Impeachment of the Federal Judiciary

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The Impeachment of the Federal JudiciaryAuthor(s): Wrisley BrownReviewed work(s):Source: Harvard Law Review, Vol. 26, No. 8 (Jun., 1913), pp. 684-706Published by: The Harvard Law Review AssociationStable URL: http://www.jstor.org/stable/1326364 .

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684 HARVARD LAW REVIEW.

THE IMPEACHMENT OF THE FEDERALJUDICIARY. *

THE principleswhich govern impeachment n the UnitedStates have long been clouded in an atmosphereof mystery.This unsettled condition of the law has been due to a paucity ofprecedentresulting from the infrequencywith which the remedyhas been invoked, and to the anomalous scheme of trial wherebythe Senate pronounces its findings of fact and conclusionsof lawthroughthe same vote, thus making it impossibleprecisely to de-termine the moving consideration in the judgment of any givenissue.It has been the generalnotion that impeachment is an enginetoo ponderousin action to be of practical value in the economyof government,and this notion has given rise to an unwarranteddread of starting its machinery in motion. But I think that theinertia of the impeachingpower in this country may be largelyattributable to the well-defined limitations which have been fixedupon the tenure of all civil officersof the United States, save themembersof the judiciary,who hold their officesduring good be-havior. In most cases of officialdelinquency t has been consideredadvisable to allow the tenureof executiveofficers o become deter-minedby expirationof time or throughdismissalby the appointivepower, ratherthan to resort to the more drasticprocessof impeach-ment. Moreover, the judges, with few exceptions, have so de-meaned themselves in the performanceof their functions as tocommand the unqualified respect and confidenceof the people.Thus there has been but little demandfor the exerciseof the powerof impeachmentand but little occasionfor the study of its under-lying principles.

* The author of this monograph, Mr. Wrisley Brown, Special Assistant to theAttorney General, conducted the original investigation which resulted in the im-peachment of Judge Robert W. Archbald of the United States Commerce Court.Mr. Brown was also designated by resolution of the Managers on the part of theHouse of Representatives to assist in the trial of the case before the Senate. - ED.


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THE IMPEACHMENT OF THE FEDERAL JUDICIARY. 685

THE LEX PARLIAMENTARIAF ENGLAND.The institution of impeachment is essentially a growth deeprooted in the ashes of the past. In commonwith all our agenciesof governmentit bears the inevitable impressof tradition. It isan extraordinaryremedyborn of the parliamentaryusage of Eng-land, and, without sacrificing law to history, we must trace thecourseof its generaldevelopmentin orderclearly o comprehendtsreason and philosophy.The criminal jurisdiction of Parliament had its origin in thegeneral judicial power of the Aula Regia, which was establishedby William the Conqueror. This tribunalwas originallycomposedof the king's officersof state, including the barons of Parliamentand justiciars learned in the law. During early Norman timesthis great tribunal administered the universal justice of the realm.But as the affairsof governmentand the transactions of men be-came more diverse and intricate the impracticabilityof so multi-farious a jurisdictionbecame sensible. In the reign of Edwardthe First began the disintegrationof this catholic organization,which has been more generallyknown as the Curia Regis. TheHigh Courtof Chancery,the Courtof the King's Bench, the Courtof the Exchequer,and the Courtof CommonPleas, becameseparateand distinct judicial bodies. Although jurisdictionover criminalcases generally was vested in the Court of the King's Bench, thebarons reserved to Parliament the right of finally reviewing thejudgmentsof all the other courts of judicature. Thus the Parlia-ment remainedthe high court of the realm in fact as well as inname.

Upon the separationof Parliamentinto the House of Lords andthe House of Commonsresiduary jurisdictionto review the deci-sions of other courts survivedin the House of Lords, togetherwiththe sole power of adjudicating impeachmentsprosecuted by theCommons.' The practice of impeachment, in various irregular

1 In Kilbourn v.Thompson, I03 U. S. i68, I83-I84 (i88o), referringto the power ofthe House of Commons to punish for contempts, Justice Miller said: "This goes backto the period when the bishops, the lords, and the knights and burgesses met in onebody, and were, when so assembled, called the High Court of Parliament. They werenot only called so, but the assembled Parliament exercised the highest functions of acourt of judicature, representing in that respect the judicial authority of the king in


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686 HARVARD LAW REVIEW.forms,began duringthe latter partof the reignof Edwardthe Third,but it was not until the passageof the famousstatute of i Henry IV,C. 14, that prosecutions of this character became governed bydefinite rulesof procedure.2All the subjects of England were amenable to impeachment inthe Parliament, irrespective of whether or not they held publicoffice. Peers were impeachablefor crime of any grade, but, whileit is difficult to understand the reason for the distinction, com-moners could be impeached only for misdemeanorsor offensesnotpunishable by death.3 Upon conviction, the House of Lordsexercised authority to impose any penalty which it consideredappropriate o the offense. During the primitive stages of the law,passion oftentimes prevailed over judgment in these proceedings,especially with respect to impeachmentsfor treason against thecrown n times of revolutionary tress,andmany shockingatrocitieswere committedunder the guise of parliamentary ustice.In theory, the process of impeachment was usually directedagainst offenses of peculiar injury to the state. The ordinarycourts were clothed with jurisdictionof sufficientlatitude to tryand punish all offenders for violation of the definitive laws, butsuch courts couldnot take cognizanceof many offensesof a politi-cal nature, such as the officialmisconductof publicofficersof rank.It was consideredappropriate hat high offendersagainst the stateandmen of great powerand influence should be triedby the Lords,upon the accusation of the Commons,who composed the grandinquest of the nation. Thus the abuse of officialtrust in its manyand varied ramificationswas the cardinal vice which formed thehis Court of Parliament. While this body enacted laws, it also rendered judgments inmatters of private right, which, when approved by the king, were recognized as valid.Upon the separation of the Lords and Commons into two separate bodies, holdingtheir sessions in different chambers, and hence called the House of Lords and the Houseof Commons, the judicial function of reviewing by appeal the decisions of the courtsof Westminster Hall passed to the House of Lords, where it has been exercised withoutdispute ever since. To the Commons was left the power of impeachment, and, perhaps,others of a judicial character, and jointly they exercised, until a very recent period,the power of passing bills of attainder for treason and other high crimes which are intheir nature punishment for crime declared judicially by the High Court of Parliamentof the Kingdom of England."

2 Stephen, History of the Criminal Law of England, I56; i Anson, Law and Cus-tom of the Constitution, 35I.8 Wooddesson's Lectures on the Law of England, Lecture XL, 358.


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THE IMPEACHMENT OF THE FEDERAL JUDICIARY. 687pretext, if not the motive, of most of the well-consideredim-peachmenttrials.Under the lex parliatmentariahe commissionof crimein contra-vention of the constituted laws, either written or unwritten, wasnot essentialto impeachability.4And, in the very natureof things,it was imperative that this should be the rule and practice of theHigh Court of Parliament. The internalevils whichundermine hepolity of a state are too insidious to predetermine; the nefariousworkingsof political craft are too elusive to classify in advanceof their overt manifestation. Indeed, the wisdom of the agesmultiplied by eternity would not suffice to devise a systemof positive laws that would adequately anticipate the ingenuitiesof selfish ambition and the machinations of avarice and greedand graft in the administration of the affairs of government.Impeachmentwas, therefore,an effective remedy which, togetherwith penal acts against particularoffenders,was relied upon bythe English people to protect the kingdom against the infidelityand accroachmentsof its ministers through the recurringvicissi-tudes of turbulent centuries. And during the memorable epochpreluding he dawnof American ndependence his especialmethodof prosecution, though seldom put into application, was still inthe flower of its usefulness.

PROVISIONS OF THE FEDERAL CONSTITUTION RELATING TOIMPEACHMENT.

When the constitutional convention of the American coloniesassembledto formulate the organiclaw of the new republic, im-4 "Such kind of misdeeds, however, as peculiarly injure the commonwealth by the

abuse of high offices of trust, are the most proper, and have been the most usualgrounds for this kind of prosecution. Thus, if a lord chancellor be guilty of bribery,or of acting grossly contrary to the duty of his office, if the judges mislead their sov-ereign by unconstitutional opinions, if any other magistrate attempt to subvert thefundamental laws, or introduce arbitrary power, these have been deemed cases adaptedto parliamentary inquiry and decision. So, where a lord chancellor has been thoughtto have put the seal to an ignominious treaty, a lord admiral to neglect the safeguardof the sea, an ambassador to betray his trust, a privy counsellor to propound or sup-port pernicious and dishonourable measures, or a confidential adviser of his sovereignto obtain exorbitant grants or incompatible employments, these imputations haveproperly occasioned impeachments; because it is apparent how little the Qrdinarytribunals are calculated to take cognisance of such offences, or to investigate and re-


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688 HARVARD LAW REVIEW.peachment was an institution whichhad been tried and seasoned inthe ebb and flow of time. The great collection of harmonizedpolitical principles born of the deliberations of that conventionwas a mosaic of compromises. It contained radical departuresfrom the schemeof government prevailingin the mother country,but its creativeexperimentswere few. Someof its provisionsper-tinent to impeachmentwere declaratory,or adaptive, of existinglaw. Others expressed genuine political innovation which hasbeen widelymisunderstood. I proceedto groupand considertheseprovisions n their logical sequenceand proportion.Section 2 of Article I providesthat:

"The House of Representativeshall choose heirspeakerand otherofficers;and shall havethe solepowerof impeachment."Section3 of Article I providesthat:"The Senate shall have the sole powerto try all impeachments.

Whensitting for that purpose, hey shall be on oath or affirmation.When he President f the UnitedStates s tried,the ChiefJusticeshallpreside:Andno personshall be convictedwithoutthe concurrenceftwo thirdsof the members resent."This divisionof authoritywas fashionedafter the English prac-

tice. It requires hat the proceeding hall be institutedby the directrepresentativesof the people, and decision of the cause shall bemade by the senators representingthe sovereignty of the states.The judgmentof the Senateis final,but it can only take cognizanceof offenseswhich are presented by the House of Representatives.The provisionthat the Chief Justice shall presideover the trial ofthe President on an impeachment is a device for avoiding theprejudicialeffect of a conflict of interest on the part of the Vice-President,or Presidentprotempore f the Senate. It is exceedinglydoubtful whether the Chief Justice is entitled to cast a decidingvote when so presiding. The purpose of the arrangementwouldseem to negative the existenceof such a right.The vote of the majoritywas sufficientto convict on an impeach-formthe generalpolityof the state." Wooddesson's ectureson theLaw of England,LectureXL, 358-359.The Englishimpeachmentcases are well collected in 4 Hatsell's PrecedentsofProceedingsn the Houseof Commons,56 et seq.


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THE IMPEACHMENT OF THE FEDERAL JUDICIARY. 689ment in the House of Lords. But, although ours is essentially agovernment by majorities,it was thought wise to break the forceof faction in the exercise of the impeaching power. Hence it wasprovided that a concurrenceof at least two-thirds of the senatorspresent should be requisiteto conviction. This provisionimposesa heavy burden upon the prosecution of an impeachment,butexperiencehas vindicatedit as a wise restraint in times of popularexcitement and tense partisanstrife.Section4 of Article II providesthat:

"The President,Vice-President nd all civil officersof the UnitedStates,shallbe removedromofficeonimpeachmentor,andconvictionof, treason,bribery,or otherhighcrimesandmisdemeanors."This section has been the subject of much controversy. Theframers of the Constitution, guided by memories of the oppres-sionspracticedin the past and informedby a strange prescienceofthe exigencies of the future, limited the application of impeach-ments to civil officersof the United States. It needs but little re-flection to bringone to a realizationof the wisdom of this limitation.Provision was made in section 5 of Article I for the expulsionofmembers of the Senate and House of Representativesby a voteof two-thirds of their colleagues presentin these respectivebodies.By section 8 of Article I the Congresswas grantedpowerto makerules for the government and regulation of the land and naval

forces, and in pursuancethereof statutes have been enacted pro-viding for the punishment and dismissal of officersof the armyand navy upon the sentence of courts-martial. But the punish-ment of private citizens for violation of the penal laws was con-fided wholly to the courts of judicature.It has been earnestly contendedby a highlyrespectedschool oflegal thought that only indictable offenses are within the contem-plation of this provisionfor impeachment.5 Again, it has been as-sertedby eminentlawyersin the conduct of various impeachmenttrials that, while indictabilitymay not be the true criterionof im-peachability, mpeachmentunder ourConstitutionpresupposesthecommissionof an offensein contraventionof statute or against the

5 Probably the best statement of this doctrine is contained in i5 Am. L. Reg. 257.See also minority report of House Judiciary Committee, on the first attempt to im-peach President Johnson. (House Report No. 7, 40th Cong., ist Ses., p. io5.)


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69o HARVARD LAW REVIEW.precepts of the common aw.6 Neither of these doctrines is tenableupon principleor upon authority.The phrase "treason, bribery, or other high crimes and mis-demeanors"was taken bodily from the nomenclatureof the lexparliamentaria of England,whereit had acquireda well understoodandgenerallyaccepted meaning. It is, then, in the nature of a termof art, and by all the recognizedcanons of construction we mustlook to its sourceforlight in its interpretation.7 By the immemorialusage of Parliamentmany offenses were impeachablewhich werenot indictable or punishable as crimes at common law. Surelythe fathers would not have adopted such a latitudinarianphrasehad they intendedto narrow ts purviewand the accustomedrangeof its application. With the exceptionof collateralreference o thecrimeof treason,the Constitutionenumerates,but doesnot define,impeachableoffenses. It doesnot descend to particulars. The re-moval clause was madedesignedlyindefinite,and it must needs beconstruedas indefinite f it is to serve the purposeof its being.8 Bysection 3 ofArticleIII the offenseof treasonwasmodifiedhbypecificdefinitionand its incidentsweremateriallyrestricted., The offenseof briberyhad substantially the same characteristics n both thecommonand the parliamentary aw of England, so that it is notdifficult to fasten upon the precisesense in which it is here used.It will be noted that these are offenses primarilyand peculiarlyagainst the state, as contradistinguished rom offensesagainst theindividual. The phrase "high crimesand misdemeanors"was anexpressionof denotationwhich had long been a part of the termi-

I This theory is well presented in i6 Am. L. Rev. 798.7 See United States v. Jones, 3 Wash. C. C. R. 209, 2I5 (i8&3); Ex parte Hall, i

Pick. (Mass.) 26i, 262 (i822).8 In the constitutional convention the word "maladministration" was proposed by

Colonel Mason, but it was objected to by Mr. Madison as too vague, and the words"high crimes and misdemeanors" were inserted instead. (See 3 Madison's StatePapers, p. I528.) However, on June I7, I789, when speaking in the House ofRepresentatives with respect to the propriety of giving to the President the rightto remove public officers, Mr. Madison said: "The danger., then, consists merelyin this: The President can displace from office a man whose merits require thathe should be continued in it. What will be the motives which the Presidentcan feel for such abuse of his power and the restraints that operate to prevent it?In the first place, he will be impeachable by this House before the Senate for suchan act of maladministration; for I contend that the wanton removal of meritoriousofficers would subject him to impeachment and removal from his own high trust."i Debates and Proceedings of Congress, 497.


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THE IMPEACHMENT OF THE FEDERAL JUDICIARY. 69inology of the lex parlicmentaria, but it was wholly unknownto themunicipal law.Y It is not susceptible of precise definition. Re-duced to its lowest terms, it must still be a generalization asbroad as the mischief against which the process of impeach-ment guards. Therefore, its scope may best be illustrated byanalogies.Fraud is a term which has a well-understoodsignification inequity jurisprudence. It is characterizedby an adaptableelasticitywhich reaches the multitudinous and diverse manifestations ofchicanery that the law is unable to define adequately. Certaingeneralprinciplescontrol, but each case must stand upon its ownbottom. The application of these principles to single instancesmust, to a large extent, be determined by the wise discretionand trained,conscience of the chancellor. So must the discre-tion and conscience of the Senate determine the issues of animpeachment.

Again, the Articles of War, which have been given the vitalityof law in the army and the navy by virtue of statutory adoption,provide that conductunbecomingan officer and a gentlemanshallconstitute ground for dismissal from the service.1 It would beobviouslyimpossibleto deviseany set rulesor standardof conductsufficiently comprehensiveto prescribe the constituent elementsof such an offense.The same insurmountabledifficultymust be confrontedin anylegislative attempt to predetermineand define contempts. Suchoffenses are breaches of privilege which usually hinge upon cir-cumstance,and fromtheir very nature they wigl t admit of pre-cise definition. Yet it has been,held by the Supei-ne Court thatthe Houseof Representativesand the Senate areclothed with powerto punishfor contempts in appropriatecases.-"To determinewhether or not an act or a course of conduct is

9 In a note to 4 BL. Comm. 5, Christian says: "The word 'crime' has no technicalmeaning in the law of England. It seems, when it has a reference to positive law,to comprehend those acts which subject the offender to punishment. When thewords 'high crimes and misdemeanors' are used in prosecutions by impeachment,the words 'high crimes' have no definite signification, but are used merely to givegreater solemnity to the charge. When the word 'crime' is used with a reference tomoral law, it implies every deviation from moral rectitude."

10 U. S. Rev. Stat., sec. 1342, art. 6i.11Anderson v. Dunn, 6 Wheat. (U. S.) 204, 230 (1821).


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692 HARVARD LAW REVIEW.sufficient in law to support an impeachment,resort must be hadto the eternal principlesof right, applied to public proprietyandcivic morality. The offense must be prejudicialto the public in-terest and it must flow from a wilful intent or a recklessdisregardof duty to justify the invocationof the remedy. It must act directlyor by reflected influence react upon the welfare of the state. Itmay constitutean intentionalviolationof positive law, orit may bean official derelictionof commission or omission, a seriousbreachof moralobligation,or othergrossimproprietyof personal conductwhich, in its natural consequences,tends to bring an office intocontempt and disrepute.-2While the offense must be committed during incumbency inoffice, it need not necessarilybe committed under color of office.'3An act or a course of misbehavior which rendersscandalousthe

12 "Although an impeachment may involve an inquiry whether a crime against anypositive law has been committed, yet it is not necessarily a trial for crime; nor is thereany necessity, in the case of crimes committed by public officers, for the institution ofany special proceeding for the infliction of the punishment prescribed by the laws, sincethey, like all other persons, are amenable to the ordinary jurisdiction of the courts ofjustice in respect of offences against positive law. The purposes of an impeachmentlie wholly beyond the penalties of the statute or the customary law. The object ofthe proceeding is to ascertain whether cause exists for removing a public officer fromoffice. Such a cause may be found in the fact that, either in the discharge of his office,or aside from its functions, he has violated a law, or committed what is technicallydenominated a crime. But a cause for removal from office may exist where no offenceagainst positive law has been committed, as where the individual has, from immorality,or imbecility, or maladministration, become unfit to exercise the office. The rulesby which an impeachment is to be determined are therefore peculiar, and are not fullyembraced by those principles or provisions of law which courts of ordinary jurisdictionare required to administer." i Curtis, Constitutional History of the United States,48I-482. See also i Tucker on the Constitution, 4I9; Cooley, Principles of Con-stitutional Law, I78; Foster on the Constitution, 58I et seq.; i Story on theConstitution, 5 ed., ?? 796-799; 2 Watson on the Constitution, I034; Pomeroy,Constitutional Law, 9 ed., 6oo et seq.; Cushing's Law and Practice of LegislativeAssemblies, 980 et seq.; Rawle on the Constitution, p. 209 et seq.; I5 Am. & Eng.Encyc. of Law, 2 ed., io66-io68; I5 Am. L. Reg. 64I, 646.

13 "It is, of course, primarily directed against official misconduct. Any gross mal-versation in office, whether or not it is a punishable offense at law, may be made theground of an impeachment. But the power of impeachment is not restricted to politi-cal crimes alone. The Constitution provides that the party convicted upon impeach-ment shall still remain liable to trial and punishment according to law. From this itis to be inferred that the commission of any crime which is of a grave nature, thoughit may have nothing to do with the person's official position, except that it shows acharacter or motives inconsistent with the due administration of his office, would ren-der him liable to impeachment." Black, Constitutional Law, 3 ed., i38.


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THE IMPEACHMENT OF THE FEDERAL JUDICIARY. 693personal life of a public officer shakes the confidence of the peo-ple in his administration of the public affairs, and thus impairshis official usefulness, although it may not directly affect his officialintegrity or otherwise incapacitate him properly to perform hisascribed functions. Such an offense, therefore, may be charac-terized as a high crime or misdemeanor, although it may not fallwithin the prohibitory letter of any penal statute. Furthermore, anact which is not intrinsically wrong may constitute an impeachableoffense solely because it is committed by a public officer. Theofficial station of the offender may also, to some extent, affect theimpeachability of his offense. For example, a judge must be heldto a more strict accountability for his conduct than should be re-quired of a marshal of his court, and this discrimination in officialresponsibility permeates through all the gradations of official rankand authority.

Thus it requires a wide sweep of discretion to deal justly andeffectively with political transgressions, and it well accords with thegenius of American institutions that such discretion should be re-posed in the august body of the Senate.

Section i of Article III provides that:"The judicialpowerof the United States shall be vested in one supreme

court, and in such inferiorcourts as the Congressmay from time to timeordain and establish. The judges, both of the supreme and inferiorcourts, shall hold their officesduring good behavior, and shall, at statedtimes, receive for their services, a compensation which shall not bediminishedduring their continuancein office."

By the plain terms of the first clause of this section the judicialpower of the United States, and all of it, was granted to courts ofjudicature. They were clothed, exclusively, with both civil andcriminal jurisdiction in the adjudication of legal controversies,and, by the application of a familiar maxim, we must conclude thatonly such tribunals as were described were intended to perform thejudicial function.14 This underlying fact is highly important to a

14 In Martin v. Hunter's Lessee, I Wheat. (U. S.) 304, 328, 330 (I8I6), ChiefJustice Marshall, referring to this section, said: " Let this article be carefullyweighed and considered. The language of the article throughout is manifestly de-signed to be mandatory upon the legislature. Its obligatory force is so imperative,that congress could not, without a violation of its duty, have refused to carry itinto operation. The judicial power of the United States shall be vested(not may be


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694 HARVARDLAW REVIEW.correctunderstandingof the springsand sourcesof the impeachingpowerunderour Constitution, and the failure to recognize t hasbred endless error.The second clausecontains an assuranceof stability in the tenureand emolumentof judicial office. This provisionis also a deriva-tive of the English law. In the early times the judges held theiroffices at the pleasure of the king. Such a precarioustitle wasfound to be ill suited to the judiciary,and the Parliament, at arather modern date, divested the crown of its authority in thisrespectand granted the judges a conditionaltenure to have andto hold during good behavior. This contrivancewas intended toprecludethe dismissal of worthy incumbentsof the judicial officewithout cause, and at the same time reserve to the Parliamentthepowerof removingthose who shouldprove to be unfit for judicialofficeby breachof the conditionof their tenure. For a consider-able period of time thereafterimpeachmentwas the only processwhereby to oust judges who ill behaved. Then, during the earlypart of the eighteenth century, Parliamentinitiated the practiceof removing unfit judges from office by simple address, withouttrial, so that at the time of the adoptionof our Constitution bothremedieswere available.The tenure of all civil officersof the United States, with the ex-ception of the judges, may be automatically determinedby theefflux of time, or throughthe action of the electorateor the ap-pointive power. But the exerciseof the impeachingpower is theonly available means, save death or resignation, whereby thetenure of the judges may be terminated.It is an elementaryrule of constructionthat every provisionof awritten instrument,whetherit be a will or a contract or a statuteor a constitution,shouldbe givenfull force and effectif it is possibleso to do.-5 It follows that the provisiongrantingthe judgestenurevested) in one supreme court, and in such inferior courts as congress may, fromtime to time, ordain and establish. ...

"If, then, it is a duty of congress to vest the judicial power of the UnitedStates, it is a duty to vest the whole judicial power. The language, if imperativeas to one part, is imperative as to all."

See also, United States v. Klein, 13 Wall. (U. S.) 128, i47 (i87) ; State v.Sullivan, 50 Fed. 593, 599 (i892); Kentucky & I. Bridge Co. v. Louisville &N. R. Co., 37 Fed. 567, 6I2 (i889).

15 Southerland on Statutory Construction, 284-285, 3I7-32I, 412.


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THE IMPEACHMENT OF THE FEDERAL JUDICIARY. 695to hold during good behaviormust be readin pari materiawith theprovision that they shall be removedfrom officeupon impeachmentfor, and conviction of, treason, bribery,and other high crimes andmisdemeanors. The judicial-tenureclause amplifiesthe removalclause, which proximately.precedes t in the Constitution. Eachborrowscogency and light fromthe other.It was the policy of our organic aw that the judiciary should bereasonably ndependent n the administrationof justice. But it wasintended that this independenceshouldbe an honest independencein the legitimate use of the judicial power. The fathers did notdesire to grant the judges a non-forfeitable ife tenure, therebyplacing the judiciary wholly beyond the sovereign power of thepeople. Such an indefeasible tenure,with irrevocable authority,wouldbe highly incompatiblewith a representative orm of govern-ment. Therefore, following the English custom, it was providedthat the judgesshould hold theirofficesduringgoodbehavior.

This provision s two-edged; it is both protective and admonitive.So long as the behavior of a judge is good, within the meaningof the Constitution,his tenure is impregnable.'6 This behaviorwhich is enjoined by the Constitutionmust be understoodto bea relative behavior, although it is governed by immutable lawsof right and wrong, to which judicial action should conform.The spirit of the decalogue of judicialconduct does not change,but it must be applied to conditions that change with the de-velopment of ourcivilization. Accordingly,the constitutionalpro-visionrelatingto judicial tenure should be construedwith referenceto the public morality of the time being, and its sense may varyand does vary with the varying ethical standards of successivegenerations.Misbehavior s the antithesis of good behavior. Therefore, t isa breachof the conditionsubsequentuponwhichthe judicialtenurerests. When a judge exercises the power and appropriatesthe

16 In the 78th Article of the Federalist, Hamilton alluded to this provision as fol-.lows: "The standard of good behavior for the continuance in office of the judicialmagistracy is certainly one of the most valuable of the modem improvements in thepractice of government. In a monarchy it is an excellent barrier to the despotism ofthe prince; in a republic it is a no less excellent barrierto the encroachments and op-pressions of the representative body. And it is the best expedient which can be devisedin any government to secure a steady, upright, and impartial administration of thelaws."


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696 HARVARD LAW REVIEW.emolumentsof an officewhich he has thus vitiated, he defies thesupreme aw of the land. If he cannotbe ousted until his conductcomes squarely within the teeth of the criminal laws, the con-stitutional provision fixing judicial tenure is little more than anidle play upon words. The proposition implies a monstrousvacuum in the polity of the nation. A right without a remedy isan anomaly which is violently abhorrentto our system of juris-prudence. Judicialofficeis essentially a public trust, and the rightof the people to revoke this trust is fundamental. The processof impeachmentmust be their corresponding emedy."7Section 2 of Article III providesthat:

"The trialof all crimes,except n casesof impeachment,hallbe byjury; and suchtrial shall be held in the State where the said crimesshallhavebeencommitted;but whennot committedwithinany State,the trial shallbe at suchplaceor placesas the Congressmay by lawhavedirected."It has been the contention of learned advocates that this pro-vision presupposesthat impeachableoffensesare offenses againstthe criminal laws But the courts have repeatedly held thatthere is no commonlaw of the United States, and if this conten-tion were sound it would follow that the process of impeachmentcan only lie against acts which have been denounced as crimesbyfederal statute. The fallacy of the position becomes apparent

when we considerthat the statute books were silent with respectto crimes for a considerable ength of time after the organic lawbecame operative,and if statutory enactment were the test theimpeachingpower would have been locked in absolute abeyanceduring that period. Such a result would certainlynot fall within

17 "A civil officer may so behave himself in public as to bring disgrace upon himselfand shame upon his country, and he may continue to do this until his name wouldbecome a national stench, and yet he would not be subject to indictment by any lawof the United States, but he certainly could be impeached. What will those who ad-vocate the doctrine that impeachment will not lie except for an offense punishable bystatute, do with the constitutional provision relative to judges which says, 'Judges,both of the supreme and inferior courts, shall hold their offices during good behavior '?This means that as long as they behave themselves their tenure of office is fixed,and they cannot be disturbed. But suppose they cease to behave themselves? Whenthe Constitution says, 'A judge shall hold his office during good behavior,' it meansthat he shall not hold it when it ceases to be good." 2 Watson on the Constitution,1036. See also Foster on the Constitution, 586; i Tucker on the Constitution, 4I8, 4I9;The Federalist, Art. 79.


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THE IMPEACHMENT OF THlEFEDERAL JUDICIARY. 697the fairintendmentof the Constitution. It seems, rather,that thisprovision servesmore sharplyto differentiatethe offenses to whichimpeachment is appropriate from offenses against the criminallaws.Section 3 of Article I furtherprovidesthat:

"Judgmentn cases df impeachmenthall not extendfurther han toremoval romoffice,and disqualificationo hold and enjoy any officeofhonor, rustorprofitunder he UnitedStates: but thepartyconvictedshallnevertheless e liable and subjectto indictment, rial, judgmentandpunishment, ccordingo law."

This section very materially changed what may be called thedynamicsof impeachment. We have seen that from time imme-morial Parliament has possessed judicial power, and sometimeswieldedit all too freely, to deprivethe subjectsof England of theirproperty,their liberty, and even their lives. But, by plenary grant,the wisdom of our fathers entrusted the judicial power of theUnited States to bodiesjudicial. The basic schemeof coordinationtends strongly to negative the existence of an intent to clothe anessentially politicalbody with an overlappingcriminaljurisdiction.And, when properlyconstrued,the constitutionalprovisionsbear-ing on impeachmentsraiseno conflicting implication.In a true republicno man can be born with a right to publicoffice. Undersuch a system of government,office,whether electiveor appointive, is in its essence a political privilege. The grant ofthis privilegeflows from the political power of the people,and so,ultimately, must it be taken away by the exerciseof the politicalpower residentin the people.Let us mark the contrast by reasoning rom the concrete. Whenthe President nominates a candidate for a federal judgeshipheexercises he political power. Whenthe Senate confirms he nomin-ation it exercises the political power. When the House of Repre-sentatives impeachesa judge whohas thus acquiredhis commissionthe political power is again brought into play. Upon convictionof the impeachment,the respondentis removedfrom office. Per-hapshe may be perpetuallydisqualified o hold any officeof honor,trust, or profit under the United States. But here the provinceofthe political power,operatingthroughthe mediumof impeachment,ceases. Its function has beenperformedand its force is spent. It


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698 HARVARD LAW REVIEW.has workeda deprivationof politicalprivilegeandpolitical capacity,but it has not and could not have taken away a civil right.Divested of his authority for wholly political reasons, the respon-dent is still subjectto condignpunishment n the courtsof ordinaryjurisdictionfor the commissionof crimeagainst the laws of generalapplication. Thus an impeachment n this country, though judicialin externalform and ceremony, s political in spirit. It is directedagainst a political offense. It culminatesin a political judgment.It imposes a political forfeiture. In every sense, save that of ad-ministration, t is a political remedy,for the suppressionof a politi-cal evil, with wholly political consequences.This results in no confusion of the political and the judicialpowers. The line of demarcation is clearly discernible, eventhroughthe labyrinth of formal non-essentialsunder which ingen-ious counselin variouscases have soughtto buryit. The judgmentof the High Court of Parliament upon conviction of an impeach-ment automaticallyworks a forfeitureof political capacity; butthis is simply an effect of the judgment, which is to be distin-guished from the judgment itself. So, under our system of laws,loss of political capacity is an effect of the sentence pronouncedby the courts of criminaljurisdictionupon a conviction of felony.Such judgmentsare inherently judicialin their nature. The judg-ment of the Senateon animpeachment,however,must be addresseddirectlyand solely to the political privilege and the political ca-pacity of those who, of their own volition, have submitted to itsjurisdictionby the acceptanceofpublicoffice. In no propersense issuch a judgmenta sanctionof retributivejustice. It is remedial,but not vindictive. The safeguard of the state is its principalobject, and the punishmentof the individual is left exclusivelyto the courts of judicature. It is a disciplinary rather than apenalmeasure.

Section 2 of Article II providesthat"The President . . shall have power to grant reprieves andpardonsfor offencesagainst the United States, except in cases ofimpeachment."Under the lex parliamentariaa pardon from the King was notpleadablein bar to an impeachment,nor could it affect the conse-quenceof attainderflowingfrom convictionupon an impeachment.


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THE IMPEACHMENT OF THE FEDERAL JUDICIARY. 699However,the King could, by the exercise of the pardoningpower,suspend or remit the execution of a criminalsentence imposed bythe Lordsin the adjudicationof an impeachment.'sInasmuch as the Senate was not vested with powerto impose acriminalsentence, this exceptionof impeachmentfromthe pardon-ing power made no substantial modificationof the law which hadtheretofore prevailedin England. It is obvious that if the Presi-dent could grant pardons n casesof impeachment,he might,underconceivable conditions, restore to office those who had been de-posed by the judgment of the Senate upon conviction of impeach-ment. The plan and purpose of the remedy would thus beutterly defeated.

THE AMERICAN CASES.There have been nine impeachmentsunder the federal Constitu-tion, and of these six have been aimed at the judiciary. The

impeachmentswhich did not apply to the judges,while historicallyinteresting, throw but faint light upon the subject here presented,and for this reason I have confined their treatment to a briefstatement in the appendednotes.'918 I Stephen,Historyof the CriminalLaw of England, 46; Wooddesson'sLectureson the Lawof England,LectureXL, 367.19 WilliamBlount,United States senatorfromTennessee,was impeachedn I797

on five articles,charging onspiracyo promotewithin the jurisdiction f the UnitedStates a hostilemilitaryexpeditionagainstthe dominionsof Spainin the Floridasand Louisiana or the purposeof conquering uch territoryfor GreatBritain,withwhichSpainwasthen at war; conspiracyo incitecertainIndiantribes to commencehostilitiesagainstthe subjectsof Spain,in violation of treaty provisions;conspiracyto alienate he confidence f suchIndiansfrom the officialagentof the UnitedStatesappointed o reside amongthem; conspiracy o seducethe official nterpreter f theUnitedStatesappointed o resideamongsaid tribesfromthe duty of his commission;and conspiracyo fomentdisaffectionamongcertain Indiantribestoward he UnitedStates. Respondentwasexpelledby the Senate shortlyafter his impeachment y theHouseof Representatives.He filedtwopleasto the jurisdiction,irst,on the groundthata senatorof the United States is not a civil officer f theUnited Statessubject oimpeachment,nd, second, hatby expulsionhehadceased o bea senator.The Senatesustained the first plea and dismissedthe impeachment or want of jurisdiction.(3 Hinds' Precedentsof the Houseof Representatives, 44.)AndrewJohnson,Presidentof the UnitedStates,was impeachedn i868 on elevenarticlescharging he removalof E. M. Stanton,Secretaryof War, in violationof astatute known as the Tenureof OfficeAct; attempting to induce a generalofficerof the army to violate the provisionsof this statute; and attempting to bringinto contemptthe Congressof the United States by making inflammatoryand


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700 HARVARD LAW REVIEW.The first impeachmentof a federal judge, and the first impeach-ment which was successful, was that of John Pickering, Judge ofthe United States District Court forthe District of New Hampshire.In 1803 the Houseof Representatives mpeachedJudge Pickeringonfour articles. The first three articles charged that the respondenthad acted in wilful contravention of a statute of the United Statesin the course of a suit brought by the governmentto condemn aship and its cargo under the custom laws. It was specificallyalleged that he wrongfully delivered this ship to the claimant

after its attachment without requiringthe prescribed bond ofindemnity; that he wrongfully refused to hear the testimonywhich was offered in behalf of the government; and that hewrongfullyrefusedto grant an appeal to the governmentfrom hisarbitrary decree in final adjudicationof the cause. The fourtharticle charged that upon a certain occasion the respondenthadattempted to performhis judicial dutiesupon the bench in a stateof total intoxication, and that upon such occasionhe had publiclyused the name of the Supreme Being in a profaneand indecentmanner. No answerwas filed by the respondent,and he madenoappearanceeither in person or by attorney. In pursuanceof pe-tition, however, Judge Pickering'sson was allowed to adduce evi-dence tending to show that his father was mentally irresponsible.It appearedfrom the proof that if insanity existed to any extent,which was doubtful, it was due to habitual intemperance. TheSenate convicted the respondent on each of the articles, and hehighly abusive speeches. The respondent was acquitted by a margin of one vote onthe second, third, and eleventh articles, whereupon the Senate adjourned sine diewithout voting upon the remaining articles, and the Chief Justice, who presided atthe trial, directed that a verdict of acquittal be entered of record with respect to them.(3 Hinds' Precedents of the House of Representatives, 844.)William W. Belknap was impeached in I876 on five articles charging the acceptanceof a portion of the profits of an army post tradership from a post trader whom he hadappointed. A short while before the House impeached him, Secretary Belknapresigned and his resignation was accepted by the President. He pleaded to the juris-diction of the Senate on the ground that he was not a civil officer of the United Statesat the time of his impeachment. The plea was overruled by a majority of less than two-thirds of the senators voting and the trial proceeded in due course. The respondentwas acquitted by virtue of the votes of senators who had voted in favor of the pleato the jurisdiction. The case is supposed to have established the proposition that aprivate citizen cannot be impeached for offenses committed during previous tenure ofpublic office, although he has admittedly resigned to escape impeachment. (3 Hinds'Precedents of the House of Representatives, 902.)


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THE IMPEACHMENT OF THE FEDERAL JUDICIARY. 70Iwas removed from office, but the judgment did not impose a dis-qualification o hold any officeof honor, trust, or profit under theUnited States.20On March I2, i804, the same day, that Judge Pickering wasconvicted, Samuel Chase, Associate Justice of the SupremeCourtof the United States, was impeached on eight articles, chargingcertainmisconductto the prejudiceof impartialjusticein the courseof a trial on an indictment for breach of the sedition laws; mis-conduct in improperly nducing or coercinga grand jury to returnan indictment against an editor of a newspaperfor alleged breachof the seditionlaws, andmisconduct n addressingan inflammatorypoliticalharangueto a grandjury. An elaboratedefensewas madeby the respondent. The trial resulted in a failure of the impeach-ment from want of a concurrenceof two-thirds of the senatorspresent,although a majority of the votes were cast for convictionon several of the articles.2'James H. Peck, Judge of the United States District Court forthe District of Missouri, was impeachedin i830 on one generalarticle, containingeighteenspecifications,chargingabuse of officialpower and arbitraryconduct in severely punishing for contemptof court an attorney who had publisheda criticismof one of therespondent's decisions. In his answer the respondent averredthat he was legally clothed with the authority which he had exer-cised, or that he was justified in assumingthat he had such au-thority, and denied the existence of malicious motive. The trialresultedin a majority of votes against the impeachment.22In i862, when the spasm of the times threatenedthe perpetuityof the Union, the House of Representatives impeachedWest H.Humphries,Judgeof the United States District Courtfor the Dis-trict of Tennessee. Seven articles wereadopted,chargingthe mak-ing of a publicspeech inciting revolt and rebellion against theUnited States; supportand advocacyof the ordinanceof secession;aiding and abetting an armed rebellionagainst the United States;conspiringto oppose the authority of the United States by forceand arms;refusingto perform he functionsof his office;andwrong-fully causingarrestsand confiscationsas a judgeof the Confederate

20 3 Hinds' Precedents of the House of Representatives, 68i.21 3 Hinds' Precedents of the House of Representatives, 78II.22 3 Hinds' Precedents of the House of Representatives, 772.


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702 HARVARD LAW REVIEW.States. The respondentfiledno answerto these articlesand madeno appearance. The trial proceeded in his absence, and he wasconvicted on all the charges, with the exception of the secondspecificationof the sixth article, which alleged wrongful confisca-tion of propertyof citizens of the United States to the use of theConfederacy. By the judgmentof the Senate, upon a unanimousvote, the respondent was removed from office and brandedwithperpetualdisqualification o hold any officeof honor, trust, orprofitunder the United States.23The next impeachmentaffectingthe judiciarywas that of CharlesSwayne, Judge of the United States District Court for the Districtof Florida. In I904, this judge was impeachedon twelve articles,chargingthat he had renderedfalse claims against the governmentof the United States in his expense accounts; that he had ap-propriated to his own use, without making compensationtherefor,a certain railroad car belonging to a defunct railroad companythen in the hands of a receiver appointed by the respondent;that he had resided outside of his judicial district in violation ofstatute; andthat he hadmaliciouslyadjudgedcertainparties to bein contempt of his court and had imposed excessive punishmentsupon them. The respondent defended,and the trial resultedin amajorityof votes against conviction.24In I9I2 the House of Representatives impeached Robert W.Archbald,United States Circuit Judge, designated a member ofthe Commerce Court. This case presents the only satisfactorytest of the remedy of impeachmentas applied to the judiciary,and for that reason it requiresa somewhat particular review ofits most salient features. There were thirteen articles exhibitedagainst Judge Archbald. The first six articles,with the exceptionof article four, chargedthe respondentwith the use of his officialpower and influence to secure business favors and concessions,intransactions relating to coal properties,from railroadcompaniesandtheirsubsidiarieshaving litigationbefore the CommerceCourt.Articlefour chargedsecret correspondence etween the respondentand counselfor a railroadcompany regardingthe merits of a casethenpendingbeforethe CommerceCourt. Articles seven to twelve,inclusive, charged misconduct as a United States district judge,

23 3 Hinds' Precedents of the House of Representatives, 8o5.24 3 Hinds' Precedents of the House of Representatives, 948.


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THE IMPEACHMENT OF THE FEDERAL JUDICIARY. 703which office the respondentheld immediately priorto his appoint-ment as circuit judge. These chargesrelated to the allegeduse ofhis official nfluence to secure credit and other favors from partieshaving litigation in the court over which he presided; the accept-ance of a purse from certain membersof the bar of his court; atrip abroad at the expense of a magnate of large corporate nter-ests; and the designationof a generalrailroadattorney to be jurycommissioner. Articlethirteenwasin the natureof a blanketcount,charginga general courseof misconductwhich embodied all thevarious acts allegedin the other articles.25The answer nterposedby the respondentconsistedof demurrersto all the articles,which werecoupledwith a plea in the natureof aspecialtraverseto eachof the articleswith the exceptionof the sixthand the thirteenth. The pleas and the answer admitted most ofthe primary facts alleged, but denied the existence of wrongfulintent.26 The replicationfiled by the managerson the part of theHouse of Representativesreiteratedthe sufficiencyof the articlesin law and in fact.27Counsel for the respondent challenged the jurisdiction of theSenate to consider the offensesalleged in articles seven to twelve,inclusive, on the groundthat they were committed, if at all, priorto his appointmentas circuit judge. It was also argued at greatlength that the acts charged n the articles,and establishedby theevidence,did not constitute impeachableoffenses.

The respondentwas ably defended,but the trial resultedin hisconvictionby an overwhelmingvote on the first, third,fourth, fifth,and thirteentharticles.28 By the judgment of the Senate he wasremovedfrom office and disqualified o hold any office of honor,trust, orprofitunderthe United States. For the first time in anyimpeachment case under the federal Constitution this perpetualdisqualificationwas imposed by a vote of less than two-thirdsofthe senatorspresent.It seems fair to concludefromthe vote on the thirteenth articlethat judges are impeachablefor a general course of misbehaviorembracinga series of acts that are subversiveof judicialprobity

248 Congressional Record, 905.26 48 Congressional Record, 975.27 48 Congressional Record, 9983.28 49 Congressional Record, 1439.


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704 HARVARD LAW REVIEW.or propriety chiefly becauseof the persistencywith which they arecommitted. This is not to be understoodas a holding that manylegal naughts may, collectively, become a legal unit, but, rather,that a continuationof transactionswhich arenot seriously rregularwhen standing alone may become componentelements of a systemof misconductsufficientto support an impeachment.All the articles charging offenses which were committedwhilethe respondentheld the officeof United States District Judgefailedof conviction. The considerationswhich brought about this resultcan only be surmised,but it is likely that it was due to a cautiousdisinclinationon the part of the Senate to establishthe precedentthat a civil officermay be impeached for offensescommittedin anoffice other than that which he holds at the time of his impeach-ment. Such a doctrine would probably be vicious in principle,for, if carriedto an extreme,it might well develop an actual caseof relentless vengeance suggesting the immortal story of JeanValjean.

The impeachments hat have failedof convictionareof little valueas precedents becauseof their close intermixtureof fact and law,which makes it practically impossible to determinewhethertheevidence was considered insufficientto support the allegations ofthe articles, or whether the acts allegedwere adjudgedinsufficientin law to constitute impeachableoffenses. The action of the Houseof Representativesn adoptingarticlesof impeachment n these caseshas little legal significance,and the deductionswhich have beendrawnfrom themare too conjectural o carrymuchpersuasive orce.Neither of the successfulimpeachmentspriorto the case of JudgeArchbaldwas defended,and they are not entitled to great weightas authorities. In the caseof Judge Pickering,the first three articleschargedviolations of statutory law, although such violations werenot indictable. Article four charged open and notoriousdrunken-ness and public blasphemy,which would probablyhave been pun-ishable as misdemeanorsat common law. In the case of JudgeHumphreys, articles three and four charged treason against theUnited States. The offensechargedin articles one and two prob-ably amounted to treason,inasmuch as the ordinanceof secessionof South Carolinahad been passed priorto the alleged secessionaryspeeches of the respondent, and the offenses charged in articlesfive to seven, inclusive, savored strongly of treason. But it will


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THE IMPEACHMENT OF THE FEDERAL JUDICIARY. 705be observed that none of the articles exhibited against JudgeArchbaldchargedan indictable offenseor even a violation of posi-tive law. Indeed, most of the specific acts proved in evidencewere not intrinsically wrong, and would have been blameless ifcommitted by a private citizen. The case rested on the allegedattempt of the respondentto commercializehis potentiality as ajudge, but the facts would not have been sufficientto support aprosecutionfor bribery. Therefore, the judgment of the Senatein this case has foreverremovedfrom the domain of controversythe proposition hat the judgesare only impeachable orthe commis-sion of crimesor misdemeanorsagainst the laws of generalapplica-tion. The case is constructiveand it will go down in the annalsof the Congressas a great landmarkof the law.

Tm. EFFICIENCYOF IMPEACHMENT.In the final analysis, the efficiencyof such a remedy must be

measuredby the ratio of its directand indirectresultsto the cumu-lative demandof the publicinterest. I have endeavored o review,as brieflyas may be, the direct results of the processof impeach-ment in its applicationto the federaljudiciary. Its indirectresultspermeatethe whole operationof our law.We are workingby normalprogressandby normalmeanstowardthe realization of a more complete justice in the affairs of men.But we must look to human judges for the administrationof ourhumanlaws. In the complexmutations of politics,it is inevitablethat some unworthymen shall attain the bench. Those who failto keep inviolate this most sacred of temporaltrusts are a livingmenace to the majesty of the law, because they inspirecontemptfor the law. The national welfarerequiresdecisive revocationoftheirpower. Political impeachment s the remedy providedby theConstitution, and, actually as well as potentially, it is an adequateremedy. In its adoptionthe fathers renouncedthe fanaticismofprecedent as well as the fanaticism of experiment,and our legalhistory has vindicated their vision and discernment.The recordof the federaljudiciaryhas been remarkably ree ofinfidelity to duty. The personalcharacterand official conduct ofits members have been, in the main, above suspicion or reproach,but undoubtedly many unknown and unknowable instances have


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706 HARVARD LAW REVIEW.occurred n which a wholesomefear of impeachmenthas preventedabuse of judicial power and breach of judicial obligation. Thisdeterrent effectof the remedy has been little appreciated,but thelack of it would have been most seriouslyfelt.The impeachmentprescribed by our Constitution weighs wellthe evil to be redressedand adjusts the ordained relief to theoccasion. It is the expressionof the sober will rather than therestive whim of the people. It restrainsjudicial tyranny withoutoverawing the authority of the courts. It regulatesthe conductof the judges without disturbingthe poise and balance of theirjudgments. It strikesdirectly at the judicial fault withoutdestroy-ing the judicialindependencethat is essential to the preservationof our constitutionaljurisprudence. This great body of fundamen-tal lawmust be maintained ntact. It absorbs the changingneedsof changingtimes yet does not change. Upon it the stability andthe integrity of our institutions rest. Upon it our civil libertiesdepend. And without it our republican government could notlong endure.

WrisleyBrown.WASHINGTON,. C.

Documents

Impeachment of the Federal Judiciary