Departments upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment."4 "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."5 "The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury." 8 Similar provisions are found in most of the State constitutions, although some provide for the impeachment of former officers who are out of office; others, that the effect of an impeachment shall be to suspend from office the person affected; others prescribe the practice with more or less detail, and in New York there is a special Court for the Trial of Impeachments, which consists of the senate with its president and the judges of the Court of Appeals.9 § 87. Origin of Impeachments. Impeachment trials are a survival from the earliest times of jurisprudence when all cases were tried before an assembly of the citizens of the tribe or State. Later, ordinary cases, both civil and criminal, were assigned to courts created for that purpose, but matters of great public importance were still reserved for the decision of the whole body of citizens, or subsequently of the council of elders, heads of families, or holders of fiefs. This was due partly because in cases of this character there was danger of undue influence in the decisions by the ordinary courts and of resistance to the execution of their decrees, and partly because they affected public as well as private interests. In Athens, all citizens voted on the ostracism of a man, which was his exile. In Rome and in most other ancient cities, those charged with capital 4 Article II, Section 2. 5 Article II, Section 4. 6 Article III, Section 2. 7 New Jersey Constitution of 1844, Art. V, Sec. 11. See Vermont Constitution of 1786, Art. XXI; and infra. 8 North Dakota, Art. XIV, Sec. 190; South Dakota, Art. XVI, Sec. 5; Rhode Island, Art. XI, Sec. 1; South Carolina, Art. VII, Sec. 1; Texas, Art. XV, Sec. 5. 9 Art. VI, Sec. 1. For provisions concerning impeachments in the constitutions of other countries, see supra, § 77, note. 3 offenses had the right to a trial by the people. The great councils of the Germans, in the time of Tacitus, tried capital cases by a proceeding analogous to an appeal before the English House of Lords. Such appeals by individuals seem to have been common under the first Norman kings. In the reign of Richard II, the Lord Chancellor was thus tried on the accusation of a fishmonger for taking bribes in the form of money, cloth and fish. These were abolished by the act of 1 Henry IV, c. 14.4 14.4 Meanwhile, impeachments instituted by the Commons and tried before the Lords had gradually come into use. The first instances occurred between the beginning of the reign of Edward I, and the fiftieth year of the reign of Edward III; but the practice was then irregular and is obscure.5 They seem more like bills of attainder than trials of impeachments. The first known case of a trial by the Lords upon a definite accusation by the Commons was in the Good Parliament, under Edward III, in 1356. Lords Latimer and Neville with several of their accomplices were then impeached and tried for frauds upon the revenue. Under Richard II there were a number of impeachments, of which the most important was that of Michael de la Pole, the Chancellor. Under Henry VI, we find two impeachments, that of the Duke of Suffolk for treason in 1451; and that of Lord Stanley for a similar offense in 1459.9 The next was that of Sir Giles Mompesson in 1621.10 Since then there have been fifty-four impeachments in England, which ended with the acquittal of Lord 8 § 87. 1 Montesquieu, Livre XI, ch. vi; 4 Blackstone's Commentaries, 261. 2 Tacitus de Moribus Germanis, 12: "Licet apud consilium accusare, quoque et discrimen capitis intendere." 3 Rot. Parl., III, p. 168. Clarendon's Case, 6 Howell's State Trials, 291, 311, 318; Hale's Pleas of the Crown, vol. ii, ch. xx, p. 150. 5 Stephens, History of the Criminal Law, vol. i, pp. 145-155; Taylor's Origin and Growth of the English Constitution, pp. 441, 442. 6 Rot. Parl., II, pp. 323-326, 328, 329; Rymer, p. 322; Hallam's Middle Ages, vol. iii, p. 56; Stubbs' Constitu tional History, vol. ii, ch. xvi; Taylor's Origin and Growth of the English Constitution, p. 441. 7 1 State Trials, 89; Rot. Parl., III, pp. 216-219. For other Impeachments in that reign, see Rot. Parl., III, pp. 10-12, 153, 156; Stephens, History of the Criminal Law, vol. i, pp. 145155; Taylor's Origin and Growth of the English Constitution, p. 442. 8 1 State Trials, 271. 9 Rot. Parl., V, p. 369; Taylor's Origin and Growth of the English Constitution, p. 442. 10 2 State Trials, 1119. Melville in 1805.11 The reports of the trials upon them abound with matter of interest to the lovers of literature as well as students of jurisprudence and history. They describe the degradation of Bacon. They contain the pathos of Strafford, and the splendid imagery of Burke and Sheridan which adorned the trial of Warren Hastings. § 88. Proceedings in the Convention as to Impeachment. In the first drafts of the Federal Constitution which were submitted to the Convention, impeachments were to be made by the lower house of Congress and tried by the "national judiciary,” or "Federal judiciary."1 Alexander Hamilton proposed "all impeachments to be tried by a court to consist of the chief-justice, or judge of the supreme court of law of each State, provided such judge shall hold his place during good behavior, and have a permanent salary."2 Like the rest of his scheme this received little favor. And in the report of the Committee on Detail the Supreme Court was given jurisdiction over "the trial of impeachments of officers of the United States." 3 Gerry then moved that that committee be instructed to report "a mode of trying the supreme judges in cases of impeachment."4 Such a report was made, recommending that they be tried by the Senate.5 Gouverneur Morris was the first to point out the danger of the trial of the President by the Supreme Court. The subject was again referred, with others which had not been finally determined, to a committee of one member from each State, which reported this part of the Constitution in substantially the form that it retained.8 There were at first some objections to any provision for the removal of the President by impeachment on the ground that this den, it is the more necessary to extend the power of impeachments. He moved to add, after bribery,' 'or maladministration.' Mr. Gerry seconded him. Mr. Madison. So vague a term will be equivalent to a tenure during pleasure of the Senate. Mr. Gouverneur Morris. It will not be put in force, and can do no harm. An election of every four years will prevent maladministration. Col. Mason, withdrew 'maladministration,' and substituted 'other high crimes and misdemeanors against the State.' On the question, thus altered, New Hampshire, Massachusetts, Connecticut, Maryland, Virginia, North Carolina, South Carolina (in the printed Journal, South Carolina, no), Georgia, ay, 8; New Jersey, Pennsylvania, Delaware, no, 3. Mr. Madison objected to a trial of the President by the Senate, especially as he was to be impeached by the other branch of the legislature; and for any act which might be called a misdemeanor. The President, under these circumstances, was made improperly dependent. He would prefer the Supreme Court for the trial of impeachments; or, rather, a tribunal of which that should form a part. Mr. Gouverneur Morris thought no other tribunal than the Senate could be trusted. The Supreme Court were too few in number, and might be warped or corrupted. He was against a dependence of the executive on the legislature, considering the legislative tyranny the great danger to be apprehended; but there could be no danger that the Senate would say untruly, on their oaths, that the President was guilty of crimes or facts, especially as in four years he can be turned out. Mr. Pinckney disapproved of making the Senate the court of impeachments, as rendering the President too dependent on the legislature. If he opposes a favorite law, the two Houses will combine against him, and under the influence of heat and faction, throw him out of office. Mr. Williamson thought there was more danger of too much lenity, than of too much rigor, towards the President, considering the number of cases in which the Senate was associated with the President. Mr. Sherman regarded the Supreme Court as improper to try the President, because the judges would be appointed by him. On motion by Mr. Madison, to strike out the words, by the Senate,' after the word 'conviction,' Pennsylvania, Virginia, ay, 2; New Hampshire, Massachusetts, Connecticut, New Jersey, Delaware, Maryland, North Carolina, South Carolina, Georgia, no, 9. In the amendment of Col. Mason, just agreed to, the word 'state,' after the words 'misdemeanors' against, was struck out; and the words United States' unanimously inserted, in order to remove ambiguity. On the question to agree to the clause, as amended New Hampshire, Massachusetts, Connecticut, New Jersey, Delaware, Maryland, Virginia, North Carolina, South Carolina, Georgia, ay, 10; Pennsylvania, no, 1. On motion, the following: would render the executive too weak and destroy his independence of the other departments of the government. These objectors were, however, easily convinced of their error, and of the danger of leaving the power of the President uncontrolled, and his conduct free from punishment until the termination of his office.10 Indeed, strong objections were urged against the adoption of the Constitution because there were such difficulties in the way of his conviction on an impeachment."1 A short discussion took place as to what should constitute an impeachable offense. The first definition was "mal-practice or neglect of duty." 12 The report of the Committee on Detail said that the President might be removed on impeachment, and conviction of treason, bribery, or corruption." 13 When the report was discussed Colonel Mason first moved to insert after "bribery," "or maladministration," then substituted "other high crimes and misdemeanors against the State;" and finally "United States " for 'State,” in which form his amendment was adopted.14 A similar provision as to the impeachment of other officers was added.15 The Committee on Style dropped the words "against the United States." Their report in this respect passed without criticism. 66 peachment and conviction, as aforesaid,' was added to the clause on the subject of impeachments." (Elliot's Debates, vol. v, pp. 528, 529.) 9 Gouverneur Morris: "The executive is also to be impeachable. This is a dangerous part of the plan. It will hold him in such dependence, that he will be no check upon the legislature, will not be a firm guardian of the people and of the public interest. He will be the tool of a faction, of some leading demagogue in the legislature. These, then, are the faults of the executive establishment as now proposed. Can no better establishment be devised? If he is to be the guardian of the people, let him be appointed by the people. If he is to be a check on the legislature, let him not be impeachable." (Elliot's De bates, 2d ed., vol. v, p. 335.) "Mr. Pinckney did not see the necessity of impeachments. He was sure they ought not to issue from the legislature, who would in that case hold them as a rod over the executive, and by that means effectually destroy his independence. His revisionary power, in particular, would be rendered altogether insignificant." (Elliot's Debates, 2d ed., vol. v, p. 341.) Rufus King spoke to the same effect (ibid., pp. 341-342), 10 Ibid., 340-343, 361, 362, 366. 11 See Luther Martin's Letter (ibid., vol. i, pp. 379, 380). 12 Elliot's Debates, 2d ed., vol. v, p. 149. 13 Ibid., 14 Ibid., p. 528, quoted supra, note 8. 15 Ibid., p. 529. |