Either House may recede from its amendment and agree to the bill; or recede from their disagreement to the amendment, and agree to the same absolutely, or with an amendment; for here the disagreement and receding destroy one another, and the subject stands as before the agreement. Elsynge, 23, 27; 9 Grey, 476.
But the House cannot recede from or insist on its own amendment, with an amendment; for the same reason that it cannot send to the other House an amendment to its own act after it has passed the act. They may modify an amendment from the other House by ingrafting an amendment on it, because they have never assented to it; but they cannot amend their own amendment, because they have, on the question, passed it in that form. 9 Grey, 363; 10 Grey, 240. In the Senate, March 29, 1798. Nor where one House has adhered to their amendment, and the other agrees with an amendment, can the first House depart from the form which they have fixed by an adherence.
In the case of a money bill, the Lords’ proposed amendments, become, by delay, confessedly necessary. The Commons, however, refused them, as infringing on their privilege as to money bills; but they offered themselves to add to the bill a proviso to the same effect, which had no coherence with the Lords’ amendments; and urged that it was an expedient warranted by precedent, and not unparliamentary in a case become impracticable, and irremediable in any other way. 3 Hats., 256, 266, 270, 271. But the Lords refused, and the bill was lost. 1 Chand., 288. A like case, 1 Chand., 311. So the Commons resolved that it is unparliamentary to strike out, at a conference, anything in a bill which hath been agreed and passed by both Houses. 6 Grey, 274; 1 Chand., 312.
A motion to amend an amendment from the other House takes precedence of a motion to agree or disagree.
A bill originating in one House is passed by the other with an amendment.
The originating House agrees to their amendment with an amendment. The other may agree to their amendment with an amendment, that being only in the 2d and not the 3d degree; for, as to the amending House, the first amendment with which they passed the bill is a part of its text; it is the only text they have agreed to. The amendment to that text by the originating House, therefore, is only in the 1st degree, and the amendment to that again by the amending House is only in the 2d, to wit, an amendment to an amendment, and so admissible. Just so, when, on a bill from the originating House, the other, at its second reading, makes an amendment; on the third reading this amendment is become the text of the bill, and if an amendment to it be moved, an amendment to that amendment may also be moved, as being only in the 2d degree.
It is on the occasion of amendments between the Houses that conferences are usually asked; but they may be asked in all cases of difference of opinion between the two Houses on matters depending between them. The request of a conference, however, must always be by the House which is possessed of the papers. 3 Hats., 31; 1 Grey, 425.
Conferences may be either simple or free. At a conference simply, written reasons are prepared by the House asking it, and they are read and delivered, without debate, to the managers of the other House at the conference; but are not then to be answered. 4 Grey, 144. The other House then, if satisfied, vote the reasons satisfactory, or say nothing; if not satisfied, they resolve them not satisfactory and ask a conference on the subject of the last conference, where they read and deliver, in like manner, written answers to those reasons. 3 Grey, 183. They are meant chiefly to record the justification of each House to the nation at large, and to posterity, and in proof that the miscarriage of a necessary measure is not imputable to them. 3 Grey, 255. At free conferences, the managers discuss, viva voce and freely, and interchange propositions for such modifications as may be made in a parliamentary way, and may bring the sense of the two Houses together. And each party reports in writing to their respective Houses the substance of what is said on both sides, and it is entered on their journals. 9 Grey, 220; 3 Hats., 280. This report cannot be amended or altered, as that of a committee may be. Journal Senate, May 24, 1796.
A conference may be asked, before the House asking it has come to a resolution of disagreement, insisting or adhering. 3 Hats., 269, 341. In which case the papers are not left with the other conferees, but are brought back to be the foundation of the vote to be given. And this is the most reasonable and respectful proceeding; for, as was urged by the Lords on a particular occasion, “it is held vain, and below the wisdom of Parliament, to reason or argue against fixed resolutions, and upon terms of impossibility to persuade.” 3 Hats., 226. So the Commons say, “an adherence is never delivered at a free conference, which implies debate.” 10 Grey, 137. And on another occasion the Lords made it an objection that the Commons had asked a free conference after they had made resolutions of adhering. It was then affirmed, however, on the part of the Commons, that nothing was more parliamentary than to proceed with free conferences after adhering, 3 Hats., 269, and we do in fact see instances of conference, or of free conference, asked after the resolution of disagreeing, 3 Hats., 251, 253, 260, 286, 291, 316, 349; of insisting, ib., 280, 296, 299, 319, 322, 355; of adhering, 269, 270, 283, 300; and even of a second or final adherence. 3 Hats., 270. And in all cases of conference asked after a vote of disagreement, &c., the conferees of the House asking it are to leave the papers with the conferees of the other; and in one case where they refused to receive them, they were left on the table in the conference chamber. ib., 271, 317, 323, 354; 10 Grey, 146.
After a free conference, the usage is to proceed with free conferences, and not to return again to a conference. 3 Hats., 270; 9 Grey, 229.
After a conference denied, a free conference may be asked. 1 Grey, 45.
When a conference is asked, the subject of it must be expressed, or the conference not agreed to. Ord. H Com., 89; Grey, 425; 7 Grey, 31. They are sometimes asked to inquire concerning an offense or default of a member of the other House. 6 Grey, 181; 1 Chand., 304. Or the failure of the other House to present to the King a bill passed by both Houses, 8 Grey, 302. Or on information received, and relating to the safety of the nation. 10 Grey, 171. Or when the methods of Parliament are thought by the one House to have been departed from by the other, a conference is asked to come to a right understanding thereon. 10 Grey, 148. So when an unparliamentary message has been sent, instead of answering it, they ask a conference. 3 Grey, 155. Formerly an address or articles of impeachment, or a bill with amendments, or a vote of the House, or concurrence in a vote, or a message from the King, were sometimes communicated by way of conference. 6 Grey, 128, 300, 387; 7 Grey, 80; 8 Grey, 210, 255; 1 Torbuck’s Deb., 278; 10 Grey, 293; 1 Chandler, 49, 287. But this is not the modern practice. 8 Grey, 255.
A conference has been asked after the first reading of a bill. 1 Grey, 194. This is a singular instance.
Messages between the Houses are to be sent only while both Houses are sitting. 3 Hats., 15. They are received during a debate without adjourning the debate. 3 Hats., 22.
[In Senate the messengers are introduced in any state of business, except, 1. While a question is being put. 2. While the yeas and nays are being called. 3. While the ballots are being counted. Rule 51. The first case is short; the second and third are cases where any interruption might occasion errors difficult to be corrected. So arranged June 15, 1798.]
In the House of Representatives, as in Parliament, if the House be in committee when a messenger attends, the Speaker takes the chair to receive the message, and then quits it to return into committee, without any question or interruption. 4 Grey, 226.
Messengers are not saluted by the members, but by the Speaker for the House. 2 Grey, 253, 274.
If messengers commit an error in delivering their message, they may be admitted or called in to correct their message. 4 Grey, 41. Accordingly, March 13, 1800, the Senate having made two amendments to a bill from the House of Representatives, their Secretary, by mistake, delivered one only; which being inadmissible by itself, that House disagreed, and notified the Senate of their disagreement. This produced a discovery of the mistake. The Secretary was sent to the other House to correct his mistake, the correction was received, and the two amendments acted on de novo.
As soon as the messenger, who has brought bills from the other House, has retired, the Speaker holds the bills in his hand, and acquaints the House “that the other House have by their messenger sent certain bills,” and then reads their titles, and delivers them to the Clerk, to be safely kept till they shall be called for to be read. Hakew., 178.
It is not the usage for one House to inform the other by what numbers a bill is passed. 10 Grey, 150. Yet they have sometimes recommended a bill, as of great importance, to the consideration of the House to which it is sent. 3 Hats., 25. Nor when they have rejected a bill from the other House, do they give notice of it; but it passes sub silentio, to prevent unbecoming altercations. 1 Blackst., 183.
[But in Congress the rejection is notified by message to the House in which the bill originated.]
A question is never asked by the one House of the other by way of message, but only at a conference; for this is an interrogatory, not a message. 3 Grey, 151, 181.
When a bill is sent by one House to the other, and is neglected, they may send a message to remind them of it. 3 Hats., 25; 5 Grey, 154. But if it be mere inattention, it is better to have it done informally by communications between the Speakers or members of the two Houses.
Where the subject of a message is of a nature that it can properly be communicated to both Houses of Parliament, it is expected that this communication should be made to both on the same day. But where a message was accompanied with an original declaration, signed by the party to which the message referred, its being sent to one House was not noticed by the other, because the declaration, being original, could not possibly be sent to both Houses at the same time. 2 Hats., 260, 261, 262.
The King having sent original letters to the Commons, afterward desires they may be returned, that he may communicate them to the Lords. 1 Chandler, 303.
The House which has received a bill and passed it may present it for the King’s assent, and ought to do it, though they have not by message notified to the other their passage of it. Yet the notifying by message is a form which ought to be observed between the two Houses from motives of respect and good understanding. 2 Hats., 242. Were the bill to be withheld from being presented to the King, it would be an infringement of the rules of Parliament. Ib.
[When a bill has passed both Houses of Congress, the House last acting on it notifies its passage to the other, and delivers the bill to the Joint Committee of Enrolment, who see that it is truly enrolled in parchment]. When the bill is enrolled, it is not to be written in paragraphs, but solidly, and all of a piece, that the blanks between the paragraphs may not give room for forgery. 9 Grey, 143. [It is then put into the hands of the Clerk of the House of Representatives to have it signed by the Speaker. The Clerk then brings it by way of message to the Senate to be signed by their President. The Secretary of the Senate returns it to the Committee of Enrolment, who present it to the President of the United States. If he approve, he signs, and deposits it among the rolls in the office of the Secretary of State, and notifies by message the House in which it originated that he has approved and signed it; of which that House informs the other by message. If the President disapproves, he is to return it, with his objections, to that House in which it shall have originated; who are to enter the objections at large on their journal, and proceed to reconsider it. If, after such reconsideration, two-thirds of that House shall agree to pass the bill, it shall be sent, together with the President’s objections, to the other House, by which it shall likewise be reconsidered; and if approved by two-thirds of that House, it shall become a law. If any bill shall not be returned by the President within ten days (Sundays excepted) after it shall have been presented to him, the same shall be a law, in like manner after he had signed it, unless the Congress, by their adjournment, prevent its return; in which case it shall not be a law. Const., I, 7.]
[Every order, resolution, or vote, to which the concurrence of the Senate and House of Representatives may be necessary, (except on a question of adjournment), shall be presented to the President of the United States, and, before the same shall take effect, shall be approved by him; or, being disapproved by him, shall be repassed by two-thirds of the Senate and House of Representatives, according to the rules and limitations prescribed in the case of a bill. Const., I, 7.]
[Each House shall keep a journal of its proceedings, and from time to time publish the same, excepting such parts as may, in their judgment, require secrecy. Const., I, 5.]
[The proceedings of the Senate, when not acting as in a Committee of the Whole, shall be entered on the journals as concisely as possible, care being taken to detail a true account of the proceedings. Every vote of the Senate shall be entered on the journals, and a brief statement of the contents of each petition, memorial, or paper presented to the Senate, be also inserted on the journal. Rule 5.]
[The titles of bills, and such parts thereof, only, as shall be affected by proposed amendments, shall be inserted on the journals. Rule 5.]
If a question is interrupted by a vote to adjourn, or to proceed to the orders of the day, the original question is never printed in the journal, it never having been a vote, nor introductory to any vote; but when suppressed by the previous question, the first question must be stated, in order to introduce and make intelligible the second. 2 Hats., 83.
So also when a question is postponed, adjourned, or laid on the table, the original question, though not yet a vote, must be expressed in the journals; because it makes part of the vote of postponement, adjourning, or laying it on the table.
Where amendments are made to a question, those amendments are not printed in the journals, separated from the question; but only the question as finally agreed to by the House. The rule of entering in the journals only what the House has agreed to, is founded in great prudence and good sense; as there may be many questions proposed, which it may be improper to publish to the world in the form in which they are made. 2 Hats., 85.
[In both Houses of Congress, all questions whereon the yeas and nays are desired by one-fifth of the members present, whether decided affirmatively or negatively, must be entered in the journals. Const., I, 5.]
The first order for printing the votes of the House of Commons was October 30, 1685. 1 Chandler, 387.
Some judges have been of opinion that the journals of the House of Commons are no records, but only remembrances. But this is not law. Hob., 110, 111; Lex Parl., 114, 115; Jour. H. C., Mar. 17, 1592; Hale, Parl., 105. For the Lords in their House have power of judicature, the Commons in their House have power of judicature, and both Houses together have power of judicature; and the book of the Clerk of the House of Commons is a record, as is affirmed by act of Parl., 6 H. 8, c. 16; 4 Inst., 23, 24; and every member of the House of Commons hath a judicial place. 4 Inst., 15. As records they are open to every person, and a printed vote of either House is sufficient ground for the other to notice it. Either may appoint a committee to inspect the journals of the other, and report what has been done by the other in any particular case. 2 Hats., 261; 3 Hats., 27–30. Every member has a right to see the journals and to take and publish votes from them. Being a record, every one may see and publish them. 6 Grey, 118, 119.
On information of a mis-entry or omission of an entry in the journal, a committee may be appointed to examine and rectify it, and report it to the House. 2 Hats., 194, 1195.
The two Houses of Parliament have the sole, separate, and independent power of adjourning each their respective Houses. The King has no authority to adjourn them; he can only signify his desire, and it is in the wisdom and prudence of either House to comply with his requisition, or not, as they see fitting. 2 Hats., 232; 1 Blackst., 186; 5 Grey, 122.
[By the Constitution of the United States, a smaller number than a majority may adjourn from day to day. I, 5. But “neither House, during the Session of Congress, shall, without the consent of the other, adjourn for more than three days, nor to any other place than that in which the two Houses shall be sitting.” I, 5. And in case of disagreement between them, with respect to the time of adjournment, the President may adjourn them to such time as he shall think proper. Const., II, 3.]
A motion to adjourn, simply, cannot be amended, as by adding “to a particular day;” but must be put simply “that this House do now adjourn;” and if carried in the affirmative, it is adjourned to the next sitting day, unless it has come to a previous resolution, “that at its rising it will adjourn to a particular day,” and then the House is adjourned to that day. 2 Hats., 82.
Where it is convenient that the business of the House be suspended for a short time, as for a conference presently to be held, &c., it adjourns during pleasure; 2 Hats., 305; or for a quarter of an hour. 5 Grey, 331.
If a question be put for adjournment, it is no adjournment till the Speaker pronounces it. 5 Grey, 137. And from courtesy and respect, no member leaves his place till the Speaker has passed on.
Parliament have three modes of separation, to wit: by adjournment, by prorogation or dissolution by the King, or by the efflux of the term for which they were elected. Prorogation or dissolution constitutes there what is called a session; provided some act was passed. In this case all matters depending before them are discontinued, and at their next meeting are to be taken up de novo, if taken up at all. 1 Blackst., 186. Adjournment, which is by themselves, is no more than a continuance of the session from one day to another, or for a fortnight, a month, &c., ad libitum. All matters depending remain in statu quo, and when they meet again, be the term ever so distant, are resumed, without any fresh commencement, at the point at which they were left. 1 Lev., 165; Lex. Parl., c. 2; 1 Ro. Rep., 29; 4 Inst., 7, 27, 28; Hutt., 61; 1 Mod., 252; Ruffh. Jac., L. Dict. Parliament; 1 Blackst., 186. Their whole session is considered in law but as one day, and has relation to the first day thereof. Bro. Abr. Parliament, 86.
Committees may be appointed to sit during a recess by adjournment, but not by prorogation. 5 Grey, 374; 9 Grey, 350; 1 Chandler, 50. Neither House can continue any portion of itself in any parliamentary function beyond the end of the session, without the consent of the other two branches. When done, it is by a bill constituting them commissioners for the particular purpose.
[Congress separate in two ways only, to wit: by adjournment, or dissolution by the efflux of their time. What, then, constitutes a session with them? A dissolution certainly closes one session, and the meeting of the new Congress begins another. The Constitution authorizes the President “on extraordinary occasions, to convene both Houses, or either of them.” I, 3. If convened by the President’s proclamation, this must begin a new session, and of course determine the preceding one to have been a session. So if it meets under the clause of the Constitution, which says, “the Congress shall assemble at least once in every year, and such meeting shall be on the first Monday in December, unless they shall by law appoint a different day.” I, 4. This must begin a new session; for even if the last adjournment was to this day, the act of adjournment is merged in the higher authority of the Constitution, and the meeting will be under that, and not under their adjournment. So far we have fixed landmarks for determining sessions. In other cases it is declared by the joint vote authorizing the President of the Senate and the Speaker to close the session on a fixed day, which is usually in the following form: “Resolved by the Senate and House of Representatives, that the President of the Senate and the Speaker of the House of Representatives be authorized to close the present session by adjourning their respective Houses on the —— day of ——.”]
When it was said above that all matters depending before Parliament were discontinued by the determination of the session, it was not meant for judiciary cases depending before the House of Lords, such as impeachments, appeals, and writs of error. These stand continued, of course, to the next session. Raym., 120, 381; Ruffh. Jac., L. D. Parliament.
[Impeachments stand, in like manner, continued before the Senate of the United States.]
[The President of the United States has power, by and with the advice and consent of the Senate, to make treaties, provided two-thirds of the Senators present concur. Const., II, 2.]
[Resolved, that all confidential communications made by the President of the United States to the Senate shall be, by the members thereof, kept secret; and that all treaties which may hereafter be laid before the Senate shall also be kept secret, until the Senate shall, by their resolution, take off the injunction of secrecy. Rule 67.[103]]
[Treaties are legislative acts. A treaty is the law of the land. It differs from other laws only as it must have the consent of a foreign nation, being but a contract with respect to that nation. In all countries, I believe, except England, treaties are made by the legislative power; and there, also, if they touch the laws of the land, they must be approved by Parliament. Ware v. Hylton, 3 Dallas’s Rep., 223. It is acknowledged, for instance, that the King of Great Britain cannot by a treaty make a citizen of an alien. Vattel, b. 1, c. 19, sec. 214. An act of Parliament was necessary to validate the American treaty of 1783. And abundant examples of such acts can be cited. In the case of the treaty of Utrecht, in 1712, the commercial articles required the concurrence of Parliament; but a bill brought in for that purpose was rejected. France, the other contracting party, suffered these articles, in practice, to be not insisted on, and adhered to the rest of the treaty. 4 Russell’s Hist. Mod. Europe, 457; 2 Smollet, 242, 246.]
[By the Constitution of the United States this department of legislation is confined to two branches only of the ordinary legislature—the President originating and the Senate having a negative. To what subjects this power extends has not been defined in detail by the Constitution; nor are we entirely agreed among ourselves. 1. It is admitted that it must concern the foreign nation party to the contract, or it would be a mere nullity, res inter alias acta. 2. By the general power to make treaties, the Constitution must have intended to comprehend only those subjects which are usually regulated by treaty, and cannot be otherwise regulated. 3. It must have meant to except out of these the rights reserved to the States; for surely the President and Senate cannot do by treaty what the whole Government is interdicted from doing in any way. 4. And also to except those subjects of legislation in which it gave a participation to the House of Representatives. This last exception is denied by some on the ground that it would leave very little matter for the treaty power to work on. The less the better, say others. The Constitution thought it wise to restrain the Executive and Senate from entangling 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 are within their participation is no more inconvenient than to the Senate. But the ground of this exception is denied as unfounded. For examine, 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 for the Executive, when it communicates a treaty to the Senate for their ratification, to communicate also the correspondence of the negotiators. 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 that year between the United States and France, with the report of the negotiations by 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 to propose amendments thereto, either by inserting or by 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 requisite to decide affirmatively. And, when through the whole, the proceedings shall be stated to the House, and questions be again severally put thereon, 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 69.[104]]
[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 a reconsideration shall be decided by a majority of votes. Rule 20.]
[The House of Representatives shall have the sole power of impeachment. Const., 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. Const., 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. Const., II, 4.]
[The trial of crimes, except in cases of impeachment, shall be by jury. Const., 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. 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., 257; 9 Seld., 1656.
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 appear, and the case be capital, he answers in custody; though not if the accusations 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 find 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.
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.
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.
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 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., 125. 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.
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.
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 notion 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 judgment 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’ Jour., May 15, 1791; 2 Wood., 618.