who says that "several of the State constitutions have followed the example" of Great Britain. And up to that time the State constitutions had adopted the British system with only some modifications, but none of them recognizing the idea that impeachment was limited to indictable acts, but all affirming that the subjects of this jurisdiction were offenses of a political nature. Some of these constitutions limited impeachment to "mal and corrupt conduct in office," or, as in the New York constitution of 1777, to "venal and corrupt conduct in office," while the Constitution of the United States discarded all these limitations and gave the power in the broadest terms. It is said this provision in the Constitution of the United States was copied from that of New York. If so, the change of phraseology is significant.

These general views are supported by the elementary writers, without exception, up to the last year.

Curtis, in his History of the Constitution,

says:

Although an impeachment may involve an inquiry, whether a crime against any positive law has been committed, yet it is not necessarily a trial for crime, nor is there any necessity, in the case of crimes committed by public officers, for the institution of any special proceeding for the infliction of the punishment prescribed by the laws, since they, like all other persons, are amenable to the ordinary jurisdiction of the courts of justice, in respect of offenses

ment strongly plead for an admission of the other branch of that body to a share of the inquiry? The model from which the idea of this institution has been borrowed pointed out that course to the convention. In Great Britain it is the province of the House of Commons to prefer the impeachment and of the House of Lords to decide upon it. Several of the State constitutions have followed the example. As well the latter as the former seem to have regarded the practice of impeachments as a bridle in the hands of the legislative body upon the executive servants of the Government. Is not this the true light in which it is to be regarded."

To what extent this writer contemplated the exertion of this power is not left in doubt. In the succeeding number of the same commentary he observes:

"The convention might with propriety have meditated the punishment of the Executive for a deviation from the instructions of the Senate or a want of integrity in the conduct of the negotiations committed to him," clearly not statutory offenses.

*Thus, in that of Virginia, established in 1776, is seen this provision: "The Governor, when he is out of office, and others offending against the State, either by maladministration, corruption, or other shall be impeachable by the House of Delegates In the same year, in the succeeding month, Delaware provided in her constitution that "the President when he is out of office, and eighteen months thereafter, and all others offending against the State, either by maladministration, corruption, or other means, by which the safety of the Commonwealth may be endangered, shall be impeachable by the House of Assembly." So North Carolina two months later provided in her constitution: "The Governor and other officers offending against the State by violating any part of this constitution, maladminis tration, or corruption may be prosecuted on the impeachment of the General Assembly, or presentment of the grand jury of any court of supreme jurisdiction in this State.'

The constitution of Connecticut is stated to contain a provision to call to account for any misdemeanor and maladministration." That of New York provides: "The power of impeaching all officers of the State for mal and corrupt conduct in their respective offices is vested in the representatives of the people in Assembly," and the trial is declared to be for "crimes and misdemeanors." So, in the elaborate constitution of Massachusetts, the eighth article declares: "The Senate shall be a court with full authority to hear and determine all impeachments made by the House of Representatives against any officer or officers of the Commonwealth for misconduct and maladministration in their offices." Hence, it will be remarked, that in all of the State constitutions to which we have had access, formed prior to that of the United States, the impeachable offenses are of a nature which may with peculiar propriety be denominated political!." In neither of them are the subjects of impeachment mere "statutory offenses." This minute recurrence to the constitutions of several States will not be deemed inappropriate when it is remembered that they are not only the most authentic evidence of the public sense of our country at an early period, but because, in the formation of the Federal Constitution, their provisions should have a controlling influence on the minds of their delegates to the general convention, seeking to commend it to their adoption by ingrafting into it parts of their own systems, and thus imparting to it the well-ascertained spirit and prudence of those who, if adopted, were to be its constituents." (From an able article by John C. Hamilton, Esq.)

† Vol. 6 Am. Law Reg. N. S. 277; Wharton's State Trials, 287.

t Curtis's Hist. of Const., 260-1; 5 Eliot, 507-529.

against positive law. The purposes of an impeachment lie wholly beyond the penalties of the statute or the customary law. The object of the proceeding is to ascer tain whether cause exists for removing a public officer from office. Such a cause may be found in the fact, that either in the discharge of his office, or aside from its functions, he has violated a law, or committed what is technically denominated a crime. But a cause for removal from office may exist where no offense against positive law has been committed, as where the individual has from immorality, or imbecility, or maladministration become unfit to exercise the office. The rules by which an impeachment is to be determined are therefore peculiar, and are not fully embraced by those principles or provisions of law which courts of ordinary jurisdiction are required to administer."

Selden says:

"Upon complaints and accusations of the Commons the Lords inay proceed in judgment against the delinquent of what degree soever and what nature soever the offense be. For where the Commons complain the Lords do not assume to themselves trial at common law. Neither do the Lords, at the trial of a common impeachment by the Commons, decedere de jure suo, (depart from their own law.) For the Commons are there instead of a jury, and the parties answer, and examination of witnesses are to be judgment is not to be given but upon their demand, in their presence, or they to have copies thereof; and which is instead of a verdict, so the Lords do only judge, not try the delinquent." (Selden's Judicature in Parliaments, London, 1681, p. 6.)

The reasoning by which the power of the House of Representatives to punish for contempts (which are breaches of privilege and offenses not defined by any positive laws) has been upheld by the Supreme Court, stands upon similar grounds; for if the House had no jurisdiction to punish for contempts until the acts had been previously defined and ascertained by positive law, it is clear that the process of arrest would be illegal." (Denn vs. Anderson, 6 Wheat., 204.) "In examining the parliamentary history of impeachments, it will be found that many offenses not easily definable by law, and many of a purely political character, have been deemed high crimes and misdemeanors worthy of this extraordinaryremedy." "There are many offenses, purely political, which have been held to be within the reach of parliamentary impeachments, not one of which is, in the slightest manner, alluded to in our statute-books. And, indeed, political offenses are of so various and complex a character, so utterly incapable of being defined or classified, that the task of positive legislation would be impracticable, if it were not almost absurd to attempt it. What, for instance, could positive legislation do in cases of impeachment like the charges against Warren Hastings, in 1788? Resort then must be had either to parliamentary practice, and the common law, in order to ascertain what are high crimes and misdemeanors, or the whole subject must be left to the arbitrary discretion of the Senate for the time being. The latter is so incompatible with the genius of our institutions that no lawyer or stateman would be inclined to countenance so absolute a depotism of opinion and practice, which might make that a crime at one time or in one person, which would be deemed innocent at another time or in another person. The only safe guide in such cases must be the common law.' "And however much it may fall in with the political theories of certain statesmen and jurists to deny the existence of a common law belonging to and applicable to the nation in ordinary cases, no one has as yet been bold enough to assert that the power of impeachment is limited to offenses positively defined in the statute-book of the Union, as impeachable high crimes and misdemeanors."

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* 1 Story on Const., sec. 799. In a note he says: "It may be supposed that the first charge in the articles of impeachinent against William Blount was a statutable offense; but on an accurate examination of the act of Congress of 1796, it will be found not to have been so.'

+1 Story on Const., sec. 800. He proceeds to cite

numerous cases.

1 Story on Const., sec. 797.

Rawle, in his work on the Constitution, says: "The delegation of important trusts affecting the higher interests of society is always from various causes liable to abuse. The fondness frequently felt for the inordinate extension of power, the influence of party and of prejudice, the seductions of foreign States, or the baser appetite for illegitimate emoluments, are sometimes productions of what are not inaptly termed political offenses, (Federalist, No. 65,) which it would be difficult to take cognizance of in the ordinary course of judicial proceeding.

The involutions and varieties of vice are too many and too artful to be anticipated by positive law." (Rawle on Const., 200.)

"In general, those offenses which may be committed equally by a private person as by a public officer are not the subjects of impeachment." (16., 204.)

"We may perceive in this scheme one useful mode of removing from office him who is unworthy to fill it, in cases where the people and sometimes the Pres

Neither in Congress nor in any State has any statute been proposed to define impeachable crimes so uniform has been the opinion that none was necessary, even in those States, few in number, where common-law crimes do not exist.

The assertion, "that unless the crime is specifically named in the Constitution, impeachments, like indictments, can only be instituted for crimes committed against the statutory law of the United States," is a view not yet a year old, which has not been held at any prior time, either in England or America.

It would certainly seem clear that impeachments are not necessarily limited to acts indictable by statute or common law, and that it would be impossible for human prescience or foresight to define in advance by statute the necessary subjects of impeachments. The Constitution contemplated no such absurd impossibility. It may be said there is danger in leaving to the Senate a power so undefined. It was because of this danger that the power has been limited as it is by the Constitution, and experience has shown that the limitations are more than sufficient.

The whole system of common-law crimes, as it exists in England, and in almost every State of the Union, is the result of a judicial power equally undefined.

The system of impeachment is to be governed by great general principles of right, and it is less probable that the Senate will depart from these, than that the whole Legislature would in the enactment of a law, or than courts in establishing the common law.†

ident himself would be unable to accomplish that object." (Ib., 208.)

Chancellor Kent, in discussing the subject of impeachment, says: The Constitution has rendered him [the President] directly amenable by law for maladministration. The inviolability of any officer of the Government is incompatible with the republican theory as well as with the principles of retributive justice.

"If the President will use the authority of his station to violate the Constitution or law of the land, the House of Representatives can arrest him in his carcer by resorting to the power of impeachment." (1 Kent's Com., 289.)

Vol. 6 Am. Law Reg., N. S., 269.

The Constitution has made the Senate, like the House of Lords, sole judge of what the law is, assuming their wisdom to be equal to that of the cominon law courts. (2 Hale's P. C., 276; Barclay's Digest, 140; Constitution, article one, section three.) This is necessarily so; for though some statutory and common law crimes are impeachable, yet not all of them are, and the Senate decides which are and are not. It is said if the impeachable crimes are not defined by law the power of impeachment will be undefined and dangerous. The power to determine impeachable erimes by the Senate is no more undefined than the power of the common law courts to determine common-law crimes. Impeachment is regulated by principles as well defined and permanently settled as the fundamental and eternal doctrines of right, reason, and justice pervading the parliamentary jurisprudence of civilized nations, and, like the common law, it has emerged from primeval errors and adapted itself to an advanced civilization. The danger of imperiling the safety of nations in measuring parliamentary law by the rule which defines wrongs to individuals is infinitely greater than the evils which can flow from recognizing the law of impeachment as a parliamentary system resting upon its own solid foundations.

The rule which allows impeachments for indictable acts enables the legislative department or the Senate alone to declare trivial offenses impeachable while the parliamentary law limiting impeachable offenses to misdemeanors affecting the nation is less latitudinarian and attended with less danger of abuse. When impeachment is employed to remove officers for willful violation of the Constitution or laws, for exercising the powers of Congress, or the judiciary for performing acts affecting the nation unauthorized by law, for refusing to execute laws requiring that duty, for a perversion of lawful powers to accomplish unconstitutional objects-these are

"Offenses as tangible and as capable of being measured by fixed rules as any felony defined in criminal laws."

And this is as definite and no less latitudinarian than the common law itself, which is "the perfection of reason" as determined by courts. For even in England not all common-law offenses are impeachable, but only such of them (along with others not indictable) as by parliamentary usage or popular sense rise to the dignity of "high" misdemeanors, and of this the House of Lords are the sole judges. (Peck's Trial, 10 Selden, Judicature in Parliaments, 6; 2 Hale's P. C., 275; Barclay's Digest, 140.)

On the trial of Judge Prescott, in Massachusetfs, in 1821, Mr. Shaw said: "The security of our rights depends rather upon the general tenor and character than upon particular provisions of our Constitu

The Constitution contains inherent evidence that the indictable character of an act does not define its impeachable quality. It enumerates the classes of cases in which legislative power may be exercised, and it defines the class of persons and cases to which the judicial power extends; but there is no such enumeration of impeachable cases, though there is of persons.

In England and some of the States the power of removal of officers by the Executive, on the address or request of the Legislature, exists, but the Constitution made no provision for this as to any officer, manifestly because the power of impeachment extended to every proper case for removal.

As to the President and Vice President there is this provision, that—

"Congress may by law provide for the case of removal, death, resignation, or inability,"

*

declaring what officer shall then act"

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* "until the disability be removed or a President shall be elected." (Art. 2, sec. 1.)

It has already been shown that the framers of the Constitution regarded the power of impeachment as a means of defending "the community against the incapacity" of officers. This clause of the Constitution recognized the same view, article two, section one:

"Congress may by law provide for the case of" 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."

This and the power of impeachment are the only modes of getting rid of officers whose inability from insanity or otherwise renders them unfit to hold office, and whose every official act will necessarily be misdemeanor. As to the President and Vice President it was necessary to give Congress the power to des ignate a successor, and so do determine the disability. As to all other officers the Constitution or laws define the mode of designating a successor, and it is left to the impeaching power to remove in cases of insanity or misdemeanor arising from that or other cause. It cannot be supposed the whole nation must suffer without remedy if the whole Supreme Court or other officers should become utterly disabled from the performance of their duties. Such an occurrence is within the range of pos sibility, if not probability.

In our system it is utterly impossible to apply any test of common law or statutory criminality. The Supreme Court, without much consideration, has determined that the national courts have never been clothed with jurisdiction of common-law crimes.†

tion. The love of freedom and justice so deeply engraven upon the hearts of the people and interwoven in the whole texture of our social institutions, a thorough and intelligent acquaintance with their rights, and a firm determination to maintain them; in short, those moral and intellectual qualities without which social liberty cannot exist, and over which despotism can obtain no control, these stamp the character and give security to the rights of the free people of this Commonwealth."

*

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But it has not been, and it cannot be, contended that, in its decisions and adjudications, this court is not governed by established laws. These may be positive and express, or they may depend upon reasoning and analogy. It would be idle to expect a rule applicable to every case in the text of the statute-book. Laws are founded on certain general principles and the relations of men in society. It is the province of this court, as of all other judicial tribunals, to search out and apply these principles to the particular cases in judgment before them." (See 4 Howard's State Trials, 47, per Selden; 6 Am. Law Reg., N. S., 264.)

Removal on the address of both Houses of Parliament is provided for in the act of settlement, 3 HalJam, 262. In the convention which framed our national Constitution, June 2, 1787, Mr. John Dickinson, of Delaware, moved "That the Executive be made removable by the national Legislature on the request of a majority of the Legislatures of individual States." Delaware alone voted for this, and it was rejected. Impeachment was deemed sufficiently comprehensive to cover every proper case for removal.

The reason which denies jurisdiction of common-law crimes to the courts of the United States does not apply to impeachments,

By the Constitution the trial for crimes must be had in the State and district where committed. (Arfiele 6 Amendments.) By the judiciary act of September 24, 1789, the Supreme Court is restricted to holding sessions at Washington. (1 Statutes-at-Large. 73.) By the Constitution the judicial power of the

When the Constitution was adopted all the States recognized common-law crimes, and those added since do so, with few exceptions. But there is something peculiar to each and different from all others in its common-law crimes, growing out of the rulings of judges or its condition, and in all statutes have made changes, so that no two States recognize the same crimes.

The Constitution authorizes Congress "to provide for the punishment of counterfeiting the securities and current coin of the United States;" "to define and punish piracies and felonies committed on the high seas, and offenses against the law of nations;" but nowhere declares they may define impeachable crimes, for the very good reason that common parliamentary law, subject, like the common law, to be molded to circumstances and adapted to times, had already sufficiently defined them. Congress cannot by any law abridge the right of the House to impeach or the Senate to try.

When the Constitution confers on the House the "sole power of impeachment," and on the Senate "the sole power of trial," these are independent powers, not to be controlled by the joint opinion of the two Houses previously incorporated into a law.* Suppose such a law passed. It cannot be repealed over a veto except by a two-thirds vote in each House. Yet a majority may impeach; and, after the veto of a repealing law, can that majority be denied the constitutional privilege conferred on them?

"Treason, bribery, and other high crimes and misdemeanors" are, of course, impeachable. Treason and bribery are specifically named. But "other high crimes and misdemeanors" are just as fully comprehended as though each was specified. The Senate is made the sole judge of what they are. There is no revising court. The Senate determines

United States is vested in the Supreme Court and such inferior courts as Congress may establish. (Article 3, section 1; article 1, section 10.)

It was held as early as 1812 that the circuit and district courts of the United States, being the "inferior courts" established by Congress, could exercise no common-law criminal jurisdiction. This doctrine was reaffirmed in 1816 by a divided court, and has never been authoritatively decided since. (United States vs. Hudson, 7 Cranch, 32; United States vs. Corlidge, 1 Wheaton, 415; 1 Galli's Reports, 488; United States vs. Lancaster, 2 McLean's Reports, 431; Washington Circuit Court Reports, 84; United States vs. Ravara, 2 Dallas, 297; United States vs. Worrall, 2 Dallas, 384; United States vs. Maurice, 2 Brock., 96; United States vs. New Bedford Bridge, 1 Woodbridge & Minot, 401; United States vs. Babcock, 4 McLean, 113-115.)

This ruling has been disapproved by the ablest commentators on constitutional and criminal lawby Story and Rawie and Bishop and Wharton. (1 Bishop's Criminal Law, third edition, 163, [20;] aet of Congress of September 24, 1789, sections 9-11; Statutes 1842, chapter 188, section 3; Du Ponceau on Jurisdiction.)

The denial of common-law criminal jurisdiction in these inferior courts rests solely on the reasons that such tribunals being created not by the Constitution, but by act of Congress, they

"Possess no jurisdiction but what is given them by the power that creates them;" and that

"There exists ne definite criterion of distribution [of jurisdiction] between the district and circuit courts of the same district."

And that common law

"Jurisdiction has not been conferred by any legislative act."

And it is said that the Supreme Court alone"Possesses jurisdiction derived immediately from the Constitution, and of which the legislative power cannot deprive it." (7 Cranch, 33.)

Where, therefore, a common-law jurisdiction is conferred by the Constitution on a court created by that instrument, it is one "of which the legislative power cannot deprive it." (7 Cranch, 33.)

And this is precisely what the Constitution has done as to impeachments; it has created the tribunal for their trial-the Senate; it has given that body jurisdiction of all crimes and misdemeanors" impeachable by parliamentary usage, and no law can limit it. And this view has been sustained by Story and Rawle and Kent, after and in view of the decisions referred to. (6 American Law Register, 656.) At the time the Constitution was adopted, and ever since in England and all the original States of the Union, what is known as the "common law" and common-law crimes" existed, and yet exist, in addition to crimes defined by statute; and this is so in all the States except Ohio, and perhaps two or three others.

* "The Parliament cannot by any act restrain the power of a subsequent Parliament." (4 Inst., 42; 5 Com. Dig., 301.)

in the light of parliamentary law. Congress cannot define or limit by law that which the Constitution defines in two cases by enumeration and in others by classification, and of which the Senate is sole judge.* It has never been pretended that treason and bribery would not be impeachable if not made criminal by statute or so recognized by national common law. They are impeachable because enumerated. Other high crimes and misdemeanors are equally designated by classification.

Suppose the Constitution had declared "that all persons committing treason, bribery, or other high crimes and misdemeanors' shall be punished by indictment in the courts of the United States," can it be doubted that every crime and misdemeanor recognized by the common law would be the subject of indictment? "This would be by force of the Constitution employing the words crimes and misdemeanors; for these are words known to the common law, and it is a universal principle of interpretation, acted on in all the courts, that a common-law term employed in conferring jurisdiction on courts is to bear its common-law meaning."

Now, when the Constitution says that all civil officers shall be removable on impeachment for high crimes and misdemeanors, and the Senate shall have the sole power of trial, the jurisdiction is conferred, and its scope is defined by common parliamentary law.†

The national courts do not take jurisdiction of common-law crimes, not because commonlaw crimes do not exist, but because their jurisdiction is only such as is expressly conferred on them, and no statute has conferred the jurisdiction. But in the District of Columbia, under national jurisdiction, common-law crimes and jurisdiction of them in the courts do exist.

In addition to this there are crimes exclusively of national jurisdiction and others exclusively of State cognizance. The murder of citizens in a State is not and cannot be made criminal by act of Congress where it is not perpetrated in the denial of a national right. The States alone provide for this and many other offenses. And in the States not recognizing

"The peers are judges of law as well as of fact." (2 Hale's P. C., 275; Barclay's Digest, 140.) They, therefore, are not governed by the indictable character of an act. In fact, as the highest court, they make not only parliamentary law, but the law for the courts. (Regina vs. O'Connell.)

Impeachable misdemeanors are determined by the Senate just as each House of Congress and the courts having the jurisdiction to punish for contempts determine what acts or neglect constitute them. (7 Cranch, 320.)

+Common-law crimes do exist, they are indictable, and jurisdiction of them has existed in the courts of the United States for two thirds of a century in the District of Columbia." (1 Bishop on Criminal Law, section 167, [22:] Du Ponceau on Jurisdiction, 62-73; Kendall vs. United States, 12 Peters, 524-613; United Stats vs. Watkins, 3 Cranch, 441.)

The highest authority on criminal law in this country says:

"There must in reason and in legal principle be in those localities where State power is unknown_common-law crimes against the United States. Especially this exception must in reason extend to all matters which concern our intercourse with foreign as well as to all local transactions beyond the territorial limits of the several States. The law of nations and the law of the admiralty concerning both civil and criminal things would seem, therefore, to have been made United States common law." "And so the United States tribunal would appear to have common law cognizance of offenses upon the high seas not defined by statutes, and of all other offenses within the proper cognizance of the criminal courts of a nation, committed beyond the jurisdiction of any particular State." (1 Bishop on Criminal Law, section 165, [21.])

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The act of Congress of February 27, 1801, extended and continued in force over the District the common and statute law of Maryland, where common-law crimes existed, and organized a circuit court with the jurisdiction conferred on circuit courts of the United States by section eleven of the act of February 13, 1801. (2 United States Statutes-at-Large, 92; 2 Statutes, 103-105, sections 1-3.)

The criminal court organized by act of July 7, 1838, had the same criminal jurisdiction. (5 Statutes, 303.) The supreme court of the District, organized by act of March 3, 1863, has the same jurisdiction of the prior courts thereby abolished. (12 Statutes, section 3.) That jurisdiction is conferred in these words: "That," * "said courts" "shall have cognizance of all crimes and offenses cognizable under the authority of the United States." (2 Statutes, 92, act February 13, 1801.)

common-law crimes they may omit to make homicide a penal offense as to Indians, negroes, or others, if the Legislature so determine, in the absence of a law of Congress similar to the "civil rights" act.*

If no act is impeachable which is not made criminal, then its criminality must depend1. On an act of Congress defining crimes; or, 2. On acts of State Legislatures defining crimes; or,

3. On the definition of common-law crimes in the States; or,

4. On the common-law crimes existing in England when the Constitution was adopted.

It is quite clear that national law in some form must control it, since "the United States have no concern with any but their own laws."†

The national Government is complete in itself, with powers which neither depend ou nor can be abridged by State laws.

If, then, impeachment is limited to acts made criminal by a statute of Congress, an officer of the United States cannot be impeached, though he should go into the "Dominion of Canada" or the "republic of Mexico" and there stir up insurrection or be guilty of violating all the laws of the land; or if he should go into a State and violate all of its laws.|| If so, a highway robber may be President, and he is exempt from impeachment!

It is not possible that a position so monstrous was intended by the framers of the Constitution. Nor can the criminal statutes or common law of the States limit or regulate national impeachable offenses. The fact that each State differs from all others in its laws renders this impossible. It never could have been designed to control the national power of impeachment by State laws, ever varying and conflicting as they are.?

*Act of April 9, 1866, 14 Stat., 27.

"It was said by one of the counsel that the offense must be a breach either of the common law, a State law, or a law of the United States, and that no lawyer could speak of a misdemeanor but as an act violating some one of these laws. This doctrine surely is not warranted, for the Government of the United States have no concern with any but their own laws." "But as a member of the House of Representatives, and acting as a manager of an impeachment before the highest court in the nation, appointed to try the highest officers of the Government, when I speak of a misdemeanor I mean an act of official misconduct, a violation of official duty, whether it be a proceeding against a positive law or a proceeding unwarranted by law." (Per Nicholson arguendo, 2 Chase's Trial, 340; per Rodney, 387.)

Weston vs. City Council of Charleston, 2 Peters, 449; McCulloch vs. Maryland, 4 Wheat., 316; Osborn vs. Bank of the United States, 9 Ib., 738.

Mr. Rodney, in the argument of Chase's trial, said: "When gentlemen talk of an indictment being a necessary substratum of an impeachment I should be glad to be informed in what court it must be supported. In the courts of the United States or in the State courts? If in the State courts, then in which of them; or provided it can be supported in any of them, will the act warrant an impeachment? If an indictment must lie in the courts of the United States, in the long catalogue of crimes there are a very few which an officer might not commit with impunity. He might be guilty of treason against an individual State; of murder, arson, forgery, and perjury in various forms, without being amenable to the Federal jurisdiction, and unless he could be indicted before them he could not be impeached." (2 Chase's Trial, 389.)

The doctrine that nothing is impeachable unless indictable by act of Congress is impracticable.

If only offences indictable by act of Congress are impeachable, the President and all civil officers will cscape impeachment for many of the highest crimes. Murder, arson, robbery, and other crimes committed in a State are indictable by State laws, but cannot be made so by act of Congress.

In the argument of Chase's trial Mr. Rodney said: "Are we then to resort to the erring data of the different States? In New Hampshire drunkenness may be an indictable offense, but not in another State. Shall a United States judge be impeached and removed for getting intoxicated in New Hampshire, when he may drink as he pleases in other States with impunity? In some States witchcraft is a heinous offense, which subjects the unfortunate person to indictment and punishment; in other States it is unknown as a crime. A great variety of cases might be put to expose the fallacy of the principle, and to prove how improper it would be for this court to be governed by the practice of the different States. The variation of such a compass is too great for it to be relied on. This honorable body must have a standard of their own, which will admit of no change or deviation." (2 Chase's Trial, 389.)

If impeachments were limited in England to indictable offenses, as they never have been, it is manifest no such rule can be adopted here, for we have no uniform and single standard of the common law as there.

And as the Supreme Court has determined that the common-law crimes do not exist in our national system, it cannot be supposed they are more applicable to the Senate than to our ordinary courts. We can, therefore, safely adopt the remark of "the great Selden" on the impeachment of Ratcliffe:* "It were better to examine this matter according to the rules and foundations of this House;" that is, upon the great principles of parliamentary law adapted to our condition and circumstances, as modified by the Constitution, giving it a construction equal to every emergency which may call its powers into exercise, and giving in its interpretation full effect in constitutional forms to the maxim it was designed to make effectual" that the safety of the Republic is the supreme law."‡

If we adopt the test that an act to be impeachable must be indictable at common law, the Constitution will be practically nullified on this subject.

It is a rule of the common law "that judges of record are freed from all presentations whatever except in Parliament, where they may be punished for anything done by them in such courts as judges."||

Bishop declares that at common law "the doctrine appears to be sufficiently established that legislators, the judges of our highest courts, and of all courts of record acting judicially, jurors, and probably such of the high officers of each of the governments as are intrusted with responsible discretionary duties, are not liable to an ordinary criminal process, like an indictment, for their official doings, however corrupt.' (1 Bishop's Crim. Law, 915 [362.])

"At common law an ordinary violation of a public statute by one not in office, though the statute in terms provides no punishment, is an indictable misdemeanor." (1 Bishop, 535 [187.])

And a similar violation by inferior officers was an indictable misdemeanor.

"If a public officer intrusted with definite powers, to be exercised for the benefit of the community, wickedly abuses or fraudulently exceeds them, he is punishable by indictment, though no injurious effects result to any individual from his misconduct." (Whart. Crim. Law, sec. 2514.)

"Whatever mischievously affects the person or property of another, or openly outrages decency, or disturbs public order, or is injurious to public morals, or is a breach of official duty, when done corruptly, is the subject of indictment." (Whart., sec. 3.)

*Vol. 6 Am. Law Reg., N. S., 264; 4 Howard's State Trials, 47.

† A minister is answerable for the justice, the honesty, the utility of all measures emanating from the Crown, as well as for their legality; and thus the executive administration is, or ought to be, subordinate, in all great matters of policy, to the superintendence and virtual control of the two houses of Parliament. (2 Hallam's Const. History, 550.)

"It may be alleged that the power of impeachment belongs to the House of Representatives, and that with a view to the exercise of this power that House have the right to investigate the conduct of all public officers under the Government. This is cheerfully admitted. In such a case the safety of the Republic would be the supreme law; and the power of the House in the pursuit of this object would penetrate into the most secret recesses of the executive department." " (President Polk's Message, Jour. Ho. Rep., 29th Cong., 1st sess., 693.) Salus populi suprema lex" Broom's Legal Maxims; Blount's Trial, Whart. State Trials 300, per Blount; Prescott's Trial, 181, per Shaw; contra, Blake, 116.

[1 Hawkins, 192, ch. 73, sec. 6; 1 Salk., 396; 2 Wooddeson, 596, 355; Jacob's Law Dic., tit. Judges; 12 Coke, 25-6; Hammond vs. Howell, 2 Mod., 218; Floyd vs. Barker, 12 Co., 23-5. The doctrine which holds a judge exempt from a civil suit or indictment for any act done or omitted to be done by him sitting as a judge has a deep root in the common law," per Kent: Yates vs. Lansing, 5 Johns., 291; 9 Ib.. 395; Cunningham vs. Bucklew, 8 Cow., 178; Peck's Trial, 492; 2 Chase's Trial, 389. But see the ruling of Chief Justice Shippen, referred to in Addison's (Pa.) Trial, 70; 1 Bishop on Crim. Law, 915 [362;] 4 Blackst., 121.

It may be said the immunity of a judge from indictment for his official acts at common law is placed on grounds of public policy, to secure his independence, and that it is the indictable character of the act, if done by a private individual, which gives jurisdiction by impeachment. But even this proves that personal liability to an indictment is no test of impeachability. And in the nature of things official acts cannot be done by private individuals, so that the indictable character of an act is no test of its impeachability; and no such test could have entered into the minds of the framers of the Constitution.

It is a rule of interpretation that a law or an instrument is not to be construed so as to make its "effects and consequences" absurd, if its language may be fairly understood otherwise.

To permit all acts to escape impeachment, unless indictable at common law,* would lead consequences the most ruinous and absurd.† If a judge should persistently hear the arguments of one party to causes privately and out

to

On the trial of Chase Mr. Nicholson said: “You, Mr. President, as Vice-President of the United States, together with the Secretary of the Treasury, the Chief Justice, and the Attorney General, as commissioners of the sinking fund, have annually at your disposal $8,000,000 for the purpose of paying the national debt. If, instead of applying it to this public use, you should divert it to another channel, or convert it to your own private uses, I ask if there is a man in the world who would hesitate to say that you ought to be impeached for this misconduct. And yet there is no court in this country in which you could be indicted for it. Nay, sir, it would amount to nothing more than a breach of trust, and would not be indictable under the favorite common law.

"If a judge should order a cause to be tried with eleven jurors only surely he might be impeached for it, and yet I believe there is no court in which ho could be indicted." (2 Chase's Trial, 339.)

*

*

On Chase's trial Mr. Rodney said: "I think I can put" "striking cases of misconduct in a judge for which it must be admitted that an impeachment will lie, though no indictment [at common law] could be maintained." He puts the cases: if a judge at the time appointed for court "should appear and open the court, and, notwithstanding there was pressing business to be done, ho should proceed knowingly and willfully to adjourn it until the next stated period."

"Suppose he proceeded in the dispatch of business. and from prejudice against one party or favor to his antagonist he ordered on the trial of a cause, though

legal ground for postponement."

If when the jury returned to the bar to give the verdict he should knowingly receive the verdict of a majority.".

Were a judge to entertain the suitors with a farce or a comedy instead of hearing their causes, and turn a jester or buffoon on the bench, I presume he would subject himself to an impeachment. (2 Chase's Trial, 390.)

*

Mr. Harper, for the defense, practically abandoned the idea that an indictable offense was necessary. He said: "There are reasons which appear to me unanswerable in favor of the opinion that no offense is impeachable unless it be also the proper subject of an indictment." I can suppose cases where a judge ought to be impeached for acts which I am not prepared to declare indictable [at common law.] Suppose, for instance, that a judge should-constantly omit to hold court, or should habitually attend so short a time each day as to render it impossible to despatch the business." (2 Chase's Trial, 255.)

Mr. Randolph said: "The President of the United States has a qualified negative on all bills passed by Let the two Houses of Congress."

*

us suppose it exercised indiscriminately on every act presented for his acceptance. This surely would be an abuse of his constitutional power richly deserving impeachment; and yet no man will pretend to say it is an indictable offense." (2Chase's Trial, 452; Wickliffe's argument on Peck's Trial, 311.)

On Peck's trial, Mr. Wickliffe put additional cases: Suppose a judge under the influence of political feeling shall award to his favorite a new trial" "against known law, would this be an indictable offense?" "shall labor "Suppose a judge" for two hours in abuse upon an unoffending citizen whom he has dragged before him." (Peck's Trial, 310.)

If a head of a Department should divert his power and patronage for his personal or political aggrandizement." (Id., 310.)

On Peck's trial, Mr. Buchanan said: "The abuse of a power which has been given may be as criminal as the usurpation of a power which has not been granted. Suppose a man to be indicted for an assault and battery. He is tried and found guilty; and the judge, without any circumstances of peculiar aggravation having been shown, fines him $1,000, and commits him to prison for a year. Now, although the judge may possess the power to fine and imprison for this offense at his discretion, would not this punishment be such an abuse of judicial discretion, and afford such evidence of the tyrannical and arbitrary exercise of power as would justify the House of Representatives in voting an impeachment?" (Peck's Trial, 427.)

of court the evil would become so intolerable in an officer holding for good behavior that he should be removed.

If the President should hold out promises of offices of honor and trust to the friends of Senators to influence their votes the consequences might be so pernicious and corrupting, especially in an hour of national peril, when a single vote might decide the life of the Government, that the safety of the Republic would demand impeachment. Such a President would violate his oath faithfully to execute his duties. There are many breaches of trust not amounting to felonies, yet so monstrous as to render those guilty of them totally unfit for office.

Nor is it always necessary that an act to be impeachable must violate a positive law. There are many misdemeanors, in violation of official oaths and of duty alike shocking to the moral sense of mankind and repugnant to the pure administration of office, that may violate no positive law.*

The indiscriminate veto of all bills by the President, his retaining in office men subject to his removal, knowing them to be utterly incapable of performing the duties of their office, and other misdemeanors, would manifestly be proper subjects of an impeachment, for otherwise a wicked, corrupt, or incompetent foreign minister might embroil the nation in a war imperiling our existence, to avoid which impeachment might be the only remedy.

The impeachment trials in the United States may be said to have conclusively settled these questions. †

The first case tried-that of William Blount, a Senator of the United States from Tennessee-simply decided that none but civil officers can be impeached, and that a Senator is not such civil officer. But the articles of impeachment -none of which charged a statutory crime, and some certainly no common-law offense-proceeded upon the idea that acts were impeachablet which were not indictable, so much so

"There are offenses for which an officer may be impeached, and against which there are no known positive laws. It is possible that the day may arrive when a President of the United States, having some great political object in view, may endeavor to influence Congress by holding out threats or inducements to them. A treaty may be made which the President, with some view, may be extremely anxious to have ratified. The hope of office may be held out to a Senator: and I think it cannot be doubted that for this the President would be liable to impeachment, although there is no positive law forbidding it. Again, sir, a member of the Senate or of the House of Representatives may have a very dear friend in office, and the President may tell him unless you vote for my measures your friend shall be dismissed. Where is the positive law forbidding this? Yet, where is the man who would be shameless enough to rise in the face of his country and defend such conduct, or be bold enough to contend that the President could not be impeached for it?" (Per Nicholson, 2 Chase's Trial, 339,341; see Peck's Trial, 309.)

"The abuse of a power given may be as criminal as the usurpation of a power not granted." (Per Buchanan on Peck's Trial, 427.)

He supposes the case of a judge having discretionary power to fine and imposing enormous and unnecessary punishment.

Those before the Senate of the United States are the cases of

1. William Blount, a Senator of the United States, July 1797, to January 1798. (Wharton's State Trials, 200.)

2. John Pickering, district judge, New Hampshire, 1803-04. (Annals of Congress; 2 Hildreth's History, 518.)

3. Samuel Chase, associate justice of the Supreme Court United States, 1804-05. (Trial of Chase, by Smith & Lloyd, 2 vols.)

4. James Peck, district judge, Missouri, 1826, 1831. (Peek's trial, by Stansbury, 1 vol.)

5. West W. Humphreys, district judge of Tennessee, 1862. (Congressional Globe, vols. 47, 48, 49, 2d session 37th Congress. See Report No. 44, 2d session 37th Congress, vol. 3, Reports of Committees.)

that no objection was suggested on that account.

The next case is that of Judge Pickering,* who was convicted upon each of four several articles of impeachment before the Senate, and removed from office in March 1804.† This case

and Cherokee Indians" in the United States "to commence hostilities against the subjects and possessions in the Floridas and Louisiana, for the purpose of reducing the same to the dominion of",

*

*

*

Great Britain," in violation of the treaty, the obligations of neutrality and his duties as Senator.

3. That Blount, in April, 1797, to accomplish his designs aforesaid, did" conspire and contrive to alienate the confidence of said Indian tribes" from the United States Indian agent, "and to diminish, impair, and destroy" his influence" with the said Indian tribes, and their friendly intercourse and understanding with him."

4. That Blount, in April, 1797, "did conspire and contrive to seduce" an Indian interpreter of the United States with the Indians under a treaty between them and the United States "from his duty, and to engage" him "to assist in the promotion and exccution of his said criminal intentions and conspiracies."

5. That Blount, in April, 1797, "did conspire and contrive to diminish and impair the confidence of said Cherokee nation in the Government of the United States, and to create and foment discontents and disaffection among the said Indians toward the" United States in relation to" ascertaining and marking the boundary line between the lands of the Indians and of the United States in pursuance of a treaty between them.

*

*

*The articles charged

1. That the surveyor of the district of New Hampshire did, in the port of Portsmouth, seize the ship Eliza for unlading foreign goods contrary to law, and the marshal of the district, on the 16th of October, 1802, by order of Judge Pickering, did arrest and detain said ship for trial, and the act of Congress of March 2, 1789, provides that such ship may, by order of the judge, be delivered to the claimant on giving bond to the United States, and on producing a certificate from the collector of the district that the duties on the goods and tonnage duty of the ship had been paid; yet Judge Pickering, with intent to evade the act of Congress, ordered the ship to be restored to the claimant without producing the certificate of payment of duties and tonnage duty.

2. That at the district court of New Hampshire, in November, 1802, the collector having libeled said ship because of said unlawful unlading of goods and prayed her forfeiture to the United States, yet Judge Pickering, with intent to defeat the just claims of the United States, refused to hear the testimony of witnesses produced to sustain the claim of the United States, and without hearing them did order and decree said ship to be restored to the claimant, contrary to law.

3. That the act of 24th September, 1789, authorizes an appeal to the circuit court in such case, and the United States district attorney did claim an appeal from said decree, yet said judge, disregarding the law, intending to injure the revenues, refused to allow an appeal.

4. That Judge Pickering being a man of loose morals and intemperate habits, on 11th and 12th November, 1802, did appear on the bench of his court for the purpose of administering justice in a state of intoxication produced by inebriating liquors, and did then and there frequently and in a most profane and indecent manner invoke the name of the Supreme Being. (Annals of Congress of 1803-'4, page 319.)

1. This case was thus commented on during Peck's

trial:

"I admit that if the charge against a judge be merely an illegal decision or a question of property in a civil cause his error ought to be gross and palpable indeed to justify the inference of a criminal intention and to convict him upon an impeachment. And yet one case of this character occurred in our history. Judge Pickering was tried and condemned upon all the four articles exhibited against him, although the first three contained noother charge than that of making decisions contrary to law in a cause involving a mere question of property, and then refusing to grant the party injured an appeal from his decision, to which he was entitled." (Per Buchanan, in Peck's Trial, 428.)

Mr. Nicholson arguendo, (2Chase's Trial, 341,) in referring to Pickering's case, says he was impeached for drunkenness and profane swearing on the bench, although there is no law of the United States forbidding them. Indeed, I do not know that there is any law punishing either in New Hampshire, where the offense was committed. It was said by one of the counsel that these were indictable offenses. I, however, do not know where; certainly not in England. Drunkenness is punishable there by the ecclesiastical anthority; but the temporal magistrate never had any power over it until it was given by a statute of James I, and even then the power was not to be exercised by the courts, but only by a justice of the peace, as is now the case in Maryland, where a small fine may be imposed."

Mr. Harper had said: "Habitual drunkenness in a judge, and profane swearing in any person, are indictable offenses, [at common law.] And if they were not, still they are violations of the law. I do not mean to say that there is a statute against drunkenness and profane swearing. But they are offenses against good morals, and as such are forbidden by the common law. They are offenses in the sight of God and man." (2 Chase's Trial, 255, 400.)

proves that a violation of law of a particular character, and drunkenness and profanity on the bench, are each impeachable high crimes and misdemeanors. In this case the defense of insanity was made and supported by evidence. The case does not show the opinion of Senators on this evidence. But if the insanity was regarded as proved, this case shows that a criminal intent is not necessary to constitute an impeachable high crime and misdemeanor, but that the power of impeachment may be interposed to protect the public against the misconduct of an insane officer.

The next case is that of Samuel Chase,* an associate justice of the Supreme Court of the United States. In this case it was insisted for the accused that " no judge can be impeached and removed from office for any act or offense for which he could not be indicted," either by statute or common law. But this was denied with convincing argument, and was practically abandoned by the defense.

There were eight articles of impeachment:

1. That on the trial of Fries for treason in the eircuit court of the United States for Pennsylvania, in April, 1800, he

(1.) Prepared and furnished counsel an opinion in writing on the questions of law in the case betore trial or argument.

(2.) Restricted Fries's counsel from recurring to certain English authorities and statutes of the United States illustrative of positions for defense.

(3.) Denied counsel for defense the right to argue the law of the case to the jury, endeavoring to wrest from the jury the right to determine questions of law.

2. At the circuit court at Richmond, in May, 1800, Callender was arraigned for libel on John Adams, then President, and the judge, with intent to procure his conviction, overruled the objection of Basset, one of the jury, who wished to be excused because he had made up his mind, and required him to sit on the jury.

3. That with same intent the judge refused to permit the evidence of a witness to be given, on pretense that the witness could not prove the truth of the whole of one of the charges contained in an indietinent embracing more than one fact.

4. Injustice and partiality in said case:

(1.) In compelling prisoner's counsel to reduce to writing all questions proposed to be put to that witness.

(2.) In refusing to postpone the trial on a sufficient affidavit filed.

(3.) Rude and contemptuous expressions to counsel. (4.) Repeated and vexatious interruptions of counsel, inducing them to abandon their cause and client. 5. That the judge awarded a capias for the arrest of said Callender, when the statute of Virginia in such case only authorized a summons requiring the accused to answer.

6. The judge required Callender to submit to trial during the term at which he was indicted, in violation of the statute of Virginia, declaring that the accused shall not answer until the next succeeding term, the United States judiciary act of 24th September, 1789, recognizing the State laws as rules of decision.

7. At the circuit court in Delaware, in June, 1800, the judge refused to discharge the grand jury, although entreated by several of the jury to do so, and after the jury had regularly declared through their foreman that they had found no bills of indictment, nor had any presentment to make, and instructed the jury that it was their duty to look after a certain seditious printer living in Wilmington. And the judge enjoined on the district attorney the necessity of procuring a file of a newspaper printed at Wilmington, to find some passage which might furnish the groundwork of a prosecution-all with intent to procure the prosecution of said printer.

8. That the judge at the circuit court at Baltimore, in May, 1803, perverted his official right and duty to address the grand jury, delivering to them an inflammatory political harangue, with intent to excite the people of Maryland against their State government and against the United States.

[llis address was in part against universal suffrage.] †1. Chase's Trial, 9-18, per Clark. Per Lec, 107, citing 2 Bacon, 97. Per Martin, 137. Per Harper, 251-9. Judge Chase in his answer declared that he was only liable for a misdemeanor, "consisting in some act done or omitted in violation of law forbidding or commanding it," and that he was not impeachable except for some offense for which he may be indicted." (1 Chase's Trial, 47, 48; 1 Story on Const.. sec. 796, note; 4 Eliot's Debates, 262.)

1 Chase's Trial, 353, per Campbell. Per Rodney, 378. 2 Chase's Trial, 335, 339-340, per Nicholson. 1 Chase's Trial, 335, 352; 2 Chase's Trial, 351. "It is sufficient to show that the accused has transgressed the line of his official duty in violation of the lawS of his country, and that this conduct can only be accounted for on the ground of impure and corrupt motives." (1 Chase's Trial, 353, per Campbell.) "Violation of official duty, whether it be a proceeding against a positive law or a proceeding unwarranted by law." (2 Chase's Trial, 340, per Nicholson.)

13 Chase's Trial, 255, per Harper.

On Peck's Trial, 427, Buchanan said: "The principle fairly to be deduced from all the arguments on the

In 1830, James H. Peck, judge of the United States district court for Missouri, was impeached by the House of Representatives for imprisoning and suspending from practice an attorney of his court.*

The argument for the prosecution alluded to the proposition stated in Chase's trial, "that a judge cannot be impeached for any offense which is not indictable;" but the counsel for the accused repudiated any such doctrine as a ground of defense.

Mr. Wirt did not hazard his reputation by any such claim. Peck was not convicted.

The case of West W. Humphreys, judge of the United States district court for the district of Tennessee, proceeded on the ground that an officer was impeachable without having committed a statutory or common-law offense. ¿

trial of Judge Chase, and from the votes of the Senate on the articles of impeachment against him," was to hold that a violation of the Constitution or law was impeachable, in opposition to the principle,"

"that in order to render an offense impeachable it must be indictable."

The charge was that, as judge of the district court for Missouri, he on the 21st April, 1826, imprisoned L. E. Lawless, an attorney, for twentyfour hours, and suspended him for eighteen months from practicing law, for an alleged contempt of court in publishing a newspaper article reviewing a published decision of said judge; that said judge, unmindful of the duties of his station, and that "he held the same by the Constitution during good behavior only, with intent wrongfully and unjustly to oppress, imprison, and injure said Lawless," &c. His answer conceded a liability to impeachment on facts which would not be indictable.

† Peck's Trial, 308, per Wickliffe.

Mr. Meredith's propositions were (Peck's Trial, 327,) that the court had the power to punish contempts: that the case of Lawless was a contempt proper for its exercise; that the punishment was proper; and lastly, "that if the court had not the power, or if, having it, the case was not a case proper for its application, still the act did not proceed from the evil and malicious intention with which it is charged, and which it is absolutely necessary should have accompanied it to constitute the guilt of an impeachable offense.

Judge Peck, in the answer to his impeachment, said:

"In the digested report of the committee of the House of Commons, which follows the report of the arguments of the managers who conducted that impeachment, (against Warren Hastings,) it will be seen, too, that in the estimation of that committee the proceedings of courts of law furnish no rule whatever for the proceedings in an impeachment, the latter being governed by no other law or custom than the lex et consuetudo parliamenti, which left the House at perfect liberty to pursue the great ends of justice untrammeled by any other rules than those which reason and public utility prescribe." (Peck's Trial, 10; see 2 Hale P. C., chapter 20, page 150; 6 Howell's State Trials, 313, 316,346, note; note to Lord Capel's case, 4 Howell's State Trials, 12, 13; Case of Earl of Danby, A. D. 1678; 11 Howell's State Trials, 650; 4 Hatsel's Puc., 71.)

He cites the opinion of Kent in a case in 5 Johns, Rep., 291, which was a civil action against Chancellor Lansing for punishing a contempt. Kent says: "There must be the scienter or intentional violation of the statute, and this can never be imputed to the judicial proceedings of a court. It would be an impeachable offense, which can never be averred or shown but under the process of impeachment." Ho conceded that an intentional violation of the law was impeachable, and cited Erskine's Speeches, vol. 1,374, (New York ed., 1813,) to show that impeachment should be used as an example "to corruption and willful abuse of authority by extra legal pains."

And, referring to Hammond vs. Howell, 1 Mod., 184, 2 Id., 218, and the remark that complaint should be made to the king to secure the removal of a judge who had unlawfully imprisoned a juror for contempt, said that course was proper "if the judge had acted corruptly," "thatis, with a wicked intention to oppress under color of law." (Peck's Trial, 493, 495.)

*

The charges were:

*

1. For advocating secession in a public speech at Nashville, December 29, 1860.

2. For openly supporting and advocating the Tennessee ordinance of secession.

3. For aid in organizing armed rebellion.

4. For conspiring with Jefferson Davis and others to oppose by force the authority of the Government of the United States.

5. For neglecting and refusing to hold the district court of the United States.

6. For acting as a confederate judge, and, as such, sentencing men to be banished and imprisoned and their property to be confiscated for their loyalty, and especially of property of one Andrew JohnBon."

7. For the arrest and imprisonment of "one William G. Brownlow, exercising authority as judge of the district court of the confederate States."

He was convicted on all the articles severally by a SUPPLEMENT~4.

In fact the charge of advocating secession was a crime of which half the leading politicians of the south had been guilty for many years. In the seven articles of impeachment against him two may be said to charge treason; and it may be claimed that one good article will sustain a conviction, by way of analogy to the doctrine that one good count in an indictment, notwithstanding the presence of bad ones, will sustain a sentence. But even this is not law in England. But there is no analogy. The Senate, by a separate vote on each article, specifically passed on the sufficiency of each article to constitute an impeachable offense, while a jury passes generally on all the counts of an indictment. And it is to be observed that the report of the Judiciary Committee recommending impeachment did not charge treason or other indictable crime, nor was there evidence of any ;† and on the trial of the case no doubt was expressed as to the right to convict on each of the articles. The cases tried in the States fully sustain the same view, both before and since the adoption of our national Constitution.

Judge Addison was impeached in Pennsyl

vote on each, except that part of article six, which charges him with confiscating the property of Andrew Johnson. (49 Globe, 1861-62, pl. 4, p. 2950.)

Regina vs. O'Connell, 11 Clark & Fin., 15; 9 Jurist, 30; Wharton's Crim. Law, sec. 3017.

† Report No. 44, 2d session 37th Congress, vol. 3 of House Reports.

On the 12th July, 1788, three of the judges of the supreme court of Pennsylvania attached and fined Oswald ten pounds and imprisoned him one month for publishing a newspaper article having a tendency to prejudice the public with respect to the merits of a cause depending in court. (1 Dallas, 319.)

On 5th September, 1788, Oswald memorialized the General Assembly to determine" whether the judges did not infringe the Constitution in direct terms in the sentence they had pronounced, and whether, of course, they had not made themselves proper objects of impeachment."

The House, in Committee of the Whole, heard the evidence. Mr. Lewis, a member, maintained that the only grounds of impeachment were bribery, corruption, gross impartiality, or willful or arbitrary oppression, none of which being approved, the memorial ought to be dismissed.

Mr. Finley, then a member, said: "Though he deemed it his duty to pronounce that the decision of the supreme court was a deviation from the spirit and letter of the frame of government, yet he did not mean to assert that any ground had been shown for the impeachment of the judges; but, on the contrary, he agreed that bribery, corruption, or willful and arbitrary infraction of the law were the only true causes for instituting a prosecution of that nature." (See 1 Dallas, 335; Addison's Trial, 129.)

The House resolved, by 34 to 23, that the charges of arbitrary and oppressive proceedings in the judges of the supreme court are unsupported by the testimony introduced, and, consequently, that there is no just cause for impeaching the said justices. (See the report of this case in 1 Dallas, 3d ed., Phila., 1830, p. 353, [329].)

On the trial of Chase Mr. Rodney, referring to this case, said: "Three of the judges of the supreme court were accused of fining and imprisoning, without the intervention of a jury, a fellow-citizen for publishing a paper which they considered as a contempt of court. The judges were defended by two most able and eloquent counsel, who contended that the constitution, the laws, and the practice of Pennsylvania, by adopting the common-law doctrines on the subject, justified the proceeding, and that if there was no law to justify it their conduct flowed from an honest error in judgment. But, sir, they did not attempt to maintain the position contended for on this occasion, that to support an impeachment the conduct of a judge must be such as to subject him to an indictment." (See 2 Chase's Trial, 399.)

Impeachment of Alexander Addison, president judge of the courts of common pleas of Westmoreland and other counties, 1802-3, convicted of 1. Directing a jury that the address of an associate judge to them "had nothing to do with the question before them;" and 2. Preventing an associate judge from addressing the grand jury concerning their duties, by denying the right, and by leaving the bench, and thus irregularly adjourning the court. (Addison's Trial, by Thomas Lloyd, 2d ed., Lancaster, 1803.)

*

Mr. McKean, one of the managers, in opening the trial, said: Offenses under color of office" * "have always been considered as the most proper. and of course the usual, ground of impeachment. They are such as the ordinary magistrates cannot or dare not punish."

"It often happens that officers may"and do abuse their power to the injury of the Commonwealth, and at the same time in such a manner as not to render their conduct congnizable before the ordinary tribunals of justice, so as to proceed by indictment or information." (See Addison's Trial, 31.)

In Pennsylvania the courts entertain jurisdiction of common-law crimes. The attorney general filed

a motion for a rule against Addison, to show cause in the supreme court why an information should not be filed against him. The court held that it was the right of the associato judge to address the grand jury; but the court, per Chief Justice Shippen, said: "The affidavit does not state malice. It would seem to be a mistake of right. Unless a crime is stated the court cannot take cognizance. There may be another remedy, [by impeachment.] It does not lie with us to say what that is. The proceeding was arbitrary, unbecoming, unhandsome, ungentlemanly, unmannerly. and improper; but there not being an imputation of willful misbehavior and malice, it is not indictable or the subject of an information." (Trial, 70.).

Judge Addison, in his defense, said: "No impeachment will lie but for a misdemeanor in office, and every misdemeanor in office is indictable; the offcer impeached still remains liable to indictment, trial, judgment, and punishment according to law. An impeachment lies only where an indictment lies. No officer can be convicted on an impeachment who ought not to be convicted on an indictment; and the punishment on impeachment is cumulative-not exclusive. The acts for which an officer may be impeached are precisely those for which he may be indicted as an officer; misdemeanors in office, offenses, or unlawful acts done with an evil intention in his official capacity." (Trial, 104.)

"A mere unlawful act from a mistake or error in judgment cannot be alleged as a [impeachable] crime. Not only wrong, but willful wrong, must be made out, or the offense is not complete." (Page 118.)

Though a judge acts unlawfully and unconstitutionally he cannot be convicted on an impeachment unless he has acted willfully so." (Page, 129; see 1 Dallas, 335.)

But this position was denied, and Addison was found guilty by a vote of 20 to 4. (See this case referred to; Chase's Trial, 396.)

The Massachusetts cases are

1. Impeachment of William Greenleaf, sheriff of Worcester county, 1788. Convicted-(1,) Of detaining for his private use public moneys, when the Commonwealth has a right thereto; (2,) of exhibiting dishonest accounts of taxes collected; (3,) of detaining for two years public moneys from town of Petersham: (4,) of procuring from the treasurer of Commonwealth an execution for money previously collected by him; (5,) of false returns on executions; (6,) of procuring a warrant of distress for money previously paid him.

2. Impeachment of William Hunt, a justice of the peace of Watertown, 1794, Convicted of entering on his docket, on the trial day of causes, the personal appearance of plaintiffs who were absent, though defendants demanded their appearance. The Senate found Hunt guilty, but suspended judgment for

a year.

3. Impeachment of John Vinal, a justice of the peace of Suffolk county, 1800. Convicted of extortion and bribery.

4. Impeachment of Moses Copeland, a justice of the peace for Lincoln county, 1807 and 1808. Acquitted on charges; first, that he bought a note indorsed in blank, and entertained suit in name of Samuel Kingsbury, and rendered judgment, though in fact the note was Copeland's; second, for defaulting a defendant, and entering judgment before the hour set for trial; third, bribery.

5. Impeachment of James Prescott, judge of probate for Middlesex, 1821. Convicted of exacting illegal fees, and of inserting by interlineation in a guardian's account, previously sworn to, an item due to and paid to himself, and then of settling the account as judge.

See "Prescott's Trial, by Pickering and Gardner. Boston, 1821." In the appendix is an abstract of the preceding impeachments. On the trial of Prescott, it was said by Mr. Blake, argeundo, that "within the compass of forty long years three or four solitary instances of trial by impeachment have occurred in this Commonwealth. Of these, two, I believe, [three,] resulted in conviction; and I feel myself justified in stating that in neither of the instances alluded to was there any point of constitutional law involved in the inquiry."

This case was conducted with great ability.

And see report of the trial and acquittal of Edward Shippen, chief justice of Pennsylvania and others, before the Senate of that State in 1865, by Wm. Hamilton.

Trial of George W. Smith, county judge of Oneida county, before the Senate of New York, 1866. Trial of impeachment of Levi Hubbell, judge of the second circuit, by the Senate of Wisconsin, June, 1853.

"An account of the impeachment and trial of the late Francis Hopkinson, Esq., judge of the court of admiralty for the Commonwealth of Pennsylvania; printed by Francis Bailey, Philadelphia, 1791." He was tried and acquitted in November and December, 1780.

The same volume contains "An account of the Impeachment, trial, and acquittal of John Nicholson, Esq., comptroller general of Pennsylvania." He was acquitted April 7, 1794.