and hold their stations for a longer term. They are, therefore, more independent of the people, and being chosen with the knowledge that they may, while in office, be called upon to exercise this high function, they bring with them the confidence of their constituents that they will faithfully execute it, and the implied compact, on their own part, that it shall be honestly discharged. Precluded from ever becoming accusers themselves, it is their duty not to lend themselves to the animosities of party or the prejudices against individuals, which may sometimes unconsciously induce the House of Representatives to the acts of accusation. Habituated to comprehensive views of the great political relations of the country, they are naturally the best qualified to decide on those charges which may have any connection with transactions abroad, or great political interests at home. And although we cannot say that, like the English House of Lords, they form a distinct body, wholly uninfluenced by the passions and remote from the interests of the people, yet we can discover in no other division of the government a greater probability of independence and impartiality." 16

These arguments have convinced the American people, and in all the States except New York, Oregon, and Nebraska, impeachments are made and tried substantially as is provided in the Constitution of the United States, although in a few the Chief-Justice of the Supreme Court presides in all impeachment trials except when he is a party. New York maintains the practice established in her first constitution, and has a special court for the trial of impeachments which is composed of the president of the Senate, the senators, or a major part of them, and the judges of the Court of Appeals, or the major part of them. Experience has shown that the judges have been more disposed to acquit than have the senators.18 The Oregon Constitution ordains:

"Public officers shall not be impeached; but incompetency, corruption, or malfeasance, or inefficiency in office, may be tried in the same manner as criminal offences, and judgment may be given of dismissal from office, and such further punishment as may be prescribed by law." 19

In Nebraska impeachments are made by a majority of the legislature in joint convention. They are tried by the Supreme Court,

16 Rawle on the Constitution, ch. xxii, pp. 201-202, quoted with approval in Story on the Constitution, § 775.

17 New York Constitution, Art. VI, Sec. 1.

18 Supra, note 11.

19 Art. VII, Sec. 19.

unless a judge of that court is impeached, when he is tried by the judges of the District Court.20

In Louisiana there is a remedy alternate to impeachment by a suit in the Supreme Court by the Attorney-General for the removal of the judges of the Court of Appeals and other courts.21 These provisions have not been tried sufficiently to determine whether it is yet safe to trust the courts with so tremendous a jurisdiction as that of the removal of a President of the United States.

§ 90. History of Impeachments before the Senate of the

United States.

There have been seven impeachment trials before the Senate of the United States, of which two only have resulted in convictions. On July 7th, 1797, William Blount, a senator from Tennessee, was impeached for high crimes and misdemeanors. On the same day the Senate resolved that the respondent be taken into the custody of the messenger until he should enter into a recognizance, which he gave, binding himself in the sum of $20,000 with two sufficient sureties in the sum of $15,000 each, to appear and answer such articles of impeachment as might be exhibited against him. On the following day he was expelled from the Senate as guilty of a high misdemeanor, entirely inconsistent with his public trust and duty as a senator. Thereupon the sureties surrendered his person, and asked to be discharged. It was then resolved that he be taken into custody of the messenger, until he should enter into another recognizance to the same effect, himself in the sum of $1,000, with two sufficient sureties in the sum of $500 each, which was also given. Articles of impeachment were not presented until the next session, in January, 1798. They charged:

That the respondent while senator had conspired to create and promote, and set on foot, within the jurisdiction and territory of the United States, and to conduct and carry on from thence, a military hostile expedition against the territories and dominions of Spain in the Floridas and Louisiana for the purpose of wresting the same from Spain, and of conquering the same for Great

Britain, with which Spain was then at war. That at the same time he had conspired and contrived to excite the Creek and Cherokee nations of Indians, then inhabiting within the United States, to commence hostilities against the subjects and possessions of Spain, in the Floridas and Louisiana, for the same purpose, in violation of a treaty by which the United States and Spain had agreed to maintain peace and harmony with all the means in their power among the Indians who inhabited the country adjacent to the boundaries of the Floridas. That he had further conspired and contrived to alienate and divert the confidence of the said Indian tribes or nations from Benjamin Hawkins, the principal temporary agent of the United States appointed by the President in accordance with law to reside among the tribes, and to diminish, impair and destroy the influence of that agent with those tribes, and their friendly intercourse and understanding with him. That he had conspired and contrived to seduce James Carey, the interpreter duly appointed by the United States to reside within said. Indian tribes, from the duty and trust of his appointment, and to engage Carey to assist in the promotion and execution of his said criminal intentions and conspiracies aforesaid; and that he had for the same purpose further conspired and contrived to diminish and impair the confidence of the Cherokee nation in the government of the United States, and to create and foment discontents and disaffection among the said Indians, towards the government of the United States, in relation to the ascertainment and marking of the boundary line between the United States and the Cherokee nation, which a treaty between them provided should be ascertained and marked by commissioners in a manner therein prescribed.

The managers of the House of Representatives included James A. Bayard and Robert G. Harper. Blount's counsel were Jared Ingersoll and A. J. Dallas. They filed a plea to the jurisdiction on the ground that the respondent was not then a senator, and was not then, nor at the time of the offenses charged, a civil officer of the United States. The House filed a replication to the plea, alleging that the matters therein set forth were insufficient to exempt Blount from answering the articles. The questions of law arising thereupon, which are discussed later, were argued by Bayard and

Harper for the United States, and by Dallas and Ingersoll for the respondent. The plea was sustained by a vote of 14 to 11; and the respondent consequently acquitted. Blount returned to Tennessee, where he had not forfeited the confidence of his constituents; for he was subsequently elected to the State Senate, made speaker of that body, and was about to be elected governor at the time of his death, not long after his expulsion.1

Upon the destruction of the Federalist party on the election of Jefferson to the presidency, the Democrats found most of the judicial offices in the States as well as the United States filled by their political opponents, whose terms did not expire until their deaths, or at least a long period of time. The incumbents had been chosen from the "ranks of the wealthy and well born"; and had made themselves obnoxious by their arrogance to the poor, and to those who had not attained social distinction and were not adherents to the prevailing religious sect. The opinion which now generally prevails, that judges should abstain from interference in politics, was not then in force. It was the constant custom for their charges to grand juries to include arguments on the party questions of the day; and in many cases, when not holding court, they also took the stump during political campaigns. Human nature would have been different had not the Democrats who had then gained nearly all the offices which were supplied at the last election, tried to fill the benches also with members of their own party. An assault upon the judiciary, State and Federal, was made all along the lines. In some States, as New Hampshire, old courts were abolished and new ones with similar jurisdiction created for the sole purpose of obtaining new judges. In Pennsylvania, one obnoxious Federal judge was removed from the Common Pleas by impeachment; 2 and an impeachment of all the Federal judges of the highest court was made, but failed through the uprising of the entire bar, irrespective of party lines, in defense of their official chiefs.3 A similar attack was made upon the Federal judiciary.

§ 90. 1 Wharton's State Trials, pp. 250-321. Some of the arguments are quoted infra, § 93.

2 Addison's Impeachment Trial,

infra, § 93, and Appendix to this volume.

3 Impeachment Trial of Shippen, Smith, and Yeates, infra, Appendix.

On February 3d, 1803, Jefferson sent a message to the House of Representatives in which he said:

"The enclosed letter and affidavits exhibiting matter of complaint against John Pickering, District Judge, of New Hampshire, which is not within executive cognizance, I transmit them to the House of Representatives, to whom the Constitution has confided a power of instituting proceedings of redress if they be of opinion that the cases call for them." 4

The result was the immediate impeachment of that judge. The articles charged disobedience to the law in the course of proceedings on the part of the United States to condemn the ship Eliza with its cargo for a violation of the custom laws: where the judge delivered the ship to the claimant after its attachment by the marshal without requiring any bond as the law directed; refused to hear testimony offered by the District Attorney on behalf of the United States; refused to allow an appeal by the Government from his decree to the Circuit Court of the United States; sat drunk upon the bench, using profane language; "and was then and there guilty of other high misdemeanors degrading to his own character as a judge and degrading to the honor and dignity of the United States." There was no appearance on the part of the respondent. His son, however, présented, through Robert G. Harper as counsel, a petition, alleging the insanity of his father and praying a postponement of the trial with leave to defend on his behalf. Harper expressly disclaimed any appearance for the respondent. He was allowed, against the protest of the managers of the House of Representatives, to present evidence of the respondent's insanity in support of the petition. The managers thereupon retired to take the opinion of the House respecting their further procedure. The House discussed the matter, but took no action upon the subject. Meanwhile, the depositions, one of which was sworn to before a State justice of the peace, were read. They tended to support the allegations in the petition. No action was taken by the Senate thereupon. The managers then returned and continued the trial. The facts alleged in the articles were proved. One of the witnesses on the impeachment, the marshal of

4 Annals of Congress, 1802, 1803, p. 460.