Court Of Impeachment And War Crimes: IMPEACHMENT: THE JEFFERSON MANUAL

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for the Use of the Senate of the United States.





Edited with an Introduction
by Wilbur Samuel Howell
Published without copyright by Princeton University Press


THE House of Representatives shall have the sole power of impeachment.
Constitution United States, I. 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 further 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. Constitution, I. 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. Constitution, II. 4.

The trial of crimes, except in cases of impeachment, shall be by jury. Constitution, III. 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.

Jurisdiction. The Lords cannot impeach any to themselves, nor join in the accusation, because they are the judges. Seld. Judic. in Parl. 12, 63. (A work of doubtful authority.) 4 Hats. 153, 186. 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 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. 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 601, 576. 3 Seld. 1610, 1619, 1641. 4 Blacks. 257. 3 Seld. 1604, 1618, 9, 1656. 4 Hats. 200. et passim contra.

Accusation. The Commons, as the grand inquest of the nation, become 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 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 Wood. 602, 605. Lords' Journ. 3 June, 1701. 1 Wms. 616. 6 Grey 324.

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.

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.

Appearance. 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. 4 Hats. 176, 185.
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 apperance may be in person, or he may answer in writing, or by attorney. 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. 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 ... 5.

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 Lord's 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.

Replication, Rejoinder, &c. There may be a replication, rejoinder, &c. Seld. Jud. 114. 8 Grey's Deb. 233. Sachev. Tr. 15. Journ. H. of Commons, 6 March, 1640 ... 1.

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.

Jury. In the case of Alice Pierce, 1 P. 2. a jury was impanelled 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. Ib. 148.

The judgment was a forfeiture of all her lands and goods. Ib. 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 impanelled, 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 impanelled. Ib. 124. The Ld. Berkeley, 6 E. 3. was arraigned for the murder of E. 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. Ib. 125. But 4 Hats. 73, says he was a Commoner, and that there was no waiver of privilege. 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. Ib. 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.

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. Rush. 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, ib. 158, 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. Sold. Jud. 167. 2 Wood. 612.

Judgment. Judgments in Parliament for death have been strictly guided per legem terræ, which they cannot 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 prevail. For impeachments are not framed to alter the law, but to carry it into more effectual execution against two 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 in capital judgments, (but 2 Wood. 614, contra) but not in misdemeanors. Seld. Jud. 136.

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. Lords' Journ. May 16, 1791. 2 Wood. 618.


1. Ord. of the H. of Com. 1663. July 16.
2. Elsynge 217. 1. Hats. 21.
3. 2. Stra. 989.
4. In the case of a division of the question, and a decision against striking out, I advance doubtingly the opinion here expressed. I find no authority either way; and I know it may be viewed under a different aspect. It may be thought that having decided separately not to strike out the passage, the same question for striking out cannot be put over again, though with a view to a different insertion.

Still I think it more reasonable and convenient, to consider the striking out and insertion, as forming one proposition; but should readily yield to any evidence that the contrary is the practice in Parliament.

5. Noes 9 Grey 365.
6. The treaty of the Pardo between Spain & G.B. in 1739, being disapproved by parliament, was not ratified. In consequence whereof the war it was intended to prevent took place. Observns. of France on Memorial of England. pa. 107.

Text Version Home Rendered into HTML and text by Jon Roland of the Constitution Society

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