97

would buy up enough votes to defeat him and elect himself." One thousand dollars were paid to Lane's private secretary to procure the senator's signature to a letter recommending the purchase, which signature was subsequently procured through the private secretary, by a misrepresentation as to the character of the letter signed. Bonds to the amount of $56,000 were sold to the United States accordingly at eighty-five per centum on their amount. The State only received sixty per cent. The remainder was retained by Stevens. With whom he divided did not appear. At the same time certain State bonds held by the auditor and secretary of state were sold to the government of the United States in the same lot, at the same price, and seventy cents on the dollar was paid to their owners for the same.

John W. Robinson, state secretary of state, and George S. Hillyer, state auditor, were convicted on the article of impeachment charging these facts, and sentenced to a removal from office, but not to disqualification.98 The governor, Charles Robinson, was acquitted upon the ground that there was no evidence of his complicity in the act.o

99

Other articles of impeachment were presented against the same three officers, charging other offenses connected with the sale of the same bonds, and in the case of the secretary of state, charging him with authorizing a public advertisement in a pretended county newspaper which was not in fact published in such county, in countersigning certain bonds, and in authorizing the withdrawal of a bid for public printing after its acceptance. They were acquitted on all of these.

After the conviction of the secretary of state, it was charged that one of the senators had endeavored to obtain a bribe of three thousand dollars in return for his vote for an acquittal. An investigation was ordered. The editor of the Topeka "Tribune" testified that on the day before the final vote he was approached by a member of the senate who told that there were seventeen senators ready to vote to impeach John W. Robinson; that if the speaker voted in favor of the acquittal, other senators would go with him; and that if he was paid $5,000 in cash, he would vote "not guilty." The witness had in his pocket about $4,500 in scrip and offered the senator $2,000. Subsequently, the witness talked to one of the respondent's attorneys, saying: "I had offered so much money on my own responsibility, and that afterwards I would expect to have the money returned, if none was handed to me before." On the day when the vote took place, between the morning and afternoon sessions, he again met the senator and told him that he might draw on him for $3,000 if he wished for his vote, but the senator replied: "It is too

96 Ibid., pp. 145, 160.

97 Ibid., pp. 146, 147, 154.

98 Ibid., pp. 348, 349, 392, 396.

99 Ibid., pp. 392, 425.

late." The senator had also told him that he could get an office under the general government worth $2,000, in case he voted for the conviction of John W. Robinson, which would be obtained through Senator Lane. The witness refused to state the name of the senator with whom he had the conversation. Each of the senators who was present testified that he had no such conversation. Thereupon it was voted, "that it was the opinion of the senate that the charges against the members of this body of corruption are untrue, and that no further action be taken in the premises." The witness was then discharged, without any attempt to compel him to disclose the senator's name.

66

66

100

recom

In 1891, Theodosius Botkin, judge of the thirty-second judicial district, was impeached by the house of representatives and tried before the senate of Kansas. The articles charged him with habitual and repeated drunkenness both on and off the bench; with the illegal purchase of intoxicating liquors and frequenting "drug-stores" where he knew that liquor was sold in violation of the law; with blasphemy in a socalled drug store"; with unlawful imprisonment in a proceeding to punish as a contempt the circulation of a petition for his impeachment which made similar charges to those contained in the other articles; with issuing a fictitious or fraudulent warrant of arrest," without any sworn complaint such as the law required; with ordering a court stenographer to erase from his notes an exception taken on a trial; and with being party to a corrupt conspiracy for the robbery of a city treasury, wherein, without any statutory authority, he appointed" a receiver of the city treasury, which contained less than $7,759 68," mended the city council to employ a certain attorney to represent them in the litigation, at midnight signed an order directing the payment by the receiver of $4,000 to the attorney, which the council had voted an hour before to pay him for his services, exhausted the balance left in the treasury by other illegal warrants which he approved, and then discharged the receivership. The trial is interesting from the picture it gives of the State of civilization in Kansas and the condition of drugstores in a prohibition State. Demurrers were sustained to the articles which charged drunkenness when not engaged in his official duties, the illegal purchase of intoxicating liquor, and the frequenting of places where he knew that liquor was illegally sold." The acts charged were substantially proved, leaving the intent of the accused the sole question in issue, except as regards the drunkenness and blasphemy, concerning which the evidence was conflicting. The main point on which the counsel for the respondent relied, which was reiterated 100 Ibid., pp. 354-376. 101 Supra, § 93.

101

throughout the examination of witnesses and the arguments, was that Botkin was a Republican, as were also a majority of the senate, and that the impeachment was voted by the members of the Farmers' Alliance in the lower house. The attorney to whom the judge gave the four thousand dollars from the city treasury was not only a witness but the leading counsel for the respondent, and the coarseness of his cross-examinations and speeches throughout the case, which were unchecked by the senate, illustrate the character of the court. The respondent was acquitted by a majority, and in some cases by a unanimous vote of "not guilty" on the articles charging drunkenness and blasphemy. On the other articles the votes stood eighteen to sixteen and eighteen to seventeen against him; and as two-thirds failed to vote for conviction he was finally acquitted. 102

IOWA.

In 1886, John L. Brown, auditor of the State of Iowa was impeached, tried and acquitted by the State senate. The articles charged a failure to keep proper accounts and to make reports of the fees collected by him from insurance companies, banks and others; inducement by a bribe of one hundred dollars to omit to direct the attorney-general to institute proceedings for the appointment of a receiver of an insolvent bank; certifying that that bank was solvent; drawing and collecting and issuing warrants on the treasurer without vouchers; refusing to obey an order by the governor suspending him from office; continuing to exercise the functions of his office after such suspension; refusing to allow the governor to inspect his books; allowing to act as his deputy a man whose appointment the governor had refused to approve; paying such deputy a salary and money beyond his salary by warrants on the State treasury; and compelling the payment to himself and his deputy of illegal fees by banks and insurance companies which were subject to his suspension.103

MISSOURI.

In Missouri there have been three impeachments. In 1826, Richard S. Thomas, a circuit judge, was impeached, convicted and removed.

102 Daily Journal of the Senate Trial of Theodosius Botkin, Judge of the 32d Judicial District, before the Senate of the State of Kansas, on Impeachment by the House of Representatives, for Misdemeanors in Office. April, 1891. Published by order of the Senate. Topeka, Kansas, Publishing

House; Clifford C. Bowker, State Printer, 1891. Volumes i and ii. pp. 1426.

103 Journal of the Senate of Iowa, sitting as a Court of Impeachment for the Trial of John L. Brown, Auditor of State. Des Moines Iowa Printing Company, 1886. pp. 2610.

He had refused to recognize the rightful clerk of his court under the pretense that the adoption of certain amendments to the State constitution had vacated the office; had put his own son in the place of the clerk; had refused to hold court until the clerk had surrendered the papers to his son; and had thus forced him to resign. This conduct was the subject of two articles of the impeachment. The third article charged him with becoming security on an appeal by his son to his own court from the judgment of a justice of the peace; ordering of his own motion a change of venue of the appeal without the request or consent of either party; and when the court to which the venue had been changed sent it back for want of jurisdiction, adjourning the trial from term to term of his own motion without the consent of the party who had recovered judgment against his son below. The fourth article charged, that, while a warrant was out on a charge of murder, he agreed with the counsel for the accused that the latter, if he surrendered, should be admitted to bail, and that no testimony should be taken against him; and that he fulfilled this promise and discharged the accused on bail after his surrender, declaring that it was not his business to procure the attendance of witnesses, although he well knew that several witnesses acquainted with the facts lived within a short distance, and that their attendance could be procured within a short time. Judge Thomas was convicted on all these articles.104

In 1859, the State house of representatives, by a vote of seventynine to thirty-four, impeached Albert Jackson, a circuit judge. The main articles of impeachment charged that he was guilty of insulting, oppressive and tyrannical conduct towards parties and counsel; had imposed illegal imprisonment; had refused the writ of habeas corpus; had advised parties and counsel out of court in regard to cases which afterwards came before him-in one case advising a young attorney to procure a retainer upon a contingent fee to defend a case on a point which he suggested and afterwards sustained; that he had refused to give fair bills of exceptions; that he had improperly interfered with a grand jury to prevent his own indictment for gaming; and that he had been guilty of gross partiality on several trials both criminal and civil, in one of which the defendant was convicted of murder, where he had also refused a fair bill of exceptions. One of the managers was James Proctor Knott who afterwards gained celebrity by his speech in Congress on Duluth. His speeches on this trial, although florid, are forcible, logical and well

104 The writer has been able to find no report of this trial. The articles may be found in the argument of

Manager Charles H. Hardin, in Jackson's Impeachment Trial. Public Printer, Jefferson City; pp. 336-337.

worth reading. The judge defended himself in person. His answer is a model of technical pleading. It even contained this traverse: "Said Jackson does not know that the experience of ages has demonstrated that the writ of habeas corpus is one of the chief bulwarks of the liberty of the people; joins issue and takes the negative of that proposition." The principal facts alleged in the articles were proved by uncontradicted evidence, leaving the intention of the accused the main matter in doubt. His evidence consisted mostly of laymen on his circuit who had not thought his judicial manners oppressive, contumelious and insulting. His defense was able, but his language throughout the trial showed that his temper unfitted him for a judicial position. A majority, but less than two-thirds, all of whom apparently were Democrats, voted for his conviction on the principal articles. The minority was almost, if not quite entirely, composed of the members of the political party in opposition, to which he apparently belonged; and they attempted to prevent the publication by the State of the proceedings.'

105

In 1872, Philander Lucas, judge of the fifth judicial circuit in Missouri, was impeached and tried before the State senate. The articles charged that he had certified to bills of costs in blank against a county in his circuit, allowing the clerk to fill them in; that he had certified to fraudulent charges in other bills of costs; had with a reckless disregard of the public interests and for the purpose of assisting a friend, dismissed at the defendant's costs a prosecution for selling liquor without a license; and had connived at and permitted a practice by the circuit attorney of multiplying indictments against insolvents who were unable to pay the costs, and in permitting and ordering attachments against witnesses whom he knew to be present, for the purpose of multiplying the attorney's fees. The respondent answered and defended. The articles were withdrawn at the conclusion of the evidence offered in their support.106

CALIFORNIA.

In 1851, Stephen J. Field, afterwards a Justice of the Supreme Court of the United States, and other members of the bar, presented to the

105 Official Report of the Trial of the Hon. Albert Jackson, Judge of the Fifteenth Judicial Circuit, before the Senate, composing the High Court of Impeachment of the State of Missouri. Reported by Thomas J. Henderson. Jefferson City: W. G. Cheeney, Public Printer, 1859; pp. 480.

106 Official Report of the Trial of Philander Lucas, Judge of the Fifth Judicial Circuit, before the Missouri State Senate, sitting as a High Court of Impeachment, June, 1872. Jefferson City: Regan & Edwards, Public Printers, 1872; pp. 323.