SEC. LII. TREATIES.

The President of the United States has power, by and with the advice and consent of the Senate, to make treaties, provided two-thirds of the Senators present concur. Constitution, II, 2.

NOTE.-See Senate Rule XXXVI, clause 3; Rule XXXVII, clause 3.

Treaties are legislative acts. A treaty is the law of the land. It differs from other laws only as it must have the consent of a foreign nation, being but a contract with respect to that nation. In all countries, I believe, except England, treaties are made by the legislative power; and there, also, if they touch the laws of the land, they must be approved by Parliament. Ware v. Hylton, 3 Dallas's Rep., 223. It is acknowledged, for instance, that the King of Great Britain can not by a treaty make a citizen of an alien. Vattel, b. 1, 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 Russel'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 nulity, res inter alias 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 can not be otherwise regulated. 3. It must have meant to except out of these the rights reserved to the States, for surely

the President and Senate can not 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 some 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 Representatives 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 infringed 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 for their ratification, to communicate also the correspondence of the negotiators. This having been omitted in the 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.

NOTE-See Senate Rule XXXVII.

SEC. LIII. IMPEACHMENT.

The House of Representatives shall have the sole power of impeachment. Constitution, 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 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. Constitution, I, 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. Constitution, II, 4.

The trial of crimes, except in cases of impeachment, shall be by jury. Constitution, III, 2.

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

Jurisdiction. The Lords can not impeach any to themselves, nor join in the accusation, because they are the 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 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 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., 325-7; 2 Wooddeson, 576, 601; 3 Seld., 1604, 1610, 1618, 1619, 1641; 4 Blackst., 25; 9 Seld., 1656; 73 Seld., 1604-18.

Accusation. The Commons, as the grand inquest of the nation, become suitors for penal justice. 2 Wood., 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 Wood., 602, 605; Lords' Journ., 3 June, 1701; 1 Wms., 616; 6 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 (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 Wood., 602, 605; Lords' Journ., 3 June, 1701; 1 Wmș., 616.

Appearance. If he appear, 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 finds 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. 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. Jud., 102,105.

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 can not plead a pardon in bar to the impeachment. 2 Wood., 615; 2 St. Tr., 735.

Replication, rejoinder, etc. There may be a replication, rejoinder, etc. Seld. Jud., 114; 8 Grey's Deb., 233; Sach. Tr., 15; Journ. House of Commons, 6 March, 1640–41.

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 impaneled 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., 148. The judgment was a forfeiture of all her lands and goods. Id., 188. Selden says, is the only jury he finds recorded in Parliament for

This,