Chapter L: Section 4: The President, Vice President and all civil Officers (3)

[473] This was originally on the theory that the Supreme Court of the District had inherited, via the common law of Maryland, the jurisdiction of the King's Bench "over inferior jurisdictions and officers." 12 Pet. at 614 and 620-621.

[474] Little _v._ Barreme, 2 Cr. 170 (1804); United States _v._ Lee, above; [Transcriber's Note: Reference is to Footnote 470, above.] Spaulding _v._ Vilas, 161 U.S. 483 (1896).

[475] Bell _v._ Hood, 327 U.S. 678 (1946). The decision is based on an interpretation of 28 U.S.C. Sec. 41 (1).

[476] Mitchell _v._ Clark, 110 U.S. 633 (1884). An official action is indemnifiable if Congress could have authorized it in the first place, or if it was done under "imperative orders which could not be resisted," or "under necessity or mistake." Ibid. 640-641.

[477] Tennessee _v._ Davis, 100 U.S. 257 (1880); In re Neagle, 135 U.S. 1 (1890). _Cf._ Maryland _v._ Soper, 270 U.S. 9 (1926).

[478] 17 Op. Atty. Gen. 419 (1882). _See also_ Hinds' Precedents, III, Sec. 2315-2318 (1907).

[479] The Belknap Case, ibid. Sec. 2445.

[480] Elliot, Debates, V, 341, 528.

[481] Ibid. IV, 375.

[482] The Federalist No. 65. For the above _see_ William S. Carpenter, Judicial Tenure in the United States (Yale University Press, 1918), 105-106.

[483] John Quincy Adams, Memoirs, I, 321, 322 (1874).

[484] Trial of Andrew Johnson, I, (Government Printing Office, 1868), 147.

[485] Ibid. 409. Johnson and his Cabinet were much concerned over rumors that it was the intention of his enemies in the House, following impeachment and pending the trial, to put him under arrest and/or suspend him from office. Gideon Welles, Diary, III, 21, 27, 50, 57, 60, 62, 151, 200, 235, 237, 238, 291, 313. But no such step was attempted. Several state constitutions contain provisions authorizing suspension from office in such a case.

[486] Carpenter, Judicial Tenure, 145-153.

[487] Senate proceedings in Cong. Record, vol. 80, pp. 5558-5559, (April 16, 1936).

[488] On this account, as well as because of the cumbersomeness of the impeachment process and the amount of time it is apt to consume, it has been suggested that a special court could, and should, be created to try cases of alleged misbehavior in office of inferior judges of the United States, this type of officer having furnished the great majority of cases of impeachment under the Constitution. _See_ Memorandum on Removal Power of Congress with Respect to the Supreme Court, Senate Judiciary Committee, 80th Cong., 1st sess.; _also_ Burke Shartel, Federal Judges--Appointment, Supervision, and Removal--Some Possibilities under the Constitution, 28 Mich. L. Rev., 870-907 (May 1930). Is impeachment the only way in which Congress, or either house thereof, is constitutionally entitled to call the President to account for his conduct in office? _Cf._ George Wharton Pepper, Family Quarrels, The President, the Senate, and the House (New York, 1931), 138 ff.; and Corwin, The President, Office and Powers (3d ed.), 411-413.

ARTICLE III

THE JUDICIAL DEPARTMENT