§ 101. The president of the senate must thereupon cause the court to be summoned to meet at the capitol in the city of Albany, on a day not less than thirty nor more than sixty days from the day of the delivery of the articles of impeachment. He must also cause a copy of the articles of impeachment, with a notice to appear and answer the same, at the time and place appointed for the meeting of the court, to be served on the defendant, not less than twenty days before the day fixed for the meeting of the court.

No provision is made in the existing statutes, as to the delivery of the articles of impeachment to the defendant. This seems necessary and proper.

As to the place of meeting of the court, this section is in conformity with section 21, p. 13.

the defendant person

102. The service must be upon ally, or if he cannot, upon diligent inquiry, be found in the state, the court, upon due proof of that fact, may order that publication be made in such manner as it deems proper, of a notice requiring him to appear at a specified time and place, and answer the articles of impeachment.

§ 103. If the defendant do not appear, the court, upon proof of service or publication as provided in the last two sections, may of their own motion, or for cause shown, assign another day for hearing the impeachment; or may then, or at any other time which it may appoint, proceed, in the absence of the defendant, to trial and judgment.

§ 104. When the defendant appears, he must answer the articles of impeachment; which he may do, either by objecting to their sufficiency, or of any article therein, or by denying the truth of the same.

§ 105. If the defendant object to the sufficiency of the impeachment, the objection must be in writing, but need not be in any specific form; it being sufficient, if it present intelligibly the grounds of the objection. If he deny the truth of the impeachment, the denial may be oral, and without oath, and must be entered upon the minutes.

§ 106. If an objection to the sufficiency of the impeachment be not sustained by a majority of the members of the court who heard the argument, the defendant must forthwith answer the articles of impeachment. If he plead guilty, or refuse to plead, the court must render judgment of conviction against him. If he deny the matters charged, the court must, at such time as they may appoint, proceed to try the impeachment.

The last five sections are new, but in conformity to the practice in criminal actions, to which this proceeding is analogous. The last sentence in section 98, is the same in substance as 2 R. S., 3d ed., 224, sec. 17.

§ 107. The oath or affirmation prescribed by section. 22, having been administered, the court must proceed to try and determine the impeachment, and may adjourn the trial from time to time.

The same as 2 R. S., 3d ed., 224, sec. 19; except that the words or place," at the end of the section therein, are

omitted in conformity with the judiciary act, Laws of 1847, p. 319, sec. 1; by which the court is required to meet at the capitol in the city of Albany.

§ 108. The defendant cannot be convicted on an impeachment, without the concurrence of two-thirds of the members present; and if two-thirds of the members present do not concur in a conviction, he must be declared acquitted.

The first clause of this section is take from the constitution; art. 6, sec. 1. The second is taken from 2 R. S., 3d ed., 224, sec. 21.

§ 109. After conviction, the court must immediately, or at such other time as it may appoint, pronounce judgment, in the form of a resolution, entered upon the minutes of the court. The vote upon the passage thereof must be taken by yeas and nays, and must also be entered upon the minutes.

§ 110. On the adoption of the resolution, by a majority of the members present, who voted on the question of acquittal or conviction, it becomes the judgment of the court.

§ 111. The judgment may be, that the defendant be suspended and removed from office, or that he be removed from office and disqualified to hold and enjoy a particular office or class of offices, or any office of honor, trust or profit under this state.

§ 112. If judgment of suspension be given, the defendant during the continuance thereof, is disqualified from receiving the salary, fees or emoluments of his office.

The provisions of the last four sections are, in the main, new, but are believed to be in accordance with the powers conferred upon this court by the constitution. By art. 6, sec. 1, of that instrument, it is provided that "judgment in case of impeachment shall not extend further than removal from office, or removal from office and disqualification to hold and enjoy any office of honor, trust or profit under this state," &c. The constitution does not undertake to define the different subordinate degrees, but only the utmost extent, of the punishment. Every thing but the latter, therefore, is in the discretion of the court as limited or defined by legislation. The object of an impeachment, and the effect of a conviction thereon, are to reach the party in his official character only; and he is, by the constitution, still subject to indictment and punishment, in his individual capacity. The only official punishment, therefore, to which he can possibly be subjected, short of removal and disqualification to hold any other office, is that provided for in section 112, of suspension and deprivation of the emoluments of office.

§ 113. A judicial officer cannot exercise his office, after being impeached, until he is acquitted.

The provi

Taken from the constitution, art. 6, sec. 1. sion of the revised statutes on the subject of suspension was: "Every officer impeached shall be suspended from the exercise of his office until his acquittal." 2 R. S, 3d ed., 225, SEC. 23. It has been thought better to pursue literally the language of the constitution, leaving the question as to the effect of the impeachment, in cases of other than judicial officers, should it arise, open for judicial construction.

§ 114. If the president of the senate be impeached, notice of the impeachment must be immediately given

to the senate by the assembly, that another president may be chosen.

Same as 2 R. S., 3d ed., 225, sec. 24.

§ 115. If the offence for which the defendant is impeached be the subject of an indictment, the indictment is not barred by the impeachment.

This provision is founded upon the concluding clause of art. 6, sec. 1, of the constitution, which differs in an important particular from the constitution of 1821. By art. 5, sec. 2, of that instrument, after prescribing the punishment upon a conviction on an impeachment, it was declared that "the party convicted shall be liable to indictment and punishment, according to law." The term "convicted" was also used in the report of the judiciary committee of the convention which framed the present constitution; Convention Journal, p. 618; but in the constitution as adopted, the word impeached" was substituted. Neither the journals nor the debates of the convention contain any mention of, or allusion to, the mode in which the change was effected.

66

TITLE II.

OF THE REMOVAL OF JUSTICES OF THE PEACE, POLICE JUSTICES, AND JUSTICES OF JUSTICES' COURTS, AND THEIR

CLERKS.

SECTION 116. Accusation to be presented to the presiding judge of the sessions. 117. Form and verification of the accusation.

118. To be transmitted to district attorney, and copy to be served on defendant, with notice to appear and answer.

119. Proceedings, if defendant do not appear.

120. Defendant may object to or deny the accusation.

121. Form of the objection.

123. If objection overruled, defendant to answer forthwith.

124. Proceedings upon plea of guilty, refusal to answer, or denial. 125. Majority of court who heard the trial, necessary for conviction. 126. Judgment upon conviction, and its form.

The power to remove these officers is, as been observed in the note to section 32, p. 22, 23, conferred upon the courts of sessions, for the reasons there stated.