lower house had adjourned without a day; but allowed the question to be raised by a motion that no action be taken.8 On Governor Warmoth's impeachment in Louisiana his triers refused to permit him to file exceptions to the jurisdiction upon the ground that neither they nor his impeachers were a lawful legislative house. Upon Bates' impeachment trial, the California senate refused to allow any objection to the jurisdiction before the respondent pleaded to the articles.10

§ 104. Replication.

After a plea or answer is prepared and filed, the next regular proceeding is for the House of Representatives to file a replication to the same in writing. In case of a plea, the replication may be in the nature of a demurrer.1 In the case of an answer, the replication usually denies the truth and validity of the defense therein stated and avers the truth and sufficiency of the charges and the readiness of the House to prove them at such time and place as shall be appointed for that purpose by the Senate. The replication must be authorized by the House of Representatives and cannot be filed by the managers on their own responsibility, at least in the absence of a statute authorizing such a practice.2 The practice in the United States upon that subject is the same as prevailed before the House of Lords; although on the trial of Lord Strafford, no replication was filed by the Commons, which, according to a learned commentator, was "a mark probably of contemptuous insult and disdain."3

§ 105. Proceedings on the Trial of an Impeachment.

A time is then assigned for the trial, and the Senate at that time or before adjusts the rules of its proceedings. The Senate of the United States has adopted twenty-five "standing Rules of Procedure and Practice in the Senate when sitting on the Trial of Impeachments."1 "The presiding officer is ordinarily the Vice

8 Impeachment Trial of John W. Robinson, pp. 107-133.

9 Warmoth's Impeachment Trial, infra, Appendix.

10 Bates' Impeachment Trial, infra, Appendix.

§ 104. 1 Blount's Case, Wharton's

American State Trials, p. 261; Belknap's Case, pp. 79-80.

607.

2 Supra, §§ 98, 100.

3 Woodeson's Lectures, vol. ii, p.

§ 105. 1 Senate Manual, pp. 165–173.

President, or in his absence the President pro tempore of the Senate." 2 When the President of the United States is tried, the Chief-Justice of the United States presides. Who should preside when the Vice-President is tried has not been determined; 4 probably the president pro tempore of the Senate. Chief-Justice Chase had doubts as to whether the rules of procedure previously adopted by the Senate were binding unless re-enacted after he had opened the session of the Court of Impeachment, and out of abundant caution the rules were then readopted. Such a course was considered needless on the subsequent trial of Belknap, where no new element was added to the Senate. The rules provide that

"the presiding officer on the trial may rule all questions of evidence and incidental questions, which ruling shall stand as the judgment of the Senate, unless some member of the Senate shall ask that a formal vote be taken thereon, in which case it shall be submitted to the Senate for decision; or he may at his option, in the first instance, submit any such question to a vote of the members of the Senate. Upon all such questions the vote shall be without a division, unless the yeas and nays be demanded by one-fifth of the members present, when the same shall be taken.'

On President Johnson's trial the power of the Chief-Justice to do anything except put the question was disputed by Senator Charles Sumuer and others; but the Senate voted that he had the full power given by the rule and Constitution to the president of the Senate and he exercised this throughout the trial, ruling preliminarily upon questions of evidence and practice, and in two such cases giving the casting vote; but did not vote on the final question which he put.8

2 Constitution, Article I, Section 3. 3 Ibid.

4 In Montana (Art. V, Sec. 6), North Dakota (Art. XIV, Sec. 195), South Dakota (Art. XVI, Sec. 2), and Michigan (Art. XII, Sec. 2), it is provided that when the governor or lieutenant-governor is tried, the ChiefJustice of the Supreme Court shall preside. In Georgia (Art. III, Sec. 5), Florida (Art. III, Sec. 29) and West Virginia (Art. V, Sec. 9); the president of the highest court always presides,

On the day appointed for the trial, the House of Representatives appears at the bar of the Senate either in a body or by managers selected for that purpose. Before that time, at the request of either party, subpoenas to secure the attendance of the witnesses may be issued and served by the officers of the Senate in accordance with its rules. Several States have constitutional provisions authorizing or requiring the trial of impeachments by the senate after the adjournment of the lower house. In their absence- and none such exists in the Constitution of the United States the power of the Senate to try an impeachment after the final adjournment of the House is extremely doubtful.10 The Senate of the United States has never assumed such power, and in Belknap's case voted that it did not exist."1

Whether an impeachment abates by the expiration of the terms of the members of the House of Representatives that voted it has never been decided in the United States. In Warren Hastings' trial in 1791, it was determined by Parliament, most of the lawyers voting in the minority, that an impeachment did not abate by a dissolution, and might be continued by the next Parliament. The previous precedents were conflicting.12

Although this position has been disputed, it is settled by precedent that the Senate on the trial of an impeachment sits as a court and not as a legislative body; and the proceedings are entitled

cellor Erskine, who was, however, a peer, decided all questions of evidence without dispute.

9 By the constitution of West Virginia (Art. VI, Sec. 9): "The Senate may sit during the recess of the legislature, for the trial of impeachments." By that of Michigan (Art. XII, Sec. 3), impeachments must be tried by the senate, after the final adjournment of the legislature.

10 Constitution, Article I, Section 5; Belknap's Impeachment Trial, pp. 537, 538, 542-544; Johnson's Impeachment Trial, pp. 26-30, 32. In New York and Kansas impeachments have been tried after the adjournment of the lower houses. See Impeachment Trials of John W. Robinson, George S. Hillyer

and Charles Robinson; Barnard's Impeachment Trial; Mather's Impeachment Trial, Appendix, infra.

11 Belknap's Impeachment Trial,

p. 542.

12 History of the Trial of Warren Hastings, published by J. Debrett, London, 1796. Introduction to part iv. For the former precedents, see ibid., pp. 42-44, note; Hallam's Constitutional History, Middleton's Am. ed., vol. ii, pp. 397–400.

18 See the arguments of the managers in Chase's Impeachment Trial and Johnson's Impeachment Trial, passim; and the opinion of Senator Sumner in Johnson's Impeachment Trial, vol. iii, pp. 247–281.

"In the Senate of the United States sitting as a Court of Impeachment." "14 The proceedings are conducted substantially as upon ordinary trials, in regard to the admission or rejection of testimony, the examination and cross-examination of witnesses, the rules of evidence and the other questions of law incidentally arising, although there is great liberality and freedom from technicality in all these respects.15 The presumption of the innocence of the accused is recognized as in ordinary courts of law.16 He has the right to be confronted with the witnesses against him, 17 and has in general all rights guaranteed by the Constitution to persons charged with crime except those which require an indictment and jury trial and which regulate the place of trial.18

§ 106. Evidence upon Impeachment Trials.

On the trial of Warren Hastings it was determined by the Lords that all the evidence of the Commons in support of all the articles should be taken before the respondent's witnesses were examined. This has been the universal rule in the United States, except when depositions were admitted. On some of the earlier English impeachments, including those of Middlesex 2 and Stafford,3 the evidence for and against each article was taken up separately. On the impeachment of Middlesex the evidence was taken by the depositions of witnesses who were examined secretly on written interrogatories, after the manner of the canon law, which was then followed in chancery; and the accused was not allowed

14 Chief Justice Chase, in Johnson's Impeachment Trial, vol. i, p. 12; and the proceedings in that case, and Belknap's Impeachment Trial, passim, pp. 19-34. In State v. George H. Hastings, Attorney-General and others, 37 Neb., 96; it was held, that the Supreme Court acted judicially upon the trial of impeachments and had not succeeded to any political functions that might have been vested in the Senate.

15 Story on the Constitution, 5th ed., § 811; Report on the Lords' Journals, Burke's Works, Little & Brown's ed., vol. xi, pp. 60-122; Senator Sumner's Opinion in Johnson's Impeachment Trial, vol. iii, pp. 253-256.

16 Manager Hoar in Belknap's Case, p. 82; State v. Hastings AttorneyGeneral, 37 Neb., 96. See State ex rel. Attorney-General v. Buckley, 54 Alabama, 599, 617-621.

17 State ex rel. Attorney-General v. Buckley, 54 Alabama 599, 617–621. 18 State ex rel. Attorney General v. Buckley, 54 Alabama, 599, 617–621.

§ 106.1 History of the Trial of Warren Hastings, published by J. Debrett, London, 1796, p. 10.

2 Howell's State Trials, vol. ii, pp. 1183-1254.

3 Howell's State Trials, vol. iii, 382-1526.

to see their testimony before his answer. Upon an impeachment trial before the Supreme Court of Alabama, it was held that the accused had the constitutional right to be confronted with the witnesses against him in court, and that a statute was void which sought to authorize proof by depositions of which he had notice with the right of cross-examination.5

In the trials before the Senate of the United States no testimony has been admitted on either side when the witness was not examined in the presence of the Senate. On Pickering's trial, depositions taken before a justice of the peace were submitted and read before the Senate on behalf of the petition of the respondent's son, but no action was taken thereupon by either the Senate or the House. Upon two State impeachment trials rules were made (in Kansas by the consent of both parties, in Michigan without objection 8) by which depositions were admitted taken outside of the State, in accordance with the State practice in ordinary trials. In two Pennsylvania impeachment trials, depositions of witnesses who were too ill to attend were admitted without objection. In two Kansas impeachment trials testimony taken on a former impeachment trial was by consent considered as read in evidence.10

In Belknap's impeachment trial, an order was made,

"that the managers furnish to the defendant, or his counsel, within four days, a list of the witnesses, as far as at present known to them, that they intend to call in this case; and that, within four days thereafter, the respondent furnish to the managers a list of the witnesses, as far as known, that he intends to summon."

99 11

In no case before the Senate of the United States has the testi

4 Howell's State Trials, vol. ii, pp. 1183-1254.

5 State ex rel. Attorney-General v. Buckley, 54 Alabama, pp. 599, 617-621.

6 Pickering's Trial, Annals of Congress, A. D., 1803-1804, pp. 334, 342; supra, § 90.

7 John W. Robinson's Impeachment Trial, p. 65.

8 Hubbell's Impeachment Trial. 9 Hopkinson's Impeachment Trial and Nicholson's Impeachment Trial.

10 Hillyer's Impeachment Trial, p. 350; Charles Robinson's Impeachment Trial, p. 397.

11 Belknap's Impeachment Trial, pp. 524-529. In Hubbell's Impeachment Trial, the Wisconsin Senate denied a motion on behalf of the respondent, that the managers furnish him a copy of the testimony taken before the Assembly committee on the subject. (Hubbell's Trial, pp. 80-81. See Appendix.)