24 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., 615; 2 St. Tr., 735. In the proceedings following the impeachment of President Andrew Johnson, the answer of the President took up the articles one by one, denying some of the charges, admitting others but denying that they set forth impeachable offenses, and excepting to the sufficiency of others (III, 2428). The form of this answer was commented on during preparation of the replication in the House (III, 2431). Blount and Belknap demurred to the charges on the ground that they were not civil officers within the meaning of the Constitution (III, 2310, 2453), and Swayne also raised questions as to the jurisdiction of the Senate (III, 2481). The answer is part of the pleadings, and exhibits in the nature of evidence may not properly be attached thereto (III, 2124). § 613. Other pleadings. Replication, rejoinder, &c. There may be a replication, rejoinder, &c. Sel. Jud., 114; 8 Grey's Deb., 233; Sach. Tr., 15; Journ. H. of Commons, 6 March, 1640-1. A replication is always filed, and in one instance the pleadings proceeded to a rejoinder, surrejoinder, and similiter (III, 2455). A respondent has also filed a protest instead of pleading on the merits (III, 2461), but there was objection to this and the Senate barely permitted it. In another case respondent interposed a plea as to jurisdiction of offenses charged in certain articles, but declined to admit that it was a demurrer with the admissions pertinent thereto (III, 2125, 2431). In the Belknap trial the House was sustained in averring in pleadings as to jurisdiction matters not averred in the articles (III, 2123). The right of the House to allege in the replication matters not touched in the articles has been discussed (III, 2457). 8614. Examination of witnesses. 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. In trials before the Senate witnesses have always been examined in open Senate, and never by a committee, although such procedure has been once suggested (III, 2217). 615. Relation of jury trial to impeachment. 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. 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 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 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. Id., 126. In 1 H., 7, the Commons protest that they are not to be considered as parties to any judgment given, or hereafter to be given in Parliament. Id., 133. They have been generally and more justly considered, as is 25 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. No jury trial is possible as part of an impeachment trial under the Constitution (III, 2313). § 616. Attendance of the Commons. 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. of Straff., 37; Com. Journ., 4 Feb., 1709-10; 2 Wood., 614. And judgment is not 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 case capital Id., 58, 158, as well as not capital; 162. * * § 617. Attendance of the House of Representatives. The House of Representatives has consulted its own inclination and convenience about attending its managers at an impeachment. It did not attend at all in the trials of Blount, Swayne, and Archbald (III, 2318, 2483); and after attending at the answer of Belknap, decided that it would be represented for the remainder of the trial by its managers alone (III, 2453). At the trial of the President the House, in Committee of the Whole, attended throughout the trial (III, 2427), but this is exceptional. In the Peck trial the House discussed the subject (III, 2377) and reconsidered its decision to attend the trial daily (III, 2028). While the Senate is deliberating the House does not attend (III, 2435); but when the Senate votes on the charges, as at the other open proceedings of the trial, it may attend (III, 2338, 2383, 2440). While it has frequently attended in Committee of the Whole, it may attend as a House (III, 2338). § 618. Voting on the articles in an impeachment trial. *** 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. The question in judgment in an impeachment trial has occasioned contention in the Senate (III, 2339, 2340), and in the trial of the President the form was left to the Chief Justice (III, 2438, 2439). In the Belknap trial there was much deliberation over this subject (III, 2466). In the Chase trial the Senate modified its former rule as to form of final question (III, 2363). The yeas and nays are taken on each article separately (III, 2098, 2339), but in the trial of the President the Senate, by order, voted on the articles in an order differing from the numerical order (III, 2440), adjourned after voting on one article (III, 2441), and adjourned without day after voting on three of the eleven articles (III, 2443). After a conviction the Senate votes on the punishment (III, 2339, 2397). 619. Judgment in impeachments. Judgement. Judgments in Parliament, for death, have been strictly guided per legem terræ, which they can not alter; and not at all according to their discretion. They can neither omit any part of the legal 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 prosecuctions before inferior courts. The same rules of evidence, the same legal notions of 26 crimes and punishments, prevailed; for impeachments are not framed to alter the law, but to carry it into more effectual execution against too powerful delinquents. The judgment, therefore, is to be such as is warranted by legal principles or precedents. 6 Sta. 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; 2 Wood., 613. In misdemeanors the greatest corporal punishment hath been imprisonment. Seld. Jud., 184. The King's assent is necessary to capital judg ments (but 2 Wood., 614, contra), but not in misdemeanors. Seld. Jud., 136. The Constitution of the United States (Art. I, sec. 3, par. 7) limits the judgment to removal and disqualification. § 620. Impeachment not interrupted by adjournments. 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; Lord's Jour., May 15, 1791; 2 Wood., 618. In Congress impeachment proceedings are not discontinued by a recess (III, 2299, 2304, 2344, 2375, 2407, 2505); and the Pickering impeachment was presented in the Senate on the last day of the Seventh Congress (III, 2320); and at the beginning of the Eighth Congress the proceedings went on from that point (III, 2321. But an impeachment may proceed only when Congress is in session (III, 2006, 2462). Impeachable Offenses: Extracts From Hinds' and Cannon's Precedents of the House of Representatives (A) HINDS' PRECEDENTS OF THE HOUSE OF REPRESENTATIVES, ExTRACTS FROM VOLUME 3, CHAPTER LXIII 2008. Reference to discussions as to what are impeachable offenses.— In the course of the arguments during the impeachment trial of Andrew Johnson, President of the United States, the question, "What are impeachable offenses?" was discussed at length and learnedly. Mr. Manager Benjamin F. Butler, of Massachusetts, argued 1 learnedly in favor of this definition: We define therefore an impeachable high crime or misdemeanor to be one in its nature or consequences subversive of some fundamental' or essential principle of government or highly prejudicial to the public interest, and this may consist of a violation of the Constitution, of law, of an official oath, or of duty, by an act committed or omitted, or, without violating a positive law, by the abuse of discretionary powers from improper motives or for any improper purpose. Mr. Butler also appended to his argument an exhaustive brief on the "law of impeachable crimes and misdemeanors," prepared by Mr. William Lawrence, of Ohio. This view was also supported by Mr. Manager John A. Logan, of Illinois. Of the Senators who filed written opinions, Mr. Charles Sumner, of Massachusetts, argued at length that political offenses were impeachable offenses. So also argued Mr. Richard Yates, of Illinois." Mr. Benjamin R. Curtis, of Massachusetts, of counsel for the President, argued, on the other hand, that impeachable offenses could only be offenses against the laws of the United States." Mr. Thomas A. R. Nelson, of Tennessee, also of President's counsel, argued in the same line, and Mr. William M. Evarts, of New York, also of counsel for the President, argued at length against the definition given by Mr. Manager Butler. Of the Senators who filed written opinions on the case, this view was sustained by Mr. Garrett Davis, of Kentucky.10 2009. Argument that the phrase "high crimes and misdemeanors" is a "term of art," of fixed meaning in English parliamentary law, and 1 Second session Fortieth Congress, Globe, Supplement, p. 29. Pages 41-50. Globe, p. 1559. Pages 464-466. • Page 487. Page 134. Pages 293, 294. Pages 343, 344. 10 Pages 439, 440. (27) 28 transplanted to the Constitution in unchangeable significance. On February 22, 1905,11 in the Senate sitting for the impeachment trial of Judge Charles Swayne, Messrs. Anthony Higgins and John M. Thurston, of counsel for the respondent, offered a brief in support of their plea of jurisdiction as to the first seven articles. This brief, which was signed by them as counsel, but which, as they said, had been prepared by another, covered many questions relating to impeachments, the following being among them : I. WHAT ARE IMPEACHABLE "HIGH CRIMES AND MISDEMEANORS," AS DEFINED IN ARTICLE II, SECTION 4, OF THE CONSTITUTION By a strange coincidence, the death of parliamentary impeachment, as a living and working organ of the English constitution, synchronizes with its birth in American constitutions, State and Federal. Leaving out of view the comparatively unimportant impeachment of Lord Melville (1805), really the last of that long series of accusations by the Commons and trials by the Lords, which began in the fiftieth year of the reign of Edward III (1376), was the case of Warren Hastings, who was impeached in the very year in which the Federal Convention of 1787 met at Philadelphia. Before that famous prosecution, with its failure and disappointment, drew to a close, the English people resolved that the ancient and cumbrous machinery of parliamentary impeachment was no longer adapted to the wants of a modern and progressive society. But before this ancient method of trial thus passed into desuetude in the land of its birth it was embodied, in a modified form, first in the several State constitutions and finally in the Constitution of the United States. Article II, section 4, of the Federal Constitution, provides that "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." Article I, section 2, provides that "the House of Representatives shall choose their Speaker and other officers; and shall have the sole power of impeachment." Article I, section 3, provides that "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." Article III, section 2, provides that "the trial of all crimes, except in cases of impeachment, shall be by jury." 11 Third session Fifty-eighth Congress, Record, pp. 3026-3028. |