THE LAW OF IMPEACHMENT IN THE UNITED STATES

DAVID Y. THOMAS

University of Arkansas

When the Fathers were framing the Constitution of the United States they sought at every turn to safeguard the interests of the people and at the same time secure to officials a reasonable degree of independence. This solicitude was especially manifest in the case of judicial officers, whose terms were made to run during good behavior. Impeachment was the method adopted to determine what constituted misbehavior. Chief Justice Marshall early laid down the principle that terms otherwise undefined in the Constitution were used in the sense which was well known and accepted at the time the Constitution was written.1 Impeachment was adopted and adapted from the English practice. To understand our own law, then, it is necessary to know what the English law of impeachment, the lex et consuetudo parliamenti, was at the time of its adoption and in what way it was modified or changed in being adopted.

"Impeachment" was a term as well known as "felony" or "levying war." It was a sort of political trial, generally used to reach offenders who might have escaped indictment at the common law. It was designed both to protect the state and to punish the offender. The custom was for the commons to make accusation at the bar of the lords, who were judges of the law and facts and fixed the penalty. All the king's subjects were liable to impeachment, whether officials or not, and for any offense. Another method of punishment closely allied to that of impeachment was that of attainder, wherein the parliament made the law and fixed the penalty to suit the case before them.

In adopting impeachment the Americans did so with certain modifications. In the first place it is to be noted that they rejected attainders outright. They also limited the offenses for which one could be im

'Burr Trial, quoted in Swayne Trial, 376.

peached to treason, bribery, or other high crimes and misdemeanors. This was felt to be necessary because the commons had sometimes impeached for trivial offenses. Treason is defined in the Constitution. The other impeachable crimes and offenses are not and for their definition recourse must be had to the common law. This seems to be universally admitted, though, to be consistent, it would seem that those who deny a common law jurisdiction to the United States would also have to deny the use of the common law for purposes of definition. Bribery is a term so well known that it needs no discussion. High crimes and misdemeanors is a term less definite, but it is generally used to cover offenses not given a particular name by law. Such offenses may arise from a violation of either common or statute law. Our supreme court early held that the United States courts have no common law jurisdiction (a decision which has not been rigidly followed), but at the time of writing his Commentaries Mr. Justice Story said: "However much it may fall in with the political theories of certain statesmen and jurists to deny the existence of a common law belonging to and applicable to the nation in ordinary cases, no one has yet been bold enough to assert that the power of impeachment is limited to offenses defined in the statute book of the Union as impeachable high. crimes and misdemeanors." Mr. G. T. Curtis even went so far as to say that officials were impeachable "where no offense against positive law has been committed." In the Johnson trial, however, Mr. B. R. Curtis, one of the counsel for the defendant, seems to have been of opinion that, to be impeachable, a high crime or misdemeanor must arise from a violation of a statute of the United States. A sufficient answer to this may be found in the statement that such was not the law in England, that the English law of impeachment was adopted entire, except wherein it was changed by our Constitution, and that there is nothing in the Constitution which changes the law in this respect. It is not held that the common law may be resorted to for a jurisdiction not given by the Constitution or laws; but, when a jurisdiction is given, as it is in impeachments, it is to be exercised according to the principles of the common law. In our first four

2 Commentaries on the Constitution of the United States, sec. 797.

3 History of the Constitution of the United States, ii, 260f.

4 Johnson Trial (Supp. to Globe, 40 Cong., 2 Sess.), 134.

trials not a single charge rested upon a statutable offense and the same was true of some of the articles in most of the other trials.

A question closely related to this is whether the crime must be committed in the discharge of official duties. Messrs. Higgins and Thurston, counsel for the respondent in the Swayne trial, endeavored to draw a distinction between judicial and political offenders, holding that the former were impeachable only for crimes committed in the performance of official duties, but, by implication at least, that this was not true of the latter. This novel conclusion was reached by an examination of English and American precedents, which, according to the defense, show that impeachment accusations against judges have been limited, "with the greatest strictness, to the acts of judgment performed by the judge on the bench." The defense admit that bribery is an exception. Dr. Hannis Taylor, evidently the author of the argument for the defendant in the Swayne trial, the authorship of which was disavowed by Higgins and Thurston, also excepts treason. In a sentence which begs the whole question, he says that, previous to the Swayne trial, the "house of representatives, in drafting its articles, adhered with the greatest strictness to the English rule, which provides that the judicial acts [italics ours] constituting high crimes and misdemeanors must be committed by the judge, on the bench, while in the actual administration of justice." In support of this statement he says that, previous to the Swayne trial, all charges against American judges were for judicial misconduct, except in the case of Humphreys, who was charged with treason, and "then, strangely enough, he was charged with judicial misconduct while sitting on the bench of a court of the Confederate States." A fact which the distinguished publicist thinks adds peculiar force to his contention."

The writer would like to know how "judicial acts constituting high crimes and misdemeanors" or any other kind of judicial acts can be committed anywhere except on the bench, unless an attempt to administer justice "in vacation" be considered an attempt to do so off the bench. Nor is it clear that such an English rule as that quoted above has ever been established. If so, and judges are impeachable only under that rule, the whole question is settled. The rule is deduced by

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Swayne Trial (S. Doc. 194, 58 Cong., 2 Sess.), 385, 389.

The American Law of Impeachment, North American Review, vol. 180, p. 510f.

the writers referred to from the history of judicial impeachments in England, which, it seems, does not show that any judge was ever actually impeached except for judicial misconduct.

But the whole case is given away by the defense in the Swayne trial. "Excepting bribery," they say, "there is no case in the parliamentary law of England which gives color to the idea that the personal misconduct of a judge, in matters ouside of his administration of the law in a court of justice, was ever considered or charged to constitute a high crime and misdemeanor. When the question is asked by what means is the personal misconduct of an English judge, not amounting to a high crime and misdemeanor, punished, the answer is easy." And the answer is by address of both houses of parliament since the passage of the act of settlement in 1701.7 But it is not shown that this act forbids impeachment of judges for other than official conduct. The truth seems to be that it simply provides a more summary way of removal than that of impeachment since their commissions run during good behavior. Six State constitutions, five of which were adopted before the Federal Constitution, are then quoted to show that these States adopted this view, since they provided for removal both by impeachment, and by address "for any reasonable cause which shall not be a sufficient ground for impeachment." Now if this means anything, it simply means that these States adopted the two English methods of determining "good behavior," which was the tenure adopted for the judges. Then, as if utterly to destroy their case, Messrs. Higgins and Thurston quoted the debates in the convention of 1787 to show that that body expressly and purposely adopted one method, that of impeachment, and rejected the other, that of address. Since they at the same time adopted the tenure of good behavior, it would be strange indeed if they purposely crippled themselves in determining what was not good behavior. The constitution of New York, said to have been the model on this subject in the convention of 1787, omits removal on address. All of which goes to show that impeachment was considered a sufficient means for determining good behavior and that

7 Swayne Trial, 385. The evidence that Dr. Hannis Taylor is responsible for all of these ideas consists in the fact that, in his North American Review article, he uses several excerpts from the argument of the defense in the Swayne trial without using quotation marks or giving anybody credit for them.

removal on address was believed to be too summary and likely to become an instrument of party vengeance. Surely no one will assert that the members of the convention of 1787 would have maintained that any man who was guilty of high crimes and misdemeanors not connected with the discharge of his official duties was fit to administer the affairs of state.

It has been urged that the ordinary courts can deal with such offenders. So can they deal with treason and bribery, both of which are admitted to be impeachable offenses when not committed in the discharge of official duties. Why this difference? Besides, there is a highly practical side to the question. Suppose that a federal judge has been convicted in a State court and confined to the penitentiary: his office is not thereby vacated, a fact to which Mr. Dallas called attention in the Blount trial. We are then reduced to the absurdity, reductio ad horribile as Dr. Taylor would call it, of supposing that he must be allowed to continue in office, though it is impossible for him to perform the duties thereof. Instead, however, of revealing an omission in our Constitution, as Dr. Taylor holds, this only shows that the convention considered impeachment a sufficient means of reaching treason, bribery, or other high crimes and misdemeanors, whether committed in the discharge of official duties or not.

Such seems to have been the interpretation put upon the power of impeachment since the adoption of the Constitution, without distinction between political and judicial officers, though at times certain persons in whose interest it was to do so have denied it. In the Blount trial Messrs. Dallas and Ingersoll, counsel for the defendant, entered the plea that their client had not committed the offenses charged in connection with his duties as a senator and that crimes not committed in an official capacity were not impeachable. In support of this they quoted several State constitutions, among them those of New York and Massachusetts, which expressly limited impeachable crimes to those committed in the performance of official duties. Again it may be observed that this is negative proof of the impeachability of other than official crimes, since the convention, in following the constitution of New York, omitted this feature of it. Messrs. Bayard and Harper,

Ann. 5 Cong., 2267.

9 Ibid., 2247, 2282, 2287f.

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