stitute grounds for impeachment;39 and that the President would be subject to impeachment for corrupting electors, and for incapacity, and that for the latter offense he should be punished by degradation from office.40

While a member of Congress, Mr. Madison, in his great speech on the President's power of removal, said: "If an unworthy man be continued in office by an unworthy President, the House of Representatives can at any time impeach him, and the Senate can remove him whether the President chooses or not. The danger then consists merely in this, the President can displace from office a man whose merits require that he should be continued in it. What will be the motive which the President can have for such abuse of his power, and the restraint that operates to prevent it? In the first place he will be impeachable by this House before the Senate for such an act of maladministration, for I contend that the wanton removal of meritorious officers would subject him to impeachment and removal from his own high trust.

9941

A civil officer may so behave himself in public as to bring disgrace upon himself and shame upon his country, and he may continue to do this until his name would become a national stench, and yet he would not be subject to indictment by any law of the United States, but he certainly could be impeached. What will those who advocate the doctrine that impeachment will not lie except for an offense punishable by statute, 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 can not be disturbed. But suppose they cease to behave themselves? When the Constitution says, "A judge shall hold his office during good behavior," it means that he shall not hold it when it ceases to be good. Suppose he should refuse to sit upon the bench and discharge the duties which the Constitution and the law enjoin upon him, or should become a notoriously corrupt character, and live a notoriously cor

39 Madison Papers, Vol. 5, 341. 40 Madison Papers, Vol. 5, 343. 41 Elliot's Debates, Vol. 4, 380.

rupt and debauched life? He could not be indicted for such conduct, and he could not be removed except by impeachment. Would it be claimed that impeachment would not be the proper remedy in such a case?

An examination of the impeachment trials of federal judges will disclose the fact that no judge was impeached for an offense indictable under a federal statute, except in the case of Judge Humphreys, where treason was one of the grounds of the impeachment, but upon close examination it is exceedingly doubtful if that charge could be maintained, although he was found guilty. Judge Humphreys was a Southern man, and his offense, if any, was at the beginning of the Civil War, when party and sectional feeling was intensely aroused. It is very doubtful if, under a calm and dispassionate consideration of the charges, he would have been convicted of treason.

Offenses and Conduct for which State Judges have been Impeached. Judges of State Courts have been impeached for drunkenness, either habitual, or occurring in the performance of their official duties;42 misbehavior in office; gross indecency and lewdness,13 using gross, obscene and indecent language while in the discharge of official duties, or the abuse or reckless exercise of judicial power11 and the omission to discharge a plain, official, judicial duty imposed by statute or common law. There have been several impeachments on this last ground.45 A public speech by a judge when not holding court which encourages insurrection, is another ground. "Where an act of official delinquency consists in the violation of the Constitution, or statutes, which is denounced as a crime. or misdemeanor, or where there is a wilful neglect of duty, with a corrupt intention, or where an act of negligence is so gross, and the disregard of duty so flagrant as to warrant the inference that it is wilful and corrupt, it is within the definition of a misdemeanor in office. But where an act consists of a mere error of judgment or

46

42 Impeachment of Theodosius Botkin of Kansas.

43 Impeachment of Judge E. St. Julien Cox, of Minnesota.

44 Impeachment of Judge George G. Barnard of New York.

45 Impeachment trials of Judges Pickering, Humphreys, Addison, Prescott, Holden, Fraziers, and Barnard.

46 Impeachment trials of Hardy and Humphreys.

omission of duty without the element of fraud, and where the negligence is attributable to a misconception of duty rather than a disregard thereof, it is not impeachable, although it may be highly prejudicial to the interests of the State. ''47

But impeachment will not lie for an error in judgment which is made in good faith by a judge.

47 State v. Hastings, 37 Nebraska 96.

CHAPTER XL.

FEDERAL COURTS BEFORE THE CONSTITUTION.

In the order of the Constitution the legislative and executive articles are followed by the judiciary, but it has been considered appropriate before entering upon the consideration of that important subject to notice the rise of the federal judicial system and the establishment of federal courts under the Articles of Confederation.

From the meeting of the second Continental Congress in 1775 to 1789, when the government of the United States went into operation, was fourteen years. During this period different tribunals or courts, having jurisdiction over certain questions of a national character, were established. They were wholly independent of the colonial or State courts, and their decisions were final.

These courts were of four kinds, and existed in the following order:

First. Courts composed of special committees of Congress.

Second. Courts composed of standing or permanent committees of Congress.

Third. The Court of Appeals in Cases of Capture. Fourth. Courts under the Articles of Confederation. Courts composed of Special Committees 1775-1777.— The first judicial tribunal or court possessing national authority among the colonies was established by the second Colonial Congress. It was limited in its jurisdiction to cases involving prize and admiralty. The necessity for such a tribunal became apparent soon after the declaration of war between the American colonies and England, for the seizure of vessels on the high seas rapidly increased after the beginning of the war, and there was no tribunal authorized to determine the rights of parties in such cases. At first the controversies growing out of

such seizures were referred for decision to General Washington, but he was so occupied with the military operations of the government that he had no time to consider 1039

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questions involving civil and maritime jurisdiction, and consequently recommended to Congress that it create a court with final authority to hear and determine all controversies relating to prize and capture, in a letter written from Cambridge, Massachusetts, on November 11, 1775, four months after he took command of the Continental army, to Peyton Randolph, President of the Continental Congress, as follows:

"Enclosed you have a copy of an act passed this session, by the honorable council and house of representatives of this province. It respects such captures as may be made by vessels fitted out by the province, or by individuals thereof. As the armed vessels, fitted out at the Continental expense, do not come under this law, I would have it submitted to the consideration of Congress, to point out a more summary way of proceeding to determine the property and mode of condemnation of such prizes, as have been or hereafter may be made, than is specified in this act.

"Should not a court be established by authority of Congress, to take cognizance of prizes made by the Continental vessels? Whatever the mode is, which they are pleased to adopt, there is an absolute necessity of its being speedily determined on; for I cannot spare time from military affairs, to give proper attention to these matters.""

On receipt of Washington's letter, Congress referred it for consideration and report to a committee, and on November 25, after hearing the report of the committee, Congress agreed:

1. "That it be and is hereby recommended to the sev eral legislatures in the United Colonies, as soon as possible to erect courts of justice, or give jurisdiction to the courts now in being for that purpose of determining concerning the captures to be made as aforesaid, and to provide that all trials in such case be had by a jury under such qualifications, as to the respective legislatures shall seem expedient.

1 Sparks' Writings of Washington, vol. 3, 154.

2 The following were the members of the committee: Mr. Wythe, Mr. Rutledge, Mr. J. Adams, Mr. Livingston, Dr. Franklin, Mr. Wilson and Mr. Johnson. Journal of Congress, 251.