Page images
PDF
EPUB

should be bound in the same way as judges and jurors for the administration of justice. The oath or affirmation is administered to the senators by the presiding officer for the time being of the Senate. When the Chief-Justice presided the oath was administered to him by one of the associate justices of the Supreme Court.4 When the Vice-President presided it was customary under the former rules to have him sworn by the secretary of the Senate. If the respondent wishes to exclude a member of the Senate from the trial, the safer practice is for one of the other senators to object to his being sworn.

§ 102. Appearance of the Accused.

On the return day of the process, after the senators have been sworn, the person impeached is called in their presence to appear and answer the articles. If he fails to appear in person or by attorney, his default is recorded and the Senate proceeds ex parte in the trial of impeachment in the same manner as if a plea of not guilty had been filed.1

On the trial of Judge Pickering, although the judge did not appear, the Senate received a petition from his son which alleged his insanity, and prayed a postponement and leave to defend for him. This was presented by counsel for the petitioner, who disclaimed any appearance for the judge. Against the protest of the managers and after their withdrawal to take the opinion of the House upon the subject, the counsel was allowed to present evidence of the judge's insanity in the form of depositions; but the managers returned and the trial went on in the same manner as if the petition and the depositions in support thereof had not been presented.2

3 19 St. at L., 34; Rules for Impeachment, III; Belknap's Impeachment Trial, pp. 14, 15, 21, 24, 29, 229, 233. 4 Johnson's Impeachment Trial, p.

11.

5 Chase's Impeachment Trial, Smith's ed., p. 12; Peck's Impeachment Trial, p. 58.

See, however, Johnson's Impeachment Trial, vol. iii, pp. 360-400.

§ 102. 1 Senate Rules for Impeach

ment, VIII, X; Pickering's Impeachment Trial, Annals of Congress for 1803-1804, pp. 315-367; Humphreys' Impeachment Trial, Congressional Globe, 2d Session, 37th Congress, 1862, part iv, pp. 2942-2953. As to the necessity of an appearance in person, see supra, § 90, note 36.

2 Pickering's Impeachment Trial, Annals of Congress for 1803-1804, pp. 328-367.

Upon Humphreys' trial no appearance was made on benalf of the respondent, and all the proceedings were consequently er parte. The accused may appear in person or by attorney. In every trial before the Senate of the United States, where there has been no default, the accused has appeared by counsel. In several of the State impeachment trials, notably those of Addison and Jackson, the accused has conducted his own defense. The senates of several States have assigned counsel to the respondent at his request, and in such a case a law may be passed providing for their payment by the State. On the impeachment trial of John W. Robinson, Senator Ingalls objected to the further appearance of one of the respondent's counsel because he had publicly declared out of court that the Senate was a jury packed against his clients. The counsel thereupon withdrew.

§ 103. Pleadings of the Respondent.

On the appearance of the respondent upon an impeachment he is entitled to be furnished with a copy of the articles, and time is allowed him to prepare his answer thereto. If he fails to plead, the trial proceeds as if a plea of not guilty had been made, and he may be allowed to defend by counsel notwithstanding.1

No demurrer to an article of impeachment has been filed or sustained in the House of Lords.2 In the Senate of the United States no demurrer has ever been sustained, although in the cases of Blount and Belknap, pleas and replications thereto which were analogous to demurrers were filed and argued. In the case of Sheriff Greenleaf in Massachusetts, demurrers general and special to the several articles of impeachment were incorporated in the

3 Humphreys' Impeachment Trial, Congressional Globe, 2d Session, 37th Congress, 1862, part iv, pp. 29422953; Senate Rules for Impeachments, X.

4 Infra, Appendix. 5 Infra, Appendix.

6 Botkin's Impeachment Trial, p. 72; infra, Appendix.

7 Impeachment Trial of John W. Robinson, pp. 248-249.

§ 103. 1 Belknap's Impeachment

Trial, supra, § 90. But see Bates'
Trial, infra, Appendix.

2 Report on the Lords' Journals, Burke's Works, Little & Brown's ed., vol. xi, p. 13. On Suffolk's impeachment, when the respondent failed to answer but placed himself on the king's disposal, it was held that as to one article he was "neither declared nor charged." (Stubbs' Constitutional History, vol. iii, p. 148.)

respondents' answer, but were overruled. On the trial of Judge Cox before the senate of Minnesota, demurrers to several articles were filed and argued. The Senate in two or three cases overruled the demurrer, but directed that a bill of particulars of the articles should be furnished to the accused, and in the case of one article after the bill of particulars had been furnished, determined to hear no further evidence in support of the charge. On the impeachment trial of Judge Botkin, the Kansas senate sustained demurrers to several articles.5

A plea analogous to a plea at common law may be filed to the articles. This was done in the cases of Blount and Belknap. The usual course, however, is for the accused to answer. No strictness of form is required by the answer. An answer stating simply that the accused is not guilty of each charge is sufficient." A party may, however, offer affirmative reasons as well as facts against the charges, and for the purpose of influencing public opinion, which has more weight with the tribunal in this class of cases than any other, that is the usual practice. The answer usually begins with a reservation of all exceptions to the insufficiency of each article and to the jurisdiction of the court; then separately traverses each allegation in each article; and also pleads separately in justification or excuse of the alleged offenses, all the circumstances attendant upon each case. The answer may be accompanied by exhibits of public documents or court records in support of the defenses pleaded.

On Belknap's impeachment trial the respondent was allowed, after his plea to the jurisdiction had been overruled by a majority of less than two-thirds, to file a protest against further proceedings. Thereupon it was ordered that the trial proceed as if a plea of not guilty had been filed." On the impeachment trial of John W. Robinson, the Kansas senate refused to allow the respondent to file a protest against its jurisdiction on the ground that the

3 Prescott's Impeachment Trial, Appendix, pp. 213-214; supra, § 94, infra, Appendix.

4 Cox' Impeachment Trial, p. 527; supra, § 93, note 24.

5 Botkin's Impeachment Trial, pp. 245-265; supra, § 93, note 23.

6 Hopkinson's Impeachment Trial, Nicholson's Impeachment Trial, Addison's Impeachment Trial, infra, Appendix.

7 Belknap's Impeachment Trial, pp. 530-542; supra, § 90. See, however, Bates' Trial, infra, Appendix.

lower house had adjourned without a day; but allowed the question to be raised by a motion that no action be taken.8 On Governor Warmoth's impeachment in Louisiana his triers refused to permit him to file exceptions to the jurisdiction upon the ground that neither they nor his impeachers were a lawful legislative house. Upon Bates' impeachment trial, the California senate refused to allow any objection to the jurisdiction before the respondent pleaded to the articles.10

§ 104. Replication.

After a plea or answer is prepared and filed, the next regular proceeding is for the House of Representatives to file a replication to the same in writing. In case of a plea, the replication may be in the nature of a demurrer.1 In the case of an answer, the replication usually denies the truth and validity of the defense therein stated and avers the truth and sufficiency of the charges and the readiness of the House to prove them at such time and place as shall be appointed for that purpose by the Senate. The replication must be authorized by the House of Representatives and cannot be filed by the managers on their own responsibility, at least in the absence of a statute authorizing such a practice. The practice in the United States upon that subject is the same as prevailed before the House of Lords; although on the trial of Lord Strafford, no replication was filed by the Commons, which, according to a learned commentator, was "a mark probably of contemptuous insult and disdain."3

§ 105. Proceedings on the Trial of an Impeachment.

A time is then assigned for the trial, and the Senate at that time or before adjusts the rules of its proceedings. The Senate of the United States has adopted twenty-five "standing Rules of Procedure and Practice in the Senate when sitting on the Trial of Impeachments."1 "The presiding officer is ordinarily the Vice

[blocks in formation]

President, or in his absence the President pro tempore of the Senate."2 When the President of the United States is tried, the Chief-Justice of the United States presides.3 Who should preside when the Vice-President is tried has not been determined; 4 probably the president pro tempore of the Senate. Chief-Justice Chase had doubts as to whether the rules of procedure previously adopted by the Senate were binding unless re-enacted after he had opened the session of the Court of Impeachment, and out of abundant caution the rules were then readopted.5 Such a course was considered needless on the subsequent trial of Belknap, where no new element was added to the Senate. The rules provide that "the presiding officer on the trial may rule all questions of evidence and incidental questions, which ruling shall stand as the judgment of the Senate, unless some member of the Senate shall ask that a formal vote be taken thereon, in which case it shall be submitted to the Senate for decision; or he may at his option, in the first instance, submit any such question to a vote of the members of the Senate. Upon all such questions the vote shall be without a division, unless the yeas and nays be demanded by one-fifth of the members present, when the same shall be taken."7

On President Johnson's trial the power of the Chief-Justice to do anything except put the question was disputed by Senator Charles Sumner and others; but the Senate voted that he had the full power given by the rule and Constitution to the president of the Senate and he exercised this throughout the trial, ruling preliminarily upon questions of evidence and practice, and in two such cases giving the casting vote; but did not vote on the final question which he put.8

2 Constitution, Article I, Section 3. 3 Ibid.

4 In Montana (Art. V, Sec. 6), North Dakota (Art. XIV, Sec. 195), South Dakota (Art. XVI, Sec. 2), and Michigan (Art. XII, Sec. 2), it is provided that when the governor or lieutenant-governor is tried, the ChiefJustice of the Supreme Court shall preside. In Georgia (Art. III, Sec. 5), Florida (Art. III, Sec. 29) and West Virginia (Art. V, Sec. 9); the president of the highest court always presides,

[blocks in formation]
« PreviousContinue »