which encourages insurrection.28 It does not consist in an error in judgment made in good faith in the decision of a doubtful question of law,29 except perhaps in the case of a violation of the Constitution.30 It includes such action by an officer when acting as a member ex officio of a board of commissioners; 31 and such action in the same or a similar office, at an immediately preceding term, in one case, it was so held, after his re-election in a campaign at which the charges were discussed upon the stump.32 Otherwise, it seems an officer should not be impeached for an offense committed before his official term,33 nor, except perhaps when the offense tends to bring the office into great disrepute, for an offense committed said that negligence so gross and flagrant as to warrant the inference that it was corrupt constituted a "misdemeanor in office" which was a ground of impeachment. 28 Hardy's Impeachment Trial, infra, § 94; Humphreys' Impeachment Trial, supra, § 90, infra, § 96. 29 The following definition by ExJudge William Lawrence had the approval of the managers of Johnson's Impeachment Trial: "An impeachable high crime or misdemeanor is one in its nature or consequence subversive of some fundamental or essential principle of government or highly prejudicial to the public interest, and this may consist of a violation of the Constitution, of law, of an official oath, or of duty by an act committed or omitted, or, without violating a positive law, by the abuse of discretionary powers from improper purpose." (Johnson's Impeachment Trial, vol. i, p. 147.) See also the arguments in Chase's and Peck's Impeachment Trials, especially the arguments of Manager Charles A. Wickliffe and the respondent's counsel, William Wirt, in Peck's Trial, supra, § 90; Barnard's Impeachment Trial, vol. iii, p. 2038, per Grover, J., p. 2057. Peck's Impeachment Trial, per Manager, afterwards President James Buchanan, p. 428; per respondent's counsel, William 80 See Peck's Impeachment Trial, per Manager Charles A. Wickliffe, p. 312; Johnson's Impeachment Trial; Frazier's Impeachment Trial; Holden's Impeachment Trial, infra, Appendix. 81 Butler's Impeachment Trial, infra, Appendix. 82 Hubbell's Impeachment Trial; Barnard's Impeachment Trial; Butler's Impeachment Trial; State v. Bourgeois, 45 La. Ann., 1350; s. c., 14 So. Rep., 28. See the quotation from State v. Hill, Ex-Treasurer, 37 Neb., 80, 90; quoted supra, § 92, note 15. 33 Trial of Henry W. Merritt, a Special Justice for preserving the peace in the city of New York. New York. Published by Gould, Barnes & Co., 1840. See § 95. 34 Supra, notes 23, 24. while holding office but not when exercising an official function; 35 until after conviction of an infamous crime or of a misdemeanor followed by a sentence which prevents his discharge of his official duties.36 In case of such a conviction, an officer of the United States or of a State where the Constitution provides no other method of removal, may, in accordance with the analogies of the common law, undoubtedly be removed by impeachment.37 38 At least where there is another method of removal, an officer should not be impeached for physical or mental incapacity.3 In Tyler's administration, John Quincy Adams in a report to the House of Representatives expressed the opinion that a President might be impeached for an abuse of the veto power.39 In the Virginia Convention Madison said that if the President "got up" a treaty" with surprise" he would be impeached; 40 and that "incapacity, negligence or perfidy of the Chief Magistrate". should be a ground for impeachment.41 Gouverneur Morris said: "The Executive ought, therefore, to be impeachable for treachery. Corrupting his electors and incapacity were other causes of impeach 35 Supra, note 23; infra, § 95, notes 1 and 2. 36 Infra, § 95. 37 See the argument of Charles A. Wickliffe, manager in Peck's Impeachment Trial, p. 309; Bagg's Case, 11 Coke, 99; Rex v. Richardson, 1 Burr, 517, 538; Commonwealth v. Jones, 1 Bush (Ky.), 725; State v. Humphries, 74 Texas, 466; Andrews v. King, 77 Maine, 224, 232. 38 See, however, the language of Gouverneur Morris quoted infra over note 42. In the case of Ward Hunt, Justice of the Supreme Court, who was incapacitated by illness, and refused to resign unless pensioned, Congress passed a bill giving him a pension upon his resignation. A similar statute was passed in the case of a District Judge of the United States. The brief of Ex-Judge William Lawrence, adopted by the managers of Johnson's impeachment trial, says: that the power of impeachment "may reach officers who, from incapacity or other cause, are absolutely unfit for the performance of their official duties, when no other remedy exists and the public interest imperatively demands it." (Johnson's Impeachment Trial, vol. i, p. 147.) See also the proceedings on Pickering's impeachment trial. 39 Report on the Veto of the Tariff Bill, House Reports, 27th Congress, 2d Session, vol. v, No. 998; Brief of William Lawrence in Johnson's Impeachment Trial, vol. i, p. 140. See, however, the minority report of James F. Wilson and Frederick G. Woodbridge upon the first proposition to impeach Andrew Johnson, House Reports, 40th Congress, 1st Session, No. 7, p. 94. 40 Elliott's Debates, 2d ed., vol. iii, pp. 500, 516. 341. 41 Madison Papers, ibid., vol. v, p. ment. For the latter he should be punished not as a man but as an officer, and punished only by degradation from office." 42 In the first debate in Congress on the right of removal from office, Madison said that "the wanton removal of meritorious officers would subject him to impeachment and removal from office."+3 If this construction had been adopted and enforced, few Presidents since John Quincy Adams would have escaped. § 94. Convictions upon Impeachments in the United States. Convictions on impeachments and removals in some cases with disqualification have occurred in the United States as follows: Pickering, a district judge of the United States, for ordering a ship with her contents, which had been seized for an alleged violation of the custom laws, to be delivered to the claimant without requiring a bond as provided by law; for refusing to hear any testimony offered by the United States in a proceeding to condemn the same vessel; for refusing to allow an appeal by the United States in the case; and for drunkenness and profanity on the bench.1 Humphreys, a district judge of the United States, for a public speech inciting revolt and rebellion against the Constitution and government of the United States and a public declaration therein of the right of secession; for supporting, advocating and agreeing to the Ordinance of Secession; for organizing armed rebellion against the United States; for joining in a conspiracy to oppose by force the authority of the United States; for refusal to hold court; for unlawful acting as judge of the Confederate district court, and in such capacity making unlawful arrests and imprisonments.2 Addison, a judge of a court of common pleas in Pennsylvania, for charging a petit jury in language disrespectful to an associate lay judge, and for refusing to permit his associate to charge a grand jury.3 Sheriff Greenleaf, in Massachusetts, for 42 Madison Papers, vol. v, p. 343. 48 Elliott's Debates, 2d ed., vol. iv, p. 380. See also opinion of Senator Howe in Johnson's Impeachment Trial, vol. iii, p. 71. 44 See the minority report of James F. Wilson and Frederick E. Woodbridge upon the first proposition to impeach Andrew Johnson (House Reports, 40th § 94. 1 Pickering's 2 Humphreys' Impeachment Trial supra, § 90. 3 Addison's Impeachment Trial infra, Appendix to this volume. the embezzlement of public money; for exhibiting false accounts and returns to the State treasurer; and for procuring an execution and a distress warrant for money which he had already collected. Hunt, a justice of the peace in the same State, for making false entries in his records of appearances and proceeding by par ties who had not appeared.5 Vinal, another justice of the peace there, for bribery and extortion. Prescott, a Massachusetts pro Richard S. Thomas, a cir bate judge, for collecting illegal fees. cuit judge in Missouri, for unlawfully removing the clerk of his court and appointing his own son in his place; for signing as surety a bond upon an appeal by his son to his own court and then indefinitely postponing the trial; and for conspiring with a lawyer to release on bail, without taking testimony, the latter's client who was charged with murder. Elliott, judge of the City Court of Lafayette County in Louisiana, for neglect of duty in failing to properly keep the records of naturalizations and permitting his clerk to issue false certificates.9 Wickliffe, auditor of the public accounts of Louisiana, for issuing a warrant for the payment of a claim which he knew to be illegal.10 Bates, treasurer of California, for misuse and waste of the State funds. Hardy, a district judge in California, for public language when off the bench expressing his sympathy with the Southern Confederacy.11 Robinson, secretary of State, and George S. Hillyer, auditor, of Kansas, for selling bonds of the State at a less price than was authorized by law and at less than they might have obtained 12 for the same. Frazier, judge of a Criminal Court in Tennessee, for releasing by habeas corpus a member of the State house of representatives from the custody of the sergeant-at-arms.13 Governor Holden of North Carolina, for refusing to obey a writ of habeas corpus, in imitation 4 Appendix to Prescott's Impeachment Trial, pp. 212-214; see Appendix to this volume. 5 Ibid., pp. 214-216. See Appendix. Ibid., pp. 216-217. See Appendix. 7 Prescott's Impeachment Trial, infra, Appendix. 8 See Jackson's Impeachment Trial, pp. 336-337; Appendix, infra. Elliott's Impeachment Trial, Appendix; infra. 10 Wickliffe's Impeachment Trial, infra, Appendix. 11 Bates' Impeachment Trial, infra, Appendix. Hardy's Impeachment Trial, infra, Appendix. 12 Impeachment Trials of John W. Robinson and George S. Hillyer. See Appendix. 18 Frazier's Impeachment Trial, infra, Appendix. of President Lincoln, without legislative authority. Governor Butler of Nebraska for embezzling the public funds. Lieutenantgovernor Davis of Mississippi, for selling a pardon to a convicted murderer during the absence of the governor from the State. Judge Osborne of Georgia for falsifying returns of an election to Congress. Goldsmith, comptroller-general of Georgia, for the illegal collection and appropriation to his own use of insurance fees and taxes and making false reports concerning his collections.14 Judge Barnard of New York for unjust partiality to suitors to whom he gave illegal orders, and for language on the bench which brought the administration of justice into disrepute.15 Seeger, treasurer of Minnesota, for improper investments of the State funds and concealment of the delinquency of his predecessor. Judge Cox of Minnesota for drunkenness on the bench and when in the discharge of official functions off the bench. Laverty, keeper of the New Jersey state prison, for licentious intercourse with female convicts; and Connelly, a New Jersey justice of the peace, for an assault upon a lawyer in his office.16 § 95. Causes for which Public Officers may be Removed. The following decisions as to the causes for which public officers who do not hold office at the pleasure of the appointing power may be removed, offer analogies that may be useful. A public officer cannot be removed for a crime which is not a violation of his official duty until after conviction by a court having jurisdiction of such crime. After such a conviction he may be removed if the crime is infamous, or even if it is a mere misdemeanor, when he is sentenced to a term of imprisonment which will prevent him from discharging his official duties.2 14 See their respective trials in the Appendix, infra. 15 Barnard's Impeachment Trial; supra, § 93, notes 25, 26; infra, Appendix. 16 See their respective trials in the Appendix, infra. § 95. 1 Bagg's Case, 11 Coke, 99; Rex v. Richardson, 1 Burr, 517, 538; Commonwealth v. Jones, 10 Bush (Ky.), 725; State v. Humphries, 74 Texas, 466; Andrews v. King, 77 Maine, 224, 232. But see Oliver v. City Council, 69 Ga., 165; People v. Board of Police, 11 Hun. (N.Y.), 403; People v. French, 32 Hun. (N.Y.), 112; s. c. 60 How. Pr. (N.Y.), 377; and other cases cited in American and English Encyclopædia of Law, vol. xix, p. 562, in Note 1. 2 Ibid. But see Commonwealth v. Shaver, 3 Watts & S. (Pa.), 338. |