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ministry, and throw the affairs of the Union into disorder: would not this, in fact, make the President a monarch, and give him absolute power over all the great departments of Government? It signifies nothing that the Senate have a check over the appointment, because he can remove, and tire out the good disposition of the Senate.

His colleague had objected to the removal in this way, because the Senate would be kept constantly sitting. He did not think this objection of any weight, because the Constitution made some other things their duty, which would require them to be pretty constantly sitting. He alluded to the part they were called upon to perform in making treaties; this, therefore, would be a trifling objection.

Mr. BENSON thought it was not absolutely necessary to make any provision on this head, because the power was given to the President by the Constitution; but as the argument had been pretty well gone into, he would add no more at present, than just to remark an error the gentleman last up had fallen into. He had supposed the President to have the powers of a monarch, that he could introduce and keep a favorite in office in despite of every other branch of the Government: the Senate was an effectual check to a system of favoritism, and it lay in the power of the House to correct any abuse arising from such a system, if it unhappily was fallen into.

Mr. BLAND insisted that the check of the Senate was not sufficient, if the power of removal was taken from them. Indeed, he was satisfied, from the privilege the President had of nominating and filling up vacancies pro tempore, he would become absolute, if he alone had the power of removal. He was therefore against this part of the motion, both on principle and policy. He therefore moved to add to the words of the motion, "by and with advice and consent of the Senate," so that the power of removal might be declared to be in the same body as the Constitution placed the appointment.

Mr. CLYMER said, the power of removal was an Executive power, and as such belonged to the President alone, by the express words of the Constitution: "the Executive power shall be vested in a President of the United States of America." The Senate were not an Executive body; they were a Legislative one. It was true, in some instances, they held a qualified check over the Executive power, but that was in consequence of an express declaration in the Constitution; without such declaration, they would not have been called upon for advice and consent in the case of appointment. Why, then, shall we extend their power to control the removal which is naturally in the Executive, unless it is likewise expressly declared in the Constitution?

The question on adding the words "by and with the advice and consent of the Senate," as moved by Mr. BLAND, was put and lost.

Mr. WHITE. It has been said, that the Senate are not an Executive body. I grant that they are not an Executive body when they are sitting for Legislative purposes; but they are an Executive body when performing their Executive functions as required in the Constitution. Every question respecting treaties or public officers must go through their hands. Why shall we make the President responsible for what goes through other hands? He is not solely responsible, agreeably to the Constitution, for the conduct of the officers he nominates, and the Senate appoints; why then talk of obtaining a greater degree of responsibility than is known to the Constitution?

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We are told, that we ought to keep the Legislative and Executive departments distinct; if we were forming a constitution, the observation would be worthy of due consideration, and he would agree to the principles; but the Constitution is formed, and the powers blended; the wished-for separation is therefore impracticable.

Mr. VINING remarked, that the argument of the gentleman from Pennsylvania (Mr. CLYMER) was too well founded to be overturned by the critical distinction made by the gentleman last up, and was sufficient to convince gentlemen, if they would consider it well, that the Constitution vested the power of removal in the President alone. He begged the committee to consider the monstrous effect it would produce if the Legislature went on to mingle the Legislative and Executive powers. He would place it in one other point of view, and then have done with the subject. It is well known, that the Senate are to decide upon an impeachment made by this House. Now, can they be impartial judges when they have already given judgment in the case? Suppose the President communicates his suspicions to the Senate respecting the malfeasance of a public officer, and they, from factious or party views, or, indeed, for want of full information, refuse their consent to the removal; can they be the equal and unbiased judicature which the Constitution contemplates them to be? He thought they could not.

Mr. PAGE requested the committee to delay the decision of this question, because he did not wish gentlemen to commit themselves, without having fully reflected upon the subject. It had presented itself to his mind, as one of the most momentous questions that could arise, in which the rights of the People, the energy of Government, and the liberty of posterity were staked. He begged them not to cast the die, on which the fate of millions was hazarded, until they had maturely considered the subject. He felt a degree of security in the check the Senate had over the President, in appointing to office; but he should not think himself safe, if the power of removal was in the President alone.

The question was now taken, and carried by a considerable majority, in favor of declaring the power of removal to be in the President.

Procedure of the Congress in Matters Relating to Impeachment (From Jefferson's Manual of Parliamentary Practice and Rules of the House of Representatives)

SEC. LIII.-IMPEACHMENT.

8601. Jurisdiction of Lords and Commons as to impeachments.

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.

§ 602. Parliamentary law as to accusation in impeachment.

Accusation. The Commons, as the grand inquest of the nation, becomes 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 persons 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.

8603. Inception of impeachment proceedings in the House.

In the House of Representatives there are various methods of setting an impeachment in motion: by charges made on the floor on the responsibility of a Member or Delegate (II, 1303; III, 2342, 2400, 2469; VI 525, 526, 528, 535, 536); by charges preferred by a memorial, which is usually referred to a committee for examination (III, 2364, 2491, 2494, 2496, 2499, 2515; VI, 552);

(21)

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or by a resolution dropped in the hopper by a Member and referred to a committee (April 15, 1970, p. 11941-2); by a message from the President (III, 2294, 2319; VI, 498); by charges transmitted from the legislature of a State (III, 2469) or Territory (III 2487) or from a grand jury (III, 2488); or from facts developed and reported by an investigating committee of the House (III, 2399, 2444).

604. A proposition to impeach a question of privilege.

A direct proposition to impeach is a question of high privilege in the House and at once supersedes business otherwise in order under the rules governing the order of business (III, 2045-2048; VI, 468, 469). It may not even be superseded by an election case, which is also a matter of high privilege (III, 2581). It does not lose its privilege from the fact that a similar proposition has been made at a previous time during the same session of Congress (III, 2408), previous action of the House not affecting it (III, 2053). So, also, propositions relating to an impeachment already made are privileged (III, 2400, 2402, 2410), such as resolutions providing for selection of managers of an impeachment (VI 517), proposing abatement of impeachment proceedings (VI, 514); but a resolution simply proposing an investigation, even though impeachment may be a possible consequence, is not privileged (III, 2050, 2546; VI, 463). But where a resolution of investigation positively proposes impeachment or suggests that end, it has been admitted as of privilege (III, 2051, 2052, 2401, 2402):

§ 605. Investigation of impeachment charges.

The impeachment having been made on the floor by a Member (III, 2342, 2400; VI, 525, 526, 528, 535, 536), or charges suggesting impeachment having been made by memorial (III, 2495, 2516; 2520, VI, 552), or even appearing through common fame (III, 2385, 2506), the House has at times ordered an investigation at once. At other times it has refrained from ordering invesitgation until the charges had been examined by a committee (III, 2364, 2488, 2491, 2492, 2494, 2504, 2513).

606. Procedure of committee in investigating.

The House has always examined the charges by its own committee before it has voted to impeach (III, 2294, 2487, 2501). This committee has sometimes been a select committee (III, 2342, 2487, 2494), sometimes a standing committee (III, 2400, 2409). In some instances the committee has made its inquiry ex parte (III, 2319, 2343, 2366, 2385, 2403, 2496, 2511); but in the later practice the sentiment of committees has been in favor of permitting the accused to explain, present witnesses, cross-examine (III, 2445, 2471, 2518), and be represented by counsel (III, 2470, 2501, 2511, 2516).

8 607. Impeachment carried to the Senate.

Its committee on investigation having reported, the House may vote the impeachment (III, 2367, 2412), and, after having notified the Senate by message (III, 2413, 2446), may direct the impeachment to be presented at the bar of the Senate by a single Member (III, 2294), or by two (III, 2319, 2343, 2307), or even five Members (III, 2445). These Members in one notable case represented the majority party alone, but ordinarily include representation of the minority party (III, 2445, 2472, 2505). The chairman of the committee impeaches at the bar of the Senate by oral accusation (III, 2413, 2446, 2473), and requests that the Senate take order as to appearance; but in only one case has the parliamentary law as to sequestration and committal been followed (III, 2118, 2296), later inquiry resulting in the conclusion that the Senate had no power to take into custody the body of the accused (III, 2324, 2367). Having delivered the impeachment the committee return to the House and report verbally (III, 2413, 2446; VI, 501).

6C8. The writ of summons for appearance of respondent.

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.

The managers for the House of Representatives attend in the Senate after the articles have been exhibited and demand that process issue for the attend

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ance of respondent (III, 2451, 2478), after which they return and report verbally to the House (III, 2423, 2451; VI, 501). The Senate thereupon issue a writ of summons, fixing the day of return (III, 2423, 2451); and in a case wherein the respondent did not appear by person or attorney the Senate published a proclamation for him to apear (III, 2393). But the respondent's goods were not attached. 8609. Exhibition and form of articles.

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 Wms., 616.

The House of Representatives exhibits its articles after the impeachment has been carried to the bar of the Senate. The managers, who are elected by the House (III, 2300, 2345, 2417, 2448) or appointed by the Speaker (III, 2388, 2475), carry the articles in obedience to a resolution of the House (III, 2417, 2419, 2448) to the bar of the Senate (III, 2420, 2449, 2476), the House having previously informed the Senate (III, 2419, 2448) and received a message informing them of the readiness of the latter body to receive the articles (III, 2078, 2325, 2345). Having exhibited the articles the managers return and report verbally to the House (III, 2449, 2476). The articles in the Belknap impeachment were held sufficient, although attacked for not describing the respondent as one subject to impeachment (III, 2123)). These articles are signed by the Speaker and attested by the Clerk (III, 2302, 2449), and in form approved by the practice of the House (III, 2420, 2449, 2476).

610. Parliamentary law as to appearance of respondent.

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.

8611. Requirements of the Senate as to appearance of respondent.

This paragraph of the parliamentary law is largely obsolete so far as the practice of the House of Representatives and the Senate are concerned. The accused may appear in person or by attorney (III, 2127, 2349, 2424), or he may not appear at all (III, 2307, 2333, 2393). In case he does not appear the House does not ask that he be compelled to appear (III, 2308), but the trial proceeds as on a plea of "not guilty." It has been decided that the Senate has no power to take into custody the body of the accused (III, 2324, 2367). The writ of summons to the accused recites the articles and notifies him to appear at a fixed time and place and file his answer (III, 2127). In all cases respondent may appear by counsel (III, 2129), and in one trial, when a petition set forth that respondent was insane, the counsel of his son was admitted to be heard and present evidence in support of the petition, but not to make argument (III, 2333).

g 612. Answer of respondent.

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