managers for the house, ably maintained that impeachment was not limited to official acts.10 The senate cannot be said to have decided one way or the other on this point. Two of our ablest commentators have sided with Bayard and Harper."

The next three impeachments, those of Pickering, Chase, and Peck, were judicial, and in each case the accused was charged only with official crimes. In 1862 seven articles of impeachment were presented against Judge West H. Humphreys, of Tennessee, not one of which charged him with misconduct on the bench, though one, and only one, did charge him with official misconduct in refusing to hold court. Several of the articles charged him with advocating secession in a public speech, levying war against the United States and with certain things done while sitting in an illegal tribunal "called the district court of the Confederate States," but it would be absurd to say that such acts were official crimes. They fall either under the head of treason or of high crimes and misdemeanors," not one of which, except treason, was indictable. One of the articles against Andrew Johnson, the tenth, which charged him with a high crime and misdemeanor because of speeches denouncing the Republican majority in congress, had nothing whatever to do with his official conduct, except in so far as he was "unmindful of the high duties of his office and of the dignity and proprieties thereof." In 1873 the house of representatives began proceedings against Judge Busteed, of Alabama, with a view to impeachment for not residing within his district. When the committee of investigation reported that the only evidence he had of residence in the State consisted in "a carpet, a music box, and a double-barreled gun," the judge resigned and the proceedings were dropped.13 Wm. W. Belknap, secretary of war in 1876, was impeached for corruption in office. The next case was that of Judge Swayne, 1904-05. In this the managers, following the English and American precedents, did not confine themselves to official misconduct, but charged him with certain high crimes and misdemeanors which had no connection with the administration of justice.

10 Ibid., 2261, 2300.

11 Curtis, History Constitution, ii, 260f.; Story, Commentaries, sec. 804.

12 Extracts from the Journal of the Senate in Cases of Impeachments (Washington, 1904), 183ff.

13 Swayne Trial, 605f.

Nothing is to be gained by an examination of impeachments that have occurred in the commonwealths and showing that they were for mal-administration. Several such trials have occurred in Massachuetts, New York, Pennsylvania, North Carolina, and Mississippi, but in each of these States impeachment was expressly limited to official misconduct.14

Nor can anything be gained by resorting to the antiquated doctrine of strict construction and holding that, since the power to impeach for crimes committed out of an official capacity has not been expressly conferred, it must be denied. It is only necessary to point out once more that the whole English law of impeachment was adopted except in so far as it was modified in the Constitution. The fact that removal on address was rejected in the convention, as also the express provision limiting impeachments to crimes committed in an official character, is only added proof that there was no intention to make such a limitation in the Constitution. Something more than negative proof on the English law is needed to convince that judges are not impeachable except for official high crimes and misdemeanors. No distinction is really made in the act of settlement between political and judicial offenders. To establish a difference in custom it is not sufficient to show that judges never have been impeached except for official miconduct; it must be shown that some cases occurred in which they were charged with high crimes and misdemeanors not committed in connection with their offices and that parliament expressly refused to impeach them. Until this is done the contention that American judges are not impeachable except for official misconduct cannot be regarded as established. It seems hardly so much as doubtful that English judges were impeachable for other than official crimes. In 1667, the commons authorized their committee to "receive information against the Lord Chief Justice Keelying for any other misdemeanors besides those concerning juries."15 It may be that they had in mind only judicial misconduct, but the language is general. As already pointed out in the brief history of American impeachments, the power to try for other than official crimes has not been regarded as doubtful;

14 Johnson Trial, 49f.; Ann. 8 Cong. 1 Sess., 848; Garner, Reconstruction in Mississippi, 401ff.

15 Ann. 8 Cong., 2 Sess., 648.

E

Without

or if doubtful, we have established a custom of our own. drawing any distinction between political and judicial impeachments, since there is none, out of eight trials, four were based upon charges of unofficial crimes. Out of five judicial trials, including that of Judge Swayne, two brought up unofficial crimes. Only two convictions have ever resulted, and in one of these Judge Humphreys was convicted on charges which had nothing to do with his official conduct.

An important question is, who may be impeached. The State constitutions adopted before the meeting of the federal convention show no uniformity on this point, but the most of them reveal an intention to limit the English law, according to which all the king's subjects were impeachable, whether in office or not, even if they had never held office. Pennsylvania provided that an officer might be impeached "either when in office or after his resignation." Delaware and Virginia would not allow the impeachment of the chief executive while in office and in the former all impeachments must be begun within eighteen months after the offense was committed, or in the case of the chief executive, within eighteen months after he left office. It is not expressly so stated, but the inference is that all officials of these two States were impeachable when out of office. Massachusetts, New Hampshire, and New York simply provided for the impeachment of officials with no hint as to whether they were subject to trial after resignation or the expiration of their terms. Nothing is said about private citizens, but as the constitutions made the State officials liable to impeachment and provided the means for their trial, saying nothing about private citizens who had never held office, the presumption is that they were not impeachable. But the constitution of Virginia was less specific. It said: "The governor, when he is out of office, and others offending against the State, either by maladministration, corruption, or other means, by which the safety of the State is endangered, shall be impeachable by the house of delegates." Certainly there is nothing here which changed the English law making private citizens impeachable. However, the penalties allowed imply that the impeached was an official.10

The Constitution of the United States provides for impeachments,

16 These provisions may be found in Poore's Charters and Constitutions.

but nowhere specifically names any class as liable to such trials. In the Blount trial Mr. Bayard, one of the managers, boldly maintained that even private citizens were impeachable and that they might be deprived of their political rights in this way before they ever held office." The contention seems to have made a deep impression at the time. The next day after Mr. Bayard's speech, Mr. Jefferson, the vicepresident, wrote to Mr. Madison: "I think that there will not be more than two votes north of the Potomac against the universality of the impeaching power."'18 As Madison was so prominent in the formation of the Constitution his opinion is worthy of respect. In reply he said: "The universality of this power is the most extravagant novelty that has been broached."19 The only clause which seems to limit this universality is that which says that "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, and other high crimes and misdemeanors." Another clause forbids judgment extending beyond removal from office and disqualification to hold office in the future. One disposed to a liberal interpretation might hold that private citizens were liable to impeachment and disqualification, but no one seems to have maintained this view since Bayard. It is now generally conceded that only officials are subject to impeachment. A more important question is, when may the official be impeached. Since removal from office is made obligatory by the Constitution in case of conviction, some hold that, to be impeachable, the accused must be still in office. Such is the view of Story: "If, then, there must be a judgment of removal from office, it would seem to follow that the Constitution contemplated that the party was still in office at the time of impeachment. If he was not his offense was still liable to be tried and punished in the ordinary tribunals of justice. And it might be argued, with some force, that it would be a vain exercise of authority to try a delinquent for an impeachable offense, when the most important object for which the remedy was given was no longer necessary or attainable."20

17 Ann. 5 Cong., 2251, 2254.

18 Quoted in the Belknap Trial (Cong., Rec., 44 Cong. 1 Sess., vol. 4, pt. 7), 157. 19 Ibid.

20 Commentaries, sec. 804.

It is true that the most important object of impeachment is to remove the offender from office, but it may be very necessary to deprive him permanently of his political rights, which can be done only by impeachment. It is indeed "not so much designed to punish an offender as to secure the State," nevertheless it is a punishment. The disgrace attending such a condemnation certainly would weigh heavily upon any man. The offender may not have committed an indictable offense; shall he then be allowed to go scott free, if he vacates his office? It is also true that impeachment "touches neither his person nor his property," yet it is a proceeding directed against a person, not an officer as such. If a suit is brought against an officer to recover money illegally collected, it lies against him as a person when out of office as well as when in. His successor could not be touched for it. There certainly is some analogy between this and impeachments. Again, a man may have committed an indictable offense. Feeling that condemnation followed by the full penalty would be the result of impeachment, he might prefer to resign and suffer the penalties imposed in a court of law, trusting to the president or a State executive to remove his disabilities by pardon, a thing which cannot be done in cases of impeachment. In this way the whole object of impeachment could be defeated. A case in point is that of Belknap, where an upright president assisted in the defeat of an impeachment by accepting the resignation of the accused.

The history of the views on this question will be of interest. The question first arose in the Blount trial. In this case the house followed the strange course of accusing the senator of certain high crimes and misdemeanors and demanding at once that he be "sequestered from his seat," promising at the same time to present articles of impeachment at a later day. In response to this demand the senate expelled Blount with only one dissenting vote." When the articles were drawn up and Blount was ordered to appear, his counsel made answer by pleading to the jurisdiction of the senate on the ground that senators were not officers within the meaning of that term as used in the Constitution and that if they were, Blount was no longer subject to impeachment because no longer a senator. However, the defense expressly

21 Ann. 5 Cong., 1 Sess., 39, 44.