to this jurisdiction,1 and I should conclude that, if a territorial judge is not, no territorial officer is subject thereto. I doubt, however, the correctness of this opinion. The reason alleged is, that a territorial judge is not a constitutional, but a statutory officer. Most of the officers of the United States are statutory, in the sense that their offices have been created by act of the Congress. Very few officers of the United States would be subject to this jurisdiction if this criterion should be applied. Until the trial of Belknap, it was a question whether any but actual incumbents of office at the time of and during the process of impeachment could be impeached.2 Belknap resigned his office, and the resignation was accepted before the process commenced, but the court, nevertheless, took jurisdiction of his case.3 It set the precedent, therefore, that a person not at the time of the process an officer may be impeached for treason, bribery, high crime or misdemeanor committed by him while in office. Of the offences for which an officer (or a person having been an officer at the time of their alleged commission) may be tried before this court, treason is defined by the constitution. I have discussed this definition in another part of this work. I suppose that the definition is binding upon this court as well as upon the ordinary courts. The other offences are not defined in the constitution, and therefore the court may define them upon the basis of either statute or common law. This gives the court a very large power, since no appeal lies from its decision to the ordinary judiciary. An inspection of the cases of impeachment will show that the court has, except perhaps in a single instance, been justly conservative in the meaning which it has attributed to these terms. It has not been willing to pronounce 1 3 Opinions of the Attorney-General, p. 409. 2 Congressional Globe, 40th Congress, 2d Session, part 2, p. 1559. judgment against an official simply because he has not discharged his official duties or exercised his official powers in the manner which the court would approve, unless his act or failure to act can be made to appear a crime or misdemeanor as described by the ordinary law of the land. This court has seen that the independence of the governmental departments required by the constitution could not be preserved, should the legislature assume an unlimited power of interpretation over these terms, and treat acts of officials as impeachable offences, whenever there exists a difference of opinion between the legislative bodies and the executive and judicial departments as to the powers and duties of the officials. 3. As to the procedure followed in the trial, the constitution makes the House of Representatives the only lawful accuser. The course of the procedure in the House is not prescribed in the constitution. It is, therefore, subject to regulation by statute or by the rules of the House. In the absence of statute, it must be regulated by the House itself. I suppose that the limitations of the constitution upon the procedure of the ordinary judiciary in criminal trials should be regarded as binding upon this court. Such, for example, as the provisions requiring the testimony of two witnesses or confession in open court to convict for treason; speedy and public trial; information to the accused of the nature and cause of his arraignment; compulsory process in behalf of the accused for obtaining witnesses; counsel for defense, etc.2 The constitution requires expressly that judgment of conviction shall be passed only with concurrence of two-thirds of the members present.3 Those present but not voting must, therefore, be counted in favor of acquittal. Everything further in reference to procedure is left either to statutory regulation or to regulation by orders of the Senate 1 United States Constitution, Art. I, sec. 2, § 5. 2 Congressional Globe, 40th Congress, 2d Session, part 2, p. 1559. as legislative body or as court. In the absence of statute, then, the Senate must occupy the ground. There is a question, however and in the case of the President it would be a very serious question — as to whether this court has the power to arrest and confine the accused during the trial, and consequently to suspend him for the time being from office. It did order the arrest of Blount 1 This was the first case of impeachment, and the accused was not an officer, but a member of the Senate itself. For two reasons, then, this case cannot be accepted as a precedent, vis; because the arrested person was not an officer, and may be said to have been taken into custody by virtue of the Senate's power over its own members, rather than by virtue of its power as a court of impeachment; and because, at that time, the English practice was followed with too little discrimination, too little appreciation of the difference of the purpose and result of the process in the two systems. In the system of the United States, the only penalties allowed by the constitution may be inflicted as well in the absence as in the presence of the accused. There is no necessity in any event for his arrest. In the English system, as we shall see further on, such is not the case. I do not think that a sound interpretation of the constitution would recognize to the court the power to arrest the accused and suspend him from office during the process of impeachment. I certainly do not think that there is any such power when the President is the accused person. 4. As to the penalties which this court may inflict, the constitution is express and exact. It provides that its judgments "shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust, or profit," i.e. any office whatever, "under the United States."2 It provides further that the judgment of removal shall follow upon conviction. The only discretion 1 Annals of Congress, 5th Congress, vol. 1, p. 40. 2 United States Constitution, Art. I, sec. 3, § 7. 8 Ibid. Art. II, sec. 4. left to the court in regard to judgment upon conviction is, therefore, in respect to disqualifying the convicted person to hold United States office in the future. It may or may not do this; but it must remove him from the office held at the time of the conviction. The constitution furthermore provides that the judgment rendered by this court shall not excuse the condemned person from trial for the same offence by the ordinary courts, in the ordinary manner, and with the ordinary results.1 The accused is not put in jeopardy of life or limb by an impeachment trial and the provision of the constitution which forbids the second trial of a person for the same offence, when, in the first trial, judgment was reached upon a good indictment, has therefore no application to impeachment trials. 5. The constitution forbids the exercise of the presidential power of pardon or reprieve in behalf of a person suffering condemnation from this court.2 Whether the court can reverse its own judgment of condemnation, if the House of Representatives should move for a new trial, and whether the Congress can by statute of amnesty remove the disability to hold future office, are questions not answered by any express provisions of the constitution. It seems to me, however, that, from the reasons of judicial analogy and of political science, both of these questions should be answered in the affirmative. An impeachment trial, above all others, is one in which party prejudice will assert an influence, possibly a controlling influence. Some means of relief from manifest injustice should certainly be recognized in the constitutional system of every state. To some men, to the very men who ought to hold office, honor is more than life; and the reasons which are convincing against the President's power to pardon the condemned person do not hold at all against the court itself or the Congress. 1 United States Constitution, Art. I, sec. 3, § 7. 2 Ibid. Art. II, sec. 2, § L CHAPTER II. THE CONSTITUTIONAL JUDICIARY IN THE ENGLISH GOVERNMENT. IN the English system there are but two bodies that can be termed constitutional courts, viz; the House of Lords and the judicial committee of the Privy Council. All the rest are statutory and, therefore, are not subjects of consideration in a work which, so far as it is devoted to law at all, is devoted wholly to constitutional law. The test by which, in my opinion, we may distinguish a constitutional from a statutory court, is the ability of the court to protect itself against abolition by ordinary statute. According to such a test the House of Lords, so far as it is a court at all, is a constitutional court. No mere statute can be passed affecting its judicial power without its own consent freely given. The House of Commons can drive the Lords to an unfree consent only when it acts as the state. It is not so clear, however, that the judicial committee of the Privy Council has the power of self-protection against the legislature. Unless we regard this body as the Crown's own court, and accord to the Crown the freedom of the absolute veto in defense of its own prerogatives, we shall have to leny to this body a constitutional character, and pronounce it a statutory court, whose organization and powers may changed or destroyed by a mere legislative act. It seems to me, however, that it ought to be regarded as the Crown's own court—and this in spite of the facts that a large part of its jurisdiction has been conferred by statute;1 that its procedure, be 1 Statutes, 25 Henry VIII, c. 19; Ibid. 8 Elizabeth, c. 5; Ibid. 7 and 8 Victoria, c. 69. |