Jefferson's Manual of Parliamentary Practice and Rules of the House of Representatives, sec. 53House Doc. no. 7, 93d Cong., 1st Sess. 1973
§ 601. 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.
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§ 608. 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.
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§ 609. 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.
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§ 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.
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§ 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 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.
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§ 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.
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§ 614. 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.
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§ 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 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.
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§ 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.
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§ 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.
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§ 619. Judgment in impeachments.
Judgement. Judgments in Parliament, for death, have been strictly guided per legem terrae, 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 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 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 judgments (but 2 Wood., 614, contra), but not in misdemeanors. Seld. Jud., 136.
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§ 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.
The Founders' Constitution
Volume 2, Impeachment Clauses, Document 1
The University of Chicago Press
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