for even if the last adjournment was to this day, the act of adjournment is merged in the higher authority of the Constitution, and the meeting will be under that, and not under their adjournment. So far we have fixed landmarks for determining sessions. In other words it is declared by a joint vote authorizing the president of the senate and speaker to close the session on a fixed day, which is usually in the following form: Resolved, by the Senate and House of Representatives, That the president of the senate and speaker of the house of representatives be authorized to close the present session by adjourning their respective houses on the- -day of— -.]

When it was said above that all matters depending before Parliament were discontinued by the termination of the session, it was not meant for judiciary cases depending before the house of lords, such as impeachment, appeals, and writs of error. These stand continued, of course, to the next session. 120, 381; Ruffh. Jac. L. D. Parliament.

Raym. [Impeachments stand, in like manner, continued before the senate of the United States.]

SECTION LII.

TREATIES.

[The president of the United States has power, by and with the advice and consent of the senate, to make treaties, provided two-thirds of the senators present concur. Const. U. S. II. 2.]

[All confidential communications made by the president of the United States to the senate shall be by the members thereof kept secret; and that all treaties which may hereafter be laid before the senate shall also be kept secret, until the senate shall, by their resolution, take off the injunction of secrecy. Rule 39.]

Treaties are legislative acts. A treaty is the law of the land. It differs from other laws only as it must have the consent of a foreign nation, being but a contract with respect to that nation. In all countries, I believe, except England, treaties are made by the legislative power; and there also, if they touch the laws of the land, they must be approved by Parliament. Ware vs. Hayton, 3 Dallas' Rep. 223. It is acknowledged, for instance, that the king of Great Britain can not by a treaty make a citizen of an alien. Vattel, b. 1, c. 19, sec. 214. An act of Parliament was necessary to validate the American treaty of 1783. And abundant examples of such acts can be cited. In the case of the treaty of Utrecht, in 1712, the commercial articles required the concurrence of Parliament; but a bill brought in for that purpose was rejected. France, the other contracting party, suffered these articles, in practice, to be not insisted on, and adhered to the rest of the treaty. 4 Russel's Hist. Mod. Europe, 457; 2 Smollet, 242, 246.

[By the Constitution of the United States this department of legislation is confined to two branches only of the ordinary legislature; the president originating, and the senate having a negative. To what subjects this power extends has not been defined in detail by the Constitution; nor are we entirely agreed among ourselves. 1. It is admitted that it must concern the foreign nation party to the contract, or it would be a mere nullity, res inter alios acta. 2. By the general power to make treaties, the Constitution must have intended to

comprehend only those subjects which are usually regulated by treaty, and can not be otherwise regulated. 3. It must have meant to except out of these rights to the states; for surely the president and senate can not do by treaty what the whole government is interdicted from doing in any way. 4. And also to except those subjects of legislation in which it gave a participation to the house of representatives. This last exception is denied by some, on the ground that it would leave very little matter for the treaty power to work on. The less the better, say others. The Constitution thought it wise to restrain the executive and senate from entangling and embroiling our affairs with those of Europe. Besides as the negotiations are carried on by the executive alone, the subjecting to the ratification of the representatives such articles as are within their participation, is no more inconvenient than to the senate. But the ground of this exception is denied as unfounded. For examine, e. g., the treaty of commerce with France, and it will be found that, out of thirty-one articles, there are not more than small portions of two or three of them which would not still remain as subjects of treaties, untouched by these exceptions.]

Treaties being declared, equally with the laws of the United States, to be the supreme law of the land, it is understood that an act of the legislature alone can declare them infringed and rescinded. This was accordingly the process adopted in the case of France in 1798.

[It has been the usage for the executive, when it communicates a treaty to the senate for their ratification, to communicate also the correspondence of the negotiators. This having been omitted in the case of the Prussian treaty, was asked by a vote of the house, of Feb. 12, 1800, and was obtained. And in December, 1800, the convention of that year between the United States and France, with the report of the negotiations by the envoys, but not their instructions, being laid before the senate, the instructions were asked for, and communicated by the president.]

[The mode of voting on questions of ratifications is by nominal call.]

[Whenever a treaty shall be laid before the senate for ratification, it shall be read a first time for information only; when no motion to reject, ratify, or modify the whole, or any part shall be received. Its second reading shall be for consideration, and on a subsequent day, when it shall be taken up as in a committee of the whole, and everyone shall be free to move a question on any particular article, in this form: "Will the senate advise and consent to the ratification of this article?" or to propose amendments thereto, either by inserting or by leaving out words, in which last case the question shall be, “Shall the words stand part of the article?" And in every one of the said cases, the concurrence of two-thirds of the senators present shall be requisite to decide affirmatively. And when, through the whole, the proceedings shall be stated to the house, and questions be again severally put thereon, for confirmation, or new ones proposed requiring in like manner a concurrence of two-thirds for whatever is retained or inserted.]

[The votes so confirmed shall, by the house, or a committee thereof, be re. duced into the form of a ratification, with or without modifications, as may have been decided, and shall be proposed on a subsequent day, when everyone shall again be free to move amendments, either by inserting or leaving out words; in which last case the question shall be: "Shall the words stand

part of the resolution?" And in both cases the concurrence of two-thirds shall be requisite to carry the affirmative; as well as on the final question to advise and consent to the ratification in the form agreed to. Rule 37.]

[When any question may have been decided by the senate, in which twothirds of the members present are necessary to carry the affirmative, any member who voted on that side which prevailed in the question may be at liberty to move for a reconsideration, and a motion for reconsideration shall be decided by a majority of votes. Rule 37.]

SECTION LIII.

IMPEACHMENT.

[The house of representatives shall have the sole power of impeachment. Const. U. S. I. 3.]

[The senate shall have the sole power to try all impeachments. When sitting for that purpose, they 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. 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. Const. I. 3.]

[The president, vice president and all civil officers of the United States shall be removed from office on impeachment for, and conviction of, treason, bribery or other high crimes and misdemeanors. Const. II. 4.]

[The trial of crimes, except in cases of impeachment, shall be by jury. Const. III. 2.]

These are the provisions of the Constitution of the United States on the subject of impeachments. The following is a sketch of some of the principles and practices of England on the same subject:

Jurisdiction. The lords can not impeach any to themselves, nor join in the accusation, because they are the judges. Seld. Judic. in Parl. 12, 63. Nor can they proceed against a commoner but on complaint of the commons. Ib. 84. The lords may not, by the law, try a commoner for a capital offense, on the information of the king or a private person, because the accused is entitled to a trial by his peers generally; but on accusation by the house of commons, they may proceed against the delinquent of whatsoever degree, and whatsoever be the nature of the offense; for there they do not assume to themselves trial at common law. The commons are then instead of a jury, and the judgment is given on their demand, which is instead of a verdict. So the lords do only judge, but not try the delinquent. Ib. 6, 7. But Wooddeson denies that a commoner can now be charged capitally before the lords, even by the commons; and cites Fitzharris' case, 1681, impeached for high treason, where the lords remitted the prosecution to the inferior court. 8 Grey's Deb. 325-7; Wooddeson, 601, 576; 3 Seld. 1610, 1619, 1641; 4 Blackst. 25; 73 Seld. 1604, 1618; 9, 1656.

Accusation. The commons, as the grand inquest of the nation, become suiters for penal justice. 2 Wood. 597; 6 Grey, 356. The general course is to pass a resolution containing a criminal charge against the supposed delinquent, and then to direct some member to impeach him by oral accusation, at the bar of the house of lords, in the name of the commons. The person signifies that the articles will be exhibited, and desires that the delinquent may be sequestered from his seat, or be committed, or that the peers will take order from his appearance. Sachev. Trial, 329; 2 Wood. 602, 605; Lords' Jour. 3 June, 1701, 101; 1 Wms. 616; 6 Grey, 324.

Process. If a party do not appear, proclamations are to be issued, giving him a day to appear. On their return they are strictly examined. If any error be found in them, a new proclamation issues, giving a short day. If he appear not, his goods may be arrested and they may proceed. Seld. Judd. 98, 99.

Articles. The accusations (articles) of the commons is substituted in place of an indictment. Thus, by the usage of Parliament, in impeachment for writing or speaking, the particular words need not be specified. Sach. Tr. 325; 2 Wood. 602, 605; Lords' Jour. 3 June, 1701, 101; 1 Wms. 616.

Appearance. If he appears, and the case be capital, he answers in custody; though not if the accusation be general. He is not to be committed but on special accusations. If it be for a misdemeanor only, he answers, a lord in his place, a commoner at the bar, and not in custody, unless, on the answer, the lords find cause to commit him, till he finds sureties to attend, and less he should fly. Seld. Judd. 98, 99. A copy of the article is given him, and a day fixed for his answer. T. Ray, 1; Rushw. 268; Fost. 232; 1 Clar. Hist. of the Reb. 379. On a misdemeanor his appearance may be in person, or he may answer in writing, or by attorney. Seld. Judd. 100. The general rule on accusations for a misdemeanor is, that in such a state of liberty or restraint as the party is when the commons complain of him, in such 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 judicum parium suorum. Ib. In misdemeanors the party has a right to counsel by the common law; but not in capital cases. Seld. Judd. 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; 1 Rush, 1374; 12 Parl. Hist. 442; 3 Lords' Jour. 13 Nov. 1643; Woodd 607. But he can not plead a pardon in bar to the impeachment. 2 Woodd. 615; 2 St. Tr. 735.

Replication rejoinder, etc. There may be a replication, rejoinder, etc. Seld. Judd. 114; 8 Grey's Deb. 233; Sach. Tr. 15; Jour. H. of C. 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. Judd. 120, 123.

Jury. In the case of Alice Pierce (1 R. 2) a jury was impaneled for her trial before a committee. Seld. 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. Id. 148. The judgment was a forfeiture of all her lands and goods. Id. 188. This, Selden says, is the only jury he finds recorded in Parliament for misdemeanor; but he makes no doubt, if the delinquent doth put himself on trial of his country, a jury ought to be impaneled, 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 impaneled. Id. 124. The Ld. Berkley, 6 E. 3, was arraigned for the murder of L. 2, on an information on the part of the king, and not impeachment of the commons; for then they had been patria sua. He waived his peerage and was tried by a jury of Gloucestershire and Warwickshire. Id. 125. In 1 H. 7, the commons protest that they are not to be considered as parties to any judgment given or hereafter to be given in Parliament. Seld. Jud. 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, and they are 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. Rushw. Tr. of Straff. 37; Com. Journ. 4 Feb. 1709-10; 2 Woodd. 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 of proofs and determine of their judgment. Their presence, however, is necessary at the answer and judgment in cases capital (Id. 58, 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 Woodd. 612.

Judgment. Judgments in Parliament, for death, have been strictly guided per legem teræ, which they can not alter; and not at all according to their discretion. They can neither omit any legal part of the judgment nor add to it. Their sentence must be secundum, non ultra legem. Seld. Jud. 168–71. This: trial, though it vary 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 prevailed; for impeachments are not framed to alter the law, but to carry it into more effectual execution against two powerful delinquents. The judgment, therefore, is to be such as is warranted by legal principles or precedents. 6 Sta. Tr. 14; 2 Woodd. 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 Woodd. 613. In misdemeanors the greatest corporal. punishment hath been imprisonment. Seld. Jud. 184. The king's assent is necessary in capital judgments (2 Woodd. 614 contra), but not in misdemeanors. Seld. Jud. 136.

Continuance. An impeachment is not discontinued by the disolution of Parliament, but may be resumed by the new Parliament. T. Ray, 383; 4 Com.. 23 Jour. Dec. 1790; Lords' Jour. May 15, 1791; 2 Woodd. 618.