190. "SHALL COMMISSION ALL OFFICERS."-This seems to be 185, 185. more properly connected with the appointing of officers; but it is not one and the same thing. Marbury v. Madison, 1 Cr. 156–7; Story's Const. § 1548.

dent's

As incident to this power, he has authority to appoint commis- What are sioners and agents to make investigations required by acts or reso- the Presilutions of Congress; but cannot pay them, except from an appro- powers? priation for that purpose. 4 Opin. 248. It is not, in general, judicious for him, in the exercise of this power, to interfere in the functions of subordinate officers, further than to remove them for any neglect or abuse of their official trust. 3 Id. 287. But where combinations exist among the citizens of one of the States, to obstruct or defeat the execution of acts of Congress, and the question of the constitutionality of such laws is made in suits against a marshal of the United States, the President is justified in assuming his defense on behalf of the United States. 6 Id. 220, 500.

The various acts of President Lincoln, in calling out the militia, organizing an army, and proclaiming a blockade of the Southern ports, in April, 1861, for the suppression of the rebellion, were approved, ratified, and confirmed by a joint resolution of Congress, in August, 1861. The President was the judge of his powers, and the court is bound by his acts. The Prize Cases, 2 Black, 666.

ment?

SEC. IV. The President, Vice-President, and all Impeachcivil officers of the United States, shall be removed Who may be from office on impeachment for, and conviction of, impeached? treason, bribery, or other high crimes and misde

meanors.

191. "CIVIL OFFICERS."-The remedy is strictly confined to 27, 39, 40. civil officers, in contradistinction to military. Story's Const. § 690,

691.

officers ?

A senator or representative in Congress is not such civil officer. Who are Blount's Trial, 22, 102; Wh. St. Tr. 260, 316; 1 Story's Const. civil § 793, 802. See 2d vol. Senate Journal (1797), 383-393. Nor is a territorial judge, not being a constitutional, but a legislative office only. 3 Opin. 409. But United States circuit and district judges are subject to impeachment. Peck's Trial, 20, and Chase's Trial.

definitions?

No previous statute is necessary to authorize an impeachment Where must for any official misconduct. What are, and what are not high we look for crimes and misdemeanors, is to be ascertained by a recurrence to the rules of the common law. 1 Story's Const. § 799. Peck's Trial, 499. For the rules of proceedings prescribed in cases of impeachment, see Peck's Trial, 56-9.

Blount was expelled as a senator for a "high misdemeanor;" but the Senate refused to consider him a "civil officer," liable to "impeachment." See 2 Senate Journal, pp. 383-397. The "high misdemeanor," was not in the violation of any particular statute. What is an "An impeachment before the Lords by the Commons in Great impeachment by Britain, in Parliament, is a prosecution of the already known and the common established law, and has been frequently put in practice, being a law?

27, 39, 177. presentment to the most high and supreme court of criminal jurisdiction by the most solemn grand inquest of the whole kingdom (4 Blackstone, 259); and when this most high and supreme court of criminal jurisdiction is assembled for the trial of a person impeached for a violation of the "already known and established law," it must proceed according to the known and established law, for although "the trial must vary in external ceremony, it differs · not in essentials from criminal prosecutions before inferior courts. The same rules of evidence, the same legal notions of crimes and punishments prevail." (Woodeson, vol. 2, 611.) Minority report on the Impeachment of the President, 62. See 2 Chase's Trial, 137; Rawle's Const. 204.

What must

192. TREASON AND BRIBERY."-TREASON against the United the treason States shall consist only in levying war against them or in adherbe against? ing to their enemies, giving them aid and comfort. Art. 3, sec. 3. The treason must be against the United States. (Rawle's Const. ch. 22, p. 215.) Story's Const. § 802.

215.

For what

must it be. defined?

Define high crimes?

27, 39, 194, 212, 223.

Define mis

BRIBERY is the offense of taking any undue reward by a judge, juror, or other person concerned in the administration of justice, or by a public officer, to influence his behavior in his office, (4 Black. Com. 139, and Chitty's note; 3 Inst. 145; 4 Burr, 2494; 1 Russel on Crimes, 154.) Burrill's Law Dic., BRIBERY.

For this definition resort must necessarily be had to the common law. Story's Const. § 796; Peck's Trial.

No other crimes than bribery and treason can regularly be inquired into as ground of impeachment. Rawle's Const. ch. 22, p. 215. But

officer can either this point, nor whether any other than a public

officer can be impeached, has been authoritatively settled. Story's Const. § 802, 803.

193. "HIGH CRIMES."-Crime or misdemeaner is an act committed, or omitted, in violation of a public law, either forbidding or commanding it. commanding it. 4 Bl. Com. 5. This general definition comprehends both crimes and misdemeanors. Id. Crime, in a narrower sense, is distinguished from a misdemeanor, as being an offense of a deeper and more atrocious dye, and usually amounting to a felony. 4 Bl. Com. 5; Burrill's Law Dic, CRIME; Minority report on the Impeachment of the President, 61. A breach or violation of some public right or duty to a whole community, considered as a community, in its social aggregate capacity; as distinguished from civil injury. · 4 Bl. 5.

The violation of a right, when considered in reference to the evil tendency of such violation, as regards the community at large. 4 Stephen's Com. 55; 1 Id. 127, 128. In this sense it includes misdemeanors. Burrill's Law Dic., CRIME.

194. “MISDEMEANOR" is a less heinous species of crime; an demeanor? indictable offense not amounting to felony. 4 Bl. Com. by Chitty, 5, 27, 39, 192, note; Burrill's Law Dic., MISDEMEANOR. Properly speaking, crime and misdemeanor are synonymous. Id.; 4 Steph. Com. 57.

193.

In general, a misdemeanor is used in contradistinction to felony, and comprehends all indictable offenses which do not amount to felony; as perjury, battery, libels, conspiracies, attempts and so

licitations to commit felonies, &c. 4 Bl. Com. notes 5, 6; Paschal's Annotated Digest, 1658-1660.

The case of Judge Humphries, at the commencement of the rebellion, was upon charges of disloyal acts and utterances, some of which clearly did not set forth offenses indictable by statute of the United States, and yet upon all those charges, with one exception only, he was convicted and removed. Report upon the Impeachment of the President, 52, 53. The minority say that they amounted to treason, because he advised secession by Tennessee, after the ordinance by South Carolina and the levying war by that State. Id. 68.

It has been insisted that none but an offense against a statute of Must the the United States is impeachable. (1 Chase's Trial, 9-18, 47, 48; offense be 4 Elliot's Debates, 262; Rawle's Const. ch. 29, p. 273.) Story's against a Const. § 796; Minority Report on the Impeachment of the Presi- 192. dent, 61.

Where any offense is punishable by an act of Congress, it ought to be impeachable. Story's Const. § 796.

So political offenses, impeachable at common law, may be so classified. Id. § 764, 768, 797, 798, 799; Jefferson's Manual, § 53, title, IMPEACHMENT; Blount's Trial, 29-31, 75-80; Farrar, § 494496; Curtis' Com. p. 360.

No one of the cases yet tried rests upon statutable misdemeanors. Story's Const. § 799; Report upon the Impeachment of the President, pp. 51-53.

For the English parliamentary cases, see 2 Woodeson's Law Lect. 40, p. 602; Comyn's Dig. Parliament, 28-40; Story's Const. § 800.

statute?

views?

Mr. Madison said: "He (the President) will be impeachable by What were this House, before the Senate, for such an act of maladministra- Madison's tion; the wanton removal of meritorious officers would subject him to impeachment and removal from his high trust." (Lloyd's 184-186. Debates, 503, 351, 450; 4 Elliot's Debates, 141.) Farrar's Const. § 495, 496.

Whether offenses not connected with office are impeachable is still unsettled. Story's Const. § 803-805.

the Presi

While this work was running through the press, a majority of the State the judiciary committee (on the 25th November, 1867) made a report history of to the House of Representatives (in response to a resolution of dent's imthe House), wherein they impeached ANDREW JOHNSON, President peachment ? of the United States, of "High crimes and misdemeanors." The report was signed by five members; the minority, including the chairman, dissented. The report is long, and the evidence is voluminous.

The committee did not charge the violation of any criminal statute. The charges are sundry usurpations of congressional power; willful efforts to defeat the work of reconstruction in the rebel States, and the encouragement of those who were engaged in the rebellion. All the charges hinge upon this one point. But, in the specifications, there are sundry charges of the violation of statute law: particularly in using money appropriated for other purposes to support the President's owu reconstruction measures; in levying taxes; using United States property; restoring abandoned and captured property; ordering the dispersal of the Louisi

State the

ment of the

143.

212.

49.

ana Convention; and conspiracies with and pardons of prominent rebels, and appointing them to office. See Report, 1-47, 55-59. It is urged by the minority of the committee, that an impeachlegal argument will only lie for offenses which are indictable; that the house minority? is to impeach for offenses, not to create them; that nothing is penal except crimes (13 Encyc. Brit. 275); that Blackstone's definition of municipal law (1 Bl. Com. 44) is to be observed; that no ex post facto law shall be passed; that the definitions of crime. (the same stated in this note) are to control; that, in the trial, the Senate, like the House of Lords, is a high criminal court, governed by the same rules of law and evidence as other criminal courts; that the fact that the party can be convicted in another court proves this (2 Chase's Trial, 137); that they must be "crimes," such as are entitled to jury-trial (Art. III. Sec. 2); that Blount's trial was for crimes (but against what criminal law is not shown); that while Pickering's offense may not have been criminal, the plea of insanity was ignored, and the case is a disreputable precedent; that Chase must have been acquitted because mere misconduct as a judge was not a crime or misdemeanor. In Blount's case, several of the charges were proved. They were; "With intending to carry into effect a hostile expedition in favor of the English against the Spanish possessions of Louisiana and Florida; with attempts to engage the Creek and Cherokee Indians in the same expedition; with having alienated the affections of the said Indians from Ben. Hawkins, an agent of the United States among the Indians, the better to answer his said purposes; with having seduced James. Cary, an interpreter of the United States among the Indians, for the purpose of assisting in his criminal intentions; and with having attempted to diminish the confidence of the Cherokee Indians in relation to the boundary line, which had been run in consequence of the treaty which had been held between the United States and the said Indians." (1 Annals of 5 Cong. 499, 919.) That the plea to the jurisdiction was sustained, on the ground that Blount was not a civil officer. (Id. 2318, 2319.) That while Peck was only arraigned for misconduct, or official misbehavior, he did not demur to the charge, but affirmed the justice of his action; that if the point, that a judge may be tried for want of "good behavior," may be admitted, it cannot apply to the President, whose tenure is for four years; that the charges against Humphries were of treason, because they were words and acts after the levying of war by South Carolina; that a fair review of the English cases shows that Parliament rested all cases upon some indictable offense, though it is admitted that definitions have been strained; fifty-five cases given by Hatsell are named (p. 71); where the effort to explain fails, the precedents are boldly attacked; the current of precedents is cited to show that the federal courts can only entertain jurisdiction of crimes, defined and made penal by Congress (United States v. Hudson, 7 Cr. 32; United States v. Coolidge, 1 Wheat. 415; Ex parte Bollman and Swartwout, 4 Cr. 95; United States v. Lancaster, 2 McLean, 33, and various others, 77, 78); that the same principle should apply to the high court of impeachment; that "other high crimes and misdemeanors," means such as may be declared by the law-making power of the United

197.

217.

States, (Rawle's Const. 265); and the rest of the report is principally devoted to the facts. Report upon Impeachment of the President, 64-78. The whole argument is, that the impeachment must be for treason within the constitutional definition; for bribery within the then common-law definition; or if for other high crimes and misdemeanors, then they must be such as are created by some penal enactment of Congress; and not such as existed at, and were impeachable by, the common law. The majority of the committee assume that high crimes and misdemeanors may consist in oppressive, unjust, corrupt, and unauthorized official misconduct, although not indictable. It is not within the plan of this work to give the conclusions of the author, derived from the same class of reading. This hour of the country's history is not fortunate for a calm investigation. If we admit the conclusions of the minority report, the difficulty is only removed; for still the question would remain-which of the statute offenses would be the subject of impeachment ? Shall they be piracy, homicide, larceny, forgery, counterfeiting, robbery, defalcations, or any one of the hundred felonies and misdemeanors spread over the statutes? And shall they be confined to offenses committed within the criminal jurisdiction of the United States Such only are indictable. Or may an impeachment be for an infamous crime against the laws of a foreign country?

The question being now afloat upon the sea of public opinion, he can only hope that future writers may have more satisfactory guides. The house by a large majority sustained the minority report and refused to impeach, but still it can hardly be regarded as settling the principle, that nothing is impeachable except what is indictable as an offense against the United States.

ARTICLE III.

judicial

office?

SEC. 1.-The judicial power of the United States, Define the shall be vested in one Supreme Court, and in such in- power? ferior courts as the Congress may, from time to time, ordain and establish. The judges, both of the supreme Tenure of and inferior courts, shall hold their offices during 194. good behavior; and shall, at stated times, receive for their services, a compensation, which shall not be Compensadiminished during their continuance in office.

tion?

195. "THE JUDICIAL POWER OF THE UNITED STATES."-Ju- Define judidicialis, judex, a judge, or judicium, a judgment. Burrill's Law cial power? Dic., JUDICIAL. It is the power to hear and determine controver- 8, 210, 218. sies between litigants, upon proper cases of law and fact presented

for adjudication.

The object was to establish a judiciary for the United States, a What was necessary department, which did not exist under the Confedera- the object? tion. (Federalist, Nos. 22, 28, 80, 81; 2 Wilson's Law Lect. ch. 3, p. 201; 3 Elliot's Debates, 142, 143; Osborn v. United States