his client.38 Judge Chase was acquitted, but there is no evidence that the senators thought his contention in this matter correct. Judge Peck seems to have conceded that one might be impeached for crimes not indictable, but held that the act must be wilfully and knowingly done in violation of law" with malicious intention.39 It is doubtful if more than one of the crimes charged against Judge Humphreys was indictable. In the Johnson trial the defense did not claim that only indictable offenses were impeachable, but the managers argued the negative side at length As Belknap was already under indictment at the time of his trial there was no need to discuss the question. The counsel for Judge Swayne took about the same ground as did Judge Peck. They also asserted that some crimes, both in England and America, were indictable which were not impeachable and that for these the remedy was to be found in a regular court of justice." This is undoubtedly true in America, but one may assert with equal positiveness that it was not true in England, where anything was impeachable which parliament so regarded.

While the Constitution names the crimes for which one may be impeached, the senate sitting as a court of impeachment is the sole judge of what offenses fall within the category of "treason, bribery, or other high crimes and misdemeanors." Treason is defined in the Constitution and that definition cannot be enlarged upon. Bribery is a term upon the meaning of which there is supposed to be substantial agreement, yet this is capable of enlargement by constructive interpretation according to the contention of the managers in the Johnson trial, who held that the president's promise to General Thomas to assume responsibility for violation of the tenure-of-office act was bribery. But "high crimes and misdemeanors" is more open to interpretation than either of the others. It rests with the senate alone to say what are impeachable high crimes and misdemeanors. They must do this according to the common law and parliamentary practice, but of these they are the sole judges. From their decision there is no appeal.

The question naturally arises here as to what majority is necessary

to determine whether the crime charged falls within the category of impeachable offenses. The matter has never been presented to the senate in just this form. An analogous question was that of jurisdiction in the Belknap trial, which has already been discussed at length. To the layman it looks as if the question ought to have been raised in the Swayne trial. The judge was charged with high crimes and misdemeanors in obtaining money from the United States by a false pretense, using without compensation the property of a railroad which was in the hands of a receiver appointed by himself, not residing within his district as required by law, and maliciously and unlawfully fining for contempt of court. The defense maintained that even if true, the allegations did not constitute an impeachable offense. There seems to have been very little doubt that the accused was guilty of some of the things charged, but he was acquitted. The impression of the public seems to have been that the judge was acquitted because the senate did not think that his peccadilloes amounted to impeachable high crimes and misdemeanors. The proper course, then, would have been for the defense to have entered a demurrer and called for a ruling on the impeachability of the crimes charged. If not sustained, the case could then have been tried on its merits. Even if a two-thirds majority were required to settle such a question, the time and expense of a trial might be saved by settling it in advance.

The framers of the Constitution wisely provided that in the trial of the president the chief justice should preside, because the vice-president would be interested in the result. It probably never occurred to them that any senator might be immediately affected by the result, but such was the case in the Johnson trial. At that time the president pro tempore of the senate would have succeeded to the presidency in case of a vacancy. Senator Wade held this position at the time. No written law forbade him to participate in the trial, neither was he deterred by the law of delicacy from taking an active part and exultingly recording his vote for condemnation, a vote which, with one change, would have seated him in the presidency. Soon after the opening of the trial Mr. Sumner offered a resolution to the effect that the chief justice had no right to vote on any question during the trial.

42 Swayne Trial, 393f.

After this was negatived by a vote of 22 to 26, 6 not voting, Mr. Drake offered one to the effect that he had no privilege of ruling on questions of law, but that all such should be submitted to the decision of the senate alone. This was negatived by a vote of 20 to 30, 4 not voting," from which it seems clear that the chief justice succeeds to all the rights and privileges of the vice-president.

43 Johnson Trial, 63.

43

THE BÜRGERMEISTER, GERMANY'S CHIEF MUNICIPAL

MAGISTRATE

JOSEPH TORREY BISHOP

Harvard University

The title bürgermeister first appears in German municipal history during the early part of the thirteenth century,' but the exact nature of the tasks imposed upon the official at this period still remains obscured in the darkness of the Middle Ages. We know that there were such officers, and we know something as to the method of their election, but very little as to the extent of their real power. Probably, however, as Von Maurer suggests, the bürgermeister had originally no other duty than that of presiding over the civic council,2 a simple function, to which came later to be added a general oversight of current affairs and the enforcing of city ordinances.

Considerably more, however, may be learned as to the duties of this officer in the seventeenth century, when the franchise had become more and more restricted and the number of town officers much smaller, and when, partly as a result of this decrease and partly in consequence of the awakening industrial life of the period, there had come to be an increase in the importance of town officials, and naturally among the rest in that of the chief magistrate. The consent of the bürgermeister in all town transactions now appears necessary; and, with an everincreasing number of requirements, it is now sometimes impossible to find suitable candidates for the office within the limits of the municipality. Accordingly strangers begin to be employed in the service, as we learn from the outcry which arose in Alt-Brandenberg in 1690, when complaint was made that too many outsiders were employed in the church, the schools, and the public service. That during this century the functions of the bürgermeister were of a varied character 1 A. Zimmermann, Versuch einer historischen Entwickelung der märkischen Städteverfassungen, i, 90.

2 G. L. von Maurer, Geschichte der Städteverfassung in Deutschland, i, 631.

3 Zimmermann, Versuch einer historischen Entwickelung der märkischen Städteverfassungen, iii, 12-13.

is shown by a list made out, in 1650, by Neustadt Eberwalde, in which the town set down, in general terms, the services expected from its chief magistrate. This document requires that he, together with the council, shall be diligent and shall consider how he may increase the town receipts-as for instance, through the abolition of unnecessary charges for food or travel, through repairs of mills, churches, schools, and parish buildings, as well as through the construction of sheepfolds, dairies and brickyards.*

Such were the petty cares which perplexed the bürgermeister of the seventeenth century. He had a general oversight, a sort of parental care, of his village; his consent was necessary for corporate action; and even at this early date he might be selected from outside the town limits. Bearing these facts in mind as we turn to our main subject of examination, the bürgermeister of today, we shall find his duties multiplied with the increasing complexity of his environment, and made exacting by the broadening scope of city government.

As in all European countries, the general council of the German municipality elects the local executive, which, throughout the empire, consists of an administrative board (the magistrat) with the bürgermeister at its head. The council itself is elected by the well-known "three-class system," which gives to heavy taxpayers the selection of a majority of the council. In this way the conservative property owners, the men who have something to lose in case an improvident administration be installed, really elect and so ultimately control the council, which, as we have seen, elects the bürgermeister and the magistrat. This is the first point of importance to be observed-the power of the conservative element exercised in the election.

A further safeguard in the selection of the bürgermeister is the right of rejection reserved to the crown or its representatives. If the central government is displeased with the choice of the council, it may withhold its sanction and so annul the election. This veto power is so seldom exercised, however, that it acts chiefly as a deterrent force; but it has occasionally been brought into active service. In 1901, for

* Zimmermann, Versuch einer historischen Entwickelung der märkischen Städteverfassungen, iii, 29.

'For a discussion of this system, see R. C. Brooks on The Three Class System, in Municipal Affairs, iii, 396ff.