The Charleston daily news. [volume] (Charleston, S.C.) 1865-1873, 1867-10-22
THE LAW OF IMPEACHMENT.

| puploucu u ulOsb lllteTcSlllS ultCiC vi <h'iNS
and Suspension from Office in case of the I'm
peachment Of the President" from which we ex
tract the following lengthy quotation from PROBES
sor Theo. W. Dwight, prepared as lecture to The
students of the Columbia College Law School, New
York, and published at length in the American
Law Register, March, 1867:
"lmpeachments are but method Of trying
offences" Is How, S. L. 6S. can Impeachment
is course OF proceeding for treason, the same as
in case OF grand jury, which is another method.
Is Id. 795. 'They Impeachment and indiotment)
differ in point OF FORM Id. $50. Impeachment
IS In the nature OF an indictment. There must be
sufficient statement to bring the accused to plead
and not to demur," per Finch, 16 Id. 354. Such is
| the language Of many authorities.
Upon this topic it is important to make two in
quirles First. What were the subjects under the
English law, which could be tried by impeach-
| ment second, what cases under our systom can
| he tried in this manner. In examining the first
| question: 1t must be conceded that the judgments
| OF the courts are not absolutely uniform. This
could hardly be expected both because there is no
system OF appeal, by means OF which authoritative
precedents could bo established, and because the
House OF Lords has been at times mpelled by 1ac-
ton, or overborne by impoltun or overdwcd by
fear. lhe weight Of authority is, therefore, to be
followed" So said the great Selden, in speech
which he r,ade as one of the Committee OF the
House in the impeachment of Ratcliffe. ut were
| better to examine this matter according to the
| rules and foundations of this House than to rest
| upon scattered instances" "a How. S. L. 47.)
The decided weight of authority Is, that no I'M
peachDlent will lie except tor true crime, or IN
other words, for breach Of the common or statute
la%, which, il committed within any county OF
England, would De the subject OF indictment or in
formation. This proposition is plainly inferred
Fl IN the doctrine already established, that I'M
peachmont is simply a method OF rocedure. 1t
presupposes the existence of the crime for the re-
dress OF which q trial is instituted. What would
have been the check upon the most arbitrary ac-
ton Of the House of Lords, if it might decide the
existence OF common law crime, without REFER
ence to already settled rules? This tribunal was
only rarely called to act. During the reign OF the
Tudor family its functions entirely suspended.
The rules OF the common law courts were In daily
discussion and exercise. The fundamental dis
tinction between fclonies and misdemeanUrs was
fully recognized by the House OF Lords in cases OF
Impeachment
1t is asserted, without fear of successful contra
diction, both upon authority and principle, not
withstanding few isolated instances apparently
to the contrary, that no impeachment can be had
where the Kings Bench would not have eld tnat
crime had been committed, had the case been
properly before it. There are, no Doubt extreme
cases favoring an opposite view. Thus, the Duke
OF Richmond was impeached in l64l among otter
frivolous charges, on the ground that he had pro-
posed an adjournment while member o. the
House Of Lords. The Commons were so offended
with him for attempting to check the enactment OF
bill which they ad much at heart, that they ac-
companled the impeachment with petition to the
King to remove the Duke from oil offices OF public
trust in which petition the Lords refused to JOIN.
a How, s. L. 120) This is but the excess OF the
lower House. resolved that no obstacle shall stand
III the way OF s shortest path to its destined goal
IT, early times quarrel between great nobemen
excited the interest OF the public to such all extent
that the matter was brought up tor disposition in
Parliament. In such feud between the Bishop
Of Winchester and the Duke of Gloucester, a, ID.
1451, there Has formal award of the acquittal OF
the party accused, and the Lords "enjoincd them
to be firm friends for the future, and by such in
ducements wrought upon them that they shook
hands, an6 parted with all outward signs OF love
and agreement which gave mighty satisfaction
to all people," Il How, s. T., 1921 Perhaps no
ingenious plan has been devised to settle the
strlfes of embittered politicians, since, while it
sOothes the spirit it secures potoriety.
A strong instance OF the exercise Of broad
power OF impeachment is found in the last charge
the worthless judges of Charles Ills reign. (Ch.
j. Scroggs.) Its words are: "Whereas said W.
Scroggs being advanced to be Chief Justice OF the
Court Of Kings Bench ought, by sober, grave
and Urtuous 06nyers alton to nave given good
example to the Kings liege people, and to demean
himself answerable to the dignity of so eminent q
station; yet he. said Sir w. Scroggs, OH the con-
trary, by his frequent and notorious excesses and
debaucheres, and his profane and atheisteal dis
courses, doth daily affront Almighty God, dishon-
or his Majesty, give countehance and encourage
ment to all manner OF vice and wicke1ncss, and
bring the highest scandal on the public justice of
the kingdom"
This was an article in an impeachment for high
treason The Articles were never tried, so that
they only serve to show how far tho doctrine of
constructive treason" may he pushed by inge-
NOUS committees. t13 Lords Journals, 1919
The danger OF q loose construction of the iu-
dicial power Of legislative body was most strik-
ingly shown when tho House Of Commons, during
the revolution, in consequence OF the abolition of
the House OF Lords, had centered within it both
the power OF impeachment and the power Of trial.
At the triaIof James Nayor, an insane ranter, who
would now be sent to u lunatic asylum, there yas
a large minority voting ~ p.st him 10 death for
bsasphemy. The majority prevailed by deciding
to whip him, set him in the pillory, bore his
tongue through with hot iron, and to confne
him in Brideweil at hard labor.
While the irregular cases upon th.. subject arc
few, the rule that true crime must ilave been
committed is settled beyond dispute. This is
clearly shown by The way in which the House OF
Commons when flushed with power or chafed with
Indignation rebel againstt. Over and over again
they assert THAI the great statute OF 25 Edw. ILL.,
defining treason, is not applicable 10 trial by i'm
peachment.
They plausibly maintained that the statute was
only for the courts of ordinary criminal justice,
and that the statute itself applied different rule
to trial By impeachment. Gut the law was set
tied, after the most extended and prolonged dis
cussions, in favor Of the doctrine that the court OF
impeachment must administer tho same law as
the criminal court. 12 How, =. T., 1918; 9 Id,
346.) Thds the Earl of Oviery was not tired in
A. D. 1863, as the offence charged was thought not
sufficient to constitute treason, and the case was
directed to be heard in o court of law. G How,
s. l., 917) Inthe case of lingo Jones, against
whom charge Was made OF Pulling down q
church, the Commons refused to impeaah, on the
ground that it was q matter OF private .::gint.
q Hatselrs Precedents, l32)
fnha efriDunDcv ~
Houses, when under excitement, TO pass bills of
attainder. They could enact that ali obnoxiou;
person was guilty. II they could not prove his Of
fence. This course was resorted to in the we'll
known case of the Earl of Srafford. So, too, when
the Earl OF Clarendon, in Charles the Seconds
time could not be successfully impeached, the
King intended to bring him before the Court OF
the Lord High Steward, which could be organized
so as to secure conviction. 8 Campbell's Lord
Ohancellors 24S-4, QIond. Ed, 1881
The later and most authoritative decisions arc
clear to this effect. In the impeachment of the
Earl of Macclesfeld, who was great lawyer, and
at one time Lord Chancellor, the case was put ex-
clusivey On sueh criminahty as Is the subject OF
an indictment. 1t was argued that he had VIOLA
ted the statute Of Ed. VI. C. IL. concerning the
administration OF Justice, while he rested his de-
fencs ON the fact that it was not criminal for
Judge to receive presents, either by common or
statute Jaw. The decision OF this case against
Macclesfcd is criticised by Lord MahQn and 9th
erS Dut Is ucIeIQeU Dy IiinpDeli, Oh lue Riouuu
that the statute of Ed 9th was violated; 1G How.
s. T. 1913; Camp, Lord Chan. $50. This is one
OF the best-considered cases on the subject. and
| preceded the formation of our Constitution by
only few years. The last case 9f impeachment
in England, that af Lord Melville, in 1906 ,T for
malversatiOn in Office, is very instructive. The
question was put to the judges whether the acts
With which he was charged were unlawful, so
as to be the subject of information or Indictment;
| 1t having been decided that they were not, Lord
Va ocuutte1. How g ~ 1t7O These
last two decisions, made when there an entire
| absence OF party feeling, and the court acted
throughout with judicial impartialty, dcscrvedly
outweighs scores OF instances, if they could be
produced, which have occurred ii. the heat and
phrenzy of revolution. Tie court in general re-
les with close dependence upon the opinion Of the
commo n-law judges on the law of CT inc and cri-
minal evidence, often exacting their continuous
attend ance, to the detriment OF other public bus-
ness. H. o,7s ;,o,;reJ of
tbe ;ndges if there was any treason. AS they an
swefed In tho negative, it was so decided; q Hdt; @