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[Hinds Precedents -- Volume III]
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[DOCID: f:hinds_lxxix.wais]

 
                             Chapter LXXIX.

            IMPEACHMENT PROCEEDINGS NOT RESULTING IN TRIAL.

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   1. Inquiries into the conduct of judges:
       George Turner in 1796. Section 2486.
       Peter B. Bruin in 1802. Section 2487.
       Harry Toulmin in 1811. Section 2488.
       William P. Van Ness, Mathias B. Talmadge, and William 
     Stephens in 1818. Section 2489.
       Joseph L. Smith in 1825 and 1826. Section 2490.
       Buckner Thruston in 1825 and 1837. Section 2491.
       Alfred Conkling in 1829. Section 2492.
       Benjamin Johnson in 1833. Section 2493.
       P.K. Lawrence in 1839. Section 2494.
       John C. Watrous in 1852 and following years. Sections 2495-
     2499.
       Thomas Irwin in 1859. Section 2500.
       A Justice of the Supreme Court in 1868. Section 2503.
       Mark H. Delahay in 1872. Sections 2504, 2505.
       Edward H. Durell in 1873. Sections 2506-2509.
       Charles T. Sherman in 1873. Section 2511.
       Richard Busteed in 1873. Section 2512.
       William Story in 1874. Section 2513.
       Henry W. Blodgett in 1879. Section 2516.
       Aleck Boarman in 1890. Sections 2517, 2518.
       J.G. Jenkins in 1894. Section 2519.
       Augustus J. Ricks in 1895. Section 2520.
   2. Inquiry as to conduct of Collector of Port of New York. 
     Section 2501.
   3. Investigation of charges against Vice-President Colfax. 
     Section 2510.
   4. Inquiry as to consular officers at Shanghai. Sections 2514, 
     2515.

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  2486. The inquiry into the conduct of Judge George Turner in 1796.
  In 1796 the House discontinued impeachment proceedings against a 
Territorial judge on assurance that he would be prosecuted in the 
courts.
  Opinion of Attorney-General Charles Lee as to impeachment of a 
Territorial judge holding office during good behavior.
  Advice of Attorney-General Lee as to mode of instituting and 
continuing impeachment proceedings.
  On receipt of a petition containing charges against a judge, the 
House, in 1796, instituted an investigation.
                                                            Sec. 2486
  On April 25, 1796,\1\ a petition was presented in the House from 
sundry inhabitants of the county of St. Clair, in the Territory 
northwest of the Ohio River, stating certain grievances and 
inconveniences to which they had been subjected by the unwarrantable 
conduct of George Turner, one of the judges of the said Territory, in 
the exercise of his official duties, and praying that such relief might 
be granted in the premises as should seem meet to the wisdom of 
Congress. This petition specified that the judge held a court ``unknown 
to and contrary to the laws of the Territory'' at a remote and 
inconvenient place; that he imposed heavy fines and forfeitures; that 
he denied the right reserved to the people by the constitution of the 
Territory, especially as regarded the descent and conveyance of 
property, and the use of the French language; and that he managed the 
affairs of interstate persons to the damage of the heirs and creditors.
  The House referred the petition to a committee composed of Messrs. 
Theophilus Bradbury, of Massachusetts; Nicholas Gilman, of New 
Hampshire; Thomas Hartley, of Pennsylvania; John Heath, of Virginia, 
and Alexander D. Orr, of Kentucky.
  On May 5,\2\ the committee were discharged from further consideration 
of the petition and the same was referred to the Attorney-General for 
his opinion thereon.
  On May 9,\3\ Charles Lee, the Attorney-General, transmitted his 
opinion:

  That the charges exhibited in the petition against Judge Turner, and 
especially the first, second, and fifth, are of so serious a nature as 
to require that a regular and fair examination into the truth of them 
should be made, in some judicial course of proceeding; and if he be 
convicted thereof, a removal from office may and ought to be a part of 
the punishment. His official tenure is during good behavior; and, 
consequently, he can not be removed until he be lawfully convicted of 
some malversation in office. A judge may be prosecuted in three modes 
for official misdemeanors or crimes: by information, or by an 
indictment before an ordinary court, or by impeachment before the 
Senate of the United States. The last mode, being the most solemn, 
seems, in general cases, to be best suited to the trial of so high and 
important an officer; but, in the present instance, it will be found 
very inconvenient, if not entirely impracticable, on account of the 
immense distance of the residence of the witnesses from this city 
[Philadelphia]. In the prosecution of an impeachment, such rules must 
be observed as are essential to justice; and, if not exactly the same 
as those which are practiced in ordinary courts, they must be 
analogous, and as nearly similar to them as forms will permit. Thus, 
before an impeachment is sent to the Senate, witnesses must be 
examined, in solemn form, respecting the charges, before a committee of 
the House of Representatives, to be appointed for that purpose, as in a 
case of indictment witnesses are examined by a grand jury. Upon the 
trial the witnesses must give their testimony before the Senate, as in 
a case of indictment they do before the ordinary court and petit jury; 
so, also, perhaps, it would be proper that some responsible person or 
persons should undertake to answer the costs of trial to the accused, 
in the event of his acquittal. It ought to be remarked that, if the 
mode of impeachment be deemed preferable, the aforesaid petition, 
subscribed by forty-nine citizens, may be regarded as sufficient 
inducement to the House to appoint a committee of inquiry, with 
authority to examine witnesses and report the substance of their 
testimony respecting the charges therein set forth, at the present or 
next session; and, if the report of the testimony will warrant an 
impeachment, articles are to be directed to be drawn and presented to 
the Senate, who will appoint a time of trial, giving reasonable notice 
thereof to the accused and to the accusers, etc.
  However, the Attorney-General is of opinion that it will be more 
advisable, on account of the expense, the delay, the certain 
difficulty, if not impossibility, of obtaining the attendance here of 
the witnesses who reside in the Territory northwest of the Ohio, about 
the distance of 1,500 miles, that the prosecution should not be carried 
on by impeachment, but by information on indictment
-----------------------------------------------------------------------
  \1\ First session Fourth Congress, Journal, p. 522; American State 
Papers (miscellaneous), Vol. I, p. 151.
  \2\ Journal, p. 539.
  \3\ American State Papers (miscellaneous), Vol. I, p. 151.
Sec. 2487
before the supreme court of that Territory, which is competent to the 
trial; and he prays leave to inform the House that, in consequence of 
affidavits stating complaints against Judge Turner, of oppressions and 
gross violations of private property, under color of his office, which 
have been lately transmitted to the President of the United States, the 
Secretary of State has been by him instructed to give orders to 
Governor St. Clair to take the necessary measures for bringing that 
officer to a fair trial, respecting those charges, before the court of 
that Territory, according to the laws of the land; which course is also 
recommended to be pursued relative to the matters charged in said 
petition.

  Judge Turner was one of three supreme court judges, ``any two of whom 
to form a court, who shall have a common-law jurisdiction, * * * and 
their commissions shall continue in force during good behavior.'' \1\
  The report of the Attorney-General was, on May 10,\2\ referred to a 
committee composed of the same members originally appointed to consider 
the petition, and they were directed to ``examine the matter thereof, 
and report the same, with their opinion thereupon, to the House.''
  On February 16, 1797,\3\ a memorial was presented from Judge Turner 
praying that the House enter upon an investigation of the allegations 
and charges brought against him in the petition. On February 22 \4\ 
this memorial was referred to the same committee.
  On February 27 \5\ that committee reported that the case should come 
to a hearing before the court of the Territory, where the judge would 
have an opportunity of defending himself.
  The report was laid on the table and not acted on further.\6\
  2487. The inquiry into the conduct of Judge Peter B. Bruin, in 1808.
  Instance of proceedings looking to the impeachment of a judge of a 
Territory.
  The investigation of Judge Bruin's conduct was set in motion by 
charges preferred by a Territorial legislature.
  The House in the Bruin case declined to impeach before it had made an 
investigation by its own committee.
  Instance wherein a Delegate was made chairman of a committee to 
investigate the conduct of a judge.
  On April 11, 1808,\7\ the Speaker presented to the House sundry 
resolutions of the legislative council and house of representatives of 
the Mississippi Territory, preferring certain charges against Peter B. 
Bruin, presiding judge of the Territory, and instructing Mr. George 
Poindexter, Delegate in Congress from the said Territory, to impeach 
the said judge, and pledging themselves, ``in behalf of the people of 
this Territory, to substantiate and make good'' the said charges, which 
were specified as ``neglect of duty and drunkenness on the bench.''
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  \1\ Organic law of Northwest Territory, 1 Stat. L., pp. 51, 286.
  \2\ Journal, p. 548.
  \3\ Second session, Journal, p. 701.
  \4\ Journal, p. 714.
  \5\ Journal, p. 724; Annals, p. 2320. 8
  \6\ It appears that Jonathan Return Meigs was appointed Judge on 
February 12, 1798, but the records of the State Department do not show 
whose place he took. The appointment of Judge Meigs was made two years 
after the proceedings in the House against Judge Turner.
  \7\ First session Tenth Congress, Journal, p. 204; Annals, p. 2068; 
American State Papers (miscellaneous), Vol. I, pp. 921, 922.
                                                            Sec. 2488
  Mr. Poindexter thereupon presented resolutions as follows:

  Resolved, That a committee be appointed to prepare and report 
articles of impeachment against Peter B. Bruin, one of the judges, of 
the superior court of the Mississippi Territory; and that the said 
committee have power to send for persons, papers, and records.

  In the debate it was objected by Mr. Timothy Pitkin, Jr., of 
Connecticut, that it would hardly be dignified for the Congress to 
proceed to an impeachment on the authority of a resolution of the 
legislature of a State or Territory. A committee should first be 
appointed to inquire into the propriety of impeaching. Mr. John Rhea, 
of Tennessee, drew a distinction between the legislature of a State and 
that of a Territory, and, furthermore, did not consider the resolutions 
of a legislature conclusive evidence of fact.
  Thereupon Mr. Poindexter modified his resolution by striking out the 
words ``prepare and report,'' and inserting the words ``inquire into 
the expediency of preferring.'' He further stated that he had seen 
Judge Bruin on the bench in a state of intoxication.
  On April 18 \1\ the House further amended the resolution, and agreed 
to it, as follows:

  Resolved, That a committee be appointed to inquire into the conduct 
of Peter B. Bruin, a judge of the superior court of the Mississippi 
Territory, and report whether, in their opinion, he hath so acted, in 
his official capacity, as to require the interposition of the 
Constitutional powers of this House; and that the said committee have 
power to send for persons, papers, and records.

  The committee were appointed as follows: Messrs. Poindexter, Samuel 
W. Dana, of Connecticut; Jesse Wharton, of Tennessee; Benjamin Howard, 
of Kentucky; Jeremiah Morrow, of Ohio; Joseph Calhoun, of South 
Carolina; and John Campbell, of Maryland.
  On April 21 \2\ Mr. Morrow reported a resolution which, after 
amendment, was agreed to as follows:

  Resolved, That George Poindexter, chairman of the said committee, be 
authorized to cause to be taken before a magistrate or other proper 
officer such depositions in relation to the official conduct of the 
said judge as, in his judgment, may be material to the inquiry, having 
first notified the said Bruin of the time and place, or places, of 
taking such depositions, so that he may give his attendance; and that 
the depositions so taken be laid before Congress at their next session.

  On April 25 this session of Congress adjourned.
  It does not appear that the matter was again taken up. On March 7, 
1809, as the records of the State Department show, Francis Xavier 
Martin was appointed judge, indicating the death or resignation of 
Judge Bruin.
  It appears that the judges of the court of Mississippi Territory, 
like the judges of the territory northwest of the Ohio, held office 
``during good behavior,'' such being the provision of the statutes.\3\
  2488. The inquiry into the conduct of Judge Harry Toulmin, in 1811.
  Instance of proceedings looking to the impeachment of a judge of a 
Territory.
  The inquiry as to Judge Toulmin was set in motion by action of a 
grand jury forwarded by a Territorial legislature.
-----------------------------------------------------------------------
  \1\ Journal, p. 277; Annals, p. 2189.
  \2\ Journal, p. 286; Annals, p. 2251.
  \3\ 1 Stat. L., pp. 51, 550.
Sec. 2488
  In Judge Toulmin's case the House, after investigating in a 
preliminary way, declined to order a formal investigation.
  On December 16, 1811,\1\ the Speaker laid before the House a letter 
from Cowles Mead, speaker of the house of representatives of the 
Mississippi Territory, inclosing the copy of a presentment against 
Harry Toulmin, judge of the superior court for the Washington district, 
in said Territory \2\ made by the grand jury of Baldwin County, 
specifying charges against the said judge, which were read and ordered 
to lie on the table.
  Mr. George Poindexter, Delegate from Mississippi Territory, also 
presented a copy of the same presentment; which was ordered to lie on 
the table.
  On December 19 \3\ Mr. Poindexter submitted this resolution:

  Resolved, That a committee be appointed to inquire into the conduct 
of Harry Toulmin, judge of the district of Washington, in the 
Mississippi Territory, and report whether, in their opinion, he hath so 
acted, in his official capacity, as to require the interposition of the 
constitutional powers of this House; and that said committee have power 
to send for persons and papers.

  On December 21 \4\ Mr. Poindexter withdrew the resolution, and moved 
that the letter of Cowles Mead, with the accompanying papers, be 
referred to a select committee to consider and report thereon to the 
House.
  The committee was appointed as follows: Messrs. Poindexter, John 
Rhea, of Tennessee, John C. Calhoun, of South Carolina; John 
Taliaferro, of Virginia; Abijah Bigelow, of Massachusetts, and 
Epaphroditus Champion, of Connecticut.
  On January 14, 1812,\5\ sundry documents in refutation of the charges 
were presented and referred to the committee. Also on February 1 \6\ 
other papers of a similar tenor were presented and referred. On March 
19 and 25 also, similar papers were referred.
  On March 11 \7\ a motion of Mr. Rhea that the committee be discharged 
from consideration of the subject was decided in the negative, and on 
April 13 a motion that the committee be directed to report was likewise 
decided in the negative.
  On May 21 \8\ Mr. Poindexter, from the committee, reported--

  That the charges contained in the presentment aforesaid have not been 
supported by evidence; and from the best information your committee 
have been enabled to obtain on the subject it appears that the official 
conduct of Judge Toulmin has been characterized by a vigilant attention 
to the duties of his station, and an inflexible zeal for the 
preservation of the public peace and tranquillity of the country over 
which his judicial authority extends. They therefore recommend the 
following resolution:
  ``Resolved, That it is unnecessary to take any further proceeding on 
the presentment of the grand jury of Baldwin County, in the Mississippi 
Territory, against Judge Toulmin.''

  This report was concurred in by the House.
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  \1\ First session Twelfth Congress, Journal, p. 67; Annals, p. 522; 
American State Papers, Vol. II (Miscellaneous), p. 162; Annals, p. 
2162.
  \2\ The Mississippi judges were created by statute which made the 
tenure during good behavior. (1 Stat. L., pp. 51, 550; 2 Stat. L., pp. 
301, 564.)
  \3\ Journal, p. 78; Annals, p. 559.
  \4\ Journal, p. 87; Annals, p. 567.
  \5\ Journal, p. 125.
  \6\ Journal, pp. 155, 255, 265.
  \7\ Journal, pp. 242, 288.
  \8\ Journal, p. 347; Annals, p. 1436.
                                                            Sec. 2489
  2489. The inquiry into the conduct of Judges William F. Van Ness, 
Mathias B. Tallmadge, and William Stephens, in 1818.
  Judge William Stephens having resigned his office, the House 
discontinued its inquiry into his conduct.
  In 1818 the House inquired into the official conduct of Judges 
William P. Van Ness and Mathias B. Tallmadge, of the district courts of 
New York, and William Stephens of the district court of Georgia.\1\ The 
committee found that Judge Van Ness had shown some remissness in not 
exercising constant vigilance over the money of the court, which had 
been purloined by the clerk, and in not vigorously enforcing the 
provisions of the law and rules of the court. There were also 
complaints against some decisions and orders of Judge Van Ness, ``but 
the respect which this committee entertains for the constitutional 
rights of a judge, and for the laws which provide adequate remedies for 
any errors he may commit, forbids their questioning any judicial 
opinions.'' The committee say that they have discovered nothing which 
furnishes ``any ground for the constitutional interposition of the 
House.'' \2\ The inquiry into the conduct of Judge Van Ness was 
instituted by a resolution reported from the Judiciary Committee, who 
had been examining the conduct of the clerk of the court, and found 
some circumstances connected with the judge's conduct which justified 
investigation.\3\ And the names of Judges Tallmadge and Stephens had 
been added by way of amendment to the resolution of inquiry.
  On November 24, 1818,\4\ on motion of Mr. John C. Spencer, of New 
York, it was

  Ordered, That the committee appointed at the last session of 
Congress, to inquire into the official conduct of certain judges of the 
courts of the United States, be discharged from so much of their duty 
as relates to the conduct of William Stephens, who has resigned his 
office of judge of the court of the United States for the district of 
Georgia.

  On February 17, 1819,\5\ Mr. Spencer reported on the case of Judge 
Tallmadge, who was charged with having omitted to hold the terms of the 
district court for which he was appointed, according to law. The 
committee found that at certain times he had omitted sessions, but say:

  It appears satisfactorily, from the testimony of several physicians, 
and of the Hon. Nathan Sanford, given on a former inquiry into the 
conduct of Judge Tallmadge, that in 1810 his health became extremely 
delicate, and that very great exertion of body, or any unusual 
agitation of mind, invariably produced severe sickness, so as to 
disqualify him for any official duties; and that his life was prolonged 
by visiting a more genial climate in the winter season.
  On entering upon the duties of his office in 1805, Judge Tallmadge 
encountered a mass of business which had accumulated from the ill 
health and the death of his predecessor, and from the want of any judge 
in the court for the time immediately preceding his appointment. The 
sickness of Judge Patterson, who should have presided in the circuit 
court, materially increased the labors of the district judge.
  The committee are of opinion that there is nothing established in the 
official conduct of Judge Tallmadge to justify the constitutional 
interposition of the House.

  The report was laid on the table.
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  \1\ First session Fifteenth Congress, Journal, p. 447; Annals, p. 
1715.
  \2\ Second session Fifteenth Congress, Report No. 136.
  \3\ Annals, p. 1715.
  \4\ Second session Fifteenth Congress, Journal, p. 35; Annals, p. 
313.
  \5\ Journal, p. 279; Annals, p. 1222.
Sec. 2490
  2490. The investigations into the conduct of Judge Joseph L. Smith, 
in 1825 and 1826.
  The House decided to investigate the conduct of Judge Smith, on 
assurance of a Territorial Delegate that the person making the charges 
was reliable.
  Instance wherein charges were presented against a judge in three 
Congresses.
  On February 3, 1825,\1\ Mr. Richard K. Call, Delegate from Florida 
Territory, presented this resolution:

  Resolved, That the Committee on the Judiciary be instructed to 
inquire whether either of the judges of the district courts of Florida 
have received fees for their services not authorized by law; and, if 
any, what other malpractices have been committed by the said judges, or 
either of them; and that the said committee be authorized to compel the 
attendance of persons and the production of papers to promote this 
investigation.

  In support of this resolution Mr. Call presented a letter addressed 
to himself by Edgar Macon, United States attorney for East Florida, in 
response to a request made by Mr. Call for information.

  At the May term of the superior court of East Florida--

  Says Mr. Macon's letter--

in 1824 Judge Smith established a number of rules for the government of 
the practice of his court, by which provision is made for the 
transacting and doing of much business in vacation, which previously 
had been done in term, viz, such as making orders for commissions to 
take foreign testimony, and hearing and deciding on motions for 
amending pleadings, etc., and other matters and questions generally 
aiding in the usual progress of a suit; for all which services, when 
performed, Judge Smith has charged fees. I have paid them, and I 
believe every attorney of his (Judge Smith's) court has done the game. 
It is proper to mention that in the United States and Territorial cases 
Judge Smith has never charged fees.

  Mr. Call vouched for the reliability of Mr. Macon's word, and asked 
that the resolution be agreed to.
  The House, without division, agreed to the resolution.
  On February 28 \2\ Mr. William Plumer, jr., of New Hampshire, from 
the Committee on the Judiciary, submitted a report, saying that the 
committee were--

not able to perceive how any law of the Territory can authorize the 
judge to receive any compensation in the shape of fees for his official 
services in the place which he holds under the authority of the United 
States. The distance of the parties, however, from the seat of 
government, renders it wholly impracticable to make any investigation 
into the particular circumstances of the case during the present 
session of Congress. The committee therefore pray that they may be 
discharged from any further consideration of the resolution.

  The report was read and laid on the table.
  At the beginning of the next Congress on December 27, 1825,\3\ Mr. 
Joseph M. White, Delegate from Florida, presented the petition of 
Joseph L. Smith, judge of the supreme court of said Territory, praying 
that his conduct as judge might be
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  \1\ Second session Eighteenth Congress, Journal, pp. 197, 198; 
Debates, pp. 438, 439.
  \2\ Journal, p. 279; Report No. 87.
  \3\ First session Nineteenth Congress, Journal, p. 93.
                                                            Sec. 2491
inquired into, and that his character might be freed from the public 
imputation to which it had been subjected.
  Mr. White also presented the petition of Edgar Macon charging Judge 
Smith with malfeasance and corruption in office, and praying that the 
charges might be investigated by Congress.
  These papers were ordered referred to the Judiciary Committee.
  On January 9 \1\ Mr. White presented a memorial of the legislative 
council of Florida soliciting an investigation of the charges preferred 
against Judge Smith.
  This paper also was referred to the Judiciary Committee.
  On February 7, 1826,\2\ Mr. John C. Wright, of Ohio, from the 
Committee on the Judiciary, reported that the committee had examined 
the petition, memorial, and evidence offered, and asked that they be 
discharged from the further consideration of the subject.
  This report was agreed to by the House.
  On January 11, 1830,\3\ Mr. White presented a memorial addressed to 
the President of the United States, and sundry documents signed by the 
citizens of East Florida, charging Judge Smith with tyrannical and 
oppressive conduct, and imploring his removal from the office of judge.
  These papers were referred to the Judiciary Committee, but it does 
not appear that they were ever reported on.\4\
  2491. The investigations into the conduct of Judge Buckner Thurston, 
in 1825 and 1837.
  The investigations into the conduct of Judge Thurston were set in 
motion by memorials.
  Form of memorial praying for the impeachment of Judge Thurston, in 
1837.
  The House sometimes refers for preliminary inquiry a memorial praying 
impeachment and sometimes orders investigation at once.
  In 1825 the House preferred that charges against a judge should be 
investigated by a committee.
  During the investigation of Judge Thurston with a view to impeachment 
he was present and cross-examined witnesses.
  On February 21, 1825,\5\ Mr. James Strong, of New York, presented a 
petition of John P. Van Ness complaining of the official conduct of 
Buckner Thurston, one of the associate judges of the Circuit Court of 
the United States for the District of Columbia, and praying that the 
subject of his complaint might be inquired into by Congress.
  The petition was referred to the Committee on the District of 
Columbia, but on February 24 the reference was changed to the Judiciary 
Committee.
-----------------------------------------------------------------------
  \1\ Journal, p. 129.
  \2\ Journal, p. 233.
  \3\ First session Twenty-first Congress, Journal, p. 146.
  \4\ The judge of the supreme court of Florida held his office by 
virtue of a statute, and for the term of four years. (3 Stat. L., p. 
753; 4 Stat. L., p. 45.)
  \5\ Second session Eighteenth Congress, Journal, pp. 254, 267.
Sec. 2491
  On February 28 \1\ Mr. William Plumer, Jr., of New Hampshire, from 
the Judiciary Committee, submitted a report that the committee--

  Having investigated the matter of the memorial, they are unanimously 
of opinion that there is nothing in the conduct of Judge Thurston which 
requires the interposition or reprehension of this House. They 
therefore ask to be discharged from the further consideration of this 
memorial.

  The report was laid on the table.
  On January 30, 1837,\2\ the Speaker presented a memorial of Richard 
S. Coxe and William L. Brent, of the District of Columbia, praying an 
investigation into the judicial conduct of Judge Thurston. The memorial 
in part was as follows:

  Should this memorial be referred to the appropriate committee we 
pledge ourselves to prove to the satisfaction of Congress--
  1. That Judge Thurston is grossly and avowedly ignorant and 
regardless of the law which it is his duty to administer.
  2. That he is habitually inattentive and neglectful in the discharge 
of his official duties.
  3. That his deportment on the bench is rude, insolent, and 
undignified, and calculated to bring the administration of the law into 
contempt.
  4. That he is habitually rude and insolent toward his brethren on the 
bench, to their great annoyance and to the hindrance of justice.
  5. That he is habitually rude, insolent, and quarrelsome toward the 
members of the bar; constantly in a state of irritation and excitement, 
applying to them, without cause or provocation, the most harsh and 
vulgar epithets in our vocabulary.
  6. That, in these different modes, he incessantly interferes with the 
administration of justice, gratifies his own personal passions at the 
expense of truth and justice, involves the Government and the community 
in enormous expenses and vexatious delays, and employs his official 
power and station in outraging the feelings and illegally and unjustly 
injuring those who may accidentally become the objects of his infuriate 
resentment.
  7. That on several occasions he has, from the bench, actually invited 
members of the bar to leave the court and enter into a personal 
encounter with him.
  8. That he is, from want of professional information, from his 
neglect of his duties, from his furious and ungovernable temper, wholly 
unfit for the station he occupies.
  These general heads of accusations, with all the necessary details of 
time, place, person, and circumstance, we tender ourselves ready and 
prepared to establish by the most plenary proof.\3\

  On January 31 \4\ Mr. Francis Thomas, of Maryland, proposed this 
resolution, which was agreed to by the House:

  Resolved, That the Committee on the Judiciary be authorized to send 
for persons and papers, and to inquire into the truth of the charges 
made in the memorial of William L. Brent and Richard S. Coxe, 
complaining of the official conduct of Buckner Thruston, one of the 
judges of the circuit court of the United States for the District of 
Columbia.

  On March 3,\5\ the last day of the Congress, Mr. Thomas reported from 
the committee, without recommendation of any kind, the testimony taken 
before the committee. The report was ordered to lie on the table and be 
printed.
  The report shows that many witnesses were examined, and that Judge 
Thurston was permitted to cross-examine.
-----------------------------------------------------------------------
  \1\ Journal, p. 279; Report, No. 85.
  \2\ Second session Twenty-fourth Congress, Journal, pp. 316, 317.
  \3\ The memorialists subscribed their names to the memorial, but the 
signatures were not attested.
  \4\ Journal, p. 332.
  \5\ Journal, p. 586; Report No. 327.
                                                            Sec. 2492
  Judge W. Cranch, an associate of Judge Thurston, having been called 
upon to testify in this case, objected on behalf of himself and Judge 
Morsell to giving testimony, on account of their official relations to 
the respondent, but the committee overruled this objection.
  It does not appear that any action was taken further than the 
printing of the report.
  The records of the State Department indicate that Judge Thurston 
remained in office until he died, on August 30, 1845. On October 3, 
1845, James Dunlop was appointed judge.
  2492. The investigation into the conduct of Judge Alfred Conkling in 
1829.
  In the case of Judge Conkling the memorial preferring charges was 
referred to the Judiciary Committee for examination before an 
investigation was ordered.
  Views of the minority of the Judiciary Committee, in 1830, as to 
offenses amounting to high misdemeanor.
  On February 16, 1829,\1\ Mr. Selah R. Hobbie, of New York, presented 
a memorial of Martha Bradstreet, of the State of New York, preferring 
charges against Alfred Conkling, judge of the district court of the 
United States for the northern district of New York, as grounds for an 
impeachment of the said judge.
  This memorial was referred to the Committee on the Judiciary.
  On February 23 the House ordered the committee discharged from 
consideration of the memorial and gave the memorialist leave to 
withdraw.
  In the next Congress, on February 22, 1830,\2\ on motion of Mr. 
Churchill C. Cambreleng, of New York, it was ordered that the memorial 
of Martha Bradstreet in relation to Judge Conkling be referred to the 
Committee on the Judiciary.
  On March 22 \3\ Mr. Cambreleng presented a memorial of Martha 
Bradstreet, preferring additional charges and praying to be permitted 
to substantiate them. This memorial was referred to the Judiciary 
Committee.
  On March 26 \4\ the Judiciary Committee were granted leave to sit 
during sessions of the House for the purpose of investigating the 
matters set forth in the memorial.
  On April 3 \5\ Mr. Charles A. Wickliffe, of Kentucky, from the 
Committee on the Judiciary made an unfavorable report on the memorial, 
finding no cause for impeachment. This report was concurred in by all 
the members of the committee except Mr. Warren R. Davis, of South 
Carolina. Presumably those concurring were Messrs. James Buchanan, of 
Pennsylvania; Henry R. Storrs, of New York; Thomas T. Bouldin, of 
Virginia; William W. Ellsworth, of Connecticut, and Edward D. White, of 
Louisiana. Mr. Davis dissented, and on April 8 \6\ filed minority 
views. He states in his views that the memorialist presented thirty-
three charges for misdemeanors in office. The majority had concluded 
that there was nothing in the
-----------------------------------------------------------------------
  \1\ Second session Twentieth Congress, Journal, pp. 291, 292, 324.
  \2\ First session Twenty-first Congress, Journal, 319.
  \3\ Journal, p. 447.
  \4\ Journal, p. 462.
  \5\ Journal, p. 494.
  \6\ Journal, p. 514; Report No. 342.
Sec. 2493
charges or in the testimony adduced to support them that required the 
constitutional interposition of the House. The minority believed that 
two charges were supported by adequate testimony, and if true amounted 
to a high misdemeanor:
  (a) His causing the name of John L. Tillinghast to be struck from the 
rolls of the said court, for having expressed out of court his opinion 
of the said Judge Conkling.
  (b) His having thereby illegally and unconstitutionally assumed to 
himself the power to act as judge in his own cause. And, in pursuit of 
his object, violated the immemorial course and practice of courts of 
justice, and disregarded even the form of law. And this for the mere 
gratification of his private revenge.
  Mr. Davis argued at some length in support of his claim that the two 
specifications, as supported by the evidence, contained matter 
amounting to misdemeanor in office.
  The report of the majority was laid on the table, and no further 
action appears.
  2493. The investigation of the conduct of Benjamin Johnson, a judge 
of the superior court of the Territory of Arkansas, in 1833.
  In 1833 the Judiciary Committee held that a Territorial judge was not 
a civil officer of the United States within the meaning of the 
Constitution.
  On January 15, 1833,\1\ the Speaker submitted to the House a letter 
from Egbert Harris, of the Territory of Arkansas, inclosing charges and 
specifications made by William Cummins against Benjamin Johnson, one of 
the judges of the superior court of the Territory of Arkansas.
  Mr. Ambrose H. Sevier, Delegate from Arkansas, presented sundry 
documents exculpatory of Judge Johnson.
  The letter of Mr. Harris and the other papers were referred to the 
Committee on the Judiciary.
  On February 8 \2\ Mr. John Bell, of Tennessee, presented the report 
of the committee on the memorial. The committee included besides Mr. 
Bell, Messrs.William W. Ellsworth, of Connecticut; Henry Daniel, of 
Kentucky; Thomas F. Foster, of Georgia; Wm. F. Gordon, of Virginia; 
Samuel Beardsley, of New York, and Richard Coulter, of Pennsylvania.
  The report first dealt with a preliminary question:

  A majority of the committee are strongly inclined to the opinion that 
such an officer is not a proper subject of trial by impeachment. Some 
of the reasons upon which that opinion may be supported will be stated.
  The Constitution, in Article II, section 4, provides that ``all civil 
officers of the United States shall be removed from office by 
impeachment.'' The institution by Congress of those political 
corporations, denominated, in the language of our legislation upon that 
subject, Territorial governments, is only authorized by a very liberal 
construction of the general power given by the Constitution to Congress 
over the public domain. But, admitting that exercise of power to be 
well enough founded, still, can a judge of such a government be said to 
be an officer of the United States within the meaning of the clause 
already quoted? Should the doubt thrown out by the committee upon this 
point appear to the House to be without reasonable foundation, they 
think they will be fully sustained in the opinion, that, whether liable 
to impeachment or not, the practice of impeaching subordinate officers, 
and especially such as hold their offices by a tenure not more firm and 
durable than the judge of a Territorial court, would
-----------------------------------------------------------------------
  \1\ Second session Twenty-second Congress, Journal, p. 179.
  \2\ Journal, p. 290; Report No. 88.
                                                            Sec. 2494
soon be found highly inconvenient and injurious to the public interest. 
The judge whose conduct in the present instance is alleged to be such 
as to call for the exercise of the impeaching power of the House, holds 
his office for a term of four years only, and may, by the express 
provision of the act of Congress establishing his office, be removed at 
any time within that term by the President. The trial by impeachment is 
the highest and most solemn in its nature known in the administration 
of public justice. It is established for high political purposes, and 
would seem to be proper only against judges who hold their offices 
during good behavior, and other high officers of the Government, for 
such crimes or misdemeanors as the public service and interest require 
to be punished by removal from office.

  Proceeding to the merits of the case, the report says:

  The general charges against him are favoritism or partiality to 
particular counsel in the trial of causes, irritability of temper and 
rudeness on the bench toward his brother judges and the bar; 
incapacity, manifested by a vacillating and inconsistent course of 
judicial decision, and habitual intemperance.

  The committee did not find these charges well sustained, and 
furthermore they found decided and unequivocal testimony in favor of 
the judge.
  The report was laid on the table.
  2494. The investigation into the conduct of Judge F. K. Lawrence, in 
1839.
  The proceedings in the case of Judge Lawrence were set in motion by a 
memorial setting forth specific charges.
  The memorial setting forth charges against Judge Lawrence was 
referred for examination before an investigation was ordered.
  The House referred the charges made against Judge Lawrence, in 1839, 
to a select committee instead of to the Judiciary Committee.
  A select committee recommended the impeachment of Judge P. K. 
Lawrence, in 1839.
  The investigation into the conduct of Judge P. K. Lawrence, in 1839, 
was entirely ex parte.
  On January 7, 1839,\1\ Mr. Henry Johnson, of Louisiana, presented a 
memorial of Duncan N. Hennen, a citizen of the State of Louisiana, 
making charges of high crimes and misdemeanors against P. K. Lawrence, 
judge of the district court of the United States for the eastern 
district of Louisiana, and praying that the House of Representatives 
would inquire into the facts whether the said Judge Lawrence, in the 
exercise of the high trust and confidence reposed in him, had not been 
guilty of corrupt, malicious, and dangerous abuses of power.
  The memorial set forth specifically that the memorialist had been 
appointed clerk of the said court in 1834, and had served until May 18, 
1838, when Judge Lawrence sent him a letter of removal and informing 
him that John Winthrop had been appointed in his place; that the 
memorialist, being advised that Judge Lawrence had acted without power, 
refused to deliver the records of the court to the said Winthrop; that 
Judge Lawrence had issued a writ without authentication of the seal of 
the court, commanding the marshal to seize the records; that the 
memorialist, as clerk of the district court, became ex officio clerk of 
the circuit court for the ninth circuit; that on May 21, 1838, both the 
memorialist and the said
-----------------------------------------------------------------------
  \1\ Third session Twenty-fifth Congress, Journal p. 222; Globe, p. 
404; Report, No. 272.
Sec. 2494
Winthrop presented themselves, each as clerk, before the circuit court, 
Judge John McKinley and the aforesaid Judge Lawrence, sitting; that the 
memorialist objected, when arguments were to be heard on the rival 
claims, to Judge Lawrence sitting in the matter, (a) because he 
professed to have formed and delivered an opinion on the question; (b) 
because, from expressions in the letter of removal, he had confessed 
partiality toward the said Winthrop; (c) because there was no need of 
the said Judge Lawrence passing on the case since memorialist was 
willing to acquiesce if Judge McKinley held the removal legal; (d) and 
because a difference of opinion between the judges would lead to 
adjournment of court until a final decision by the Supreme Court of the 
United States; that Judge Lawrence persisted in sitting, and there 
resulted a difference of opinion between him and his associates; that 
Judge McKinley held that the removal was illegal and that the 
memorialist was de jure and de facto clerk, to which Judge Lawrence 
dissented; that the circuit court adjourned without transaction of 
business; that the memorialist continued in possession of the seals and 
records of both courts, and that the records of the district court were 
not seized by the marshal under the writ until the next June; that in 
November 19, 1838, at the holding of the circuit court, in the absence 
of Judge McKinley, Judge Lawrence declined to allow the memorialist's 
deputy to perform the duties of clerk, but made a rule in a civil cause 
calling upon the deputy to produce the records, and on the succeeding 
day committed the deputy to prison for alleged contempt; that after 
release by habeas corpus the deputy was a second time committed for 
refusing to deliver the records; that the said proceedings were in 
violation of the act of April 29, 1802, providing ``that imprisonment 
is not allowed, nor punishment in any case inflicted, where the judges 
of the said court are divided in opinion upon the question touching 
such imprisonment;'' that the said proceedings of Judge Lawrence to 
take the records were made after the Supreme Court of the United States 
had granted a rule requiring Judge Lawrence to show cause why the 
memorialist should not be allowed to discharge the duties of the 
office; that Judge Lawrence had caused a new seal, not in form required 
by law, to be made; that Judge Lawrence, on November 26, 1838, had 
issued a writ authorizing the seizure of the records of the circuit 
court wheresoever found, thus illegally authorizing a seizure out of 
his district; that Judge Lawrence had refused to obey a mandate of the 
Supreme Court in a certain case, giving out that the Supreme Court had 
grossly mistaken the law; that he had illegally absented himself from 
his district; that he had for five years been notoriously and 
inveterately addicted to the intemperate use of ardent spirits, and 
that by his course in regard to the clerkship he had suspended the 
administration of justice for a judicial year.
  This memorial was signed by the memorialist, but the signature was 
not attested.
  Mr. Johnson asked that the memorial be referred to a select 
committee. Although it was suggested that the Judiciary Committee 
should consider it, Mr. Johnson's motion was agreed to, and the 
committee was composed of Mr. Johnson and Messrs. John Pope, of 
Kentucky; Thomas T. Whittlesey, of Connecticut; John Campbell, of South 
Carolina; George W. Owens, of Georgia; William B. Calhoun, of 
Massachusetts; and George C. Dromgoole, of Virginia.
                                                            Sec. 2495
  On January 21,\1\ on motion of Mr. Johnson, it was:

  Resolved, That the select committee appointed to inquire into the 
charges of high crimes and misdemeanors against P. K. Lawrence, judge 
of the district court of the United States for the State of Louisiana, 
be authorized to send for persons and papers.

  On February 11,\2\ Mr. Johnson submitted the report of the committee. 
This report consisted largely of affidavits and records of testimony 
taken in Louisiana. It is all ex parte. The report concludes:

  That, in consequence of the evidence * * * they are of the opinion 
that Philip K. Lawrence, judge of the district court of the United 
States for the eastern and western districts of Louisiana, be impeached 
for high misdemeanors in office.

  It was ordered that the report be considered on February 21, but the 
Congress was nearing its close and no action by the House appears.
  On September 3, 1841, as the records of the State Department show, 
Theodore H. McCaleb was appointed judge of this district.
  2495. The investigations into the conduct of John C. Watrous, United 
States judge for the district of Texas.
  The House, in 1852, on the strength of a memorial setting forth 
charges, investigated the conduct of Judge Watrous with a result 
favorable to him.
  In the investigation of 1852 Judge Watrous, the accused, was 
permitted to appear before the committee with counsel. (Footnote.)
  The conduct of Judge Watrous was the subject of reports, favorable 
and unfavorable, in four Congresses.
  On February 13, 1852,\3\ Mr. Abraham W. Venable, of North Carolina, 
from the committee on the Judiciary reported a resolution as follows:

  Resolved, That the Committee on the Judiciary be authorized to send 
for persons and papers, with authority to examine witnesses,\4\ under 
oath, in relation to the charges made against John C. Watrous, judge of 
the United States court for the district of Texas.

  Mr. Venable explained that a memorial of William Alexander, a lawyer 
of Texas, had been presented to the House, charging Judge Watrous with 
practicing law and receiving fees in the State of Texas touching 
matters which had come before and been decided upon by himself, with 
adjudicating cases in which he was personally interested, and with 
certain violations of the laws of Texas militating against his judicial 
purity.
  The resolution was agreed to by the House.
  On August 27 \5\ the Speaker laid before the House a letter from 
Judge Watrous, wherein he stated that the pending inquiry was 
preventing the decision of important cases in his court, and asked for 
speedy action by the House. This communication
-----------------------------------------------------------------------
  \1\ Journal, p. 332.
  \2\ Journal, p. 521; Report, No. 272.
  \3\ First session Thirty-second Congress, Journal, p. 348; Globe, p. 
560.
  \4\ In his answer filed with the Judiciary Committee in 1858 (first 
session Thirty-fifth Congress, House Report No. 540, p. 18) Judge 
Watrous makes a statement which shows that during these proceedings in 
1852 he was present with counsel before the committee. It also appears 
that witnesses were examined at that time (p. 437 of Report No. 540).
  \5\ Journal, p. 1087; Globe, p. 2382.
Sec. 2496
was referred to the Committee on the Judiciary, and then, on motion of 
Mr. Richardson Scurry, of Texas, it was

  Ordered, That the Committee on the Judiciary have leave to report 
upon the case of the said Judge John C. Watrous at any time.

  At the next session of Congress, on January 13, 1853,\1\ Mr. William 
A. Howard, of Michigan, presented additional evidence in the case, 
which was referred to the Judiciary Committee.
  On February 28,\2\ Mr. Venable submitted the report of the committee, 
which was as follows:

  That after an examination of much documentary evidence, as well as 
many witnesses, summoned from Texas, they do not recommend that 
articles of impeachment be directed by this House against the said John 
C. Watrous.

  This report was laid on the table.
  2496. The Watrous investigation continued.
  In the investigation of 1856 the Judiciary Committee made a report 
favoring impeachment on the strength of memorials and without the power 
to compel testimony being given by the House.
  The memorials submitting the charges against Judge Watrous, in 1856, 
were accompanied by a large amount of documentary evidence.
  The investigation of the conduct of Judge Watrous, in 1856, was 
conducted entirely ex parte, but the evidence was documentary and 
voluminous.
  In the Watrous investigation of 1856 the Judiciary Committee, 
following precedents, reported the evidence but made no specific 
charges.
  The Watrous report of 1856 led to a debate as to the propriety of ex 
parte investigations and to a citation of English and American 
precedents.
  It appears that a report impeaching a civil officer was not 
considered, in 1856, privileged to be made at any time. (Footnote.)
  On July 30, 1856,\3\ Mr. Miles Taylor, of Louisiana, presented the 
memorial of Jacob Mussina, a citizen of Louisiana, praying for an 
investigation into the conduct of Judge Watrous; and on August 6, Mr. 
Peter H. Bell, of Texas, presented a memorial of Eliphas Spencer, of 
Texas, asking for the impeachment of Judge Watrous. These papers were 
referred to the Judiciary Committee.
  The memorial of Jacob Mussina, who was a party to a chancery suit 
litigated in Judge Watrous's court in Galveston, set forth in detail 
charges of conduct oppressive and partial and in entire disregard of 
the well-established rules of law and evidence and the rights of 
litigants. The memorial of Eliphas Spencer, who was interested in a 
tract of land in Texas, charged Judge Watrous with entering into a 
conspiracy for the purpose of fraudulently and corruptly adjudicating 
and determining the validity of a certain grant, by means of which the 
said judge himself secured the title of a portion of the land, or the 
proceeds of the sale of it.
  The two memorials were accompanied by a mass of records and 
documents,
-----------------------------------------------------------------------
  \1\ Second session Thirty-second Congress, Journal, p. 125.
  \2\ Journal, p. 350; Globe, p. 927; Report No. 7.
  \3\ Second session Thirty-fourth Congress, Journal, pp. 1326, 1376; 
Globe, p. 1818.
                                                            Sec. 2496
among which was a joint resolution of the legislature of Texas, 
approved March 20, 1848, charging Judge Watrous with improper conduct, 
and suggesting corrupt acts, and requesting him to resign his office.
  It is not wholly certain from the report of the Judiciary Committee 
whether or not they sought evidence beyond the documents furnished with 
the memorials. If they did, it was purely documentary. It does not 
appear that they asked the House for authority to take testimony, and 
they did not take any, unless documentary.
  On February 2, 1857,\1\ Mr. Lucian Barbour, of Indiana, asked a 
suspension of the rules to enable him to report from the Committee on 
the Judiciary,\2\ and on February 9, by a vote of yeas 156, nays, 32, 
the rules were suspended and the report was made, accompanied by this 
resolution:

  Resolved, That John C. Watrous, United States district judge for the 
district of Texas, be impeached of high crimes and misdemeanors.

  In their report, which was unanimous with the exception of one 
dissenting member, two members being absent, the committee say:

  Upon referring to the proceedings in cases of former impeachments, 
the committee find that specific charges of impeachment have not been 
preferred in the report of the committee to the House; but in most 
cases they have simply reported the testimony, with a resolution that 
the accused be impeached of high crimes and misdemeanors. Specific 
charges have been preferred afterwards, when the Senate has signified 
its readiness to proceed with the trial The committee would, however, 
state very briefly the substance of the charges in the petitions and 
the grounds upon which they have resolved to report the resolution.

  After reviewing the charges, the report concludes:

  The committee have examined numerous records, consisting of 
pleadings, orders of court, affidavits, and depositions, and after a 
patient and laborious research they have reluctantly come to the 
conclusion that the conduct of Judge Watrous in the cases above 
referred to can not be explained without supposing that he was actuated 
by other than upright and just motives; that in his disregard of the 
well-established rules of law and evidence he has put in jeopardy and 
sacrificed the rights of litigants, and in acquiring a title to 
property in litigation, or held by adverse possession, he has given 
just cause of alarm to the citizens of Texas for the safety of private 
rights and property, and of their public domain, and has debarred them 
from the rights of an impartial trial in the Federal courts of their 
own district.

  The report having been read, two questions at once arose. Mr. Howell 
Cobb, of Georgia, asked if the testimony had been printed and declared 
that he should be unwilling to act on the resolution presented by the 
committee until he had been enabled to read the testimony.
  Mr. Humphrey Marshall, of Kentucky, desired, as a member of the 
Judiciary Committee, to state that he had had nothing to do with the 
proceedings resulting in the report, since he had come to the 
conclusion that the investigation ought not to proceed without notice 
to the party. Mr. John A. Quitman, of Mississippi, said he was 
unwilling to assist in bringing on the expense and trouble of an 
impeachment trial without the strongest probable cause, and he was not 
willing to take as probable cause the strongest ex parte testimony 
where the opposite party had not been heard. Mr. John S. Caskie, of 
Virginia, cited the precedents in the cases of Judge Peck and Warren 
Hastings, and while not claiming that it was absolutely
-----------------------------------------------------------------------
  \1\ Third session Thirty-fourth Congress, Journal pp. 347, 381, 507; 
Globe, pp. 542, 627-630, 797, 798; Report No. 175.
  \2\ At that time such a report does not seem to have been held 
privileged.
Sec. 2496
incumbent for a committee charged with the consideration of a memorial 
praying an impeachment to give notice to the person against whom the 
charges were made and allow him to cross-examine witnesses before them, 
yet such was evidently the fair and judicious course.
  Mr. George A. Simmons, of New York, speaking for the committee, said:

  I am perfectly aware that in many such cases, in perhaps the majority 
of cases of impeachment, the party accused has been before the 
committee just as both parties are sometimes examined before 
magistrates. But there have been one or two cases in the House where 
the party accused has not been before the committee. It seems to me to 
be the opinion of the House--and probably well-founded on the 
Constitution--that a judge can not be displaced incidentally by 
remodeling his jurisdiction, or anything of that sort, although it was 
once done by Mr. Jefferson on a very large scale, to the satisfaction 
of the Democratic party. Notwithstanding that, the committee have come 
to the conclusion that it is the sense of the House, as it is 
undoubtedly the opinion of commentators, such as Judge Story, that 
there is no way to get rid of a judge, however unpopular he may be, 
however destitute he may be of the confidence of the people, unless by 
impeachment. The committee think that an impeachment ought to lie in 
all cues where there is a want of good behavior. It is not necessary to 
prove him guilty of high treason, or of highway robbery, or of some 
indelicate crime. It is enough that he has not fulfilled his duty as a 
judge in all respects so as to entitle himself to the confidence of the 
people. * * * It does not always follow that a man must be present when 
he is indicted by a grand jury. Neither does it always follow that 
because he is indicted he must be convicted. There undoubtedly should 
be prima facie evidence sufficient before the grand jury to satisfy 
them that the man whom they indict is guilty of the crime, just as 
there should be sufficient prima facie evidence in cases of 
impeachment--which are analogous--to show that the judge has failed in 
good official behavior.

  Mr. Abram Wakeman, of New York, said:

  The evidence is almost entirely of a documentary character, and if 
there is no other reason that alone would absolve the committee from 
the necessity of calling Judge Watrous before them. They are also of 
opinion that it was not within their province or their duty, in 
reference to the charge placed in their hands, to compel or require the 
attendance of Judge Watrous at this stage of the proceeding. They were 
called upon to inquire whether there was a prima facie case of 
corruption against him. If there was, they considered it their duty to 
present him before the Senate of the United States, where his case 
could be properly heard and tried. If * * * we were under an obligation 
to investigate and pronounce a decision upon this case, Judge Watrous 
would have two trials--first, before the Committee on the Judiciary, 
where he would be under the necessity of calling witnesses and counter 
witnesses, and the committee would stand in the capacity of judges, in 
the first instance, to try the guilt or innocence of Judge Watrous. * * 
* In one case of impeachment alone, where a judge was charged with high 
crimes or misdemeanors, was he summoned before the committee prior to 
the presentation of his case to the House.

  Mr. Wakeman later stated this case specifically--that of Judge 
Pickering.
  The House, without division, decided that the testimony should be 
printed, and that the consideration of the resolution should be 
postponed to Saturday, February 21.
  On that day it was announced that a delay had occurred at the 
printing office and the testimony had not yet been printed. Mr. Caskie 
urged that the matter should be allowed to go over to the next 
Congress. A few days only remained of this Congress, and if they should 
agree to the resolution of impeachment new men would have to carry on 
the trial, as very few of this House were elected to the next, and not 
a single member of the Judiciary Committee had been returned.
  Mr. Barbour, however, moved that the matter be postponed to Saturday, 
February 28, and this motion was agreed to.
  But on February 28 only three legislative days remained to the 
Congress, and the resolution was not considered.
                                                            Sec. 2497
  2497. The Watrous investigation continued.
  In 1857 memorials before the House in a preceding Congress were 
reintroduced as a basis for investigation of the conduct of Judge 
Watrous.
  The Watrous investigation of 1857 was limited in its scope by the 
withdrawal from the Judiciary Committee of a memorial containing 
certain charges.
  In the Watrous investigation of 1857, the committee being equally 
divided, reported the evidence and two propositions, each supported by 
minority views.
  In the investigation of 1857 the committee formally permitted Judge 
Watrous to file a written explanation and cross-examine witnesses in 
person or by counsel.
  The committee investigating Judge Watrous, in 1857, appears to have 
informally permitted the accused to adduce testimony.
  Discussion of the proper mode of examination in an investigation with 
a view to impeachment.
  In the Watrous investigation of 1857 the written explanation of the 
accused was printed as part of the report.
  An argument that judges may be impeached for any breach of good 
behavior.
  After the report on his conduct by a committee, Judge Watrous 
presented to the House a memorial embodying his defense, and it was 
ordered printed and laid on the table.
  At the beginning of the next Congress, on December 17, 1857,\1\ Mr. 
Guy M. Bryan, of Texas, presented the memorial of Eliphas Spencer, 
praying for the impeachment of Judge Watrous; and on the next day \2\ 
Mr. Miles Taylor, of Louisiana, reintroduced the memorial of Jacob 
Mussina, which had been presented in the preceding Congress.
  On January 15, 1858,\3\ Mr. George S. Houston, of Alabama, from the 
Committee on the Judiciary, presented this resolution, which was agreed 
to:

  Resolved, That the Committee on the Judiciary be authorized to send 
for persons and papers and examine witnesses on oath in relation to the 
charges made against John C. Watrous, judge of the United States court 
for the western district of the State of Texas.

  On February 18 \4\ Mr. Bryan presented resolutions of the legislature 
of Texas, which were referred to the Judiciary Committee; and on 
February 23 \5\ Mr. John H. Reagan, of Texas, presented the memorial of 
William Alexander on the same subject, and it was referred to the same 
committee.
  On May 15 \6\ Mr. Horace F. Clark, of New York, from the Committee on 
the Judiciary, moved that that committee be discharged from the further 
consideration of the memorial of William Alexander. He said that in 
investigating the charges
-----------------------------------------------------------------------
  \1\ First session Thirty-fifth Congress, Journal, p. 81.
  \2\ Journal, p. 85.
  \3\ Journal, p. 175; Globe, p. 304.
  \4\ Journal, p. 404; Globe, p. 782.
  \5\ Journal, p. 412.
  \6\ Journal, pp. 826, 835, 836; Globe, pp. 2167-2169, 2195.
Sec. 2497
made in the memorials of Jacob Mussina and Eliphas Spencer the 
committee had taken up the matter de novo, as they were not satisfied 
with the methods of the committee in the preceding Congress. But they 
found that the allegations in the memorial of Alexander had been 
investigated by the committee in the Thirty-second Congress, and the 
committee had reported against impeachment proceedings. Therefore, with 
the great amount of labor involved in hearing the other charges, the 
committee did not wish to pursue the Alexander charges. It was urged 
also that the committee in the preceding Congress had taken no notice 
of the Alexander charges. Mr. John H. Reagan urged that the Alexander 
charges should be investigated, especially in the view that articles of 
impeachment might be prepared.
  The House, on May 17, agreed to the motion of Mr. Clark that the 
committee be discharged.
  On June \1\ Mr. Houston presented the report of the committee, which 
was simply to the effect that they were equally divided, one portion 
recommending a resolution that Judge Watrous be impeached and the other 
portion a resolution that the testimony did not afford sufficient 
grounds for impeachment.
  On June 7 \2\ both portions of the committee, by permission of the 
House, presented minority views, which gave the respective opinions of 
the two portions.
  The regular report, although giving no opinions, was accompanied by 
the record of the evidence and also by record of certain proceedings. 
It appears that on January 8 \3\ Mr. Houston, chairman of the 
committee, addressed a letter to Judge Watrous informing him of the 
reference of the memorials, and notifying him that the subject-matter 
would be taken up on February 2, next. To this Judge Watrous replied:

  I most respectfully ask to be informed whether, at the approaching 
investigation by the committee, * * * I may be permitted to be present, 
together with my counsel. And I also desire to be informed whether the 
investigation will be confined to the testimony against me, or will be 
extended to all sources of information which are necessary to a proper 
understanding of the case. * * * Should a full and fair investigation 
of both sides of the case be determined on, I should take great 
pleasure (if permitted to do so) in furnishing a list of witnesses, 
whose testimony will put the whole case before the committee.

  To this the committee replied by this resolution:

  Resolved, That Hon. John C. Watrous be informed that the Committee on 
the Judiciary will, on Tuesday, the 2d day of February, 1858, take up 
for investigation and action the memorials of Jacob Mussina and Eliphas 
Spencer, and that the committee will receive from the said John C. 
Watrous at any time previous to the said 2d day of February any 
explanation in writing relative to the charges contained in said 
memorials, and that after having made such communication in answer to 
said charges, the said John C. Watrous will be permitted by himself or 
counsel to cross-examine witnesses who may be examined before said 
committee.

  Mr. Horace F. Clark, of New York, one of the four members of the 
committee who found against impeachment, while concurring with his 
three associates on the question of fact, filed supplemental views, in 
which he said: \4\

  I am not satisfied to vote an impeachment upon the ascertainment of 
what is commonly termed probable causes; nor do I regard the principles 
of common law relative to proceedings before grand juries applicable to 
cases of impeachment under the Constitution of the United States. The 
House of
-----------------------------------------------------------------------
  \1\ Journal, p. 1004; Globe, p. 2659; House Report No. 540.
  \2\ Journal, p. 1045; Globe, p. 2774; House Report No. 548.
  \3\ Report No. 540, p. 14.
  \4\ House Report No. 548, p. 30.
                                                            Sec. 2497
Representatives ought, in my judgment, to look beyond a prima facie 
case, and failing to discover in the evidence disclosed any fact 
inconsistent with judicial integrity on the part of Judge Watrous, and 
finding satisfactory explanations of the circumstances from which 
suspicions of such integrity may have arisen, should decline subjecting 
the accused to the expense and hazard of an impeachment.

  Although the committee did not give in express terms permission for 
Judge Watrous to call witnesses on his own behalf, yet he did so. One 
witness, Robert Hughes, was called and examined in chief by Judge 
Watrous, and afterwards crossexamined by the committee.\1\ And also 
Robert Hughes, apparently the same person, was on March 2 \2\ given 
leave by the committee to appear as counsel for Judge Watrous. With him 
as counsel was associated Mr. Caleb Cushing.\3\
  In the course of a later debate, Mr. Mason W. Tappan, of New 
Hampshire, a member of the committee, said :\4\

  Testimony was taken on both sides. A long and tedious examination was 
had. Judge Watrous was permitted to come in and defend his cause and to 
produce witnesses.

  And Mr. Horace F. Clark, of New York, another member of the 
committee, said further: \5\

  The committee determined that it was their province * * * to look 
into the facts of the case beyond the point necessary to ascertain 
whether there did or did not exist that technical probable cause which, 
under the well-settled principles of the common law, justifies a 
magistrate in holding a person for trial, or may, perhaps, justify a 
grand jury in finding a bill of indictment. * * * The committee 
applied, in its broadest sense, that generous maxim, audi alteram 
partem. * * * They determined to break down all the barriers which, it 
is admitted by professional men, the rigid rules of the common law 
sometimes throw in the way of the search after truth.

  Judge Watrous's explanation, which treated only questions of fact, 
was printed as part of the report.
  The minority views signed by the four members favoring impeachment, 
Messrs. Henry Chapman, of Pennsylvania; Charles Billinghurst, of 
Wisconsin; Miles Taylor, of Louisiana, and George S. Houston, of 
Alabama, found from the evidence \6\----

  That while holding the office of district judge of the United States 
he engaged with other persons in speculating in immense tracts of land 
situated within his judicial district, the titles to which he knew were 
in dispute, and where litigation was inevitable.
  That he allowed his court to be used as an agent to aid himself and 
partners in speculation in land and to secure an advantage over other 
persons with whom litigation was apprehended. That he sat as judge on 
the trial of cases where he was personally interested in questions 
involved, to which may be added a participation in the improper 
procurement of testimony to advance his own and partner's interests.

  Also they concluded as to another charge urged against him:

  Every irregular and wrongful decision of the judge [in the Cavazos 
case dealt with in the Mussina memorial] was in favor of the 
complainants and against the defendant, Mussina, and those occupying a 
similar position, and was to their particular injury. By maintaining 
the proceeding as one rightfully brought on the chancery side of the 
court, these defendants were illegally deprived of their right to a 
trial by jury, and were compelled to submit to an adjudication upon 
their rights to the property in such a manner that the decision would 
be final and conclusive as to the title of the property, instead of one 
upon the right of possession, which would at once have been pronounced, 
on the law side of the court, in an action of ejectment. By maintaining 
jurisdiction over the case, when a portion of the defendants
-----------------------------------------------------------------------
  \1\ Report No. 540, pp. 38-76.
  \2\ Page 77 of Report.
  \3\ Pages 185, 230 of Report.
  \4\ Globe, second session Thirty-fifth Congress, p. 17.
  \5\ Globe, p. 39.
  \6\ Report No. 548, pp. 14, 23, 24.
Sec. 2497
as well as plaintiffs were aliens, these defendants were deprived of 
their rights to have the questions involved in it decided by the courts 
of Texas, to whose jurisdiction they were rightfully amenable, and 
whose laws were to govern in that decision. By admitting incompetent 
witnesses to testify, their rights were affected by evidence given by 
persons who had an interest in the litigation adverse to theirs. And, 
finally, they are prevented from having the decision against them 
reviewed in the appellate court by the failure of the judge to perform 
his full duty to them in facilitating the exercise of the right of 
appeal, given to them by law, from motives of public policy, for their 
own private advantage, and that, too, when there is some reason to 
believe that the decree by the court is not in conformity with the 
principles of law as recognized in Texas. Such a course of action 
continued through the whole progress of a cause, in favor of some of 
the parties and against others, is, to our minds conclusive evidence of 
the existence of a purpose on the part of the judge to favor one party 
or set of parties at the expense and to the injury of others, which is 
inconsistent with an upright, honest, and impartial discharge of the 
judicial functions. And this, we believe, constitutes a breach of the 
``good behavior'' upon which, by the Constitution, the tenure of the 
judicial office is made to depend.
  The Constitution of the United States declares that ``the judges, 
both of the Supreme and inferior courts shall hold their offices during 
good behavior.'' Does not this necessarily imply that their offices are 
to determine, and they are to be removed when they are guilty of a 
breach of ``good behavior?'' Clearly so. But how are they to be 
removed? No power of removal is vested in the Executive, nor is there 
any provision in the Constitution of the United States like that to be 
found in many if not all the State constitutions, by which the 
Executive is authorized to remove on the address of two-thirds of the 
members of the two houses of the legislature. The only mode of removal 
of judges known to the Constitution is by impeachment, and it therefore 
necessarily follows that whenever a judge has, in the course of his 
official conduct, been guilty of actions which are inconsistent with an 
impartial discharge of the high duties intrusted to him, then it is 
both the right and duty of this House to proceed in the only way known 
to the Constitution to effect the removal of the magistrate who misuses 
or abuses the trust reposed in him for the public good.

  The other minority views, concurred in by Messrs. Charles Ready, of 
Tennessee; Mason W. Tappan, of New Hampshire; Burton Craige, of North 
Carolina, and Horace F. Clark, of New York, concluded from an 
examination of the testimony that many of the charges were ``utterly 
frivolous,'' that some of them were not proven or attempted to be 
proven, and ``that none of them establish, import, or imply, upon the 
evidence, the commission of any act of malfeasance in office, nor any 
high crime or misdemeanor.'' The four members saw nothing in the case 
but the ``resentfulness of two disappointed litigants.''
  One minority had recommended this resolution:

  Resolved, That John C. Watrous, United States district judge for the 
district of Texas, be impeached of high crimes and misdemeanors.

  The other minority recommended:

  Resolved, That the testimony taken before the Committee on the 
Judiciary in the case of the Hon. John C. Watrous, judge of the 
district court of the United States for the eastern district of Texas, 
is insufficient to justify the preferment of articles of impeachment 
against him for high crimes and misdemeanors in office.

  On June 10,\1\ at the suggestion of the Judiciary Committee, the 
House postponed further consideration of the subject to the next 
session of Congress.
  At the same time a memorial from Judge Watrous, which had already 
been placed on the desks of Members and appears to have embodied a 
defense of his conduct, was ordered to be laid on the table and 
printed.
-----------------------------------------------------------------------
  \1\ Journal, pp. 1075, 1076; Globe, pp. 2908-2910.
                                                            Sec. 2498
  2498. The Watrous investigation continued.
  In the Watrous case the House discussed whether or not ascertainment 
of probable cause justified proceeding in impeachment.
  As to what are impeachable offenses was a subject of argument in the 
Watrous case.
  After the investigation of 1857 the House decided that the evidence 
did not justify the impeachment of Judge Watrous.
  At the next session the subject was debated at length from December 9 
to 15.\1\ The principal portion of the debate was on the strength of 
the evidence to sustain the facts alleged; but two other questions were 
touched on at some length:
  1. Whether the ascertainment of probable cause was sufficient ground 
for the House to proceed in an impeachment.
  Messrs. Chapman and Houston argued \2\ at some length in opposition 
to the views advanced by Mr. Clark. Mr. Clark \3\ had argued that the 
case could not be sent to the Senate on proof short of what would be 
sufficient to convict. Mr. Houston combated that view, referring to the 
argument of Mr. Wirt in the Peck trial as conclusive on the point that 
the action of the House was similar to that of a grand jury; that while 
the investigation of the House was not necessarily ex parte, the office 
of the House was not to ascertain whether the party was guilty or 
innocent of the charges preferred against him, but whether the proof 
was sufficient to make the case worthy of a further trial. Mr. Chapman 
called attention to the fact that the trial of the case belonged to the 
Senate under the Constitution and to the Senate alone. If the House 
advanced one step beyond the ascertainment of probable cause it was 
plunged into the trial. The House, in the exercise of its discretion, 
might examine witnesses on both sides, but there must be a boundary 
line marking the powers of the House and Senate, and there was no line 
to be observed, except the ascertainment of probable cause. ``Such I 
understand to have been the views,'' he said, ``entertained in the case 
of Judge Peck and the case of Judge Chase, of Macclesfield in 1705, in 
the case of Warren Hastings in 1778, and of Lord Melville in 1805. 
Probable cause is such a state of facts and circumstances as would 
induce a cautious man to believe that the party charged is guilty of 
the offense.\4\
  2. As to what are impeachable offenses.
  The point was argued at considerable length. In his memorial to the 
House Judge Watrous had made the point that impeachable acts were only 
such as were also punishable by the ordinary laws of the land. This 
view was sustained in argument by Messrs. James A. Stewart, of 
Maryland,\5\ Clark B. Cochrane, of New York,\6\ and Alexander H. 
Stephens, of Georgia .\7\
  On the other hand, Messrs. John Cochrane, of New York,\8\ Miles 
Taylor, of
  \1\ Second session Thirty-fifth Congress, Journal, pp. 56, 69; Globe, 
pp. 12, 21, 31, 56, 78, 95-102.
  \2\ Globe, pp. 16, 99.
  \3\ Mr. Clark's view was upheld by Mr. James A. Stewart, of Maryland, 
Globe, p. 38.
  \4\ Mr. Clement L. Vallandigham, of Ohio, held this view also, Globe, 
p. 85.
  \5\ Globe, pp. 37, 38.
  \6\ Globe, p. 84.
  \7\ Globe, pp. 95, 96.
  \8\ Globe, p. 56.
Sec. 2499
Louisiana,\1\ Clement L. Vallandigham, of Ohio,\2\ and John A. Bingham, 
of Ohio,\3\ argued that the power of impeachment was broader, and went 
to an ascertainment of whether or not he had offended against the 
dignity of the people of the United States, transgressed the grave 
obligations of his office, or soiled the purity of the ermine. Mr. 
Bingham discussed especially the precedent of the Peck trial in this 
particular.
  On December 15 \4\ a motion was made to strike out all after the word 
``resolved'' in the resolution for impeachment, and insert the text of 
the second minority resolution, declaring the testimony insufficient to 
justify impeachment. This amendment was agreed to, yeas 111, nays 91. 
Then the resolution as amended was agreed to, yeas 112, nays 87.
  So the House decided that the evidence did not justify impeachment 
proceedings.
  2499. The Watrous investigation continued.
  Memorials which had been before preceding Congresses were 
reintroduced as a basis of the Watrous investigation of 1860.
  A minority of the Judiciary Committee were authorized to take 
testimony in the Watrous case.
  In the Watrous investigation of 1860 the Judiciary Committee 
proceeded ex parte.
  In the Watrous investigation of 1860 the Judiciary Committee, without 
special leave, considered the evidence and reports in preceding 
Congresses relating to this case.
  The Judiciary Committee reported, in 1860, in favor of the 
impeachment of Judge Watrous.
  On March 8, 1860,\5\ during the next Congress, the memorial of Jacob 
Mussina was again introduced by Mr. Miles Taylor, of Louisiana, and 
that of Eliphas Spencer was presented by Mr. Andrew J. Hamilton, of 
Texas; and on March 12 \6\ the memorial of William Alexander, first 
presented in 1851, was again presented by Mr. Hamilton. All these 
papers were referred to the Committee on the Judiciary.
  On March 28 \7\ the House gave the Judiciary Committee authority to 
send for persons and papers and to examine witnesses on oath or 
affirmation.
  On May 18 \8\ Mr. John Hickman, of Pennsylvania, stated that the 
committee found itself obliged to sit during sessions of the House, and 
therefore it was very difficult to keep a quorum. Hence he proposed 
this resolution, which was agreed to by the House without objection:

  Resolved, That a minority of the Committee on the Judiciary be, and 
are hereby, authorized to take the testimony of all witnesses in the 
matter of the petitions heretofore referred to said committee praying 
the impeachment of Hon. John C. Watrous, a judge of the United States 
for the eastern district of Texas.

  On May 21 \9\ the House empowered the committee to print the memorial 
and testimony taken and to be taken in the case.
-----------------------------------------------------------------------
  \1\ Globe, pp. 60, 61.
  \2\ Globe, p. 85.
  \3\ Globe, p. 90.
  \4\ Journal, pp. 69-71; Globe, p. 102.
  \5\  First session Thirty-sixth Congress, Journal, p. 476.
  \6\ Journal, p. 493.
  \7\ Journal, p. 607.
  \8\ Journal, p. 856; Globe, p. 2171.
  \9\ Journal, p. 877; Globe, p. 2215.
                                                            Sec. 2499
  On December 17, 1860,\1\ at the second session of the Congress, Mr. 
John H. Reynolds, of New York, asked unanimous consent to submit the 
report of the committee.\2\ Mr. Horace Maynard, of Tennessee, reviewed 
the former proceedings in this case, intimated that the Committee on 
the Judiciary had been organized to further this impeachment, and 
declared that the time of the session was required for ``the gravest 
and most important questions, going to the very existence and 
perpetuity of our Union.'' Therefore he objected.
  On December 20 \3\ Mr. Reynolds submitted the report, which 
concluded:

  Resolved, That John C. Watrous, United States district judge for the 
eastern district of Texas, be impeached for high crimes and 
misdemeanors.

  The committee say in their report:

  That in view of the previous proceedings touching the matters 
committed to them, they entered upon the investigation at the first 
session of the present Congress in the belief that it was of the 
highest importance to the public interest, as well as to the accused, 
that some definite result should be reached, and some action taken 
which should be regarded as final. In the Thirty-fifth Congress much 
time was expended by the Judiciary Committee in the investigation of 
the charges preferred, upon which Judge Watrous was heard by person and 
by counsel before the committee, a large amount of testimony was taken, 
and the committee were equally divided on the question of impeachment. 
The House, upon a consideration of the case, refused to adopt the 
resolution for an impeachment. Upon the present investigation the 
committee came to the conclusion to proceed ex parte, and they have 
accordingly taken additional evidence only in support of the charges 
against the accused. They have also considered the evidence before them 
taken during the Thirty-fifth Congress and the reports made to the 
House thereon, * * * and their proceedings are more properly to be 
regarded as a continuation of the former investigation than as an 
entirely original one. The additional evidence taken by the committee 
during the present Congress in respect to the charges upon which four 
members of the Judiciary Committee of the Thirty-fifth Congress 
recommended the adoption of a resolution of impeachment does not 
materially change the facts as they then appeared. But considerable 
evidence has been produced showing the connection of Judge Watrous with 
transactions of a character unfitting a judicial officer or an honest 
man, and which may not only present an independent ground of 
misbehavior deserving impeachment, but tends also to shed light upon 
the nature of his associations and private interests.

  The committee adopt the conclusions of the four members who favored 
impeachment in the preceding Congress as to the charges in the Mussina 
and Spencer memorials, and then proceed to discuss the charges of the 
Alexander memorial, which they consider established and as justifying 
impeachment.
  The report was postponed to December 27 but was not taken up on that 
day, and thereafter successive attempts to take it up on January 16, 
January 21, and January 28, 1861, failed,\4\ through the objections of 
individual Members.
  The Congress expired on March 3 and the report was not considered.
  Amos Morrell was appointed judge on February 5, 1872, for the eastern 
district of Texas, and the records of the State Department show that 
this was the first appointment after the investigation of Judge 
Watrous.
-----------------------------------------------------------------------
  \1\ Second session Thirty-sixth Congress, Globe, p. 105.
  \2\ In the later practice such reports are privileged.
  \3\ Journal, p. 106; Globe, p. 159; Report No. 2.
  \4\ Globe, pp. 411, 499, 599, 600.
Sec. 2500
  2500. The investigation of the conduct of Judge Thomas Irwin in 1859.
  Judge Irwin having resigned before the report of an investigation, 
the House discontinued proceedings.
  On January 13, 1859,\1\ the House authorized the Judiciary Committee 
to investigate charges made against Judge Thomas Irwin, of the United 
States district court of the western district of Pennsylvania. On 
January 28 \2\ Mr. George S. Houston, of Alabama, reported from that 
committee that pending the investigation, ``they had satisfactory 
evidence before them that the said judge had this day resigned his said 
office, and that the committee now ask the further direction of the 
House.''
  There was some discussion as to the publication of the testimony 
already taken; but as it had been taken only on one side it was thought 
best not to print it. Then, on motion of Mr. John S. Phelps, of 
Missouri, it was--

  Ordered, That the said committee be discharged from the further 
consideration of the subject, and that the same be laid on the table.

  2501. The investigation into the conduct of Henry A. Smythe, 
collector of the port of New York.
  The House declined to institute impeachment proceedings before a 
committee had examined specially whether or not there was ground for 
impeachment.
  A question as to the expediency of impeaching an officer removable by 
the Executive.
  It is for the House to say whether or not a person whose conduct is 
being investigated shall be allowed to appear before the committee by 
counsel.
  The House declined to ask of the Executive the removal of an officer 
whom a committee had found delinquent.
  On March 15, 1867,\3\ the House had directed the Committee on Public 
Expenditures to inquire into the conduct of Henry A. Smythe, collector 
of the port of New York, and to report thereon to the House if in their 
opinion the said Smythe had been guilty of bribery or other crimes and 
misdemeanors.
  On March 25, 1867,\4\ the Speaker, by unanimous consent, laid before 
the House a letter from Mr. Smythe, requesting that he might be 
permitted to appear with counsel to produce and examine witnesses 
before the committee.
  Thereupon, Mr. Samuel J. Randall, of Pennsylvania, proposed the 
following:

  Resolved, That the request of Henry A. Smythe, now collector of the 
port of New York, asking the privilege and permission to appear by 
counsel before the Committee on Public Expenditures, in defense of his 
conduct as collector, now being examined into by said committee, be 
granted.

  Considerable discussion was occasioned by this proposition. It was 
urged that it was not the custom of the House to allow persons 
implicated by investiga-
-----------------------------------------------------------------------
  \1\ Second session Thirty-fifth Congress, Journal, p. 178; Globe, p. 
360.
  \2\ Journal, p. 278; Globe, p. 656.
  \3\ First session Fortieth Congress, Journal, pp. 51, 111; Globe, pp. 
334-336.
  \4\ Journal, pp. 111, 112; Globe, pp. 334-336.
                                                            Sec. 2501
tions before a committee to appear, especially by counsel, and Mr. 
Hulburd, while saying that his committee had allowed any person to come 
before them and produce witnesses under such circumstances, yet they 
had not allowed counsel, and should not do so without the consent of 
the House. Mr. John Covode, speaking from experience as chairman of an 
important investigating committee, said that he never allowed parties 
to appear by counsel except in one case, when Judge Black, a member of 
Mr. Buchanan's cabinet, was allowed counsel in a case where he was 
indirectly interested. On the other hand, it was recalled that in the 
Thirty-ninth Congress both Mr. Conkling and General Fry had appeared 
before the investigating committee by counsel; that in the 
investigation of the infringement of the privileges of the House by 
General Houston, he was allowed to appear with counsel; in the Thirty-
seventh Congress a Member against whom charges had been made was 
allowed to appear by counsel; in the Thirty-fifth Congress Judge 
Watrous had also appeared with counsel, and also in a former Congress 
Judge Irwin had done the same. Mr. John A. Bingham, of Ohio, argued 
that the House ought always to judge of the propriety of allowing the 
official under investigation to appear; but in this case, of a 
subordinate officer of the Government, incapable in the nature of 
things of influencing the House or its committee, he should be allowed 
to appear by counsel.
  The House, by a vote of 80 yeas to 35 nays, voted to suspend the 
rules for the consideration of the resolution, and then agreed to it.
  On March 21, 1867,\1\ Mr. Calvin T. Hulburd, of New York, from the 
Committee on Public Expenditures, had reported this resolution:

  Resolved, That it is the sense of this House that Henry A. Smythe 
should be immediately removed from the office of collector of the port 
of New York, and that the Clerk of the House cause a certified copy of 
this resolution to be laid before the President of the United States.

  Objection was made by Mr. Benjamin F. Butler, of Massachusetts, that 
the House should not request from the Executive the removal of any 
officer, but should proceed by impeachment. On March 22 \2\ Mr. 
Thaddeus Stevens, of Pennsylvania, moved to amend by striking out all 
after the word ``Resolved,'' and inserting--

  That it is the sense of this House that Henry A. Smythe, collector of 
the port of New York, ought to be impeached; and that the Committee on 
Public Expenditures proceed forthwith to prepare articles of 
impeachment.

  Objection was made to this amendment, especially by Mr. Samuel 
Shellabarger, of Ohio, that there was no precedent in the history of 
the Government for proceeding to an impeachment without investigation 
by a committee charged with finding whether or not there was ground for 
articles of impeachment. A question was also raised by Mr. Fernando 
Wood, of New York, as to whether the House ought to proceed to impeach 
an officer whom the President (or the President and Senate as provided 
under the tenure of office act) could remove. The right of the House to 
impeach such an officer was not disputed, but the expediency was 
questioned.
-----------------------------------------------------------------------
  \1\ Journal, p. 80; Globe, pp. 255, 256.
  \2\ Globe, pp. 282-285.
Sec. 2502
  In accordance with the suggestions made, Mr. Stevens modified his 
amendment to read as follows:

  That the testimony taken by the Committee on Public Expenditures 
relating to the conduct of Henry A. Smythe, collector of the port of 
New York, be referred to the said committee, with a view to ascertain 
whether or not said Smythe has been guilty of high crimes and 
misdemeanors sufficient to justify his impeachment; and if said 
committee find from that and other evidence that he has been thus 
guilty, then to proceed and prepare articles of impeachment, and report 
the same to this House; and that they have leave to send for persons 
and papers.

  On March 22 and 23 \1\ this amendment was considered and agreed to. 
The resolution as amended was then agreed to also.
  On February 20, 1868,\2\ on motion of Mr. Hulburd, the House agreed 
to a resolution empowering the committee to inquire into the receipts 
of Mr. Smythe in his official capacity, with authority to send for 
persons and papers.
  It does not appear that the committee reported.
  2502. The proposition to inquire into the conduct of William B. West, 
consul at Dublin.
  The House declined to order an investigation of Consul West on 
evidence presented by a Member and referred the subject to a committee.
  Mr. Speaker Colfax held that in order to be received as privileged a 
resolution must positively propose impeachment.
  On December 2, 1867,\3\ Mr. William E. Robinson, of New York, 
proposed as a question of privilege this resolution:

  Resolved, That the Committee on Foreign Affairs be instructed to 
inquire into the conduct of William B. West, American consul at Dublin, 
in Ireland, regarding American prisoners in that city, and to report 
thereon forthwith, to the end that if he has been guilty of conduct 
which would be liable to impeachment this House may take measures to 
have articles of impeachment presented to the Senate.

  Mr. John F. Farnsworth, of Illinois, raised the question of order 
that no question of privilege was involved.
  The Speaker \4\ held that as the resolution did not positively 
propose impeachment, it did not present a question of privilege.
  Thereupon Mr. Robinson modified the resolution to read as follows:

  Resolved, That William B. West, consul of the United States at 
Dublin, Ireland, be impeached before the Senate.

  Mr. Robinson presented copies of correspondence between Mr. West and 
one Patrick J. Condon, who had been held as a political prisoner in 
Ireland, and other documents, which he considered as showing that Mr. 
West had not been sufficiently aggressive in maintaining the rights of 
American citizens abroad.
  After debate on the general question of the rights of citizenship, 
the resolution was, on motion of Mr. Nathaniel P. Banks, of 
Massachusetts, referred to the Committee on Foreign Affairs.
  It does not appear that further action was taken.
-----------------------------------------------------------------------
  \1\ Journal, pp. 89, 95; Globe, pp. 294, 289, 290.
  \2\ Second session Fortieth Congress, Journal, pp. 371, 372.
  \3\ Second session Fortieth Congress, Journal, p. 9; Globe, pp. 3-9.
  \4\ Schuyler Colfax, of Indiana, Speaker.
                                                            Sec. 2503
  2503. The House, on the strength of a newspaper statement, ordered an 
investigation looking toward the impeachment of a justice of the 
Supreme Court.--On January 30, 1868,\1\ Mr. Glenni W. Scofield, of 
Pennsylvania, by unanimous consent, presented the following:

  Whereas it is editorially stated in the Evening Express, a newspaper 
published in this city, on the afternoon of Wednesday, January 29, as 
follows:
  ``At a private gathering of gentlemen of both political parties, one 
of the justices of the Supreme Court spoke very freely concerning the 
reconstruction measures of Congress, and declared in the most positive 
terms that all these laws were unconstitutional, and that the court 
would be sure to pronounce them so. Some of his friends near him 
suggested that it was quite indiscreet to speak so positively, when he 
at once repeated the views in a more emphatic manner.''
  And whereas several cases under said reconstruction measures are now 
pending in the Supreme Court: Therefore,
  Resolved, That the Committee on the Judiciary be directed to inquire 
into the truth of the declarations therein contained, and to report 
whether the facts as ascertained constitute such a misdemeanor in 
office as to require this House to present to the Senate articles of 
impeachment against said ``justice of the Supreme Court,'' and the 
committee may have power to send for persons and papers, and have leave 
to report at any time.

  Objection was made that a newspaper charge was insufficient ground 
for action by the House. Mr. Scofield disclaimed any knowledge himself. 
The House agreed to the preamble and resolution, yeas 97, nays 57.
  On June 18 \2\ Mr. George S. Boutwell, of Massachusetts, by 
instructions of the committee, moved that it be discharged from further 
consideration of the resolution, and that the same be laid on the 
table. This motion was agreed to without division or debate.
  2504. The impeachment of Mark H. Delahay, United States district 
judge for Kansas.
  The House voted to investigate the conduct of Judge Delahay after the 
Judiciary Committee had examined the charges in a memorial.
  The Judiciary Committee was empowered in the Delahay ease to take 
testimony in Kansas through a subcommittee.
  In the investigation into the conduct of Judge Delahay he was 
permitted to present testimony.
  On March 19, 1872,\3\ Mr. Benjamin F. Butler, of Massachusetts, from 
the Committee on the Judiciary, proposed a resolution, which was agreed 
to without debate:

  Resolved, That the Committee on the Judiciary be, and they are 
hereby, authorized to send for persons and papers, to administer oaths, 
and to take testimony in the matter of the memorial and charges against 
Mark H. Delahay, district judge of the United States district for the 
State of Kansas.

  On May 28 \4\ Mr. John A. Bingham, of Ohio, from the Judiciary 
Committee, reported the following resolution, which was agreed to:

  Resolved, That the Committee on the Judiciary be directed to further 
investigate the charges against the character and official conduct of 
M. H. Delahay, United States district judge for the district of Kansas, 
and for that purpose a subcommittee shall be authorized to sit during 
the recess of Congress,
-----------------------------------------------------------------------
  \1\ Second session Fortieth Congress, Journal, p. 274; Globe, p. 862.
  \2\ Journal, pp. 881, 882; Globe, p. 3266.
  \3\ Second session Forty-second Congress, Journal, p. 538; Globe, p. 
1808.
  \4\ Journal, pp. 989, 990; Globe, p. 3926.
Sec. 2505
and may proceed to Kansas, subpoena witnesses, send for persons and 
papers, administer oaths, take testimony, and employ a clerk and 
reporter, the expense of which shall be paid from the contingent fund 
of the House on the order of the chairman.

  In another case, relating to Judge Charles T. Sherman, Mr. Butler, 
citing the case of Judge Delahay, said that this subcommittee heard in 
Kansas such witnesses as Judge Delahay chose to have summoned.\1\
  2505. Delahay's impeachment continued.
  The House, without division, voted to impeach Judge Delahay for 
improper personal habits.
  The House voted the impeachment of Judge Delahay at the end of one 
Congress, intending to present articles in the next.
  Forms and ceremonies for carrying of the impeachment of Judge Delahay 
to the Senate.
  The Speaker gave the minority party representation on the committee 
to carry the impeachment of Judge Delahay to the Senate.
  The impeachment of Judge Delahay was carried to the Senate by a 
committee of three.
  On February 28, 1873,\2\ Mr. Butler reported this resolution from the 
Judiciary Committee:

  Resolved, That a committee of three be appointed to go to the Senate, 
and at the bar thereof, in the name of the House of Representatives, 
and of all the people of the United States, to impeach Mark H. Delahay, 
judge of the United States district court for the district of Kansas, 
of high crimes and misdemeanors in office, and acquaint the Senate that 
the House of Representatives will, in due time, exhibit particular 
articles of impeachment against him and make good the same, and that 
the committee do demand that the Senate take order for the appearance 
of said Mark H. Delahay to answer to said impeachment.

  Two questions arose from this report:
  1. Mr. Henry L. Dawes, of Massachusetts, asked if the Judiciary 
Committee, in view of the fact that the Congress was about to expire, 
had settled the question whether or not the next House of 
Representatives could present the articles of impeachment, of which 
this House might notify them. Mr. Butler said:

  The Committee on the Judiciary do not expect to prepare articles of 
impeachment against Judge Delahay and present them for trial at this 
session. In the earliest case of impeachment of a judge in this 
country, in 1803, the case of Judge Pickering, which was in all 
respects like this, this exact question arose and was settled. One 
House presented articles of impeachment to the Senate and another House 
at the next session prosecuted those articles, as will be done in this 
case. We do not expect any other action except the formal presentation 
of the articles of impeachment to the Senate. The Senate is a perpetual 
court of impeachment, and in presenting these articles we act only as a 
grand jury.

  2. As to the offense for which the impeachment was to be the remedy, 
Mr. Butler stated that--

  The most grievous charge, and that which is beyond all question, was 
that his personal habits unfitted him for the judicial office; that he 
was intoxicated off the bench as well as on the bench. This question 
has also been decided by precedent. That was the exact charge against 
Judge Pickering, of New Hampshire, who, with one exception, is the only 
judge who has been impeached.

  Mr. Butler then had read testimony showing that the judge had 
sentenced prisoners when intoxicated, to the great detriment of 
judicial dignity.
-----------------------------------------------------------------------
  \1\ Third session Forty-second Congress, Globe, p. 2123.
  \2\ Third session Forty-second Congress, Journal, p. 512; Globe, pp. 
1899, 1900.
                                                            Sec. 2505
  There was also a question as to certain alleged corrupt transactions, 
but Mr. Daniel W. Voorhees, of Indiana, said it was not proven to the 
satisfaction of several members of the committee that there was any 
malfeasance. Mr. Butler said:

  The committee agree that there is enough in his personal habits to 
found a charge upon, and that is all there is in this resolution.

  The resolution of impeachment was then agreed to without division.
  On March 3 \1\ the Speaker announced the appointment of Mr. Butler, 
Mr. John A. Peters, of Maine, and Mr. Clarkson N. Potter, of New York, 
members of the committee. Two of these were members of the majority 
party in the House, and the third represented the minority.
  On the same day \2\ the committee appeared at the bar of the Senate 
and, having been announced, advanced toward the area in front of the 
Secretary's desk, and Mr. Butler said:

  Mr. President, in obedience to the order of the House of 
Representatives, this committee of the House appear at the bar of the 
Senate of the United States, and do impeach Mark H. Delahay, district 
judge of the United States district court for the district of Kansas, 
in the name of the House of Representatives and all the people of the 
United States, for high crimes and misdemeanors in office. And we do 
further acquaint the Senate, by the order of the House, that the House 
will in due time furnish particular articles against said Delahay and 
make good the same. And this committee is further charged by the House 
to demand of the Senate that they will take order for the appearance of 
Mark H. Delahay, as such judge, to answer the same.

  The Presiding Officer \3\ said:

  The Senate will take order in the premises, of which due notice shall 
be given to the House of Representatives.

  Later, on the same day, on motion of Mr. George F. Edmunds, of 
Vermont, it was

  Ordered, That the Secretary inform the House of Representatives that 
the Senate will receive articles of impeachment against Mark H. 
Delahay, judge of the district court of the United States for the 
district of Kansas, this day impeached by the House of Representatives 
before it of high crimes and misdemeanors, whenever the House of 
Representatives shall be ready to receive the same.

  Meanwhile the committee had returned to the House of Representatives, 
where Mr. Butler, the chairman, submitted the following written report: 
\4\

  That, in obedience to the order of the House, the committee have been 
to the Senate, and, in the name of the House of Representatives and of 
all the people of the United States, have impeached Mark, H. Delahay, 
district judge of the United States for the district of Kansas, of high 
crimes and misdemeanors; and have acquainted the Senate that the House 
of Representatives will, in due time, exhibit particular articles 
against him, and make good the same. And further, that the committee 
have demanded that the Senate take order for the appearance of the said 
Mark H. Delahay to answer to the said impeachment.

  A message was also received \5\ in the House from the Senate in these 
terms:

  The Senate is ready to receive articles of impeachment against Mark 
H. Delahay, judge of the United States district court for the State of 
Kansas.

  No further proceedings took place. On March 10, 1874, as shown by the 
records of the State Department, Cassius G. Foster was appointed judge 
to fill a vacancy in this district.
-----------------------------------------------------------------------
  \1\ Journal, p. 551.
  \2\ Senate Journal, pp. 542, 543; Globe, pp. 2153, 2165.
  \3\ Henry A. Anthony, of Rhode Island, presiding officer.
  \4\ House Report No. 92.
  \5\ House Journal, p. 560.
Sec. 2506
  2506. The investigation of the conduct of Edward H. Durell, United 
States district judge for Louisiana.
  Instance wherein the House ordered an investigation of the conduct of 
a judge without a statement of charges, but in a case wherein common 
fame had made the facts known.
  Instances wherein the House gave authority to prepare articles of 
impeachment at the time the investigation was ordered.
  On January 13, 1873,\1\ Mr. William D. Kelley, of Pennsylvania, moved 
that the rules be suspended so as to enable him to submit and the House 
to consider and agree to this resolution:

  Resolved, That the Judiciary Committee be instructed to inquire into 
the conduct of Edward H. Durell, judge of the United States district 
court for the district of Louisiana, and ascertain and report whether, 
in the opinion of the committee, he has, for the purpose of 
overthrowing or controlling the government of the State of Louisiana, 
usurped jurisdiction not vested in the said district court by the 
Constitution or laws of the United States; and to report articles 
proposing the impeachment of the said Edward H. Durell if, in the 
judgment of the committee, he has abused his judicial functions by such 
usurpation of jurisdiction and unlawful interference with the 
constitutional privileges and rights of the people of said State; and 
that the committee have power to send for persons and papers.

  The question being put, the rules were suspended, and the resolution 
was presented. And thereupon it was agreed to, without debate or 
division.
  On January 21 \2\ Mr. Jeremiah M. Wilson, of Indiana, from the 
Committee on the Judiciary, stated that there was some uncertainty in 
the resolution first adopted, and asked for the adoption of the 
following:

  Resolved, That in addition to the inquiries heretofore directed by 
the House to be made into the official conduct of Judge E. H. Durell, 
the Judiciary Committee be instructed further to inquire whether said 
Durell should be impeached for high crimes and misdemeanors in office, 
and that said committee have leave to report at any time.

  The resolution was agreed to by the House without division.
  2507. The Durell investigation continued.
  Instance wherein a House committee charged with an investigation 
examined testimony taken before a Senate committee.
  The Durell investigation was postponed in the Forty-second Congress 
because there was no time to permit Judge Durell to present testimony.
  On March 3,\3\ the last day of the Congress, Mr. John A. Bingham, of 
Ohio, submitted the report of the committee:

  That they have examined to some extent the voluminous testimony taken 
before the Committee on Privileges and Elections of the Senate of the 
United States, and the bills, petitions, processes, and orders pending 
before said district court, and the action of said E. H. Durell 
thereon; and upon the legality and propriety of that action the most 
serious questions arise, and if the time at which this matter was 
brought before your committee by testimony permitted that proper 
investigation which ought to be had in a subject of so grave 
importance, your committee would proceed thereto.
  It has been the practice of the Committee on the Judiciary to hear 
the accused in matters of impeachment whenever thereto requested, by 
witnesses or by counsel, or by both, as in their discretion would seem 
proper. Judge Durell has appeared before your committee and asked to be 
heard. At
-----------------------------------------------------------------------
  \1\ Third session Forty-second Congress, Journal, p. 164; Globe, p. 
541.
  \2\ Journal, p. 225; Globe, p. 761.
  \3\ Journal, p. 583; Globe, p. 2133; House Report No. 96.
                                                            Sec. 2508
that hour in the session there was no time in which he could be heard, 
and for this reason only no further action has been taken by your 
committee.
  We therefore report back the resolution with the recommendation that 
it be referred to the next House of Representatives for consideration, 
and that your committee be discharged from the further consideration 
thereof.

  The report was laid on the table and ordered printed by the House.
  2508. The Durell investigation continued.
  A subcommittee, with power to send for persons and papers, was sent 
to Louisiana to investigate the conduct of Judge Durell.
  A majority of the Judiciary Committee reported in favor of impeaching 
Judge Durell, principally for usurpation of power.
  At the beginning of the next Congress, on December 17, 1873,\1\ Mr. 
Jeremiah M. Wilson, of Indiana, submitted this resolution, which was 
agreed to:

  Resolved, That the Committee on the Judiciary be, and is hereby, 
authorized and directed to inquire and report to the House whether 
Judge E. H. Durell, judge of the district court of the United States 
for the southern district of Louisiana, shall be impeached for high 
crimes and misdemeanors; and that said committee shall have power to 
send for persons and papers.
  On December 19 \2\ Mr. Benjamin F. Butler, of Massachusetts, from the 
Judiciary Committee, reported the following resolution, which was 
agreed to by the House:

  Resolved, That the Committee on the Judiciary be, and is hereby, 
authorized to send a subcommittee of two members of said committee to 
New Orleans for the purpose of taking testimony in the matter of the 
impeachment of Judge E. H. Durell, heretofore referred to said 
committee, and that said subcommittee have power to send for persons 
and papers and to employ a stenographer.
  Mr. Butler explained that the charges against Judge Durell related to 
bankruptcy proceedings, and that unless the committee, should be sent 
it might be necessary to have the bankruptcy records brought to 
Washington, or have copies of them made. Such a task would be long and 
expensive.
  On June 17, 1874,\3\ very near the end of the session, Mr. Wilson 
submitted the report of the majority of the committee, consisting of 
Messrs. Benjamin F. Butler, of Massachusetts; Jeremiah M. Wilson, of 
Indiana; Alexander White, of Alabama; Charles A. Eldredge, of 
Wisconsin; Clarkson N. Potter, of New York, and Hugh J. Jewett, of 
Ohio. The report begins:

  Among the charges brought to the notice of your committee were those 
of drunkenness and the improper procurement of money by means of his 
judicial office. These charges are not sustained by the testimony, in 
the opinion of your committee, and therefore will not be further 
noticed.

  The report finds more serious certain charges relating to the 
bankruptcy business of the court. Judge Durell had appointed E. E. 
Norton ``official assignee in bankruptcy,'' and the latter had taken 
possession of the assets and estates of bankrupts in about 1,300 cases. 
``His charges were outrageously extortionate and seem to have been 
generally framed to absorb the estate,'' says the report; and it 
further cites an order by Judge Durell which prevented scrutiny into 
such charges. Norton also was found to have collusion with the 
auctioneers who made sales of bankrupt property, receiving more than 
$20,000 therefrom. The committee could not trace
-----------------------------------------------------------------------
  \1\ First session Forty-third Congress, Journal, p. 141; Record, p. 
266.
  \2\ Journal, p. 165; Record, p. 337.
  \3\ Journal, p. 1218; Record, pp. 5124, 5125; House Report No. 732.
Sec. 2508
these facts directly to the knowledge of Judge Durell, although some 
testimony tended to show such knowledge. After citing evidence the 
report continues:

  The manner in which Norton was managing these affairs and the 
extortionate charges he was making were the subject of severe criticism 
in the newspapers of the city of New Orleans.
  The most intimate social relations existed between Judge Durell and 
Norton during all of this time. Judge Durell spent much of his time at 
Norton's house in the city of New Orleans. They traveled North together 
in the summer and spent much of their time together while North, 
returning South again together when the summer was over.
  These facts so notorious in regard to the management of so important 
trusts as those of the bankrupt estates, when taken in connection with 
the order hereinbefore referred to, lead to the inevitable conclusion 
by your committee that Judge Durell must have been cognizant of them, 
and therefore a corrupt party thereto, or that he was grossly negligent 
in the discharge of his official duties, so that, quacumque via data, 
he comes under a like condemnation.

  And, finally, the report discusses a charge growing out of the 
Louisiana election of November 4, 1872. William P. Kellogg, Republican 
candidate for governor at that election, filed a bill in the United 
States circuit court against the then Governor Warmouth, McEnery, the 
Democratic candidate for governor, and certain others, alleging frauds 
for the purpose of disfranchising colored voters, and such an illegal 
purging of the State registration board as would enable the destruction 
of the evidence of the frauds; and therefore Mr. Kellogg prayed that a 
writ of injunction should issue, enjoining Warmouth from canvassing the 
returns except in the presence of the unpurged returning board, called 
the Lynch board. Warmouth filed answer denying the allegations. The 
motion for an injunction was heard and submitted on December 4, and on 
December 6 Judge Durell granted the injunction restraining Warmouth as 
prayed for in the bill. The report, after setting forth these 
preliminary facts, continues:

  In his opinion the judge speaks of Kellogg's bill as a bill ``to 
preserve evidence.'' Assuming that this court had the power, by virtue 
of the acts of Congress, to preserve the evidence relating to the 
election of State officers, that end would have been answered and that 
power exercised by the injunction which prevented the destruction of 
the ballots, certificates, and evidences in question; and that was, as 
the Senate Committee on Privileges and Elections have said in their 
report of January, 1873, ``the utmost that the court had authority upon 
this bill to do.'' The Constitution and acts of Congress gave no color 
of authority to a Federal court to determine what were the proper 
officers of the State or to restrain those who claimed to be so from 
action in respect of State matters.
  On the 20th of November Warmouth signed an act passed by the last 
legislature which until that time he had delayed signing, which act 
appointed Wiltz, Deferiet, and others a returning board, and 
subsequently he submitted to them the votes and returns, which were 
compiled by that board, and they returned certifying the McEnery ticket 
as elected, and Warmouth, as governor, on the 4th of December, made 
proclamation thereof accordingly.
  About these facts there is no dispute whatever.
  The legislature thus declared to have been elected were about to 
assemble in the State house on the 6th of December. About 9 o'clock on 
the evening of the 5th of December Judge Durell sent for S. B. Packard, 
the United States marshal for the district. Packard went to his room. 
The judge told him to send for Mr. Billings and Mr. Beckwith, Kellogg's 
solicitors; that he proposed issuing an order for the occupation of the 
State house. The solicitors were sent for; they came, and the judge 
told them the same thing, and after some consultation the preparation 
of the order was set about. Judge Durell dictated it to Mr. Billings, 
who wrote it down, and the marshal's deputy, De Klyne, made a clean 
copy of the order thus dictated. The judge then signed it and delivered 
it to Packard, who thereupon set about executing it, which he did by 
calling on General Emory for a detachment of Federal troops, which 
occupied the State house that same night. This occupation resulted in 
securing the State gov-
                                                            Sec. 2508
ernment to Kellogg. This order declared that, whereas Warmouth had, in 
violation of the restraining order herein, issued the following 
proclamation and returns of certain persons claiming to be a board of 
returning officers, all in violation and contempt of the said 
restraining order, as follows, to wit [setting out the proclamation and 
returns], and proceeded:

  Now, therefore, in order to prevent the further obstruction of the 
proceedings in this cause, and further to prevent a violation of the 
orders of this court, to the imminent danger of disturbing the public 
peace, it is hereby ordered that the marshal of the United States for 
the district of Louisiana shall forthwith take possession of the 
building known as the Mechanics' Institute, and occupied as the State 
house for the assembling of the legislature therein, in the city of New 
Orleans, and hold the same subject to the further order of this court; 
and meanwhile to prevent all unlawful assemblage therein under the 
guise or pretext of authority claimed by virtue of pretended canvass 
and returns made by said pretended returning officers, in contempt and 
violation of said restraining order; but the marshal is directed to 
allow the ingress and egress to and from the public offices in said 
building of persons entitled to the same.

                                        E. H. Durell, Judge.      
 New Orleans, La., December 5, 1872.
  And it contained no other pretenses, recitals, or reasons for its 
issue.
  It will be observed that none of the persons who composed the Wiltz 
and Deferiet board were members of the Lynch board, or named or 
mentioned in Kellogg's bill or Judge Durell's injunction. The act under 
which the Wiltz board was appointed seems to have been wholly 
overlooked, and no effort was made to restrain or prevent action under 
it; and although the judge declared that his midnight order was 
intended to prevent the obstruction of the proceedings in the Kellogg 
suit, and the violation of the orders of the court, the fact was these 
orders had not been violated nor the proceedings obstructed, nor was it 
possible that the canvass and return by the Deferiet board could 
obstruct or defeat the proceedings in that case, unless the object of 
that case was not, as pretended, to preserve evidences of right, but 
really to determine the validity of State elections. But the law had 
conferred and could confer no such power on a Federal court, and any 
proceedings to that end were necessarily coram non judice and void.

  The report discusses at length the alleged usurpation practiced by 
Judge Durell, concluding:

  Such action, from whatever motive, is at variance with every 
principle of good government, is calculated to confound and subvert the 
distinctions between the State and Federal governments, and to 
overthrow the Constitution itself, without which neither Judge Durell 
nor any other judge has any rightful authority whatever.

  Therefore the committee reported these resolutions:

  Resolved, That Edward H. Durell, judge of the district court of the 
United States for the district of Louisiana, be impeached of high 
crimes and misdemeanors in office.
  Resolved, That a committee of two be appointed to go to the Senate, 
and, at the bar thereof, in the name of the House of Representatives 
and of all the people of the United States, to impeach Edward R. 
Durell, judge of the district court of the United States for the 
district of Louisiana, of high crimes and misdemeanors in office, and 
acquaint the Senate that the House of Representatives will in due time 
exhibit particular articles of impeachment and make good the same; and 
that the committee do demand that the Senate take order for the 
appearance of said Edward H. Durell to answer to said impeachment.
  Resolved, That a committee of seven be appointed to prepare and 
report articles of impeachment against Edward H. Durell, judge of the 
district court of the United States for the district of Louisiana, with 
power to send for persons, papers, and records, and to take testimony 
under oath.

  Mr. Lyman Tremain, of New York, submitted minority views, which were 
concurred in by Messrs. William P. Frye, of Maine; John Cessna, of 
Pennsylvania, and Jasper D. Ward, of Illinois, dissenting, from the 
majority report and recommending the discontinuance of all proceedings.
Sec. 2509
  Mr. Luke P. Poland, of Vermont, filed individual views, saying:

  First. In relation to the midnight order, although he believes the 
judge had no proper legal jurisdiction to make it, still he is not able 
to find that the judge acted corruptly or with any belief that he was 
going beyond his jurisdiction in making it. The law under which he 
acted was new and no rules or precedents had been established under it. 
The whole people were excited, the times were violent and turbulent, 
and judicial calmness or correctness could hardly be expected.
  Second. The evidence seems to establish that some of the officers of 
Judge Durell's court were guilty of very corrupt practices, and that he 
was not watchful to scrutinize their conduct, but there is no claim 
that he ever shared in any of the proceeds of their gains and no direct 
evidence that he knowingly sanctioned or approved their action.
  Third. Where the evidence obtained by substantially an ex parte 
examination only secures a bare majority of the committee, it does not 
appear to me that the public interest will be furthered by presenting 
articles of impeachment to the Senate for trial.

  A few days after this report was submitted this session of Congress 
adjourned without further action on it.
  2509. The Durell investigation continued.
  Judge Durell having resigned, the House discontinued impeachment 
proceedings.
  Discussion of the effect of resignation of the officer upon 
impeachment proceedings.
  Discussion of usurpation of power as a ground for impeachment.
  At the next session, on January 7, 1875,\1\ the resolutions came 
before the House, and it was then announced that Judge Durell had 
resigned his office, and that his resignation had been accepted.
  A discussion arose as to two points:
  1. As to the sentiments of the committee on the charges against Judge 
Durell.
  Mr. Benjamin F. Butler said that he had favored impeachment solely 
because of the midnight order. He did not consider the other charges 
proven. As to the midnight order, he said:

  That seemed to me not within the enforcement act. There was no bill 
under the enforcement act to put that order in action, but simply a 
proceeding to perpetuate testimony. It seemed to me so gross an 
exercise of power that if the judge did not know he was exceeding his 
powers he ought to have known it. And, in either case, if he did know, 
of course he was wrong; and if he did not know, he ought to have known, 
and therefore he did not conduct himself well in office. And upon that 
ground I voted as I did. * * * He acted upon his own motion, without 
any motion or argument before him, and that is what makes the gravamen 
of the offense charged against him; for without motion of the counsel 
for the complainant on this bill of equity, he, upon his own 
consideration and judgment, acted, and without any moving cause except 
in his own mind. * * * Now, while I will not hold a judge to be 
impeachable where he simply makes a mistake, yet if a judge, clearly 
outside of all possible jurisdiction, interferes with the liberty of a 
single citizen, I will hold him impeachable.
  Mr. Lyman Tremain, of New York, who at the previous session had been 
one of the minority dissenting from impeachment, said that he had 
studied the case during the recess and had come to the conclusion that 
if the resolutions came to a vote he should vote for them, because of 
the midnight order. After reviewing the history of that order, Mr. 
Tremain said:

  Instead of being a judicial order, it seems to me to be a military 
order, an order which it seems was afterwards upheld and supported by 
the troops of the United States, and which it may therefore be fairly 
assumed was contemplated and intended to be so used. I find also that 
the marshal testifies that
-----------------------------------------------------------------------
  \1\ Second session Forty-third Congress, Journal, p. 139; Record, pp. 
319-324.
                                                            Sec. 2510
the judge gave him discretionary power by an oral direction to 
determine what persons should be admitted to the State-house and what 
persons should be excluded; thus deputing, not in writing, this vast 
discretionary power, and clothing the marshal with it. I can not 
believe that such an order as that can be justified by any 
consideration of charity.

  Messrs. Storm and Poland, who had been of the dissenting minority, 
stated their belief that the order was wrong, but they did not consider 
that a wrongful intent was established. ``Because this judge made an 
order he had no legal jurisdiction to make,'' said Mr. Poland, ``it by 
no means follows he is amenable to impeachment, unless it can be 
established that that order was made corruptly or made with a knowledge 
on his part--with a belief that he was exceeding his legal 
jurisdiction.''
  Mr. Jeremiah M. Wilson stated that he believed the general opinion of 
those concurring in the majority report, was that Judge Durell was also 
impeachable for the irregularities in the bankruptcy proceedings.
  2. As to the power to impeach a person who has resigned.
  Mr. Butler stated that he had no doubt, as the Constitution imposed 
the punishment of disability for holding office thereafter, that the 
impeachment might proceed. But Judge Durell was an old man and there 
would be no practical benefit in going on with this case. Mr. Luke P. 
Poland stated that, while he had not examined the matter carefully, he 
had a very strong impression that the resignation would not avail as a 
legal obstacle to prevent the House from continuing the proceedings. It 
was a matter for the discretion of the House, according to the 
circumstances of the case.
  Mr. Tremain said he had examined the question with considerable care, 
and he had very serious doubt ``whether the House has any 
Constitutional power whatever to proceed by impeachment after the 
officer has resigned, his resignation has been accepted, and his 
successor has been appointed. The power to impeach rests entirely upon 
the Constitution of the United States. The whole system of English 
parliamentary impeachment, with the tremendous powers possessed by 
Parliament, has been superseded by our Constitution.'' Mr. Tremain said 
that the whole subject had been discussed by Judge Story, whose 
Commentaries he quoted in support of his view.
  The question was taken on laying the resolutions on the table, and 
the motion was agreed to, yeas 129, nays 69. So the proceedings were 
discontinued.
  2510. The inquiry as to the conduct of Schuyler Colfax, Vice-
President of the United States.
  In the Colfax case the majority of the Judiciary Committee concluded 
that the power of impeachment was rather remedial than punitive.
  Discussion as to whether or not a civil officer may be impeached for 
an offense committed prior to his term of office.
  A proposition to investigate the conduct of an officer and prepare 
articles of impeachment was held to be privileged.
  On February 20, 1873,\1\ Mr. Fernando Wood, of New York, proposed as 
a question of privilege, the following:

  Resolved, That the testimony reported to this House by the special 
committee appointed under the resolution of the House of 
Representatives of December 2, 1872, for the investigation of charges 
of
-----------------------------------------------------------------------
  \1\ Third session Forty-second Congress, Journal, pp. 451, 452; 
Globe, pp. 1544, 1545.
Sec. 2510
bribery in influencing Members of the House of Representatives, be 
referred to the Committee on the Judiciary, with instructions to report 
articles of impeachment against Schuyler Colfax, Vice-President of the 
United States, if in its judgment there is evidence implicating that 
officer and warranting impeachment.

  Mr. Horace Maynard, of Tennessee, asked if a question of privilege 
was presented.
  The Speaker \1\ stated that such a question had been presented.
  Mr. James N. Tyner having raised the question of consideration, the 
House, by a vote of yeas 105, nays 109, voted not to consider it.
  Thereupon Mr. Tyner presented this resolution, which was agreed to 
without debate or division:

  Resolved, That the testimony taken by the Committee of this House, of 
which Mr. Poland, of Vermont, is chairman, be referred to the Committee 
on the Judiciary, with instructions to inquire whether anything in such 
testimony warrants articles of impeachment of any officer of the United 
States not a Member of this House, or makes it proper that further 
investigation should be ordered in this case.

  This resolution was offered as involving a question of privilege, and 
its status as such was not questioned.
  On February 24 Mr. Benjamin F. Butler, of Massachusetts, submitted 
the report \2\ of the committee. This report, so far as it related to 
the subject of impeachment, was concurred in by Messrs. John A. 
Bingham, of Ohio, Benjamin F. Butler, of Massachusetts, Charles A. 
Eldredge, of Wisconsin, John A. Peters, of Maine, Lazarus D. Shoemaker, 
of Pennsylvania, Daniel W. Voorhees, of Indiana, and Jeremiah M. 
Wilson, of Indiana. Mr. Clarkson N. Potter, of New York, dissented.
  For the purpose of applying the principles and precedents, the 
committee assumed all that could be inferred from the testimony in 
regard to the Vice-President, Schuyler Colfax, who was the official 
referred to. They assumed that in the winter of 1867-68 he purchased of 
Oakes Ames stock of the Credit Mobilier at par when it was known to be 
worth much more than par; and that, from 1867 to 1869, while holding 
such stock, and while the House was considering subjects affecting the 
value of that stock, he presided over the House as Speaker. They found 
it undisputed that Mr. Colfax became interested in the Credit Mobilier 
before he became Vice-President, and that the motives which impelled 
the transaction were expected to operate upon him only as a Member of 
the House. Continuing, the committee say:

  But we are to consider, taking the harshest construction of the 
evidence, whether the receipt of a bribe by a person who afterwards 
becomes a civil officer of the United States, even while holding 
another official position, is an act upon which an impeachment can be 
grounded to subject him to removal from an office which he afterwards 
holds. To elucidate this we first turn to the precedents.
  Your committee find that in all cases of impeachment or attempted 
impeachment under our Constitution there is no instance where the 
accusation was not in regard to an act done or omitted to be done while 
the officer was in office. In every case it has been heretofore 
considered material that the articles of impeachment should allege in 
substance that, being such officer, and while in the exercise of the 
duties of his office, the accused committed the acts of alleged 
inculpation.

  The committee then cite briefly the impeachments of Judges Pickering, 
Chase, Peck, and Humphries, and President Johnson, in each of which the 
offense charged occurred during the term of office. Of impeachments 
under the State constitutions
-----------------------------------------------------------------------
  \1\ James G. Blaine, of Maine, Speaker.
  \2\ House Report No. 81, third session Forty-second Congress; Globe, 
p. 1651.
                                                            Sec. 2510
the rule seemed to be the same, unless the recent cases of Judges 
Barnard and McCunn, in New York, might present some exceptional 
features. In the Parliament of England, also, the committee found the 
same rule prevailing in all years since the rights of the subject and 
the principles of law and justice have become established.
  From this so nearly ``invariable current of precedent and authority'' 
the committee turn to inquire:

  What is the nature and what the objects of impeachments under our 
Constitution? Are they punitive or remedial? Or, in other words, is 
impeachment a constitutional remedy for removing obnoxious persons from 
office and preventing their again filling office, or a power given for 
punishing an officer, while he is an officer, for some crime alleged to 
have been committed by him before he was such officer?

  The report answers these questions as follows:

  Your committee are very strongly inclined to the opinion that 
impeachment was intended by the framers of the Constitution to be 
wholly remedial and not punitive, except as an incident to the 
judgment, because we find that the Constitution limits the judgment in 
impeachment by strongly restrictive words: ``Judgment in cases of 
impeachment shall not extend further than to removal from office and 
disqualification to hold and enjoy any office of honor, trust, or 
profit, under the United States.''
  If such judgment is a punishment for an alleged high crime and 
misdemeanor, then why does the same article provide for the punishment 
of the accused a second time for the same offense? Because the words we 
have quoted are followed by the provision: ``But the party convicted 
shall, nevertheless, be subject to indictment, trial, judgment, and 
punishment according to law.''
  This, therefore, would leave the party who had been removed from 
office and disqualified from holding office by the judgment of 
impeachment, if that is a punishment for his crime, to be the second 
time punished for the same offense, which is contrary to natural 
justice, against Magna Charta, and is most positively forbidden by the 
fifth article of amendment to the Constitution.
  This article also throws some further light on this subject, because 
in its nervous language it enacts that ``No person shall be held to 
answer for a capital or otherwise infamous crime, unless upon 
presentment or indictment of a grand jury, except in cases arising in 
the land or naval forces, or in the militia when in actual service in 
time of war or public danger.''
  Nor does it appear that this view is affected by the exception in 
section 2, Article III, of the Constitution, that the trial of all 
crimes, except in cases of impeachment, shall be by jury; this 
exception being necessary only to make the instrument consistent in all 
its parts with itself, as it had already provided that the impeached 
could be tried by jury for his crime.
  Again, we find impeachment to be remedial in this, that it only 
provides, as a further consequence, disqualification for office, by 
which the evil is cured; that thereafter the Government may not have an 
officer who has so far forgotten his obligations to his official oath 
and to his duty as a citizen as to have been removed from office for 
high crimes and misdemeanors; again, by vote of the electors or 
appointment by the Executive, put in place of honor or trust.
  We are also inclined to believe that proceedings of impeachment were 
intended to be remedial and not punitive, because we have already seen 
that if punitive at all an entirely inadequate punishment has been 
provided by the judgment; because the very highest offenses are triable 
by impeachment, such as treason and bribery, and the sentence may be 
only removal from an office whose term extends for a few days only, as 
in the case under consideration.
  Again, we are brought to the conclusion that proceedings of 
impeachment are remedial and not punitive, because, in the case of 
Judge Pickering, before referred to, impeached for habitual 
intoxication, the officer was condemned because he became incapacitated 
for the performance of the duties of his office, and we find that 
impeachment is the only means known to our Constitution by which a 
civil officer of the United States, elected by the people, or a judge 
appointed by the Executive, can be removed from office. And certainly 
habitual intoxication, while it may not be a crime at common law or by 
statute, in a private person, may readily enough seem to be a very high 
crime and misdemeanor in a high civil officer, wholly incapacitating 
him from performing all his duties; so much so as to be made by the 
Articles of War a ground for removing an officer from the military 
service.
Sec. 2511
  Again, your committee are inclined to believe that impeachment is not 
punitive, because, although an officer may have been tried and 
convicted of a high crime, yet he may be impeached for that very crime 
as a remedy for public mischief, and thus, in the converse of the 
proposition above stated, be twice punished for the same offense.
  If the conclusions to which your committee have arrived in this 
regard are correct, it will readily be seen that the remedial 
proceedings of impeachment should only be applied to high crimes and 
misdemeanors committed while in office, and which alone affect the 
officer in discharge of his duties as such, whatever may have been 
their effect upon him as a man, for impeachment touches the office only 
and qualifications for the office, and not the man himself.

  The report was made in the House, February 24, and was briefly 
debated, after which it was postponed to February 26. But it was not 
considered that day, and does not appear to have been taken up 
thereafter.\1\
  2511. The investigation into the conduct of Charles T. Sherman, 
district judge of the United States for the northern district of Ohio.
  The House declined to vote the impeachment of a judge who had not 
been heard before the investigating committee.
  Discussion of precedents in relation to ex parte investigations with 
a view to impeachment, including the case of President Johnson.
  On February 22, 1873,\2\ Mr. Ellis H. Roberts, of New York, presented 
as a question of privilege, and at the request of the Committee on Ways 
and Means, this resolution:

  Resolved, That the evidence taken by the Committee on Ways and Means, 
under their authority to send for persons and papers in matters under 
examination pending before said committee, arising out of business 
referred to them by the House, be referred to the Committee on the 
Judiciary, with instructions to examine so much thereof as relates to 
Charles T. Sherman, judge of the district court of the United States 
for the northern district of Ohio, and determine whether further 
investigation of the conduct of said Sherman should not be had with a 
view of presenting articles of impeachment, if such investigation 
should, in their judgment, justify such action.

  Without any question as to whether or not the resolution was 
privileged, and without division, the House agreed to it.
  On March 3,\3\ the last day of the Congress, Mr. Benjamin F. Butler, 
of Massachusetts, from the Committee on the Judiciary, reported that 
the testimony had come to the committee on the preceding day. There was 
therefore no time for the accused or his counsel to be heard, and as it 
had become the established practice of the Judiciary Committee to give 
such hearings in cases of impeachment, they reported the testimony 
back, to be placed on file for the consideration of the next House. 
Therefore Mr. Butler proposed this resolution:

  Resolved, That the testimony be placed on file for the consideration 
of the next House of Representatives, and that the committee be 
discharged from the further consideration of the same.

  Mr. Clarkson N. Potter, of New York, proposed the following as a 
substitute:

  Whereas it appears by the letters of Charles T. Sherman, a judge of 
the district court of the United States for the northern district of 
Ohio, that he proposed to corruptly control legislation for money, to 
be paid to him by the stock exchange of New York, and subsequently 
insisted on such payment on the ground of such control, and threatened 
adverse legislation if the same was not paid; and whereas it
-----------------------------------------------------------------------
  \1\ Globe, pp. 1655, 1656; Journal, pp. 472, 473.
  \2\ Third session Forty-second Congress, Journal, p. 461; Globe, p. 
1628.
  \3\ Journal, pp. 571, 572; Globe, pp. 2122-2127.
                                                            Sec. 2512
further appears by the testimony of said Sherman before the Committee 
on Ways and Means of this House that his said pretenses of power to 
control legislation and his said assertions of services he had rendered 
in this respect were false: Therefore,
  Resolved, That a committee of three Members of this House be 
appointed by the Speaker to go to the Senate and at the bar thereof, in 
the name of the House of Representatives and of all the people of the 
United States, to impeach Charles T. Sherman, judge of the district 
court of the United States for the northern district of Ohio, of high 
misdemeanors in office, and acquaint the Senate that the House of 
Representatives will in due time exhibit particular articles of 
impeachment against him and make good the same; and that said committee 
do demand that the Senate take further order for the appearance of the 
said Charles T. Sherman to answer to said impeachment.\1\

  The presentation of this proposed substitute caused an issue to be 
joined as to whether or not an officer ought to be impeached without an 
opportunity to be heard. It was explained that Judge Sherman had 
appeared before the Ways and Means Committee only as a witness, to 
answer such questions as were asked, and without power to explain or 
adduce evidence in his own behalf.
  Those who favored delay to permit Judge Sherman to be heard seemed 
generally to consider that his conduct merited impeachment, Mr. Henry 
L. Dawes, of Massachusetts, saying that he did not see how he could 
make a satisfactory explanation, yet he believed that the opportunity 
should be given him.
  Mr. Butler said that in the cases of Judges Pickering and Chase the 
opportunity to be heard was not given, but it had been conceded in 
``the case of Judge Watrous, in the case of Judge Peck, in the case 
even of Andrew Johnson.'' There was dissent at this statement as to 
President Johnson, and Mr. Butler qualified it by saying:

  He was notified of what was going on, but never asked to appear.\2\

  Mr. Butler went on to say that in the case of Judge Delahay they did 
not hear counsel, but sent a subcommittee to Kansas to hear such 
witnesses as Judge Delahay might choose to summon. Judge Busteed was 
heard by himself and by counsel. In this case Judge Sherman had made 
application to be heard, but the committee had no time to hear him.
  Mr. Potter read letters of Judge Sherman which appeared to support 
the allegations of the preamble, and urged the adoption of the 
substitute.
  After further debate the preamble and substitute were disagreed to by 
a vote of 32 ayes and noes not counted.
  Then the resolution proposed by Mr. Butler was agreed to without 
division.
  The records of the State Department show that Martin Walker was 
appointed judge of this district on November 25, 1873, and the vacancy 
was occasioned by the resignation and death of Judge Sherman.\3\
  2512. The investigation into the conduct of Richard Busteed, United 
States district judge for Alabama.
  The majority of the Judiciary Committee recommended the impeachment 
of Judge Busteed, principally for nonresidence.
  A question as to the authority of Congress to make nonresidence of a 
judge an impeachable offense.
-----------------------------------------------------------------------
  \1\ At this stage the simple resolution to impeach is usually 
presented. The above form is used after impeachment has been voted, to 
provide for taking the charge to the Senate.
  \2\ Globe, p. 2123.
  \3\ John Sherman's Recollections, Vol. II, p. 726.
Sec. 2512
  Judge Busteed having resigned, the House discontinued impeachment 
proceedings.
  On December 15, 1873,\1\ Mr. E. Rockwood Hoar, of Massachusetts, by 
unanimous consent, submitted the following resolution, which was agreed 
to:
  Resolved, That the Committee on the Judiciary be directed to inquire 
and report whether the action of this House is requisite concerning the 
official conduct of the judge of the United States district court for 
the district of Alabama; and especially whether said judge has held 
terms of his court required by law; whether he has continuously and 
persistently absented himself from the said State; and whether his acts 
and omissions in his office of judge have been such as in any degree to 
deprive the people of that State of the benefit of a district court 
therein, and amount to a denial of justice.

  On December 17,\2\ Mr. Jeremiah M. Wilson, of Indiana, submitted the 
following resolution, which was agreed to:

  Resolved, That the Committee on the Judiciary, to whom has been 
referred \3\ the resolution requiring said committee to inquire into 
the conduct of the judge of the district court of the United States of 
the district of Alabama, shall have power to send for persons and 
papers.

  On June 20, 1874,\4\ Mr. Wilson presented the report of the committee 
for printing and recommitment.
  The official referred to in these proceedings was Judge Richard 
Busteed.
  It appears incidentally from the report that at least one witness was 
called at Judge Busteed's request, and was examined by ``Mr. Busteed,'' 
which would suggest that the respondent acted in person or was 
represented by some attorney of the same name. Some of the testimony 
elicited shows pretty conclusively that Judge Busteed examined the 
witness personally.
  Three charges appear in this case:
  1. That Judge Busteed did not reside in the district as required by 
the acts of September 24, 1789, and December 18, 1812, the latter of 
which provided that ``any person offending against the injunction or 
prohibition of this act shall be deemed guilty of a high misdemeanor.''
  The majority of the committee determined that the residence required 
by these laws was an actual residence. They say that Judge Busteed was 
appointed in 1865, being then a resident and large property owner in 
New York. Soon after his appointment he leased for three years a 
residence in Mobile, Ala., and removed his family there to reside. The 
report assumes that this removal was with the intent of becoming a 
permanent resident of the State. About two years afterwards, the house 
becoming untenantable, he abandoned his lease, his family came North, 
and have not since returned to Alabama. For the past seven years his 
family had not been in Alabama. The testimony showed that Judge Busteed 
had in New York real estate and personal property to a total value of 
about $300,000, including a house, but that he had no real estate in 
Alabama, and that his personal effects consisted of ``a carpet, a music 
box, and a double-barreled gun.'' He lived with a relative in the New 
York house much of the year, going to Alabama in the fall to hold 
court,
-----------------------------------------------------------------------
  \1\ First session Forty-third Congress, Journal, p. 127, Record, p. 
209.
  \2\ Journal, p. 141; Record, p. 266.
  \3\ This is hardly accurate. The House agreed to the resolution, 
thereby instructing the committee.
  \4\ Journal, p. 1262; Record, p. 5316; House Report No. 773.
                                                            Sec. 2512
and returning in June, as soon as the courts were over. From this 
testimony the majority of the committee concluded that Judge Busteed 
was no resident of Alabama, ``but only a sojourner from time to time 
for the purpose of holding terms of court.''
  2. The evidence showed much irregularity in holding courts--that in 
each division of the district he had frequently failed to hold the 
courts at the terms created by law. In one of them he had held no court 
since the spring of 1872, and in none of them had he held any court 
since the spring of 1873. Besides this, before those dates he held his 
courts irregularly, sometimes omitting altogether to hold them, being 
absent from the State. The committee concluded that the plea of ill 
health was not a sufficient excuse for these numerous and continued 
absences from duty.
  3. It was also charged that Judge Busteed had used improperly the 
money of the United States and his official position to promote his 
personal interests. The committee found this charge sustained in 
respect to the remission of a fine by the judge in his court in order 
to relieve himself of a libel suit in the State courts.
  Therefore the majority of the committee, Messrs. Benjamin F. Butler, 
of Massachusetts; Jeremiah M. Wilson, of Indiana; Luke P. Poland, of 
Vermont; Alexander White, of Alabama; Charles A. Eldredge, of 
Wisconsin; Clarkson N. Potter, of New York, and Hugh J. Jewett, of 
Ohio, concurred in recommending this resolution:

  Resolved, That Richard Busteed, judge of the district court of the 
United States for the southern, middle, and northern districts of 
Alabama, be impeached for misdemeanors in office.\1\

  Messrs. John Cessna, of Pennsylvania; William P. Frye, of Maine; 
Jasper D. Ward, of Illinois, and Lyman Tremain, of New York, dissented 
from the conclusion of the majority of the committee.
  Soon after this report was printed the session of Congress ended.
  At the next session, on January 7, 1875 \2\ the report was taken up. 
In the meantime Judge Busteed had resigned his office and the 
resignation had been accepted.
  Mr. Tremain expressed a doubt as to whether or not nonresidence was 
an impeachable offense. ``High crimes and misdemeanors'' must be taken 
to mean such offenses as were high crimes and misdemeanors when the 
Constitution was framed. It might be doubted whether a subsequent law 
proposing to make a specific offense a high crime or high misdemeanor 
would be constitutional.
  This report being taken up immediately after the disposition of the 
Durell case, Messrs. Butler and Wilson took occasion to emphasize their 
opposition to the theory that an officer might escape impeachment by 
resignation.
  The question being taken on discharging the Committee on the 
Judiciary from the consideration of the subject and laying it on the 
table, the motion was agreed to without division. So the proceedings 
were discontinued.
-----------------------------------------------------------------------
  \1\ Two other resolutions providing for carrying the impeachment to 
the Senate and for a committee to prepare articles accompanied this 
resolution. They were similar to the resolutions in the Durell Case
  \2\ Second session Forty-third Congress, Journal, pp. 140, 141; 
Record, pp. 324-326.
Sec. 2513
  2513. The investigation into the conduct of William Story, United 
States judge for the western district of Arkansas.
  Memorials containing charges against Judge Story were referred to the 
Judiciary Committee for examination before the House voted a formal 
investigation.
  On February 26, 1874,\1\ Mr. James G. Blaine, of Maine, presented to 
the House memorials of James S. Robinson, of Fort Smith, Ark., and of 
Ben. T. Du Vol, James S. Gage, and others, practicing attorneys of Fort 
Smith, containing charges and specifications against William Story, 
judge of the United States district court for the western district of 
Arkansas. These memorials were presented at the Clerk's desk under the 
rule, and under the rule were referred to the Committee on the 
Judiciary.
  On April 28 \2\ Mr. Jeremiah M. Wilson, of Indiana, from the 
Committee on the Judiciary, stated that the memorials presented 
contained nineteen specifications. The committee had been examining the 
case for some time, but now needed further authority, and he proposed 
this resolution, which was agreed to by the House without division:

  Resolved, That the Committee on the Judiciary be, and is hereby, 
instructed to inquire whether Judge William F. Story, judge of the 
district court of the United States for the western district of 
Arkansas, shall be impeached for high crimes and misdemeanors, and that 
said committee have power to send for persons and papers.

  On June 20, 1874,\3\ Mr. John Cessna, of Pennsylvania, from the 
Committee on the Judiciary, presented a resolution providing that the 
evidence taken in this matter by the Judiciary Committee be furnished 
by the Clerk of the House to the Attorney-General, Secretary of the 
Treasury, and Third Auditor and First Comptroller of the Treasury, 
``for their information and guidance, with the recommendation that such 
action be taken by the said Departments as will restore to the Treasury 
of the United States any moneys wrongfully paid to any of the officers 
of said court, and to prevent any such wrongful payments hereafter.'' 
This resolution was agreed to with an amendment including also a copy 
of testimony taken before the Committee on Expenditures in the 
Department of Justice.
  2514. The investigation into the conduct of George F. Seward, late 
consul-general at Shanghai.
  The Seward investigation was set in motion by a memorial.
  In the Seward investigation the respondent was represented by counsel 
and in person before the committee.
  An opinion of the Judiciary Committee that a person under 
investigation with a view to impeachment may not be compelled to 
testify.
  An instance wherein a committee charged with the investigation 
reported articles with the resolution of impeachment.
  On January 23, 1878,\4\ the Speaker laid before the House a 
communication from John C. Myers, late consul-general at Shanghai, 
China, asking that an inves-
-----------------------------------------------------------------------
  \1\ First session Forty-third Congress, Journal, p. 511; Record, p. 
1825.
  \2\ Journal, p. 869; Record, p. 3438.
  \3\ Journal, p. 1262; Record, p. 5316.
  \4\ Second session Forty-fifth Congress, Journal, pp. 268, 269, 273.
                                                            Sec. 2514
tigation might be had concerning the administration of the consulate-
general at Shanghai, during the terms in office of Hon. George F. 
Seward, present minister to China; O.B. Bradford, vice-consul-general 
and consular clerk; and himself as consul-general.
  The memorial was first referred to the Committee on Foreign Affairs, 
but later the reference was changed to the Committee on Expenditures in 
the State Department.
  The Committee on Expenditures in the State Department, by a 
resolution of January 11, 1878,\1\ had been empowered generally to 
investigate the affairs of the State Department, and under this 
authority they proceeded to take testimony on the subject of the 
memorial.
  It appears \2\ that counsel was permitted to represent Mr. Seward 
before the committee, and later the investigation was suspended in 
order that Mr. Seward might leave his post and appear before the 
committee to assist in cross-examination of witnesses. The committee, 
however, made the condition of this concession, that Mr. Seward should 
produce papers in his possession relating to the consul-generalship at 
Shanghai during his incumbency of the office. Mr. Seward did not 
produce the papers, did not obey a subpoena duces tecum, and declined 
the oath as a witness, urging that the fifth amendment to the 
Constitution provided that ``no person shall be compelled, in any 
criminal case, to be a witness against himself.''
  The issue thus raised was referred to the Committee on the Judiciary, 
who reported on March 3, 1879,\3\ Mr. Benjamin F. Butler, of 
Massachusetts, making the report. The general question of the 
production of papers was discussed,\4\ and also the report said on the 
question of testimony:

  Investigations looking to the impeachment of public officers have 
always been finally examined before the Judiciary Committee of the 
House, so far as we are instructed; and it is believed that the case 
can not be found as a precedent where the party charged has ever been 
called upon and compelled to give evidence in such case. We distinguish 
this case from the case of an ordinary investigation for legislative 
purposes, where all parties are called upon to give such evidence (oral 
or written) as may tend to throw light upon the subject of 
investigation; but even in those cases it was early held that a person 
called as a witness, and not a party charged before the committee, was 
not bound to criminate himself; and a statute familiar to the House, 
for the protection of witnesses under such circumstances, from having 
the evidence given used against them, was passed.
  In making an investigation of the facts charged against an officer of 
the United States looking to impeachment, the House acts as the grand 
inquest of the nation to present that officer for trial before the 
highest court known to our Constitution--the Senate of the United 
States--for such punishment as may be constitutionally imposed upon 
him, which is very severe in its penalties, and even then does not 
exonerate the party from further prosecution before the proper courts 
for offenses against the laws.

  On March 1, 1879,\5\ before the report of the Judiciary Committee had 
been submitted to the House, Mr. Springer presented the report of the 
majority of the Committee on Expenditures in the State Department.\6\ 
The report consisted of seventeen articles of impeachment, charging 
that as judge of the consular court, while
-----------------------------------------------------------------------
  \1\ Journal, pp. 158, 159.
  \2\ House Report No. 117, third session Forty-fifth Congress.
  \3\ Third session Forty-fifth Congress, Report No. 141.
  \4\ See sections 1699, 1700 of this volume for general aspects of the 
subject.
  \5\ Journal, pp. 621, 624, 625, 642, 649, 659, 664; Record, pp. 2374, 
2378, 2384, 2778.
  \6\ For this report in full, see Journal, pp. 624-633.
Sec. 2515
consul-general, he had corruptly received money in the settlement of 
estates and in other judicial matters; that be had converted to his own 
use certain funds intrusted to him as consul-general; that he had used 
his official influence to promote the construction of a railway in 
violation of law and treaty; that he had converted to his own use fees 
belonging by law to the marshal of the consulate, by virtue of an 
unlawful agreement with the said marshal; that he had, by means of 
falsified accounts, converted to his own use certain premiums of 
exchange; that he unlawfully took the salary of his office as consul-
general after he had become minister of the United States to China, and 
while receiving the salary of the latter office; that as minister to 
China he unlawfully suspended John C. Myers, then being consul-general 
at Shanghai, and procured the appointment of one Oliver B. Bradford to 
the place, for the purpose ``to secrete and conceal the crimes 
committed as aforesaid;'' and that he had neglected willfully to render 
true and just quarterly accounts of his office, and embezzled the 
public moneys of the United States; that as minister to China he 
unlawfully endeavored to procure and did procure the release of Oliver 
B. Bradford from the consular jail, whither he had been committed for 
embezzlement, and permitted him to go at liberty; and that he 
unlawfully took from the consulate-general at Shanghai certain account 
books, the property of the United States, and carried them away ``with 
intent to conceal, destroy, or steal the same, and ever since has and 
still does conceal the same, and refuses to deliver the same up as 
required by law.''
  The committee therefore recommended this resolution:

  Resolved, That George F. Seward, late consul-general of the United 
States of America at Shanghai, China, and now envoy extraordinary and 
minister plenipotentiary of the United States of America to China, be 
impeached of high crimes and misdemeanors while in office.

  Two other resolutions accompanied, providing for presentation of the 
impeachment in the Senate and for the appointment of a committee to 
frame articles of impeachment.
  Mr. Solomon Bundy, of New York, presented views of the minority, with 
this resolution:

  Whereas, in view of the great importance of the subject and matters 
embraced in the report of the majority of the committee in the matter 
of the proposed impeachment of George F. Seward for alleged high crimes 
and misdemeanors, and the complicated questions of law involved 
therein: Therefore
  Resolved, That the matters embraced in such report, together with the 
evidence in the case, be referred to the Committee on the Judiciary.

  On March 3,\1\ the last day of the Congress, the House, by a vote of 
yeas 132, nays 109, voted to consider the report; but thereafter 
dilatory proceedings prevented action on it.
  2515. The investigation into the conduct of Oliver B. Bradford, late 
vice-consul-general at Shanghai.
  A question as to whether a vice-consul-general is such an officer as 
is liable to impeachment.
  The Bradford investigation was set in motion by a memorial in which 
charges were preferred.
-----------------------------------------------------------------------
  \1\ Journal, pp. 621, 622.
                                                            Sec. 2516
  On March 22, 1878,\1\ Mr. William M. Springer, of Illinois, from the 
Committee on Expenditures in the State Department, to whom had been 
referred a memorial of John C. Myers relating to the affairs of the 
consulate-general at Shanghai, China, reported a recommendation that 
Oliver B. Bradford, late vice-consul-general at Shanghai, China, and 
now holding the office of postal agent of the United States at 
Shanghai, and also the office of consular clerk of the United States 
assigned at Shanghai, be impeached at the bar of the Senate of high 
crimes and misdemeanors in office. The committee transmitted with their 
report the testimony taken, and also as part of their report, ten 
articles of impeachment, setting forth the charges against the said 
Bradford: (1) That in abuse of his official position he became 
interested in the construction of a railroad in China, violating 
treaties between the United States and China, and in violation of acts 
of Congress; (2) that in the construction of the said railroad he used 
his official position to further a fraudulent scheme; (3) that in five 
specified cases he has used his office to exercise oppressive, 
extortionate, and corrupt activity against American citizens; (4) that 
he embezzled a letter from the post-office at Shanghai; (5) that he 
unlawfully took from the post-office and opened another letter; (6) 
that he transmitted a false salary voucher to the United States 
Treasury to cover the withholding of a portion of the salary of an 
employee; (7) that as disbursing officer he defrauded the United States 
Government; (8) that he again was guilty of fraud as disbursing 
officer; (9) that he embezzled a sum of money belonging to the United 
States; (10) and that he unlawfully deposited to his own account a sum 
of money belonging to the United States.
  In view of these specifications the committee recommended this 
resolution:

  Resolved, That Oliver B. Bradford, now consular clerk of the United 
States, assigned to Shanghai, China, and postal agent of the United 
States at Shanghai, China, and late vice-consul-general of the United 
States at Shanghai, China, and late clerk of the consular court of the 
United States at Shanghai, China, be impeached by the House of 
Representatives at the bar of the Senate, for high crimes and 
misdemeanors while in office.

  Mr. Springer announced in the report that two members of the 
committee, Messrs. Mark H. Dunnell, of Minnesota, and Solomon Bundy, of 
New York, entertained grave doubts whether Mr. Bradford was such an 
officer as was liable under the Constitution to impeachment. All of the 
committee agreed that the evidence sustained the charges. In view of 
the constitutional question involved, Mr. Springer moved that the whole 
subject be referred to the Judiciary Committee. This motion was agreed 
to without division.
  2516. The investigation of the conduct of Henry W. Blodgett, United 
States judge for the northern district of Illinois.
  In the case of Judge Blodgett the House ordered an investigation upon 
the presentation of a memorial specifying charges.
  In the investigation of Judge Blodgett both the complainants and the 
respondent were represented by counsel and produced testimony before 
the committee.
  The most liberal latitude was allowed in the examination of witnesses 
before the committee which investigated the conduct of Judge Blodgett.
-----------------------------------------------------------------------
  \1\ Second session Forty-fifth Congress, Journal, p. 1127; Record, p. 
3667; House Report No. 818.
Sec. 2516
  The committee and the House acted adversely on a proposition to 
impeach Judge Blodgett for an act in excess of his jurisdiction, bad 
faith not being shown.
  On January 7, 1879,\1\ Mr. Carter H. Harrison, of Illinois, presented 
the memorials of certain citizens of Chicago asking for the appointment 
of a special committee to visit that city and investigate certain 
charges, therein set forth, against Henry W. Blodgett, district judge 
of the northern district of Illinois. Mr. Harrison also presented a 
preamble and resolution, which, after amendment, was agreed to by the 
House, giving the Judiciary Committee authority to investigate the 
charges.
  On March 3,\2\ Mr. J. Proctor Knott, of Kentucky, presented the 
report of the committee.
  As to the method of investigation the report says:

  That during the taking of the testimony herewith submitted, Judge 
Blodgett and Messrs. Cooper, Knickerbocker, and Sheldon, upon whose 
memorial the resolution recited above was introduced and adopted, were 
present in person and with counsel. Both parties were permitted to 
introduce evidence, and the most liberal latitude was allowed to each 
in the examination of witnesses to the end that every fact bearing 
directly or remotely upon the subject under consideration might be 
clearly ascertained. In order to facilitate the investigation as much 
as possible, however, and to enable the committee to confine the 
testimony within reasonable limits, and present it to the House in 
something like a systematic form, the memorialists were requested to 
present their charges and specifications in writing, which was 
accordingly done, and copies thereof delivered to Judge Blodgett with 
the request that he would file written answers thereto, if such answers 
should be deemed by him necessary or desirable.

  The report then discusses the charges, which were:
  1. That Judge Blodgett had entered into a dishonest conspiracy to 
defraud, by aid of his acts as judge, the creditors of a certain 
corporation.
  2. That he had improperly attempted to prevent the grand jury from 
finding an indictment against one Homer N. Hibbard, for perjury.
  3. That while holding the office of judge he had knowingly borrowed 
and converted to his own personal use money belonging to or deposited 
in the registry of his court.
  4. That as judge he had willfully employed the power and authority of 
the court to perpetrate acts of gross judicial oppression upon the 
rights of a private citizen, and sanction and direct the commission of 
a flagrant trespass which constituted a criminal offense under the laws 
of the State of Illinois, punishable by fine and imprisonment.
  5. That in administering the bankrupt law he had willfully violated 
the letter and spirit of the law by making an unlawful use of his power 
as judge to enrich his friends and favorites, to the reproach and 
scandal of the court.
  6. That he had corruptly used his official position to aid a 
conspiracy to defraud the stockholders of a certain insurance company, 
by enabling certain persons to buy up the stock at a discount.
  The committee found in general that the charges were not sustained by 
the evidence; but in discussing the fourth charge they say:

  It maybe conceded that Judge Blodgett acted in this instance in 
excess of his jurisdiction. * * * However justly, therefore, Judge 
Blodgett may be amenable to criticism or censure on account of his
-----------------------------------------------------------------------
  \1\ Third session Forty-fifth Congress, Journal, p. 138.
  \2\ Journal, p. 671; Record, pp. 2388, 2390-2395; House Report No. 
142.
                                                            Sec. 2517
action in this matter * * * it is impossible to see how he can be held 
liable to impeachment therefor, unless it can be shown that he did not 
act in good faith for the best interests of those concerned, as he 
understood them, but with such malice and corruption as to render his 
act in the premises an official misdemeanor.

  In view of all the evidence the committee, without dissent, 
recommended this resolution:

  Resolved, That the charges against Henry W. Blodgett, United States 
district judge for the northern district of Illinois, be laid on the 
table, and the House take no further action thereon.

  This resolution was agreed to by the House without division.
  2517. The investigation into the conduct of Aleck Boarman, United 
States judge for the western district of Louisiana.
  A Member of the House presented specific charges against Judge 
Boarman to the Judiciary Committee, which had been empowered to 
investigate the judiciary generally.
  A subcommittee visited Louisiana and took testimony against and for 
Judge Boarman.
  The Member who lodged charges against Judge Boarman conducted the 
case against him before the subcommittee.
  Judge Boarman made a sworn statement or answer to the committee 
investigating his conduct in 1890, but did not testify.
  The inquiry of 1890 into the conduct of Judge Boarman was conducted 
according to the established rules of evidence.
  In 1890 the Judiciary Committee concluded that Judge Boarman should 
be impeached for an act in violation of the statute.
  On March 1, 1890,\1\ Mr. William C. Oates, of Alabama, from the 
Committee on the Judiciary, to whom had been referred, on February 18, 
1890, a resolution providing for an investigation of ``the practice of 
certain United States district courts and other officers in criminal 
cases,'' reported the resolution with an amendment in the nature of a 
substitute. To show the desirability of such investigation the report 
cites a letter from the Attorney-General to the chairman of the 
committee and letters from the Commissioner of Internal Revenue and one 
of the Auditors of the Treasury. In addition to these letters numerous 
complaints had been made by persons seeming to be well informed and 
reputable; and also there had been complaints in the newspapers. 
Therefore an investigation seemed to the committee desirable, and they 
recommended a substitute amendment providing for a general 
investigation, including ``maladministration or corrupt official 
conduct of any of the officers connected with the judicial department 
of the Government.''
  On April 1 \2\ the House agreed to the resolution with the proposed 
amendment; and on September 16 \3\ the committee was given authority to 
continue its investigation through the recess of Congress.
-----------------------------------------------------------------------
  \1\ First session Fifty-fifth Congress, Journal, p. 296; House Report 
No. 566.
  \2\ Journal, p. 416; Record, p. 2877.
  \3\ Journal, p. 1046.
Sec. 2517
  On February 17, 1891,\1\ Mr. Albert C. Thompson, of Ohio, submitted 
the report of the committee. This report dealt generally with the 
subject referred to the committee, and also presented an ascertainment 
of fact in relation to Aleck Boarman, district judge for the western 
district of Louisiana. The report states that while the committee were 
investigating the general subject a letter was, in May, 1890, addressed 
to the chairman of the committee by Mr. C. J. Boatner, Member of the 
House from the Fifth District of Louisiana, preferring seven specific 
charges against Judge Boarman, and asking that a date be fixed when the 
charges might be substantiated by witnesses. Thereupon a subcommittee 
of the Committee on the Judiciary visited Shreveport and New Orleans 
and took testimony relating to the charges. Both Judge Boarman and Mr. 
Boatner were present at Shreveport, but neither attended at New 
Orleans. Mr. Boatner conducted the examination of witnesses called to 
sustain the charges, and Mr. Albert H. Leonard appeared as counsel for 
Judge Boarman. The report further says:

  The subcommittee before whom the testimony was taken aimed to admit 
nothing inadmissible under the well established rules of evidence, but, 
notwithstanding the care exercised, much is found in the record that is 
not legal evidence. In reaching the conclusions, however, hereinafter 
stated, the committee endeavor to eliminate from their consideration 
those matters that are plainly hearsay and neighborhood gossip, and 
base their judgment, it is believed, upon substantial and trustworthy 
evidence.
  Judge Boarman did not testify before the subcommittee, nor did he 
introduce any oral testimony whatever, except that of Mr. Albert H. 
Leonard and a ``statement'' made by Mr. M. C. Elstner, the latter being 
entirely personal to Mr. Elstner himself and having no bearing upon any 
of the issues raised. The answer of Judge Boarman, hereinbefore 
referred to, is given its full legal effect, as an answer, and is taken 
to be true except in those particulars wherein its averments axe 
overcome by countervailing legal testimony.

  The answer of Judge Boarman, filed at the first meeting of the 
committee, is printed in the report, and begins as follows:

  In the matter of certain charges and complaints made by C. J. Boatner 
against Aleck Boarman, judge, western district of Louisiana, to the 
subjudiciary committee of the House of Representatives, sitting at 
Shreveport, La., the Hon. A. C. Thompson, chairman.
  Respondent, in answer to said charges, respectfully makes the 
following answer and statements under oath:
  He denies each and every allegation made against him, except what is 
hereinafter admitted.
  First charge. Respondent denies, etc.
* * * * * * *

  Respondent submits this answer to said charges, and respectfully asks 
now, as he has, to the knowledge of the committee, heretofore done, 
that such a thorough investigation Shall be made as will best subserve 
the public interest.
                                              Aleck Boarman.      
  Sworn to and subscribed before me this November 17, 1890.
 [seal.]
                                       J. B. Beattle, Clerk.      
  Upon the filing of the answer Mr. Boatner asked and was granted leave 
to amend the charges against Judge Boarman by the addition of another 
specification.
  The committee concluded as to all the charges except the fourth that 
while there was much in the testimony warranting severe criticism of 
his acts yet he
-----------------------------------------------------------------------
  \1\ Second session Fifty-first Congress, Journal, pp. 254, 270; 
Record, pp. 2797, 2937; House Report No. 3823.
                                                            Sec. 2518
should be acquitted; but on the fourth charge the committee were 
unanimous that he should be impeached. This charge was that he had 
``used for his own purposes the funds paid into the registry of his 
court, and has unlawfully and corruptly failed and refused to decide 
causes in which the funds in dispute were or should have been in the 
registry of his court, and also (additional charge) that the respondent 
repeatedly borrowed money from the marshal of this court, contrary to 
law.'' The report quotes sections 995, 996, and 5505 of the Revised 
Statutes, and rule 42 governing district courts in admiralty cases, and 
says:

  The committee profoundly regret that from the evidence taken and 
fully appearing in the record there appears to have been no attempt on 
the part of Judge Boarman to comply with the statute and the rules of 
court as to moneys paid to the clerk. His practice in this regard, if 
not criminal, is reprehensible in the extreme.

  Therefore the committee, without dissent, reported this resolution:

  Resolved, That Aleck Boarman, judge of the United States district 
court for the western district of Louisiana, be impeached of high 
crimes and misdemeanors.

  The House considered the resolution on February 28,\1\ which was next 
to the last legislative day of the Congress, but the debate, which was 
entirely in favor of impeachment, was not concluded, and the resolution 
failed to be acted on.
  2518. The Boarman investigation continued.
  In 1892 the House referred to the Judiciary Committee the evidence 
taken in the Boarman investigation of 1890 as material in a new 
investigation.
  At the investigation of 1892 Judge Boarman testified and was cross-
examined before the committee.
  The second investigation of Judge Boarman having revealed an absence 
of bad intent in his censurable acts, the committee and the House 
decided against impeachment.
  A Member who had preferred charges against Judge Boarman declined, as 
a member of the Judiciary Committee, to vote on his case.
  In the first session of the next Congress, on January 13, 1892,\2\ 
Mr. Boatner submitted a resolution directing an investigation of the 
charges against Judge Boarman and it was referred to the Committee on 
the Judiciary.
  On January 30 \3\ Mr. Oates reported from the committee, in lieu of 
that resolution, a preamble reciting the proceedings in the former 
Congress, especially citing the fact that the evidence taken was not ex 
parte, and that the respondent had been present in person or by counsel 
when it was taken, and a resolution referring the report made in the 
last Congress, the charges and the evidence, to the Committee on the 
Judiciary, with instructions to investigate the same thoroughly, and 
further providing: ``And for the purpose of making the investigation 
hereby ordered the said Committee on the Judiciary may adopt and use as 
legal evidence the testimony taken as aforesaid,'' and ``may take and 
consider any additional and explanatory evidence of a legal character 
which may be offered either for or against said judge.''
-----------------------------------------------------------------------
  \1\ Journal, p. 330; Record, pp. 3595-3597.
  \2\ First session Fifty-second Congress, Journal, p. 26.
  \3\ Journal, p. 49; Record, p. 689.
Sec. 2518
  This resolution was agreed to, and the committee made the 
investigation
  On June 1,\1\ Mr. Oates submitted the report of the committee.
  As to the manner of investigation the report shows that it was 
conducted by a subcommittee, and says:

  Your committee found it unnecessary to take any additional testimony 
after having adopted that taken by its predecessor in the Fifty-first 
Congress. Upon due inquiry it was found that there were no other 
witnesses to be examined in behalf of the Government touching the said 
charges, and therefore the said judge was notified that if he had any 
exculpatory or explanatory evidence which he wished to offer that he 
should have the opportunity of doing so. He then came to Washington, 
appeared before said special subcommittee, and gave his testimony.

  A reference to the printed testimony \2\ shows that Judge Boarman 
testified at length and was then cross-examined by members of the 
committee. He explained his conduct as to the various charges.
  The committee investigated the seven former charges and one new one. 
The committee found in favor of the judge as to the new charge; and 
also found in his favor as to the old charges, including that numbered 
four, on which the committee had found against him in the preceding 
Congress. As to the fourth charge the report says:

  It will be seen in this testimony that the judge claims to have been 
entirely ignorant of the existence of this statute. (Sec. 5505 relating 
to receiving from the clerk money belonging to the registry.) He says 
that it looks like a humiliating confession for a judge to make, and 
the committee agree with him in that statement. Ignorantia legis non 
excusat is a maxim of the law, applicable alike to the ignorant and the 
learned. It can not, therefore, be taken as any excuse whatever for his 
conduct in this case. He is, by his own confession, technically guilty 
of embezzlement. There are, however, extenuating circumstances. 
Wheaton, the clerk, was upon his death bed when he gave the judge the 
orders * * * for this money. He told the judge that he was going to 
die, and that this money belonged in the registry of the court, and he 
did not wish it to go into his succession or estate. The judge swears 
that his motive in receiving the money was to preserve it unincumbered 
for the suitors who would be entitled to it when the distribution was 
decreed; and while he admits that he may have converted a part of it to 
his own use, if he did he replaced it with the new clerk, and thus 
those who were entitled to it received their money. While, therefore, 
the taking of the money by the judge was a statutory embezzlement, it 
can not be said from the evidence that he took it lucri causa, or with 
dishonest intent.

  The committee find the second branch of the fourth charge--relating 
to corrupt failure to decide cases--not sustained.
  The committee found that judge Boarman's conduct had not been such as 
to absolve him from censure, but they failed to find that he ``had been 
influenced by corrupt or dishonest motives.'' Therefore they asked to 
be discharged from further consideration of the case.
  The report also says:

  Hon. C. J. Boatner, now a member of this committee, having preferred 
the charges against Judge Boarman in the Fifty-first Congress, declined 
to vote on any of the propositions embraced in the foregoing report.

  The report of the committee was concurred in by the House without 
division.
-----------------------------------------------------------------------
  \1\ Journal, p. 207; Record, p. 4908; House Report, No. 1536.
  \2\ See pp. 57-72 of Report No. 1536.
                                                            Sec. 2519
  2519. The inquiry into the conduct of J. G. Jenkins, United States 
circuit judge for the seventh circuit.
  The investigation of the conduct of Judge Jenkins was suggested by a 
resolution offered by a Member and referred to the Judiciary Committee.
  Form of resolution authorizing the investigation into the conduct of 
Judge Jenkins.
  Instance wherein a majority of the Judiciary Committee reported a 
resolution censuring a judge for acts not shown to be with corrupt 
intent.
  On February 5, 1894,\1\ Mr. Lawrence E. McGann, of Illinois, proposed 
a resolution to investigate and report whether or not the Hon. J. G. 
Jenkins, judge of the United States circuit court for the seventh 
circuit, has abused the powers and process of said court or 
oppressively exercised the same to oppress the employees of the 
Northern Pacific Railroad Company. This resolution was referred to the 
Committee on the Judiciary.
  On March 6, 1894,\2\ Mr. Charles J. Boatner, of Louisiana, from the 
Committee on the Judiciary, reported the following resolution, which 
was agreed to:

  Resolved, That the Committee on the Judiciary of the House be, and is 
hereby, authorized to speedily investigate and inquire into all the 
circumstances connected with the issuance of writs of injunction in the 
case of the Farmers' Loan and Trust Company, complainant, against the 
Northern Pacific Railroad Company, defendant, in the United States 
circuit court for the eastern district of Wisconsin, and the several 
matters and things referred to in the resolution introduced on the 5th 
day of February, instant, charging illegalities and abuse of the 
process of said court therein and report to this House whether in any 
of said matters or things the Hon. J. G. Jenkins, judge of said court, 
has exceeded his jurisdiction in granting said writs, abused the powers 
or process of said court, or oppressively exercised the same, or has 
used his office as judge to intimidate or wrongfully restrain the 
employees of the Northern Pacific Railway Company, or the officers of 
the labor organizations with which said employees or any of them were 
affiliated, in the exercise of their rights and privileges under the 
laws of the United States; and if so, what action should be taken by 
this House or by Congress.

  On June 8 \3\ Mr. Boatner submitted the report of the committee. This 
report relates the history of the appointment of receivers for the 
Northern Pacific Railroad Company by Judge Jenkins, in conjunction with 
other judges in whose territory the property lay; of the successive 
reductions of the wages of employees made by the receivers; of great 
dissatisfaction which finally arose among the employees affected; and 
finally the issuance of a writ of injunction by Judge Jenkins, on 
application of the receivers, restraining the employees ``from 
combining and conspiring to quit, with or without notice, the service 
of the said receivers, with the object and intent of crippling the 
property in their custody or embarrassing the operation of the said 
railroad, and from so quitting the service of the said receivers with 
or without notice as to cripple the property or prevent or hinder the 
operation of the said railroad.'' This writ was followed by a second 
writ prohibiting the representatives of labor organizations from 
``ordering, recommending, approving, or advising others to quit the 
service of the receivers.''
  Although witnesses and the judge himself in an opinion denied that 
there was an intention to coerce the services of the employees, yet the 
majority of the committee find this explanation inconsistent with the 
words used, and hold that
-----------------------------------------------------------------------
  \1\ Second session Fifty-third Congress, Journal, p. 137.
  \2\ Journal, p. 229; Record, pp. 2629, 2661.
  \3\ House Report No. 1049.
Sec. 2520
Judge Jenkins's writs were ``not sustained either by reason or 
authority,'' were ``in violation of a constitutional provision, an 
abuse of judicial power, and without authority of law.'' The report of 
the majority continues:

  The testimony adduced before us fails to show any corrupt intent on 
the part of the judge.

  The majority, in conclusion, recommend the adoption of this 
resolution--

  Resolved, That the action of Judge James G. Jenkins in issuing said 
order of December 19, 1893, being an order and writ of injunction, at 
the instance of the receivers of the Northern Pacific Railroad Company, 
directed against the employees of said railroad company, and in effect 
forbidding the employees of said Northern Pacific Railroad Company from 
quitting its service under the limitations therein stated, and in 
issuing a similar order of December 22, 1893, in effect forbidding the 
officers of labor organizations with which said employees were 
affiliated from exercising the lawful functions of their office and 
position, was an oppressive exercise of the process of this court, an 
abuse of judicial power, and a wrongful restraint upon said employees 
and the officers of said labor organizations; and that said orders have 
no sanction in legal precedent, were an invasion of the rights of 
American citizens, and contrary to the genius and freedom of American 
institutions, and therefore deserving of the condemnation of the 
American people.

  The minority views, signed by Messrs. William A. Stone, of 
Pennsylvania; George W. Ray, of New York; H. Henry Powers, of Vermont, 
and Thomas Updegraff, of Iowa, hold that if Judge Jenkins acted 
corruptly he should be impeached, while if he erred honestly the wrong 
would be righted by an appellate tribunal, and conclude:

  To propose that a judge, who, as the majority declare, had no 
``corrupt intent'' and ``who sincerely believes'' in his conclusions, 
shall, without impeachment, be censured by the legislative branch of 
the Government, is to confound all distinctions between the legislative 
and judicial powers and create a side tribunal of appeal where justice 
would be for sale to the suitor who could poll the largest vote.

  It does not appear that the resolution was acted on by the House.
  2520. The investigation into the conduct of Augustus J. Ricks, United 
States judge for the northern district of Ohio.
  The House ordered an investigation of the conduct of Judge Ricks on 
the strength of charges preferred in a memorial.
  In the investigation of Judge Ricks the respondent made a statement 
before the committee and offered testimony in his behalf.
  The majority of the Judiciary Committee reported a resolution 
censuring Judge Ricks.
  On January 7, 1895,\1\ Mr. Tom L. Johnson, of Ohio, presented the 
memorial of Samuel J. Ritchie, praying for the impeachment of Augustus 
J. Ricks, United States district judge for the northern district of 
Ohio. This memorial was referred under the rule.
  On the same day Mr. Johnson, by unanimous consent, offered the 
following resolution, which was agreed to without debate and without 
the reading of the memorial or any statement of its contents beyond the 
mere announcement by Mr. Johnson that it was ``the memorial of Samuel 
J. Ritchie, praying for the impeachment of Augustus J. Ricks,'' etc.:

  Resolved. That the Committee on the Judiciary be, and they are 
hereby, instructed to investigate the charges against the Hon. Augustus 
J. Ricks, United States district judge for the northern district of 
Ohio, contained in the memorial of Samuel J. Ritchie, presented to the 
House this day, and report what action in their judgment should be 
taken thereon.
-----------------------------------------------------------------------
  \1\ Third session Fifty-third Congress, Journal, pp. 50, 51; Record, 
p. 709.
                                                            Sec. 2520
  On January 25 \1\ Mr. George P. Harrison, of Alabama, from the 
majority of the Committee on the Judiciary, submitted a report, 
accompanied by this resolution:

  Resolved, That while the committee is not satisfied that Judge 
Augustus J. Ricks has been guilty of any wrong committed while judge 
that will justify it in reporting a resolution of impeachment, yet the 
committee can not too strongly censure the practice under which Judge 
Ricks made up his accounts.

  Minority views were presented by Mr. Joseph W. Bailey, of Texas, 
accompanied by these resolutions:

  Resolved, That Augustus J. Ricks, judge of the United States court of 
the northern district of Ohio, be impeached for high crimes and 
misdemeanors.
  Resolved, That the Committee on the Judiciary is hereby instructed to 
prepare without unnecessary delay and report to this House suitable 
articles of impeachment against the said Augustus J. Ricks, judge of 
the United States court for the northern district of Ohio.

  It appeared from the report and the minority views that at first the 
committee, by a vote of seven to six, had agreed to recommend 
impeachment, one member being present and not voting and three being 
absent. But before a report was made in accordance with this vote an 
order was agreed to inviting Judge Ricks to appear before the 
committee, and also providing for the testimony of such other witnesses 
as might be called. It was ``after hearing the statement of Judge Ricks 
on his own behalf, and the testimony of Martin W. Sanders,'' that the 
committee, by a vote of nine to seven. one member being absent, agreed 
to the resolution reported by the majority.
  It appears further from the report that the committee took testimony 
at Cleveland, Ohio, through a subcommittee, and in Washington before 
the whole committee. This testimony was such as was offered both 
against and in behalf of Judge Ricks.
  The minority views were concurred in by Messrs. Joseph W. Bailey, of 
Texas; Edward Lane, of Illinois; Thomas R. Stockdale, of Mississippi; 
David A. De Armond, of Missouri; D. B. Culberson, of Texas; Thomas 
Updegraff, of Iowa, and C. J. Boatner, of Louisiana. The charges which 
they discussed were:
  First. That as judge the said Augustus J. Ricks had defrauded the 
United States out of certain moneys, which he appropriated to his own 
use.
  Second. That he corruptly persuaded Martin W. Sanders, his successor 
in the clerk's office, to omit from his emolument report fees which 
ought to have been included in it.
  Third. That he approved the emolument report of said Martin W. 
Sanders, knowing it to be incorrect.
  The minority found that the third charge was not reasonable, and that 
the second in the form made was not sustained by the evidence, although 
he had evidently taken fees to which he was not entitled. But on the 
first charge they concluded that the evidence sustained the guilt of 
the judge. The minority discuss at some length the evidence which led 
them to their conclusion.
  The report was made near the close of the Congress, and it does not 
appear that any action was taken on it.
-----------------------------------------------------------------------
  \1\ Journal, p. 84; Record, p. 1360; House Report No. 1670.