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On the day appointed for the trial, the House of Representatives appears at the bar of the Senate either in a body or by managers selected for that purpose. Before that time, at the request of either party, subpoenas to secure the attendance of the witnesses may be issued and served by the officers of the Senate in accordance with its rules. Several States have constitutional provisions authorizing or requiring the trial of impeachments by the senate after the adjournment of the lower house. In their absence and none such exists in the Constitution of the United States the power of the Senate to try an impeachment after the final adjournment of the House is extremely doubtful.1o The Senate of the United States has never assumed such power, and in Belknap's case voted that it did not exist.11

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Whether an impeachment abates by the expiration of the terms of the members of the House of Representatives that voted it has never been decided in the United States. In Warren Hastings' trial in 1791, it was determined by Parliament, most of the lawyers voting in the minority, that an impeachment did not abate by a dissolution, and might be continued by the next Parliament. The previous precedents were conflicting.12

Although this position has been disputed, it is settled by precedent that the Senate on the trial of an impeachment sits as a court and not as a legislative body; and the proceedings are entitled

cellor Erskine, who was, however, a peer, decided all questions of evidence without dispute.

9 By the constitution of West Virginia (Art. VI, Sec. 9): "The Senate may sit during the recess of the legislature, for the trial of impeachments." By that of Michigan (Art. XII, Sec. 3), impeachments must be tried by the senate, after the final adjournment of the legislature.

10 Constitution, Article I, Section 5; Belknap's Impeachment Trial, pp. 537, 538, 542-544; Johnson's Impeachment Trial, pp. 26-30, 32. In New York and Kansas impeachments have been tried after the adjournment of the lower houses. See Impeachment Trials of John W. Robinson, George S. Hillyer

and Charles Robinson; Barnard's Impeachment Trial; Mather's Impeachment Trial, Appendix, infra.

11 Belknap's Impeachment Trial,

p. 542.

12 History of the Trial of Warren Hastings, published by J. Debrett, London, 1796. Introduction to part iv. For the former precedents, see ibid., pp. 42-44, note; Hallam's Constitutional History, Middleton's Am. ed., vol. ii, pp. 397-400.

13 See the arguments of the managers in Chase's Impeachment Trial and Johnson's Impeachment Trial, passim; and the opinion of Senator Sumner in Johnson's Impeachment Trial, vol. iii, pp. 247–281.

"In the Senate of the United States sitting as a Court of Impeachment." 14 The proceedings are conducted substantially as upon ordinary trials, in regard to the admission or rejection of testimony, the examination and cross-examination of witnesses, the rules of evidence and the other questions of law incidentally arising, although there is great liberality and freedom from technicality in all these respects.15 The presumption of the innocence of the accused is recognized as in ordinary courts of law.16 He has the right to be confronted with the witnesses against him, 17 and has in general all rights guaranteed by the Constitution to persons charged with crime except those which require an indictment and jury trial and which regulate the place of trial.18

§ 106. Evidence upon Impeachment Trials.

On the trial of Warren Hastings it was determined by the Lords that all the evidence of the Commons in support of all the articles should be taken before the respondent's witnesses were examined. This has been the universal rule in the United States, except when depositions were admitted. On some of the earlier English impeachments, including those of Middlesex 2 and Stafford, the evidence for and against each article was taken up separately. On the impeachment of Middlesex the evidence was taken by the depositions of witnesses who were examined secretly on written interrogatories, after the manner of the canon law, which was then followed in chancery; and the accused was not allowed

14 Chief Justice Chase, in Johnson's Impeachment Trial, vol. i, p. 12; and the proceedings in that case, and Belknap's Impeachment Trial, passim, pp. 19-34. In State v. George H. Hastings, Attorney-General and others, 37 Neb., 96; it was held, that the Supreme Court acted judicially upon the trial of impeachments and had not succeeded to any political functions that might have been vested in the Senate.

15 Story on the Constitution, 5th ed., § 811; Report on the Lords' Journals, Burke's Works, Little & Brown's ed., vol. xi, pp. 60-122; Senator Sumner's Opinion in Johnson's Impeachment Trial, vol. iii, pp. 253-256.

16 Manager Hoar in Belknap's Case, p. 82; State v. Hastings AttorneyGeneral, 37 Neb., 96. See State ex rel. Attorney-General v. Buckley, 54 Alabama, 599, 617-621.

17 State ex rel. Attorney-General v. Buckley, 54 Alabama 599, 617-621. 18 State ex rel. Attorney General v. Buckley, 54 Alabama, 599, 617–621.

§ 106.1 History of the Trial of Warren Hastings, published by J. Debrett, London, 1796, p. 10.

2 Howell's State Trials, vol. ii, pp. 1183-1254.

3 Howell's State Trials, vol. iii, 382-1526.

to see their testimony before his answer. Upon an impeachment trial before the Supreme Court of Alabama, it was held that the accused had the constitutional right to be confronted with the witnesses against him in court, and that a statute was void which sought to authorize proof by depositions of which he had notice with the right of cross-examination.5

In the trials before the Senate of the United States no testimony has been admitted on either side when the witness was not examined in the presence of the Senate. On Pickering's trial, depositions taken before a justice of the peace were submitted and read before the Senate on behalf of the petition of the respondent's son, but no action was taken thereupon by either the Senate or the House. Upon two State impeachment trials rules were made (in Kansas by the consent of both parties, in Michigan without objection 8) by which depositions were admitted taken outside of the State, in accordance with the State practice in ordinary trials. In two Pennsylvania impeachment trials, depositions of witnesses who were too ill to attend were admitted without objection. In two Kansas impeachment trials testimony taken on a former impeachment trial was by consent considered as read in evidence.10

In Belknap's impeachment trial, an order was made, —

"that the managers furnish to the defendant, or his counsel, within four days, a list of the witnesses, as far as at present known to them, that they intend to call in this case; and that, within four days thereafter, the respondent furnish to the managers a list of the witnesses, as far as known, that he intends to summon." "1

In no case before the Senate of the United States has the testi

4 Howell's State Trials, vol. ii, pp. 1183-1254.

5 State ex rel. Attorney-General v. Buckley, 54 Alabama, pp. 599, 617-621.

6 Pickering's Trial, Annals of Congress, A. D., 1803-1804, pp. 334, 342; supra, § 90.

7 John W. Robinson's Impeachment Trial, p. 65.

8 Hubbell's Impeachment Trial. 9 Hopkinson's Impeachment Trial and Nicholson's Impeachment Trial.

10 Hillyer's Impeachment Trial, p. 350; Charles Robinson's Impeachment Trial, p. 397.

11 Belknap's Impeachment Trial, pp. 524-529. In Hubbell's Impeachment Trial, the Wisconsin Senate denied a motion on behalf of the respondent, that the managers furnish him a copy of the testimony taken before the Assembly committee on the subject. (Hubbell's Trial, pp. 80-81. See Appendix.)

mony of the respondent been taken. It was claimed in Belknap's case by Ex-Senator Matthew H. Carpenter, who was counsel for the respondent, that the respondent and his wife had no right to testify.12 This was denied by the managers.18 On Barnard's trial the testimony of the accused was admitted without question; and in other cases he has been allowed to make a statement in his defense not under oath,15 in accordance with the practice on impeachments before the House of Lords.16

14

In Hubbell's case, one of the managers asked the senate to draw an inference unfavorable to the respondent from his failure to testify in his own defense.17 For this the manager was rebuked by the respondent's counsel, but the senate took no action in the matter.18

In Belknap's case, the counsel for both sides conceded that a journalist had the privilege of refusing to disclose the source of news which he had published.19 On the impeachment trial, before the senate of Massachusetts, of Vinal, a justice of the peace, by the consent of the respondent the record of his conviction by the Supreme Court of the offenses charged against him was admitted in evidence and held sufficient.20 On the proceedings for the removal of Sargent and Vinal, judges of the common pleas in the same State, the only evidence was a certificate of their conviction made by the solicitor of the Commonwealth. The legislature held this sufficient against the protest of John Quincy Adams.21

§ 107. Arguments of Counsel.

Each side opens its own evidence. At the conclusion of the testimony, the parties have the right to be heard by counsel upon the

12 Belknap's Impeachment Trial, pp. 978, 995.

13 Manager Scott Lord in Belknap's Impeachment Trial, p. 1039.

14 Barnard's Impeachment Trial, p. 1630.

15 Addison's Impeachment Trial, p. *101; Jackson's Impeachment Trial, pp. 251-275. Hubbell's Impeachment Trial, p. 781. See Appendix, infra.

16 Strafford's Impeachment Trial, Howell's State Trials, vol. iii, pp. 13821526.

17 Manager Huston, in Hubbell's Impeachment Trial, p. 1726.

18 John B. Chipman, counsel for the respondent in Hubbell's Impeachment Trial, pp. 1772, 1773; infra, Appendix. See Wilson v. U. S., 149 U. S., 60.

19 Belknap's Impeachment Trial, p. 667.

20 Prescott's Impeachment Trial, Appendix, p. 217.

21 Infra, Appendix.

whole case. In a Missouri impeachment trial, the defendants' counsel were allowed to make a motion, in the nature of a demurrer to the evidence, for judgment whether the respondent should make further answer. The senate, after the argument of the motion, refused to allow the managers to withdraw the articles without the permission of the court. Such permission was, however, subsequently granted before the decision of the motion and apparently without any action by the house which presented the impeachment; a most irregular proceeding.1 The House of Commons has the right to reply on every incidental as well as on the principal question involved in the case. This right, although claimed on the trial of Johnson, Belknap and Barnard, has been overruled in the United States, and on incidental questions the party on the affirmative side of the question has the right to open and reply; although the managers have the right to open and close the final arguments.1

§ 108. Decision upon Impeachment.

There can be no conviction upon an impeachment before the Senate of the United States or any of the State senates without a concurrence of two-thirds of the members present. In this, the American differs from the English practice, where a majority of the House of Lords, provided at least twelve concur, is sufficient.1 The requirement of a vote of two-thirds for a conviction was first made in the New York Constitution of 1777,2 which in this respect was usually followed in the early constitutions of the other States. That constitution, as did some others, also required the vote of two-thirds of the lower house, which is not required by the

§ 107. 1 Lucas' Impeachment Trial, pp. 278, 288, 312-314. In Hardy's Trial in California the presiding officer said (pp. 260-261): "No doubt the counsel for the prosecution have the right to withdraw any one, or the entire list of the Articles of Impeachment, that they choose." See § 98 and Appendix, infra.

2 Lord Melville's Impeachment Trial, 29 Howell's State Trials, 762–763. 3 Johnson's Trial, vol. i, p. 77; Bel

knap's Trial, pp. 64-65, 71-87; Barnard's Trial, infra, Appendix.

4 Senate Rules for Impeachments, XXI. Hardy's Impeachment Trial. p. 465. See Appendix, infra. § 108. 1 Comyn's Digest, Parliament, L. 17.

2 Art. XXXIII. Penn's Form of Government in 1696 required the presence of a quorum of two-thirds, a majority of whom might convict. (Poore, Charters and Constitutions, p. 1535.)

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