such a copy at his last known place of abode, or at his usual place of business in some conspicuous place therein; or if such service is in the judgment of the Senate impracticable, notice to the accused to appear may be given in such other manner, by publication or otherwise, as the Senate deems just. If the writ cannot be served on time, it does not abate, but further service may be made in such manner as the Senate directs.5

In Humphreys' case the process was served by leaving a copy of the same at the residence of the respondent, who could not be found in that vicinity. On his failure to appear in pursuance of the summons, a proclamation for his appearance was served, by order of the Senate, by publication in three newspapers in Washington at least forty days successively, and one newspaper published at his residence for five days successively."

The old English custom was to cite the party by a writ directed to himself or to require the sheriff to summon him, and if he could not be found to proclaim throughout the realm that if he did not attend on the day fixed he would be attainted. In later times, when the accused could not readily be apprehended, the king was addressed in order that the ports might be stopped, that he might be prevented from taking shelter in the royal palaces, and at the same time all persons were prohibited under certain penalties from harboring and concealing him. There is no provision or authority under the Constitution of the United States for the arrest of the accused by the Senate or his suspension from office pending the impeachment.9 Blount, who, however, was a member of the Senate, was arrested and held to bail until the termination of his

5 Rules for Impeachments, VIII. Humphreys' Impeachment Trial, Congressional Globe, 2d Session, 37th Congress, part iv, p. 2942.

7 Woodeson's Lectures, vol. ii, p. 604; citing 4 Inst. 38-39; 3 Selden's Works, 1621.

8 Ibid., vol. ii, p. 604; citing 2 St. Tr., 573, 732 (ed. 1730); Com. Journ., April, 1679.

See Professor Dwight's Lecture on Trial by Impeachments in American Law Register, N. S., vol. vi, pp. 276

trial.10 Several State constitutions have provisions authorizing a suspension from office in such a case. In the State of Arkansas, the impeachment of Governor Clayton began by several members of the house locking the governor in the executive chamber.12

§ 100. Managers of Impeachment and Counsel for Prosecution. A committee of managers is also appointed by the House to conduct the impeachment. These managers are always members of the House, and usually lawyers. In no case has the House of Representatives of the United States employed counsel to assist the managers upon a trial of an impeachment. In some States the houses of representatives have employed counsel to assist the managers.1 It was decided by the senate of California in Hardy's case that this might be done.2 On Barnard's trial, the New York assembly was represented by a committee of the New York City Bar Association as well as by the managers, and the former had full control of the proceedings.3

§ 101. Swearing of the Senate.

The Constitution provides that the Senate, when sitting for the purpose of impeachment, "shall be on Oath or Affirmation." 1 The members of the House of Lords are not sworn, but give their votes upon their honor. It was natural that in a country where no privileged caste among white men was recognized, the senators

10 Wharton's American State Trials, pp. 201-202, 250; supra, § 90.

11 In Louisiana (Art. 198), North Dakota (Art. XIV, Sec. 198), South Dakota, Art. XVI, Sec. 5), an officer cannot perform his official functions after impeachment and before his acquittal. So in Michigan (Art. XII, Sec. 24), and New Jersey as regards judicial officers (Art. VI, Sec. 3); and in New York as to judicial officers after the articles "have been preferred to the Senate" (Art. VI, Sec. 13). See In the Matter of the Executive Communication, 12 Fla., 653; and Appendix, infra.

12 Atlantic Monthly, vol. xxix, p.

386; supra, § 38, over note 167; § 88, over notes 16 and 17. See Appendix, infra.

§ 100. 1 In Addison's Case and that of McKean and his associates in Pennsylvania; Hubbell's Case in Wisconsin and Hardy's Case in California; infra, Appendix.

2 Hardy's Impeachment Trial, pp. 26, 167-173. In Hubbell's Case the State paid one of its counsel $3,000 (ibid.).

8 See Appendix, infra.

§ 101. 1 Constitution, Article I, Section 3.

2 Blackstone's Commentaries, vol. i,

p. 402.

should be bound in the same way as judges and jurors for the administration of justice. The oath or affirmation is administered to the senators by the presiding officer for the time being of the Senate. When the Chief-Justice presided the oath was administered to him by one of the associate justices of the Supreme Court. When the Vice-President presided it was customary under the former rules to have him sworn by the secretary of the Senate. If the respondent wishes to exclude a member of the Senate from the trial, the safer practice is for one of the other senators to object to his being sworn.6

§ 102. Appearance of the Accused.

On the return day of the process, after the senators have been sworn, the person impeached is called in their presence to appear and answer the articles. If he fails to appear in person or by attorney, his default is recorded and the Senate proceeds ex parte in the trial of impeachment in the same manner as if a plea of not guilty had been filed.1

On the trial of Judge Pickering, although the judge did not appear, the Senate received a petition from his son which alleged his insanity, and prayed a postponement and leave to defend for him. This was presented by counsel for the petitioner, who disclaimed any appearance for the judge. Against the protest of the managers and after their withdrawal to take the opinion of the House upon the subject, the counsel was allowed to present evidence of the judge's insanity in the form of depositions; but the managers returned and the trial went on in the same manner as if the petition and the depositions in support thereof had not been presented.2

3 19 St. at L., 34; Rules for Impeachment, III; Belknap's Impeachment Trial, pp. 14, 15, 21, 24, 29, 229, 233. Johnson's Impeachment Trial, p.

11.

5 Chase's Impeachment Trial, Smith's ed., p. 12; Peck's Impeachment Trial, p. 58.

See, however, Johnson's Impeachment Trial, vol. iii, pp. 360-400.

§ 102. 1 Senate Rules for Impeach

ment, VIII, X; Pickering's Impeachment Trial, Annals of Congress for 1803-1804, pp. 315-367; Humphreys' Impeachment Trial, Congressional Globe, 2d Session, 37th Congress, 1862, part iv, pp. 2942-2953. As to the necessity of an appearance in person, see supra, § 90, note 36.

2 Pickering's Impeachment Trial, Annals of Congress for 1803-1804, pp. 328-367.

Upon Humphreys' trial no appearance was made on benalf of the respondent, and all the proceedings were consequently ex parte. The accused may appear in person or by attorney. In every trial before the Senate of the United States, where there has been no default, the accused has appeared by counsel. In several of the State impeachment trials, notably those of Addison and Jackson, the accused has conducted his own defense. The senates of several States have assigned counsel to the respondent at his request, and in such a case a law may be passed providing for their payment by the State. On the impeachment trial of John W. Robinson, Senator Ingalls objected to the further appearance of one of the respondent's counsel because he had publicly declared out of court that the Senate was a jury packed against his clients. The counsel thereupon withdrew.7

§ 103. Pleadings of the Respondent.

On the appearance of the respondent upon an impeachment he is entitled to be furnished with a copy of the articles, and time is allowed him to prepare his answer thereto. If he fails to plead, the trial proceeds as if a plea of not guilty had been made, and he may be allowed to defend by counsel notwithstanding.1

No demurrer to an article of impeachment has been filed or sustained in the House of Lords.2 In the Senate of the United States no demurrer has ever been sustained, although in the cases of Blount and Belknap, pleas and replications thereto which were analogous to demurrers were filed and argued. In the case of Sheriff Greenleaf in Massachusetts, demurrers general and special to the several articles of impeachment were incorporated in the

3 Humphreys' Impeachment Trial, Congressional Globe, 2d Session, 37th Congress, 1862, part iv, pp. 29422953; Senate Rules for Impeachments, X.

4 Infra, Appendix.

5 Infra, Appendix.

6 Botkin's Impeachment Trial, p. 72; infra, Appendix.

7 Impeachment Trial of John W. Robinson, pp. 248-249. § 103. 1 Belknap's

Impeachment

Trial, supra, § 90. But see Bates'
Trial, infra, Appendix.

2 Report on the Lords' Journals, Burke's Works, Little & Brown's ed., vol. xi, p. 13. On Suffolk's impeachment, when the respondent failed to answer but placed himself on the king's disposal, it was held that as to one article he was "neither declared nor charged." (Stubbs' Constitutional History, vol. iii, p. 148.)

respondents' answer, but were overruled. On the trial of Judge Cox before the senate of Minnesota, demurrers to several articles were filed and argued. The Senate in two or three cases overruled the demurrer, but directed that a bill of particulars of the articles should be furnished to the accused, and in the case of one article after the bill of particulars had been furnished, determined to hear no further evidence in support of the charge. On the impeachment trial of Judge Botkin, the Kansas senate sustained demurrers to several articles.5

A plea analogous to a plea at common law may be filed to the articles. This was done in the cases of Blount and Belknap.

The usual course, however, is for the accused to answer. No strictness of form is required by the answer. An answer stating simply that the accused is not guilty of each charge is sufficient." A party may, however, offer affirmative reasons as well as facts against the charges, and for the purpose of influencing public opinion, which has more weight with the tribunal in this class of cases than any other, that is the usual practice. The answer usually begins with a reservation of all exceptions to the insufficiency of each article and to the jurisdiction of the court; then separately traverses each allegation in each article; and also pleads separately in justification or excuse of the alleged offenses, all the circumstances attendant upon each case. The answer may be accompanied by exhibits of public documents or court records in support of the defenses pleaded.

On Belknap's impeachment trial the respondent was allowed, after his plea to the jurisdiction had been overruled by a majority of less than two-thirds, to file a protest against further proceedings. Thereupon it was ordered that the trial proceed as if a plea of not guilty had been filed. On the impeachment trial of John W. Robinson, the Kansas senate refused to allow the respondent to file a protest against its jurisdiction on the ground that the

3 Prescott's Impeachment Trial, Appendix, pp. 213-214; supra, § 94, infra, Appendix.

4 Cox' Impeachment Trial, p. 527; supra, § 93, note 24.

5 Botkin's Impeachment Trial, pp. 245-265; supra, § 93, note 23.

6 Hopkinson's Impeachment Trial, Nicholson's Impeachment Trial, Addison's Impeachment Trial, infra, Appendix.

7 Belknap's Impeachment Trial, pp. 530-542; supra, § 90. See, however, Bates' Trial, infra, Appendix.