occurred where an attempt has been made by the courts to review them for irregularity by certiorari or otherwise.

The most remarkable cases were two removals by State legislatures of judges for obedience to the Federal Constitution: that of Judge Loring in Massachusetts for the enforcement of the Fugitive Slave Law; and that of Judge Hindman in West Virginia for following a decision of the Supreme Court of the United States which overruled a decision of the State court of appeals and held a statute unconstitutional which disqualified attorneys for participation in the Rebellion."

§ 97. Preliminary Proceedings on Impeachments. An impeachment is usually preceded by the presentment to the House of Representatives of charges against an officer, either by a message from the President,1 the petition of a private citizen,2 or the speech of a member of the House. Thereupon a committee is usually appointed to consider and report upon the charges, which takes testimony concerning the same. If the accused demands a hearing before the committee, that is usually accorded to him, although the committee has discretionary power in that respect. If the committee determines that the officer should be impeached, it makes a report containing a statement of the charges and a recommendation of a resolution that he be impeached therefor. On the adoption of the resolution by the House a committee is appointed to impeach him at the bar of the Senate, to state there that articles against him will be exhibited in due time and made good before it, and to demand that it take order for his appearance to answer to the impeachment. Thereupon, the Senate usually refers the resolution to a committee appointed for that purpose. This committee reports a preamble reciting the proceedings on the part of the House before the Senate; and a resolution: "that the Senate will, according to its standing rules and As in Chase's Case (Smith's ed.),

Camant. Compare John Quincy Adams' Diary, vol. i, p. 255. The weight of authority, however, supports such removals. See Appendix, infra.

5 See Appendix, infra.

§ 97. 1 As in Pickering's Case, Annals of Congress, 1802-1803, p. 460. 2 As in Peck's Case, p. 1.

orders in such cases provided, take proper order therein, (upon presentation of the articles of impeachment), of which due notice will be given to the House of Representatives"; and that the Secretary of the Senate acquaint the House therewith; which is accordingly adopted.

§ 98. Articles of Impeachment.

The articles, as the charges are termed, are then prepared by a committee of the House of Representatives, and after they have been reported to and approved by the House, they are presented in a like manner to the Senate. It is customary to have them signed by the speaker and attested by the clerk of the House.

In Edmonds' case, the constitution of Michigan provided that no impeachment should be tried by the State senate until after the final adjournment of the legislature.1 A statute was passed authorizing the State house of representatives to empower the managers of an impeachment "to prepare and present articles of impeachment in accordance with the resolutions of said House."2 It was held against the objection of the respondent, which was ably argued, that the statute was constitutional and that articles. prepared and presented to the senate by the managers after the house had passed a resolution of impeachment were sufficient although not presented to the house.3 In Barnard's case, the New York constitution provided that "The assembly shall have the power of impeachment by a vote of the majority of all the members elected."4 The assembly journal showed that the resolution of impeachment passed by the constitutional majority, but was silent as to the number who voted to adopt the articles, and did not set forth the articles at length. The articles were not authenticated by the signature of the speaker. The respondent filed a plea, that the articles were not adopted by a majority of the members elected to the assembly, to which the managers replied traversing this allegation. Against the objection of the respondent, oral testimony was admitted to prove that the articles were adopted by a majority vote and to identify the articles pre

6 Belknap's Impeachment Trial, p. 8. § 98. 1 Constitution of Michigan, Art. XII, Sec. 3.

2 Michigan, Act of March 30, 1872.

8 Edmond's Impeachment Trial, pp. 86-184, 188, 1866, 1869-1879.

4 New York Constitution of 1846, Art. VI, Sect. 1.

sented to the Senate with those adopted by the assembly; upon which the plea was overruled.5

On the trial of Judge Page in Minnesota, a plea to the jurisdiction contained in the respondent's answer set up that the journal of the house of representatives did not show the articles of impeachment had been approved by the vote of the majority of the members elected. The journal showed simply "That the articles were presented and duly adopted." Without taking testimony the senate overruled the plea.

In Holden's impeachment trial in North Carolina, the house of representatives made an order amending an article of impeachment by substituting another person for the one originally named as innocent of the unlawful act charged against the respondent. An objection was made to this amendment upon the ground that it could not be allowed unless new witnesses were examined before the house, or a committee thereof, in support of this charge. The amendment was allowed without this requirement. The answer was thereupon amended so as to meet this new article and a replication thereto made by the house. In Hubbell's case in Wisconsin the managers were allowed to amend the articles by correcting an error in the name of a place mentioned in the specifications. A new plea and answer were then filed to the amendment; and the respondent's counsel claimed that the senate should be resworn.9

The New York court for the trial of impeachments held in Barnard's case that it had no power to grant a motion by the respondent to strike out part of an article or to compel an amendment of the same.10 The supreme court of Nebraska held that the legislature could not delegate to the managers the power to make such a substantial amendment as amounted in effect to a new article.11

5 Barnard's Trial, pp. 66, 67, 97–146. 6 Page's Impeachment Trial, pp. 101-110; infra, Appendix.

7 Citing opinion of Attorney-General Charles Lee, American State Papers, vol. xx, p. 101.

8 Holden's Impeachment Trial, pp. 61-72, 100, 101, supra, § 94; infra, Appendix. See the argument of Mont

gomery Blair, counsel for the respondent in Belknap's Impeachment Trial, p. 100.

• Hubbell's Impeachment Trial, pp, 187-188, 241, 533.

10 Barnard's Impeachment Trial, pp. 192, 193.

11 State V. Leese, Ex-AttorneyGeneral, 37 Neb., 92, 94.

In Page's impeachment trial the counsel for the respondent moved to quash one of the articles as insufficient, because indefinite. The motion was denied, with a provision that no evidence should be received under the article unless the managers should on or before a certain date furnish and file in the case a bill of particulars to that article. The counsel for the respondent objected to this upon the ground, that it amounted to a permission to the managers to amend the article without any action of the house of representatives thereupon, and was in effect a permission to the managers to present a new article of impeachment, which power even the house itself could not have delegated to them; but the objection was overruled.12

The articles need not pursue the strict form of an indictment.13 Great looseness is allowed in their construction; and it is customary to mingle rhetoric as well as arguments with the statements of fact which they contain. In England, no demurrer to an article of impeachment has ever been admitted; 14 but our American practice affords more safeguards to the accused.15 The articles must contain sufficient certainty to enable the respondent to properly pre

12 The article was as follows:"Article X. Throughout the term of office of said Sherman Page as Judge of the district court in and for said county of Mower, to wit: since or or about January 1st, 1873, he, the said Sherman Page, as such judge, has habitually demeaned himself towards the officers of said Court and towards the other officers of said county of Mower, in a malicious, arbitrary and oppressive manner and has habitually used the power invested in him as such judge to annoy, insult and oppress such officers, and all other persons who have chanced to incur the displeasure of him the said Page." (Page's Impeachment Trial, pp. 20, 163, 172, 232.)

13 Lord Wintown's Impeachment Trial, Howell's State Trials, vol. xv, pp. 875-891; Report on the Lords' Journals, Burke's Works, Little & Brown's ed., vol. xi, pp. 13-41; Woode

son's Lectures, vol. ii, pp. 605, 606; Comyn's Digest, Parliament, L. 21; Foster's Crown Law, pp. 389, 390; Story on the Constitution, 5th ed., § 808; Manager George Frisbie Hoar, Belknap's Impeachment Trial, pp. 73– 75. In Barnard's Impeachment Trial, Judge Allen said (at p. 2041): "If he has been guilty of mal or corrupt administration of his office of Judge of the Supreme Court, and the facts constituting the alleged malfeasance, and the actions or proceedings on which the orders were made or judgments given are set forth distinctly and clearly in the articles, he can be convicted, although the particular intent with which the acts were done or the particular inducement by which he was led to act are not alleged."

14 Report on the Lords' Journals, Burke's Works, Little & Brown's ed., vol. xi, p. 13.

15 Infra, § 103.

pare his defense and to avail himself of an acquittal thereupon as a bar to another impeachment.16 It is usual, when the article charges a course of conduct, to include therein a number of specifications of such conduct. In Cox' case, before the Minnesota senate, demurrers to certain articles were overruled, but the board of managers were required to furnish the respondent with specifications as to them. The senate ruled that if no such specifications should be furnished no evidence should be received under those articles; and after the specifications were filed excluded all evidence in support of one of such articles, and dismissed the same."7

§ 99. Service of Process on Impeachment.

As soon as the articles are thus presented, the Senate issues a process summoning the party to appear before it to answer the articles at a given day. This process is in the form of a summons, reciting the articles and notifying him to appear before the Senate at a time and place named therein, which is fixed by it, to file his answer to the articles, and to abide the orders and judgment of the Senate thereon.1 A precept for the writ naming the time before the return-day allowed for the service is issued to the sergeant-at-arms of the Senate, who serves the writ either in person or by deputy.2 In Johnson's case the return-day of the summons to the President was one week after its issue was ordered.3 In Belknap's case the return-day was twelve days after the order. In the earlier impeachments, when the accused lived a long distance from the place of trial and the means of travel were more difficult and slow than now, more time was allowed. The summons is served either by the delivery of an attested copy to the person accused; or if that cannot conveniently be done, by leaving