Articles, and the Senate in trying the accusations, have therefore given a practical construction to the Constitution. In doing so they have not restricted its operation within narrow

respondent was arbitrary, oppressive, and unjust, in expressing an opinion calculated to prejudice the jury against the prisoner, in preventing prisoner's counsel from citing certain authorities, and in preventing said counsel from addressing the jury upon the law. II. Allegation, that on the trial of one Callender for libel, he refused to excuse a juryman who had made up his mind. III. Allegation, that on the same trial he would not permit the evidence of a certain material witness to be given. IV. Allegation, that on the same trial his conduct was marked by manifest injustice and partiality, stating particular instances of arbitrary acts towards the prisoner's counsel. V. Allegation, that contrary to law he caused said prisoner to be arrested and committed to custody, instead of causing him to be summoned to appear at the next court. VI. Allegation, that he caused said prisoner to be held for trial during the term at which he was indicted, contrary to law. VII. Allegation, that at a certain Circuit Court he informed the grand jury of a certain seditious printer, and urged them to inquire into the case, thus degrading the judicial office, and lowering himself to the level of an informer. VIII. Allegation, that at another Circuit Court, he delivered an intemperate political harangue in his charge to the grand jury, thereby degrading the judicial office. In some of the articles an intent to oppress the prisoners Fries and Callender was imputed, in others arbitrary and unjust or scandalous behavior, but in none was any felonious or other technical criminal intent charged. (Chase's Trial. Vol. 1. pp. 5-8). In his answer the respondent insisted that none of the allegations made against him charged any "high crime or misdemeanor" within the meaning of the Constitution, for which he was liable to impeachment. He also answered each article on the merits, and while admitting many of the important physical acts alleged to have been done by him, justified them all, and expressly negatived all evil intent, and all arbitrary and wilful character in his conduct. (Trial, v. 1, pp. 25-103). After an elaborate trial, in which evidence was offered upon each Article, he was acquitted, although a majority of the Senate voted guilty on Articles III., IV., and VIII.

Case of Judge Peck. A. D. 1830.-See Trial of Judge Peck.Abstract of Articles. I. Allegation, that Judge P. having published an opinion in a certain case before him, one Lawless, counsel for a party to the case, published an answer thereto in the newspapers. Thereupon Judge P. procured him to be arrested for contempt, imprisoned him for twenty-four hours, and suspended him from practice for eighteen months. The answer of the respondent justified all his acts, and expressly negatived all allegations of arbitrary or oppressive conduct, and of evil intent. He was acquitted by a vote of 22 to 21.

limits, and have not confined the proceeding by impeachment to indictable crimes against the United States.

§ 722. But we are to inquire which of these theories is in most complete harmony with the general principles of constitutional construction. The two branches of the argument which support the first, lead to the same conclusion, and although somewhat different in form, are in fact identical. Each is built upon a single premise, and if this be incorrect, the whole falls with it. The first mode of statement rests upon the assumption that impeachment under the Constitution means the same as impeachment by the English law, and that the Houses of Congress have only the authority in the matter held by the Houses of Parliament. The second mode of statement rests upon the assumption that "high crimes and

Case of Judge Humphries, A. D. 1862. — The Articles all charged the crime of treason. The respondent was convicted.

From the foregoing abstract it appears beyond a doubt that in the first three cases the two Houses proceeded upon the enlarged view of their powers. In all these cases, the objection that no indictable offence was charged, if it be such, appeared upon the face of the Articles, and no amendment could possibly cure it; it was analogous to a pleading fatally defective upon general demurrer. Moreover in Judge Chase's case, the objection was specially pleaded by the respondent, the demurrer was ac tually put in. It is true that in the trial of Judge Pickering, the respondent did not appear. But can it be supposed that in a Senate composed largely of able lawyers, the fatal defect would not have been pointed out, if it had been assumed to exist? It is true that Judge Chase was acquitted. But the Senate went to trial on the merits, notwithstanding a plea was put on the record, denying their jurisdiction on the ground that no indictable offence was charged. The respondent was acquitted because the proof failed to establish any evil intent or arbitrary and oppressive design. It is rather curious, too, that in two of the Articles upon which a majority were against him the 4th and 8th no act or intent was charged which conld possibly amount even to a common law misdemeanor. If the theory I am examining be correct, the Senate had no jurisdiction to try either of these impeachments; the proceedings should have been dismissed upon the presentation of Articles which did not allege an impeachable offence; the same steps should have been taken which were taken in Blount's case. That the Senate did not so act, but heard the cases on the merits, is proof positive that they did not adopt this theory; their proceedings in Chase's case, where the record presented the point, is proot' positive that they for mally and judicially rejected this theory.

misdemeanors" is to be taken in a strict technical sense as a phrase of the English law equivalent to "felonies and misdemeanors," and that the words are not merely indicative and descriptive of general classes of acts.

§723. This whole theory is therefore another illustration of the constant tendency among political writers and statesmen to argue from the British Constitution to our own, without any regard to the fundamentally different ideas upon which they are based, and the fundamentally different methods by which these ideas are made practical. The powers of Congress are measured by those of Parliament, the powers of the President by those of the Crown. The principle that words having a technical meaning in the English jurisprudence as it stood when our organic law was framed, are to receive the same and no greater meaning if found in the Constitution, has been advocated in every great political and forensic contest which has arisen since the organization of the government. This principle, as far as it purports to embody a general rule of interpretation, has been repeatedly repudiated by the judiciary and by the political departments. Thus, Congress has given to the words "Admiralty" and "Bankruptcy" a far broader signification than belonged to them by the English law when the Constitution was adopted, and the courts have approved the legislative construction. The true rule would seem to be this: Where words having a well known technical sense by the English law are used in the Constitution, and these words are the keys of clauses which protect the private rights and liberties of the people, and especially of clauses which impose direct restraints upon the government in respect of such rights and liberties, and the technical sense itself is necessary for the complete protection of the individual citizen, this signification must still be retained in any interpretation of those provisions. But on the other hand, where words which had a technical meaning by the English law, are used in clauses which relate to the general functions of legislation and of administration, and to the political organization and powers of the government, such a sense must be attributed to them as will best carry out the design of the whole organic law, whether that

signification be broader or narrower than the one which had received the sanction of the English Parliament and Courts.

§ 724. Applying this criterion, we must reject the interpretation which makes impeachment under the Constitution coextensive only with impeachment as it practically exists in England. The word is borrowed, the procedure is imitated, and no more; the object and end of the process are far different. We must adopt the second and more enlarged theory, because it is in strict harmony with the general design of the organic law, and because it alone will effectively protect the rights and liberties of the people against the unlawful encroachments of power. Narrow the scope of impeachment, and the restraint over the acts of rulers is lessened. If any fact respecting the Constitution is incontrovertible, it is that the convention which framed, and the people who adopted it, while providing a government sufficiently stable and strong, intended to deprive all officers, from the highest to the lowest, of any opportunity to violate their public duties, to enlarge their authority, and thus to encroach gradually or suddenly upon the liberties of the citizen. To this end elections were made as frequent, and terms of office as short, as was deemed compatible with an uniform course of administration. But lest these political contrivances should not be sufficient, the impeachment clauses were added as a sanction bearing upon official rights and duties alone, by which officers might be completely confined within the scope of the functions committed to them. We cannot argue from the British Constitution to our own, because the English impeachment is not, nor was it intended to be, such a sanction. But the English law recognizes a compulsive measure far more terrible, because far more liable to abuse than impeachment. What the British Commons and Lords may not do by impeachment, the Parliament may accomplish by a Bill of Attainder. If the Commons can only present, and the Lords can only try, articles which charge an indictable offence, there is no such restriction upon their resort to a Bill of Attainder, or of Pains and Penalties. The Constitution has very properly prohibited this species of legislation; but the Constitutional impeachment was

intended to partially supply its place under another and better form, by introducing the orderly methods of judicial trial, and by requiring a majority of two thirds of the Senate to convict.

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§ 725. The same considerations will apply with equal force to that branch of the argument which is based upon the phrase high crimes and misdemeanors." Even had the words been "felonies and misdemeanors," we should not be obliged to take them in a strict technical sense; they would be susceptible of a more general meaning descriptive of classes of wrongful acts, of violations of official duty punishable through the means of impeachment. But in fact the language used cannot be reconciled with the assumed technical interpretation. The phrase "high crimes and misdemeanors" seems to have been left purposely vague; the words point out the general character of the acts as unlawful; the context and the whole design of the impeachment clauses show that these acts were to be official, and the unlawfulness was to consist in a violation of public duty which might or might not have been made an ordinary indictable offence.1

§ 726. These views are strengthened by a reference to the practical results which would follow from the restriction of impeachment to those offences that had been made indictable. Such a construction would remove from this sanction its chief compulsive efficacy. The importance of the impeaching power consists, not in its effects upon subordinate ministerial officers,

1 It is sometimes proper to meet a very narrow argument by a very narrow answer. In truth the word "crime" was not a word of strict technical import, was not a term of art, in the English law when the Constitution was adopted, much less the words "high crimes." Crime" was of course used in literature and in conversation, and was found in treatises by approved writers on law, such as Blackstone. But if we go to indictments, which were drawn in accurate legal phraseology, we shall not discover the word "crime" or "criminally" employed. The accused was alleged to have done an act " feloniously," or "wrongfully" or "unlawfully," or "with force and arms," or " against the peace of our lord the King," but never "criminally." If it appears then that "crime" was not a technical word of art, but only a word of general description, the whole of this branch of the argument at once falls to the ground. And if "crimes" be not a word of art, the inference is irresistible that "misdemeanors" is also used in a general descriptive and not in a technical sense.