[Cannon's Precedents, Volume 6]
[Chapter 193 - Nature of Impeachment]
[From the U.S. Government Publishing Office, www.gpo.gov]
NATURE OF IMPEACHMENT.
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1. As to what are impeachable offenses. Sections 454-465.
2. General considerations. Section 466.
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454. Discussion by English and American authorities of the general
nature of impeachment.
On January 3, 1913 \2\ in the Senate sitting for the trial of the
impeachment of Judge Robert W. Archbald, Mr. Manager Henry D. Clayton,
of Alabama, submitted on behalf of the House of Representatives, a
brief from which the following is an excerpt:
the general nature of impeachments.
The fundamental law of impeachment was stated by Richard Wooddeson,
an eminent English authority, in his Law Lectures delivered at Oxford
in 1777, as follows (pp. 499 and 501, 1842 ed.):
``It is certain that magistrates and officers intrusted with the
administration of public affairs may abuse their delegated powers to
the extensive detriment of the community and at the same time in a
manner not properly cognizable before the ordinary tribunals. The
influence of such delinquents and the nature of such offenses may not
unsuitably engage the authority of the highest court and the wisdom of
the sagest assembly. The Commons, therefore, as the grand inquest of
the nation, became suitors for penal justice, and they can not
consistently, either with their own dignity or with safety to the
accused, sue elsewhere but to those who share with them in the
legislature.
``On this policy is founded the origin of impeachments, which began
soon after the constitution assumed its present form.
* * * * * * *
``Such kind of misdeeds, however, as peculiarly injure the
commonwealth by the abuse of high offices of trust, are most proper--
and have been the most usual--grounds for this kind of prosecution.''
Referring to the function of impeachments, Rawle, in his work on the
Constitution (p. 211), 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 unaptly termed political offenses' (Federalist, No. 65), which
it would be difficult to take cognizance of in the ordinary course of
judicial proceeding.
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\1\ Supplementary to Chapter LXIII.
\2\ Third session Sixty-second Congress, record of trial, p. 1051.
Sec. 455
``The involutions and varieties of vice are too many and too artful
to be anticipated by positive law.''
In Story on the Constitution (vol. 1, 5th ed., p. 584) the
parliamentary history of impeachments is briefly stated as follows:
``800. In examining the parliamentary history of impeachments it will
be found that many offenses not easily definable by law, and many of a
purely political character, have been deemed high crimes and
misdemeanors worthy of this extraordinary remedy. Thus, lord
chancellors and judges and other magistrates have not only been
impeached for bribery, and acting grossly contrary to the duties of
their office, but for misleading their sovereign by unconstitutional
opinions and for attempts to subvert the fundamental laws and introduce
arbitary power. So where a lord chancellor has been thought to have put
the great seal to an ignominious treaty, a lord admirato have neglected
the safeguard of the sea, an ambassador to have betrayed his trust, a
privy councilor to have propounded or supported pernicious and
dishonorable measures, or a confidential adviser of his sovereign to
have obtained exorbitant grants or incompatible employments--these have
been all deemed impeachable offenses. Some of the offenses, indeed, for
which persons were impeached in the early ages of British
jurisprudence, would now seem harsh and severe; but perhaps they were
rendered necessary by existing corruptions, and the importance of
suppressing a spirit of favoritism and court intrigue. Thus persons
have been impeached for giving bad counsel to the King, advising a
prejudicial peace, enticing the King to act against the advice of
Parliament, purchasing offices, giving medicine to the King without
advice of physicians, preventing other persons from giving counsel to
the King except in their presence, and procuring exorbitant personal
grants from the King. But others, again, were founded in the most
salutary public justice, such as impeachments for malversations and
neglects in office, for encouraging pirates, for official oppression,
extortions, and deceits, and especially for putting good magistrates
out of office and advancing bad. One can not but be struck, in this
slight enumeration, with the utter unfitness of the common tribunals of
justice to take cognizance of such offenses, and with the entire
propriety of confiding the jurisdiction over them to a tribunal capable
of understanding and reforming and scrutinizing the polity of the
State, and of sufficient dignity to maintain the independence and
reputation of worthy public officers.''
455. Discussion as to what are impeachable offenses.
Argument as to whether impeachment is restricted to offenses which
are indictable, or at least of a criminal nature.
On January 8, 1913,\1\ in the Senate sitting for the impeachment
trial of Judge Robert W. Archbald, Mr. Manager John A. Sterling, of
Illinois, said in final argument:
Mr. President, the record which has been made proves the charges set
forth in the articles of impeachment constitute impeachable offenses.
It is plain from the statement made by counsel for respondent, and from
the brief which was filed that they rely for acquittal on the single
proposition that these offenses do not constitute impeachable offenses
for the reason that, as they claim, they do not constitute indictable
offenses.
In their brief, counsel for the respondent lay down, as the first
proposition, that no offense is impeachable unless it is indictable;
and, as a second proposition, and the only other proposition that they
submit, is that, if the offense in order to be impeachable need not be
indictable, it must at least be of a criminal nature.
As to the first proposition, the contention of counsel for the
respondent is not sustained either by the language of the Constitution,
by the decisions of the Senate in former impeachment cases, by the
decisions of other tribunals in this country which have tried
impeachment cases, or by the decisions of the English Parliament; nor
is that contention sustained, so far as I have been able to read the
authorities and the law writers on constitutional law, by a single
American writer. The language of the Constitution so far as it relates
to the trial of this case is this:
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\1\ Third session Sixty-second Congress, Record, p. 1200.
Sec. 455
``The Senate shall have the sole power to try all impeachments.
* * * * * * *
``Judgment in cases of impeachment shall not extend further than to
removal from office and disqualification to hold and enjoy any office
of honor, trust, or profit under the United States.
* * * * * * *
All civil officers of the United States shall be removed from office
on impeachment for, and conviction of, treason, bribery, or other high
crimes and misdemeanors.
* * * * * * *
``The judges * * * shall hold their offices during good behavior.''
I have stated all the language of the Constitution with which the
Senate has to deal in determining the case now before it. I ask the
Senate to consider that nowhere in that language is there any
limitation as to the nature or extent of the crimes, misdemeanors, and
misbehaviors in office. The Constitution does not undertake to define
those terms with reference to the jurisdiction of the Senate in
removing public officers for the violation of those provisions of that
instrument, nor does it limit the time as to the commission of these
offenses. It does not provide that the offenses shall be committed
during the service from which it is sought to remove him, nor does it
limit Congress as to when it may proceed to impeach and try an
offending servant. Under the plain language of the Constitution the
House of Representatives has the power to impeach, and the Senate has
the power to try and convict for offenses of the character described in
the Constitution, let them have been committed at any time during the
term of office from which the respondent is sought to be removed,
during his service in some other office, or during some other term, or
for offenses committed before he became an officer of the United States
and while he was a private citizen.
If the Constitution puts no limitation on the House of
Representatives or the Senate as to what constitutes these crimes,
misdemeanors, and misbehaviors, where shall we go to find the
limitations? There is no law, statutory nor common law, which puts
limitations on or makes definitions for the crimes, misdemeanors, and
misbehaviors which subject to impeachment and conviction.
It will not be maintained either by the managers or by the counsel
for the respondent that precedents bind, and yet we may well consider
them, because they are so uniform on the question as to what
constitutes impeachable offenses. The decisions of the Senate of the
United States, of the various State tribunals which have jurisdiction
over impeachment cases, and of the Parliament of England all agree that
an offense, in order to be impeachable, need not be indictable either
at common law or under any statute.
I desire to read briefly from some of the law writers of this
country, giving their conclusions as to what constitute impeachable
offenses, after they had reviewed and considered cases that have been
tried in the Senate and in other forums where impeachment cases have
been tried.
After reading from Tucker on the Constitution, page 416, Cooley's
Principles of Constitutional Law, page 178, and volume 15 of the
American and English Encyclopedia of Law, paragraph 2, page 1066, Mr.
Sterling concluded:
And so, Mr. President, I say, that outside of the language of the
Constitution which I quoted there is no law which binds the Senate in
this case today except that law which is prescribed by their own
conscience, and on that, and on that alone, must depend the result of
this trial. Each Senator must fix his own standard; and the result of
this trial depends upon whether or not these offenses we have charged
against Judge Archbald come within the law laid down by the conscience
of each Senator for himself.
On January 9, 1913,\1\ Mr. Alexander Simpson, of counsel for
respondent, quoting the last statement in this address, said:
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\1\ Record, p. 1269.
Sec. 455
Sirs, if that be so, I want to know what has become of the
Constitution in this case? Of what use was it to write into the
Constitution that a man shall be impeached only for ``treason, bribery,
or other high crimes and misdemeanors'' if there is no law to govern
you, and if you may, out of your own consciences, evolve the thought
that you will dismiss this respondent from the public service simply
because you wish to get rid of him? You need no proof of ``treason,
bribery, or other high crimes and misdemeanors'' to discharge him if
that is the position you are to take in this case, for those words,
under such circumstances, are unnecessary and meaningless.
I submit that that is not and can not be the true legal position. It
must be precisely the reverse of that. You must find somewhere, whether
it is under the ``good behavior'' clause of the Constitution, or
whether it is under the article relating to impeachments themselves,
that upon which you can lay your finger and say that this respondent
has violated that thing, or you must under your oaths of office say
that he shall go free.
And that is the position which Mr. Manager Sterling, speaking for the
managers, asks you to take here. He asks you not to look to the law of
the land for that which shall govern the rights of the parties here;
but he asks you, out of your own conscience, whether your conscience
agrees with mine or his or anybody's, to evolve a law which shall apply
to this case and which when this case is over shall cease ever
thereafter to be the law. In this, as in everything else, the
Constitution is only a frame of government. It remains for the Congress
to verify many of its provisions. It remains for Congress to write on
the statute books what shall constitute ``high crimes and
misdemeanors,'' and there are already in the Revised Statutes many
provisions upon that point.
On January 9, 1913,\1\ Mr. A. S. Worthington, of counsel on behalf of
the respondent, also referred to the position taken by Mr. Sterling in
this address and said:
It has been insisted here by the managers on the part of the House of
Representatives that the question of Judge Archbald's guilt or
innocence is to be determined by what you individually consider to be
an offense which justifies his removal from office; not that he has
been brought here charged with anything of that kind, but having
brought him here charged with certain specific offenses for which he
and his counsel have prepared themselves and have summoned their
witnesses he is now to be disgraced and forever branded as a criminal
because you may find that he is not fit to be a judge.
It might humbly suggest that if there is ever to be presented to this
great body the question whether or not you have the right to impeach an
officer of the United States and remove him from his office because you
think that on general principles he is not fit to hold his office,
there might be presented an article of impeachment which would charge
that that was the case and that he and his counsel might be prepared to
meet it. But instead of that we have him charged with a certain number
of specific acts, and when he comes here to meet those and the evidence
is closed and the verdict is about to be reached, then we are told for
the first time that you individually--each for himself--are to decide
whether upon what you have heard here in evidence you think that on
general principles he ought to be ejected from his office.
The Constitution of the United States says that civil officers of the
United States may be impeached for treason, bribery, or other high
crimes and misdemeanors.
If this were the first time that that sentence was heard by the
Members of this body, I should like to know whether there is one of you
to whose mind it would ever have occured for a moment that it meant
anything except an offense punishable in a court of justice. I do not
like the word ``indictability,'' because a great many crimes are
punished by information and not upon indictment. When I use that term I
mean it in the sense of punishment in any way in a criminal court.
Now, my friend Mr. Manager Sterling when he read certain provisions
of the Constitution at the outset of his argument said those were all
that were necessary to be considered in this matter.
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\1\ Record, page 1282.
Sec. 456
The sixth amendment says:
``In all criminal prosecutions the accused shall enjoy the right to a
speedy and public trial by an impartial jury of the State and district
wherein the crime shall have been committed, which district shall have
been previously ascertained by law, and to be informed of the nature
and cause of the accusation; to be confronted with the witnesses
against him; to have compulsory process for obtaining witnesses in his
favor, and to have the assistance of counsel for his defense.''
Where is the man in this United States of America who would suggest
that Judge Archbald could be required to answer without being informed
of what is the accusation against him? Where is the man who would
suggest that it is not necessary to confront him with the witnesses
against him? Where is the man who would say he is not entitled to have
subpoenas issued to bring his witnesses here to testify for him? Where
is the person who will say that you could turn his counsel out of this
Chamber and say he has to defend himself? Why? Because it is a criminal
prosecution, and if it be not a criminal prosecution, then it is
nothing known to the laws of this land.
On this subject Mr. Manager Edwin Yates Webb, of North Carolina, said
by way of rebuttal: \1\
Mr. President, the respondent's counsel in his brief devotes 26 pages
to a discussion of this proposition:
``Impeachment lies only for offenses which are properly the subject
of a prosecution by indictment or information in a criminal court.''
In those 26 pages of argument most of the quotations are from counsel
who have appeared for respondents in various impeachment trials. I do
not remember just at present a single noted constitutional authority
that counsel quotes to maintain that proposition.
I wish to quote authority in opposition to this position.
Mr. Webb here quoted from Wooddeson (p. 355); Rawle, on the
Constitution; Story, on the Constitution; Tucker, on the Constitution;
Christian, Fourth Blackstone, footnote, p. 5, Lewis's ed.; Cooley's
Principles of Constitutional Law, p. 178; Constitutional History of the
United States, George Ticknor Curtis, vol. 1, pp. 481-482; Watson, on
the Constitution, vol. 2, p. 1034; Wharton's State Trials, 263; Story,
on the Constitution, page 583; and American and English Encyclopedia of
Law, vol. 15, p. 1066.
One can not but be struck in this slight enumeration with the utter
unfitness of the common tribunals of justice to take cognizance of such
offenses and with the entire propriety of confiding jurisdiction over
them to a tribunal capable of understanding and reforming and
scrutinizing the policy of the State and of sufficient dignity to
maintain the independence and reputation of worthy public officers.
The cases, then, seem to establish that impeachment is not a mere
mode of procedure for the punishment of indictable crimes; that the
phrase of ``high crimes and misdemeanors'' is to be taken not in its
common-law but in its broader parliamentary sense, and is to be
interpreted in the light of parliamentary usage; that in this sense it
includes not only crimes for which an indictment may be brought, but
grave political offenses, corruptions, maladministration, or neglect of
duty involving moral turpitude, artibrary and oppressive conduct, and
even gross improprieties by judges and high officers of State, although
such offenses be not of a character to render the offender liable to an
indictment either at common law or under any statute.
456. Argument that a civil officer of the United States may be
impeached for an unindictable offense.
Discussion of the nature of impeachable offenses in minority views
submitted in the Daugherty case.
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\1\ Record, p. 1215.
Sec. 457
On January 25, 1923,\1\ Mr. R. Y. Thomas, jr., of Kentucky, from the
Committee on the Judiciary, submitted the following minority views to
accompany the report of that committee on the investigation into the
conduct of Attorney General Harry M. Daugherty:
It was strongly intimated if not directly contended by several
members of the committee that the Attorney General could not be
impeached except for an indictable offense. I think this view is
absolutely incorrect. Impeachment is an extraordinary remedy born in
the parliamentary procedure of England, and the principles which govern
it have long been enveloped in clouds of uncertainty. The practice of
impeachment began in the reign of Edward the Third of England, and
statutes for prosecutions for offenses of this character were first
enacted in the reign of Henry the Fourth.
By usage of the English Parliament so far back that the memory of man
runneth not to the contrary, offenses were impeachable which were not
indictable or punishable as crimes at common law. Therefore, the phrase
``high crimes and misdemeanors'' must be as broad and extended as the
offense against which the process of impeachment affords protection.
Every case of impeachment must stand alone, and while certain general
principles control the judgment and conscience, the Senate alone must
determine the issue.
In my opinion, the conclusion is irresistible that an impeachment
proceeding by a committee of the House is only an inquiry into the
charges like a grand jury investigation, and an official can be
impeached for high crimes and misdemeanors which are not indictable
offenses. If there ever was any doubt of this, that question has been
entirely set at rest in the impeachment proceedings in 1912 against
Robert W. Archbald, United States circuit judge. None of the articles
exhibited against Judge Archbald, on which he was impeached, charged an
indictable offense, or even a violation of positive law.
457. Summary of deductions drawn from judgments of the Senate in
impeachment trials.
The Archbald case removed from the domain of controversy the
proposition that judges are only impeachable for the commission of
crimes or misdemeanors against the laws of general application.
On January 13, 1914,\2\ on motion of Mr. Elihu Root, of New York, a
monograph by Wrisley Brown, of counsel on behalf of the managers in the
impeachment trial of Judge Robert W. Archbald, was printed as a public
document. The following is an excerpt:
The impeachments that have failed of conviction are of little value
as precedents because of their close intermixture of fact and law,
which makes it practically impossible to determine whether the evidence
was considered insufficient to support the allegation of the articles,
or whether the acts alleged were adjudged insufficient in law to
constitute impeachable offenses. The action of the House of
Representatives in adopting articles of impeachment in these cases has
little legal significance, and the deductions which have been drawn
from them are too conjectural to carry much persuasive force. Neither
of the successful impeachments prior to the case of Judge Archbald was
defended, and they are not entitled to great weight as authorities. In
the case of Judge Pickering, the first three articles charged
violations of statutory law, although such violations were not
indictable. Article four charged open and notorious drunkenness and
public blasphemy, which would probably have been punishable as
misdemeanors at common law. In the case of Judge Humphreys, articles
three and four charged treason against the United States. The offense
charged in articles one and two probably amounted to treason, inasmuch
as the ordinance of secession of South Carolina had been passed prior
to the alleged recessionary speeches of the re-
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\1\ Fourth session Sixty-seventh Congress, House Report No. 1372.
\2\ Second session Sixty-third Congress, Senate Document No. 358, p.
16.
Sec. 458
spondent, and the offenses charged in articles five to seven,
inclusive, savored strongly of treason. But, it will be observed, none
of the articles exhibited against Judge Archbald charged an indictable
offense, or even a violation of positive law. Indeed, most of the
specific acts proved in evidence were not intrinsically wrong, and
would have been blameless if committed by a private citizen. The case
rested on the alleged attempt of the respondent to commercialize his
potentiality as a judge, but the facts would not have been sufficient
to support a prosecution for bribery. Therefore, the judgment of the
Senate in this case has forever removed from the domain of controversy
the proposition that the judges are only impeachable for the commission
of crimes or misdemeanors against the laws of general application. The
case is constructive, and it will go down in the annals of the Congress
as a great landmark of the law.
458. Argument as to whether a judge may be impeached for offenses
committed in prior judicial capacity.
On January 8, 1913,\1\ in the Senate sitting for the impeachment
trial of Judge Robert W. Archbald, Mr. Manager Edwin Yates Webb, of
North Carolina, said in final argument:
There is no merit in the argument that this respondent can not be
impeached at present for acts committed by him while he was district
judge. It is true that he is now a circuit judge, but it is also true
that immediately before he became a circuit judge he was a district
judge. He never ceased to be a judge or civil officer of the United
States.
This question was raised in the impeachment trial of Judge D. M.
Furches, in North Carolina, in 1901. There the respondent was impeached
while he was chief justice of North Carolina for acts committed while
he was an associate justice, two distinct and separate offices, but his
defense did not avail. Both the authorities and reason compelled the
repudiation of such a defense, and, to use the language of Judge
William R. Allen, now of the supreme court of our State, then one of
the managers in the Furches impeachment trial--
``The purpose of impeachment is to remove an officer whose conduct is
a menace to the public interest, and it would be strange indeed if he
could escape punishment by being elevated to a higher official
position. If such a defense could be sustained one could by resignation
avoid an investigation into his conduct by a court of impeachment, and
if he was of the same political faith as the head of the executive
department and in sympathy with it, he could be transferred from one
office to another and thus avoid impeachment altogether. The effect of
such defense would be to practically destroy the power of impeachment,
and at any rate it would be greatly impaired. We believe that the
authorities are practically unanimous in sustaining our contention that
the change of office does not affect the power of impeachment. He is
now exercising the same powers that he exercised when he was an
associate justice. He is performing the same duties; he is practically
filling the same office.''
Mr. Foster, on this subject, says:
``The power of impeachment is granted for the public protection in
order to not only remove but perpetually disqualify for office a person
who has shown himself dangerous to the Commonwealth by his official
acts. The object of this salutary constitutional provision would be
defeated could a person by resignation from office obtain immunity from
impeachment. State senates have sustained articles of impeachment for
offenses committed at previous and imediately preceding terms of the
same or a similar office.''
Is it not true that Judge Archbald now holds a similar office to that
which he held in 1908? He is now a circuit judge, and the powers and
duties of district and circuit judges are almost identical. State v.
Hill, Thirty-seventh Nebraska Reports.
We have, then, five precedents--one by the Senate of the United
States, one by the senate of New York, one by the senate of North
Carolina, one by the State of Wisconsin, and another by the court of
impeachment of Nebraska, indorsed by the Supreme Court of Nebraska, and
by Foster in his work on the Constitution.
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\1\ Third session Sixty-second Congress, Record, p. 1218.
Sec. 458
We therefore confidently maintain that the respondent in this trial
is now impeachable for acts which he committed while district judge of
the middle district of Pennsylvania.
I shall not go into the discussion of the origin of impeachment
trials, but will just quote this excerpt from one constitutional
writer. Mr. Foster, in his splendid work on the Constitution, says:
``Impeachment trials are a survival of the earliest kinds of
jurisprudence, when all cases were tried before an assembly of the
citizens of the tribe or State. Later, ordinary cases, both civil and
criminal, were assigned to courts created for that purpose, but matters
of great public importance were still reserved for a decision of the
whole body of citizens or subsequently of the council of elders, heads
of families, or holders of fiefs.''
This arrangement could be preserved in earlier times when population
was sparse and business intercourse small and human affairs were not
intricate; but as civilization became more complex, and the division of
labor in administering judicial affairs became more urgent, the right
to decide and pass upon various questions was allotted to different
officers, and so to-day we have a judicial system in which all judicial
power is lodged, but distributed to different courts, but in all this
evolution and distribution of judicial power there is one great right
which the people have always reserved unto themselves, and that is the
right to supervise the conduct of public officials and, through their
representatives, to remove such officials from office for misconduct or
misbehavior, and so, Senators, you sit today, theoretically at least,
as the court of 90,000,000 people who have commanded us through the
popular branch of Congress to bring this respondent before you to
inquire into his conduct, and ascertain if the condition on which he
was appointed to the high office which he now holds has not been broken
by him.
Quoting Foster again:
``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?''
This right to inquire into the conduct of public officials has been
reserved to the people themselves, and this great Senate is the
tribunal in which such questions must be tried, and necessarily and
properly the powers of this court are ``broad, strong, and elastic, so
that all misconduct may be investigated and the public service
purified.'' The fathers of the Constitution realized the importance of
reserving unto the people the right to remove an unworthy or
unsatisfactory official, and they were indeed wise in not attempting to
define or limit the powers of the court of impeachment, but left that
power so plenary that no misconduct on the part of a public official
might escape its just punisbnent.
In reply, Mr. Alexander Simpson, jr., counsel for respondent, in his
concluding argument on January 9 \1\ said:
The first question which arises is whether or not the Senate can now
consider an article of impeachment which relates to acts done while
Judge Archbald was a district judge before his appointment to and
confirmation as a judge of the Commerce Court. The managers in their
brief say this in referring to this question:
``In this respect the case here presented seems to be unique in the
annals of impeachment proceedings under our Constitution.''
And they say further in that regard that they can justify the
articles of impeachment, notwithstanding the change of office, because
the two offices are substantially the same within the contemplation of
the constitutional provisions relating to impeachments.
That argument necessarily concedes the points decided in the Blount
case and considered and voted upon in the Belknap case, that he who is
out of office can no longer be impeached. It necessarily also concedes
that the constitutional provision has for its primary purpose the
removal of the delinquent from the particular office in which he is
said to have done a wrong. That is the necessary conclusion from the
provision of Article I, section 3, of the Constitution, which provides
what shall be the penalty in case of impeachment. It is considered also
by Judge Story in his work on the Constitution, and if the argument
which was presented by Judge Story is sound it must
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\1\ Record, p. 1278.
Sec. 458
necessarily follow that the similarity of the two offices is not and
can not be of any moment whatsoever. Can it be said that if a civil
officer, say in the Cabinet of the President, is transferred from one
portfolio to the other and continues steadily in office, that he may be
impeached while holding the second office for that which was done in
the first, and yet if he passes from the Cabinet to the Senate or into
private life he can not be impeached at all? There is no logic or sound
reasoning in any such proposition as that, nor is it in accord with any
well-settled principles. In the provision which the managers quote in
their brief from Mr. Foster he says this in regard to that:
``It includes such action by an officer when acting as a member ex
officio of a board of commissioners; and such action in the same or a
similar office at an immediately preceding term.''
Now, I want to know why limit it to the immediately preceding term if
the similarity of the office is the test in determining whether the
impeachment will lie or not. Of course, that can not be sound; and the
only reason why Foster wrote in his commentaries the ``immediately
preceding term'' was because he felt that the line must be drawn
somewhere. He knew that in certain of the State courts, under the
language of their constitutions, it had been held that in a succeeding
term of the same office there might be an impeachment for that which
occurred in the immediately preceding term. But it remained for the
managers to evolve the doctrine that it was to be a substantially
similar office which was the test in determining the matter.
I submit that the proper test is the one to which I have already
adverted. It is that the office, during the incumbency of which the
acts were done of which complaint was made, shall be the determinative
factor in deciding whether or not impeachment shall lie for the offense
charged. If that is not so, there is no logical conclusion from the
position which one of the managers assumed, that so long as the man is
in public office whether the office is substantially similar or no, or
whether there is a continuity of term or no--so long as he is in public
office he may be impeached for anything which he has ever done in the
past, because, as it was claimed, the purpose of the constitutional
provision is to put out of office all those who by their past lives
have shown that they are unfit to occupy it. That position would be a
logical one; but there can not be a case found to sustain it; and all
the authorities decide precisely the reverse.
On January 3, 1913,\1\ Messrs. R. W. Archbald, jr., M. J. Martin,
Alexander Simpson, jr., and A. S. Worthington, of counsel for the
respondent, offered a brief covering various phases of the case, from
which the following extract relates to this question:
III.
The last six articles of impeachment in this case must fail, if for no
other reason, because they relate
to a time when the respondent held the office of district judge of
the United States. He may not
be impeached for alleged offenses committed prior to January 31,
1911, when he ceased to be district
judge by appointment to a different office.
Articles VII, VIII, IX, X, XI, and XII, and Article XIII in part,
charge offenses alleged to have been committed by the respondent before
he was appointed to his present position as circuit judge and assigned
to duty on the Commerce Court. He was a district judge of the United
States from March, 1901, until the 31st day of January, 1911.
No useful information on this subject can be obtained from the
English precedents, because in England a private citizen could be
impeached as well as officers of the Government.
In this country there have been two attempts to impeach persons who
had ceased to be officers for acts done by them while they were
officers. One of these cases was that of William Blount in 1798; the
other that of William W. Belknap in 1876.
In Blount's case when he was called upon to answer the articles he
filed a plea which set up in substance these two defenses: (1) That a
Senator is not impeachable, and (2) that he had ceased to be a Senator.
(3 Hinds' Precedents, 663.)
This double plea was sustained by the Senate by a vote of 14 to 11.
(3 Hinds' Precedents,. 679.)
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\1\ Record of trial, p. 1007.
Sec. 458
There is nothing in the record of the case to enable us to determine
whether all the 14 Senators who voted to sustain the plea did so
because they held that a Senator is not impeachable, or because Blount
was out of office at the time. And, of course, it may be that some
voted to sustain the plea on one of those grounds and some on the
other.
It will be seen that the managers in that case actually contended
that in the United States, as in England, private persons may be
impeached as well as officers. It is not thought necessary to consider
that question, because that contention has never been made since it was
made by the managers in Blount's case. Mr. Ingersoll, of counsel for
Blount, said in the course of the argument that he would not contend
that an officer might escape an impending impeachment by resigning his
office for that purpose.
This admission of Mr. Ingersoll's gave great comfort to the managers
and some embarrassment to the counsel for the respondent in Belknap's
case. In that case the respondent filed a plea in which he averred:
``That this honorable court ought not to have or take further
cognizance of the said articles of impeachment * * * because he says
that before and at the time when the said House of Representatives
ordered and directed that he, the said Belknap, should be impeached at
the bar of the Senate, and at the time when the said articles of
impeachment were exhibited and presented against him * * * he, the said
Belknap, was not, nor hath he since been, nor is he now, an officer of
the United States; but at the said times was, ever since hath been, and
now is, a private citizen of the United States and of the State of
Iowa. (3 Hinds' Precedents, 919.)''
To this plea the managers for the House of Representatives filed a
replication, in which they set up: (1) That at the time the acts
charged in the articles of impeachment were committed, Belknap was
Secretary of War; and (2) that Belknap had resigned to escape
impeachment, after he had learned that the House of Representatives, by
its proper committee, had completed its investigation into his official
conduct, and was considering the report it should make to the House
upon the same. There were further pleadings, but those above stated set
forth sufficiently what the issues were. (3 Hinds' Precedents, 921.)
After much discussion the Senate determined to hear first the
question of the sufficiency of the replication. After a long debate, it
was decided, by a vote of 37 to 29, that Belknap was amenable to trial
by impeachment for acts done as Secretary of War, notwithstanding his
resignation before he was impeached. (3 Hinds' Precedents, 964.)
Belknap was called upon to plead to the merits, but declined to do so
on the ground, as set forth on the record by his counsel, that, as less
than two-thirds of the Senate had sustained the jurisdiction, the
respondent was entitled to be discharged, without further proceedings.
(3 Hinds' Precedents, 936-937.)
The Senate, however, went on and took evidence in the case, with the
result that Belknap was acquitted. The vote on the several articles
ranged from 35 to 37 for conviction. On each article 25 voted not
guilty. Most of those who voted not guilty stated that they did so
because they believed the court was without jurisdiction, for the
reason that the respondent had ceased to be a civil officer of the
United States at the time he was impeached by the House of
Representatives.
Hence, in Belknap's case, as in Blount's case, it will be seen that
the final vote does not indicate that any of the Senators who voted
``guilty'' did so on the ground that one who has been a civil officer
remains liable to impeachment as long as he lives, for acts done during
the time he held the office. The evidence in the case showed that
Belknap was advised at 10 o'clock of the morning of the day that he
resigned, that the Judiciary Committee of the House was about to report
a resolution recommending his impeachment. He hurried to the President,
tendered his resignation, and had it accepted, a few hours only before
the Judiciary Committee did present to the House the resolution
recommending his impeachment. There was much controversy in the
discussion of the case before the Senate by the managers and counsel,
respectively, as to whether Belknap was an officer when the resolution
of impeachment was presented to the House, on the theory that the law
takes no notice of fractions of a day. But, aside from this, it was
strenuously contended by the managers that even if the general rule be
that an officer ceases to be subject to impeachment when he leaves the
office, there should be an exception to that rule when the officer
resigns for the very purpose of escaping impeachment.
Sec. 459
It is impossible to determine what proportion of the Senators who
voted against Belknap at the conclusion of the trial did so on the
ground that he could not escape impeachment by resigning for that
purpose, even if he would not be subject to impeachment had he not
vacated the office in that way and for that purpose. In other words,
the case is not a precedent for the proposition that one whose term of
office has expired remains subject to impeachment during the whole of
his life for acts done while he held the office.
When Manager Hoar was making his argument a Member of the Senate
interrupted him and propounded the following question:
``There are no doubt several Members of the Senate who have been in
past years civil officers of the United States. Are they liable to
impeachment for an alleged act of guilt done in office?''
The manager did not flinch at this question, but said, as he was
evidently required to say or abandon his contention: ``The logic of my
argument brings us to that result.''
It will be seen that the contention which was made on behalf of the
House in Belknap's case, and which we understand is maintained by the
managers in the case at bar, is far-reaching. The present President of
the United States at one time held the office of Solicitor General; at
another time he was circuit judge of the United States; at another time
he was governor of the Philippine Islands; at another time he was
Secretary of War. Is it possible that he can now be the subject of
impeachment for any act committed by him at the time he held either one
of those offices? If so, he may be removed from his present office as
President of the United States by a majority of the House and two-
thirds of the Senate for alleged offenses charged to have been
committed while he held any one of the other positions above mentioned.
And so of any other public man who has ever held office under the
United States.
It would seem that a contention which leads to such absurd results
can not be sustained.
459. On January 9, 1913,\1\ in the Senate sitting for the Archbald
impeachment trial, Mr. Manager George W. Norris, of Nebraska, said in
concluding argument:
The authorities are practically unanimous that a public official can
be impeached for official misconduct occurring while he held a prior
office if the duties of that office and the one he holds at the time of
the impeachment are practically the same, or are of the same nature.
The Senate must bear in mind, as stated by all of the authorities, that
the principal object of impeachment proceedings is to get rid of an
unworthy public official. In the State of New York it was held in the
Barnard case that the respondent could be impeached and removed from
office during his second term for acts committed during his first term.
And in the State of Wisconsin the court held the same way in the
impeachment of Judge Hubbell. To the same effect was the decision in
Nebraska upon the impeachment trial of Governor Butler. On this point
the respondent relies upon the case of the State v. Hill (37 Nebr., p.
80).
In that case the State treasurer of Nebraska was impeached after he
had completed his term and retired to private life. The articles of
impeachment were not passed on by the legislature--in fact, were not
even introduced in the legislature--until after the respondent had
served his full term, and the court there held that impeachment did not
lie, but it expressly approved the judgment of the New York court in
the Judge Barnard case, the judgment of the Wisconsin court in the
Judge Hubbell case, and the prior judgment of the Nebraska court in the
Butler case.
460. Argument that an impeachable offense is any misbehavior or
maladministration which has demonstrated unfitness to continue in
office.
On January 9, 1913,\2\ in the Senate, sitting for the impeachment
trial of Judge Robert W. Archbald, Mr. Manager Paul Howland, of Ohio,
in final argument said:
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\1\ Third session Sixty-second Congress, Record, p. 1265.
\2\ Third session Sixty-second Congress, Record, p. 1259.
Sec. 460
The managers contend that the power to impeach is properly invoked to
remove a Federal judge whenever, by reason of misbehavior, misconduct,
malconduct, or maladministration, the judge has demonstrated his
unfitness to continue in office; that misbehavior on the part of a
Federal judge is a violation of the Constitution, which is the supreme
law of the land, and a violation also of his oath of office taken in
compliance with the requirements of the statute law. If the Senate
should adopt this view of the law, then the only question to be passed
on by the Senate would be whether the acts alleged and proven
constitute such misbehavior as to render the respondent unfit to
continue in office.
The learned counsel for the respondent, by insisting that only
indictable offenses are impeachable, would seem to be placing himself
in the position of holding that the object of impeachment was
punishment to the individual. This conception of the object of
impeachment is entirely erroneous, and whatever injury may result to
the individual is purely incidental and not one of the objects of
impeachment in any sense. An impeachment proceeding is the exercise of
a power which the people delegated to their representatives to protect
them from injury at the hands of their own servants and to purify the
public service. The sole object of impeachment is to relieve the people
in the future, either from the improper discharge of official functions
or from the discharge of official functions by an improper person. This
view of impeachment is clearly demonstrated by the judgment which the
Constitution authorizes in case of conviction and which shall extend no
further than removal from office and disqualification to hold or enjoy
any office of honor, trust, or profit under the Government of the
United States, leaving the punishment of the individual for any crime
he may have committed to the criminal court. (See Art. I, sec. 3, par.
7, Constitution of the United States.)
As bearing upon the question of law raised by the demurrer of the
respondent I wish to call attention to two provisions of the Federal
Constitution. Section 4, Article II, provides:
``The President, Vice President, and all civil officers of the United
States shall be removed from office on impeachment for and conviction
of treason, bribery, or other high crimes and misdemeanors''--
To which I shall hereafter refer as the removal section, and section
1, Article III, the second sentence thereof, which provides that--
``The judges, both of the Supreme and inferior courts, shall hold
their offices during good behavior''--
To which I shall hereafter refer as the judicial-tenure section.
It will be noted that the removal section immediately precedes the
judicial-tenure section. The limitation of the judicial tenure to good
behavior is the only limitation of that character to be found in the
Federal Constitution upon the tenure of any of the civil officers of
the Government. I therefore contend that it was the plain intention of
the framers of the Constitution that, in so far as the Federal judges
were concerned, the removal section was not intended to be antagonistic
in its terms to the judicial-tenure section, immediately following it,
and that the judicial-tenure section, which provides that the judicial
term shall be during good behavior, was not intended to be antagonistic
to the removal section, which immediately precedes it. These two
sections must be construed together, and when so construed the
judicial-tenure section is of necessity either an addition to the
enumerated offenses in the removal section or a definition of the term
``high crimes and misdemeanors,'' when applied to the judiciary, as
including misbehavior. To say that the judicial tenure shall be limited
to good behavior in one section of the Federal Constitution and then
contend that the section of the Constitution immediately preceding that
has destroyed its force and effect and has left the Federal Government
without any machinery to pass upon the question of the forfeiture of
the judicial tenure, or to take jurisdiction of acts which constitute
misbehavior but are not criminal, is to treat the words ``during good
behavior'' as surplusage. Such an interpretation violates all rules of
construction.
What is the legal status of the judicial tenure and what determines
that status? There are some considerations on which to base the claim
that the legal status of the judicial tenure should be determined by
the same principles that are applicable to a contract of hiring. The
parties to the contract are the people of the United States and the
candidate for a Federal judgeship. When he has been nominated by the
President and confirmed by the Senate the commission
Sec. 461
tendered or delivered to him is an offer on the part of the people of
the United States to the candidate whereby they agree to enter into a
contract on certain terms and conditions with the candidate and offer
to pay him a fixed sum of money for the performance of certain services
for them in accordance with the terms of the offer. No obligation on
the part of the Government has yet attached; the candidate need not
accept the offer; he is not compelled to qualify; that is a voluntary
act on his part. (See Marbury v. Madison, 1 Cranch, 137.)
Section 257 of the judicial code provides that the Federal judges
shall take a certain prescribed oath before they proceed to perform the
duties of their respective offices.
The acceptance of the offer on the part of the candidate is evidenced
by his oath, and when the oath is taken the contract of hiring becomes
valid and binding on the parties to the same in accordance with the
terms and conditions of the contract.
In this case the contracts between the United States and the
respondent are evidenced by the various commissions and the various
oaths accepting the same.
Under this state of facts, if we were not dealing with the Government
as one of the parties to the contract, under constitutional
limitations, the contract could be abrogated for breach of condition if
necessary and the rights of the parties determined in the courts of
law.
If it should be objected that the legal status of the judicial tenure
must be placed on a higher ground than an ordinary contract right by
reason of the solemnities necessary to create the status and by reason
of the important and sacred functions of government with which the
judge is charged, we perhaps would be justified in saying that a
fiduciary relation of the highest and most sacred character known to
the law is created by the commission of appointment and the oath of
acceptance of a Federal judge. Under this conception of the status of
the judicial tenure the judge is acting as a trustee. The subject
matter of the trust is the judicial power of the United States, and the
beneficiaries of the trust are the people thereof. Given this status in
a court of equity, the trustee, under well-known and well-recognized
principles of equitable jurisprudence, can always be removed on
application of the beneficiary and a showing that the trustee is not
performing his duties as such trustee in such a manner as to satisfy
the conscience of the chancellor that he is acting for the best
interest of the beneficiary. Realizing, however, the manifest
impropriety of leaving the question of forfeiting the judicial tenure
to the judges, the framers of the Constitution wisely provided a
different forum, viz, the Congress, to raise and try the question of
the forfeiture. We have now seen that whether we apply principles of
law or equity to the status created by the appointment of the Federal
judge there would be a forum to adjudicate the rights of the parties,
and reasoning by analogy we are driven to the conclusion that the
framers of the Constitution were not unmindful of the importance of the
subject with which they were dealing, and intended to and did provide a
forum before which the people of the United States could bring their
judges and on proper showing of misbehavior, which demonstrates the
unfitness of the judge to continue in office, work a forfeiture of the
judicial tenure.
461. Summary of State trials of impeachments with reference to their
holdings on the question of whether acts of a judge must be indictable
to be impeachable.
On January 9, 1913,\1\ in the Senate, sitting for the Archbald
impeachment trial, Mr. Manager Paul Howland, of Ohio, filed as part of
his final argument a record of impeachment trials in various States,
with particular reference to their holdings on the question as to
whether an offense in order to be impeachable must be indictable. The
summary appears in full in the Congressional Record of that date.
462. Discussion of the meaning in English parliamentary law and in
the constitution, of the phrase ``high crimes and misdemeanors'' as
applied to judicial conduct.
Arguments as to whether acts of maladministration which are not
indictable are subject to impeachment.
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\1\ Third session Sixty-second Congress, Record, p. 1261.
Sec. 462
On January 9, 1913,\1\ in the Senate, sitting for the trial of the
impeachment of Judge Robert W. Archbald, Mr. Manager Paul Howland, of
Ohio, in final argument said:
In the removal section of the Constitution we find the words ``high
crimes and misdemeanors.'' These words are used in the same sense that
had attached to them for centuries in the impeachment trials of
England. They were used as part of the well-recognized terminology of
the law of Parliament as distinguished from the common law. We must
bear in mind that these terms are used in a section of the Constitution
which is plainly intended to protect the State against its own
servants.
The two enumerated offenses of treason and bribery are offenses
peculiarly against the state as distinguished from offenses against the
individual. In construing a clause of this character in the
Constitution, where the whole object is to protect and preserve the
Government, such a construction should be placed upon the language used
as will best accomplish the results desired. To insist that the
technical definition of the criminal law should be applied in
construing the meaning of the term ``high crimes and misdemeanors'' is
to insist on the narrowest possible construction, and loses sight of
the object and purpose of this clause in the Constitution. To insist
that it is impossible to impeach a judge unless he has committed some
indictable offense is to say that the people of this country are
powerless to remove a Federal judge so long as he is able to keep out
of jail. While no criminal is fit to exercise the judicial function, it
does not follow that all other persons are fit to be judges. Such a
construction is absolutely repulsive to reason and ought not to be and
is not a correct interpretation of the term ``high crimes and
misdemeanors.''
Attention is often called to the discussion that took place in the
Constitutional Convention between Colonel Mason and Mr. Madison in
which Mr. Madison suggested that the term ``maladministration'' was too
vague and the phrase ``high crimes and misdemeanors'' was adopted.
Attention was called to that by the distinguished counsel for the
respondent in his opening statement.
On the strength of this passage in Madison's papers it is contended
that Mr. Madison did not construe the phrase ``high crimes and
misdemeanors'' as including maladministration. (3 Madison's Papers,
1528.)
We find, however, that Mr. Madison in a speech in Congress on the
16th day of June, 1789, on the bill to establish a department of
foreign affairs, in discussing the possibility of abuse of power by the
Executive, said:
``Perhaps the great danger of abuse in the Executive's 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. (4 Elliot's Debates, 375.)
This language clearly demonstrates that Mr. Madison believed that
acts of maladministration which were not indictable were impeachable.
Nowhere in the English law of impeachment or in the Constitution of
the United States or any of the States do we find any definition of
impeachable offenses. The language of the Federal Constitution attempts
no definition of impeachable offenses, and the general term ``high
crimes and misdemeanors'' is not and was not intended to be a
definition.
Under the State constitutions we sometimes find the added terms ``mal
and corrupt conduct,'' ``corruption in office,'' and
``maladministration''--all general terms, without attempting any
technical definition. The reason for this is perfectly obvious, and is
that the subject matter is not capable of technical definition. Who is
wise enough to anticipate every manifestation of fraud that would give
a chancellor jurisdiction and write it into a statute? It is the effect
of acts under the circumstances of each particular case that confers
jurisdiction. So it is with impeachment. No one can tell in advance in
what way or from what source the danger may arise which demands
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\1\ Third session Sixty-second Congress, Record, p. 1260.
Sec. 463
the exercise of this power. The power of impeachment is recognized and
authorized in every one of our constitutions, Federal and State, but
the circumstances which warrant the exercise of that power are not
defined and the necessity for its exercise is in the first instance
left to the discretion of the House of Representatives. It is an
indefinite and broad power incident to sovereignty, and its exercise in
this country is demanded whenever the agents of sovereignty have acted
in such a manner as to destroy their efficiency in the discharge of
their duties to the sovereign. The existence of this power is necessary
to the permanence of the State, and the exercise of the power is
necessary whenever and however the welfare of the State may be
threatened by its civil officers.
Mr. Alexander Simpson, counsel for respondent, took issue with this
argument, saying: \1\
It was claimed by Mr. Manager Howland to-day, that the words ``high
crimes and misdemeanors'' as used in this provision of the Constitution
were taken bodily out of the English practice, the English
parliamentary law, as they said. That is unquestionably true. It is not
true that in all the impeachments in England they used the words ``high
crimes and misdemeanors,'' but those words are used in a number of
their impeachments. This being so, you must either accept the
constructions placed upon those words in the lex parliamentii, or you
must decline to accept that construction. If you decline to accept it,
of course that branch of the argument falls by the wayside at once. But
if you accept it, then the question arises which of the English
precedents are you going to accept, in view of the fact that some hold
that an impeachable offense need not be an indictable one, and others
hold a precisely antagonistic view. Are you going back to the days when
a man was impeached simply because he happened to have been put in
office by those who have themselves just been turned out? If that is
the view you are going to accept then perhaps every four years in this
country there will be a wholesale slaughter. But if you are going to
accept the best precedents which appear upon the English reports, and
especially those down near to the time when the Constitution of the
United States was adopted, then those best precedents show that, except
for an indictable offense, no impeachment would lie under the laws of
England.
But what are you going to do if the matter is to be considered solely
under the language of the Constitution itself? The word
``misdemeanors'' in that clause must be taken either in the technical
sense or in the proper sense. If that word is taken in the technical
sense everybody knows that a misdemeanor taken technically is a crime
pure and simple. If it is taken in the popular sense, then,
notwithstanding what some text writers have said, I venture the
assertion that if you go out into the cars or on the streets or in your
homes and ask the people you meet what is meant by the words ``treason,
bribery, or other high crimes and misdemeanors,'' you will not find one
in a thousand but will say that every one of those words imports a
crime. If that is so, then necessarily, when you come to construe those
words after this trial is over, you will necessarily have to reach the
conclusion that these charges must be indictable or they can not be
impeachable.
463. On January 9, 1914 \2\ in the Senate, sitting for the Archbald
impeachment trial, Mr. Manager John W. Davis, of West Virginia, said in
final argument:
The issue narrows itself down to the meaning of the phrase ``high
crimes and misdemeanors'' occurring in Article II, section 4, of the
Constitution; and the respondent now renews the oft-repeated contention
that this language can be used only with reference to offenses which,
either by common law or by some express statute, are indictable as
crimes. Every canon of construction which can be applied to this clause
of the Constitution negatives the position which counsel for the
respondent assume. Test it by the context, by contemporary
interpretation, by precedent, by the weight of authority, and by that
reason which is the life of every law, and the answer is always the
same.
In the first place, when we read this clause of the Constitution, as
we are required to do in the light of the context of the instrument, we
are confronted at once by the clause fixing the tenure
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\1\ Record, p. 1270.
\2\ Third session Sixty-second Congress, Record, p. 1266.
Sec. 463
of judges of the Federal courts during good behavior; and if it be
difficult, as counsel for respondent assert, to enlarge the phrase
``high crimes and misdemeanors'' so as to embrace acts not indictable
as crimes, it is certainly far more difficult to restrict ``good
behavior'' to the narrow limits fixed by the criminal law. To say that
a judge need take as the guide of his conduct only the statutes and the
common law with reference to crimes, and that so long as he remains
within their narrow confines he is safe in his position, is to overlook
the larger part of the duties of his office and of the restraints and
obligations which it imposes upon him. We insist that the prohibitions
contained in the criminal law by no means exhaust the judicial
decalogue. Usurpation of power, the entering and enforcement of orders
beyond his jurisdiction, disregard or disobedience of the rulings of
superior tribunals, unblushing and notorious partiality and favoritism,
indolence and neglect, all are violations of his official oath, yet
none may be indictable. Personal vices, such as intemperance may
incapacitate him without exposing him to criminal punishment. And it is
easily possible to go further and imagine such indecencies in dress, in
personal habits, in manner and bearing on the bench; such incivility,
rudeness, and insolence toward counsel, litigants, or witnesses; such
willingness to use his office to serve his personal ends as to be
within reach of no branch of the criminal law, yet calculated with
absolute certainty to bring the court into public obloquy and contempt
and to seriously affect the administration of justice. Can it be
possible that one who has so demonstrated his utter unfitness has not
also furnished ample warrant for his impeachment and removal in the
public interest?
Stated in its simplest terms, the proposition of counsel is to change
the language of the Constitution so that instead of reading that--
``the judges both of the Supreme and inferior courts shall hold their
offices during good behavior''--it will read that--
``the judges both of the Supreme and inferior courts shall hold their
offices so long as they are guilty of no indictable crime.''
If the latter were the true meaning, is it conceivable that the
careful and exact stylists by whom the Constitution was composed would
have used an ambiguous term to express it?
But counsel ask: What shall be done with that clause which provides
that in case of impeachment--the party convicted shall nevertheless be
liable and subject to indictment, trial, judgment, and punishment
according to law.
This, they insist, is a definition by implication, and signifies that
the scope of impeachment and indictment is one and the same, although
the mode of trial and the penalty to be inflicted may differ. We
submit, on the contrary, that this clause, instead of being a
declaration that impeachment and indictment occupy the same field, is a
recognition of the fact that the field which they occupy may or may not
be identical; and, recognizing this fact, it declares merely that when
the field of impeachment and the field of indictment overlap there
shall be no conflict between them, but that the same offense may be
proceeded against in either forum or in both.
The light drawn from contemporary speeches and writings confirms the
position for which we contend. It is true, as counsel will point out,
that in the Constitution Convention when the word ``maladministration''
was proposed it was objected to by Mr. Madison as too vague, and the
words ``high crimes and misdemeanors'' were inserted instead; but it is
also true that on the 16th day of June, 1789, when debating in the
House of Representatives the propriety of giving to the President the
right to remove an officer, he said:
``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 this 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.''
Mr. Davis then cited numerous authorities and said:
It can be safely said that nothing was further from the minds of the
men who framed the Constitution than the construction here contended
for by respondent's counsel.
Sec. 463
Again we may look to the precedents only to find that the word
``misdemeanor'' has always been treated as having a meaning of its own
in parliamentary law, and that one impeachment proceeding after another
has been based upon offenses not within the law of crimes. I do not
repeat the many authorities for this statement which my colleagues have
cited. This body, of course, being a law unto itself, is bound by no
precedents save those of its own making, and even as to them no doubt
has the power which any other court enjoys to overrule a previous
decision if convinced of its error.
After citing authorities, Mr. Davis continued:
But, without stopping to multiply precedents further, we next call
attention to the long list of eminent authorities and commentators on
the Constitution who uphold the construction for which we contend--
Story, Curtis, Cooley, Tucker, Watson, Foster--all these and many more
have been cited in the course of this discussion. Speaking as a lawyer,
it must be said that the weight of authority in our favor is
overwhelming.
Last of all we resort to the highest of all canons for the
construction of constitutions and statutes alike, viz, ``The reason of
the thing.'' It is true that the framers of the Constitution intended
to create an independent judiciary, but they never contemplated a
judiciary which should be totally irresponsible. Regarding public
office as a public trust, they found it necessary to lodge somewhere
the power to determine whether that trust had or had not been abused.
In the appointment of judges they required that the judgment of the
President with reference to individual fitness should be concurred in
by the Senate, and quite naturally they gave to the body which had
approved the appointment the power to withdraw that approval and
dismiss the officer when he had shown himself faithless to his trust.
In requiring first of all a majority of the House of Representatives in
order to prefer articles of impeachment and then two-thirds of the
Members of the Senate present to convict they hedged the power about
with all the safeguards necessary to protect the upright official and
yet leave it sufficient play to preserve the public welfare. Experience
has shown how more than adequate the machinery so provided has been to
prevent hasty or intemperate action. Indeed, it would seem that if the
fathers erred it was in making too slow and difficult the process of
removing the unfaithful and unfit. I hope--indeed, I believe--that this
high court will never sanction any construction of the Constitution
which will render it practically impotent for the purposes of its
creation.
But in the brief filed by counsel for the respondent it is suggested
that if an impeachable offense need not be criminal in fact it must
still be criminal in its nature. It will at once be clear that it is a
definition which does not define, and that the phrase ``criminal in its
nature'' has no more certainty to commend it than has ``good
behavior.'' Recognizing this to be true, counsel go on to say, in the
attempt to define their own language, that--
``For the same reason, even if the misdemeanors for which impeachment
will lie are not necessarily indictable offenses, yet they must be of
such a character as might properly be made criminal.''
We are not called on to agree with their position as so stated, but
have no great cause to fear it.
We understand a crime or misdemeanor to be, in the language of
Blackstone:
``An act committed or omitted in violation of a public law either
forbidding or commanding it.''
If the phrase ``criminal in nature'' means those things which might
be made crimes by legislative prohibition, every act here charged
against this respondent comes within the description. Certainly
Congress could by express criminal statute forbid a Federal judge to
accept gifts of money from members of his bar, to communicate in
private either orally or by letter with counsel in reference to cases
pending for decision, to request financial favors from parties litigant
before him, and as to the Commerce Court might well forbid the members
of that court to engage in the business of hunting bargains from
railroad companies engaged in interstate commerce. And certainly if
such things are not already misdemeanors or misconduct or misbehavior,
a statute to forbid them can not come too soon.
Sec. 464
464. Discussion of the question of impeachability of a judge for
offenses not subject to prosecution by indictment or information in a
criminal court.
Argument that impeachment is not restricted to offenses indictable
under Federal law, and that judges may be impeached for breaches of
``good behavior.''
On January 9, 1913,\1\ in the Senate, sitting for the impeachment
trial of Judge Robert W. Archbald, Mr. Manager George W. Norris, of
Nebraska, in the final argument said:
It is strenuously argued by attorneys for respondent that an
impeachment lies only for offenses which are criminal in their nature,
and which could legally be the subject of prosecution by indictment.
The Constitution provides (Art. I, sec. 2) that the House of
Representatives shall have the sole power of impeachment, and in
section 3 of the same article it is provided that the Senate shall have
the sole power to try all impeachments. It is undisputed, and, indeed,
has never been questioned, that to remove a United States judge from
office two things are essential: First, he must be impeached by the
House of Representatives, and, second, he must be tried and convicted
by the Senate upon the articles of impeachment presented by the House.
There is no other way provided by the Constitution of the United States
for the removal from office of a judge. In the consideration of this
subject, I shall draw a distinction between a judge of the United
States court and all other civil officers of the United States. I shall
demonstrate from the Constitution itself that a judge of the United
States court can properly be impeached, convicted, and removed from
office for any act from treason down to conduct that tends to bring the
judiciary into disgrace, disrespect, or disrepute. Section 4 of Article
II of the Constitution reads as follows:
``The President, Vice President, and all civil officers of the United
States shall be removed from office on impeachment for, and conviction
of, treason, bribery, or other high crimes and misdemeanors.''
It will be noted that this provision of the Constitution applies to
all civil officers of the United States alike. It is undisputed that it
includes judges, and were there no other provision of the Constitution
applying particularly to the conduct or the tenure of office of judges,
then there would be no distinction between the impeachment and trial of
judges and any other civil officer, including the President and Vice
President. But section 1, Article III, so far as the same is applicable
to this case, provides: ``The judges, both of the Supreme Court and
inferior courts, shall hold their offices during good behavior.'' This
provision of the Constitution, it will be observed, applies only and
exclusively to judges. It has no relation to any other civil officer of
the Government, and if we are not to nullify it entirely, we will find
that it bears a very important part in the consideration of the
particular branch of the case under discussion. I desire the Senate to
continually bear in mind and to faithfully observe at all times during
the consideration of this subject that in the construction of any legal
document or instrument the court will so construe it as to give life
and vitality to every part of the instrument, if it can reasonably and
logically do so. It is our duty to construe these two provisions of the
Constitution together and, if possible, to give equal vitality and life
to them both.
Most of the civil officers provided for by the Constitution have a
definite fixed term, but the judges hold office during good behavior.
Much of the contention arises over what is meant in section 4, Article
II, by the word ``misdemeanor.'' It is contended by the respondent that
this word is intended only to apply to such offenses as are indictable
and punishable under the criminal law, and that a judge can not be
impeached and removed from office unless his offense, whatever it may
be called, is at least of so high a degree as to make it criminal and
indictable. This construction, if adhered to, absolutely nullifies that
provision of section 1, Article III, above quoted which provides that
judges shall hold their offices during good behavior. If judges can
hold their offices only during good behavior, then it necessarily and
logically follows that they can not
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\1\ Third session Sixty-second Congress, Record, p. 1264.
Sec. 464
hold their offices when they have been convicted of any behavior that
is not good. If good behavior is an essential to holding the office,
then misbehavior is a sufficient reason for removal from office. And
if, therefore, we give full life and vitality to both of these
provisions of the Constitution, we must hold that the lack of good
behavior, or misbehavior, mentioned in section 1, Article III, is
synonymous with the word ``misdemeanor'' in section 4, Article II, in
all cases where the offense is less in magnitude than in indictable
one.
This view of these provisions of the Constitution has been sustained
by practically all of the leading law writers upon the subject. It has
also been sustained by the Senate in the trial of prior impeachment
cases that have taken place. (John Randolph Tucker, Commentaries on the
Constitution, vol. 1, sec. 200; George Ticknor Curtis, Constitutional
History of the United States, p. 481; Watson, on the Constitution, vol.
2, p. 1034.) These citations showed that the Senate has in the past
found officials guilty where the crime charged was not an indictable
offense.
But suppose, for the sake of argument, it be admitted that
``misdemeanors'' as used in section 4, Article II, was intended by the
framers of the Constitution to exclude all offenses that were not
indictable under the law, it would still not necessarily follow that
judges could not be impeached and removed from office for misdemeanors
of so low a grade that they were not indictable. This section simply
provides that all the civil officers of the United States shall be
removed from office on impeachment for and conviction of treason,
bribery, and other high crimes and misdemeanors. If in any other
provision of the Constitution additional reasons for impeachment are
given of some of these specified officers, or additional reasons are
given why some of them should cease to hold office, then under such
provision such specified officers could be tried, impeached, and
removed, even though the offense of which they might be guilty was not
included in any of those enumerated in section 4, Article II.
While I believe the construction placed on ``misdemeanors'' by the
respondent is wrong, yet they have not made a defense to the various
charges of misbehavior in office, even if we accept their construction
of the law that misdemeanors in this section means only indictable
offenses. If, for instance, the President was expressly excluded, from
the officers named in this section, then I concede there would be no
way under the Constitution for him to be impeached, tried, and removed
from office, because there is no other provision of the Constitution
that provides for any offense on the part of the President or limits
his tenure of office, excepting the expiration of his regular term. But
if judges were expressly eliminated from this section, and it read,
``all civil officers of the United States except judges, etc.,'' it
would not follow that they could not be impeached, convicted of
misbehavior, and removed from office, because section 1, Article III,
expressly provides that they shall only hold their offices during good
behavior. In other words, our forefathers in framing the Constitution
have wisely seen fit to provide for a requisite of holding office on
the part of a judge that does not apply to other civil officers. The
reason for this is apparent. The President, Vice President, and other
civil officers, except judges, hold their positions for a definite,
fixed term, and any misbehavior in office on the part of any of them
can be rectified by the people or the appointing power when the term of
office expires. But the judge has no such tenure of office. He is
placed beyond the power of the people or the appointing power and is,
therefore, subject only to removal for misbehavior. Since he can not be
removed unless he be impeached by the House of Representatives, tried
and convicted by the Senate, it must necessarily follow that
misbehavior in office is an impeachable offense.
Any authority that has been cited by the respondent which shows or
tends to show that a President, Vice President, or other civil officer
other than a judge can not be impeached except the offense is at least
of the grade of a misdemeanor that is indictable, does not apply to the
impeachment or trial of a United States judge. To hold that an officer
whose tenure of office is definite and fixed and who will necessarily
go out of office within the course of a year or two, should not be
impeached and removed from office for a misbehavior that does not reach
in magnitude an indictable offense, is entirely different from holding
that an officer whose term of office ordinarily lasts for life should
not be so impeached and removed. And our forefathers evidently had this
distinction in mind when they applied exclusively to judges that
provision of the Constitution which provides that judges shall hold
their offices during good behavior.
Sec. 465
If I am not right in my construction of the Constitution, then the
Congress and the country are absolutely helpless in any attempt to get
relief from a judge who drags the judicial ermine down into disgrace,
but is careful in doing so not to commit any criminal offense. If I am
not right in my construction, then that provision of the Constitution
which says that judges shall hold office during good behavior is
absolutely nullified, and as far as the good behavior part of it is
concerned it has no vitality, no life, no effect. The judge who
secretly arranges with attorneys on one side of a case to make a
private argument--who not only makes such arrangement, but who
initiates it--is guilty of a misbehavior. Every lawyer knows this;
every Senator will admit it. Are we helpless in the premises simply
because such an act is not indictable under the law? The judge who is
continually asking favors of litigants in his court, if he is careful,
can not be convicted of any crime, but he is guilty of a misbehavior.
No one will dispute it. He is perverting the ends of justice. He is
bringing the judiciary into disgrace and into disrepute. Carried to its
logical conclusion, such conduct would soon mean that our judicial
system would fall. It could not survive. Are we helpless? Must we say
that, although the Constitution says the judge shall only hold his
office during good behavior, the House of Representatives and the
Senate are unable to apply those provisions of the Constitution which
provide for impeachment, trial, and removal? If our forefathers meant
anything when they provided in the Constitution that the judges should
hold their offices during good behavior, they certainly intended that
when the judge misbehaved he should be removed from office. Such a
construction of the Constitution will not violate any principle of law,
but, on the other hand, it will give full effect to a constitutional
provision that would otherwise be meaningless and a dead letter. Our
forefathers wisely, I think, refrained in the Constitution from giving
any definition to ``crimes and misdemeanors,'' and likewise refrained
from defining what would be an abuse or a violation of ``good
behavior.'' Misbehavior, the opposite of good behavior, and I think the
proper appellation of any conduct that is not good behavior, implies
innumerable offenses of greater or less magnitude.
As to what is misbehavior in office must be determined in the first
place by the House of Representatives when they adopt the articles of
impeachment. It must be redetermined by the Senate when, after
listening to the evidence, they pass judgment upon the case. I think
all will agree that any conduct on the part of a judge which brings the
office he holds into disgrace or disrepute, or which results or has a
tendency to result in the denial of absolute justice to all persons
engaged in litigation in his court, is a misbehavior. Certainly such
conduct is not good behavior, and the Constitution provides that he
shall only hold office during good behavior. Therefore it follows that
in the absence of good behavior on the part of the judge he should be
removed from office. It is undoubtedly true that the House of
Representatives, in passing upon articles of impeachment, and the
Senate upon the trial of the offense charged in such articles, where
only misbehaving in office was shown, would take into consideration in
reaching their conclusions not only the magnitude of such misbehaviors
but the frequency of their occurrence. Where the evidence shows that a
judge is continually misbehaving by engaging in conduct and practices
that bring his office into disrespect and disrepute, the House and the
Senate can not avoid their duty or their responsibility by saying that
each distinct offense is in itself of small magnitude and not
indictable.
465. Discussion of the clause ``during good behavior'' in relation to
tenure of judicial offices, and effect by implication of misbehavior
upon such tenure.
On January 8, 1913,\1\ in the Senate, sitting for the impeachment
trial of Judge Robert W. Archbald, Mr. Manager Edwin Yates Webb, of
North Carolina, in final argument said:
If the Constitution, Article III, section 1, means anything, then we
want to bring it before the Senate to-day and ask Senators to say what
it does mean when it provides that judges of the Supreme Court and
inferior courts shall hold their offices ``during good behavior.''
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\1\ Third session Sixty-second Congress, Record, p. 1217.
Sec. 465
The provision in Article II of the Constitution, section 4, Mr.
President, refers to impeachment of the President, Vice President, and
other civil officers for treason, bribery, or other high crimes and
misdemeanors; but later on in that same great instrument, after Article
II had been adopted, the constitutional fathers say the judges of the
United States shall hold their offices ``during good behavior.''
It has been pointed out by many constitutional writers, and you
yourselves see, that the people have no way of getting rid of a judge
who has violated this provision by misbehavior except it is done by
this great body. What does ``during good behavior'' mean?
The Century Dictionary says:
``During good behavior: As long as one remains blameless in the
discharge of one's duties or the conduct of one's life; as, an office
held during good behavior.''
Mr. Foster in his work on the Constitution (p. 586) makes this
statement:
``The Constitution provides that `the judges, both of the Supreme and
inferior courts, shall hold offices during good behavior.' ''
This necessarily implies that they can be removed in case of bad
behavior; but no means except impeachment is provided for their
removal, and judicial misconduct is not indictable by either a statute
of the United States or the common law.
Says Elliott in his Debates on the Constitution:
``Mr. Dickinson moved as an amendment to Article XI, section 2, after
the words `good behavior,' the words: `Provided, That they may be
removed by the Executive on the application of the Senate and the House
of Representatives.' ''
This was in respect of the judges. Mr. Gerry seconded the motion. Mr.
Gouverneur Morris thought it a contradiction in terms to say that the
judges should hold their offices during good behavior and yet be
removable without a trial. Besides, it was fundamentally wrong to
subject judges to so arbitrary an authority.
But, mark you, the object then was to remove for bad behavior, but to
give them a trial, as the Senate is doing in this particular case.
Judge Lawrence, in the Johnson impeachment case (p. 643), says:
``Impeachment was deemed sufficiently comprehensive to cover every
proper case for removal.''
In Watson on the Constitution the proposition is stated as follows
(vol. 2, pp. 1036-1037):
``What will those who advocate the doctrine that impeachment will not
lie except for an offense punishable by statute do with the
constitutional provision relative to judges, which says: `Judges, both
of the Supreme and inferior courts, shall hold their offices during
good behavior'? This means that as long as they behave themselves their
tenure of office is fixed and they can not be disturbed. But suppose
they cease to behave themselves? When the Constitution says `a judge
shall hold his office during good behavior' it means that he shall not
hold it when it ceases to be good.''
I suppose the argument in the Federalist, Mr. President, had as much
to do with the adoption of the Constitution of the United States as any
other authority. I quote:
``The principle of this objection would condemn a practice, which is
to be seen in all the State governments--if not in all the governments
with which we are acquainted--I mean that of rendering those who hold
offices during pleasure dependent on the pleasure of those who appoint
them.'' (Federalist, p. 306.)
And that is yourselves, Senators, for the President nominates judges
and you appoint them.
``According to the plan of the convention, all the judges who may be
appointed by the United States are to hold their offices during good
behavior; which is conformable to the most approved State
constitutions.'' (Federalist, p. 355.)
``Upon the whole, there can be no room to doubt that the convention
acted wisely in copying from the models of those constitutions which
have established good behavior as the tenure of judicial offices in
point of duration, and that so far from being blamable on this account
their plan would have been inexcusably defective if it had wanted this
most important feature of good government,'' (Federalist, p. 361;
Publius.)
Sec. 465
Mr. President, after counsel for the respondent has discussed in 26
pages of his brief the proposition that the respondent is not
impeachable unless he is indictable, he then makes this concession:
That if it is not necessary to prove indictable offenses against the
judge it is necessary, at least, to prove some offense of a criminal
nature.
Mr. President, after all crime is nothing but misconduct. The only
thing that is made criminal in this country is some form of misconduct.
Before proceeding to argue the facts in the case, I maintain that any
judge of a high court who will dicker and traffic with litigants in his
court while their cases are pending ought to be indictable, because
such conduct is criminal in its nature, and the reason it has not been
made indictable long ago is because the people of the United States
have never thought it necessary to surround the judiciary with such a
statute.
In reply to this argument, Mr. Alexander Simpson, counsel for
respondent, said: \1\
Now, I want to know what good behavior means. This is the provision:
``The judges, both of the Supreme and inferior courts, shall hold
their offices during good behavior, and shall, at stated times, receive
for their services a compensation which shall not be diminished during
their continuance in office.''
If you take that whole clause and consider it, either historically or
grammatically, you will find that the words ``good behavior'' relate to
good behavior in office. The compensation which is to be paid is for
service in the office. The good behavior which is the tenure is to be
good behavior in the office. But, say the managers, it is not good
behavior in office which is the test at all, and you may impeach and
remove a man even though he has behaved perfectly well in his office.
Personally I agree with that; I am not challenging that position, but
it answers their proposition now being considered that good behavior in
office is the tenure by which the respondent holds, and for a breach of
that he may be removed from office without considering the impeachment
clause of the Constitution.
I do not think that the good-behavior clause has anything whatever to
do with the impeachment. Everybody knows how the good-behavior clause
came into being. In the ancient days the judges, like all other civil
officers, held their positions at the pleasure of the King. Then the
barons wrested from the King his power of dismissal and required that
there should a good-behavior tenure rather than a tenure at the
pleasure of the King, subject at that time only to the power of
impeachment. And then, a little later--I think it was in 1701, after
the Revolution--there was added the removal power; so that, upon
address, judges might be removed the same as upon impeachment. without
a trial Those are the circumstances under which the good-behavior
tenure came into existence.
But what does ``good behavior'' mean if you are going to take that
alone into consideration? A man ill behaves if he speaks unduly cross
to his wife and children. May he be removed from office because of
that? If he is the happy owner of an automobile he may violate the
speed laws and be hailed before some magistrate and fined. Is he to be
removed from office because of that? No one would answer ``yes'' to
either of those questions, and hence you must get down to something
definite, something upon which you can lay your finger and say, ``There
is the definite thing which this man should have known, and as he
should have known it and has chosen to violate it he must pay the
penalty of his violation.'' That definite thing can be ascertained only
by reference to the clause which says that he may be impeached for
``treason, bribery, or other high crimes and misdemeanors.'' In the
ordinary sense of the term one can understand how a man can be of
perfectly good behavior in everything else and still be guilty of
treason, but does anybody doubt but that he could be removed from
office if he was guilty of treason? In truth, you have to go back from
the good-behavior clause to the impeachment clause to find out what are
the causes for an impeachment. It is the impeachment clause which is
the controlling clause and not the good behavior clause at all.
The argument that grows out of the claim that a, violation of the
good-behavior clause is sufficient justification for an impeachment is
as clearly reasoning in a circle as anybody can well imagine. Concede
that good behavior is the tenure, still you can not remove a man from
office,
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\1\ Record, p. 1270.
Sec. 466
under the Constitution, unless he is guilty of ``treason, bribery, or
other high crimes and misdemeanors,'' and hence the determinative
factor as to whether or not a judge was of good behavior is whether or
not he was guilty of ``treason, bribery, or other high crimes and
misdemeanors.''
On January 3, 1913,\1\ Mr. Manager Henry D. Clayton, of Alabama,
presented a brief on behalf of the House of Representatives, covering
this question, among others, as follows:
the tenure of federal judges limited to ``during good behavior.''
The provision in Article III, section 1, of our Constitution that
``the judges, both of the Supreme and inferior courts, shall hold their
offices during good behavior,'' which was also borrowed from the
English laws, must be considered in pari materia with Article IV,
section 2, providing that all civil officers of the United States shall
be removed from office upon ``impeachment for and conviction of
treason, bribery, or other high crimes and misdemeanors.''
Good behavior is thus made the essential condition on which the
tenure to the judicial office rests, and any act committed or omitted
by the incumbent in violation of this condition necessarily works a
forfeiture of the office. The Constitution provides no method whereby a
civil officer of the United States can be removed from office save by
impeachment. It follows, therefore, that the framers of our
Constitution must have intended that Federal judges, who are civil
officers, should be removable from office by impeachment for
misbehavior, which is the antithesis of good behavior. Otherwise the
constitutional provision limiting the tenure of the judicial office to
``during good behavior'' would be entirely without force and effect.
466. Review of impeachments in Congress showing the nature of charges
upon which impeachments have been brought and judgments of the Senate
thereon.
On January 3, 1913,\2\ in the Senate, sitting for the impeachment
trial of Judge Robert W. Archbald, Mr. Manager Henry D. Clayton, of
Alabama, filed, on behalf of the House of Representatives, a brief, in
which the following appears:
impeachment trials in the united states senate.
A concise statement of the general character of the several
impeachment trials which have been heretofore conducted by the Senate
of the United States:
impeachment of william blount.
William Blount, a Senator from Tennessee, was impeached in 1797, on a
charge of conspiracy to create, promote, and set on foot within the
jurisdiction of the United States, and to conduct and carry on from
thence, a hostile military expedition against the territories and
dominions of Spain in Florida and Louisiana for the purpose of wresting
such territories from Spain and conquering the same for Great Britain,
with which Spain was at war; conspiring to incite the Creek and
Cherokee Nations of Indians to commence hostilities against the
subjects of Spain in violation of the then existing treaty between the
United States and Spain, and conspiring to alienate the confidence of
these Indian tribes from the principal agent of the United States
appointed by the President, in accordance with law, to reside among the
tribes; conspiring to seduce the official interpreter appointed by the
United States to reside among the said Indian tribes from the duty and
trust of his appointment, and conspiring to impair the confidence of
the Cherokee Nation in the United States and create discontent among
the Indians relative to the ascertainment of the boundary line of the
United States and the Cherokee Nation under treaty provisions.
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\1\ Record, of trial, p. 1051.
\2\ Third session Sixty-second Congress, Record of trial, p. 1051.
Sec. 466
Shortly after Blount had been impeached by the House he was expelled
by the Senate, and he was thereafter acquitted of the impeachment on
the ground that he was not a civil officer of the United States.
impeachment of john pickering.
John Pickering, judge of the United States District Court for the
District of New Hampshire, was impeached in 1803, on the ground that he
had disobeyed the law in the course of proceedings brought by the
United States to condemn a ship with its cargo for a violation of the
customs laws, in that the judge delivered the ship to the claimant
after its attachment by the marshall without requiring a bond, in
accordance with the requirements of law; that in such proceedings he
had refused to hear the testimony offered in behalf of the United
States; that he had refused to grant an appeal by the Government from
his arbitrary decree to the circuit court; and that he had attempted to
perform his official functions while in a state of intoxication. The
respondent did not appear to answer the articles exhibited against him,
but his son presented a petition, alleging the insanity of his father
and praying an opportunity to adduce evidence in that behalf. Evidence
was admitted and considered by the Senate in support of this petition.
The facts alleged in the articles of impeachment were proved to the
satisfaction of the Senate, and the respondent was convicted on each of
the articles against him and removed from office.
impeachment of samuel chase.
In 1804 the House impeached Samuel Chase, a justice of the United
States Supreme Court, on the ground that he had been guilty of certain
misconduct to the prejudice of the defendants in the trials of John
Fries for treason and James Thompson Callender for breach of the
sedition laws; that he had improperly attempted to induce a grand jury
in Delaware to find an indictment against the editor of a newspaper for
breach of the sedition laws; and for addressing an intemperate and
inflammatory harangue to a jury in the State of Maryland.
On a party vote, the respondent was acquitted as to all of the
articles exhibited against him.
impeachment of james h. peck.
In 1830 James H. Peck, judge of the United States District Court for
the District of Missouri, was impeached on the ground that he had
grossly abused his power as a judge in sentencing an attorney to 24
hours imprisonment and suspension from the bar of his court for 18
calendar months for writing and publishing a moderate criticism of one
of Judge Peck's decisions in a case in which this attorney had appeared
in behalf of the plaintiff, with the result that the attorney was
practically prevented from further participation in the case. The
respondent was acquitted by the Senate on all of the articles presented
against him on the ground that he was justified in assuming that he was
legally clothed with the power that he had exercised, and that the
element of malice had not been established.
impeachment of west h. humphreys.
In 1862 West H. Humphreys, judge of the United States District Court
for the District of Tennessee, was impeached for making a public speech
declaring the right of secession and inciting revolt and rebellion
against the Government of the United States; with the support and
advocacy of the ordinance of secession; with aiding in the organization
of an armed rebellion against the United States; with conspiring to
oppose the authority of the Government of the United States by force;
with refusing to hold his court or perform its functions; and with
unlawfully acting as judge of the Confederate district court in causing
arrests, imprisonments, and confiscations. The respondent made no
appearance, and the trial proceeded in his absence. The respondent was
convicted on all the charges, with the exception of the unlawful
arrests and confiscations, and was removed and disqualified from
holding office.
impeachment of andrew johnson.
Andrew Johnson, President of the United States. was impeached in 1868
on 11 articles charging the attempted removal of E. M. Stanton, the
Secretary of War, in violation of the so-called
Sec. 466
tenure-of-office act; in attempting to induce a general of the Army to
violate the provisions of an act of Congress; and of attempting to
bring into contempt and reproach the Congress of the United States by
intemperate and inflammatory speeches. The respondent was acquitted on
each of the charges by a margin of one vote.
impeachment of william w. belknap.
In 1876 William W. Belknap, Secretary of War, was impeached on five
articles, charging that he had accepted a portion of the profits of an
Army post tradership from a post trader whom he had appointed while he
held the War portfolio. A few hours before the House formally adopted
the articles of impeachment against him, Belknap resigned as Secretary
of War and the President accepted his resignation. His counsel
interposed a plea to the jurisdiction in the Senate on the ground that
the respondent was not a civil officer of the United States at the time
of his impeachment. This plea was overruled by a majority of less than
two-thirds and the trial proceeded. The respondent was ultimately
acquitted by the votes of the Senators who had originally voted in
favor of the plea to the jurisdiction.
impeachment of charles swayne.
In 1904 Charles Swayne, judge of the United States District Court for
the Northern District of Florida, was impeached on 12 articles,
charging that he had rendered false claims against the Government in
his expense accounts; that he had appropriated to his own use, without
making compensation to the owner, a certain railroad car belonging to a
railroad company then in the possession of a receiver appointed by the
respondent, and that he had allowed the credit claimed by the receiver
for and on account of the expenditure incident to the improper use of
this car as a part of the necessary expenses of operating the road;
that he had resided outside of his district in violation of a statute
of the United States; and that he had maliciously adjudged certain
parties to be in contempt of court and imposed excessive fines and
prison sentences therefor without just cause or warrant of law.
A trial was had and the respondent was ultimately acquitted.