American Law 8.10.2011

III The origins of the US Constitution

1 The Constitutional Convention of 1787 : one rule = compromise !

There existed a group of very proeminent figures who wanted a complete new kind of union with an entirely different Constitution framework. These men who became known as federalists included James Madison, Alexander Hamilton, John Jay, John Adams and George Washington. The federalists were convinced that the US could not survive without a much more powerful national government. The problem for the federalists was that the standard of unanimity imposed by the article 12 ( Of confederation) made it impossible to legally increase the powers of the national government. Therefore, the federalists realized that they would have to find a way of creating an ultimate national government. Lead by James Madison, the federalists called for general reform of the governement in 1783 and the Congress authorized the Philadelphia Convention in February 1787 for the soul and express purpose of revising the articles of confederation. Once assembled, the delegates knew that compromise was to be an important element of the convention. Therefore, They formulated rules which permitted every issues to be reopened and which kept the proceedings secret in order to permit delegates to compromise political repercution. Although it was agreed that the power of the federal government needed to be straightening in relation to the state, there was considerable discussion for change. There were disagreements between the delegates of big and small states and betweenn the northern and southern states. The Virginia Plan was introduced by James Madison and it included a resolution for the creation of the supreme of the Court legislative judiciary and executive provided that both houses of congress be chosen on the basis of population. Such a scheme could have given the largest states, especially virginia pennsylvania and massachussetts, virtual control over the new national government. The smaller states objected and countered with the new Jersey Plan wich essentially abandoned the concept of a supreme government and called only for the modification of the articles of confederation. In order to retain the concept of a supreme government, compromise was needed, the result was what we call the Great Compromise or the Konnecticut Compromise which called for equal representation of the state in the senate while retaining the principle of representation by population in the house. Also, the difference between northern and southern states evolved in the slaves trade and the agravian economy in the south merchant economy in the north. The north wanted to aportion exepenses of the new governement by population including the slaves while the southern states did not desire to include slaves in the population count. Once again, the compromise was that slaves would be counted as three fith persons for purposes of both taxations and reprensentation. Other comporomises were made as to a possible veto of state legislation by the federal government wich was droppped or the immediate abolition of slaves trade by the federal government which was prohibited for 20 years. The delegates who signed the drafted constution in Philadelphia on september 16^th 1787 stipulated that it would take effect only after approval by ratifying conventions in at least 9 out of the 13 states. A negative vote by ny or virginia could destroy the enterprise because of their size and power and both delegates were sharply divided in their opinions of the constitution. In fact, the NY governer which cas George Clinton was a strong federalist and had already made clear its opposition. Therefore, the most intense debate was focused on NY. In particlar, 3 federalists, Jay, Madison and hamilton, undertook the right to write a series of articles in NY newspapers. The articles were later published as a book entitled the federalist papers although they originally appeared anonymously in NY daily newspapers under the name PuBLIUS.

2 Overview of the Federalists papers

The first federalist essay appeared in the Independant Journal in october 1787 just four weeks after the constitutional convention presented the US Constitution to the States for ratification. It was one of an eventual 85 essays wich argued in strong support of the Constitution and which were published in NY newspapers during the next 6 months. The political philosophy contained in the federalist papers is based on the theories of the european philosophers of the enlightment, it was based also on historical examples and on the experience of the US on the articles of conferedation. The essays not only provided philosophocal articles and theories about the nature of individuals and governments but also criticism of the weaknesses of the articles of conferedation . The main purpose of the essays was to convince the people of NY that a more energetic and stronger centralized government would be more protective of their liberty. The european philosophers influencing the statement of political philosophy in the federalist papers were Locke, Rousseau, Montesqieu and Thomas Hobbes. Many leaders realized that the self interests of the state would eventually tear the union aprt and that the articles of conferedation provided no legal or political means to stop it. States disagreed with one another over land claims, commerce regulations and frequently raised limitations against some states. Ex : although strictly forbidden by the articles, states established relations and treaties with foreign nations and refused to sent much needed tax money to Congress. The auhors of the federalist essays thought to explain the superiority of the new plan through the use of historical exemples but also references to the natural rights and behaviours of men and by appealing to the readers sense of patriotism. It is not clear wether the federalist papers had a decisive effect on NY reluctent ratification of the Constitution. But, there can be no doubt that they became and remained the most authoritative commentary on that document. In fact, the federalist papers are vey often quoted in US supreme court decisions. Hamilton outlined the intended content of the federalist papers ( number 1). Writing as Publius, he said the essay would cover 6 topics :

• utility of the union to achieve the political prosperity
• The uneffeciensy of the present confederation to preserve that union
• The necessity of a government at least equally energetic with the one proposed by the constitution
• The conformity of the proposed Constitution to the true principles of republican government
• The analogy of this Constitution to the people 's own states Constitutions
• The additional security with the adoption of the Constitution which will preserve a true republican government based on liberty and prosperity.

The first 50 essays of the federalists were about the first four topics. Essays to 51 to 66

House of reprensatives and the senate

67 to 77 it covers the executive brench

78 to 83 federal tradition

84 response to objections to the absence of a bill of right in the constitution.

85 includes some comments on topics 5 and 6 but it mainly urges people to support the ratification of the Constitution because of the difficulty of assembling a new constitutional convention. Federalist such as Robert YATES, Richard Henri Lee and George Clinton responded to these arguments in anonymous articles on their own using names like Brutus or federal framer. They criticized the constitution and warned that it would create a distant central power divorced from local needs and democratic accountability leading to renewed tyranny like that of the British epire. This diverse group of men was committed to preserve the diversity of the state and the diverty of local democratic governement of the best means of preserving liberty and as the only sound basis for republican gvernment. They were often ..to the idea of a string executive as well ad to the power of an unelected juridiciary. ONCE it became clear to them that theyhad lost the struggle to prevent the ratification of the new Constitutin, they put their energy into securing a federal bill of rights to constrain the power of this new central government. On July 2^nd 1787 with new Hampshire ratification the US Constitution became accepted formally and the comity was to plane the transistion of the new government. March 4^th 1787 : New US government under the US Constitution formally went into

As a conclusion, the admission for a bill of rights was necessary and it was a vital concession made in 1791 by the federalists to secure the support of the enty federalists camp. The bill of rights became the first 10 amendments of the constitution US. Nevertheless, the federalist had secured a major victory by impsing their vision of the national future. Finaly, lthough the Constitution went into force in the spring of the 1787, its substance and meaing have constinued to be the source of contreversy and struggle and even still today.

Check and balances

The Us constitution is the odest leaving Constitution today. It contains the basic principles upun wich the amercian republic is granded. It was drafted as a constitution convention in Philadelphia in 1787. It was ratified by 9 states out of 13 by Junes 21^st 1788 and it was emplimented in 1789. What are the main principles ?

• Separation of powers
• Establishment of a Check and balances system
• Guidlines for both federal and state governement action and activity
• Bill of rights
• Amendments

I Overview of the US constitution

Preamble

It provides a source of powers lead out by the rest of the constitution ( preamble). Also, common defense is mentioned in the preamble. The proponance of a strong union and those in favor of strong state agree on this point. One of the main objective of the union is to defend the interest of the Americans against invaders or former colonists meaning England. The premble declares that a purpose of the C. Is to promote the general welfare. Finally, The US Supreme Court does not consider thatthe preamble grants any particular authority to the federal government or that it prohibits any particular authority.

Article 1 : Legislative powers

It deals directely with the legislative branch also known as Congress. It establishes a bicameral entity with a senate with 100 senators ( 2 per state) and a House of representatives based on proprotional representation. Today, there are 435 voting representatives.

Clause 3 : Blacks were not free persons. They were counted as Three fith of all other persons. These words are still appearing on the US Constitution, the part of this clause relating to the calculation of the number of people of each state was changed by the 40 th amendement in 1868 and the equal protection clause.

Section 8 clause 1 and 2 3 4 5

As a legislative body, congress has certain inherent powers :

• enumerated powers : listed from clause 1 to clause 17 of the section 8.
• clause 1 tax and spending
• As to clause 3, originally the commerce clause cas intented to start the interferences of the state with trade. Throughout the 20^th century, the federal courts interpretated this clause as a mean of expending government power over the states. Today, the commerce class is a basis of important peace time powers of the national government as well as an important reference for judicial review of state actions. It has so emplied power.

Clause 18 : Necessary and proper clause : Chief Justice John Marshall ( of the supreme court) developed the notion of implied powers in the 1819 case called Mc CULLOCH versus Maryland. The issue in this case was the constitutionality of congress establishment of a bank for the US. Chief justice Marshall admitted that the federal government was a government of limited powers and that there was no specific mention in articlle 1 of the C. Of any power to constitute a bank. But,marshall held that the grant of explicit enumerated power necesseraly imlplied the power to do what was appropriate to carry out those powers. Thus, since congress had explicit poiwers to lay and collect taxes to borrow money and to regulate commerce and since a bank would clearly assist in carrying out these powers. Therefore, congress had the implied power to create a bank.

Section 9 article 1 2 3

clause 2 Habeas corpus it is a both british and american democracies stipulating that an individual may not be deprived of her or his freedom of movement without legal guarantees of due process of law. ( due process of law is guaranteed by the 5^th amendment which is prtecvtion of gov and the 14^th am which is protection of the state ...)

clause 3 A bill of attender : It is a legislative measure which declares somebody guilty of a crime without a trial and set's punishment.

Exose facto law : After the fact law, it is prohibited to pass laws that criminalized actions that were not unlawful when they were carried out.

Section 10 clause 1 2 3

These are articles denied to the state.

Clause 1 : basis of federalism and the distribution of power between the federal government and the stae.

Clause 2 : executive power : it was used to depart a discussion...little to use as a departure point in the

it deals with the us executive branch otherwide known as the presidency. The us was the first country to create the office of the preisdent as head of a modern republic. 43 presidents have succeddeed the first president ( George Washington). The president's role and duties consist essentially in enforcing national law as presendted in the constitution and enacted by Congress. Executive power is vested in the president by article 2 section 1 of the C.

Clause one artilce 2 sets election process with an electoral college.

Article 2 Section 2 Clause 1 : 1 )The president has powers over external affairs. He is the commander chief. Although lacking the power to declare or initiate war, the psdt has extensive powers on arm forces in armed... In this cases the psdt does not need a congressional declaration of war. The last time USA declared war : 1941 2) Foreign relations : has the power to receive ambassadors and make treaties. The treaty is made by the President by and with the adive of the Congress (2/3 of the senators) 3) internal affairs powers and duties : psdt is powered to grant pardon for offences against the US except impeachment. This power applies before, during and after tiral but only on criminal trials. Article 2 Section 3 : Speech : « State of the Union ». This adress by the psdt not only reports on the condition of the nations but also allows the psdt to outline his legislative agenda and national priporities to Congress. Originally the framers of the C° intended to specy various departments of the executive branch.Congress established the various departments of the executive branchs. Has created14 departments : Agri commerce education energy housing and urban development interior labour state defense transportation treasury justice veterans' affairs Health and Human services The heads of these departments are called Secretary. They are appointed by the psdt and are referred collectively as the Psdt Cabinet. Section 4 : HELENE & VICTOR IMPEACHMENT MECANISM AND EXAMPLES

Exposé d'Hélène et Victor

EXPOSE

Impeachment mechanism and examples.

Introduction.

- Article 1, section 2:

The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment.

- Article 1, section 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.

- The official definition given by the USconstitution website is:

Impeachment, in the U.S. and Great Britain, proceeding by a legislature for the removal from office of a public official charged with misconduct in office. Impeachment comprises both the act of formulating the accusation and the resulting trial of the charges; it is frequently but erroneously taken to mean only the removal from office of an accused public official. An impeachment trial may result in either an acquittal or in a verdict of guilty. In the latter case the impeached official is removed from office; if the charges warrant such action, the official is also remanded to the proper authorities for trial before a court.

Impeachment is a formal process in which an official is accused of unlawful activity, the outcome of which, depending on the country, may include the removal of that official from office as well as other punishment.

So first, we will talk about the principle of the “impeachment procedure” and secondly, we will talk about the different uses of this procedure.

Part 1. The principle of the “impeachment

Procedure”.

- In a first paragraph, we will come back in the past to discover where the impeachment comes from and how it has evolved through the centuries.

1. The origins of the Impeachment procedure in Great

Britain.

- The “impeachment” procedure comes from Great Britain, where it appeared during the 14^th century. The name of “impeachment” is due to a practice in Great Britain. Indeed, the procedure in Great Britain is divided in two stages: the right to launch proceedings is attributed to the lower house, the House of Commons and the right to judge is given to the upper house, the House of Lords.

Concerning the people referred by the procedure: all the possessors of a right, not only the Crown officials as ministers, judges… The King cannot be pursued by an impeachment procedure.

- Any MP can launch the procedure of impeachment. This MP has to find real charges against the pursued person and move the impeachment. Inside the House of Commons, a committee is formed with several MPs to establish the charges and create an Article of Impeachment. This article created, if the House of Commons approves the motion (a simple majority is required), the Article of Impeachment is given to the Lords who are the intermediate between the accused one and the MPs.

Then the House of Lords presided by the Lord Chancellor, hears the case.

The hearing can be compared with an ordinary trial: both sides can call witnesses and present evidence. At the end of the hearing, the Lords vote on the verdict (only a simple majority is required). Finally, one Lord stands up and declares "guilty, upon my honour" or "not guilty, upon my honour".

After the voting on all of the articles has taken place and if the Lords find the defendant guilty, the Commons may move for judgment; the Lords will not declare the punishment until the Commons have moved. The Lords then decide what punishment to choose, within the law: they have a large range of choices: dismissal, fine, seizure, banishment and even death penalty.

- A royal pardon cannot excuse the defendant from trial, but a pardon may reprieve a convicted defendant. However, a pardon cannot override a decision to remove the defendant from the public office they hold.

Or, the supremacy of the House of Commons over the King’s ministers during the 18^th Century has implied that the first one referred by the “impeachment”, resign from the first stage, from they were prevented, without waiting for the House of Lords’ judgment. So the responsibility over impeachment stopped at the first stage of the procedure, which was called “impeachment”. Then all the procedure has taken the name of “impeachment”, this term only pointed out the preliminary stage of a political and criminal responsibility opened by the “impeachment”.

The Impeachment procedure was first used against Baron William Latimer in 1376.

Today, it is considered as obsolete, MPs preferring the “motion of no confidence”.

The last call for an impeachment has been launched by General Sir Michael Rose in 2006 against Tony Blair, for leading the country into the War in Iraq in 2003 under allegedly false reason.

2. The translation of the British Impeachment

Procedure into the US Constitution.

- The US took their “impeachment” inspiration from Great Britain. The first 13 colonies first translated this procedure in their own Constitutions and the Impeachment has then been integrated in the US federal Constitution of 1787.

This is why we can find similarities between the English procedure and the American procedure.

For example, as in Great Britain, the two legislative chambers are concerned by the procedure: the lower chamber engages the proceedings and the upper chamber judges the pursued person: all the procedure is the same: the creation of Impeachment articles, the intermediate role of the upper house, also constituted as a Court and its members as judges. The royal or the presidential pardon cannot work in the accused favour.

Also the incriminations of the 2 countries are practically the same: “high treason, high crimes and misdemeanors” for Great Britain and “treason, bribery, high crimes and misdemeanors” for the US.

However, we can’t say that the US impeachment is the same as the Great Britain’s impeachment, especially because of the federal structure of the US. Moreover, contrary to Great Britain, only the federal civil officers are threatened, including the Vice-President and the President of the US. Some have argued that members of Congress can be pursued and others said no, this is still today a non-answered question.

Furthermore, the 2/3 (two-thirds) of the votes of the present senators are required to take a sanction.

Otherwise, the types of sanction are different in the US: only dismissal and eventually prohibition to exercise a federal function in the future.

3. The mechanism of the US Impeachment.

- In the US, the Impeachment can be used on two different levels: the federal level and the state level.

The US Constitution defines the Impeachment procedure on the federal level and limits it to the President, the Vice President, and all civil officers of the United States, as we have seen in the previous paragraph.

1. The State Level.

- State legislatures can impeach state officials, including governors, according to their respective state Constitutions.

Indeed, each state has its own lower house (also called Assembly) and its upper house (the State Senate).

However, the procedure is not exactly the same. For example concerning the NY case, during the trial made by the State Senate, but the judges of the NY State Court of Appeal is also present to the trial and participate to the vote.

Impeachment and removal of governors has happened occasionally in the history of the United States, usually for corruption charges.

2. The Federal Level.

- As we have seen previously, the impeachment process in the US is divided in two procedures.

a) The House of Representatives.

- The Impeachment procedure is introduced by a member of the House of Representatives, in his own initiative, by presenting an enumeration of charges given under oath, or by asking for referral to the appropriate committee.

The impeachment process can start by non-representatives. For example, the Judicial Conference of the United States can suggest that a federal judge should be impeached, so a special prosecutor would make a list of accusations that will form the basis for impeachment.

The type of impeachment resolution determines in which committee it will be referred, in general the House Committee on the Judiciary. A resolution to authorize an investigation first is referred to the House Committee on Rules and then to the Judiciary Committee.

The House Committee on the Judiciary will determine by majority vote if grounds for impeachment exist. If the Committee finds grounds for impeachment, they will create one or more articles that will include the specific allegations of misconduct. These articles are named: the Impeachment Resolution, or Article(s) of Impeachment, and they are then reported to the full House of Representatives with the committee's report.

The House debates the resolution and at the end of the debates will consider the resolution as a whole or vote on article by article. A simple majority of those present and voting is required for each article or the resolution as a whole to pass.

If the House votes to impeach, managers will be named to present the case to the Senate.

Then, the House of Representatives will adopt a resolution in order to notify the Senate of its action. After receiving the notice, the Senate will adopt an order notifying the House that it is ready to receive the managers. The House managers then appear in front of the Senators and present the Articles of Impeachment. After the reading of the charges, the managers return and make a verbal report to the House.

b) The Senate.

- The proceedings development is in the form of a trial, with each side having the right to call witnesses and perform cross-examinations. The House members, who are given the title of managers during the course of the trial, present the prosecution case and the pursued official has the right to build a defense with his own attorneys. Senators must also take an oath or affirmation that they will perform their duties honestly and with due diligence. After hearing the charges, the Senate usually deliberates in private. Conviction requires a two-thirds majority.

The Senate enters judgment on its decision, and a copy of the judgment is filed with the Secretary of State. Upon conviction, the official is automatically removed from office and may also be barred from holding future office. The removed official is also liable to criminal prosecution. The President may not grant a pardon in the impeachment case, but may in any following criminal case.

In the first years of 1980, the Senate began to use “Impeachment Trial Committees” pursuant to the Senate Rule 12.

These committees presided over the evidentiary phase of the trials, hearing the evidence and supervising the examination and the cross-examination of witnesses. The committees would then compile the evidentiary record and present it to the Senate, after, all senators would have the opportunity to review the evidence before the chamber and so vote to convict or acquit. The purpose of these committees was to organize the impeachment trials, which otherwise would have taken up a great deal of the chamber's time. Impeached people disputed the use of these committees, claiming them to be a violation of their fair trial rights as well as the Senate's constitutional mandate, as a body, to have "sole power to try all impeachments". Several impeached judges called Court intervention in their impeachment proceedings on these questions, but the Courts refused to become involved due to the Constitution's granting of impeachment and removal power solely to the legislative branch, making it a political question still not answered today.

Part 2. Different uses in the practice.

Impeachment is more associated at the president of United-States than at the others personality of the United-States. However, impeachment is utilized in the three different powers which composed the United-States.

1. The executive power

• The impeachment in the Federal State

• The president

The President of United State is the most important person of the executive power. Impeachment was imposed to two different presidents.

First, The President Andrew Johnson was impeached on February 24^th, 1868. Andrew Johnson violated the Tenure of Office Act (1867) trying to oust M. Stanton who was the Secretary of War. This act prohibited the President from dismissing official holders without Senate’s approval. Johnson didn’t want to use this act because it was the result of a politic war between him, who was a Southern democrat, and the part of Radical Republicans presented in the Congress.

Andrew Johnson was acquitted on May 26, 1868. However, just one vote of the Senate prevented the President of being resigning.

Then, Bill Clinton, the 42^nd President of United States was impeached. He was impeached on December 19^th, 1998 because of a case of sexual relationship. This case was that the President Clinton had hidden a sexual relationship with an intern of the White House. There was a report called “Starr Report” which was presented and delivered to the House of Representation on September 9^th, 1998. In this report, there was a legal justification for his impeachment. The House Judiciary Committee eventually approved 4 on the 11 grounds. There were the grand jury perjury, civil suit perjury, obstruction of justice and abuse of power. In the practice, he was accused of obstruction of Justice and grand jury perjury. The President Clinton was acquitted on February 12^th, 1999 on both accusations.

There was a particular case which was the case of Richard Nixon. It was the most famous case of impeachment. This case was about the scandal of the Watergate. When Richard Nixon was the President of the United-States, he was involved in the case of Watergate. This case was a political case of espionage in 1974. Indeed, some journalists revealed that some micros were hidden in the offices of Democrats which were in the Watergate at Washington. Then, we discovered that the President Nixon knew what happened and didn’t do anything.

The House Judiciary Committee wanted to accuse him utilizing 3 articles of impeachment on July 30^th, 1974. They wanted to accuse him of illegal wiretapping, misuse of the CIA, perjury, bribery, obstruction of justice, and other abuses of executive power. Nixon resigned on August 9^th, 1974 before the impeachment.

• Member of Cabinet

William W. Belknap was the secretary of war from 1869 to 1876 under President Ulysses Grant. He was impeached on March 2, 1876 because he received money in return for post trader ship appointments. He decided to resign. After his resignation, he was acquitted on August 1^st, 1876.

• The impeachment on State Level

• The Governors

The most recent case of impeachment about a governor is the case of Rod Blagojevich. Rod Blagojevich was the governor of Illinois when he was impeached. He was impeached on January 8^th and 14^th 2009. On January 29^th, 2009 He was removed because of a federal corruption and misconduct in his office. Moreover, the Senate declared that he couldn’t be eligible to hold public offices in Illinois.

• The Secretaries of State

Six secretaries of State were impeached. There were John Winter Robinson, the Secretary of State of Kansas in 1862, Georges Hillyer the Kansas State auditor in 1862 too, James Tate, the Kentucky State treasurer in 1888, A. James Manchin, the West Virginia State treasurer, Judith Moriarty the Secretary of State of Missouri in 1994 and Kathy Augustine, the Nevada State Controller in 2004.

In the case of Judith Moriarty, the Secretary of State of Missouri, she was impeached on October 6, 1994. She was accused of using her position to help his son who didn’t respect a limit to return a form which was from her office. She was condemned of removing from her office by the Missouri Supreme Court on December 12^th, 1994.

2. Legislative power

On July 7^th, 1797, the senator of Tennessee, William Blount, was impeached. He was accused of participating to a plot in order to help Britain to seize Louisiana and Florida to Spain.

The impeachment against William Blount was dismissed the January 14, 1799.
However, William Blount was expelled from the Senate one day after his impeachment because the Congress still had the power of discipline on their members.

This case was important because the Senate said that it couldn’t judge one of its members. Since this case, no other member of the Congress was impeached while the Senate never enounced clearly this argument.

3. Judiciary power

The procedure of impeachment is more utilized for the judiciary power than for the others. Indeed, on the sixteen procedure of impeachment of federal officials, twelve are from the judiciary power.

• On the Federal State

The newest judge who was impeached is Thomas Porteous, on March 11^th, 2010. He was accused on 3 articles. First, they convicted him for “engaging in a pattern of conduct that is incompatible with the trust and confidence placed in him as a federal judge”. Secondly, he was condemned for “engaged in a longstanding pattern of corrupt conduct that demonstrates his unfitness to serve as a United States District Court Judge”. Third, he was condemned for “ knowingly and intentionally making false statements, under penalty of perjury, related to his personal bankruptcy filing and violating a bankruptcy court order “. At last, he was convict for “knowingly made material false statements about his past to both The United States Senate and to the Federal Bureau of Investigation in order to obtain the office of United States District Court Judges”. Because of those arguments, Thomas Porteous was removed and disqualified on December 8^th, 2010.

• On the State Level

An Associate Judge can be impeached at the State Level. Indeed, there are some cases were associate judge were removed in a procedure of impeachment.

For example, Rolf Larsen who was an associate justice at the Supreme Court of Pennsylvania was impeached on May 24^th, 1994. He was convicted because of cases relating to some crimes (he had some problems with drugs) and to improper communication with a trial judge about a case. On October 4^th, 1994, Rolf Larsen was removed and the Senate prohibited him from holding public office in Pennsylvania.

In practice, The House of Representative has impeached only 16 federals officials. There were more accusations but most of the accused preferred to resign before the impeachment.

Conclusion

We have here presented you the impeachment procedure concerning Great Britain and the USA. However, other countries also apply practically the same procedure of impeachment. Here are some examples: Pakistan, Philippines, and Ireland.

Otherwise, we can find other procedures similar to impeachment: it is generally called “destitution procedure”… Most of the democratic countries use it, as France.

American civilization 10.10.2011

French people were called Acadiens ( Port Royal)

French and Indian war : A seven years war and there was a treaty of Paris : French gave up its lands, almost all of them ( Mississippi mainly). France retained 2 small islands : There was an agreement with England so that France could not bring forts around ( Saint-Pierre et Micquelon). France gave up lands like Louisiana to the Spanish. France gained Guadeloupe in return. In 1763, King George made a proclamation : in this decree, he said that people could not pass the line. He didn't want the colonists to spread out, there wouldn't be any way of controlling them after. But, there were more and more colonists, they needed more space. After the french v. Indian war, British had a lot of debts. British colonists had to pay according to the British government. However, they didn't want. After, Colonists were prospering while British were going through an economic depression. Upon to 1763, colonists didn't have a strict government or a strict ruling. British let the colonists do what they want because they received avantages of it ( money). But, colonists worked with weak legislative control and things changed, Britain needed money. It sent British legislative representants to the colonists. They thought freedom would make the economy better. Britain infered in the local commerce... Colonists were going to be controlled. Britain became to impose several taxes to pay for its debts. Before, they never had to pay taxes ( revenue-raising taxes). A lot of the colonists felt victimized. Many thought that it was a violation of their natural rights and a violation of the British Constitution to tax a man without its conscent. For Britain, it ws actually a question of virtual representation, they were virtually represented at the Parlement, represented by people they didn't elect. The first tax was the Sugar Act of 1764, it was tax of sugar imported from the west. Currency Act 1764 : it forbade colonists to print paper money, everything had to come from the British crown. Quartering Act 1765 : colonists who had romms or houses had to feed British troups if necessary. Stamp Act 1765 : For the american colonists to pay a tax on all legal documents or printed materials ( such as newspapers). Colonists rebelled by boycotting the Act by refusing goods or services that required a stamp. British merchants were loosing business consequently. A lot of British tax collectors were tarred and feathered. With those acts, British parliament negated the Stamp Act ( 1766), it was reappealed. British let the colonists lead their things. In 1766 there was the Declaratory Act. Local government could make laws but the final sentence was for London. Townshead Acts of 1767 : required the colonists to pay import duties on tea, glass, lead, oil,paper and printer's ink...This increased smuggling from other British representative. This lead to more British troops in Boston. Thery had to be fed and housed, many people were angry. In 1770, the tensions raised up. ( Boston massacre : 5 persons killed). British reppealed the Townshead Act exept for the tax on tea. By 1773, tensions were still very high but things remained relatively calm. The British government was trying to take measures to save the East India tea company from being banqueroute. It gave them monopoly of tea trade to this company. That meant thet the colonistss could only buy tea from one source. On December 16. 1773, Samuel Adams was known as a trouble maker. Him and his collegues rebelled and destroyed 3 ships in Boston's harbour. They destroyed these tea cargos. They put the tea into the harbour, the water. That's why we call this event the Boston tea Party. In 1774, Britain imposed the Coercive Acts: Ther were several consequences for the colonists :

• The harbour in Boston would be closed.
• A new form of government is oganized by British officils in Massashussetts
• Troop quartering
• No town meetings or gatherings
• British officials could have trials without juries
• More troops were sent to Boston

1774 : First Continental congress : Boycott of British products by evryone. They also decidedto write a letter of grivance

1775 : Battle of Concord : Colonists didn't want to waint to begin a massive arms and train.They began collecting limitary supplies. In Concord, they stocked all of this.

British troops were sent by military commanders to destroy immunitions. In lexington,they let the minute men.

In 1775, after what happened in Lexington and Concord, there was an emergency in Philadelphia...12 representatives of the colonies ( second continental congress met) met from the 13 colonies exept for Georgia. They were going to adress revolutionary war aims. They elected the Commander in chief of the continental army ( George Washington). In the same year, there was the Bunker Hill and the colonists and the minute men won, it gave psychological force to the American colonists againsts Birtish. They sent a letter, a petition of peace to King George and he refused to read the letter.

In 1776 Thomas Paine came. His pamphlet united the colonists it was a direct assault on thewbolde idea of government by Kings and aristocrats. " What good were kings ? of more worth there's one honest man to society, in the site of god, then all the crowned ruffians that ever lived".

Spring 1776 : Continental congress sent delegates to France for a request of aid. At hte same time, France and Spain had been conspiring against Britain. All americans owe their liberty to France.

In the early summer, Thomas jefferson ( frol Virginia, very well-educated)wrote a document that changed the life of colonists. Several delegates, in june, that got together to suggest a document that declared a kind of independance ( 5 men). He believed in small government, on local gov. He wrote the declaration and it wasaccepted direclty. This document contained ideas and concepts ( of natural law) from philosophers, hobbes, Rousseau Montesquieu and Locke. Natural law is the idea of limiting government's powers, social contract ( respect the right to life for people, idea of conscnent of the govenrment). This dcument dealt also with the separation of powers. It announced popular sovereignty, equality, a " new nation"...delcaration : Not " States of Aeraica" but " United States of America". ( American revolution : sheet). This revolution announced also the creation of a society where equality and democracy are advocated. There were the articles but they were not ratified completely before 1777. ( 1781). The articles didn't precise the type of government there would be etc... With the articles, colonists managed to get by even after the war. If the colonists wanted the independance, they would really have to fight. At the same time, Britain didn't want to let the colonies let go without a fight ( let's remember that colonies were very lucrative). GB thought it would be easy to crush the colonies :

• Because Britain was the most powerful empire in the world
  • Britain had the richest economy
  • Britain had the largest navy
  • Experinced military
  • USA : no real government, no real navy, army ...etc...

Brtitain was peaching the native americans to the colonists. In the colonies there were still people being proud of their British origins.

Gorilla army : the continental army

Declaration of Independance

Minute men :

Minutemen est le nom donné aux membres de la milice des treize colonies qui jurèrent d'être prêts à combattre dans les deux minutes.

Red coats :

Red coat or Redcoat is a historical term used to refer to soldiers of the British Army because of the red uniforms formerly worn by the majority of regiments

Droit des affaires 10.10.2011

Il y a les traités multilatéraux ouverts qui ont pour objet de fixer les règles commerciales applicables à l'ensemble des pays signataires du traité. Certains de ces traités sont signés sous l'égide d'organisations internationales : GATT, Accord de Marrakech du 15 avril 1994 ( qui a crée l'OMC : cette organisation est un véritable tribunale qui peut infliger des sanctions aux Etats contractants). En dehors des traités plusieurs organiosmes interviennent pour encourager l'exportation des produits français : CFCE, CNUDCI ( Organisme des nations unies qui a pour mission de péparer des conventions internationales ayant pour but d'unifer le droit applicable aux Etats contractants), NATIXIS.

2 Les traités de l'Union européenne

Le droit communauraitre a une place de plus en plus importante en droit français et en droit des affaires notamment. L'UE a pour objet d'établir entre les Etats membres un espace économique de libertéet un marché commun. Les conséquences de ces deux principes sont multiples :

• Suppression des droits de douanes
• Création d'un tarif commun pour le commerce extérieur
• Liberté de circulation des travailleurs, des marchandises et des capitaux.
• Disparition des mesures discriminatoires de nature fiscale ou économique pour pousser le jeu de la concurrence

L'UE a été créee par 3 traités : Traité de Rome, CECA, Euratom.

Ils jouent un rôle très important en matière commerciale. Ces traités ont poiur objet de promouvoir le rapprochement des politiques économiques des Etats membres :

• Par des politiques économiques communes
• par des procédures d'harmonisation
• par des politiques de coordination des législations économiques

Par la suite, l'acte unique européen du 17 février 1986 a constitué une première révision des traités fondateurs en marquant la volonté des Etats membres d'aller au-delà de l'intégration économique et d'achever le grand marché intérieur européen. Le Traité De Maastricht Du 7 février 1992 a jeté les bases d'une véritable union politique entre les Etats. Sur le plan du droit des affaires,ce Traité a eu pour effet de renforcer l'union économique et monétaire par le transfert de compétences ( au profit de l'UE) et par l'abandon de souveraineté au prodit de l'UE également avec la création de la BCE et avec la création de l'euro. De son côté, le traité de nice du 26 février 2001 a enclenché le processus de création de la société européenne. Il y a deux types de textes de dfroit dérivé :

• Les réglements européens font dès leur promulgation partie intégrante de notre droit.
• Les directives européennes doivent en revanche en principe être transposées en droit interne pour être applicables. Elles constituent l'essentiel de la législaion commerciale, cela s'explique notamment par le fait qu'en l'absence de transposition de la directive dans les délais fixés, la Cour de justice de l'union européenne considère que la directive est directement applicable dès lors qu'elle est suffisament précise. La portée du droit communautaire est précisée par le tribunal de 1ère instance et par la Cour de jsutice de l'UE.

Section III La justice commerciale

En droit des affaires,le slitiges sont principalement règlés par les tribunaux de commerce ou les arbitres.

I Les tribunaux de commerce

Ils datent de 1563.

A L'organisation des TC

L16 juillet 1987, modifiée par la loi du 15 juin 2001, ordonnance du 15 avril 2004. En France il y a environ 184 TC. Quand il n'y en a pas dans un arrondissement, le TGI est compétent, il statue selon les règles de la procédure commerciale. Ils sont composés de juges élus par leurs pairs. Ils sont élus pour deux ans, à l'issu d'un premier mandat ils peuvent être réelus pour 4 ans et après 4 mandats successifs, dans un même TC, ilsne sont plus réeligibles pendant 1 an dans ce même tribunal. Le Président du TC est choisi parmi les juges du tribunal de commerce qui ont exercé leurs fonctions pendant au moins 6 ans. Il est élu pour 4 ans par les juges réunis en assemblée générale. A l'issu de 4 mandats successifs, le Président ne peut être réelu qu'une fois en qualité de simple juge dans ce tribunal. A la fin de ce dernier mandat, il n'est plus réeligible. Qui élit les juges ? Les commerçants personnes physiques immatriculés au RCS ( registre des commerces et sociétés), les mandataires et cadres dirigeants des entreprises commerciales de la circonscription, les personnes immatriculés au répertoire des métiers ( artisans) et enfin certaines personnes proches des milieux commerciaux ( pilotes, conjoints de collaborateurs..) Tous doivent être de nationalité française et ne doivent pas être déchus de ses droits civiques. Ces électeurs désignent des délégués consulaires lesquels choisissent les membres du tribunal parmi les personnes éligibles, peuvent être élus tousles électeurs âgés de 30 ans minimum inscrits sur une liste électorale ou les personnes morales justifiant d'une activité commerciale pendant au moins 5 ans. Aucune formation juridique n'est exigée pour être juge. En pratique, une formation juridique leur sera délivrée au départ tout de même. Les juges prêtent le même serment que les magistrats de l'ordre judiciare mais ils sont soumis à un régime disciplinaire particulier. Le greffe assure l'organisation des TC. Le Ministère public l'assure aussi et est important dans les procédures collectives. Il faut aussi noter le rôle important des auxiliaires de justice spécifiques aux tribunaux de commerce comme les administrateurs judiciaires, les mandataires liquidateurs et les experts en diagnostic d'entreprises.

B La compétence

C'est son aptitude à juger un litige. On distingue la compétence matérielle de la compétence territoriale.

1 La compétence matérielle

Elle permet de déterminer les affaires qui doivent être jugées parle TC. Les TC, étant une juridictrion d'exception, ils ne sont compétents que lorsqu'un texte express le décide. S'ils sont saisis en dehors de leurs attributions, ils peuvent soulever d'office leur incompétence. L'art L 721-3 et suivants du Code de commerce disposent que les TC sont compétents pour connaitre :

• les contestations relatives aux engagements et transactions entre commerçants : Cette rubrique est importante car elle recouvre la plupart des litiges découlant de la vie des affaires. En effet, il en résulte que tous les actes juridiques et les faits juridiques accomplis par un commerçant envers un autre commerçant dans l'exercice de son activité commerciale relève sauf exception en cas de litige du TC.
• Les litiges relatifs aux actes mixtes passés entre un commerçant et non commerçant.
• Les litiges relatifs aux actes de commerce entre toutes personnes : actes commerciaux consentis par des non commerçants.
• Les contestations relatives aux sociétés commerciales, ex : le TC est compétent pour les clauses de non concurrence souscrite par une société commerciale au profit d'une autre. Interprétant cette disposition, la chambre commerciale a jugé dans un arrêt du 10 juillet 2007 que les litiges relatifs aux cessions de titres d'une société commerciale relèvent des TC. Cette décision est un revirement de jurisprudence. Cette solution ne vaut que pour la compétence du TC car elle est fondé sur l'article L 721-3. En effet, ce n'est pas parce qu'un acte repose sur la compétence duTC que c'est forcément un acte de commerce. En effet, les cessions n'emportant pas contrôle de la société restent des actes civils et à ce titre, sont soumis aux règles de droit civil et non aux règles du droit commercial.
• Les litiges relatifs aux ventes et nantissements de fond de commerce
• les litiges relatifs aux procédures de sauvegarde et de redressement de liquidation judiciaire des entreprises
• Les litiges relatifs aux pratiques anti concurrencielles

En dehors de ces matières, le TC est en principe incompétent. Cette incompétence peut être soulevée par le juge. L'incompétence peut être également par uen des parties au procès : C'est " in limite libis".

Le TC étant une juridiction d'exception, les commerçants peuvent écarter sa compétence au profit du TGI sauf s'i s'agit d'une matière relevant de lacompétence exclusive du TC. En matière d'actes mixtes, la question est plus complexe. En effet, si le non-commerçant est défendeur la validité d'une telle clause est contestable car il ets difficile d'admettre que le commerçant puisse déroger à la loi qui l'oblige à assigner un non-commerçant devant un tribunal civil. Cela parait contraire aux règles d'ordre public, de la compétence d'attribution et à l'impératif de protecyion du consommateur. Dans une décision du 10 juin 1997, la CC a jugé qu'est inopposable à un défendeur non commerçant une clause attributive de compétences à un TC.

Correction du cas pratique : Pb de droit : Les règles de la fédération peuvent-ils être considérés comme des usages ? Définition de l'usage + il existe plusieurs types d'usage, ce sont des usages conventionnels et professionnels. Quelles sont les conditions de validité d'opposabilité de ce type d'usage ? Il faut que l'usage soit répété et il faut regarder la qualité des parties ( commerçants et même secteur d'activités)Solution : Les règles sont applicables à ABP.