MEMORIAL OF JOHN C. WATROUS.

JUNE 10, 1858.-Ordered to be printed.

To the honorable the House of Representatives of the United States. The memorial of the undersigned, John C. Watrous, Judge of the District Court of the United States for the Eastern District of Texas

HUMBLY REPRESENTS: The House having at the present session authorized to be taken from its files, and referred anew, sundry memorials, heretofore presented, praying for his impeachment; and the inquiry therein prosecuted by its Committee on the Judiciary not having led to any definite result, either of negativing or affirming the charges made, and a great body of evidence on the subject being now ready to be reported, the undersigned respectfully prays permission to submit herewith a written exposition of the law and the facts of the whole case for the consideration and judgment of the House.

The undersigned takes occasion, in the outset, solemnly to aver that all the charges of misconduct in office preferred against him are unjust and untrue, and beyond that to declare that he has never consciously been guilty of any act, official or unofficial, tending to tarnish his honor either as a magistrate or as gentleman; and that he is ready, at all proper times and places, to encounter any charges or allegations derogatory to his character, from whatever quarter they may come, and especially to co-operate in pursuing the fullest inquiry into all matters touching his official conduct, within the purview of the constitutional duty of the House of Representatives. If it were otherwise, he would be unworthy to hold the elevated office of a judge of the courts of the United States.

He received the appointment of judge of the district court of Texas from the hands of President Polk, at the time of the accession of that State to the Union. During the twelve years which have since elapsed, he has performed the duties of his office with all due diligence, and with fidelity, as he confidently believes and avers, to his oath and to the law.

His duties, he may be permitted to say, have been more than ordinarily difficult and responsible. Until a very recent day, the district in which he officiates embraced the whole of the great State of Texas. Owing to the imperfect organization of the judicial system of the United States, he discharged the functions of a circuit as well as a district court. He entered upon office in a State which had come into

existence as an independent republic, separated by revolution and war from the Mexican republic. Its population was composed in good part of the more adventurous of the people of the United States. Its jurisprudence was peculiar, consisting of a combination of that of England and Spain, of the civil and of the common law, in their original condition, or as modified in the different States of America. Its land-titles were involved in controversy by the circumstances attending the transition of the State from dependence to independence, and by the supervening necessity for the reconcilement of the codes of proprietary concessions under the crown of Spain; of colonization. under the authority of the Mexican Republic; of revolutionary and head-right or settlement grants by the Republic or State of Texas. And the judicial task devolved upon him by these circumstances, arduous in itself, was rendered yet more so by the fact that in his court, of course, were litigated questions of debt and other claims proferred by citizens of other States against those of Texas.

These circumstances, and especially the last, namely, the relation of the federal court to claims of citizens of other States against those of Texas, are the cause, he is confidently assured, of unjust complaints and false charges against him, which were propagated by interested parties at the very commencement of his judicial career, and were made to assume a plausible seeming in the eyes of the legislature of Texas, and which, at this late period, have been resuscitated and brought before the present Congress of the United States to be seriously considered, with newer matters, as a question of impeachment. The constitution provides that "the President, Vice President, and all civil officers of the United States shall be removed from office on impeachment for and on conviction of treason, bribery, or other high crimes or misdemeanors;" that "the trial of all crimes, except in cases of impeachment, shall be by jury;" that "the House of Representatives shall have the sole power of impeachment;" that the Senate shall have the sole power to try impeachments;" that "judgment in cases of impeachment shall not extent further than 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, and punishment according to law." Moreover, "cases of impeachment" are excepted from the pardon power of the President.

It is apparent on the face of these provisions of the constitution that their object is to punish official misconduct of civil officers of the government, and to inflict upon them punishment which shall be not only special and unpardonable, but also in addition to such punishment for the same act as shall have been provided for by the ordinary laws of the land.

It would appear, also, that the acts of official malfeasance, for which the special and additional punishment by impeachment exists, are such only as are also punishable by the ordinary laws of the land. To that effect is the express language of the constitution-"treason, bribery, and other high crimes and misdemeanors." The same conclusion is deducible from the fact that the party convicted on impeachment "shall nevertheless be liable and subject to indictment, trial, and

punishment according to law." Indeed, any other conclusion would involve the assumption, which can by no possibility be admitted, that arbitrary punishment for offences undefined may exist in a system of constitutional government like that of the United States.

Nay, the very word "impeachment," as adopted in the constitution. from the laws of England, has and can have no larger signification. than this. "Acts of parliament to attaint particular persons of treason or felony, or to inflict pains and penalties beyond or contrary to common law to serve a special purpose, says the authoritative expositor of the common law, are, "to all intents and purposes, new laws, made pro re nata, and by no means an execution of such as are already in being. But an impeachment before the lords by the Commons of Great Britain, in Parliament, is a prosecution of the already known and established law."-(Blackstone, vol. 4, p. 259.)

I respectfully submit, also, that, in the exercise of the power of impeachment, it is the duty of the House of Representatives to look beyond the question of mere probable cause of accusation, and to institute inquiry of actual guiltiness. I know it is common to speak of the House of Representatives in this relation as the "grand inquest." This expression is one of loose analogy only, not of precision or truth. The House of Representatives finds an impeachment, it is true, and in this respect its action bears resemblance to that of a grand jury; but here the resemblance ceases, for the House of Representatives also accuses and prosecutes; and it might therefore, with as much verity, be denominated an attorney general as a grand inquest. No such phrase, nor any one expressing or conveying the same idea, is to be found in the constitution.

Accordingly, it is announced as the received rule of public law in the latest work of authority on the subject that the House, in the exercise of the power of impeachment, acts "not like a grand jury, but in its ordinary legislative form of proceeding;" (Cushing's Legislative Assemblies, p. 985;) that is to say, the House inquires into the whole question before it, in the case of a petition or motion for impeachment, just as it does in regard to any other legislative matter of fact, with open doors, with hearing of both sides, either directly or by committee, with free debate-in a word, with purpose and with endeavor, by all proper and ordinary means of investigation, to ascertain the truth or falsity of the charge presented to its consideration. Whatever doubt on this point may have been permitted heretofore, there can be none at the present time. It is notorious that in Great Britain the House of Commons hears the accused either by committee or at the bar of the House. This was admitted and fixed in the last great case of impeachment there, that of Lord Melville. It was determined still more authoritatively in the United States, in the last great case of impeachment here, that of Judge Peck. The doctrine is declared, in the name of the House of Representatives, by the leading manager, Mr. Buchanan, now President of the United States, in the following words, uttered at the bar of the Senate:

"The voting of an impeachment in the House of Representatives should never be a mere ex parte proceeding there, though it ought always to be so considered here. The power of impeachment is too