impeachment is given at the head of the list of courts. Under the Federal Constitution, the judicial power of the United States is vested in the Supreme Court and in such inferior courts as the Congress may, from time to time "ordain and establish",2 The power of impeachment is, not strictly speaking, judicial power retained by the Congress. Nevertheless, the power is a most important one and when the Senate, under the mandate of the Constitution, sits in impeachment, it exercises a function of judicial character, whether we call it a court or not. The word "impeachment", in its original sense-derived from the Latin impedicare (pedica, fetter, and pes, pedem, foot)-meant "to hinder" or "to prevent". In parliamentary usage, it acquired the meaning of accusation or charge. Late in the 16th century, the word began to acquire the meaning which it has now, to accuse a person of high crime and misdeameanor before a court of impeachment. The practice of impeachment developed with the rise of responsible government and parliamentary institutions. By some, its rise is attributed to the fact that it was thought that high officers of the Crown might avoid, through their influence, punishment unless Parliament itself was in a position to inflict punishment. The practice, as we have it, comes from England. The earliest record of an impeachment trial in England dates back to 1376. During the reign of Edward III and some of his successors, Bills of Attainder and proceedings in the Court of the Star Chamber took the place of impeachment trials. In 1620, impeachment was revived and during the next sixty-eight years, there was an impeachment on the average of every twenty months. There has been no resort to impeachment in England since the trial of Henry Lord Viscount Melville, Treasurer of His Majesty's Navy, for misappropriation of funds in 1806, in the reign of George III.3 Under English parliamentary practice, any person, whether a peer or a commoner, may be impeached by the House of Commons for any crime or misdemeanor. By specific constitutional provision, the right of impeachment under the Federal Constitution is very limited. II. IMPEACHMENT UNDER THE CONSTITUTION OF THE UNITED STATES Impeachment and the procedure under it are governed by a few apparently simple provisions in the Constitution of the United States. They are: "The House of Representatives . . . . shall have the sole power of impeachment." 5 "The Senate shall have the sole power to try all impeachments. When sitting for that purpose, they shall be on oath or affirmation. When the President of the United States is tried, the chief justice shall preside; and no person shall be convicted without the concurrence of two-thirds of the members present."6 "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; but the party convicted shall nevertheless be liable and subject to indictment, trial, judgment, and punishment, according to law." "The President. shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.8 "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." 9 "The trial of all crimes, except in cases of impeachment, shall be by jury.. "" 10 One of the most significant differences between impeachment in England and in the United States appears in the designation of persons who may be impeached. First to be noted is the fact that the President is subject to impeachment. No 1 Cal. Code Civ. Proc. (Deering 1933) § 37. 2 U.S. Const. Art. III, § 1. Reproduced with permission from the Georgetown Law Journal, volume 26, no. 4, May 1938, by the Legislative Reference Service on April 23, 1970. 3 Melville's case (1806), 29 Howell, State Trials (1821) 549. 4 22 Halsbury, Laws of England (1912) 650-651. Lord Halsbury calls impeachment "the most solemn form of trial known to English law." U.S. Const. Art. I, § 2, Cl. 5. 6 U.S. Const. Art. I, § 3, Cl. 6. 7 U.S. Const. Art. I, § 3, Cl. 7. 8 U.S. Const. Art. II, § 2, Cl. 1. 9 U.S. Const. Art. II, § 4. such right existed in England as to the English sovereign. That fact has been adverted to repeatedly by our courts in discussing the nature of the presidential office. In Langford v. United States, Mr. Justice Miller wrote: "The President, in the exercise of the executive functions, bears a nearer resemblance to the limited monarch of the English Government than any other branch of our Government, and is the only individual to whom it could possibly have any relation. It cannot apply to him, because the Constitution admits that he may do wrong, and has provided a means for his trial for wrong-doing, and his removal from office if found guilty by the proceeding of impeachment. None of the eminent counsel who defended President Johnson on his impeachment trial asserted that by law he was incapable of doing wrong, or that, if done, it could not, as in the case of the King, be imputed to him, but must be laid to the charge of the ministers who advised him." 11 Another difference is noticeable in the fact that under English procedure, any person may be impeached. Under the provisions of the Constitution of the United States, only "civil officers" may be impeached. The provision is broad enough to include all officers of the United States, who hold their appointment from the national government, whether their duties be executive, administrative or judicial, or whether their position be high or low. Military or naval officers are not subject to impeachment. No attempt has ever been made to impeach one. The reason, of course, is obvious: Army and Navy officers are subject to trial and punishment according to the Military Codes. As Story once put it. "The very nature and efficiency of military duties and discipline require this summary and exclusive jurisdiction." 12 Judges of the courts of the United States may be impeached. Four such judges have actually been convicted after impeachment: John Pickering in 1803; W. H. Humphreys in 1862; R. W. Archbald in 1912, and Halsted L. Ritter in 1936. In 1917, articles of impeachment were voted against Judge George W. English of Illinois, but he resigned before trial. There are other instances of judges against whom impeachment proceedings were recommended by the House Committee, but were dropped when they resigned; P. K. Lawrence in 1839; J. C. Watrous in 1860; M. H. Delahy in 1872; E. Durrell in 1874, and R. Busted in 1874. In 1933, a Federal District Judge from California stood trial for impeachment. The twothirds vote necessary to obtain conviction not having been secured on any of the five charges of misconduct directed against him and arising out of the manner of handling receiverships, he stood acquitted and retained office. On April 16, 1936, the Senate of the United States convicted Judge Halsted L. Ritter, District Judge for the Southern District of Florida, after impeachment under seven articles charging him with misbehavior in office. So far as is known, impeachment proceedings have been begun but once in the United States against a member of the President's Cabinet. That happened in 1876 when impeachment charges for bribery were filed against William W. Belknap, Secretary of War, after he had resigned. Although his contention that he was not a "civil officer" and, therefore, not subject to impeachment, was overruled, he was later acquitted, presumably upon the same ground. All authorities agree that members of the Congress of the United States, not being commissioned by the President, are not "civil officers" of the United States. Only one attempt has ever been made to impeach a Senator of the United States. That was in 1797, when articles of impeachment were filed against Senator William Blount. The Senate sustained Senator Blount's objection to the jurisdiction upon the ground that he was not a "civil officer", subject to impeachment.13 Under the broad interpretation which has been placed upon the words "civil officer", it is quite evident that many of the civil officers who are subject to impeachment may also be removed by the President with or without the consent 11 101 U.S. 341, 343 (1879). Similar language was used by Chief Justice John Marshall in the trial of Burr United States v. Burr, 25 Fed. Cas. No. 14,692d at 34 (C. C. D. Va. 1807). "Of the many points of difference which exist between the first magistrate in England and the first magistrate of the United States in respect to the personal dignity conferred on them by the constitutions of their respective nations, the court will only select and mention two. It is a principle of the English constitution that the king can do no wrong, that no blame can be imputed to him, that he cannot be named in debate. By the constitution of the United States, the president, as well as any other officer of the government, may be impeached. " 12 Story, Manual of The Constitution (1886) 83. Modern writers agree with Story that Army and Navy Officers are not subject to impeachment. 3 Willoughby, The Constitution (1929) 1488, § 929: 9 Hughes, Federal Practice (1931) 621, § 7228. 13 9 Hughes, Federal Practice (1931) 621, 622, § 7228. of the Senate.14 Others, such as the President and Vice-President, cannot be removed otherwise. This is also true as to Judges. For, while the Constitution provides that they shall hold office during "their good behavior",15 there is no provision in the Constitution for their removal for lack of "good behavior", except through impeachment. III. GROUNDS FOR IMPEACHMENT The grounds for impreachment are treason, bribery and "other high crimes and misdemeanors".16 The words "high crimes and misdemeanors" are general. They are borrowed from English parliamentary practice. The phrases there used have been, at various times "treasons, felonies and mischiefs done to our Lord, The King", "divers deceits", and, finally, in their latest form, "high crimes and misdemeanors". No definition of them has been attempted. The meaning of the two specific crimes, bribery and treason, is well established. Treason is defined in the Constitution itself as consisting "only in levying War against them, or in adhering to their enemies, giving them aid and confort".17 For a definition of bribery, resort is had to the common law definition which is usually given as "the voluntary giving or receiving of anything of value in corrupt payment for an official act done or to be done".18 The Constitution gives us no clue as to what crimes or misdemeanors are. However, a study of English and American precedents in impeachement cases leads to the conclusion that they cover general official misconduct. The variety of charges which have served as a basis for impeachment may be illustrated by reference to some well-known cases. On May 20, 1620, in the reign of James I, Francis Bacon, Lord Verulam, Viscount St. Albans, Lord Chancellor of England, was impeached before the House of Lords for bribery and corruption in office. The charges against him, contained in a large number of articles consisted of receiving money and valuable objects as bribes from litigants in cases pending before him. In many instances, the charge was made that he received bribes from both sides of the controversy. A final charge was also made that "he had given way to great exactions by servants in respect of private seals, and sealing injunctions". On April 30, 1620, Bacon admitted his guilt. He was fined 40,000 pounds. He was stripped of his peerage and his honors and sentenced to imprisonment in the Tower, at the King's pleasure. The fine was later remitted. He actually served only a few days in the Tower and was pardoned in November, 1621. That English judges, at the time, were not above corruption is evidenced by the fact that Bacon, himself, in his address to Serjeant Hutton upon becoming a Judge of the Common Pleas, saw fit to warn him against corruption with these words: "That your hands and the hands of your hands (I mean those about you) be clean and uncorrupt from gifts, from meddling in titles, and from serving of turns, be they great ones, or small ones." Bacon, in his famous essay on judicature, set the loftiest ideals for a judge. In it he speaks of "integrity" as the portion of judges and their proper vitue and warns against improper acts by subalterns. "The place of justice," he says, "is a hallowed place; and therefore not only the bench, but the foot pace and precincts, and purprise (close) thereof, ought to be preserved without scandal and corruption." More is the pity that a man of this type the man who through his most important work, Novum Organum, or The Advancement of Learning, laid the foundation for the inductive method of discerning truth, and who is considered by modern historians of science as "one of the great builders who constructed the mind of the modern world" 19-should have brought corruption to the high office of Chancellor, thus demonstrating that to study truth may not always mean to live it. On May 13, 1624, during the reign of the same King, Lionel Cranfield, Earl of Middlesex, Lord Treasurer, was found guilty upon impeachment which charged him with bribery and extortion under color of office. He was sentenced to the loss of his offices, disqualified from holding any office, place or employment "in the state and commonwealth" and was ordered imprisoned in the Tower of London 14 Myers v. United States, 272 U.S. 52 (1926); Humphry's Executor v. United States, 295 U.S. 602 (1935) 15 U.S. Const. Art. III, § 1. 16 U.S. Const. Art. II, § 4. 17 U.S. Const. Art. III, § 3. 18 9 Corpus Juris 402. 19 Whitehead, Science and the Modern World (1925) 63. during the King's pleasure; to pay a fine of 50,000 pounds and "that he shall never sit in Parliament any more and that he shall never come within the verge of the court." On May 8, 1626, in the reign of Charles I, articles of impeachment were voted against George, Duke, Marquis and Earl of Buckingham, Great Admiral of the Kingdom of England and Ireland, charging him with holding a plurality of offices, buying his office as an admiral, buying a wardenship, failure to guard the seas and other acts of abuse of power and extortion, including the selling of places of judicature, procuring honors for his poor kindred and his "transcendent presumption in giving physic to the King." Parliamentary upheavals resulting in the dissolution of Parliament, and the killing of the Duke on August 23, prevented the completion of his trial upon these charges. On November 25, 1640, during the reign of the same King, Thomas Earl of Strafford, Lord Lieutenant of Ireland, was charged in articles of impeachment with various acts committed in Ireland aiming to subvert Parliamentary authority and to substitute his own arbitrary power. An old historian of the Long Parliament of England, Thomas May, has summed up the charges against him in the following quaint language: "The first and second being much alike, concerning his ruling of Ireland, and those parts of England, where his Authority lay, in an Arbitrary way, against the fundamental Lawes of the Kingdome, which Lawes he had endeavoured to subvert. Thirdly, his retaining part of the King's Revenue, without giving a legal account. Fourthly, The abusing of his Power, to the increase and encouragement of Papists. Fifthly, That he maliciously had endeavoured to stir-up Hostility betweene England and Scotland. Sixthly, That, being Lieutenant-General of the Northerne Army, he had wilfully suffered the Scots to defeat the English at Newburne, and take Newcastle; that by such a losse and dishonour, England might be engaged in a National and irreconcileable quarrel with the Scots. Seventhly, That to preserve himselfe from questioning, he had laboured to subvert Parliaments and incense the King against them. Eighthly, and lastly, That these things were done during the time of his Authority as Deputy of Ireland, and Lieutenant-General of the Northerne Armies in England." The King in person attended the trial and took notes. The higher aristocracy were on the side of the accused. May complains: "The Courtiers cryed him up, and the Ladies (whose voices will carry much with some parts of the State) were exceedingly on his side." Although the trial lasted from the twenty-second of March until the middle of April, during which time the Earl was on the stand for fifteen days, the Managers of the House of Commons finally decided on April 21, 1641, to proceed against him by Bill of Attainder. He was found guilty and executed on May 12, 1641. Edward, Earl of Clarendon, Lord Chancellor of England, was impeached on July 10, 1633, in the reign of Charles II, on various charges. Among them were that he had tried to alienate the hearts of His Majesty's subjects from him by artificial insinuations and circulating opprobrious scandals against the King, inciting jealousy; that he had "wickedly" advised the King to withdraw the English garrisons out of Scotland, and to demolish the forts; that he had endeavored to alienate the affection of the King from Parliament, and that he had advised the King and secured the sale of Dunkirk to the French King. The last Article read: "That having arrogated to himself a supreme direction of all his majesty's affairs, he hath, with a malicious and corrupt intention, prevailed to have his majesty's customs farmed at a far lower rate than others do offer, and that by persons, with some of whom he goes a share, in that and other parts of money resulting from his majesty's revenue." Clarendon fled, so the trial could not be held. Parliament, therefore, on December 12, passed a statute banishing him. The last impeachment of which there is a record in England, is that of Henry, Lord Viscount Melville, Treasurer of His Majesty's Navy, who was impeached for various acts of misappropriation of public funds, on April 29, 1806, in the reign of George III. He was acquitted, after a long trial, on June 12, 1806. Other instances are a judge, (Tresilian) being impeached for misleading a sovereign by rendering unconstitutional opinions; an ambassador, (Wolsey) for betraying his trust; an advisor of the King, (Halifax) for seeking to obtain exorbitant emoluments to himself.20 The American precedents indicate, as do these English precedents, that the misconduct may, but need not, amount to a violation of law. None of the eleven articles of impeachment against President Andrew Johnson, the only American President ever to face impeachment, charged a direct offense against either the Consitituion or the statutes of the United States, except, perhaps, the violation of the Tenure of Office Act. Nine of the articles concerned the attempted removal of his Secretary of War and the others charged that the President, by his intemperate and inflammatory speeches, had attempted to bring into contempt the Congress of the United States. Judge John Pickering was convicted on impeachment in 1803, although no direct violation of law was charged against him. The charges were that he had released a vessel without bond, refused to hear witnesses in the case, refused to allow an appeal from his judgment; that he was intoxicated and used profanity while on the Bench. The articles of impeachment against Judge Samuel Chase charged unjudicial conduct, such as refusal to allow counsel to argue on the law to a jury, and addressing a grand jury in intemperate political language, in order to bring about an indictment under the Espionage Act. He was acquitted. Judge W. H. Humphreys was charged with treason, neglect of duty, of acting as a judge in a Confederate state and causing the wrongful arrest of citizens while so doing. Judge J. H. Peck was charged with punishing an attorney wrongfully for contempt. He was acquitted. The charges against Judge Swayne related to making wrongful claims for travelling expenses, receiving benefits from a receiver of his appointment, and punishing two attorneys wrongfully for contempt. He was acquitted. Judge R. W. Archbald was tried under five articles, none of which charged a crime. Among the most serious charges against him was the charge that he conducted a secret correspondence with a litigant concerning the merits of a case pending before him. The impeachment proceedings against other judges, in more recent times, were grounded on misconduct which fell short of being a crime. In the most recent impeachment-that of Judge Halsted L. Ritter of the Southern District of Florida 21-the articles of impeachment were in substance: I Misbehavior and high crime and misdemeanor in office by corruptly and unlawfully accepting from his former law partner $4,500 out of the avails of a decree made by the respondent. II Misbehavior and high crime and misdemeanor in office by conspiring with his former law partner and others to continue property in litigation, promoting the conspiracy by keeping jurisdication of a foreclosure proceeding contrary to the motion of the plaintiff in person, on the basis of interventions filed in the case, appointing as receiver a person alleged to e involved in the conspiracy, granting exorbitant fees, and corruptly and unlawfully accepting from such fees $4,500. III A high misdemeanor in office by practicing law contrary to the Judicial Code and accepting $2,000 from his client while it held and owned large interests in his jurisdiction, and accepting a large amount of securities from his client of a corporation organized to develop holdings within his jurisdiction. IV A high misdemeanor in office by practicing law on another occasion contrary to the Judicial Code, and receiving for his services $7,500. V A high misdemeanor by violating 146(b) of the Revenue Act of 1928 in not returning the above-mentioned fees in his income-tax return for the year ending December 31, 1929. VI A high misdemeanor in office by violating 146(b) of the Revenue Act of 1928 in not returning $5,300 gross taxable income for the year ending December 31, 1930. VII Misbehavior and high crimes and misdemeanor in office by accepting large fees and gratuities, to-wit, $7,500 from J. R. Francis on or about April 19, 1929, said J. R. Francis having large property within his territorial jurisdiction as a judge, and on, to-wit, the 4th day of April, 1929, accepting $2,000 from Mulford Realty Corporation and a large amount of the securities of Olympia 20 The precedents given are summarized from the following texts and authorities: Bacon's Case (1620), 2 Howell, State Trials (1809) 1087; Middlesex's Case (1624), 2 Id. at 1183; Buckingham's Case (1624), 2 Id. at 1186; Strafford's Case (1640), 3 Id. at 1381; May, History of the Parliament of England (1812) 59-65; Clarendon's Case (1663-1667), 6 Howell, State Trials (1810) 291. (The report of this case contains one of the most complete records of an impeachment in England and the procedure followed from beginning to end.) See also: 9 Hughes, Federal Practice (1931) 626, § 7229; Story, Commentaries on the Constitution (3d ed. 1858) §800. 21 Sen. Rep. No. 84, 74th Cong., 2nd Sess. (1936) 5360. |