mony of the respondent been taken. It was claimed in Belknap's case by Ex-Senator Matthew H. Carpenter, who was counsel for the respondent, that the respondent and his wife had no right to testify.12 This was denied by the managers.13 On Barnard's trial the testimony of the accused was admitted without question; 14 and in other cases he has been allowed to make a statement in his defense not under oath,15 in accordance with the practice on impeachments before the House of Lords.16

In Hubbell's case, one of the managers asked the senate to draw an inference unfavorable to the respondent from his failure to testify in his own defense.17 For this the manager was rebuked by the respondent's counsel, but the senate took no action in the matter.18

In Belknap's case, the counsel for both sides conceded that a journalist had the privilege of refusing to disclose the source of news which he had published.19 On the impeachment trial, before the senate of Massachusetts, of Vinal, a justice of the peace, by the consent of the respondent the record of his conviction by the Supreme Court of the offenses charged against him was admitted in evidence and held sufficient.20 On the proceedings for the removal of Sargent and Vinal, judges of the common pleas in the same State, the only evidence was a certificate of their conviction made by the solicitor of the Commonwealth. The legislature held this sufficient against the protest of John Quincy Adams.21

§ 107. Arguments of Counsel.

Each side opens its own evidence. At the conclusion of the testimony, the parties have the right to be heard by counsel upon the

12 Belknap's Impeachment Trial, pp. 978, 995.

13 Manager Scott Lord in Belknap's Impeachment Trial, p. 1039.

14 Barnard's Impeachment Trial, p. 1630.

15 Addison's Impeachment Trial, p. *101; Jackson's Impeachment Trial, pp. 251-275. Hubbell's Impeachment Trial, p. 781. See Appendix, infra.

16 Strafford's Impeachment Trial, Howell's State Trials, vol. iii, pp. 13821526.

17 Manager Huston, in Hubbell's Impeachment Trial, p. 1726.

18 John B. Chipman, counsel for the respondent in Hubbell's Impeachment Trial, pp. 1772, 1773; infra, Appendix. See Wilson v. U. S., 149 U. S., 60.

19 Belknap's Impeachment Trial, p. 667.

20 Prescott's Impeachment Trial, Appendix, p. 217.

21 Infra, Appendix.

whole case. In a Missouri impeachment trial, the defendants' counsel were allowed to make a motion, in the nature of a demurrer to the evidence, for judgment whether the respondent should make further answer. The senate, after the argument of the motion, refused to allow the managers to withdraw the articles without the permission of the court. Such permission was, however, subsequently granted before the decision of the motion and apparently without any action by the house which presented the impeachment; a most irregular proceeding.1 The House of Commons has the right to reply on every incidental as well as on the principal question involved in the case. This right, although claimed on the trial of Johnson, Belknap and Barnard, has been overruled in the United States, and on incidental questions the party on the affirmative side of the question has the right to open and reply; although the managers have the right to open and close the final arguments.*

§ 108. Decision upon Impeachment.

There can be no conviction upon an impeachment before the Senate of the United States or any of the State senates without a concurrence of two-thirds of the members present. In this, the American differs from the English practice, where a majority of the House of Lords, provided at least twelve concur, is sufficient.1 The requirement of a vote of two-thirds for a conviction was first made in the New York Constitution of 1777,2 which in this respect was usually followed in the early constitutions of the other States. That constitution, as did some others, also required the vote of two-thirds of the lower house, which is not required by the

§ 107. 1 Lucas' Impeachment Trial, pp. 278, 288, 312-314. In Hardy's Trial in California the presiding officer said (pp. 260-261): "No doubt the counsel for the prosecution have the right to withdraw any one, or the entire list of the Articles of Impeachment, that they choose." See § 98 and Appendix, infra.

2 Lord Melville's Impeachment Trial, 29 Howell's State Trials, 762-763. 3 Johnson's Trial, vol. i, p. 77; Bel

knap's Trial, pp. 64-65, 71-87; Barnard's Trial, infra, Appendix.

4 Senate Rules for Impeachments, XXI. Hardy's Impeachment Trial, p. 465. See Appendix, infra.

§ 108. Comyn's Digest, Parliament, L. 17.

2 Art. XXXIII. Penn's Form of Government in 1696 required the presence of a quorum of two-thirds, a majority of whom might convict. (Poore, Charters and Constitutions, p. 1535.)

Constitution of the United States, where a majority of a quorum of the House of Representatives can impeach an officer. The object of the provision clearly was to interpose a barrier against removals for reasons purely partisan.3

At the conclusion of the evidence and after both parties have been heard, the Senate proceeds to the consideration of the case. The debates are usually secret, but each Senator may be allowed to file a written opinion concerning his vote on a final or any incidental question. No senator can be challenged because he has voted for the impeachment before his election to the Senate, while a member of the lower House, or for opinions expressed elsewhere, in public, or because he has become a member of the Senate after the greater part of the testimony has been taken, or because a conviction will make him President of the United States, or otherwise.5 A senator may be excused from voting upon such a ground at his own request, but it is not usual to grant such permission. The usual form of voting is as follows:

"Mr. Blount, how say you, is the respondent guilty, or not guilty of a high crime and misdemeanor as charged in the peachment?"

Article of Im

This form of voting was settled on Judge Pickering's trial, when five senators refused to vote, and retired from the Court,

"not because they believed Judge Pickering guilty of high crimes and misdemeanors, but because they did not choose to be compelled to give so solemn a vote upon a form of question which they considered an unfair one, and calculated to preclude them from giving any distinct and explicit opinion upon the true and most important point in the case; viz., as to the insanity of Judge Pickering, and whether the charges

3 See Story on the Constitution, § 779.

4 Johnson's Impeachment Trial, vol. ii, p. 476; Belknap's Impeachment Trial, p. 1049. This practice was criticised in Barnard's Impeachment Trial, vol. iii, pp. 2033-2034.

5 Pickering's Impeachment Trial, Annals of Congress, 1803-1804, p. 367; Johnson's Impeachment Trial, vol. iii, pp. 360-400; Addison's Impeachment

Trial, pp. 20-28; 326-345. On Hardy's Trial (pp. 458-459), a senator was allowed to take the oath after the conclusion of the testimony and to vote although he had heard no part of the proof.

6 Ibid. Addison's Impeachment Trial, pp. 20-28. But see Barnard's Impeachment Trial, pp. 69, 78-82, 2049-2058; Impeachment Trial of John W. Robinson, p. 345.

contained in the Articles of Impeachment, if true, amounted in him to high crime and misdemeanors, or not.""

In the House of Lords the vote is on all the articles, but in the Senate of the United States and the senates of the several States, it is customary to vote on each article separately, and in some cases to vote separately upon each specification in the article.9 In President Johnson's case the Senate of the United States refused to order that a vote be taken separately on the specifications in any article.10 In a case where the result was not thereby changed, a senator was allowed, by unanimous consent, to change his vote on the following day." After the conviction of John W. Robinson, he moved for a new trial upon the ground that one or more senators, in pronouncing him guilty, based their decision upon an erroneous principle of law. 12 No attention was paid to this

motion.

An interesting question was discussed on the trial of Belknap. As has been told above, more than one-third of the senators voted, upon a plea to the jurisdiction at the opening of the trial, that they had no jurisdiction of the respondent. Upon the final vote, it was contended by the managers and by a large number of the Senate that the decision of this incidental question by a majority vote was conclusive, and that all senators were bound to vote guilty if they believed the facts charged in the articles were proved, even though they doubted the jurisdiction or believed that the acts committed did not amount to an impeachable crime.13 The arguments in support of this proposition were substantially as follows:

The only question to determine against the defendant which requires a two-thirds vote is whether the respondent should be convicted.14 All other matters are to be decided by the same vote

7 Pickering's Impeachment Trial, Annals of Congress, 1803-1804, p. 366. 8 Senate Rules for Impeachment, XXII.

9 Barnard's Impeachment Trial, vol. iii, pp. 2154-2176; Hubbell's Trial, pp. 789-819.

10 Johnson's Impeachment Trial, vol. ii, pp. 478-481.

11 Jackson's Impeachment Trial, p. 465; infra, Appendix.

12 Impeachment Trial of John W. Robinson.

13 For a discussion as to whether it requires a vote of two-thirds to fix the penalty, see Barnard's Trial, vol. iii, pp. 2184-2193.

14 Constitution, Article I, Section 3.

that is required to decide any other parliamentary question, a majority. The word conviction, as defined in the dictionaries, means a determination of guilt.15 All other questions are preliminary to this and may be decided by a majority. A majority vote, it must be admitted, will decide all questions of evidence, no matter how vital to the success of the prosecution or defense.16 The question of jurisdiction is no different in principle from this. When a senator is asked to vote on the question: "Is the respondent guilty or not guilty as charged in the first," and in the succeeding, articles? his oath obliges him to vote guilty if in his opinion the evidence proves the offenses charged.17 On Barnard's trial, several New York judges and senators voted against the jurisdiction as to certain articles when that question was raised; but on the final vote, considering that the jurisdiction had been settled, voted guilty of the charges which those articles contained.18

The arguments on the other side were these: The senators are judges of both the law and the fact. No senator can be justified. in voting for a conviction unless he is satisfied that the court has jurisdiction of the person of the respondent, and that the facts charged amount to an impeachable crime. In the courts of the United States every question affecting the jurisdiction over the person and the subject-matter, except questions as to the service of the process, cannot be waived, and may be raised at any time even on appeal.19 If the question of jurisdiction should not be raised preliminarily, but reserved for determination on the final vote; it would hardly be claimed that a senator who believed the court had no jurisdiction could conscientiously vote guilty. It cannot be that his obligation may be changed or the respondent

15 Manager Scott Lord in Belknap's Trial, pp. 1026; Manager William P. Lynde, ibid., p. 906.

16 Rule VII; Manager William P. Lynde in Belknap's Trial, p. 905. See Ex-Judge Jeremiah S. Black, counsel for respondent, ibid., p. 965.

17 Manager George A. Jenks in Belknap's Trial, p. 358; Senator Booth, ibid., p. 1079.

18 Chief-Judge Church, Judges Fol

ger and Rapallo, Senators Foster, Hammer, Lewis Lord, Murphy and O'Brien in Barnard's Trial, pp. 21222129, 2144-2149.

19 Rhode Island v. Massachusetts, 12 Peters, 657, 718; Dred Scott v. Sandford, 19 Howard, 393; and other cases cited by Ex-Senator Matthew H. Carpenter, respondent's counsel in Belknap's Trial, pp. 1014-1017. See Foster's Federal Practice, § 93.