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[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. Id. 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. Id. 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 Blackst. 257. 3 Seld. 1604, 1618. 9, 1656.
Accusation. The Commons, as the grand inquest of the nation, become suitors for penal justice. 2 Woodd. 597. 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 misdemeanour 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. i Rushw. 268. Fost. 232. i Clar. Hist. of the Reb. 379. On a misdemeanour, his appearance may be in person, or he may answer in writing, or by attorney. Seld. Jud. 100. The general rule on an accusation for a misdemeanour, 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. Id. 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 misdemeanours the party has a right to counsel by the common law, but not in capital
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 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. Jour. 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 empannelled 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 misdemeanour only, as the lords spiritual sat in the case, which they do on misdemeanours, 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 misdemeanours: 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 there no jury ought to be empannelled. 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, and 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. Rushu. Tr. of Straff. 37. Com. Journ. 4 Feb. 1709–10. 2 Woodd. 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 Woodd. 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 too powerful delinquents. The judgment, therefore, is to be such as is warranted by legal principles or precedents. 6 Sta. Tr. 14. 2 Wondd. 611. The chancellor gives judgment in misdemeanours; 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 Woodd. 613. In misdemeanours the greatest corporal punishment hath been imprisonment. Seld. Jud. 184. The king's assent is necessary in capital judgments, (but 2 Woodd. 614, contra) but not in misdemeanours. 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 16, 1791. 2 Woodd. 618.