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he is to answer. Ib. 101. If previously committed by the commons, he answers as a prisoner. But this may be called in some sort judicium parium suorum. Ib. In misdemeanors, the party has a right to counsel by the common law; but not in capital cases. Seld. Jud. 102...5.
Answer. The answer need not observe great strictness of form. He may plead guilty as to part, and defend as to the residue; or, saving all exceptions, deny the whole, or give a particular answer to each article separately. 1 Rush. 274.2 Rush. 1374. 12 Parl. Hist. 442. 3 Lords' Journ. 13 Nov. 1643. 2 Wood. 607. But he cannot plead a pardon in bar to the impeachment. 2 Wood. 615. 2 St. Tr. 735.
Replication, Rejoinder, &c. There may be a replication, rejoinder, &c. Seld. Jud. 114. 8 Grey's Deb. 233. Sachev. Tr. 15. Journ. H. of Com. 6 March, 1640....1.
Witnesses. The practice is to swear the witnesses in open house, and then examine them there: or a committee may be named, who shall examine them in committee, either on interrogatories agreed on in the house, or such as the committee in their discretion shall demand. Seld Jud. 120, 123.
Jury. In the case of Alice Pierce, 1 R. 2. a jury was impanneled for her trial before a committee. Šeld. Jud. 123. But this was on a complaint, not on impeachment by the commons. Seld. Jud. 163. It must also have been for a misdemeanor only, as the lords spiritual sat in the case, which they do on misdemeanors, but not in capital cases. Ib. 148. The judgment was a forfeiture of all her lands and goods. Ib. 188. This, Selden says, is the only jury he finds recorded in parliament for misdemeanors: but he makes no doubt, if the delinquent doth put himself on the trial of his country, a jury ought to be impanneled, and he adds, that it is not so on impeachment by the commons; for they are in loco proprio, and there no jury ought to be impanneled. Ib. 124. The Ld. Berkely, 6 E. 3. was arraigned for the murder of, L. 2. on an information on the part of the king, and not on impeachment of the commons; for then they had been patria sua. He waved his peerage, and was tried by a jury of Gloucestershire and Warwickshire. Ib. 125. But 4. Hats. 73, says he was a commoner, and that there was no waiver of privilege. In 1 H. 7. the commoners protest that they are not to be considered as parties to any judgment given, or hereafter to be given in parliament. Ib. 133. They have been generally, and more justly, considered, as is before stated, as the grand jury. For the conceit of Selden is certainly not accurate, that they are the patria sua of the accused, and that the lords do only judge, but not try. It is undeniable that they do try. For they examine witnesses as to the facts, and acquit or condemn, according to their own belief of them. And lord Hale says “the peers are judges of law as well as of fact.” 2 Hale. P. C. 275. Consequently of fact as well as of law.
Presence of commons. The commons are to be present at the examination of witnesses. Seld. Jud. 124. Indeed they are to attend throughout, either as a committee of the whole house, or otherwise, at discretion, appoint managers to conduct the proofs. Rush. Tr. of Straff. 37. Com. Journ. 4 Feb. 1709.... 10. 2 Wood. 614. And judgment is not to be given till they demand it. Seld. Jud. 124. But they are not to be present on impeachment when the lords consider of the answer or proofs, and determine of their judgment. Their presence however is necessary at the answer and judgment in cases capital, ib. 158, 159, as well as not capital. 162. The lords debate the judgment among themselves. Then the vote is first taken on the question of guilty or not guilty: and if they convict, the question, or particular sentence, is out of that which seemeth to be most generally agreed on. Seld. Jud. 167. 2 Wood 612.
Judgment. Judgments in parliament for death have been strictly guided per legem terræ, which they cannot alter; and not at all according to their discretion. They can neither omit any part of the legal judgment, nor add to it.
Their sentence must be secundum, non ultra legem. Seld. Jud. 168, 171. This trial, though it varies in external ceremony, yet differs not in essentials from criminal prosecutions before inferior courts.
The same rules of evidence, the same legal notions of crimes and punishments prevail. For impeachments are not framed to alter the law, but to carry it into more effectual execution against too powerful delinquents.
The judgment therefore is to be such as is warranted by legal principles or precedents. 6 Sta. Tr. 14. 2 Wood. 611. The chancellor gives judgments in misdemeanors; the lord high steward formerly in cases of life and death. Seld. Jud. 180. But now the steward is deemed not necessary. Fost. 144. 2 Wood. 613. In misdemeanors, the greatest corporal punishment hath been imprisonment. Seld. Jud. 184. The king's assent is necessary in capital judgments, (but 2 Wood. 614, contra) but not in misdemeanors. Seld. Jud. 136.
Continuance. An impeachment is not discontinued by the dissolution of parliament; but may be resumed by the new parliament. T. Ray. 383. 4 Com. Journ. 23 Dec. 1790. Lords' Journ. May 16. 1791. 2 Wood. 618.
FOR CONDUCTING BUSINESS
1. The President having taken the chair, and a quotum being present, the journal of the preceding day shall be read, to the end that any mistake may be corrected that shall be made in the entries.
2. No member shall speak to another, or otherwise interrupt the business of the senate, or read any newspaper, while the journals or public papers are reading, or when any member is speaking in any debate.
3. Every member when he speaks shall address the chair, standing in his place, and when he has finished shall sit down.
4. No member shall speak more than twice, in any one debate, on the same day, without leave of the senate.
5. When two members rise at the same time, the president shall name the person to speak; but in all cases the member first rising shall speak first.
6. When a member shall be called to order, he shall sit down until the president shall have determined whether he is in order or not; and every question of order shall be decided by the president without debate ; but if there be a doubt in his mind, he may call for the sense of the senate.
7. If the member be called to order for words spoken, the exceptionable words shall immediately be taken down in writing, that the president may be better enabled to judge of the matter.
8. No member shall absent himself from the service of the senate, without leave of the senate first obtained. And in case a less number than a quorum of the senate shall convene, they are hereby authorised to send the sergeant-at-arms, or any other person or persons by them authorised, for any or all absent members, as the majority of such members present shall agree, at the expense of such absent members respectively, unless such excuse for non-attendance shall be made, as the senate, when a quorum is convened, shall judge sufficient; and in that case, the expense shall be paid out of the contingent fund.
And this rule shall apply as well to the first convention of the senate at the legal time of meeting, as to each day of the session, after the hour has arrived to which the senate stood adjourned.
9. No motion shall be debated until the same shall be seconded.
10. When a motion shall be made and seconded, it shall be reduced to writing, if desired by the president, or any member, delivered in at the table, and read, before the same shall be debated.
11. When a question is under debate, no motion shall be received but to adjourn, to lie on the table, to postpone indefinitely, to postpone to a day certain, to commit, or to amend ; which several motions shall have precedence in the order they stand arranged ; and the motion for adjournment shall always be in order, and be decided without debate.
12. If the question in debate contains several points, any member
have the same divided. 13. In filling up blanks, the largest sum and longest time shall be first put.
14. When the reading of a paper is called for, and the same is objected to by any member, it shall be determined by a vote of the senate, and without debate.
15. The unfinished business in which the senate was engaged at the last preceding adjournment, shall have the preference in the orders of the day, and no motion on any other business shall be received without special leave of the senate, until the former is disposed of.
16. When the yeas and nays shall be called for by onefifth of the members present, each member called upon shall, unless for special reason he be excused by the senate, declare openly, and without debate, his assent or dissent to the question. In taking the yeas and nays.