in that regard where the acts complained of occurred in more than one jurisdiction? In view of the fact that the state rules in which a federal district is, are applied in the federal courts, those questions would seem to be quite difficult; and they might be most important, for in some jurisdictions the impeached person and his wife would be excluded from testifying, as would also any person who might succeed the accused in office if he were removed therefrom, as for instance, the Vice-President, on an impeachment of the President. In practice, however, they are not, for the Senate has invariably received all the evidence which it deemed relevant, from any witness who had personal knowledge of the facts, no matter by whom it was to be proved, and left its weight to be determined upon final consideration.

EFFECT OF THE SIXTH AMENDMENT TO THE CONSTITUTION

At one time it was very strongly urged that under the Sixth Amendment an impeached person was entitled to a jury trial. That view was urged by Senator Tazwell in the Blount case, though he did not vote on the question of dismissing the impeachment, and by correspondence and in his speeches. The Amendment provides as follows:

"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed."

Senator Tazwell's contention, however never was taken seriously for the reason that contemporary history shows that the fifth, sixth, and eighth amendments were well known to have been passed to meet complaints, made with great force while the Constitution was under consideration by the various states, that it nowhere provided for jury trials in the ordinary civil and criminal suits, and that, therefore, the people would be worse off in that regard than they were before they threw off the yoke of Great Britain. Those complaints never dealt with impeachments any more than they did with martial law, and hence the amendments were construed to effectuate the purpose intended by them, and were not extended to proceedings never intended to be reached thereby. In one sense impeachment is a "criminal prosecution," but those words as used in the Sixth Amendment evidently refer to ordinary crimes, as does the Fifth Amendment.

ATTENDANCE OF SENATORS AT THE TRIAL

Turning from the legal to the practical side of an impeachment trial, the thing that strikes a common law lawyer most is the few Senators who in fact listen to the evidence. During the Archbald Impeachment the membership of the Senate exceeded ninety, yet rarely over twenty members were present. Perhaps a hundred times the members present were privately counted with the result stated. At times some Senator would suggest the absence of a quorum, when the bells would sound throughout the Senate wing of the Capitol, the Senators would troop in and remain long enough to answer to their names, the presiding officer would gravely announce: "On a call of the roll of the Senate fifty-four Senators have responded to their names. A quorum of the Senate is present," and the trial would proceed, though the merest glance around the chamber would show that a quorum of the Senate was not present when the announcement was made. Perhaps the usual twenty or so were at that time increased to thirty or thirty-five the additional number remaining for a few moments, and then returning from whence they came, leaving the Senate as bare as it had been before. While that result was, and in all such cases must be regretted, yet it is not so much to be wondered at. Most of the work of Congress must now be done by committees, and the Senator who really attends to that work, and is present at the important legislative sessions of the Senate, has all his official time fully occupied. An impeachment trial encroaches very much on that time, and for that reason probably is partly neglected.

Yet certain Senators were always present, and always courteous and considerate, however great the strain upon them and however limited the time at their disposal. It would be discriminatory to name those whom the writer can now recall; but without subjecting himself to that charge, he can say that the presiding officer, Senator Bacon of Georgia, was always present, and that it is a pleasure now to recall, as it was a pleasure then to feel, that he courteously, conscientiously, and fairly ruled every question he was called upon to decide.

SUGGESTIONS AS TO METHODS OF OBTAINING EVIDENCE

Whether or not the present method of impeachment is continued, it is evident that radical changes ought to be made in the matter of the production of the evidence. With Congress now sitting a large part of the entire year, and with the rapidly growing legislative business of the country, due time cannot be given by the whole Senate to the hearing of the witnesses. In the Archibald Impeachment portions of seven days were taken in preliminary arrangements in the Senate, the trial consumed from December 3rd to December 19th, 1912, inclusive, and from January 3rd, to January 8th, 1913, inclusive,and the decision was rendered January 13th, 1913. The Senators could not afford that time and properly attend to their other duties, and the result was, as heretofore stated, but few of the Senators really heard the whole case.

Inasmuch as the method for obtaining the evidence and of hearing the case, is in the exclusive control of the Senate, it is evident that much of the difficulty may be remedied by appropriate rules of procedure. The rules in force at present were adopted many years ago, the latest revision being at the time of the impeachment of President Johnson. So great was the necessity felt for amendment immediately succeeding the Archibald Impeachment, that constitutional amendment were proposed to remedy some of the difficulties again made plain in that trial, as they had been made plain in all the later impeachments. A constitutional amendment, however, is practically impossible of attainment.

But much can be done by a change of the rules. It has not been unknown in the past to have the testimony taken before other than the trying body. In Jefferson's Manual, in referring to impeachments before the House of Lords, it is said: 1

"The practice is to swear the witnesses in open House, and then examine them there; or a committee may be named who shall examine them in committee, either on interrogatories agreed on in the House or such as the committee in their discretion shall demand."

An examination of the proceedings in Parliament not only bears out the foregoing statement, but shows also that the Lords at times decided the case upon the testimony taken for the Commons, or upon that testimony added to by other testimony taken by the Lords.

If the plan of having a committee of the Senate take the testimony were adopted, much time would be saved, except as to the Senators who were members of the committee. But it would not alone give all the relief desired, nor, in the opinion of the writer, is it the best plan within the narrow limits intended to be covered by it. An Act of Congress could be passed which would provide that the testimony should be taken before United States judges within a reasonable distance of the places where the witnesses were, under such regulations as Congress should prescribe, representatives of the House of Representatives, and counsel for the accused, to examine and cross-examine as in other trials, and such testimony to be available both in the preliminary hearing before the House and in the trial before the Senate. Thereby the United States would be saved great expense, the witnesses great inconvenience, the accused great loss, and the Senators much time. In the Swayne Impeachment most of the witnesses were brought from Florida to Washington, and in the Archbald Impeachment they were brought from the Middle District of Pennsylvania. A possible benefit growing out of the course of procedure suggested would be that the rulings on the question of evidence would be more accurate than they now are, for they would be decided by judges accustomed to consider such matters, a point wherein the Law Lords who ruled thereupon in English impeachments had a very decided advantage over our Senators. It is true that there would be a loss in that the Senators would not see the witnesses, as they now may, but generally speaking do not, just as they would not if the evidence were taken by a committee of the Senate; but salus populi suprema lex.

SUGGESTIONS AS TO CHANGES IN PROCEDURE

But even that change would not be adequate, nor by any means all that could be obtained by an amendment of the rules. In the Archbald Impeachment the evidence did not in any degree controvert the answer of the defendant. In the

1 Seld. Jur. 120. 123.

view which the Senate took of the matter, it could just as well have been heard and decided upon the Articles of Impeachment and the answer thereto. Yet days were spent in proving only admitted facts. It may be said that if an impeachment is in its nature criminal, and the rule that there can be no crime where there was no intent to do wrong, is to be applied, that the Senate cannot determine whether or not the intent exists if it is averred in the Articles and denied in the answer, unless evidence is taken from which the intent can be found or negatived. It is a little difficult to see how intent can be extracted from documentary proof, as usually it is, any more than from written answers, unless the weight of the evidence contradicts the one or the other. On the other hand, if the defendant is conclusively presumed to intend the natural consequences of his own acts, evidence will not be required in many cases; and in those instances where the articles and answer leave that matter in doubt evidence can be ordered. In those where no such doubt exists, and they are the more numerous instances, it is a waste of time to take evidence. Moreover, many of the facts now deemed necessary to be proved have no bearing upon the question of intent, as for instance, the status of the respondent, the result of the alleged wrongdoing, etc., yet, under the present practice, they must all be proved a clear waste of time.

So, too, many of the articles could be decided without taking any evidence, and they may be, and in some cases have been sufficient to impeach and remove from office, yet, under the present practice, the evidence must be heard as to all the articles before a vote can be taken on any. Whatever else may be said as to the impeachment of President Johnson, it was wise to adjourn the Court of Impeachment sine die as soon as it was demonstrated, by a vote on certain of the articles, that he could not be successfully impeached upon any. A court might just as well try a man for numerous murders, before executing him for admitted or proven guilt as to one, as to follow the present senatorial practice upon impeachments. Indeed, the Senate might very well, upon a consideration of the articles and answer, hear and decide one charge alone before taking up any other, when that charge, if proven, would be sufficient to justify both removal and disqualification for the future. In many instances that would be fairer to the accused, who may be condemned on one article because of evidence not fairly applicable thereto, and not admitted because thereof. And it would leave him something to live on after his trial, instead of pushing him to the edge of bankruptcy as now.

Enough has been said upon this point to satisfy the most skeptical that modern methods call for a radical amendment of the procedure in cases of impeachment. The length to which this article has gone, suggests, however, that it would be wiser, instead of going into greater details, to give elsewhere the suggested new rules.

IS IMPEACHMENT AN ADEQUATE REMEDY?

This is the really great and important question in all this controversy. As a practical matter, while there are many thousands of federal officers subject thereto, the cumbrous nature of the remedy limits it to the great officers of state. The decision in the Blount case resulted, and wisely so, in holding that Congressmen are not subject thereto. The power of the President to remove, and the great improbability that he will retain in office those wholly unfitted to perform the duties thereof, has resulted, with one exception, in the exclusion of his official family from actual impeachment. Notwithstanding that fact, it would be exceedingly unwise to relieve them from subjection thereto, for it is quite within the realm of possibility that the day may come when even a-President will care less for the nation's good, than he does for the fulfillment of his then present desires. Happily none such has yet appeared.

Judging by the past, however, impeachment as a practical remedy applies only to the judges. Of the previous impeachments one was of a President, one was of a Senator, one was of a Secretary of War, and the other six were of judges. Inasmuch as the Senate held in the Belknap case, and also, though not so clearly, in the Archald case, that impeachments were intended to reach only those then actually in office at the time of impeachment, it is reasonably certain that in future impeachments the cases of judges will be relatively more numerous than as above, for all other other officers have but a brief tenure.

It is also reasonably certain, though most of the federal judges have been very satisfactory officials, that the public good would have been better conserved if a much greater number thereof had made way for others better qualified by learning,

or more fitted by temperament, to fill the office. The cumbersome, expensive, and uncertain nature of the remedy by impeachment; the dislike to put so serious 'a stigma upon a judge; the reasonable certainty that other influences than either the public good or the law of the land would operate to affect the decision; the uncertainty of the offences which are impeachable offences; all operate to prevent calling the judge to account in this way.

While it is important, never more so than now, that the tenure of the judges should be stable, it is only so important quoad the public because the public good requires it. The good to the individual judge, while quite important to him personally, becomes so to the public only because of and only so far as it is bound up in the public good. The moment that stable tenure is given more weight than the public good requires, that moment it becomes a public injury. Every lawyer and many laymen can recall instances of judges who by reason of lack of learning or because of unjudicial temperament, for the public's sake, should have been removed from office, but who had not been guilty of "treason, bribery or other high crimes and misdemeanors," no matter how liberally you construe the "good behavior" clause of their commissions. Out of this fact has grown the clamor for the recall of judges, against which thinking lawyers ever have and ever should show an unyielding front. The objection of incompetency and unbecoming conduct unhappily found to exist in a few of the judges, is the substance of the complaint against the judiciary, and like everything else substantial it casts a shadow when the sun shines athwart it. Let us be careful, now that the sun of public opinion is shining athwart the judiciary, that in a vain endeavor to save the shadow we do not endanger the substance. An independent judiciary is indispensable; but that furnishes no reason for preserving incompetent judges, whether they be mentally, morally, or constitutionally unfit.

It is evident, however, that it would be unwise to submit judges to impeachment and removal upon such uncertain charges as would have to be made to cover the the grounds above referred to, because the very uncertainty of the definition of the offences covered by the power of removal would be an invitation to view the matter from the political rather than the public standpoint. This thought points out one of the reasons strongly urged against the power of impeachment as it now exists, a reason that sometimes, but happily rarely, has found exemplification in the trials heretofore held.

It is not to be lost sight of that the judicial department was intended to be not only a co-ordinate but also an independent branch of the government, as far removed as possible from the control of the other branches; and that impeachment of judicial officers by Congress was only permitted because no other or better way of protecting the public from the derelictions of their judges had been devised. That method, however, at once pitchforks the accused judge into the political arena, and invites him to seek favors from members of the House and Senate, when he should, so far as possible, be removed from even the temptation to ask favors from any one, and particularly from political public officials. And it invites him also to seek the influence of the President and other high officials of the executive department upon Senators and Representatives, to avoid or restrain contemplated action against him. This not only operates to defeat the intention of keeping the great departments separate and distinct from each other, but it also tends to destroy the fearlessness and independence of the individual judge. It is evident, therefore, that any plan for the removal of incompetent judges which reduces to a minimum the influence of the legislative and executive departments of the government upon the judiciary, will be a benefit to the public, if it adequately protects the public from the continuance in office of those who are unfitted therefor. Can such a plan be devised? And if so, will it require a constitutional amendment to make it effective?

It is evident that if there is vested in some judicial tribunal an effective supervision over the other federal judges, resulting in the removal of the latter in case they do not properly fulfill their duties, not only will there be a greater freedom in the judges, but there will also be a judicial determination of the questions at issue, and a greater benefit to the public because more unfit persons can be removed than by the present system. The trial of a District Judge by the appropriate Circuit Court of Appeals, preferably of another circuit, and of all other judges by the Supreme Court itself, would furnish judicial tribunals to try all but Supreme Court judges. It might be provided that the latter should be tried by judges of the inferior courts, but this would infringe upon the dignity of the Supreme Court, and would also subject the trying judges to a stress because they were sitting in judgment upon one who theretofore had and who thereafter might sit in judgment

upon them and their rulings. It would seem better, therefore, that the remedy by impeachment should remain as it is for the Supreme Court judges, a remedy which will probably never again be applied to a member of that court. The plan suggested, however, would reach nearly all the judges.

Can it be obtained without a constitutional amendment? The tenure of the judges is "during good behavior". Nowhere is it stated what constitutes "good behavior," unless the impeachment clause is to be read not only as defining those words, but as supplying also an exclusive remedy in case of an alleged breach of duty. Article II, Section 3, of the Constitution simply says:

"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."

But there is no provision that that shall be the only method of removal. Article III, Section 1, says, inter alia:

"The judges, both of the supreme and inferior courts, shall hold their offices during good behavior."

But it is nowhere said how that "good behavior" is to be ascertained, and the tenure, determined if it does not exist. Article I, Section 8, says, inter alia:

"The congress shall have power. to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this constitution in the government of the United States, or in any department or officer thereof."

It would seem that under the latter clause Congress would have power to define what constitutes "good behavior," and to provide a method for ascertaining whether or not the judges are complying with the tenure under which they hold, and to cause them to forfeit their offices if they are not, subject, of course, to a review by the courts of the question as to whether or not the definition wholly or partially is within the meaning of those words as used in the Constitution. By this method the question becomes a judicial one, as it should be, and the accused judge will be safeguarded in his right to hold his office exactly as he is safeguarded in all the other rights vested in him by the Constitution. That Congress has the power claimed was expressly asserted by Senator Catron in the Archbald Impeachment.1

It may be said that the course suggested would result in removing the judges still farther from contact with the people. But this can hardly be so. They do not come into contact with the people when they are impeached, and experience has shown that the judiciary is less subject to improper influences than any other branch of the government, whether by brother judges or otherwise. It follows that both the public and the accused would be better protected by the suggested than by the existing remedy. There is no reason to suppose that the Supreme Court judges would deal too leniently with derelict judges of the inferior courts. On the contrary, that just pride which they have ever had in maintaining the high standing of the judicial department would operate to counteract any of the influences of association, even if such there were. Moreover, there would be grounds for removal not now existing, and derelict judges have greater spheres of influence with political officers than they have with judicial.

It is not the writer's purpose to state all the things which would constitute bad behavior, nor is it intended hereby to specify the best method for ascertaining the fact of bad behavior, or of carrying into effect the judgment if and when ascertained. It may not be in appropriate, however, to quote from an address of Mr. Justice F. Miller before the New York State Bar Association, where in discussing the subject of impeachment he said: 2

"It is not easy to suggest a better remedy. The tribunal would be rendered more efficient and more safe by a specific definition of the causes of removal. There are many matters which ought to be causes of removal that are neither treason, bribery, nor high crimes and misdemeanors. Physical infirmities for which a man is not to blame, but which may wholly unfit him for judicial duty, are of this class. Deafness, loss of sight, the decay of the faculties by reason of age, insanity, prostration by disease from which there is no hope of recovery-these should all be reasons for removal, rather than that the administration of justice should be obstructed or indefinitely suspended.

1 2 Proceedings, etc., on the Trial and Impeachment of Robert W. Archbald, 1661. 22nd Annual Report, p. 40.