Chapter LIV: Section LIII: Impeachment

$The House of Representatives shall have the sole power of impeachment.--_Const. U. S._ Art. I. Sec. 3.$

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$The Senate shall have the sole power to try all impeachments. When sitting for that purpose, they shall be on oath or affirmation. When the President of the United States is tried, the Chief Justice shall preside; and no person shall be convicted without the concurrence of two-thirds of the members present. 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.--_Const. U. S._ Art. I. Sec. 3.

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.--_Const. U. S._ Art. II. Sec. 4.

The trial of crimes, except in cases of impeachment, shall be by jury.--_Const. U. S._ Art. III. Sec. 2.$

These are the provisions of the Constitution of the United States on the subject of impeachments. The following is a sketch on some of the principles and practices of England on the same subject.

_Jurisdiction._--The Lords cannot impeach any to themselves, nor join in the accusation, because they are judges.--_Seld. Judic. in Parl._ 12, 63. Nor can they proceed against a commoner, but on complaint of the Commons.--_Ib._ 84. The Lords may not, by the law, try a commoner for capital offence, on the information of the King, or a private person; because the accused is entitled to a trial by his peers generally; but on accusation by the House of Commons, they may proceed against the delinquent, of whatsoever degree, and whatsoever be the nature of the offence; for there they do not assume to themselves trial at common law. The Commons are then instead of a jury, and the judgment is given on their demand, which is instead of a verdict. So the Lords do only judge but not try the delinquent.--_Ib._ 6, 7. But Wooddeson denies that a commoner can now be charged capitally before the Lords, even by the Commons; and cites Fitzharris's case, 1681, impeached of high treason, where the Lords remitted the prosecution to the inferior court.--8 _Grey's Deb._ 325, 6, 7; 2 _Wooddeson_, 601, 576; 3 _Seld._ 1610, 1619, 1641; 4 _Black._ 257; 3 _Seld._ 1604, 1618, 9. 1656.

_Accusation._--The Commons, as the grand inquest of the nation, become suitors for penal justice.--2 _Woodd._ 597; 6 _Grey_, 356. The general course is to pass a resolution, containing a criminal charge against the supposed delinquent, and then to direct some member to impeach him by oral accusation, at the bar of the House of Lords, in the name of the Commons. The person signifies, that the articles will be exhibited, and desires that the delinquent may be sequestered from his seat, or be committed, or that the Peers will take order for his appearance.--_Sachev. Trial._ 325; 2 _Woodd._ 602, 605; _Lords' Jour._ 3 June, 1701; 1 _Wms._ 616; _Grey_, 324.

_Process._--If the party do not appear, proclamations are to be issued giving him a day to appear. On their return they are strictly examined. If any error be found in them, a new proclamation issues, giving a short day. If he appear not, his goods may be arrested, and they may proceed.--_Seld. Jud._ 98, 99.

_Articles._--The accusation (article) of the Commons, is substituted in place of an indictment. Thus, by the usage of Parliament, an impeachment for writing or speaking the particular words, need not be specified.--_Sach. Tr._ 325; 2 _Woodd._ 602, 605; _Lords' Journ._ 3 June, 1701; 1 _Wms._ 616.

_Appearance._--If he appears, and the case be capital, he answers in custody; though not if the accusation be general. He is not to be committed but on special accusations. If it be for a misdemeanor only, he answers a Lord in his place, a Commoner at the bar, and not in custody, unless, on the answer, the Lords find cause to commit him till he find sureties to attend, and lest he should fly.--_Seld. Jud._ 98, 99. A copy of the articles is given him, and a day fixed for his answer.--_T. Ray_; 1 _Rushw._ 268; _Fost._ 232; 1 _Clar. Hist. of the Reb._ 379. On a misdemeanor, his appearance may be in person, or he may answer in writing, or by attorney.--_Seld. Jud._ 100. The general rule on accusation for a misdemeanor is, that in such a state of liberty or restraint as the party is when the Commons complain of him, in such he is to answer. _Seld. Jud._ 101. If previously committed by the Commons, he answers as a prisoner. But this may be called, in some sort, _judicium parium suorum_.--_Seld. Jud._ In misdemeanors, the party has a right to counsel by the common law; but not in capital cases.--_Seld. Jud._ 102-5.

_Answer._--The answer need not observe great strictness of form. He may plead guilty as to part, and defend as to the residue; or, saving all exceptions, deny the whole, or give a particular answer to each article separately.--1 _Rush._ 274; 2 _Rush._ 1374; 12 _Parl. Hist._ 442; 3 _Lords' Journ._ 13 Nov. 1643; 2 _Wood._ 607. But he cannot plead a pardon in bar to the impeachment.--2 _Wood._ 618; 2 _St. Tr._ 735.

_Replication, rejoinder, &c._--There may be a replication, rejoinder, &c.--_Seld. Jud._ 114; 8 _Grey's Deb._ 233; _Sach. Tr._ 15; _Journ. House of Commons_, 6 March, 1640, 1.

_Witnesses._--The practice is to swear the witnesses in open House, and then examine them there: or a committee may be named, who shall examine them in committee either on interrogatories agreed on in the House, or such as the committee, in their discretion, shall demand.--_Seld. Jud._ 120, 123.

_Jury._--In the case of Alice Pierce, 1 _R._ 2. a jury was empannelled for her trial before a committee.--_Seld. Jud._ 123. But this was on a complaint, not an impeachment by the Commons.--_Seld. Jud._ 163. It must also have been for a misdemeanor only, as the Lords Spiritual sat in the case, which they do on misdemeanors, but not in capital cases.--_Seld. Jud._ 148. The judgment was a forfeiture of all her lands and goods.--_Seld. Jud._ 188. This, Selden says, is the only jury he finds recorded in Parliament for misdemeanors; but he makes no doubt if the delinquent doth put himself on the trial of his country, a jury ought to be empannelled: and he adds, that it is not so on impeachment by the Commons; for they are in _oco proprio_, and here no jury ought to be empannelled.--_Ib._ 124. The Lord Berkley, 6 _E._ 3, was arranged for the murder of, _L._ 2, on an information on the part of the King, and not on impeachment of the Commons; for then they had been _patria sua_. He waived his peerage, and was tried by a jury of Gloucestershire and Warwickshire.--_Ib._ 125. In one, 1 _H._ 7, the Common protest that they are not to be considered as parties to any judgment given, or hereafter to be given in Parliament.--_Ib._ 133. They have been generally, and more justly considered, as is before stated, as the grand jury. For the conceit of Selden is certainly not accurate, that they are the _patria sua_ of the accused, and that the Lords do only judge, but not try. It is undeniable that they do try. For they examine witnesses as to the facts, and acquit or condemn according to their own belief of them. And Lord Hale says, "the Peers are judges of law as well as of fact."--2 _Hale_, _P. C._ 275. Consequently of fact as well as of law.

_Presence of Commons._--The Commons are to be present at the examination of witnesses.--_Seld. Jud._ 124. Indeed, they are to attend throughout, either as a committee of the whole House; or otherwise, at discretion, appoint managers to conduct the proofs.--_Rushw. Tr. of Straff._ 37; _Com. journ._ 4 Feb. 1709, 10; 2 _Wood._ 614. And judgment is not to be given till they demand it.--_Seld. Jud._ 124. But they are not to be present on impeachment when the Lords consider of the answer or proofs, and determine of their judgment. Their presence, however, is necessary at the answer and judgment in cases capital.--_Ib._ 58, 159; as well as not capital, 162. The Lords debate the judgment among themselves. Then the vote is first taken on the question of guilty or not guilty; and if they convict, the question, or particular sentence, is out of that which seemeth to be most generally agreed on.--_Seld. Jud._ 167; 2 _Wood._ 612.

_Judgment._--Judgments in Parliament, for death, have been strictly guided _per legem terræ_, which they cannot alter; and not at all according to their discretion. They can neither admit any part of the legal judgment, nor add to it. Their sentence must be _secundum, non ultra legem_.--_Seld. Jud._ 168, 169, 170, 171. This trial, though it varies in external ceremony, yet differs not in essentials from criminal prosecutions before inferior courts. The same rules of evidence, the same legal notions of crimes and punishments, prevail. For impeachments were not framed to alter the law, but to carry it into more effectual execution against two powerful delinquents. The judgment, therefore, is to be such as is warranted by legal principles or precedents.--6 _Stra. Tr._ 14; 2 _Wood._ 611. The Chancellor gives judgments in misdemeanors; the Lord High Steward, formerly, in cases of life and death.--_Seld. Jud._ 180. But now the Steward is deemed not necessary.--_Fost._ 144; 1 _Woodd._ 613. In misdemeanors, the greatest corporal punishment hath been imprisonment.--_Seld. Jud._ 184. The King's assent is necessary in capital judgments, (but 2 _Woodd._ 614. contra.) but not in misdemeanors.--_Seld. Jud._ 136.

_Continuance._--An impeachment is not discontinued by the dissolution of Parliament; but may be resumed by the new Parliament.--_T. Ray._ 383; 5 _Com. jour._ 23 Dec. 1790; _Lord's jour._ May 16, 1791; 2 _Wood._ 618.

FOOTNOTES:

[1]

[JUDGE WYTHE.] PHILADELPHIA,
February 28, 1800.

MY DEAR SIR:--I know how precious your time is, and how
exclusively you devote it to the duties of your office, yet
I venture to ask a few hours or minutes of it on motives of
public service, as well as private friendship. I will explain
the occasion of the application. You recollect enough of
the old Congress to remember that their mode of managing
the business of the House was not only unparliamentary,
but that the forms were so awkward and inconvenient that
it was impossible sometimes to get at the true sense of
the majority. The House of Representatives of the United
States are now pretty much in the same situation. In the
Senate it is in our power to get into a better way; our
ground is this: The Senate have established a few rules
for their government, and have subjected the decisions on
these and on _all other points of order_ without debate,
and without appeal, to the judgment of their President, he,
for his own sake, as well as theirs, must prefer recurring
to some system of rules ready formed; and there can be
no question that the Parliamentary rules are the best
known to us for managing the debates, and obtaining the
sense of a deliberative body. I have therefore made them
my rule of decision, rejecting those of the old Congress
altogether, and it gives entire satisfaction to the Senate;
insomuch that we shall not only have a good system there,
but probably, by the example of its effects, produce a
conformity in the other branch. But in the course of this
business I find perplexities, having for twenty years been
out of deliberative bodies, and become rusty as to many
points of proceeding; and so little has the Parliamentary
branch of the law been attended to, that I not only find
no person here, but not even a book to aid me. I had, at
an early period of life, read a good deal on the subject,
and common-placed what I read. This common-place has been
my pillar; but there are many questions of practice on
which that is silent, some of them are so minute indeed,
and belong too much to every-day's practice, that they
have never been thought worthy of being written down, yet
from desuetude they have slipped my memory. You will see
by the enclosed paper what they are. I know with what pain
you write: therefore I have left a margin in which you
can write a simple negative or affirmative opposite every
position, or perhaps, with as little trouble, correct the
text by striking out or interlining. This is what I have
earnestly to solicit from you, and I would not have given
you the trouble if I had had any other resource. But you
are, in fact, the only spark of Parliamentary science now
remaining to us. I am the more anxious, because I have
been forming a manual of Parliamentary law which I mean to
deposit with the Senate as the standard by which I judge,
and am willing to be judged. Though I should be opposed to
its being printed, yet it may be done perhaps without my
consent; and in that case I should be sorry indeed should it
go out with errors that a Tyro should not have committed.
And yet it is precisely those to which I am most exposed.
I am less afraid as to important matters, because for them
I have printed authorities; but it is those small matters
of daily practice, which twenty years ago were familiar to
me, but have in that time escaped my memory. I hope under
these circumstances you will pardon the trouble I propose
to you in the enclosed paper. I am not pressed in time,
so that your leisure will be sufficient for me. Accept
the salutations of grateful and sincere friendship and
attachment, and many prayers for your health and happiness
from, Dear Sir,

Yours affectionately.

[2] Order of the House of Commons, 1663, July 16.

[3] Elsynge, 217; 1 Hats. 21; 1 Grey's Deb. 133.

[4] In a case of division of the question, and
a decision against striking out, I advance, doubtingly,
the opinion here expressed. I find no authority either
way; and I know it may be viewed under a different aspect.
It may be thought, that having decided separately not to
strike out the passage, the same question for striking
out cannot be put over again, though with a view to a
different insertion. Still I think it more reasonable and
convenient to consider the striking out and insertion as
forming one proposition; but should readily yield to any
evidence that the contrary is the practice in Parliament.

[5] Noes.--9 Grey, 365.