on the 11th of December, 1667, this committee report several resolutions against the Lord Chief Justice Kelynge, of illegal and arbitrary proceedings in his office. The first of these resolutions is that the proceedings of the Lord Chief Justice in the cases now reported are innovations in the trial of men for their lives and liberties; and that he hath used an arbitrary and illegal power, which is of dangerous consequence to the lives and liberties of the people of England, and tends to the introducing of an arbitrary Government. The Lord Chief Justice hath undervalued, vilified, and contemned Magna Charta, the great preserver of our. lives, freedom, and property." (4 Hatsel Prec., 113, cited 2 Chase's Trial, 461.)

One of the resolves against Chief Justice Scroggs was, That the discharging the grand jury by the Court of King's Bench in Trinity term last before they had finished their presentments was illegal, arbitrary, and a high misdemeanor." (4 Hatsel, 127; 7 State Trials, 479.).

"Misprisions which are merely positive are generally denominated contempts or high misdemeanors, of which

1. The first and principal is the maladministration of such high offices as are in public trust and employment. This is usually punished by the method of parliamentary impeachment." (4 Blackstone, 121.)

In Senate, July 8, 1797, it was "Resolved, That William Blount, esq., one of the Senators of the United States, having been guilty of a high misdemeanor, entirely inconsistent with his public trust and duty as a Senator, be, and he hereby is, expelled from the Senate of the United States.' (Wharton's State Trials, 202.)

He was not guilty of an indictable crime. (Story on the Constitution, sec. 799, note.)

The offense charged, Judge Story remarks, "was not defined by any statute of the United States. It was an attempt to seduce a United States Indian interpreter from his duty, and to alienate the affections and conduct of the Indians from the public officers residing among them."

Blackstone says: The fourth species of offense more immediately against the king and Governinent are entitled misprisions and contempts. Misprisions are, in the acceptation of our law, generally understood to be all such high offenses as are under the degree of capital, but nearly bordering thereon." "Misprisions which are merely positive are generally denominated contempts or high misdemeanors, of which the first and principal is the maladministration of such high offices as are in

Demeanor is conduct, and he is guilty of misdemeanor who misdemeans or misconducts. The power of impeachment, so far as the President is concerned, was inserted in the Constitution to secure "good behavior," to punish "misconduct," to defend "the community against the incapacity, negligence, or perfidy of the Chief Magistrate," to punish "abuse of power," ," "treachery," "corrupting his electors; or, as Madison declared, "for any act which might be called a misdemeanor."* And

public trust and employment. This is usually punished by the method of parliamentary impeachment." (Vol. 4, p. 121.).

(See Prescott's Trial, Massachusetts, 1821, pp. 79-80, 109, 117-20, 172-180, 191.)

to

On Chase's Trial the defense conceded that misbehave or to misdemean is precisely the same." (2 Chase's Trial, 145.)

* From 2 Madison's Papers, 1153, &c.

July 20, 1787. The following clause, relative to the President, being under consideration:

"To be removable on impeachment and conviction for malpractice or neglect of duty.

Mr. Pinckney moved to strike this out, and said, 'He ought not to be impeachable while in office.'

"Mr. Darce. If he be not impeachable while in office he will spare no efforts or means whatever to get himself reelected. He considered this as an essential security for the GOOD BEHAVIOR of the Executive.

"Mr. Wilson concurred.

"Mr. Gouverneur Morris. He can do no criminal act without coadjutors, who may be punished. In case he should be reelected that will be a sufficient proof of his innocence. Besides, who is to impeach? Is the impeachment to suspend his functions? If it is not the mischief will go on.

"Colonel Mason. No point is of more importance than that the right of impeachment should be continued. Shall any man be above justice? Above all, shall that man be above it who can commit the most extensive injustice?

"Dr. Franklin was for retaining the clause as favorable to the Executive. History furnishes one example only of a First Magistrate brought to public justice. Everybody cried out against this as unconstitutional. What was the practice before this in cases where the Chief Magistrate rendered himself obnoxious? Why, recourse was had to assassination, in which he was not only deprived of his life, but of the opportunity of vindicating his character. It would be the best way, therefore, to provide in the Constitution for the regular punishment of the Executive where his MISCONDUCT should deserve it, and for his honorable acquittal where he should be unjustly accused.

"G. Morris admits corruption and some few other offenses to be such as ought to be impeachable, but thought the cases ought to be enumerated and defined.

"Mr. Madison thought it indispensable that some provision should be made for defending the cominunity against the incapacity, negligence, or perfidy of the Chief Magistrate. The limitation of the period of his service was not a sufficient security. He might lose his capacity after his appointment. He might pervert his administration into a scheme of peculation or oppression. He might betray his trust to foreign Powers. In case of the Executive Magistrate, which was to be administered by a single man, loss of capacity or corruption was more within the compass of probable events, and either of them might be fatal to the Republic.

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"Mr. Gerry urged the necessity of impeachments. A good magistrate will not fear them. A bad one ought to be kept in fear of them. He hoped the maxim would never be adopted here that the Chief Magistrate could do no wrong.

"Mr. Randolph. The propriety of impeachments was a favorite principle with him. Guilt, wherever found, ought to be punished. The Executive will have great opportunities of abusing his power, particularly in time of war.

"G. Morris. The Executive ought to be impeachable for treachery. Corrupting his electors and incapacity were other causes of impeachment. For the latter he should be punished not as a man, but as an officer, and punished only by degradation from his office.

"The proposition was agreed to by a vote of eight States to two."

(From 3 Madison's Papers, 1528.)

September 8, 1787.

The clause referring to the Senate the trial of impeachment against the President for treason and bribery was taken up.

"Colonel Mason. Why is the provision restrained to treason and bribery? Treason, as defined in the Constitution, will not reach many great and dangerous offenses. Hastings is not guilty of treason. Attempts to subvert the Constitution may not be treason as above defined. As bills of attainder, which have saved the British constitution, are forbidden, it is the more necessary to extend the power of impeachments.

"He moved to add after 'bribery' or 'maladministration.'

"Mr. Madison. So vague a term will be equivalent to a tenure during the pleasure of the Senate. "Colonel Mason withdrew 'maladministration' and substituted other high crimes and misdemeanors against the State.'

"Agreed to, eight States to three.

"Mr. Madison objected to the trial of the President

The Constitution declares that "the judges, both of the Supreme and inferior courts, shall hold their commissions during good beha vior."t

By a public law every judge is required to take an oath as follows:

"I do solemnly swear that I will administer justice without respect to persons, and do equal right to the poor and to the rich; and that I will faithfully and impartially discharge and perform all the duties incumbent on me as judge, &c., according to the best of my abilities and understanding, agreeably to the Constitution and laws of the United States. So help me God."

By another public law-the Constitutionthe President is required to take an oath that he will faithfully execute the office of President of the United States, and will to the best of his ability preserve, protect, and defend the Constitution of the United States."

These oaths are public laws defining duties, and a violation of them is an impeachable misdemeanor, for Judge Blackstone says:

"A crime or misdemeanor is an act committed or omitted in violation of a public law, either forbidding or commanding it."I

The Constitution contains inherent evidence,

by the Senate, especially as he was to be impeached by the other branch of the Legislature; and for any act which might be called a misdemeanor. The President, under these circumstances, was made improperly dependent. He would prefer the Supreme Court for the trial of impeachments."

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Mr. Williamson thought there was more danger of too much lenity than of too much rigor." The subject of impeachment will also be found referred to under the following dates in 1787, to wit: May 28, June 2, June 18, July 18, August 6, August 20, August 22, September 4, and September 17. The propositions submitted declared officers impeachable "for mal and corrupt conduct,"" for treason, bribery, or corruption," for treason or bribery." But the Constitution finally rejected all these limitations, and gave the largest power of impeachment known to parliamentary law so far as it relates to misde

meanors.

On the 16th June, 1789, on the bill to establish a Department of Foreign Affairs, Mr. Madison said in Congress: "Perhaps the great danger"

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"of abuse in the executive power lies in the improper continuance of bad men in office. But the power we contend for will not enable him to do this; for if an unworthy man be continued in office by an unworthy President, the House of Representatives can at any time impeach him, and the Senate can remove him whether the President chooses or not. The danger then consists merely in this: the President can displace from office a man whose merits require that he should be continued in it. What will be the motives which the President can feel for such abuse of his power and the restraints that operate to prevent it? In the first place, he will be impeachable by the House before the Senate for such an act of maladministration; for I contend that the wanton removal of meritorious officers would subject him to impeachment and removal from his own high trust." (4 Eliot's Debates, 380.)

A statute of Henry VIII, providing for the appointment of a custos rotulorum and clerk of the peace for the several counties of England, provides that the custos shall hold his office until removed, and the clerk of the peace durante se bene gesserit. It recites that ignorant persons had got in by unfair means. And so is the tenure of judges in England by the Declaration of Right. The tenure durante, &c., was introduced to enable a removal to be made for misbehavior.-(2 Chase's Trial, 337.) By act of 13 William 3, c. 2, s. 3, the commission of every judge runs quamdiu se bene gesserit."-(2 Chase's Trial, 255, 336, 342, 386.) See p. 145 Peck's Trial, 427, where Buchanan said: " Judges hold during good behaviorofficial misbehavior is impeachable. What is misbehavior? We are bound to prove that the respondent has violated the Constitution or some known law of the land. This was the principle deduced from Chase's Trial in opposition to the principle"

** "that in order to render an officer impeachable he must be indictable."

Act of September 24, 1789, 1Stat. 76; Chase's Trial, 402.

"At common law an ordinary violation of a public statute, even by one not in office, though the statute in terms provides no punishment, is an indictable misdemeanor." (Bishop's MS. letter to a member of the Judiciary Committee, citing 1 Bishop Cr. Law, 3d ed., 187, 535.)

The term "misdemeanor" covers every act of "mis- -\| behavior," in the popular sense.

'Misdemeanor in office and misbehavior in office mean the same thing." (7 Dane's Abridgement, 365.) Misbehavior, therefore, which is mere negation of "good behavior," is an express limitation of the office of a judge. (See North American Review for October, 1862.)

Alexander Hamilton, in disenssing the judicial 'tenure of good behavior," and the remedy in cases

therefore, that as to judges they should be impeachable when their behavior is not good-and the Senate are made the exclusive judges of what is bad behavior.

The words "good behavior" are borrowed from the English laws and have been-construed there in a way to enlarge the scope of impeachment to a wide range. They were first introduced into an English statute to procure the removal of officers who, on trial, might prove too ignorant to perform their duties.

These general views are sustained by the opinions of the framers of the Constitution, declared by themselves in convention, by Madson* in the Virginia convention of 1788, and by Alexander Hamiltont in the Federalist,

of "judiciary encroachments on the legislative authority" by pronouncing laws unconstitutional, says: "It may, in the last place, be observed that the supposed danger of judiciary encroachments on the legislative authority, which has been upon many occasions reiterated, is, in reality, a phantom. Particular misconstructions and contraventions of the will of the Legislature may now and then happen, but they can never be so extensive as to amount to an inconvenience, or in any sensible degree to affect the order of the political system. This may be inferred with certainty, from the general nature of the judicial power; from the objects to which it relates; from the manner in which it is exercised; from its comparative weakness; and from its total incapacity to support its usurpations by force. And the inference is greatly fortified by the consideration of the important constitutional check which the power of instituting impeachments in one part of the legislative body, and of determining upon them in the other, would give to that body upon the members of the judicial department. This is alone a complete security. There never can be danger that the judges, by a series of deliberate usurpations on the authority of the Legislature, would hazard the united resentment of the body intrusted with it, while this body was possessed of the power to punish them for their presumption by degrading them from their stations. While this ought to remove all apprehensions on the subject, it affords, at the same time, a cogent argument for constituting the Senate a court for the trial of impeachment." (Federalist, No. 81.)

Impeachment is not merely nor necessarily punitive only, but it may, and often must be, protective. The safety of the public may demand its exercise in cases where there has been no intentional wrong but only a mistake of judgment. The Republic cannot be suffered to perish or its great interests to be put in peril from any tender regard for individual feelings or errors,

And Thomas Jefferson evidently held that judges were impeachable for assumptions of power. (Letter to Mr. Jarvis, September 28, 1820; and see Jackson's veto message on the bank bill.)

"Were the President to commit anything so atrocious as to summon only a few States (to consider a treaty) he would be impeached and convicted, as a majority of the States would be affected by his misdemeanor."

And again:

"Mr. Madison, adverting to Mr. Mason's objection to the President's power of pardoning, said it would be extremely improper to vest it in the House of Representatives, and not much less so to place it in the Senate, because numerous bodies were actuated more or less by passion, and might, in the moment of vengeance, forget humanity. It was an established practice in Massachusetts for the Legislature to determine in such cases.

"It was found, says he, that two different sessions, before each of which the question came, with respect to pardoning the delinquents of the rebellion, were governed precisely by different sentiments-the one would execute with universal vengeance and the other would extend general mercy.

There is one security in this case to which gentlemen may not have adverted: if the President be connected in any suspicious manner with any persons, and there be grounds to believe he will shelter himself, the House of Representatives can impeach him; they can remove him if found guilty; they can suspend him when suspected, and the power will devolve on the Vice President. Should he be suspected also he may, likewise, be suspended till he be imDeached and removed, and the Legislature shall make a temporary appointment. This is a great security." (Debates of the Virginia Convention, printed at the Enquirer Press for Richey, Worsley & Augustine Davis, 1805, pp. 353-4; 11 Howell, statute seven, 733.)

In the Federalist, No 65, he says:

The subject of its jurisdiction are those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may, with peculiar propriety, be denominated political, as they relate chiefly to injuries done immediately to the society itself."

"What," it may be asked, "is the true spirit of the institution itself? Is it not designed as a method of national inquest into the conduct of public men? If this be the design of it who can so properly be the inquisitors for the nation as the representatives of the nation themselves? It is not disputed that the power of originating the inquiry, or, in other words, of preferring the impeachment, ought to be lodged in one branch of the legislative body; will not the reasons which indicate the propriety of this arrange