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lature, 139 and could be counted on to weigh the misconduct of a judge as dispassionately as that of an ordinary citizen. D. The Argument for Absolute Independence

To buttress their view that impeachment is the sole avenue for removal of judges, Justices Black and Douglas assert that the solicitude of the Founders for judicial independence was all-encompassing, that it included independence even from judicial control and demanded nothing other than “the admittedly difficult method of impeachment.” 140 All the remarks in the several Conventions that bear on judicial independence, so far as I could find, referred to freedom from legislative and executive encroachments.141 No one suggested that judges must be immune from traditional judicial control which, minimally, included Attachments that King's Bench had long issued against lesser judges for misconduct and oppression.142 To the contrary, Justice Wilson, a leading Framer, stated in his 1791 Lectures,

The independency of each power consists in this, that is proceedings should be free from the remotest influence, direct or indirect, of either of the other two powers. But further than this, the independency of each

power ought not to extend. 143 This was the view of judicial independence taken by Judge St. George Tucker in 1803,144 and it may be discerned in Jefferson's recognition that judges can remove judges. 145

The emphasis of Justices Black and Douglas upon the exclusivity of impeachment suggests a preference for Congressional over judicial trial, surely a strange preference in a Justice. Congressional trial suffers from serious defects. Fresh illustration of the political partisanship that has characterized impeachment has just been furnished by Congressman Gerald Ford's proposal to impeach Justice Douglas.146 As Macaulay said of the Hastings impeachment:

Whatever confidence may be placed in the decision of the Peers on an appeal arising out of ordinary litigation, it is certain that no man has the least confidence in their impartiality, when a great public functionary, charged with a great state crime, is brought to their bar. They are all politicians. There is hardly one among them whose vote on an

139 See note 155 infra 140 Chandler II, 398 U.S. at 136-41 (1970) Douglas, J., dissenting; Black, J., dissenting, id. at 142. This is also the view of Professor Kurland: "certainly there is no point in tinkering with the independence of federal judges by subjecting their tenure to control of other federal judges appointed by the same defective process. Without their independence, the federal judges will have lost all that separates them from total subordination to the political processes from which they ought to be aloof.” Kurland, supra note 8, at 667. As if impeachment has not been shot through with political partisanship! See note 148, and pp. 1504-05 infra. I have treated the matter more extensively in Berger, Festschrift, supra note 9. 141 The materials are collected in R. BERGER, CONGRESS V. THE SUPREME COURT 117–19 (1969). In The FEDERALIST No. 78, supra note 16, at 503, Hamilton stated, “The standard of good behaviour" is an “excellent barrier to the encroachments and oppressions of the representative body." See also note 123 supra, and note 144 infra. It was from the State legislatures that threats to the judiciary had come. R. BERGER, supra at 38, 42-43, 117.

142 By virtue of its “general Superintendency over all inferior Courts,” King's Bench could punish judges of lesser courts by Attachment for Contempt "for acting unjustly, oppressively, or irregularly," "for any practice contrary to the plain rules of natural Justice as for denying a Defendant a Copy of the Declaration against him : .. or for compelling a Defendant to give exorbitant bail." 2 W. HAWKINS, PLEAS OF THE CROWN Ch. 22, $$ 25-26 at 149–50 (1716); and “putting the Subject to unnecessary Vexation by colour of a judicial Proceeding wholly unwarranted by Law.” Id. at $ 25. So too, 3 M. BACON, supra note 20, at (N) 744, states, “the Court of Kings Bench, by the Plenitude of its Power, exercises a Superintendency over all inferior Courts, and may grant an Attachment against the Judges of such Courts for oppressive, unjust or irregular Practice, contrary to the obvious Rules of Natural Justice.” 1:43 1 J. WILSON, THE WORKS OF JAMES WILSON (R. McCloskey ed. 1967) 299. 14. That absolute independence of the judiciary, for which we contend is not, then, incompatible with the strictest responsibility . . . but such an independence of the other coordinate branches of the government as seems absolutely necessary to secure them the free exercise of their constitutional functions, without the hope of pleasing or the fear of offending. And as from the natural feebleness of the judiciary it is in continual jeopardy of being overpowered, awed or influenced by its coordinate branches who have the custody of the purse and sword.” St. G. TUCKER, su pra note 12, at App. 359. 148 Writing in 1816, Jefferson lamented that judges had been made "independent of the nation itself. They are irremovable, but by their own body, for any depravities of conduct " Quoted in Ross, supra note 10, at 123–24 (emphasis added). In 1825, Rawle wrote that in England "Judges are liable to trial for every offense before their brethren

." W. RAWLE, A VIEW OF THE CONSTITUTION 214 (2d ed. 1829). 146 In a comment on this proposal, Milton Viorst states, “the 110 sponsors of the anti-Douglas resolution are all conservative Republicans and Dixicrats. This seems persuasive evidence in support of the hypothesis which virtually everyone in Washington accepts; that the undertaking seeks not simply to impeach William Orville Douglas but to discredit the liberalism ... inherent in the domestic programs of Democratic Administrations since the New Deal.” Viorst, supra note 6, at 32. Representative Ford all but conceded that Resolution was in retaliation for the Senate's rejection of two of President Nixon's nominees to the Supreme Court. 116 CONG. Rec. H3118-19 (daily ed. April 15, 1970).

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impeachment may not confidently be predicted before a witness has

been examined. 147 That statement was amply verified in the impeachments of Justice Samuel Chase and President Andrew Johnson; and impeachment has continued to be colored by political partisanship.148

Justice Douglas states, however, that “Our tradition even bars political impeachments as evidenced by the highly partisan, but unsuccessful, effort to oust Justice Samuel Chase of this Court in 1805.” 149 Chaze's acquittal was no less partisan than his impeachment. At that time the “national judiciary, one hundred percent Federalist, amounted to an arm of that party. ” 150 Chase, after the fashion of his Federalist brethren, made intemperate attacks on the Jeffersonian administration in harangues to a Grand Jury.151 Not unnaturally the incensed Jeffersonians took out after Chase. The Federalists “supported Chase completely in every test," and with the aid of a group of Jeffersonians whom John Randolph' leader of the impeachment, had alienated, saved Chase from retribution he richly deserved. 152 So too, the bitterly partisan impeachment of Johnson narrowly failed, and partisanship has continued to dominate impeachments.153

Apart from partisanship there is the glaring inadequacy of a tribunal at which attendance is so sporadic that never more than a handful of Senators are present at any given time; and they simply cannot find time to study and digest the bulky record. 154 Contrast with this the constant attendance of judges schooled to listen to evidence and to grasp complex issues, trained (one hopes) in more dispassionate judgment than a politician. In comparing legislative with judicial trial, it may be noted that the Founders had more confidence in the judiciary than in the legislature.155 Then too, a number of the prior State constitutions contained provisions for removal of judges by judges, including the Virginia provision for the trial of judges on impeachment by the Court of Appeals. 156

147 Quoted in Dougherty, Inherent Limitations Upon Impeachment, 23 YALE L.J. 60, 69 (1913).

148 I have shown this in some detail in Berger, Festschrift, supra note 9. See Ten Brock. Partisan Politics and Federal Judgship Impeachments Since 1903, 23 MINN. L. Rev. 185 (1939): Potts, Impeachment as a Remedy, 12 St. Louis L. Rev. 15, 35-36 (1927).

149 9 Chandler II, 398 U.S. at 136 (1970) (Douglas, J., dissenting). 150 4 D. MALONE, JEFFERSON AND HIS TIME 458 (1970). 151 1 C. WARREN, supra note 5, at 274–76. For example, Chief Justice Dana of Massachusetts, “in a charge to the Grand Jury denounced the Vice President (Jefferson) and the minority in Congress as 'apostles of atheism and anarchy, bloodshed and plunder.'Id. at 275.

152 4 D. MALONE, supra note 150, at 479–80. There was at least one solid ground for conviction of Chase, as I proposed to show in my forthcoming book.

153 See note 148 supra.

154 After the 1936 impeachment of Judge Halsted Ritter, Congressman Robison said, “Any one who has been a Member of that body knows it is humanly impossible to have all of the Senators present all the time for a period of 10 days, 2 weeks or more, sitting as a jury. If they did, momentous and pressing interests of the Nation ... would suffer." 81 CONG. REC. 6183 (1937). See also Hatton Sumners, id. at 6165. “It is absurd," wrote Professor Moore in the midst of World War II, “to think that large interests during the war, for example, must wait upon the trial of Judge X. . . . As a matter of fact, the Senate continues with the nation's business at the expense of Judge X. Senators troop in to answer the roll call when lack of a quorum is suggested and then troop out to the attendance of larger affairs.” Moore, supra note 2, at 356–57. For other examples of sparse Senatorial attendance see Potts, su pra note 148, at 34-35; see note 194 infra.

After the Ritter impeachment, Congressman Reed stated, “The Senate is composed of busy men, who cannot and will not divest themselves of the time they must necessarily devote to their lawmaking activities and concentrate, analyze and digest the intricate testimony 81 CONG. Rec. 6175 (1937).

155 Said Madison in the Virginia Ratification Convention, "Were I to select a power which might be given with confidence, it would be the judicial power.” 3 J. ELLIOT, supra note 15, at 535. When Jefferson welcomed the "check” which a Bill of Rights “puts into the hands of the judiciary,” he added, “This is a body, which if rendered independent & kept strictly to their own department merits great confidence for their learning & integrity.” 5 T.JEFFERSON, THE WRITINGS OF THOMAS JEFFERSON 81 (P. Ford ed. 1895). Contrast Madison's remarks in the First Congress that the legislative power is the “most likely to be abused," 1 ANNALS OF CONG. 454 (1789) (Gales & Seaton ed. 1834; print bearing running-page title “Gales & Seaton's History of Debates in Congress”). Smith said that legislative power is perhaps more liable to abuse than the Judicial. id. at 848. See also Madison, 2 M. FARRAND, su pra note 97, at 74: the legislature "was the real source of dan. ger''; and see R. BERGER, CONGRESS V. THE SUPREME COURT 8-13, 132–37. In the Federal Convention Wilson said, “The English courts are hitherto pure, just and incorrupt, while their legislature are base and venal.” 1 M. FARRAND, su pra note 97, at 261. In 1803 St. George Tucker praised “that preeminent integrity, which amidst surrounding corruption, beams with genuine luster from the English courts of judica. ture. : .." St. G. TUCKER, supra note 12, at App. 356. At another point, Tucker said, “in a republic . the violence and malignity of party spirit, as well in the legislature, as in the executive, requires not less the intervention of a calm, temperate, upright and independent judiciary, to prevent that violence and malignity from exerting itself . id. at 355. Again, he said, “The judiciary, therefore, is that department of the government to whom the protection of the rights of the individual is by the constitution especially confided, interposing its shield between him and the sword of usurped authority ... and the shafts of faction and violence." id. at 357.

Finally, when Chief Baron Walter and Justice Archer were threatened by the King's arbitrary conduct, they did not invoke the protection of impeachment but of scire facias. Pp. 1480-81 supra. And in commending to Parliament remission of a judge's trial to the courts. Lord Chancellor Erskine hardly considered that he would be less fairly tried. P. 1482 supra.

156 P. 1495 supra.

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What Justice Black mildly refers to as the “admittedly difficult method of impeachment,” amounts in the words of Senator McAdoo, spoken after participating in the trial of Judge Ritter, to a “practical certainty that in a large majority of cases misconduct will never be visited with impeachment," "a standing invitation for judges to abuse their authority ...."?157 No student who takes the time to study the path of impeachment will quarrel with McAdoo's assessment.158 Against generally acknowledged present deficiencies of the impeachment process, 159 Justice Douglas would pit fears of judicial visitorial powers over judges: “The power (of other judges) to keep a particular judge from sitting on a racial case, a church-and-state case : : . a union case may have profound consequences.' Negro seeking civil rights, the possibility (to follow in the path of hypothesis) that a fair-minded Southern district judge may repeatedly be reversed by a racist Court of Appeals is no less serious. I would hazard that judges would find reviewing judges no less fair in judicial removal cases than they have proved in racial

Perhaps we have come to rely unduly on the professionalism which tends to school and temper judgment and to teach judges to discount personal biases. But if we can safely trust the life and property of a citizen to judicial determination, if we rely on the courts to rise above personal bias on racial issues that wrack the nation, 161 we should trust them no less when they come to determine the far less momentous issue whether a judge is unfit for office. Our trust should extend to confidence that courts will not suddenly yield to personal bias when they are called upon to decide whether a judge has been guilty of misbehavior, or whether by reason of insanity, senility, or other disability, he has become incapable of performing his functions adequately. Courts no less than politicians can perceive that the integrity of the judicial process is best preserved by judges who can and will adequately serve the public interest. Should a convincing showing be made that in removing a judge the visitorial court was motivated by racial-religiouseconomic biases rather than a genuine need to cleanse the bench of a senile, corrupt or negligent placeman, that court may be reversed on appeal by the Supreme Court.162 And there remains impeachment, for oppression or abuse of power is a recognized impeachable offense, as Madison's statement in this very context further attests: “the wanton removal of meritorious officers would subject (the President] to impeachment and removal ..

III. IMPEACHMENT FOR “MISBEHAVIOR" By a seemingly logical progression Congressman Ford has concluded that impeachment was designed to enforce "good behavior." Starting with “during good behaviour,” he said, “it is implicit in this that when behaviour ceases to be good, the right to hold judicial office ceases also.”. So much is unexceptionable, as is his second step. “Naturally, there must be orderly procedure for determining whether or not a Federal judge's behaviour is good.” Consequently, he concludes, the Founding Fathers “vested this ultimate power in the Congress” in the “seldom-used procedure, called impeachment.”'164 Thereby he assumed the answer, an answer contradicted by history. But in justice to Congressman Ford, he was nó breaking virgin soil; his view lurks in Rufus King's remark that impeachment wat the "forum. established for trying misbehavior."'165 The Framers, howevers went on to limit impeachment to the commission of “high crimes and misdemeanors,” a standard of quite different origin and dimensions. The Ford-King view was given its most ringing affirmation by Judge Merrill Otis, in his heated defense of the "exclusivity” of impeachment. Confronted with the fact that “good behavior” might be an impotent provision if unenforceable, with the "hiatus” between "good behavior” and “high crimes and misdemeanors,” Judge Otis. 187 80 CONG. REC. 5934 (1936). See also note 195 infra. 18 See pp. 1514-17 infra. 158 Potts, supra note 148, at 31-36; Shartel, supra note 22,

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at 870-73. Impeachment, Professor Stolz concedes, "has a deservedly bad reputation." Stolz, supra note 8, at 660.

180 Chandler II, 398 U.S. at 155 (Douglas, J., dissenting). In 1937, Hatton Sumners stated, “I never heard it said until today ... that three judges of the circuit court of appeals trying a district judge might stultify themselves in order to convict an honest man and remove him from office.” 81 CONG. REC. 6'84 (1937). 161 It has been stated by President Kingman Brewster of Yale University that he was "skeptical of the ability of black revolutionaries to achieve fair trial anywhere in the United States." N.Y. Times, April 25, 1970, at col. 1.

162 It is open to Congress to provide for an appeal to the Supreme Court from a judgment by a special court for removal of judges. See generally pp. 1526-28 infra. 163 1 ANNALS OF CONG., supra note 2, at 498; Berger, Festschrift, supra note 9. 164 116 CONG. Rec. H3113 (daily ed. April 15, 1970). 165 P. 1498 supra.




boldly asserted that “a judge may be impeached for any misbehavior or misconduct which terminates his right to continue in office.”166

At common law, tenure “during good behavior," as we have seen, was terminated by "misbehavior." The early law does not define “misbehavior” in so many words; rather it lays down the several grounds for forfeiture of an office; but these, a study of Bacon's Abridgment discloses, are interrelated if not equivalent and we are justified in concluding that the several grounds of forefeiture serve to identify the various forms of "misbehavior."'167 For example it was held in the Earl of Pembroke's Case (1597) that “every voluntary act done by an officer contrary to that which belongs to his office is a forefeiture of his office ...i' Coke specified three causes for “forfeiture or seizure of offices, as for abusing, not using or refusing.” As abuse of office, he instanced an escape voluntarily suffered by a gaolor; non-use was exemplified by non-attendance when the office concerned the administration of justice.168 By 1716, Hawkins could state that

in the grant of every Office whatsoever, there is this Condition implied by Common Reason, that the Grantee ought to execute it diligently and

faithfully.1 His view of the scope of forfeiture was broad indeed:

it would be endless to enumerate all the particular instances, wherein an officer may be discharged or fined; and it also seems needless to endeavour it because they are generally so obvious to Common Sense, as to need no

Explication And he emphasized that forfeiture for neglect of duty was for the protection of the public, to make possible a replacement who would adequately perform the duties of the office. 170

“Misdemean” and “misbehave" were sometimes interchangeable terms, but it does not follow that “misbehavior” was equated with “high misdemeanor.” To "misdemean,' states the Oxford English Dictionary, meant "To misbehave, misconduct one's self,” and it cites a 1736 example, "Sir Luke Fitzgerald misdemeaned himself before the board by uncivil words.” An appointment for so long as he “shall well demean himself” in his office was considered in Harcourt v. Fox (1692). Serjeant Levinz construed the statute to mean “during good behavior; and that is an estate for life, unless his misbehaviour in his office” made him removable for “misdemeanour.” Chief Justice Holt was of this opinion, saying, during life, and during good demeanour, are therefore synonymous phrases," and that the statute was designed to put the clerk “out of fear of losing [his office) for anything but his own misbehaviour in it."171

The interchangeability of "misbehavior” and “misdemeanor" for purposes of forfeiture of an office does not, however, prove that “misbehavior" and "high crimes and misdemeanors” are equivalents for purposes of impeachment. Rather, it illustrates the familiar fact that the same word may have different meanings in different contexts. 172 “High misdemeanors” was employed in impeachment proceedings long before there was such a crime as a “misdemeanor”; and impeachment was not based on “misdemeanors” but on "high misdemeanors,” a quite 166 Otis, supra note 27, at 33.

167 Compare 3 M. BACON, supra note 20 at (H) 733 "Of the Nature of Offices as to their Duration and Continuance' with (M) 741, “Of the Forfeitures of an Office''; and 4 J. COMYNS, supra note 22, at (B7) 242 with (K 2) 255, C, 2 W. ANSON (Part I), supra note 38, at 235: "Misbehaviour appears to mean misconduct in the performance of official duties, refusal or deliberate neglect to attend to them

168 Popham 116, 118, 79 Eng. Rep. 1223, 1224 (1597); Earl of Shrewsbury's Case, 9 Co. Rep. 46b, 508, 77 Eng. Rep. 798, 804 (1611). See also Regina v. Ballivos (Serjeant Whitacre's Case) 2 Ld. Raym. 1232, 1237, 92 Ēng. Rep. 313, 316 (1705); 16 C. VINER, supra note 23, at 121-24; 4 J. COMYNS, supra note 22, at 255; 3 M. BACON, supra note 20, at 741.

169 1 W. HAWKINS, supra note 142, ch. 66, § 1, at 167.3 M. BACON, supra note 20, at 745, also states that "the particular Instances wherein a Man may be said to act contrary to the Duty of his office, tho various, are yet so generally obvious, that it seems needless to endeavour to enumerate them.” Blackstone states, "if å grant be made to a man of an office, generally, without adding other words, the law tacitly annexes hereto a secret condition, that the grantee shall duly execute his office, on breach of which condition it is lawful for the grantor .

to oust him 2 W. BLACKSTONE, COMMENTARIES* 152.53. 170 1 W. HAWKINS, supra note 142, ch. 66, § 2, at 168, and § 1, at 167–68. Hawkins was to be found in Colonia Ibraries. H. COLBOURN, supra note 3, at 204, 211, 223.

171 Harcourt v. Fox, 1 Show. K.B. 426, 510, 534, 536, 89 Eng. Rep. 680, 720, 721-22, 734, 736 (1692–1693).CI. 1 W. & M., c. 21, $ VI (1688): “if any Clerk of the peace . shall misdemean himself in the Execution of the said office, and thereupon a Complaint and Charge in Writing of such Misdemeanour shall be exhibited against him to the Justices (they may). discharge him from the said office."

172 Lamar v. United States, 240 U.S. 60, 65 (1916) (per Holmes, J.); Atlantic Cleaners & Dyers v. United States, 286 U.S. 427, 433 (1932).

different breed of cat.173 And if I may be suffered to repeat, in no case, so far as I could find, was an impeachment grounded upon a breach of good behavior”; in every case the charge was“high treason” and (in some cases or) “high crimes and misdemeanors."

Certain categories of “high crimes and misdemeanors” superficially may seem coterminous with "misbehavior,” e.g., abuse of official power, neglect of duty. But a gap yawns between the non-attendance” instanced by Coke as an example of “non-use” or neglect, and the neglect that was punished by impeachment, e.g., the neglect of an admiral to safeguard the seas 174 or of a Commissioner of the Navy adequately to prepare ag ast a Dutch invasion. 175 Moreover, the impeachable "neglect" and "abuse of office" comprehended in“high crimes and misdemeanors" was, in the view of the Founders, limited to "great offenders”;178 impeachment of all petty officers was emphatically excluded. Maclaine's remarks in the North Carolina Ratification Convention are illustrative:

it was mentioned by one gentleman, that petty officers might be impeached. It appears to me... the most horrid ignorance to suppose that every officer, however trifling his office, is to be impeached for every petty offense.... I hope every gentleman ... must see plainly that impeach

ments cannot extend to inferior officers of the United States. That extension, he continued, would be "a departure from the usual and wellknown practice both in England and America”;177 and in truth both the English and the Framers were almost entirely concerned with “great offenders, high Ministers and the President, and "great offenses.” Is it conceivable that the President would be impeachable for "non-attendance"'? The Rocords of the Convention furnish a conclusive answer. When the Convention took up “the trial of impeachments against the President, for Treason and bribery," Mason pointed out that this was too narrow, that it could not reach "attempts to subvert the Constitution," "great and dangerous offenses.” Such was the origin of “high crimes and misdemeanors.” 178


Congressman Ford recognizes that removal of the President "would indeed require crimes of the magnitude of treason and bribery," but concludes that “from our history of impeachments: a higher standard is expected of Federal judges than of any other civil officers of the United States.''179 It is the records of the several Conventions rather than the "guilty” or “not guilty” verdicts of the Senate 173 That “high crimes and misdemeanors' means “and high misdemeanors" may be gathered from Black; stone's statement that the principal "high misdemeanor” is “the maladministration of such high officers,' "usually punished by the method of parliamentary impeachment.” 4 W. BLACKSTONE, COMMENTARIES *121. In the impeachment of Chief Justice Scroggs, he was initially charged only with “high misdemeanors. 8 HOWELL'S STATE TRIALS 163 (Cobbetts Collection 1809). For references to "high misdemeanor" in the Federal Convention, see 2 M. FARRAND, supra note 97, at 348, 443. Senator William Blount was expelled from the Senate in 1797 because of “a high misdemeanor, entirely inconsistent with his public trust and duty as a

." F. WHARTON, supra note 54, at 202. "High crimes and misdemeanors" is met in 1388 in the impeachment of the Earl of Suffolk, 1 HOWELL, supra note 173, at 90, 91, 101, 102. At that time there was no such general crime as a "misdemeanor''; lesser crimes were prosecuted as “trespasses” well into the 16th Century, and only then were "trespassers" replaced as a category of crimes by “misdemeanors." 3 W. HOLDSWORTH, supra note 28, at 318 n.1 (4th ed. 1935); 4 W. HOLDSWORTH, id. at 512-13 (1924); T. PLUCKNETT, A CONCISE HISTORY OF THE COMMON LAW 459 (5th ed. 1956). This derivation from tort led J. STEPHEN, THE CRIMINAL LAW OF ENGLAND 60 (1863) to empha that “prosecutions for misdemeanor are to the Crown what actions for wrongs are to private persons." "High misdemeanors," on the other hand, were from the outset, and remained, “political crimes” against the state, e.g. Treason, bribery. 174 Impeachment of Duke of Buckingham, 2 HOWELL, supra note 173, at 1307, 1310, Art. IV (1626). 175 Impeachment of Peter Pett, 6 HOWELL, supra note 173, at 865, 867, Art. V (1668),

176 For the almost exclusive concern with the President, see note 108 supra; for "favorites” or officers sheltered by the President, see p. 1491 supra. Gouverneur Morris stated in the Convention that "certain great officers of State; a minister of finance, of war, or foreign affairs, etc. will be amenable by impeachment to the public justice.” 2 M. FARRAND, supra note 97, at 53-54. In the North Carolina Ratification Convention, fredell said, “The power of impeachment is given by this Constitution, to bring great offenders to punishment ... the occasion for its exercise will arise from acts of great injury to the community 4 J. Elliot, supra note 15, at 113. And Governor Johnston said impeachment was designed to reach "men who were in very high offices Id. at 37. In the Federal Convention, Mason said that the President as well as his coadjutors should be punished “when great crimes were committed.” 2 M. FARRAND, supra note 97, at 65. Historically, said Lewis Mayers, 7 ENCYCLOPAEDIA OF THE SOCIAL SCIENCES 600 (1932), impeachment "has been reserved almost exclusively for high officers of state . ...' Cf. 1 W. HOLDSWORTH, supra note 28, at 380-82 (3d ed. 1922); 2 R. WOODDESON, LAWS OF ENGLAND 601 (1792) ("abuse of high offices of trust"). As Solicitor General, later Lord Chancellor, Somers said in 1691, "The power of impeachment ought to be, like Goliath's sword, kept in the temple, and not used but on great occasions." 5 NEW PARL. Hist. 678 (1691). 1774 J. ELLIOT, supra note 15, at 43–44. Maclaine: “no petty officer was ever impeachable," id. at 46; see id. at 37. Impeachment was devised to reach “the highest and most powerful offenders.” 4 J. HAT JELL, supra note fi28, at 63. 178 2 M. FARRAND, supra note 97, at 550. Aee also pp. 1512-13 infra. The Founders' concern with "great offenses" is set forth in greater detail in Berger, Festschrift, supra note 9. 174 116 CONG. REC. H3114 (daily ed. April 15, 1970).



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