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398 SOUTHERN CALIFORNIA LAW REVIEW [Vol. 44:395

that impeachments "are not framed to alter the law, but to carry it
into more effectual execution"; they "are founded and proceed upon
the law in being."12 On the eve of President Andrew Johnson's impeachment,
Professor Theodore Dwight put the matter more forcibly:
"The decided weight of authority is, that no impeachment will like except
for a true crime . . . a breach of the common or statute lae, which
. . . would be the subject of indictment. . . ."14

It is quite clear that this view has not won the assent of the Senate,
for in a succession of "guilty" verdicts it has tacitly "settled" that
impeachment lies for non-indictable offenses.15 Let the impeachment
__________________________________________________________________________________
ADDISON 128n, App. 8 (1803); impeachment of Justice Samuel Chase, 14 ANNALS OF
CONG. 505, 607 (1805); 1 J. STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED
STATES 582n, 585n (5th ed. 1905) (hereinafter cited as STORY).
13. 2 WOODDESON, supra note 12, at 611-12.
14. Dwight, Trial by Impeachment, 6 AM. L. REG. (N.S.) 257, 264 (1867). And, he
continued, "It is asserted, without fear of successful contradiction, both upon authority
and principle, notwithstanding a few isolated instances apparently to the contrary, that
no impeachment can be had where the King's Bench would not have held that a crime
had been committed. . . ." Id. He relied chiefly on the treason cases, supra note 10.
CHAFEE, supra note 6, at 148, stated, "so far as I know the Senate has faithfully adhered
to the criminal character of impeachments when trying members of the Cabinet and
judges."
15. For a summary of the early cases, see Lawrence, The Law of Impeachment, 6
AM. L. REG. (N.S.) 667-75 (1867). Among them were district judge John Pickering (1804),
insane and habitually drunk, who entered orders contrary to statute, refused to allow
appeal, appeared in court in a state of total intoxication. A. SIMPSON, A TREATISE ON
FEDERAL IMPEACHMENTS 192-94 (1916) (hereinafter cited as SIMPSON); Robert W. Archbald
(1912), judge of the Commerce Court, who corruptly influenced a litigant before him to
sell property to him and the like, Id. at 207-13.
On the other hand, Justice Samuel Chase was acquitted after a trial in which the
indispensability of an indictable crime was strenuously argued, 14 ANNALS OF CONG. 116
(1805). Charles Warren apparently concluded that the acquittal constituted an emdorsement
of that argument. 1 C. WARREN, THE SUPREME COURT IN UNITED STATES HISTORY 293
(1922) (hereinafter cited as WARREN). But I would agree with Henry Adams that "the
acquittal of Chase decided no point of law except his innocence of high crimes and misdemeanors."
2 H. ADAMS, HISTORY OF THE UNITED STATES 243-44 n.77 (rep. ed. 1962). See
also,
Lillich, The Chase Impeachment, 4 AMER. J. LEG. HIST. 49, 72 (1960). In great part
the debate centered on legal rulings in trials over which Justice Chase had presided.
Certainly the earlier impeachment of Pickeringd and the later impeachments of Archbald
and Ritter did not proceed for indictable crimes.
Chief Justice Taft said, in an address to the American Bar Association in 1913. "By
the liberal interpretation of the term "high misdemeanors" which the Senate has given
there is now no difficulty in securing the removal of a judge for any reason that shows
him unfit." Otis, A Proposed Tribunal: Is It Constitutional? 7 KAN. CITY L. REV. 3, 22
(1938) (hereinafter cited as OTIS). So too, C. HUGHES, THE SUPREME COURT OF THE UNITED
STATES 19 (1928), stated "According to the weight of opinion, impeachable offenses include,
not merely acts that are indictable, but serious misbehavior which may be considered as
coming within the category of high crimes and misdemeanors. Most commentators are
in accord: W. RAWLE, A VIEW OF THE CONSTITUTION OF THE UNITED STATES 273 (2d ed.

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