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[6.] The senate shall have the sole power to try all How are imimpeachments. When sitting for that purpose, they tried?" shall be on oath or affirmation. When the President of the United States is tried, the Chief-Justice shall preside; and no person shall be convicted without the concurrence of two-thirds of the members present.

Two thirds?

ment trials

39. For the doctrine of impeachment, see Peck's Trial, speeches 27, 191–194. for the prosecution and defence; Reports and Debates on the Impeachment of the President, December, 1867. A judgment of impeachment in the English House of Lords requires that at least twelve of the members should concur in it; and "a verdict by less than twelve would not be good." Com. Dig. Parliament. L. 17. The reasons why this power of impeachment was given to the senate are fully discussed in the Federalist, and in Story on the 36, 37. Const., and Rawle on the Const. Story's Const, § 743-775, and notes. The interest of the vice-president is supposed to disqualify Where are him. Story's Const., § 777. For the action of the senate upon the impeachimpeachment see the journal or record of the senate on trials of to be found? impeachment, from March 4, 1780, to March 3, 1851: 1. On the trial of William Blount, a senator of the United States, from December 17, 1798, to January 15, 1799; 2. On the trial of John Pickering, Judge of the New Hampshire District, from March 3, 1803, to March 12, 1803; 3. On the trial of Samuel Chase, one of the Associate Justices of the Supreme Court of the United States, from November 30, 1804, to March 1, 1805. The preceding cases will be found as an appendix to the third volume of the Legislative Journal of the Senate; 4. On the trial of James H. Peck, Judge of the Missouri District, from May 11, 1830, to May 25, 1830; and from December, 13, 1830, to January 31, 1831. The

proceedings in this case will be found as an appendix to the Legislative Journal of the Senate of 1830, 1831, and also in volumes called Peck's Trial, Blount's Trial, Pickering's Trial, and Chase's 27, 191, 194. Trial. For the mode of trial in cases of impeachment, see Story's Const., 807-810; 2 Woodeson's Lect., 40, p. 603, 604; Jefferson's Manual, § 53.

What is the


The form of oath adopted by the Senate in Chase's case was as oath of the follows: "You solemnly swear or affirm, that in all things appertaining to the trial of the impeachment of - you will do impartial justice according to the Constitution and laws of the United States." (Chase's Trial, vol. 1, p. 12.) Report upon the impeachment of the President, 62.

What is the question?

What is the judgment in impeachment?

The question in Pickering's Case was: "Is John Pickering, district judge of the district of New Hampshire, guilty as charged in the article of the impeachment exhibited against him by the House of Representatives ?" Annals 2d Session 8th Cong. 364. In Chase's trial it was: "Mr.-- how say you; is the respondent, Samuel Chase, guilty or not guilty of a high crime or misdemeanor, as charged in the article of impeachment ?" Ibid 2d Session 8th Congress, 564.)

[7.] Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold or 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.

What means 40. JUDGMENT here means the conclusion of law from the judgment? facts found upon the charges preferred by the House. In the trial 27, 39. of Judge Peck for having disbarred a lawyer, the defence was 149. mainly rested upon the right of the court to punish for contempt, 191, 194. and the want of malice in the judge. Peck's Trial. Some have questioned whether if the defendant be found guilty, the judgment judgment be can be less than removal from office. Story's Const. 803. Shall not short of re- extend further, does not mean shall not exceed or fall short, but be moval? exactly removal and disqualification, and nothing else. Farrar, p. 434., note 1.

Can the

How far does


In England the punishment extends to the whole punishment attached by law to the offense. (Comyn's Dig. Parliament, L. 44; 2 Woodeson, Lect, 40. p. 611-614), Story's Const., § 784. The sentence is limited to political punishment, and the party left to a trial for the criminal violation of the law by a jury. Story's Const. § 786.

DISQUALIFICATION.-The punishment touches neither his person the sentence nor property; but simply divests him of his political capacity. Mr. Bayard, Blount's trial, 47-68, Phila., 1799. Id. 82. Story's Const., 803.

scribes the

places of

SEC. 4. [1.] The times, places, and manner of hold- Who preing elections for senators and representatives, shall be times and prescribed in each State by the legislature thereof; but elections? the Congress may at any time by law make or alter 17 such regulations, except as to the places of choosing senators.


41. When the legislature of a State has failed to "prescribe the What is the times, places, and manner of holding elections, as required by power of the the Constitution, the governor may, in case of a vacancy, in his governor ? writ of election, give notice of the time and place of election; but a reasonable time ought to be allowed for the promulgation of the notice. Hoge's Case, Cl. & Hall, 135.


This power of Congress has only been exercised so far as to How far has require the States to elect by districts, by the act of 1842, ch. 47. this power (See Barnard's Protest, in December, 1843, and the debates of that of Congress been exersession,) and the election of Senators already referred to. These cised? acts relate to the manner of elections, and the places so far as the legislative halls are concerned in the election of senators. There are those who contend that, under this power, the general powers, 274, 275. and the thirteenth and fourteenth amendments, and the general What is frame-work of the government, Congress may determine who shall meant by time, place, vote at the elections for representatives; but whatever may be and manner? said of other powers, the more settled opinion seems to be, that the times relate to the days, the places to the precincts for voting, 274–279. and the manner to the viva voce or ballot system, and the regula- 16-18. tions for conducting the elections.

When Congress legislates on these points, the legislative "regu- What is the lations," (which relate back to those three things) will cease. power of Congress

17, 18.

Congress only has a superintending control. 1 Story's Const. § over the 815-828. It cannot be said, with any correctness, that Congress subject? can, in any way, alter the rights or qualifications of voters. 1 Story's Const., § 820. But it was argued differently by those who opposed the ratification of the Constitution. Little was said in the Conventions., The Federalist, Nos. 59, 60; 1 Elliot's Debates, 45-44, 67 68; 3 Id. 65. The Editor would say that the practice of the States as to inappropriate times, the vacancies which exist when sessions are called, and the experience in regard to secession and rebellion render expedient that Congress should fix upon some rule of uniformity.

As to the place of "choosing senators." This means that Congress shall not say where the legislature shall sit. Story's Const., § 828, note 2. The arguments of those who contend for the power 17, 18. of Congress to determine who may vote, and who shall not be disfranchised, have been presented by Mr. Farrar, § 124-141. It is now one of the irritating questions.-ED.


[2.] The Congress shall assemble at least once in what are every year: and such meeting shall be on the first of Congresst

the Sessions

When expire?

Act of 22
Jan., 1867.

14 St. 378.

When are

Monday in December, unless they shall by law appoint a different day.

42. The constitutional term of Congress does not expire until twelve o'clock at noon on the 4th of March. 11 Stat. Appendix ii. 43. "In addition to the present regular times of the meeting of Congress, there shall be a meeting of the Fortieth Congress of the United States, and of each succeeding Congress thereafter, at 12 o'clock meridian, on the fourth day of March, the day on which the times of the term begins for which the Congress is elected, except that meetings? when the fourth of March occurs on Sunday, then the meeting shall take place at the same hour on the next succeeding day." So that each Congress is now divided into three sessions: first commences on the fourth day of March, and may continue its session until the first Monday in December; the second commences on the first Monday in December, and may continue until the next first Monday in December; the third commences on the first Monday in December, and must adjourn on the next fourth day of March, by the dissolution of the Congress.

When and for how long?

What are the powers of each House?

What are

turns and



SEC. V. [1.] Each house shall be the judge of the elections, returns, and qualifications of its own members; and a majority of each shall constitute a quorum to do business; but a smaller number may adjourn from day to day, and may be authorized to compel the attendance of absent members, in such manner, and under such penalties, as each house may provide.

44. THE ELECTIONS in a general sense, means the right to deterelection re- mine who has been chosen by the "qualified electors" at the qualifica- "times and places" and returned, according to "the regulations " prescribed by the laws of the States or by Congress wherein they 16-18, 29, 30, shall have been superseded. Each case usually depends upon its own facts; and the object generally has been to ascertain who has received the highest number of lawful votes. The necessity and importance of this power discussed. Story's Const. § 833.


The returns?

What of the qualifications?

19, 41, 35,

45. THE RETURNS from the State authorities are prima facie evidence only of an election, and are not conclusive upon the house. Spaulding v. Mead, Cl. & Hall, 16, 18, 29, 30, 41, 157; Reed v. Cosden, Id. 353. And the refusal of the executive of a State to grant a certificate of election, does not prejudice the right of one who may be entitled to a seat. Richard's Case, Id. 95.

46. The "QUALIFICATIONS," in its narrower sense, would doubtless relate to the age, citizenship, and inhabitancy of the applicant as defined in the second clause of section 2, art. 1, and the third clause of section three of the same. But as the term "PERSON," if taken alone, in both might include a female, a lunatic or an idiot, a convicted felon, a person of notoriously bad character, or actually



at war with the United States, as during the rebellion, or one coming from a State all of whose inhabitants are at war with the United States, the term "qualifications" has, in practice, 275, 272. received a more enlarged signification. Thus in the case of Mr. Niles, in 1846, a committee was raised, in the senate, to inquire into his mental capacity; the rebellion has caused a test oath, which might reach persons in all the States, and does embrace majorities in some of them; a concurrent resolution was passed in 1866, in regard to the States lately in rebellion, which, it was urged, limited this independent power of each house; the fourteenth amendment of the Constitution looks to a new disqualifica- 275–279. tion, and all the reconstruction acts, it has been argued, intrench upon this right. At the time of this writing one committee is investigating the subject of the disqualifications of certain members from Kentucky, and another the question as to whether Maryland has a "republican form of government" within the meaning of the Constitution.


It may be pretty strongly inferred from messages and speeches of President JOHNSON, and certainly it has been very clearly expressed by some of the opposition statesmen in the senate and house, that after the acts of reconstruction, that is, the formation of amended constitutions and elections under the proclamations of the President, the “persons" so chosen were entitled to their seats without any superadded “qualifications" to those prescribed in this 277-279. section, except the fact that they are "loyal men from loyal States."




But the statesmen of the majority argue, that while these States and these very members elected and returned, and the great bodies of their constituents were claiming to be aliens to the United States, and magistrates and people were engaged in war to resist the authority of the government, they were not entitled to representation; and a fortiori they cannot send members with the proper "qualifications" until the law-making power shall determine upon the terms of restoration; and that, certainly, the test oath is a superadded disqualification, which the president's pardon cannot overcome. On the other hand, it has been argued that, as that oath has been decided to be unconstitutional in some cases, it is so as to 142, 143. members who are willing to swear to support the Constitution; that the president's pardon does remove all political disabilities; and therefore, the test oath cannot apply to those who had been pardoned for their participation in the rebellion; and that the action of the people, under the authority of the president, restores those States and the citizens thereof, to all their rights, in statu quo ante bellum. These are the general arguments, for and against. The whole subject is a case not discussed in the formation of the Con. stitution; it is without precedent, because the frame-work of our government differs from all others; therefore, the difficult problem 275–279. must be worked out under its peculiar circumstances.

It is not within the plan of this work to give the opinions of the Editor. It may not be improper to remark, however, that there seems to be more difference as to who shall accomplish the work of restoration than what shall be done to accomplish it. All seem to


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