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. usual form of voting is as follows:

The

"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.

18 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. 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.

prejudiced in his constitutional rights because of the time or order of raising the question. 20

"The Constitution provides that no person shall be convicted [on impeachment] without the concurrence of two-thirds the members present.' Concurrence means more than occasional union of minds. The word signifies running along with each other. That is, no person can be convicted without the agreement of two-thirds of the members present upon every point necessary to and included in the conviction." "

All but three of the senators who voted that they had no jurisdiction, voted not guilty, most stating at the time of the vote that they did so for want of jurisdiction. That has been the usual practice in the senates of the different States.23

§ 109. Imposition of Penalty upon Conviction.

After the respondent has been voted guilty, the Senate proceeds to fix the punishment to which he shall be subjected. The House of Lords has unlimited power to punish upon impeachments. It may and has sentenced upon conviction, to death, exile, fine, forfeiture, imprisonment, or simply removal from office or disqualification from specified offices, according to the nature of the offense.1 The Constitution of the United States provides that,

"Judgment in Cases of Impeachment shall not extend further than to Removal from Office, and Disqualification to hold and enjoy any Office of Honor, Trust or Profit under the United States; but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law." 2

Most State constitutions are similar in this respect.

When the President, Vice-President or an officer of the United States is convicted upon impeachment, he must be removed from office according to the express language of the Constitution.3 The Senate has discretion whether to add to this penalty disquali

20 Senator Conkling in Belknap's

Trial, pp. 909, 910.

21 Ex-Senator Matthew H. Carpenter, counsel for respondent, in Belknap's Trial, p. 1017.

22 Belknap's Impeachment Trial, pp. 1049-1059; supra, §§ 90, 92.

23 Botkin's Impeachment Trial, pp.

1379-1400. But see Barnard's Impeachment Trial, pp. 2122-2129, 21442149.

§ 109. 1 Comyn's Digest, Parliament, L. 44.

2 Constitution, Article I, Section 3. 3 Constitution, Article II, Section 4.

fication to hold any office under the United States.

In the case

of Pickering, removal from office was the sole penalty imposed.1 In Humphreys' case, disqualification to hold any other office of honor or trust under the United States was also imposed. The Senate has no power to disqualify the respondent from holding office under any State. It may be that disqualification to hold office under the United States would prevent the party accused from practicing as an attorney and counsellor at law in any of the Federal courts.6

In impeachment trials before the State senates, those convicted have been sentenced to suspension from office for a short term;7 to removal without any disqualification, to removal with disqualification to hold the office in which the offense was committed,9 to removal with disqualification to hold any judicial office for a term of three years, 10 to removal, disqualification for thirty years, and a fine of six hundred dollars to pay the costs,11 and to removal with perpetual disqualification.12

A discussion took place upon the trial of Humphreys' impeachment as to the form in which the penalty should be determined. It was believed by some senators that the proper method was to first vote whether the convict should be removed from office, and then whether he should also be disqualified. It was feared lest the adoption of the first question might be considered to amount to a judgment imposing a sentence which would prevent the imposition of any further penalty, and lest its rejection might be considered as a judgment of acquittal. So the division was taken upon an amendment adding disqualification to the motion for a removal.13 It seems that although a vote of two-thirds is essen

4 Pickering's Trial, Annals of Congress, 1803-1804, pp. 366–367.

5 Humphreys' Trial, Congressional Globe, 2d Session, 37th Congress, 1861, 1862, part iv, pp. 2942-2953.

6 See Addison's Trial, pp. 152-154; Ex parte Garland, 4 Wall., 333, 378.

7 In one case a year. Hunt's Impeachment Trial; Appendix to Prescott's Impeachment Trial, p. 216; infra, Appendix.

8 Trials of Robinson and Hillyer,

Hardy's Trial, Greenleaf's Trial, Butler's Trial; infra, Appendix.

Addison's Trial, infra, Appendix. 10 Cox' Trial, pp. 2985-2989; infra, Appendix.

11 Osborne's Trial, infra, Appendix. 12 Barnard's Trial, Davis' Trial, Holden's Trial, Frazier's Trial, Goldsmith's Trial; infra, Appendix.

18 Humphreys' Trial, Congressional Globe, 2d Session, 37th Congress, 1861, 1862, part iv, pp. 2951-2953.