To Henry Tazewell
Jan. 27. 98.
Th:J. to mr Tazewell.
As you mentioned that some of your commee admitted that the introduction of juries into trials by impeachment under the VIIIth. amendment depended on the question Whether an impeachment for a misdemeanor be a criminal prosecution? I devoted yesterday evening to the extracting passages from Law authors shewing that in Law-language the term crimes is in common use applied to misdemeanors, and that impeachments, even when for misdemeanors only are criminal prosecutions. these proofs were so numerous that my patience would go no further than two authors, Blackstone & Wooddeson. they shew that you may meet that question without the danger of being contradicted. the constitution closes the proofs by explaining it’s own meaning when speaking of impeachments, crimes, misdemeanors.
the object in supporting this engraftment into impeachments is to lessen the dangers of the court of impeachment under it’s present form, and to induce dispositions in all parties in favor of a better constituted court of impeachment,1 which I own I consider as an useful thing, if so composed as to be clear of the spirit of faction.
Do not let the inclosed paper be seen in my hand writing.
PrC (DLC). Not recorded in SJL.
Your committee: on 23 Jan. 1798 Tazewell was appointed to consider a bill on impeachment procedures that had been introduced by Humphrey Marshall of Kentucky the preceding day. Federalists Samuel Livermore, James Ross, and Uriah Tracy joined Marshall and Tazewell on this committee, one of several established in the next few weeks to consider rules and forms for impeachment trials. It was the only one to which a Republican was appointed. When the Senate considered the committee’s report on 14 Feb., Tazewell called for the introduction of juries into the trials. The full debate began two days later, when, according to a report in the Philadelphia Aurora, the vice president read the section of the impeachment bill under consideration. Tazewell moved the following amendment: “And a Jury shall be summoned for the trial thereof in the manner, and under the directions herein after prescribed.” He argued that while the Constitution guaranteed that all persons accused of crimes were to be tried before a jury except in cases of impeachment, the Bill of Rights had extended the protection to impeachment trials as well and that in Great Britain impeachment had “uniformly” been considered a criminal prosecution. According to the newspaper account, Tazewell supported his case with passages from William Blackstone and Richard Wooddeson. A long debate on 16 Feb. 1798 was concluded three days later when the amendment was defeated 26 to 3, with only Stevens Thomson Mason and Andrew Jackson joining Tazewell in support of the proposition (JS description begins Journal of the Senate of the United States, Washington, D.C., 1820–21, 5 vols. description ends , 2:428, 4402; Philadelphia Aurora, 16, 20, 28 Feb. and 1, 3 Mch. 1798). For an analysis of the debate and vote, see Melton, First Impeachment description begins Buckner F. Melton, Jr., The First Impeachment: The Constitution’s Framers and the Case of Senator William Blount, Macon, Ga., 1998 description ends , 170–81.
1. Word interlined in place of “appeals.”