TRIAL BY IMPEACHMENT

TRIAL BY IMPEACHMENT

by
Prof. Theodore W. Dwight

Source: The American Law Register (1852-1891), Vol. 15, No. 5, New Series Volume 6 (Mar., 1867), pp. 257-283.

THE subject of trial by impeachment has recently assumed extraordinary importance. As it is a topic which lies beyond the ordinary range of legal study (this mode of trial being rarely exercised and practically dormant), I have thought it well to seize upon the factitious interest which at present attends it, to make some impression upon your minds. Although the knowledge of this subject is but of comparatively little direct advantage to a law student, yet it is not altogether without its uses, as it sheds light upon some prominent historical questions, and gives to the biographies of some of the most eminent men of England a tragic and pathetic interest. Circumstances also tend to show that impeachment will be more prominent in politics than formerly, so that new reasons for comprehending the subject are now presenting themselves.

The Constitution of the United States simply refers to the subject of impeachment without defining it. It assumes the existence of this mode of trial in the law, and silently points us to English precedents for knowledge of details. We are reminded of the statement, so often considered before, that “the constitution is an instrument of enumeration, and not of definition.” This consideration serves to point out the difficulty and delicacy of the subject. The precedents to be examined are scattered over numerous volumes of state trials, or are collected in ill-arranged and now-forgotten treatises. They were rendered during the excitements of the most heated party contests; they were produced under the inflammatory harangues of demagogues and party leaders; interest, fear, and faction operated upon the minds of the court, which, though an august tribunal, is easily swayed, or at least affected, by the influences which beset a legislative assembly, of a kind unfavorable to the calmness of judicial action. Add to this that the case has but a single dis¬cussion. In all our ordinary judicial proceedings we have courts rising one above another in rank, in which repeated discussions are had, and a wide opportunity is given for the detection of errors and the rectification of mistakes of judgment. But in the grave questions decided on an impeachment, a single tribunal disposes of the question absolutely and for all time. It is doubt¬ful whether there is any power to reverse a judgment once pronounced, though the court itself is convinced of its mistake. There should be no reversal, of course, when the criminal has been once acquitted.^[[1@258]]

With these introductory remarks, I proceed to a consideration of the topics of the lecture.

It will be discussed under four principal divisions:

I. THE NATURE OF AN IMPEACHMENT.

II. THE CRIMES FOR WHICH THIS MODE OF PROSECUTION MAY BE RESORTED TO.

III. THE METHOD OF PROCEDURE.

IV. GENERAL REMARKS.

Footnotes

^[[1]] A singular embarrassment arose in the trial of Attorney-General Herbert. The House of Lords had resolved that the Attorney-General should not lose that office. At a subsequent stage of the proceedings they resolved that he be incapable of holding any office whatever, except the one he now holds, though it was for misconduct in that office for which he was impeached: 4 How. S. T. 129.