    [Constitution, Jefferson's Manual, and the Rules of the House of Representatives, 112th Congress]
    [112nd Congress]
    [House Document 111-157]
    [Jeffersons Manual of ParliamentaryPractice]
    [Pages 313-330]
    [From the U.S. Government Publishing Office, www.gpo.gov]

    * * * * *
                             sec. liii--impeachment

    Sec. 601. Jurisdiction of Lords and Commons as
    to impeachments.

      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:

    [[Page 314]]

    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., 25; 9 Seld., 1656; 73 Seld., 1604-18.
      Jurisdiction. The Lords can not 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.

    Sec. 602. Parliamentary law as to accusation
    in impeachment.

      Accusation. The  Commons, as the grand inquest of the nation, becomes
    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.

    [[Page 315]]

    mittee of the House (III, 2399,
    2444). In the 93d Congress, the Vice President sought to initiate an
    investigation by the House of charges against him of possibly
    impeachable offenses. The Speaker and the House took no action on the
    request because the matter was pending in the courts and the offenses
    did not relate to activities during the Vice President's term of office
    (Sept. 25, 1973, p. 31368; III, 2510 (wherein the Committee on the
    Judiciary, to which the matter had been referred by privileged
    resolution, reported that the Vice President could not be impeached for
    acts or omissions committed before his term of office)). On the other
    hand, in 1826 the Vice President's request that the House investigate
    charges against his prior official conduct as Secretary of War was
    referred, on motion, to a select committee (III, 1736). On September 9,
    1998, an independent counsel transmitted to the House under 28 U.S.C.
    595(c) a communication containing evidence of alleged impeachable
    offenses by the President. The House adopted a privileged resolution
    reported by the Committee on Rules referring the communication to the
    Committee on the Judiciary, restricting Members' access to the
    communication, and restricting access to committee meetings and hearings
    on the communication (H. Res. 525, Sept. 11, 1998, p. 20020). Later, the
    House adopted a privileged resolution reported by the Committee on the
    Judiciary authorizing an impeachment inquiry by that committee (H. Res.
    581, Oct. 8, 1998, p. 24679). The authority to appoint an independent
    counsel under 28 U.S.C. 573 expired on June 30, 1999.

    Sec. 603. Inception of impeachment proceedings in the
    House.

      In the  House various events have been credited with setting an
    impeachment in motion: charges made on the floor on the responsibility
    of a Member or Delegate (II, 1303; III, 2342, 2400, 2469; VI, 525, 526,
    528, 535, 536); charges preferred by a memorial, which is usually
    referred to a committee for examination (III, 2364, 2491, 2494, 2496,
    2499, 2515; VI, 543); a resolution introduced by a Member and referred
    to a committee (Apr. 15, 1970, p. 11941; Oct. 23, 1973, p. 34873); a
    message from the President (III, 2294, 2319; VI, 498); charges
    transmitted from the legislature of a State (III, 2469) or territory
    (III, 2487) or from a grand jury (III, 2488); or facts developed and
    reported by an investigating com

    [[Page 316]]

    question
    of privilege (Deschler, ch. 14, Sec. 1.3). Under 28 U.S.C. 596(a) an
    independent counsel appointed to investigate the President may be
    impeached; and a resolution impeaching such independent counsel
    constitutes a question of the privileges of the House under rule IX
    (Sept. 23, 1998, p. 21560).

    Sec. 604. A proposition to impeach a question of
    privilege.

      A direct  proposition to impeach is a question of high privilege in
    the House and at once supersedes business otherwise in order under the
    rules governing the order of business (III, 2045-2048, 2051, 2398; VI,
    468, 469; July 22, 1986, p. 17294; Aug. 3, 1988, p. 20206; May 10, 1989,
    p. 8814; Sept. 23, 1998, pp. 21560-62; Nov. 6, 2007, p. 29817; June 10,
    2008, p. _; July 15, 2008, p. _; see Deschler, ch. 14, Sec. 8). It may
    not even be superseded by an election case, which is also a matter of
    high privilege (III, 2581). It does not lose its privilege from the fact
    that a similar proposition has been made at a previous time during the
    same session of Congress (III, 2408; July 15, 2008, _ (see June 10,
    2008, _)), previous action of the House not affecting it (III, 2053). As
    such, a report of the Committee on the Judiciary accompanying an
    impeachment resolution is filed from the floor as privileged (Dec. 17,
    1998, p. 27819), and is called up as privileged (Dec. 18, 1998, p.
    27828). The addition of new articles of impeachment offered by the
    managers but not reported by committee are also privileged (III, 2401),
    as is a proposition to refer to committee the papers and testimony in an
    impeachment of the preceding Congress (V, 7261). To a privileged
    resolution of impeachment, an amendment proposing instead censure, which
    is not privileged, was held not germane (Dec. 19, 1998, p. 28107). On
    several occasions the Committee on the Judiciary, having been referred a
    question of impeachment, reported a recommendation that impeachment was
    not warranted and, thereafter, called up the report as a

      Propositions relating to an impeachment already made also are
    privileged (III, 2400, 2402, 2410; July 22, 1986, p. 17294; Dec. 2,
    1987, p. 33720; Aug. 3, 1988, p. 20206), such as resolutions providing
    for selection of managers of an impeachment (VI, 517; Dec. 19, 1998, p.
    28112), proposing abatement of impeachment proceedings (VI, 514),
    reappointing managers for impeachment proceedings continued in the
    Senate from the previous Congress (Jan. 3, 1989, p. 84; Jan. 6, 1999, p.
    14), empowering managers to hire special legal and clerical personnel
    and providing for their pay, and to carry out other responsibilities
    (Jan. 3, 1989, p. 84; Dec. 19, 1998, p. 28112; Jan. 6, 1999, p. 240),
    and replacing an excused manager (Feb. 7, 1989, p. 1726); but a
    resolution simply proposing an investigation, even though impeachment
    may be a possible consequence, is not privileged (III, 2050, 2546; VI,
    463).

      Where a resolution of investigation positively proposes impeachment or
    suggests that end, it has been admitted as of privilege (III, 2051,
    2052, 2401, 2402), such as a resolution reported by the Committee on the
    Judiciary authorizing an impeachment inquiry by that committee and
    investing the committee with special investigative authorities to
    facilitate the inquiry (III, 2029; VI, 498, 528, 549; Deschler, ch. 14,
    Sec. Sec. 5.8, 6.2; H. Res. 581, Oct. 8, 1998, p. 24679). A committee to
    which has been referred privileged resolutions for the impeachment of an
    officer may call up as privileged resolutions incidental to
    consideration of the impeachment question, including conferral of
    subpoena authority and funding of the investigation from the contingent
    fund (now referred to as ``applicable accounts of the House described in
    clause 1(k)(1) of rule X'') (VI, 549; Feb. 6, 1974, p. 2349). Similarly,
    a resolution authorizing depositions by committee counsel in an
    impeachment inquiry is privileged under rule IX as incidental to
    impeachment (Speaker Wright, Oct. 3, 1988, p. 27781).

    [[Page 317]]

    ward impeachment
    have been referred to the Committee on Rules (Oct. 23, 1973, p. 34873).
    Upon receipt of a communication from an independent counsel transmitting
    to the House under 28 U.S.C. 595(c) a communication containing evidence
    of alleged impeachable offenses by the President, the House adopted a
    resolution reported by the Committee on Rules referring the
    communication to the Committee on the Judiciary to conduct a review (H.
    Res. 525, 106th Cong., Sept. 11, 1998, p. 20020). Later, the House
    adopted a privileged resolution reported by the Committee on the
    Judiciary authorizing an impeachment inquiry by that committee (H. Res.
    581, Oct. 8, 1998, pp. 24679, 24735).

    Sec. 605. Investigation of impeachment
    charges.

      The impeachment  having been made on the floor by a Member (III, 2342, 2400;
    VI, 525, 526, 528, 535, 536), or charges suggesting impeachment having
    been made by memorial (III, 2495, 2516, 2520; VI, 552), or even
    appearing through common fame (III, 2385, 2506), the House has at times
    ordered an investigation at once. At other times it has refrained from
    ordering investigation until the charges had been examined by a
    committee (III, 2364, 2488, 2491, 2492, 2494, 2504, 2513) or has
    referred to committee an impeachment resolution raised as a question of
    privilege (Nov. 6, 2007, p. 29820; June 11, 2008, p. _). Under the later
    practice, resolutions introduced through the hopper that directly call
    for the impeachment of an officer have been referred to the Committee on
    the Judiciary, but resolutions calling for an investigation by that
    committee or by a select committee with a view to

    Sec. 606. Procedure of committee in
    investigating.

      The House has  always examined the charges by its own committee before
    it has voted to impeach (III, 2294, 2487, 2501). This committee has
    sometimes been a select committee (III, 2342, 2487, 2494), sometimes a
    standing committee (III, 2400, 2409). In some instances the committee
    has made its inquiry ex parte (III, 2319, 2343, 2366, 2385, 2403, 2496,
    2511); but in the later practice the sentiment of committees has been in
    favor of permitting the accused to explain, present witnesses, cross-
    examine (III, 2445, 2471, 2518), and be represented by counsel (III,
    2470, 2501, 2511, 2516; 93d Cong., Aug. 20, 1974, p. 29219; H. Rept.
    105-830, Dec. 16, 1998). The Committee on the Judiciary having been
    directed by the House to investigate whether sufficient grounds existed
    for the impeachment of President Nixon, and the President having
    resigned following the decision of that committee to recommend his
    impeachment to the House, the chair of the committee submitted from the
    floor as privileged the committee's report containing the articles of
    impeachment approved by the committee but without an accompanying
    resolution of impeachment. The House thereupon adopted a resolution (1)
    taking notice of the committee's action on a resolution and Articles of
    Impeachment and of the President's resignation; (2) accepting the report
    and authorizing its printing, with additional views; and (3) commending
    the chair and members of the committee for their efforts (Aug. 20, 1974,
    p. 29361).

    Sec. 606a. Procedure of House in
    considering.

      During the  pendency of an impeachment resolution, remarks in debate
    may include references to personal misconduct on the part of the
    President but may not include language generally abusive toward the
    President and may not include comparisons to the personal conduct of
    sitting Members of the House or Senate (Dec. 18, 1998, p. 27829). A
    resolution setting forth separate articles of impeachment may be divided
    among the articles (e.g., Dec. 19, 1998, p. 28110; Mar. 11, 2010, p. _).

    [[Page 318]]

    (July 22, 1986, p. 17306) or 13 (Dec. 19, 1998,
    p. 28112). These Members in two notable cases represented the majority
    party alone (e.g., Dec. 19, 1998, p. 28112), but ordinarily include
    representation of the minority party (III, 2445, 2472, 2505). Under
    early practice the House elected managers by ballot (III, 2300, 2323,
    2345, 2368, 2417). In two instances the Speaker appointed the managers
    on behalf of the House pursuant to an order of the House (III, 2388,
    2475). Since 1912 the House has adopted a resolution appointing
    managers. In the later practice the House considers together the
    resolution and articles of impeachment (VI, 499, 500, 514; Mar. 2, 1936,
    pp. 3067-91) and following their adoption adopts resolutions electing
    managers to present the articles before the Senate, notifying the Senate
    of the adoption of articles and election of managers, and authorizing
    the managers to prepare for and to conduct the trial in the Senate (VI,
    500, 514, 517; Mar. 6, 1936, pp. 3393, 3394; July 22, 1986, p. 17306;
    Aug. 3, 1988, p. 20206). These privileged incidental resolutions may be
    merged into a single indivisible privileged resolution (H. Res. 614,
    Dec. 19, 1998, p. 28112; H. Res. 10, Jan. 6, 1999, p. 240).

    Sec. 607. Impeachment carried to the
    Senate.

      Its committee  on investigation having reported, the House may vote the
    impeachment (III, 2367, 2412; VI, 500, 514; Mar. 2, 1936, pp. 3067-91),
    and, after having notified the Senate by message (III, 2413, 2446), may
    direct the impeachment to be presented at the bar of the Senate by a
    single Member (III, 2294), or by two (III, 2319, 2343, 2367), or five
    (III, 2445) or nine

    Sec. 608. Impeachment process in the
    Senate.

      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.

    Sec. 608a. Senate impeachment proceedings against
    President Clinton.

      Under  an order of the Senate, the Secretary of the Senate
    informed the House and the Chief Justice that it was ready to receive
    the House managers for the purpose of exhibiting articles of impeachment
    against President Clinton (Jan. 6, 1999, p. 37). At the appointed hour
    the House managers were announced and escorted into the Senate chamber
    by the Senate Sergeant-at-Arms (Jan. 7, 1999, p. 272). The managers
    presented the articles of impeachment by reading two resolutions as
    follows: (1) the appointment of managers (H. Res. 10, Jan. 7, 1999, p.
    272); and (2) the two articles of impeachment (H. Res. 611, Jan. 7,
    1999, p. 273). Thereupon, the managers requested the Senate take order
    for trial (Jan. 7, 1999, p. 273).

    [[Page 319]]

    to or produced by the House
    Judiciary Committee (the resolution further directed that the record be
    admitted into evidence, printed, and made available to Senators); (3)
    the filing of a trial brief by the House; (4) the filing of any motions
    permitted under the rules of impeachment (except for motions to subpoena
    witnesses or to present evidence not in the record); (5) the filing of
    responses to any such motions; (6) the filing of a trial brief by the
    President; (7) the filing of a rebuttal brief by the House; and (8)
    arguments on such motions. The resolution then directed the Senate to
    dispose of any such motions and established a further timetable for (1)
    the House to make its presentation in support of the articles of
    impeachment (such argument to be confined to the record); (2) the
    President to make his presentation in opposition to the articles of
    impeachment; and (3) the Senators to question the parties. The
    resolution directed the Senate, upon completion of that phase of the
    proceedings, to dispose of a motion to dismiss, and if defeated, to
    dispose of a motion to subpoena witnesses or to present any evidence not
    in the record. The resolution further provided that, if the motion to
    call witnesses were adopted, the witnesses would first be deposed and
    then the Senate would decide which witnesses should testify. It further
    provided that if the Senate failed to dismiss the case, the parties
    would proceed to present evidence. Finally, the resolution directed the
    Senate to vote on each article of impeachment at the conclusion of the
    deliberations. The evidentiary record (summons, answer, replies, and
    trial briefs) was printed in the Record by unanimous consent (Jan. 14,
    1999, p. 357). Pursuant to the previous order of the Senate (S. Res. 16,
    Jan. 8, 1999, p. 349), the House managers were recognized for 24 hours
    to present their case in support of conviction and removal (Jan. 14,
    1999, p. 521); counsel for the President was then recognized for 24
    hours to present the President's defense (Jan. 19, 1999, p. 1055); and
    Senators submitted questions in writing of either the House managers or
    the President's counsel (which were read by the Chief Justice,
    alternating between parties) for a period not to exceed 16 hours (Jan.
    22, 1999, p. 1244). The Chief Justice ruled that a House manager could
    not object to a question although he could object to an answer (Jan. 22,
    1999, p. 1250; Jan. 23, 1999, p. 1320). The Senate adopted a motion to
    consider a motion to dismiss in executive session (Jan. 25, 1999, p.
    1339), and the motion to dismiss was defeated (Jan. 27, 1999, p. 1397).
    The Senate adopted a motion to consider a motion of the House managers
    to subpoena witnesses in executive session (Jan. 26, 1999, p. 1370). The
    Senate adopted that motion, which: (1) authorized the issuance of
    subpoenas for depositions of three witnesses; (2) admitted miscellaneous
    documents into the trial record; and (3) petitioned the Senate to
    request the appearance of the President at a deposition (Jan. 26, 1999,
    p. 1370).
      The Senate adopted a resolution governing the initial impeachment
    proceedings of President Clinton (S. Res. 16, Jan. 8, 1999, p. 349).
    Later it adopted a second resolution governing the remaining proceedings
    (S. Res. 30, Jan. 28, 1999, p. 1843). The first resolution issued the
    summons in the usual form. It also provided a timetable for (1) the
    filing of an answer by the President; (2) the filing of a reply by the
    House, together with the record consisting of publicly available
    materials that had been submitted

    [[Page 320]]

    depositions into evidence; (2) consideration of motions for
    additional discovery (if made by the two Leaders jointly); (3)
    disposition of motions governing the presentation of evidence or
    witnesses before the Senate and motions by the President's counsel
    (specifically precluding a motion to reopen the record and specifically
    permitting a motion to allow final deliberations in open session); (4)
    establishment of a timetable to vote on the articles of impeachment; and
    (5) authorization to issue subpoenas to take certain depositions and to
    establish procedures for conducting depositions (S. Res. 30, Jan. 28,
    1999, p. 1453). The Senate adopted two parts of a divided motion as
    follows: (1) permitting the House managers to admit transcripts and
    videotapes of oral depositions into evidence (Feb. 4, 1999, p. 1817);
    and (2) permitting the parties to present before the Senate for an
    equally divided specified period of time portions of videotapes or oral
    depositions admitted into evidence, having first rejected a preemptive
    motion to restrict the House managers' presentation of evidence to
    written transcripts (Feb. 4, 1999, p. 1817). The Senate rejected the
    portion of the divided motion that would have authorized a subpoena for
    the appearance of a named witness (Feb. 4, 1999, p. 1827). During debate
    on the motion, the Senate, by unanimous consent, permitted the House
    managers and counsel for the President to make references to videotaped
    oral depositions (Feb. 4, 1999, p. 1817). The Senate rejected two
    additional motions as follows: (1) a motion to proceed directly to
    closing arguments and an immediate vote on the articles of impeachment
    (Feb. 4, 1999, p. 1827); and (2) a motion that the House managers
    provide written notice to counsel for the President by a time certain of
    those portions of videotaped deposition testimony they planned to use
    during their evidentiary presentation or during closing arguments (Feb.
    4, 1999, p. 1827). By unanimous consent the Senate printed certain
    deposition transcripts in the Record and transmitted to the House
    managers and the counsel for the President deposition transcripts and
    videotapes (Feb. 4, 1999, p. 1827). The Chief Justice held inadmissible
    a portion of a videotaped deposition not entered as evidence into the
    Senate record (other portions of which were admitted under an order of
    the Senate), and a unanimous-consent request nevertheless to admit that
    portion of a deposition was objected to (Feb. 6, 1999, p. 1954). After
    closing arguments, the Senate adopted a motion to consider the articles
    of impeachment in closed session (Feb. 9, 1999, p. 2055). After closed
    deliberations the Senate Clerk read the articles of impeachment in open
    session, and each Senator voted ``guilty'' or ``not guilty'' on each
    article (Feb. 12, 1999, p. 2375). By votes of 45-55 and 50-50
    respectively, the Senate adjudged President Clinton not guilty on each
    article of impeachment (Feb. 12, 1999, p. 2375). The Senate communicated
    to the House and the Secretary of State the judgment of the Senate (Feb.
    12, 1999, p. 2375).
      The Senate subsequently adopted a resolution governing the remaining
    impeachment proceedings as follows: (1) establishment of a timetable for
    conducting and reviewing depositions, resolving any objections made
    during the depositions, and considering motions to admit any portions of
    the

    [[Page 321]]

      See S. Doc. 93-102, ``Procedure and Guidelines for Impeachment Trials
    in the United States Senate,'' for precedents relating to the conduct of
    Senate impeachments.

    Sec. 609. Exhibition and form of
    articles.

      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.

      Having delivered the impeachment, the committee returns to the House
    and reports verbally (III, 2413, 2446; VI, 501). Formerly, the House
    exhibited its articles after the impeachment had been carried to the bar
    of the Senate; in the later practice, the resolution and articles of
    impeachment have been considered together and exhibited simultaneously
    in the Senate by the managers (VI, 501, 515; Mar. 10, 1936, pp. 3485-88;
    Oct. 7, 1986, p. 29126; Jan. 7, 1999, p. 272). The managers, who are
    elected by the House (III, 2300, 2345, 2417, 2448; VI, 500, 514, 517;
    Mar. 2, 1936, pp. 3393, 3394) or appointed by the Speaker (III, 2388,
    2475), carry the articles in obedience to a resolution of the House
    (III, 2417, 2419, 2448) to the bar of the Senate (III, 2420, 2449,
    2476), the House having previously informed the Senate (III, 2419, 2448)
    and received a message informing them of the readiness of the latter
    body to receive the articles (III, 2078, 2325, 2345; Aug. 6, 1986, p.
    19335; Jan. 6, 1999, p. 240). Having exhibited the articles the managers
    return and report verbally to the House (III, 2449, 2476).

      The articles in the Belknap impeachment were held sufficient, although
    attacked for not describing the respondent as one subject to impeachment
    (III, 2123). In the proceedings against Judge Ritter, objections to the
    articles of impeachment, on the ground that they duplicated and
    accumulated separate offenses, were overruled (Apr. 3, 1936, p. 4898;
    Apr. 17, 1936, p. 5606). These articles are signed by the Speaker and
    attested by the Clerk (III, 2302, 2449), and in form approved by the
    practice of the House (III, 2420, 2449, 2476).

      Articles of impeachment that have been exhibited to the Senate may be
    subsequently modified or amended by the House (VI, 520; Mar. 30, 1936,
    pp. 4597-99), and a resolution proposing to amend articles of
    impeachment previously adopted by the House is privileged for
    consideration when reported by the managers on the part of the House
    (VI, 520; Mar. 30, 1936, p. 4597).

    [[Page 322]]

      For discussion of substantive charges contained in articles of
    impeachment and the constitutional grounds for impeachment, see
    Sec. 175, supra (accompanying Const., art. II, sec. 4). For a discussion
    of the presentation of the House managers in support of the impeachment
    of President Clinton, and related matters, see Sec. 608a, supra.

    Sec. 610. Parliamentary law as to appearance
    of respondent.

      Appearance. If he  appear, 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. 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.

    [[Page 323]]

    of his son was admitted to be heard and present
    evidence in support of the petition, but not to make argument (III,
    2333). For a discussion of answers, arguments, and presentations of the
    respondent in the Clinton impeachment proceedings, see Sec. 608a, supra.

    Sec. 611. Requirements of the Senate as to
    appearance of respondent.

      This paragraph  of the parliamentary law is largely obsolete
    so far as the practice of the House and the Senate are concerned. The
    accused may appear in person or by attorney (III, 2127, 2349, 2424), and
    take the stand (VI, 511, 524; Apr. 11, 1936, pp. 5370-86; Oct. 7, 1986,
    p. 29149), or may not appear at all (III, 2307, 2333, 2393). In case the
    accused does not appear the House does not ask that the accused be
    compelled to appear (III, 2308), but the trial proceeds as on a plea of
    ``not guilty.'' The writ of summons to the accused recites the articles
    and notifies the accused to appear at a fixed time and place and file an
    answer (III, 2127). In all cases respondent may appear by counsel (III,
    2129), and in one trial, when a petition set forth that respondent was
    insane, the counsel

      The chair of the committee impeaches at the bar of the Senate by oral
    accusation (III, 2413, 2446, 2473), and the managers for the House
    attend in the Senate after the articles have been exhibited and demand
    that process issue for the attendance of respondent (III, 2451, 2478),
    after which they return and report verbally to the House (III, 2423,
    2451; VI, 501). The Senate thereupon issue a writ of summons, fixing the
    day of return (III, 2423, 2451; S. Res. 16, Jan. 8, 1999, p. 349); and
    in a case wherein the respondent did not appear by person or attorney
    the Senate published a proclamation for him to appear (III, 2393). But
    the respondent's goods were not attached. In only one case has the
    parliamentary law as to sequestration and committal been followed (III,
    2118, 2296), later inquiry resulting in the conclusion that the Senate
    had no power to take into custody the body of the accused (III, 2324,
    2367).

    Sec. 612. Answer of respondent.

      Answer. The  answer need not
    observe great strictness of the 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.

    [[Page 324]]

    to the House and subsequently
    referred to the managers on the part of the House (VI, 506; Apr. 6,
    1936, p. 5020; Sept. 9, 1986, p. 22317).
      In the Senate proceedings of the impeachment of President Andrew
    Johnson, the answer of the President took up the articles one by one,
    denying some of the charges, admitting others but denying that they set
    forth impeachable offenses, and excepting to the sufficiency of others
    (III, 2428). The form of this answer was commented on during preparation
    of the replication in the House (III, 2431). In the Senate proceedings
    on the impeachment of President Clinton, the answer of the President
    also took up the articles one by one, denying some of the charges and
    admitting others but denying that they set forth impeachable offenses
    (Jan. 14, 1999, pp. 359-361). Blount and Belknap demurred to the charges
    on the ground that they were not civil officers within the meaning of
    the Constitution (III, 2310, 2453), and Swayne also raised questions as
    to the jurisdiction of the Senate (III, 2481). The answer is part of the
    pleadings, and exhibits in the nature of evidence may not properly be
    attached thereto (III, 2124). The answer of the respondent in
    impeachment proceedings is messaged

      For a chronology of arguments and presentations of the respondent in
    the Clinton impeachment proceedings, see Sec. 608a, supra.

    Sec. 613. Other pleadings.

      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.

      A replication is always filed (for the form of replication in modern
    practice, see Sept. 26, 1988, p. 25357), and in one instance the
    pleadings proceeded to a rejoinder, surrejoinder, and similiter (III,
    2455). A respondent also has filed a protest instead of pleading on the
    merits (III, 2461), but there was objection to this and the Senate
    barely permitted it. In another case respondent interposed a plea as to
    jurisdiction of offenses charged in certain articles, but declined to
    admit that it was a demurrer with the admissions pertinent thereto (III,
    2125, 2431). In the Belknap trial the House was sustained in averring in
    pleadings as to jurisdiction matters not averred in the articles (III,
    2123). The right of the House to allege in the replication matters not
    touched in the articles has been discussed (III, 2457). In the
    Louderback (VI, 522) and Ritter (Apr. 6, 1936, p. 4971) impeachment
    proceedings, the managers on the part of the House prepared and
    submitted the replication to the Senate without its consideration by the
    House, contrary to former practice (VI, 506). The Senate may consider in
    closed session various preliminary motions made by respondent (e.g., to
    declare the Senate rule on appointment of a committee to receive
    evidence to be unconstitutional, to declare beyond a reasonable doubt as
    the standard of proof in an impeachment trial, and to postpone the
    impeachment trial) before voting in open session to dispose of those
    motions (Oct. 7, 8, 1986, pp. 29151, 29412).

      For a chronology in the Senate of disposition of motions permitted
    under Senate impeachment rules, see Sec. 608a, supra.

    Sec. 614. Examination of witnesses.

      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.

    [[Page 325]]

    2217) and utilized (S. Res. 38, 101st Cong., Mar. 16, 1989,
    p. 4533). In the 74th Congress, the Senate amended its rules for
    impeachment trials to allow the presiding officer, upon the order of the
    Senate, to appoint a committee to receive evidence and take testimony in
    the trial of any impeachment (May 28, 1935, p. 8309). In the trial of
    Judge Claiborne the Senate directed the appointment of a committee of
    twelve Senators to take evidence and testimony pursuant to rule XI of
    the Rules of Procedure and Practice in the Senate when Sitting on
    Impeachment Trials (S. Res. 481, Aug. 15, 1986, p. 22035); and in Nixon
    v. United States, 506 U.S. 224 (1993), the Supreme Court refused to
    declare unconstitutional the appointment of such a committee to take
    evidence and testimony.
      In trials before the Senate witnesses have always been examined in
    open Senate, although examination by a committee has been suggested
    (III,

      For a chronology of motions to subpoena witnesses during the Senate
    impeachment proceedings against President Clinton, see Sec. 608a, supra.

    [[Page 326]]

    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.

    Sec. 615. Relation of jury trial to
    impeachment.

      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., 126. In 1

      No jury is possible as part of an impeachment trial under the
    Constitution (III, 2313). In 1868, after mature consideration, the
    Senate overruled the old view of its functions (III, 2057), and decided
    that it sat for impeachment trials as the Senate and not as a court
    (III, 2057), and eliminated from its rules all mention of itself as a
    ``high court of impeachment'' (III, 2079, 2082). However, the modern
    view of the Senate as a court was evident during the impeachment trial
    of President Clinton. There the Senate convened as a ``Court of
    Impeachment'' (see, e.g., Jan. 7, 1999, p. 272). In response to an
    objection raised by a Senator, the Chief Justice held that the Senate
    was not sitting as a ``jury'' but was sitting as a ``court'' during the
    impeachment trial of President Clinton. As such, the House managers were
    directed to refrain from referring to the Senators as ``jurors'' (Jan.
    15, 1999, p. 580).

    [[Page 327]]

    and the Chief Justice in
    turn administered the oath to the Senators (Jan. 7, 1999, p. 272).

    Sec. 615a. The presiding officer.

      An anxiety lest  the Chief
    Justice might have a vote in the approaching trial of the President
    seems to have prompted this earlier action (III, 2057). There was
    examination of the question of the Chief Justice's power to vote (III,
    2098); but the Senate declined to declare his incapacity to vote, and he
    did in fact give a casting vote on incidental questions (III, 2067).
    Under the earlier practice, the Senate declined to require that the
    Chief Justice be sworn when about to preside (III, 2080); but the Chief
    Justice had the oath administered by an associate justice (III, 2422).
    The President pro tempore of the Senate, pursuant to an earlier order of
    the Senate, appointed a committee to escort the Chief Justice into the
    Senate chamber to preside over the impeachment trial of President
    Clinton, administered the oath to him,

      In impeachments for officers other than the President of the United
    States the presiding officer of the Senate presides, whether being Vice
    President, the regular President pro tempore (III, 2309, footnote, 2337,
    2394) or a special President pro tempore chosen to preside at the trial
    only (III, 2089, 2477).

    Sec. 615b. Oath and quorum.

      Senators elected after  the
    beginning of an impeachment trial are sworn as in the case of other
    Senators (III, 2375). The quorum of the Senate sitting for an
    impeachment trial is a quorum of the Senate itself, and not merely a
    quorum of the Senators sworn for the trial (III, 2063). The vote
    required for conviction is two-thirds of those Senators present and
    voting (Oct. 20, 1989, p. 25335). In 1868, when certain States were
    without representation, the Senate declined to question its competency
    to try an impeachment case (III, 2060). The President pro tempore of the
    Senate administered the oath to the Chief Justice presiding over the
    impeachment trial of President Clinton, and the Chief Justice in turn
    administered the oath to the Senators (Jan. 7, 1999, p. 272).

    Sec. 616. Attendance of the Commons.

      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 case capital Id., 58, 158, as well as not capital; 162. * *
    *.

    [[Page 328]]

    that it would be represented for the
    remainder of the trial by its managers alone (III, 2453). At the trial
    of the President the House, in Committee of the Whole, attended
    throughout the trial (III, 2427), but this is exceptional. In the Peck
    trial the House discussed the subject (III, 2377) and reconsidered its
    decision to attend the trial daily (III, 2028). While the Senate is
    deliberating the House does not attend (III, 2435); but when the Senate
    votes on the charges, as at the other open proceedings of the trial, it
    may attend (III, 2383, 2388, 2440). Although it has frequently attended
    in Committee of the Whole, it may attend as a House (III, 2338).

    Sec. 617. Attendance of the House of
    Representatives.

      The  House has consulted its own inclination and
    convenience about attending its managers at an impeachment. It did not
    attend at all in the trials of Blount, Swayne, Archbald, Louderback, and
    Ritter (III, 2318, 2483; VI, 504, 516); and after attending at the
    answer of Belknap, decided

    Sec. 618. Voting on the articles in an impeachment
    trial.

      * * * 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.

      The question in judgment in an impeachment trial has occasioned
    contention in the Senate (III, 2339, 2340), and in the trial of the
    President the form was left to the Chief Justice (III, 2438, 2439). In
    the Belknap trial there was much deliberation over this subject (III,
    2466). In the Chase trial the Senate modified its former rule as to form
    of final question (III, 2363). The yeas and nays are taken on each
    article separately (III, 2098, 2339) in the form ``Senators, how say
    you? is the respondent guilty or not guilty?'' (Oct. 9, 1986, p. 29871).
    But in the trial of President Johnson the Senate, by order, voted on the
    articles in an order differing from the numerical order (III, 2440),
    adjourned after voting on one article (III, 2441), and adjourned without
    day after voting on three of the eleven articles (III, 2443). In other
    impeachments, the Senate has adopted an order to provide the method of
    voting and putting the question separately and successively on each
    article (VI, 524; Apr. 16, 1936, p. 5558). For a discussion of the vote
    of the Senate on each article of impeachment of President Clinton, see
    Sec. 608a, supra.

    [[Page 329]]

    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, 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 to capital judgments
    (but 2 Wood., 614, contra), but not in misdemeanors, Seld. Jud., 136.

    Sec. 619. Judgment in
    impeachments.

      Judgment. Judgments in  Parliament, for death have been strictly guided per
    legem terrae, which they can not 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.

    [[Page 330]]

      The Constitution of the United States (art. I, sec. 3, cl. 7) limits
    the judgment to removal and disqualification. The order of judgment
    following conviction in an impeachment trial is divisible for a separate
    vote if it contains both removal and disqualification (III, 2397; VI,
    512; Apr. 17, 1936, p. 5606), and an order of judgment (such as
    disqualification) requires a majority vote (VI, 512; Apr. 17, 1936, p.
    5607). Under earlier practice, after a conviction the Senate voted
    separately on the question of disqualification (III, 2339, 2397), but no
    vote is required by the Senate on judgment of removal from office
    following conviction, because removal follows automatically from
    conviction under article II, section 4 of the Constitution (Apr. 17,
    1936, p. 5607). Thus, the presiding officer directs judgment of removal
    from office to be entered and the respondent removed from office without
    separate action by the Senate where disqualification is not contemplated
    (Oct. 9, 1986, p. 29873). A resolution impeaching the President may
    provide only for removal from office (H. Res. 1333, 93d Cong., Aug. 20,
    1974, p. 29361) or for both removal and disqualification from holding
    any future office (H. Res. 611, 105th Cong., Dec. 19, 1998, p. 27828).

    Sec. 620. Impeachment not interrupted by
    adjournments.

      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; Lord's Jour., May 15, 1791; 2 Wood., 618.

      In Congress impeachment proceedings are not discontinued by a recess
    (III, 2299, 2304, 2344, 2375, 2407, 2505, see also Sec. 592, supra). The
    following impeachment proceedings extended from one Congress to the
    next: (1) the impeachment of Judge Pickering was presented in the Senate
    on the last day of the Seventh Congress (III, 2320), and the Senate
    conducted the trial in the Eighth Congress (III, 2321); (2) the
    impeachment of Judge Louderback was presented in the Senate on the last
    day of the 72d Congress (VI, 515), and the Senate conducted the trial in
    the 73d Congress (VI, 516); (3) the impeachment of Judge Hastings was
    presented in the Senate during the second session of the 100th Congress
    (Aug. 3, 1988, p. 20223) and the trial in the Senate continued into the
    101st Congress (Jan. 3, 1989, p. 84); (4) the impeachment of President
    Clinton was presented to the Senate after the Senate had adjourned sine
    die for the 105th Congress (Jan. 6, 1999, p. 14), and the Senate
    conducted the trial in the 106th Congress (Jan. 7, 1999, p. 272); (5)
    the impeachment inquiry of Judge Porteous was authorized in the 110th
    Congress (Sept. 17, 2008) and continued in the next Congress (Jan. 13,
    2009). Although impeachment proceedings may continue from one Congress
    to the next, the authority of the managers appointed by the House
    expires at the end of a Congress; and the managers must be reappointed
    when a new Congress convenes (Jan. 6, 1999, p. 15).