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tangling and embroiling our affairs with those of Europe. Besides, as the negotiations are carried on by the Executive alone, the subjecting to the ratification of the Representatives such articles as are within their participation, is no more inconvenient than to the Senate. But the ground of this exemption is denied as unfounded. For example, e. g. the treaty of commerce with France ; and it will be found that out of thirty-one articles, there are not more than small portions of two or three of them which would not still remain as subjects of treaties, untouched by these exceptions.
Treaties being declared, equally with the laws of the United States, to be the supreme law of the land, it is understood that an act of the Legislature alone can declare them infringed and rescinded. This was accordingly the process adopted in the case of France, in 1798.
It has been the usage of the Executive, when it communicates a treaty to the Sonate for their ratification, to communicate also the correspondence of the negotiations. This having been omitted in the case of the Prussian treaty, was asked by a vote of the House, of February 12, 1800, and was obtained. And in December, 1800, the Convention of that year between the United States and France, with the report of the negotiations with the Envoys, but not their instructions, being laid before the Senate, the instructions were asked for, and communicated by the President.
The mode of voting on questions of ratification, is by nominal call.
Whenever a treaty shall be laid before the Senate for ratification, it shall be read a first time for information only; when no motion to reject, ratify, or modify the whole or any part, shall be received.
Its second reading shall be for consideration; and on a subsequent day, when it shall be taken up as in a committee of the whole, and every one shall be free to move a question on any particular article in this form : “ Will the Senate advise and consent to the ratification of this article," or propose amendments thereto, either by inserting or leaving out words, in which last case the question shall be, “ Shall the words stand part of the article ?" And in every of the said cases, the concurrence of two-thirds of the Senators present shall be required to decide affirmatively. And when through the wholc, the proceedings shall be stated to the House, and questions be again severally put ihereon for confirmation, or new ones proposed, requiring in like manner a concurrence of two-thirds for whatever is retained or inserted.
The votes so confirmed shall, by the House or a committee thereof, be reduced into the form of a ratification with or without modifications, as may have been decided, and shall be proposed on a subsequent day, when every one shall again be free to move amendments, either by inserting or leaving out words; in which last case the question shall be, “Shall the words stand part of the resolution ?” And in both cases the concurrence of two-thirds shall be requisite to carry the affirmative, as well as on the final question to advise and consent to the ratification in the form agreed to.-Rule 37.
When any question may have been decided by the Senate, in which two-thirds of the members present are necessary to carry the affirmative, any member who voted on that side which prevailed in the question, may be at liberty to move for a reconsideration; and a motion for reconsideration shall be decided by a majority of votes.-Kule 42.
The House of Representatives shall have the sole power of impeachment.Const. U. S., Art. I., Sec. 3.
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 farther 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.Const. Ü. S., Art, I., Sec. 3.
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.-Const. U. S., Art. II., Sec. 4.
The trial of crimes, except in cases of impeachment, shall be by jury.-Const. U. S., Art. III., Sec. 2.
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.
The Lords cannot impeach any to themselves, nor join in the accusation, because they are judges.—Seld. Judic. in Parl. 12, 63. Nor can they proceed against a commoner, but on complaint of the Commons. ---Id. 84. The Lords may not, by the law, try a commoner for capital offence, 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 offence ; 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.-Id. 6, 7. But Wooddeson denies that a commoner can 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, 6, 7—2 Wooddeson, 601,576. 3 Seld. 1610, 1619, 1641-4 Black. 257—3 Seld. 1604, 1618, 9, 1656.
The Commons, as the grand inquest of the nation, become suitors for penal justice.—2 Woodd. 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 person 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 Woodd. 602, 605-Lord's Jour. 3 June, 1701–1 Wms. 616—6 Grey, 324.
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.
The accusation (article) 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— Woodd. 602, 605—Lord's Jour. 3 June, 1701-1 Wms. 616.
If he appears, 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.—1 Seld. Jud. 100. The general rule on an 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.—Seld. Jud. 101. If previously committed by the Commons, he answers as a prisoner. But this may be called in some sort, judicium parium suorum-Seld. Jud. In misdemeanors, the party has a right to counsel by the common law; but not in capital cases.—Seld. Jud. 102.-5.
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 Lord's Jour. 13 Nov. 1643-2 Woodd. 607. But he cannot plead a pardon in bar to the impeachment.—2 Woodd. 618 -2 St. Tr. 735.
REPLICATION, REJOINDER, ETC. There may be a replication, rejoinder, &c., Seld. Jud. 11448 Grey's Deb. 233-Sach. Tr. 15—Jour. H. of Commons, 6 March, 1640, 1.
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 the case of Alice Pierce, 1 R. 2, a jury was empann elled for her trial before a committee.-Seld. Jud. 123. But this was on a complaint, not an impeachment by the Commons.—Seld. Jud. 163. It must have also been for a misdemeanor only, as the Lords Spiritual sat in the case, which they do on misdemeanors, but not in capital cases.—Seld. Jud. 148. The judgment was a forfeiture of all her lands and goods.--Seld. Jud. 188. This, Seldon 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 empannelled ; and he adds that it is not so on impeachment by the Commons; for they are in loco proprio, and here no jury ought to be empannelled.— Id. 124. The Lord Berkley, 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. 125. In one, i 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 Seldon 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.
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. Tr. of Straff. 37—Com. Journ. 4 Feb. 1709, 10—2 Wood. 614. And judgment is not to be 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 cases capital-Id. 58, 159, as well as not capital, 162. 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.