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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

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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,

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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."

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.

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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

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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., p. 380.

14 Ibid., p. 528, quoted supra, note 8. 15 Ibid., p. 529.

A motion was made to amend it by adding, "that persons impeached be suspended from their offices until they be tried and acquitted." This was wisely voted down.16 The disorderly proceedings under similar constitutional provisions in the Southern States, in one of which the assembly began by imprisoning the governor in his office, have proved their mischievous character.17

The rest of this part of the Constitution was adopted with little or no discussion,18 and seems to have been copied from the New York Constitution of 1777.19

Penn's Frame of Government of Pennsylvania in 1683 provided for impeachments by the assembly triable before the council.20 The charters of the other colonies seem to have been silent upon the subject; but the colonial assemblies, in imitation of the English practice, claimed, and in Massachusetts, North and South Carolina exercised, the power to impeach their judges and other officers for trial before their respective councils.21 Chief Justice Trot, in 1717, was found guilty by the Council of South Carolina on an impeachment by the House of Delegates for "having engrossed the judicial power, by acting as judge of the King's bench, the common pleas, and the admiralty." 22

Most of the State constitutions adopted before the Federal Convention contained provisions for impeachment.23 The Articles of Confederation were silent on the subject. In Pennsylvania,

16 Ibid., pp. 541, 542. "Mr. Madison. The President is made too dependent already on the legislature by the power of one branch to try him in consequence of an impeachment by the other. This immediate suspension will put him in the power of one branch only. They can at any moment, in order to make way for the functions of another who will be more favorable to their views, vote a temporary removal of the existing magistrate."

17 See the History of Impeachments in Arkansas and Florida in the Appendix.

18 Elliot's Debates, 2d ed., vol. v, pp. 131, 381, 480, 507, 528, 529, 559, 562. 19 N. Y. Constitution of 1777, Art. XXXIII; Professor Theodore W.

Dwight in 6 American Law Register,
N. S., 277.

20 Poore's Charters and Constitutions, pp. 1521, 1523, 1528, 1529.

21 John Adams' Works, vol. v, p. 236; Chalmers, Introduction to the History of the Revolt of the Colonies, Book VII, ch. xi; Book VIII, ch. xi. See the Appendix to this volume for an account of these proceedings.

22 Ibid., Book VIII, ch. xi. See the Appendix to this volume.

23 See the Massachusetts Constitution of 1780, Part II, Ch. I, Sect. 2, Art. VIII; New York Constitution of 1777, Art. XXXIII; South Carolina Constitution of 1778, Art. XXIII.

under the Confederation in 1780, Judge Hopkinson of the State Court of Admiralty was impeached by the assembly, tried and acquitted by the council. James Wilson, a prominent member of the Federal Convention, was one of his attorneys.2 24

Montesquieu, whose opinions had great weight with the framers of the Constitution, praised highly the English system of impeachment.25 Machiavelli ascribed the fall of the republic of Florence to the lack of a law for the impeachment of citizens who plotted against it.26 Tucker said:

"If the want of a proper tribunal for the trial of impeachments can endanger the liberties of the United States, some future Machiavelli may perhaps trace their destruction to the same source."

The members of the Federal Convention were familiar with the practice in England and the colonies as well as with the opinion of Machiavelli, and they followed the practice of their ancestors when they inserted these provisions in the Constitution.

§ 89. Reasons for the Trial of Impeachments by the Senate.

The selection of the Senate as the tribunal for the trial of impeachments has been the target of severe criticism both before1 and since the adoption of the Constitution.2 The defense of the method adopted may be best stated in the language of Hamilton, Story and Rawle.

"A well-constituted court for the trial of impeachments is an object not more to be desired than difficult to be obtained in a government wholly elective. The subjects of its jurisdiction are those offences which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself. The prosecution of them, for this reason, will seldom fail to agitate the passions of the whole community, and to divide it into parties more

24 See Appendix.

25 Montesquieu, De l'Esprit des Lois, livre xi, ch. vi.

26 History of Florence.

27 Tucker's Blackstone, vol. i, Appendix, 348.

§ 89. 1 See Luther Martin's letter, Elliot's Debates, 2d ed., vol. i, pp. 379-380.

2 See Tucker, Blackstone, vol. i, Appendix.

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