sented to the Senate with those adopted by the assembly; upon which the plea was overruled.5 On the trial of Judge Page in Minnesota, a plea to the jurisdiction contained in the respondent's answer set up that the journal of the house of representatives did not show the articles of impeachment had been approved by the vote of the majority of the members elected. The journal showed simply "That the articles were presented and duly adopted." Without taking testimony the senate overruled the plea. In Holden's impeachment trial in North Carolina, the house of representatives made an order amending an article of impeachment by substituting another person for the one originally named as innocent of the unlawful act charged against the respondent. An objection was made to this amendment upon the ground that it could not be allowed unless new witnesses were examined before the house, or a committee thereof, in support of this charge. The amendment was allowed without this requirement. The answer was thereupon amended so as to meet this new article and a replication thereto made by the house. In Hubbell's case in Wisconsin the managers were allowed to amend the articles by correcting an error in the name of a place mentioned in the specifications. A new plea and answer were then filed to the amendment; and the respondent's counsel claimed that the senate should be resworn.9 8 The New York court for the trial of impeachments held in Barnard's case that it had no power to grant a motion by the respondent to strike out part of an article or to compel an amendment of the same.10 The supreme court of Nebraska held that the legislature could not delegate to the managers the power to make such a substantial amendment as amounted in effect to a new article.11 5 Barnard's Trial, pp. 66, 67, 97–146. Page's Impeachment Trial, pp. 101-110; infra, Appendix. 7 Citing opinion of Attorney-General Charles Lee, American State Papers, vol. xx, p. 101. 8 Holden's Impeachment Trial, pp. 61-72, 100, 101, supra, § 94; infra, Appendix. See the argument of Mont gomery Blair, counsel for the respondent in Belknap's Impeachment Trial, p. 100. 9 Hubbell's Impeachment Trial, pp, 187-188, 241, 533. 10 Barnard's Impeachment Trial, pp. 192, 193. 11 State V. Leese, Ex-AttorneyGeneral, 37 Neb., 92, 94. In Page's impeachment trial the counsel for the respondent moved to quash one of the articles as insufficient, because indefinite. The motion was denied, with a provision that no evidence should be received under the article unless the managers should on or before a certain date furnish and file in the case a bill of particulars to that article. The counsel for the respondent objected to this upon the ground, that it amounted to a permission to the managers to amend the article without any action of the house of representatives thereupon, and was in effect a permission to the managers to present a new article of impeachment, which power even the house itself could not have delegated to them; but the objection was overruled.12 The articles need not pursue the strict form of an indictment.1 13 Great looseness is allowed in their construction; and it is customary to mingle rhetoric as well as arguments with the statements of fact which they contain. In England, no demurrer to an article of impeachment has ever been admitted; 14 but our American practice affords more safeguards to the accused.15 The articles must contain sufficient certainty to enable the respondent to properly pre 12 The article was as follows: "Article X. Throughout the term of office of said Sherman Page as Judge of the district court in and for said county of Mower, to wit: since or or about January 1st, 1873, he, the said Sherman Page, as such judge, has habitually demeaned himself towards the officers of said Court and towards the other officers of said county of Mower, in a malicious, arbitrary and oppressive manner and has habitually used the power invested in him as such judge to annoy, insult and oppress such officers, and all other persons who have chanced to incur the displeasure of him the said Page." (Page's Impeachment Trial, pp. 20, 163, 172, 232.) 18 Lord Wintown's Impeachment Trial, Howell's State Trials, vol. xv, pp. 875-891; Report on the Lords' Journals, Burke's Works, Little & Brown's ed., vol. xi, pp. 13–41; Woode son's Lectures, vol. ii, pp. 605, 606; Comyn's Digest, Parliament, L. 21; Foster's Crown Law, pp. 389, 390; Story on the Constitution, 5th ed., § 808; Manager George Frisbie Hoar, Belknap's Impeachment Trial, pp. 73– 75. In Barnard's Impeachment Trial, Judge Allen said (at p. 2041): “If he has been guilty of mal or corrupt administration of his office of Judge of the Supreme Court, and the facts constituting the alleged malfeasance, and the actions or proceedings on which the orders were made or judgments given are set forth distinctly and clearly in the articles, he can be convicted, although the particular intent with which the acts were done or the particular inducement by which he was led to act are not alleged." 14 Report on the Lords' Journals, Burke's Works, Little & Brown's ed., vol. xi, p. 13. 15 Infra, § 103. pare his defense and to avail himself of an acquittal thereupon as a bar to another impeachment.16 It is usual, when the article charges a course of conduct, to include therein a number of specifications of such conduct. In Cox' case, before the Minnesota senate, demurrers to certain articles were overruled, but the board of managers were required to furnish the respondent with specifications as to them. The senate ruled that if no such specifications should be furnished no evidence should be received under those articles; and after the specifications were filed excluded all evidence in support of one of such articles, and dismissed the same.17 § 99. Service of Process on Impeachment. As soon as the articles are thus presented, the Senate issues a process summoning the party to appear before it to answer the articles at a given day. This process is in the form of a summons, reciting the articles and notifying him to appear before the Senate at a time and place named therein, which is fixed by it, to file his answer to the articles, and to abide the orders and judgment of the Senate thereon.1 A precept for the writ naming the time before the return-day allowed for the service is issued to the sergeant-at-arms of the Senate, who serves the writ either in person or by deputy.2 In Johnson's case the return-day of the summons to the President was one week after its issue was ordered.3 In Belknap's case the return-day was twelve days after the order.* In the earlier impeachments, when the accused lived a long distance from the place of trial and the means of travel were more difficult and slow than now, more time was allowed. The summons is served either by the delivery of an attested copy to the person accused; or if that cannot conveniently be done, by leaving such a copy at his last known place of abode, or at his usual place of business in some conspicuous place therein; or if such service is in the judgment of the Senate impracticable, notice to the accused to appear may be given in such other manner, by publication or otherwise, as the Senate deems just. If the writ cannot be served on time, it does not abate, but further service may be made in such manner as the Senate directs.5 In Humphreys' case the process was served by leaving a copy of the same at the residence of the respondent, who could not be found in that vicinity. On his failure to appear in pursuance of the summons, a proclamation for his appearance was served, by order of the Senate, by publication in three newspapers in Washington at least forty days successively, and one newspaper published at his residence for five days successively." The old English custom was to cite the party by a writ directed to himself or to require the sheriff to summon him, and if he could not be found to proclaim throughout the realm that if he did not attend on the day fixed he would be attainted. In later times, when the accused could not readily be apprehended, the king was addressed in order that the ports might be stopped, that he might be prevented from taking shelter in the royal palaces, and at the same time all persons were prohibited under certain penalties from harboring and concealing him. There is no provision or authority under the Constitution of the United States for the arrest of the accused by the Senate or his suspension from office pending the impeachment. Blount, who, however, was a member of the Senate, was arrested and held to bail until the termination of his 5 Rules for Impeachments, VIII. 6 Humphreys' Impeachment Trial, Congressional Globe, 2d Session, 37th Congress, part iv, p. 2942. 7 Woodeson's Lectures, vol. ii, p. 604; citing 4 Inst. 38-39; 3 Selden's Works, 1621. 8 Ibid., vol. ii, p. 604; citing 2 St. Tr., 573, 732 (ed. 1730); Com. Journ., April, 1679. 9 See Professor Dwight's Lecture on Trial by Impeachments in American Law Register, N. S., vol. vi, pp. 276 278; Von Holst's Constitutional Law, pp. 162-163. Tiffany in his Treatise on Government and Constitutional Law, p. 354, argues that Congress may arrest an impeached president or other officer and suspend him from office pending the proceedings. Pomeroy, in his Constitutional Law, § 128, that this cannot be done to an officer whose term is fixed by the Constitution, but that it might be when his term of office is merely statutory. trial.10 Several State constitutions have provisions authorizing a suspension from office in such a case. In the State of Arkansas, the impeachment of Governor Clayton began by several members of the house locking the governor in the executive chamber.12 § 100. Managers of Impeachment and Counsel for Prosecution. A committee of managers is also appointed by the House to conduct the impeachment. These managers are always members of the House, and usually lawyers. In no case has the House of Representatives of the United States employed counsel to assist the managers upon a trial of an impeachment. In some States. the houses of representatives have employed counsel to assist the managers.1 It was decided by the senate of California in Hardy's case that this might be done.2 On Barnard's trial, the New York assembly was represented by a committee of the New York City Bar Association as well as by the managers, and the former had full control of the proceedings.3 § 101. Swearing of the Senate. The Constitution provides that the Senate, when sitting for the purpose of impeachment, "shall be on Oath or Affirmation." 1 The members of the House of Lords are not sworn, but give their votes upon their honor.2 It was natural that in a country where no privileged caste among white men was recognized, the senators 10 Wharton's American State Trials, pp. 201-202, 250; supra, § 90. 11 In Louisiana (Art. 198), North Dakota (Art. XIV, Sec. 198), South Dakota, Art. XVI, Sec. 5), an officer cannot perform his official functions after impeachment and before his acquittal. So in Michigan (Art. XII, Sec. 24), and New Jersey as regards judicial officers (Art. VI, Sec. 3); and in New York as to judicial officers after the articles "have been preferred to the Senate" (Art. VI, Sec. 13). See In the Matter of the Executive Communication, 12 Fla., 653; and Appendix, infra. 12 Atlantic Monthly, vol. xxix, p. 386; supra, § 38, over note 167; § 88, over notes 16 and 17. See Appendix, infra. § 100. 1 In Addison's Case and that of McKean and his associates in Pennsylvania; Hubbell's Case in Wisconsin and Hardy's Case in California; infra, Appendix. 2 Hardy's Impeachment Trial, pp. 26, 167-173. In Hubbell's Case the State paid one of its counsel $3,000 (ibid.). 8 See Appendix, infra. Constitution, Article I, Sec 2 Blackstone's Commentaries, vol. i, p. 402. |