These abuses were not guarded against in our Constitution by limiting, defining, or reducing impeachable crimes, since the same necessity existed here as in England, for the remedy of impeachment, but by other safeguards thrown around it in that instrument. It will be observed that the "sole power of impeachment" is conferred on the House, and the sole power of trial, on the Senate by Art. 1, §§ 2 and 3. These are the only jurisdictional clauses, and they do not limit impeachment to crimes or misdemeanors. Nor is it elsewhere so limited. Sec. 4 of Art. 2 only makes it imperative when "the President, Vice-President, and all civil officers" are convicted "of treason, bribery, or other high1 crimes and misdemeanors," that they "shall be removed from office."

But it is not material whether the words "treason, bribery, or other high crimes and misdemeanors" confer, or limit, jurisdiction, or only prescribe an imperative punishment as to officers or a class of cases, since every act which by parliamentary usage is impeachable is defined a "high crime or misdemeanor ;" and these are the words of the British Constitution which describe impeachable conduct.3

by the Commons, both as an instrument of popular power and for the furtherance of public justice.

"Between the year 1620, when Sir Giles Mompesson and Lord Bacon were impeached, and the revolution in 1688, there were about forty cases of impeachment. In the reigns of William III., Queen Anne, and George I., there were fifteen; and in the reign of George II., none but that of Lord Lovat, in 1746, for high treason. The last memorable cases are those of Warren Hastings in 1788, and Lord Melville in 1805" May on Parliament 49-50; Ingersoll's Speech on Blount's Trial, Wharton's State Trials 285; 4 Hatsell, passim.

1 The word "high" applies as well to "misdemeanors" as to "crimes :" 2 Chase's Trial 383.

2 On Chase's Trial, Mr. Rodney so argued. And so Wickliffe on Peck's Trial 309. In Blount's Trial, Mr. Ingersoll insisted that Art. 2, § 4, designates" the extent of the power of impeachment both as to the offences and the persons liable :" Wharton's State Trials 289. See p. 99, per Harper.

3 4 Hatsell's Precedents 73-76.

By the Constitution of Massachusetts the Senate is "to hear and determine all impeachments made by the House of Representatives against any officer or officers of the Commonwealth for misconduct and maladministration in office."

On the trial of Judge Prescott, in 1821, Mr. Blake in defence, referring to the words misconduct and maladministration, said:"What then are the legal import and signification of these terms? We answer precisely the same as of crimes and misdemeanors; that they are in every respect equivalent to the more familiar terms that are employed by the Constitution of Great Britain in its description of impeachable offences, subject only to the wholesome limitation which in this Commonwealth confines this extraordinary method of trial to the official misdemeanors of public functionaries:" Prescott's Trial 117-118.

As these words are copied by our Constitution from the British Constitutional and Parliamentary Law, they are, so far as applicable to our institutions and condition, to be interpreted, not by English municipal law, but by the lex parliamentaria.1

When, therefore, Blackstone says that "an impeachment before the lords by the commons of Great Britain in parliament, is a prosecution of the already-known and established law, and has been frequently put in practice," he must be understood to refer to the "established" parliamentary, not common municipal law, as administered in the ordinary courts, for it was the former that had been frequently put in practice.

Whatever "crimes and misdemeanors" were the subjects of impeachment in England prior to the adoption of our Constitution, and as understood by its framers, are therefore subjects of impeachment before the Senate of the United States, subject only to the limitations of the Constitution.

The framers of our Constitution, looking to the impeachment trials of England, and to the writers on parliamentary and common law, and to the constitutions and usages of our own states, saw that no Act of Parliament or of any state legislature ever undertook to define an impeachable crime. They saw that the whole system of crimes, as defined in Acts of Parliament and as recognised at common law, was prescribed for and adapted to the ordinary courts.

They saw that the high court of impeachment took jurisdiction of cases where no indictable crime had been committed, in many instances, and there were then, as there yet are, "two parallel modes of reaching" some, but not all, offenders; one by impeachment, the other by indictment.

In such cases, a party first indicted "may be impeached after

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1 Pennock v. Dialogue, 2 Peters 2-18. When foreign statutes are 'adopted into our legislation the known and settled construction of those statutes by courts of law has been considered as silently incorporated into the acts:" United States v. Jones, 3 Wash. C. C. R. 209; Ex parte Hall, 1 Pick. 261; Sedgwick on Stat. 262, 426; Story on Const. § 797; Rawle on Const. 200. This author says in reference to impeachments, "We must have recourse to the common law of England for the definition of them"-that is, to the common parliamentary law.

2 4 Blackstone's Com. 260, read in Oxford 1758. He says, also, "It may happen that a subject intrusted with the administration of public affairs may infringe the rights of the people and be guilty of such crimes as the ordinary magistrate either dares not or cannot punish"-that is, cannot punish because not falling within his jurisdiction.

1

wards, and the latter trial may proceed notwithstanding the indictment. On the other hand, the King's Bench held in Fitzharris's Case that an impeachment was no answer to an indictment in that court.2

The two systems are in no way connected, though each may adopt principles applicable to the other, and each may shine by the other's borrowed light.

With these landmarks to guide them, our fathers adopted a Constitution under which official malfeasance and nonfeasance, and, in some cases, misfeasance, may be the subject of impeachment, although not made criminal by Act of Congress or so recognised by the common law of England or of any state of the Union. They adopted impeachment as a means of removing men from office whose misconduct imperils the public safety, and renders them unfit to occupy official position.

All this is supported by the elementary writers, both English and American, on parliamentary and common law; by the English and American usage in cases of impeachment; by the opinions of the framers of the Constitution; by contemporaneous construction, all uncontradicted by any author, authority, case, or jurist, for more than three-quarters of a century after the adoption of the Constitution.

The authorities are abundant to show that the phrase "high crimes and misdemeanors," as used in the British and our Constitution, are not limited to crimes defined by statute or recognised at common law.

as

Christian, who may be supposed to have understood the British Constitution when he wrote, says: "When the words high crimes and misdemeanors are used in prosecutions by impeachment, the words high crimes have no definite signification, but are used merely to give greater solemnity to the charge."

Wooddeson, whose lectures were read at Oxford in 1777, declared that impeachments extended to cases of which the ordinary courts had no jurisdiction. He says: "Magistrates and officers may abuse their delegated powers to the extensive detriment of the community, and at the same time in a manner

1 Stafford's Trial, 7 Howard's State Trials 1297.

26 Am. Law Reg. N. S. 262.

3 Note to 4 Blackstone 5.

4 2 Wooddeson's Lectures 596.

not properly cognizable before the ordinary tribunals." And he proceeds to say the remedy is by impeachment.

English history presents many examples of this kind.1

1 See Comyn's Digest, tit. Parliament. "In 1388 there are several proceedings before the lords against the Archbishop of York and other great officers and against several of the judges, for having given extrajudicial opinions and misinterpreting the law" 4 Hatsel 76; and in a note it is said the lords determined that such cases "cannot be tried elsewhere than in Parliament, nor by any other law than the law and course of Parliament." **

It is elsewhere said, "such kind of misdeeds as peculiarly injure the commonwealth by the abuse of high offices of trust are the most proper ** grounds for this kind of prosecutions. Thus if the judges mislead their sovereign by unconstitutional opinions, if any other magistrate attempt to subvert the fundamental laws or introduce arbitrary power. ** So when a lord chancellor has been thought to put the seal to an ignominious treaty; a lord admiral to neglect the safeguard of the sea; an ambassador to betray his trust; a privy counsellor to propound or support pernicious and dishonorable measures, &c., &c.:" 2 Wooddeson's Lectures 602.

In Ohio, before it was settled that the courts had power to declare legislative acts unconstitutional, one Judge of the Supreme Court and one President Judge of the Common Pleas were tried on impeachments for the exercise of this power, and each escaped conviction by only one vote: 20 Ohio Rep. Appendix, p. 3.

"The Duke of Suffolk was impeached for neglect of duty as an ambassador; the Earl of Bristol that he gave counsel against a war with Spain, whose king had affronted the English nation; the Duke of Buckingham that he, being admiral, neglected the safeguard of the sea; Michael de la Pole that he, being chancellor, acted contrary to his duty; the Duke of Buckingham for having a plurality of office; and he whom the poet calls the greatest, wisest, meanest of mankind,' for bribery in his office of lord chancellor; the Lord Finch for unlawful methods of enlarging the forest, in his office of assistant to the justices on Eyre; the Earl of Oxford for selling goods to his own use captured by him as admiral without accounting for a tenth to others:" Ingersoll's Speech on Blount's Trial, Wharton's State Trials 291.

Dr. Sacheverel was impeached for preaching an improper sermon: Harper's Speech Blount's Trial, Wharton 301.

"Andrew Horne in his Mirrour of Justice mentions many judges punished by King Alfred before the Conquest for corrupt judgments. * * Our stories mention many punished in the time of Edward I.; our Parliament rolls of Edward III.'s time; of Richard II.'s time for the pernicious resolutions given at Nottingham Castle, afford examples of this kind. In later times the Parliament journals of 18 & 21 Jac., the judgment of the ship-money in the time of Charles I., questioned and the particular judges impeached:" Vaugh. 139; cited in Appendix to Addison's (Pa.) Trial.

Lord Viscount Melville was tried on an impeachment for that as treasurer of the navy he used for purposes of private gain the public money not with intent to defraud the government out of any part of it.

The defence was that he had a right to use it.

The lords submitted to the judges of the Common Pleas questions,

Indeed, the word "misdemeanor" has a common-law, a parliamentary, and a popular sense. In the parliamentary sense, as applied to officers, it means "maladministration" or "misconduct," not necessarily indictable,' not only in England, but in the United States. Demeanor is conduct, and he is guilty of

1. Whether it was unlawful to draw public money in advance of the time it was needed for public use, but for the purpose of having it for that use?

2. If such act was an offence?

The judges answered each in the negative. The questions imply that if it had been either unlawful or a crime the impeachment would lie: 29 Howell's State Tr.

1469.

But this case was after the adoption of our Constitution, and can, therefore, throw but little light on its meaning.

On the 16th of October 1667, the House being informed that there have been some innovations of late in trials of men for their lives and deaths, and in some particular cases restraints have been put upon juries, in the inquiries-this matter is referred to a committee. On the 18th of November this committee are empowered to receive information against the Lord Chief Justice Kelynge, for any other MISDEMEANORS besides those concerning juries, and on the 11th of December 1667, this committee report several resolutions against the Lord Chief Justice Kelynge, of illegal and arbitrary proceedings in his office. The first of these resolutions is, that the proceedings of the Lord Chief Justice in the cases now reported are innovations in the trial of men for their lives and liberties; and that he hath used an arbitrary and illegal power, which is of dangerous consequence to the lives and liberties of the people of England, and tends to the introducing of an arbitrary government. The Lord Chief Justice hath undervalued, vilified, and contemned Magna Charta, the great preserver of our lives, freedom, and property:" 4 Hatsel Prec. 113; cited 2 Chase's Trial 461.

One of the resolves against Chief Justice Scroggs was, "That the discharging the grand jury by the Court of King's Bench in Trinity Term last, before they had finished their presentments, was illegal, arbitrary, and an high misdemeanor:" 4 Hatsel 127; 7 State Trials 479.

"Misprisions which are merely positive are generally denominated contempts or high misdemeanors, of which :

"1. The first and principal is the maladministration of such high offices as are in public trust and employment. This is usually punished by the method of parliamentary impeachment:" 4 Blackst. 121.

2 In Senate, July 8th 1797, it was "Resolved, that William Blount, Esq., one of the Senators of the United States, having been guilty of a high misdemeanor, entirely inconsistent with his public trust and duty as a Senator, be and he hereby is expelled from the Senate of the United States:" Wharton's State Trials 202. He was not guilty of an indictable crime: Story on Const., § 799, note. The offence charged, Judge STORY remarks, "was not defined by any statute of the United States. It was an attempt to seduce a United States Indian interpreter from his duty, and to alienate the affections and conduct of the Indians from the public officers residing among them."

Blackstone says:-" The fourth species of offence more immediately against the king and government are entitled misprisions and contempts. Misprisions are in the