APPENDIX TO VOLUME I.

STATE IMPEACHMENT TRIALS.

THE preceding text contains a history of all impeachment trials before the Senate of the United States.1 All of the important English impeachments, except that of Warren Hastings, may be found in Howell's State Trials. The early ones which are not in that collection are described by Stubbs in his Constitutional History, and a list which is nearly complete may be found in Stephen's History of the Criminal Law. The impeachment trials before the senates of the different States are, however, very little known. Some of them were not reported except in the journals; and the reports of most of the rest are rare and hard to find. The author has found but one library,3 except his own, where any attempt to collect them has been made; and he believes that no complete collection exists at any place. Yet none of them is uninteresting; and they abound with material of great value to the student of the manners and local history of the people of the United States, as well as to those who are interested in constitutional history and law. For this reason, an account of all the writer has been able to examine is here inserted.

COLONIAL IMPEACHMENTS.

The earliest colonial proceeding that bears any analogy to an impeachment was the suspension by the proprietors of North Carolina of Governor Seth Sothell, in a letter dated December 2d, 1689, upon charges by inhabitants of the colonial county of Albemarle which had been approved by the Assembly, who had made him abjure the colony for twelve months:

That he seized two persons coming into Albemarle from Barbadoes, pretending that they were pirates, although they produced "cockets" and clearance of their goods from the governors of Barbadoes and

1 Supra, § 90.

2 Vol. 1, pp. 145-155.

3 The New York State Library at Albany.

Bermudas. That he kept these persons imprisoned without attempting to bring them to trial, and one of them died of ill usage. That he who died left a will naming a Pollock his executor, but Sothell would not let him prove the will nor suffer the court to attest that Pollock had offered to prove it, but took all this man's land and converted it to his own use. That when Pollock asserted his intention to come to England to complain of this injustice, Sothell imprisoned him without any reason. That he withdrew for bribes accusations for felony and treason. That he unlawfully imprisoned one Robert Cannon, besides other charges of unlawfully seizing land and cattle and other unjust actions.

He was ordered to come to England, and if he did not come the proprietors said they would obtain a mandamus from the king, to compel him. To investigate these matters they told their emissary to send them depositions and to see that justice was done to those injured by Sothell.*

The first proceeding that closely resembles an impeachment by a colonial assembly seems to have occurred in Massachusetts in 1706, upon the charge against William Rouse, Samuel Vetch, John Borland, and Roger Lawson, of furnishing military supplies to the Acadians while they were at war with England and the colonies. On June 25th the house sent a message to the council, asking " that such proceedings, examinations, trials and judgments might be had and used, upon and relating to the said persons, as were agreeable to law and justice." The council determined that the proceedings should be taken at the next session by a bill of attainder. At the following session, in August of the same year, at a conference between the two houses, the form of a bill of attainder was determined. A copy of the charges was delivered to the accused, to whom John Phillips and Ebenezer Coffin had been added, and they were successively arraigned and tried before both houses in joint session. A vote of the houses in joint session convicted all, and a joint committee reported on the punishments. A separate act was passed fining each. The fines varied from eleven hundred to sixty pounds. These acts were in the following year annulled by the Queen in council, upon the ground that "the crimes in the said several acts mentioned" were in no wise cognizable before the general assembly, in regard they have no power to proceed against criminals, such proceedings being left to the courts of the law there." The Queen further ordered that the fines should be repaid.5

4 N. C. Colonial Records, vol. i, pp. 359-370.

5 Palfrey, History of New England, 1689-1727, pp. 277-281. See also

Chalmers, Introduction to the History of the Revolt of the Colonies, book vii, ch. iii.

In 1711, the House of Delegates of North Carolina impeached Carey, the Deputy-Governor, for rebellion, and sent him to England for trial for treason, where the proceedings seem to have been dropped."

In 1717, the Assembly of South Carolina impeached Chief-Justice Trot on the charge of having engrossed the whole judicial power, by acting as Judge of the King's bench, the common pleas, and the admiralty." He was found guilty by the council and removed from office.7

In the same colony, in 1727, Chief-Justice Allen was impeached by the house for denying the writ of habeas corpus to a man named Smith, who had been committed for high treason, pending a revolt. No trial seems to have ever taken place.

In 1774, the Massachusetts House of Representatives impeached before the council Chief-Justice Peter Oliver, for accepting a salary from the Crown out of the revenue duties, instead of depending upon the General Court for his compensation, as had been the previous law. The proceedings are thus described by John Adams with his characteristic egotism:

“The public had long been alarmed with rumors and predictions that the King, that is the ministry, would take into their own hands the payment of the salaries of the judges of the supreme court. The people would not believe it; the most thinking men dreaded it. They said: With an executive authority in a governor possessed of an absolute negative on all the acts of the legislature, and with judges dependent only on the Crown for salaries as well as their commissions, what protection have we? We may as well abolish all limitations and resign our lives and liberties at once to the will of a prime minister at St. James'. . . . The dispatches at length arrived, and expectation was raised to its highest pitch of exultation and triumph on one side, and of grief, terror, degradation, and despondency on the other. The legislature assembled, and the governor communicated to the two Houses His Majesty's commands.

"It happened that I was invited to dine that day with Samuel Winthrop, an excellent character and a predecessor in the respectable office you now hold in the supreme court. Arrived at his house in New Boston, I found it full of counselors and representatives and clergy.... All expressed their detestation and horror of the insidious ministerial plot, but all agreed that it was irremediable. There was no means or mode of opposing or resisting it.

"Indignation and despair, too, boiled in my breast as ardently as in any of them, though as the company were so much superior to me in age 6 Chalmers, Introduction to the History of the Revolt of the Colonies, book vii, ch. xi.

7 Ibid., book vii, ch. xi.

8 Ibid., book vii, ch. xi.

6

6

and station I had not said anything; but Dr. Winthrop, the professor then of the council, observing my silence and perhaps my countenance, said: 'Mr. Adams, what is your opinion? Can you think of any way of escaping this snare?' My answer was, 'No, sir; I am as much at a loss as any of the company. I agree with all the gentlemen that petitions and remonstrances to King or Parliament will be ineffectual. Nothing but force will succeed, but I would try one project before I had recourse to the last reason and fitness of things.' The company cried out almost or quite together, 'What project is that? What would you do?' Answer, I would impeach the judges.' Impeach the judges! How? Where? Who can impeach them?' Answer, The house of representatives.' The house of representatives! Before whom? Before the House of Lords in England?' Answer, No, surely; you might as well impeach them before Lord North alone.' 'Where then?' Answer, 'Before the governor and council.' Is there any precedent for that?' Answer, If there is not, it is now high time that a precedent should be set.' The governor and council will not receive the impeachment.' Answer, I know that very well, but the record of it will stand upon the journals, be published in pamphlets and newspapers, and perhaps make the judges repent of their salaries and decline them; perhaps make it too troublesome to hold them.' 'What right had we to impeach anybody?' Answer, 'Our house of representatives have the same right to impeach as the House of Commons has in England, and our governor and council have the same right and duty to receive and hear impeachment as the King and House of Lords have in Parliament. If the governor and council would not do their duty, that would not be the fault of the people; the representatives ought nevertheless do theirs.' Some of the company said that the idea was so new to them that they wished I would show them some reasons for my opinion that we had the right. I repeated to them the clause of the charter which I relied on, the constant practice in England, and the necessity of such a power and practice in every free govern

ment.

"The company dispersed and I went home. Dr. Cooper and others were excellent hands to spread a rumor, and before nine o'clock half of the town and most of the members of the general court had in their heads the idea of an impeachment. The next morning early Major Hawley, of Northampton, came to my house under great concern and said he heard that I, yesterday, in a public company suggested a thought of impeaching the judges; that report had got about and had excited some uneasiness, and he desired to know my meaning. I invited him to my house, opened the charter, and requested him to read the paragraphs that I had marked. I then produced to him that volume of Selden's works which contains his treatise on Judicature .and Parliament. Other authorities in law were produced to him, and the State Trials and a profusion of impeachments with which that work abounds. Major Hawley, who was one of the best

men in the province, and one of the ablest lawyers and best speakers in the legislature, was struck with surprise. He said: 'I know not what to

...

think. This is, in a manner all new to me. I must think of it.' . . "Major Hawley, always conscientious, always deliberate, always cautious, had not slept soundly. What were his dreams about impeachment,

I know not. But this I know he drove away to Cambridge to consult Judge Trowbridge, and appealed to his conscience. The charter was called for; Selden and the state trials were quoted, Trowbridge said to him what I had said before, that the power of impeachment was essential to a free government; that the charter had given it to our house of representatives as clearly as the constitution in the common law or immemorial usage had given it to the House of Commons in England. This was all he could say, although he lamented the occasion of it.

"Major Hawley returned full in the faith; an impeachment was voted; a committee was appointed to prepare articles. . . .

"The articles were reported to the house, discussed, accepted, the impeachment voted and sent up in form to the governor and council; rejected," that is, never tried, " of course, as everybody knew beforehand that it would be; but it remained on the journals of the house, was printed in the newspapers, and went abroad into the world. And what were the consequences? Chief-Justice Oliver and his superior court, your supreme judicial court, commenced their regular circuit. The chief-justice opened his court as usual. Grand jurors and petit jurors refused to take their oaths. They never could, as I believe, prevail on one juror to take the oath. I attended at the bar in two counties, and I heard grand jurors and petit jurors say to Chief-Justice Oliver to his face, 'The chief-justice of this court stands impeached by the representatives of the people of high crimes and misdemeanors and of a conspiracy against the charter privileges of the people; I cannot serve as a juror or take the oath.' The cool, calm, sedate intrepidity with which these honest freeholders went through this fiery trial filled my eyes and my heart.

"In one word, the royal government was from that moment laid prostrate in the dust, and has never since revived in substance, though a dark shadow of the hobgoblin haunts me at times to this day."

MAINE.

In the State of Maine no impeachments have been had. The annual election of the governor and other State officers has made it easier to punish their misconduct by action at the polls; while the provision for the removal of civil officers by the governor upon an

9 John Adams' Works, vol. ix, pp. 236-241. See also Hutchinson, Life of Thomas Hutchinson, pp. 136-141; and Colonial Records, House Journal for

1773-1774, pp. 86-88, 94, 113, 117, 118, 134-135, 146, 147, 167, 182, 183, 205, 232-236, 241.