The argument thus made cannot properly be answered by the maxims, noscitur a sociis and capulatio verborum acceptionem in codem sensu, as is often attempted to be done in interpreting the meaning of the word "misdemeanors" in that section. It is true that those maxims are often valuable aids to interpretation, but, after all, they are only aids in ascertaining the meaning, and can have no application here, inasmuch as the words "other high crimes" exhaust the possibility of everything which "in codem sensu" could be ejusdem generis with "treason" and "bribery," and hence the word "misdemeanors" must be discarded as useless, which is forbidden, or else it must be given other than a criminal meaning, which is the claim now made. If the language of the Constitution were "treason, bribery, or other high felonies and misdemeanors," the requirement of criminalty as to "misdemeanors" would be clear under those maxims; but as it is, the conclusion is equally clear the other way.

Unless then some other provision of the Constitution limits the meaning of the word "misdemeanors," or historically there is something which gives to the clause "other high crimes and misdemeanors," a technical meaning antagonistic to that which it bears standing alone, its normal meaning, as above must prevail.

Arguments, of greater or less force, have been made from this and other sections of the Constitution, claiming that a more extended meaning must be given to it than that involving criminality; but no argument has been presented that it is limited in meaning by its context, except such as have been suggested under Article II, Section 2, which provides:

"The President... shall have power to grant reprieves and pardons for offences against the United States, except in cases of impeachment.”

and Article III, Section 2, which provides:

"The trial of all crimes, except in cases of impeachment, shall be by jury. But, properly considered, neither of those provisions militate against the view already expressed. The only inference that can fairly be drawn from the use of the word "offences" in Article II, Section 2, instead of the word "crimes," is that it was recognized that there were "offences against the United States" which were not crimes, and all those, including fines, penalties and forfeitures, could be pardoned by the President; 5 but for “offences" resulting in a conviction upon impeachment, the President was not to be permitted to pardon.

The use of the word "crimes" in Article III, Section 2, tells for neither side of the controversy, for the reason that inasmuch as the proceedings in impeachment are a trial, and that a "trial" may be for a "crime," it was necessary therein to exclude "impeachments," in order to avoid the implication, which otherwise might arise, that criminal impeachments should be tried by a jury, a point made and overruled in the Blount Impeachment, yet repeatedly insisted upon by Senator Tazewell, because of the Sixth Amendment, and referred to also in a letter of President Jefferson to James (afterwards President) Monroe."

If viewed from the historical standpoint more can be said. That we can and should so view it, is clear from the general rule of construction relating to statutes, which is directly applied to the Constitution in the case of Rhode Island v. Massachusetts: 7

"In the construction of the Constitution we must look to the history of the times, and examine the state of things existing when it was framed and adopted, to ascertain the old law, the mischief, and the remedy.”

Thus considered it must be conceded that from an early date the words "high crimes and misdemeanors" had been used in connection with impeachments, and may be said to have acquired thereby a technical meaning in regard thereto. It is a grave question whether or not that fact in any way affects the matter, unless the people who adopted the constitution should have so understood them, for "the words are to be taken in their natural and obvious sense, and not in a sense unreasonably restricted or enlarged," and it is the meaning of those who adopted the Constitution not of those who framed it, that is the controlling factor.10

9

But whether that be so or not the same result is reached. In the impeachment of the Earl of Suffolk et al.,11 in 1388, and nearly always since then, except when

5 Osborn v. U.S., 91. U.S. 474 (1875).

6 Jeffersonian Cyclopedia 3864.

7 Peters 658 (1838).

8 Martin v. Hunter's lessees, 1 Wheaton 326 (1816); Gibbons v. Ogden.

9 Legal Tender Cases, 79 U.S. 655 (1870).

10 Sturges v. Croninshield, 4 Wheat. 122 (1819).

11 Howell's St. Trials 90.

"treason" or "bribery and corruption" were alleged, the technical words in connection with impeachment charges have been "high crimes and misdemeanors.' This will clearly appear from an examination of the impeachment_trials which have been held. But that fact carries us but a short step forward. The question really is: Were those techincal words used to cover only criminal offenses? A very brief examination of the cases will show that they were not. Of the seven articles of impeachment against the Earl of Suffolk, but three can by any method of interpretation be held to be criminal offenses, and so it appears throughout all the trials.

If we take only the cases in which "high crimes and misdemeanors" are charged we find that, so far as the records show, no respondent was acquitted prior to the adoption of our Constitution, because the offenses named in the articles were not indictable; and in at least the following cases the respondents were convicted, inter alia, of offenses not indictable, viz.: Earl of Suffolk et al.,12 Sir Giles Mompesson, 13 Sir Francis Michell,14 Lord Treasurer Middlesex, 15 George Benyon, 16 Sir Richard Gurney,17 Earl of Northampton et al.,18 Archbishop Laud,19 Henry Sacheverell,20 and Earl of Macclesfield.21 In addition thereto in a large number of cases the Commons impeached for offenses not indictable, but the proceedings lapsed by the proroging or dissolution of Parliament, or because deemed not important enough to continue; or the respondents were acquitted because of disputes between the two Houses of Parliament; or for reasons in no way shown to be connected with the character of the offence, so far as indictability is concerned. Perhaps no one has summarized those impeachments better than has Judge Story in his Commentaries on the Constitution.22

"In examining the parliamentary history of impeachments, it will be found that many offences, not easily definable by law, and many of 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 for 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 arbitrary power. So, where the lord chancellor has been thought to put the great seal to an ignominious treaty; a lord admiral to have neglected the safeguard of the sea, an ambassador to have betrayed his trust; a privy counsellor 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 offences. Some of the offences, 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 suppresing 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 the advice of physicians; preventing other persons from giving counsel to the king, except in their presence; and prosecuting exorbitant personal grants from the king. But others, again, were founded in the most salutory public justice; such as impeachment for malversations and neglects in office; for encouraging pirates; for official oppressions, extortions and deceits; and especially for putting good magistrates out of office and advancing bad."

A still more extensive catalogue is given by Judge Lawrence in his article in the American Law Register,23 which was adopted by the Managers of the House, and submitted as their brief, during the impeachment of President Johnson.24 And it may not be inappropriate to quote what Lord Brougham said of the trial of Queen Caroline:

"The House of Commons might impeach for whatever was indictable, but they also might impeach in cases where no indictment could be found. .

"The learned attorney-general had held that no impeachment could lie unless some law was violated; but the opinion was contrary to the doctrine laid down by the greatest writers on the law of impeachment. Lord Coke did not so limit the power of parliament. He regarded this power as most extensive, and in describing it quoted this remarkable expression: "That it was so large and capacious that he could not place bounds to it, either in space or time.' In short, this maxim has been laid down as irrefragable, that whatever mischief is done, and no remedy could otherwise be obtained, it is competent for parliament to impeach."

But it is said we ought to take only "the reports of the well considered cases of parliamentary impeachments, cases which were controlled by the judgments instead of the passions of men. "25 In one sense at least that is undoubtedly true, but who is to decide which are the "well considered cases"? Human nature is such that generally speaking those cases are "well considered" to each of us, which agree with our own views, and those are ill considered which disagree therewith; and we are all too prone to attribute to the "passions of men," or to their prejudices or self-interest, "judgments" which do not please us.

In matters, like the English impeachments, where there are neither statutes nor written constitutions to control the question under consideration, we are necessarily driven to determine what is the weight of authority upon a given proposition, unless we find the earlier cases overruled by the later ones, in which event the latter would ordinarily control. That much is conceded by Professor Dwight,26 but eh asserts boldly:

"The decided weight of authority is that no impeachment will lie except for a true crime, or, in other words, for a breach of the common law, or statute, which, if committed within any country of England, would be the subject of indictment or information.'

It would be interesting to know what kind of scales were used in determining that "decided weight of authority," for it may safely be said that there is no authority whatsoever so deciding, unless it be the case of Lord Melville, decided in 1806, hereinafter to be more fully referred to. It is true that most of the charges were of crimes, and this must always be so, so long as impeachments are serious matters; but it no more follows therefrom that impeachments are limited to crimes, than it would follow that the“ decided weight of authority" is that tenants cannot be legally excluded from their leaseholds except for nonpayment of rent, because usually they are excluded for that reason.

It is also true that the respondents in a number of the cases complained that they ought not to be impeached for the acts complained of, inter alia, because they were not of sufficient magnitude; but so far as ascertainable there was no allegation that to be impeachable the act must be indictable. No writer on the subject, no counsel defending an impeached person, has pointed to any impeachment in which that question was raised, unless as stated, it is the case of Lord Viscount Melville in 1806.27

In that case Lord Melville, who was Treasurer of the Navy, was charged with wrongfully using, or permitting to be used, public moneys. The evidence did not justify the charge that any corrupt use thereof was made, but it did justify, or at least left in doubt, the question as to whether or not express authority was given for the use actually made of it. Thereupon the Lords submitted to the judges the following question:

"3. Whether it was lawful for the Treasurer of the Navy, before the passing of the Act 25 Geo. 3rd, c. 31, and more especially when by warrant from His Majesty, his salary as such treasurer as aforesaid, was augmented in full satisfaction for all wages, fees, and other profits, and emoluments, to apply any sum of money to him for many services, to any other use whatsoever, public or private, without express authority for so doing; and whether such application by such treasurer would have been a misdemeanor, or punishable by information or indictment?" The judges replied:

"It was not unlawful for the Treasurer of the Navy, before the Act 25 Geo. 3rd, c. 31, although after the warrant stated in the question, to apply any sum of money imprested to him for navy services, to other uses, public or private, without express authority for so doing, so as to constitute a misdemeanor punishable by information or indictment."

25 House Journal, 2nd Sess., 40th Congress 44, 53.

36 Trial by Impeachment. 6 Am. Law Reg. (N. S.) 257.

37 29 Howell's St. Trials, 550.

In other words, it was decided that prior to the passage of the act referred to it was not unlawful for the treasurer to use the public moneys "imprested to him for navy services," for other public uses, "without express authority for so doing." The question and answer referred to "public or private" uses, but no one would pretend that the use of public moneys for private purposes was not both unlawful and indictable.

The respondent was acquitted, but how many of the Lords voted to acquit him because of the above answer, and how many because his alleged offences were twenty-four years old at the time of his trial, and how many for other reasons, does not appear. It is not to be wondered at that he was acquitted when it is remembered that his impeachment was only carried in the House of Commons by the deciding vote of the Speaker, the members voting 216 for and 216 against, the younger Pitt, then Prime Minister, doing all in his power to defeat the impeachment,28 especially when the judges ruled that he had done nothing unlawful, and had only followed the custom of prior treasurers. He has studied impeachments in vain who does not know that an acquittal under such circumstances decides no legal principle. Beyond that, however, the point here is that that record does not disclose that the acquittal was because the offence charged was not indictable, and hence it is not an authority for the proposition that, under the English practice, impeachment will not lie for other than indictable offences.

It is clear then that the true construction of Article II, Section 4, standing alone, compels the conclusion that the word "misdemeanors" does not mean criminal misdemeanors only; that there is nothing in the other provisions of the Constitution, nor in the English practice, which otherwise limits that construction; and hence it must be held to mean other than criminal misdemeanors.

But if the matter may be considered as doubtful, we are entitled to ask what construction has been placed upon the words "high crimes and misdemeanors" in this country, under the rules well expressed in McPherson v. Blacker: 29

The framers of the Constitution employed words in their natural sense; and where they are plain and clear, resort to collateral aids to interpretation is unnecessary and cannot be indulged in to narrow or enlarge the text; but where there is ambiguity or doubt, or where two views may well be entertained contemporaneous and subsequent practical construction are entitled to the greatest weight." It will be found that the same conclusion is reached. A full abstract of the articles in each case is not necessary here, and they need be but briefly stated.

In Blount's case it may be conceded that all the articles charged a criminal offense, but the proceedings were dismissed because he was not a "civil officer of the United States," and hence not impeachable. Judge Pickering was impeached and convicted for releasing a vessel without requiring a bond. for refusing to hear witnesses in the case, for refusing to allow an appeal from his judgment, and for intoxication and profanity while on the Bench, none of which were indictable offenses. Judge Chase was impeached and acquitted for refusing to allow counsel to argue questions of law to the jury, for overruling the request of a juror that he be excused, for overruling an offer of proof because he did not think it broad enough, for compelling counsel to submit certain questions to witnesses in writing, for awarding a capias when he should only have awarded a summons, for trying a case at too early a date, and for intemperately charging the grand jury in a quasipolitical case, none of which were indictable offenses. Judge Peck was impeached and acquitted for wrongfully punishing an attorney for contempt, an indictable offense. Judge Humphreys was impeached and convicted of treason, of neglect of duty, of acting as a judge of a court of the Confederate States, and while so acting, of wrongfully arresting citizens. President Johnson was impeached and acquitted for violating the Tenure of Office Act, in removing and conspiring with others to remove Stanton as Secretary of War, in appointing General Thomas to that office, and conspiring with others to put him in possession thereof and exclude Stanton therefrom, for thereby attempting unlawfully to control the property of the United States and disburse the funds appropriated to the said department, for claiming the right to give orders to subordinate military officers other than through the general of the army, and for villifying Congress and asserting that it was a congress of but part of the United States. Secretary Belknap was impeached for bribery. Judge Swayne was impeached and acquitted for wrongfully certifying to and receiving pay for excessive sum for traveling expenses, for using provisions in and travelling on a parlor car in the possession of a receiver of his appointment, without paying therefor, for non-residence in the district in which he was serving, and for wrong

28 146 U.S. 1 (1894).

29 30 Leisure Hour 666.

fully punishing two attorneys and another person for contempt. Judge Archbald was tried and convicted on five of thirteen articles, not one of which charged an indictable offense.

It will be noticed, therefore, that the House of Representatives has asserted the right to impeach for other than indictable offences in every impeachment, except those of Blount and Belknap, wherein no such question arose. In the impeachments of Chase, Peck, Johnson, and Swayne a majority of the Senate, though not two-thirds thereof, declared the respondents guilty of offences not indictable. And in the Pickering, Humphreys and Archbald cases more than two-thirds of the Senate convicted the respondents and punished them for offences not indictable.

The only other possible "contemporaneous construction" would be the language expressed by the framers of the Constitution, either during its framing or shortly thereafter, and the debates in the state conventions which adopted it. While it is well recognized that the debates in the Convention are not controlling, if for no other reason than because it is "We, the people of the United States... (who) do ordain and establish this Constitution;" yet the courts constantly resort to those debates at least for the purpose of having light thrown upon the history of the times when the Constitution was adopted, especially in view of the fact that the members of the Federal Convention were the greatest public men of that day.

The debates on the subject in the Federal Convention have herein before been discussed. Nowhere therein is it even suggested that indictability has any connection with impeachability. Cunning Bedford, Jr., states that "impeachments would reach misfeasance only, not incapacity." 30 Elbridge Gerry desired a council to assist the President partly because they may be called upon to account for their opinions and impeached." 31 The Convention first voted that the President should be "removable on impeachment and conviction of mal-practice or neglect of duty.' ."32 Alexander Hamilton's "sketch" allowed "impeachment for mal- and corrupt conduct." 33 Gouveneur Morris admitted that "corruption and some few other offences. . . ought to be impeachable." 34 James Madison "thought it indispensable that some provision should be made for defending the Community agst the incapacity, negligence or perfidy of the chief magistrate." 35 Gouveneur Morris said, "The Executive ought, therefore, to be impeachable for treachery. Corrupting his electors and incapacity were other causes of impeachment." 36

The Committee of Eleven reported that impeachment should be had for "treason or bribery," 37 and Colonel Mason moved to add the words "or maladministration" after the word "bribery," because the words "treason or bribery" are inadequate. Mr. Madison thought "maladministration" too vague and then "maladministration" was withdrawn and "other high crimes and misdemeanors" substituted.38

The only other place where like language was used was in Article XV, reported by the Committee on Detail. It required fugitives from justice, charged with "treason, felony or high misdemeanor," to be returned to the state having jurisdiction of the offence.39 The report of the debates says:

"The words 'high misdemeanor' were struck out, and 'other crime' inserted, in order to comprehend all proper cases; it being doubtful whether 'high misdemeanor' had not a technical meaning too limited." 40

The reason thus given seems a little odd, for one cannot well see how "other crimes" with that context, in view of the cjusdem generis rule of construction, could have a more extended meaning than "high misdemeanor” unless the latter did not include crimes at all, which would be favorable to the argument now being presented; but in no view of the matter is the change favorable to the opposite view.

An examination into the debates in the various state conventions which ratified the Constitution throws but little light upon the subject. In most of them the subject of impeachment was not debated at all, and, if referred to, it was but