Mr. BOIES. Do you not think that public opinion would drive him from one position or the other? Mr. WELTY. Public opinion will drive even a criminal under cover. Mr. BOIES. And it may drive him to reformation. Mr. WELTY. Let me give you this one. I want to submit to your committee the law of bribery, which I did not charge there. These matters came up as the case was being developed. Mr. WALSH. What has it to do with the impeachment that you have laid? Mr. WELTY. That all comes under the facts here as they will be shown to your subcommittee by witnesses and by papers-that these various organizations under the laws of the United States who hired Judge Landis are guilty of bribery. Mr. WALSH. You have not charged him with accepting a bribe. I do not see where that is pertinent. It is not in the articles? Mr. WELTY. You will understand that I am simply a Member of Congress and stand upon the same basis as the gentleman from Massachusetts. This is simply a committee of inquiry. I had some matters in my possession that I felt amounted to not only high crimes and misdemeanors, but some matters here that amounted to bribery under our statutes and under the Constitution which I wanted to give if the committee will be patient enough to hear me. You are the prosecutors. These are not the articles of impeachment. The people who will hear the case, if it ever comes up, is the Senate, who are the jury under the Constitution. The people of the United States can not remove a judge on account of his misbehavior; the only avenue that they have is through Congress, who are the prosecutors. Every one of them-if these articles are not sufficient and you find that the evidence will sustain a charge, you can include same. Here is the law of bribery: Whoever, directly or indirectly, shall give or offer any money or any other bribe to any judge of the United States with intent to influence his action shall be fined not more than $20,000 or imprisoned not more than 15 years, or both, and shall forever be disqualified to hold any office of honor, trust, or profit under the United States. I am reading from section 9828 of Barnes's Federal Code. So you will understand that not his decisions, but his actions, may be affected. Thus the sentiment of John Marshall was carried into our law so that nothing can influence a man upon whom we place the judiciary ermine except God and his own conscience. I submit to you, gentlemen, the careful consideration of this law. Permit me to read you what Mr. Webb said-if the committee does not care to hear anything further on the law, I shall quit whenever it is desired or if you want to adjourn. Mr. YATES. I want to hear everything you have to say. Mr. BOIES. I suppose that this record will be printed, and if you will put the matter into the record we will have it for future. reference. Mr. WELTY. It is extremely hard for me to pick all these things out at random. Mr. BOIES. I think the members of the committee are sufficiently interested in the question to make an examination and study. Mr. WELTY. I want to call your attention to what Manager Webb further said he quoted Manager Palmer in the Swayne case: We may therefore conclude that the House has the right to impeach and the Senate the power to try a judicial officer for any misbehavior or misconduct which evidences his unfitness for the bench without reference to its indictable quality. All history, all precedent, and all text writers agree upon this proposition. The direful consequences attendant upon any other theory are manifest. The word "misdemeanor" used in the parliamentary sense as applied to offenses means maladministration, misconduct not necessarily indictable, not only in England, but in the United States. Mr. IGOE. I notice in the Archbald case that Mr. Clayton, on the part of the House, presented a brief on this subject of impeachment? Mr. WELTY. Yes, sir. Mr. IGOE. Have you incorporated a brief in your statement? Mr. IGOE. I think that should be incorporated in the record. Mr. WELTY. I will offer the brief or simply the law cases which I have prepared, and also the statutory law for the record. (The brief submitted by Mr. Welty follows:) THE LAW. I. CONSTITUTIONAL PROVISIONS RELATING TO JUDICIAL IMPEACHMENTS. The provisions of the Constitution of the United States bearing upon the impeachment of judges are as follows: "The House of Representatives shall choose their Speaker and other officers, and shall have the sole power of impeachment." (Art. I, sec. 2.) "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; but the party convicted shall nevertheless be liable and subject to indictment, trial, judgment, and punishment according to law." (Art. I, sec. 3.) "The President * * * shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment." (Art. II, Sec. 2.) "The President, Vice President, and all civil officers of the United States shall be removed from office on impeachment for and conviction of treason, bribery, or other high crimes and misdemeanors." (Art II, sec. 4.) "The judicial power of the United States shall be vested in one Supreme Court and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behavior, and shall at stated times receive for their services a compensation which shall not be diminished during their continuance in office." (Art. III, sec. 1.) "The trial of all crimes, except in cases of impeachment, shall be by jury.” (Art. III, sec. 2.) II. THE GENERAL NATURE OF IMPEACHMENTS. 1. The fundamental law of impeachment was stated by Richard Woddesson, an eminent authority, in his Law Lectures delivered at Oxford in 1777, as follows (vol. 2, pp. 355, 358): 2. "It is certain that magistrates and officers intrusted with the administration of public affairs may abuse their delegated powers to the extensive detriment of the community and at the same time in a manner not properly cognizable before the ordinary tribunals. The influence of such delinquents and the nature of such offenses may not unsuitably engage the authority of the highest court and the wisdom of the sagest assembly. The Commons, therefore, as the grand inquest of the nation, became suitors for penal justice, and they can not consistently, either with their own dignity or with safety to the accused, sue elsewhere but to those who share with them in the legislature. "On this policy is founded the origin of impeachments, which began soon after the Constitution assumed its present form" (p. 355). "Such kind of misdeeds, however, as peculiarly injure the Commonwealth by the abuse of high offices of trust are most proper-and have been the most usual grounds-for this kind of prosecution" (p. 358). 3. Referring to the function of impeachments, Rawle, in his work on the Constitution (p. 211), says: "The delegation of important trusts affecting the higher interests of society is always from various causes liable to abuse. The fondness frequently felt for the inordinate extention of power, the influence of party and of prejudice, the seductions of foreign States, or the baser appetite for illegitimate emoluments, are sometimes productions of what are not unaptly termed 'political offenses (Federalist No. 65), which it would be difficult to take cognizance of in the ordinary course of judicial proceedings. The involutions and varieties of vice are too many and too artful to be anticipated by positive law." 4. In Story on the Constitution (vol. 1, 5th ed., p. 584) the parliamentary history of impeachments is briefly stated as follows: "800. In examining the parliamentary history of impeachments it will be found that many offenses, not easily definable by law, and many of a purely political character, have been deemed 'high crimes and misdemeanors' worthy of this extraordinary remedy. Thus, lord chancellors and judges and other magistrates have not only been impeached for bribery, and acting grossly contrary to the duties of their office, but for misleading their sovereign by unconstitutional opinions, and for attempts to subvert the fundamental laws, and introduce arbitrary power. So where a lord chancellor has been thought to have put the great seal to an ignominious treaty, a lord admiral to have neglected the safeguard of the sea, an ambassador to have betrayed his trust, a privy councilor to have propounded or supported pernicious and dishonorable measures, or a confidential adviser of his sovereign to have obtained exorbitant grants or incompatible employments-these have been all deemed impeachable offenses. Some of the offenses, indeed, for which persons were impeached in the early ages of British jurisprudence would now seem harsh and severe; but perhaps they were rendered necessary by existing corruptions, and the importance of suppressing a spirit of favoritism and court intrigue. Thus persons have been impeached for giving bad counsel to the King, advising a prejudicial peace, enticing the King to act against the advice of Parliament, purchasing offices, giving medicine to the king without advice of physicians, preventing other persons from giving counsel to the king except in their presence, and procuring exorbitant personal grants from the king. But others. again, were founded in the most salutary public justice, such as impeachments for malversations and neglect in office, for encouraging pirates, for official oppression, extortions, and deceits, and especially for putting good magistrates out of office and advancing bad. One can not but be struck, in this slight enumeration, with the utter unfitness of the common tribunals of justice to take cognizance of such offenses, and with the entire propriety of confiding the jurisdiction over them to a tribunal capable of understanding and reforming and scrutinizing the policy of the State, and of sufficient dignity to maintain the independence and reputation of worthy public officers." III. IMPEACHABLE OFFENSES UNDER THE CONSTITUTION. Is not so much to punish the offender as it is to protect the Government and the public. (Watson on Constitution, p. 208.) If a judge adjourns a court which he is bound by law to hold, or dismisses a grand jury in violation of law, he may be removed from office. Drunkenness and using blasphemous language on the bench are criminal when found in a judge because of the effect on the community. (Watson on Constitution, p. 810.) In re impeachment of Judge Bernard, New York.-Grover: judge, in reviewing the case remarked: "I have said, sir. that a reckless exercise of the func tions of a judicial officer, regardless of whether it be right or wrong is, in my judgment, impeachable because it is a violation of his duty, etc." (Watson on Constitution, p. 814. 1. The use of the law of impeachment is to punish and thereby prevent offenses which are of such a nature as to endanger the safety, or injure the interests of the United States. The punishment can go no further than removal and disqualification, which restriction was, perhaps, wisely introduced in order to prevent those abuses of the power of impeachment which had taken place in another country. Yet it may often be extremely important to prevent such offenders from getting into office. (Foster on Constitution, p. 567.) 2. The power of impeachment is granted for the public protection in order to not only remove, but perpetually disqualify for office a person who has shown himself dangerous to the commonwealth by his official acts. (Foster on Constitution, p. 575.) John Quincy Adams said in Congress that an officer could be impeached for an official act at any time during his subsequent life. (Foster on Constitution, p. 578.) 3. An impeachable offense may consist of treason; bribery; or a breach of official duty by malfeasance of misfeasance, including conduct such as drunkenness, when habitual or in the performance of official duties, gross indecency, and profanity, obscenity, or other language, used in the discharge of an official function, which tends to bring the office into disrepute, or an abuse or reckless exercise of a discretionary power, as well as a breach or omission of an officia duty imposed by statute or common law; or a public speech when off duty which encourages insurrection. (Foster on Constitution, p. 591.) 4. The only difficulty arises in the construction of the term, "other high crimes and misdemeanors." As to this four theories have been proposed: (1) Except treason or bribery, no offense is impeachable which is not declared by a statute of the United States to be a crime subject to indictment. (2) That no offense is impeachable which is not subject to indictment by such a statute or by the common law. (3) That all offenses are impeachable which were so by that branch of the common law known as the law of Parliament. (4) And that the House and Senate have the discretionary power to remove and stigmatize by perpetual disqualification of an officer subject to impeachment for any cause that to them seems fit. (Foster on Constitution, p. 582.) The first two theories are impracticable in their operation, inconsistent with other language of the Constitution, and overruled by precedents. If no crime, save treason and bribery, not forbidden by a statute of the United States will support an impeachment, then almost every kind of official corruption or oppression must be unpunished. Suppose the Chief Justice of the United States were convicted in a State court of a felony or misdeameanor, must he remain in office unimpeached and hold court in a State prison? (Foster on Constitution, p. 585, 586.) 5. The provision in Article II, section 4, of the Constitution of the United States defining impeachable offenses as "treason, bribery, or other high crimes and misdeameanors was taken from the British parliamentary law, established and prevailing at the time of the formation of our Government. In addition to the specific offenses of treason and bribery, all offenses falling within the classification of “high crimes and misdemeanors," which were subjects of impeachment by the British Parliament, were made impeachable offenses under the Constitution of the United States, subject to the limitations prescribed by that instrument. 6a. In a footnote to 4 Blackstone (p. 5, Lewis's ed.) Christian says: "The word 'crime' has no technical meaning in the law of England. It seems, when it has a reference to positive law, to comprehend those acts which subject the offender to punishment. When the words high crimes and misdemeanors are used in prosecutions by impeachment, the words 'high crimes' have no definite signification, but are used merely to give greater solemnity to the charge." It is well established by the authorities that impeachable offenses under British constitution and under our Constitution are not limited to statutable crimes and misdemeanors or to offenses indictable under the common law and triable in the courts of ordinary jurisdiction. 6b. In his commentaries on the Constitution, John Randolph Tucker defines impeachable offenses as follows (vol. 1, sec. 200): For its definition resort may "(b) Bribery, which needs no special comment. be had to its meaning in criminal procedure. "(c) High crimes and misdemeanors. What is the meaning of these terms? Much controversy has arisen out of this question. Do these words refer only to offenses for which the party may be indicted under the authority of the United States? Do they mean offenses by the common law? Do they include offenses against the laws of the States, or do they mean offenses for which there is no indictment in the ordinary courts of justice? Or do they include maladministration, unconstitutional action of an officer willful or mistaken, or illegal action willful or mistaken? "(d) Up to September 8, 1787, the clause in reference to the impeachable offenses only included treason and bribery. On that day Mr. Mason moved to add the words or maladministration.' Mr. Madison objected to the vagueness of this term, whereupon Mr. Mason withdrew the word 'maladministration · and substituted 'other high crimes and misdemeanors against the United States,' and the clause was then agreed to by a vote of 10 States to 1. As the word 'other' is inserted before the words 'high crimes and misdemeanors,' these last words may be interpreted by the nature of the crimes treason and bribery.' Why should an officer be impeached for treason? Obviously, because an officer guilty of treason against the United States would be disqualified personally from being an officer of a government to which he was a traitor. How could a President properly command an Army of the United States when he was engaged in levying war against them, or adhering to their enemies? The utter inconsistency of this double position made it a proper offense for the jurisdiction of impeachment. The same objection would apply to any other officer of the United States. To be employed in the service of the United States, against which he was levying war, or adhering to their enemies, was a total personal disqualification. 66 (c) So in respect to bribery. Bribery corrupts public duty. The difference between treason and bribery is that the first is a crime defined by the Constitution, as to which Congress has no power except to declare its impeachment. Bribery is not a constitutional crime, and was not made a crime against the United States by statute until April, 1790. These two cases, therefore, show that the words high crimes and misdemeanors' can not be confined to crimes created and defined by a statute of the United States; for if Congress had ever failed to have fixed a punishment for the constitutional crime of treason, or had failed to pass an act in reference to the crime of bribery, as it did fail for more than a year after the Constitution went into operation, it would result that no officer would be impeachable for either crime, because Congress had failed to pass the needful statutes defining crime in the case of bribery, and prescribing the punishment in the case of treason as well as bribery. It can hardly be supposed that the Constitution intended to make impeachment for these two flagrant crimes depend upon the action of Congress. The conclusion from this would seem to be inevitable, that treason and bribery, and other high crimes and misdemeanors, in respect to which Congress had failed to legislate, would still be within the jurisdiction of the process of impeachment. (f) The word 'maladministration,' which Mr. Mason originally proposed, and which he displaced because of its vagueness for the words 'other high crimes and misdemeanors,' was intended to embrace all official delinquency or maladministration by an officer of the Government where it was criminal; that is, where the act done was done with willful purpose to violate public duty. There can be no crime in an act where it is done through inadvertence or mistake, or from misjudgment. Where it is a willful and purposed violation of duty it is criminal. 66 66 6 (g) This construction is aided by the fact that judges hold their offices during good behavior.' These words do not mean that a judge shall decide rightly, but that he shall decide conscientiously. He is not amenable to impeachment for a wrong decision, else when an inferior judge is reversed he would be impeachable; or, in the Supreme Court, a dissenting judge might be held impeachable because a large majority of the court affirmed the law to be otherwise. But if he decides unconscientiously-if he decides contrary to his honest conviction from corrupt partiality-this can not be good behavior, and he is impeachable. Again, if the judge is drunken on the bench, this is ill behavior, for which he is impeachable. "And all of these are generally criminal, or misdemeanor-for misdemeanor is a synonym for misbehavior. So, if he omits a judicial duty, as well as when he commits a violation of duty, he is guilty of crime or misdemeanor; for, says |