APPENDIX C SECONDARY SOURCES ON THE CRIMINALITY ISSUE The Association of the Bar of the City of New York, The Law of Presidential Impeachment and Removal (1974). The study concludes that impeachment is not limited to criminal offenses but extends to conduct undermining governmental integrity. Bayard, James, A Brief Exposition of the Constitution of the United States, (Hogan & Thompson, Philadelphia, (1833). A treatise on American constitutional law concluding that ordinary legal forms ought not to govern the impeachment process. Berger, Raoul, Impeachment: The Constitutional Problems, (Harvard University Press, Cambridge, 1973). A critical historical survey of English and American precedents concluding that criminality is not a requirement for impeachment. Bestor, Arthur, "Book Review, Berger, Impeachment: The Constitutional Problems," 49 Wash. L. Rev. 225 (1973). A review concluding that the thrust of impeachment in English history and as viewed by the framers was to reach political conduct injurious to the commonwealth, whether or not the conduct was criminal. Boutwell, George, The Constitution of the United States at the End of the First Century, (D. C. Heath & Co., Boston, 1895). A discussion of the Constitution's meaning after a century's use, concluding that impeachment had not been confined to criminal offenses. Brant, Irving, Impeachment: Trials & Errors, (Alfred Knopf, New York, 1972). A descriptive history of American impeachment proceedings, which concludes that the Constitution should be read to limit impeachment to criminal offenses, including the common law offense of misconduct in office and including violations of oaths of office. Bryce, James, The American Commonwealth, (Macmillan Co., New York, 1931) (reprint). An exposition on American government concluding that there was no final decision as to whether impeachment was confined to indictable crimes. The author notes that in English impeachments there was no requirement for an indictable crime. Burdick, Charles, The Law of the American Constitution, (G. T. Putnam & Sons, New York, 1922). A text on constitutional interpretation concluding that misconduct in office by itself is grounds for impeachment. Dwight, Theodore, "Trial by Impeachment." 6 Am. L. Reg. (N.S.) 257 (1867). An article on the eve of President Andrew Johnson's impeachment concluding that an indictable crime was necessary to make out an impeachable offense. Etridge, George, "The Law of Impeachment," 8 Miss. L. J. 283 (1936). An article arguing that impeachable offenses had a definite meaning discoverable in history, statute and common law. Feerick, John, "Impeaching Federal Judges: A Study of the Constitutional Provisions," 39 Fordham L. Rev. 1 (1970). An article concluding that impeachment was not limited to indictable crimes but extended to serious misconduct in office. Fenton, Paul, "The Scope of the Impeachment Power," 65 Nw. U. L. Rev. 719 (1970). A law review article concluding that impeachable offenses are not limited to crimes, indictable or otherwise. Finley, John and John Sanderson, The American Executive and Executive Methods, (Century Co., New York, 1908). A book on the presidency concluding that impeachment reaches misconduct in office, which was a common law crime embracing all improprieties showing unfitness to hold office. Foster, Roger, Commentaries on the Constitution of the United States, (Boston Book Co., Boston, 1896), vol. I. A discussion of constitutional law concluding that in light of English and American history any conduct showing unfitness for office is an impeachable offense. Lawrence, William, "A Brief of the Authorities upon the Law of Impeachable Crimes and Misdemeanors," Congressional Globe Supplement, 40th Congress, 2d Session, at 41 (1868). An article at the time of Andrew Johnson's impeachment concluding that indictable crimes were not needed to make out an impeachable offense. Note, "The Exclusiveness of the Impeachment Power under the Constitution," 51 Harv. L. Rev. 330 (1937). An article concluding that the Constitution included more than indictable crimes in its definition of impeachable offenses. Note, "Vagueness in the Constitution: The Impeachment Power," 25 Stan. L. Rev. 908 (1973). This book review of the Berger and Brant books concludes that neither author satisfactorily answers the question whether impeachable offenses are limited to indictable crimes. Pomeroy, John, An Introduction to the Constitutional Law of the United States, (Hurd and Houghton, New York 1870). A consideration of constitutional history which concludes that impeachment reached more than ordinary indictable offenses. Rawle, William, A View of the Constitution of the United States, (P. H. Nicklin, Philadelphia, 1829, 2 vol. ed.). A discussion of the legal and political principles underlying the Constitution, concluding on this issue that an impeachable offense need not be a statutory crime, but that reference should be made to non-statutory law. Rottschaefer, Henry, Handbook of American Constitutional Law, (West, St. Paul, 1939). A treatise on the Constitution concluding that impeachment reached any conduct showing unfitness for office, whether or not a criminal offense. Schwartz, Bernard, A Commentary on the Constitution of the United States, vol. I, (Macmillan, New York, 1963). A treatise on various aspects of the Constitution which concludes that there was no settled definition of the phrase "high Crimes and Misdemeanors," but that it did not extend to acts merely unpopular with Congress. The author suggests that criminal offenses may not be the whole content of the Constitution on this point, but that such offenses should be a guide. Sheppard, Furman, The Constitutional Textbook, (George W. Childs, Philadelphia, 1855). A text on Constitutional meaning concluding that impeachment was designed to reach any serious violation of public trust, whether or not a strictly legal offense. Simpson, Alex., A Treatise on Federal Impeachments, (Philadelphia Bar Association, Phila., 1916) (reproduced in substantial part in 64 U.Pa.L.Rev. 651 (1916)). After reviewing English and American impeachments and available commentary, the author concludes that an indictable crime is not necessary to impeach. Storv, Joseph, Commentaries on the Constitution of the United States, vol. 1, 5th edition, (Little, Brown & Co., Boston 1891). A commentary by an early Supreme Court Justice who concludes that impeachment reached conduct not indictable under the criminal law. Thomas, David, "The Law of Impeachment in the United States," 2 Am. Pol. Sci. Rev. 378 (1908). A political scientist's view on impeachment concluding that the phrase "high Crimes and Misdemeanors" was meant to include more than indictable crimes. The author argues that English parliamentary history, American precedent, and common law support his conclusion. Tucker, John, The Constitution of the United States. (Callaghan & Co., Chicago, 1899), vol. 1. A treatise on the Constitution concluding that impeachable offenses embrace willful violations of public duty whether or not a breach of positive law. Wasson, Richard, The Constitution of the United States: Its History and Meaning (Bobbs-Merrill, Indianapolis, 1927). A short discussion of the Constitution concluding that criminal offenses do not exhaust the reach of the impeachment power of Congress. Any gross misconduct in office was thought an impeachable offense by this author. Watson, David, The Constitution of the United States. (Callaghan & Co., Chicago, 1910), volumes I and II. A treatise on Constitutional interpretation concluding that impeachment reaches misconduct in office whether or not criminal. Wharton. Francis, Commentaries on Law, (Kay & Bro., Philadelphia, 1884). A treatise by an author familiar with both criminal and Constitutional law. He concludes that impeachment reached willful misconduct in office that was normally indictable at common law. Willoughby, Westel. The Constitutional Law of the United States, vol. III, 2nd edition. (Baker, Voorhis & Co., New York, 1929). The author concludes that impeachment was not limited to offenses made criminal by federal statute. Yankwich, Leon, "Impeachment of Civil Officers under the Federal Constitution," 26 Geo. L. Rev. 849 (1938). A law review article concluding that impeachment covers general official misconduct whether or not a violation of law. |