Parliament. Ware v. Hayton, 3 Dallas' Rep., 223. It is acknowledged, for instance, that the King of Great Britain cannot by a treaty make a citizen of an alien. Vallel, b., c. 19, sec. 214. An act of Parliament was necessary to validate the American treaty of 1783. And abundant examples of such acts can be cited. In the case of the treaty of Utrecht, in 1712, the commercial articles required the concurrence of Parliament; but a bill brought in for that purpose was rejected. France, the other contracting party, suffered these articles, in practice, to be not insisted on, and adhered to the rest of the treaty. 4 Russell's Hist. Mod. Europe, 457; 2 Smollet, 242, 246.

[By the Constitution of the United States this department of legislation is confined to two branches only of the ordinary legislature; the President originating and the Senate having a negative. To what subjects this power extends has not been defined in detail by the Constitution; nor are we entirely agreed among ourselves. 1. It is admitted that it must concern the foreign nation party to the contract, or it would be a mere nullity, res inter alios acta. 2. By the general power to make treaties, the Constitution must have intended to comprehend only those subjects which are usually regulated by treaty, and cannot be otherwise regulated. 3. It must have meant to except out of these rights to the States; for surely the President and Senate cannot do by treaty what the whole government is interdicted from doing in any way. 4. And also to except those subjects of legislation in which it gave a participation to the House of Representatives. This last exception is denied by som, on the ground that it would leave very little matter for the treaty power to work on. The less the better, say others. The Constitution thought it wise to restrain the Executive and Senate from entangling and embroiling our affairs with those of Europe. Besides, as the negotiations are carried on by the Executive alone, the subjecting to the ratification of the representative such articles as are within their participation, is no more inconvenient than to the Senate. But the ground of this exception is denied as unfounded. For examine, e. g., the treaty of commerce with France, and it will be found that, out of thirty-one articles, there are not more than small portions of two or three of them which would not still remain as subjects of treaties,untouched by these exceptions.] Treaties being declared, equally with the laws of the United States, to be the supreme law of the land, it is understood that an act of the legislature alone can declare them in ringed and rescinded. This was accordingly the process adopted in the case of France in 1798.

[It has been the usage for the Executive, when it communicates a treaty to the Senate fo: their ratification, to communicate also the correspondence of the negotiators. This having been omitted in case of the Prussian treaty, was asked by a vote of the House, of February 12, 1800, and was obtained. And in December, 1800, the convention of that year between the United States and France, with the report of the negotiations by the envoys, but not their instructions, being laid before the Senate, the instructions were asked for, and communicated by the President.]

[The mode of voting on questions of ratification is by nominal call.] [Whenever a treaty shall be laid before the Senate for ratification, it shall be read a first time for information only; when no motion to reject, ratify, or modify the whole, or any part, shall be received. Its second reading shall be for consideration, and on a subsequent day, when it shall be taken up as in a committee of the whole, and every one shall be free to move a question on any particular article, in this form: "Will the Senate advise and consent to the ratification of this article?" or to propose amendments thereto, either by inserting or by leaving out words, in which last case the question shall be, "shall the words stand part of the article?" And in every one of the said cases, the concurrence of twothirds of the Senators present shall be requisite to decide affirmatively. And when, through the whole, the proceedings shall be stated to the House, and questions being again severally put thereon, for confirmation, or new ones proposed, requiring in like manner a concurrence of two-thirds for whatever is retained or inserted.]

[The votes so confirmed shall, by the House, or a committee thereof, be reduced into the form of a ratification, with or without modifications, as may have been decided, and shall be proposed on a subsequent day, when every one shall again be free to move amendments, either by inserting or leaving out words; in which last case the question shall be, "Shall the words stand part of the resolution?" And in both cases the concurrence of two-thirds shall be requisite to carry the affirmative; as well as on the final question to advise and consent to the ratification in the form agreed to. Rule 37.] [When any question may have been decided by the Senate, in which two-thirds of the members present are necessary to carry the affirmative, any member who voted on that side which prevailed in the question may be at liberty to move for a reconsideration, and a motion for reconsideration shall be decided by a majority of votes. Rule 37.]

SECTION LIII.

IMPEACHMENT.

[The House of Representatives shall have the sole power of impeachment. Const. U. S., I, 3.]

[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 Presi lent 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., I, 3.]

[The President, Vice President, and all civil officers of the United States, shall be removed from office on inpeachment fo1, and conviction of, treason, bribery, or other high crimes and misdeameaners. Const., II 4.]

[The trial of crim s, exc pt in cases of impeachment, shall be by jury. Const., III, 2.] These are the provisio is of the Con titution of the United States on the subject of im peachments. The following is a sketch of 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 the ju lges. Se l. Jui in Parl., 12, 63. Nor can they proceed against a Common r but on complaint of th Commons. Ib.,8. The Lords may not, by the law, try a commoner for a capital offense, 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 offense; 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 thir demand, which is instead of a verdict. So the Lords do only judge, but not try the de inquent. 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, 1631, impeached for high treason, when the Lords remitted the prosecution to the inferior court. 8 Grey's Deb., 325-7; Wooddeson, 601, 576; 3 Seld., 1610, 1619, 1641; 4 Blackst., 25; 73 Seld., 1601, 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 dei qent may be sequestered from his seat, or be committed, or that the peers will take order from his appearance. Sachev. Trial, 329; 2 Woodd., 602, 605; Lords' Jour.,3 June, 1701, 101; 1 Wms., 616; 6 Grey, 324.

Process. If a 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. Judd., 98, 99.

Articles. The accusation (articles) of the Commons is substituted in place of an indictment. Thus, by the usage of Parliament, in impeachment for writing or speaking, the particular words need not be specified. Sach. Tr., 325; 2 Woodd., 602, 605; Lords' Jour., 3 June, 1701; 1 Wms., 616.

Appearance. If he appears, and the case be capital, he answers in custody; though not if the accusations 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 finds sureties to attend, and lest he should fly. Seld. Judd., 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 RA 379. Or a misdemeanor his appearance may be in person, or he may answer in writing, or by attorney. Seld. Judd,, 100. The general rule on accusations 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. Ib., 101. If previously committed by the commons, he answers as a prisoner. But this may be called in some sort judicium parium suorum. Ib. In misdemeanors the party has a right to counsel by the common law; but not in capital cases. Seld. Judd., 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; 1 Rush., 1374; 12 Parl. H ́s!., 442; 3 Lords' Jour., 13 Nov., 1643; Woodd., 607. But he can not plead a pardon in bar to the impeachment. 2 Woodd., 615; 2 St. Tr., 735.

Replication, rejoind r, etc. There may be a replication, rejoinder, etc. Sel. Jud., 114: S Grey's Deb., 233; Sach, Tr., 15; Journ. H. of Commons, March, 1610, 1.

Wit esses. 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 empaneled for her trial before a committee. Seld. Jud., 123. But this was on a complaint, not on 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. Id., 145. The judgment was a forfeiture of all her lands and goods. Id., 188. This, Selden says, is the only jury he finds recorded in Parliament for misdemeanor; but he makes no doubt, if the delinquent doth put himself on trial of his country a jury ought to be impaneled, and he adds that it is not so on impeachment by the commons; for they are in loco proprio, and there no jury ought to be impaneled. Id., 124. The Ld. Berkeley, 6 E., 3, was arraigned for the murder of L., 2, on an information on the part of the King, and not 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. Id., 125. In 1 H., 7, the commons protest that they are not to be considered as parties to any judg ment given, or hereafter to be given in Parliament. Seld. Jud., 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, and 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 Woodd., 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 of proofs and determine of their judgment. Their presence, however, is necessary at the answer and judgment in cases of capital (Id., 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 Woodd., 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 omit any legal part of the judgment nor add to it. Their sentence must be secundum, non ultra legem. Seld. Jud., 168-171. 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, prevailed; for impeachments are not framed to alter the law, but to earry 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 Sta., Tr., 14; 2 Woodd., 611. The chancellor gives judgment 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; 2 Woodd., 613. In misdemeanors the greatest corporal punishment hath been imprisonment. Seld. Jud., 184. The King's assent is necessary in capital judgments (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; 4 Com. Journ., 23 Dec., 1790; Lords' Jour., May 15, 1791; 2 Woodd., 618.

CUSTOMS, PRECEDENTS, FORMS AND RULES

FOR THE USE AND GOVERNMENT OF THE WISCONSIN SENATE AND ASSEMBLY.

COMPILED BY THE COMMITTEE AUTHORIZED BY JOINT RESOLUTION No. 62, S., SESSION OF 1895.

(Adopted by the Legislature of 1897.)

CUSTOMS, precedents and foRMS.

Organization.

The Legislature convenes at 12 o'clock M., on the second Wednesday of January in every odd numbered year.

Custom, so prevalent and so ancient as to have the force of law, has made it the duty of the Chief Clerk of the previous Assembly to call to order, and to conduct the proceedings generally, until a Speaker is chosen.

In the Senate the Lieutenant Governor calls the Senators to order, the Chief Clerk of the previous session acting in that capacity until his successor is chosen. The oath of office is usually administered to the newly elected Senators by the Lieutenant Governor, who also administers the oath of office to the Chief Clerk and Sergeant-at-Arms. Immediately after the senators take the oath of office the election of President pro tem., Chief Clerk and Sergeant-at-Arms is proceeded with in the order named.

The Secretary of State furnishes to the clerk a certified statement of the names of the members elect, which is read. The members then advance to the Clerk's desk, and subscribe to the oath of office.

The election of President pro tem. of the Senate, Speaker of the Assembly, Clerk and Sergeant-at-Arms of both the respective Houses are required to be viva voce.

After the organization each House informs the other House that it is organized and ready to proceed to business.

A joint committee of both Houses is then appointed to convey a like message to the Governor, and inform him that the Houses are in readiness to receive any communication from him he may desire to make.

At the first opportunity after hearing the message read, the various recommendations therein contained, are referred by resolution to appropriate standing committees or select committees.

Drawing of Seats.

The drawing of seats by lot has been observed since the Assembly first took possession of the new Assembly Chamber.

The method heretofore pursued is as follows:

The members leave their seats, and take places in the open area behind their seats. The Clerk having placed in a box, slips of paper containing the names of the members respectively, a page or messenger draws them therefrom. The Clerk announces each

name as it is drawn, and the member named selects his seat, and occupies it until the drawing is completed. In the Senate the seats are usually placed in such manner as will be most agreeable to the senators.

Duties of Officers.

PRESIDENT And Speaker.-The duties of these officers are generally defined in the

rules.

CHIEF CLERKS.-The rules set forth the duties of these officers. They have the care and custody of all the papers and records, and arrange in its proper order from day to day, after its inception, all the business of the two Houses. They must, in order to have a proper knowledge of the affairs of their departments, apportion, systematize and personally supervise the labor of all their subordinates, and, when not called therefrom by more important duties, should officiate in person at the reading desk. The duties of their subordinates are properly their duties, as all are performed under their direction, and they are responsible for any deficiencies. It is their duty to prepare and furnish to the public printer, an accurate record of each day's proceedings and a copy of every bill, report and other thing ordered to be printed "on the same day such orders are made"; to keep the pay accounts of employees and issue certificates of pr diem to them; to deliver the messages of the one House to the other and to sign sub

penas.

It is their duty to prepare an index to the journal, at the close of the session, and to be present at the opening of the next session, and to attend to such preliminary business as may be necessary, and conduct the proceedings therein until a speaker is elected, and perform the duties of clerk thereof until their successors are chosen and qualified.

They are by law responsible for the safe keeping of all the bills and other documents in possession of the Legislature, and for the proper registry of all proceedings; and are required at the close of the session, to deposit all papers in their possession as Chief Clerks, properly classified and labeled, with the Secretary of State.

Regulations in the Department of the Clerk.

To insure a systematic and correct performance of the duties of their departments, the Chief Clerks of the two Houses have established the following regulations:

THE ASSISTANT CLERKS.-It is their special duty:

1. To keep a record of each day's proceedings, and to correct the proof of same when printed.

2. To officiate at the reading desk when required by the clerk, and in case of his absence to perform his duties generally.

3. To label and file in the appropriate places all papers presented, with proper dates and references.

4. To select each day all papers ordered to be printed, make the list thereof in a book provided for that purpose, and send them to the State Printer, taking his receipt therefor.

5. To keep a list of all absentees on leave, etc.

THE BOOK-KEEPER.- It is his special duty:

1. To keep the register of bills, resolutions, memorials, etc., showing therein, and opposite to each title, all actions taken and proceedings had, with regard to such papers.

2. To distribute to the proper committee, or officers, all bills, petitions and other papers referred.

3. To make out all certificates of per diem and mileage, ready for the signature of the Speaker and Clerk.

4. To prepare the message to be delivered to the other House, and when not otherwise occupied, to help the Journal Clerk in the performance of his duties.

THE ENGROSSING CLERK.-It is his special duty:

1. To engross all bills ordered to a third reading which the rules require to be engrossed, properly placing all amendments adopted prior to the order of their engrossment.

2. By the direction of the Chief or Journal Clerk to perform any necessary service appertaining to the duties of the othar deputies.