Nashville union and dispatch. [volume] (Nashville, Tenn.) 1866-1868, 1867-05-09

/ W EDNE5DAtt may o loOS,- Inc court
was called 10 order BY the President at nine
o'clock, and upon the call Of the roll twenty
Senators answered 10 their names. The
records having been read and approved.
the President announced that the court
was ready TO hear the arguments of coun-
sel on the question already before the court,
of the right Of Senator to sit as a mem
Der of the court, and try an issue involving
the guilt or innocence ef his own brother.
Mr.. Maynard: Ii was decided hv the
conrt yesterday that such authorities as
might be produced should be brought to
the notice Of the opposing counsel, and by
permission Of the court, i will produce
some on which reliance is placed in sup
port Of the point that was made.
Mr.. Ewing: If these authorities had
been handed to me last night or this morn
ing, for have been here an hour so that
We could have referred to and considered
them, / should not object to their reception.
If the counsel on the other side propose
now to address the court, and present these
authorities, so we shall have time 10 con-
slider them, have no objection.
Mr.. Maynard: beg to assure the court
Of my purpose 20 treat the counsel and the
court with perfect fairness. OF course, in
presenting authorities, / should expect to
show their relevancy and pertinenee and
their application TO the case in hand. The
two questions before the court are first, as
| 10 the competency of the Senator in ques-
ton, and, secondly, as to the power of the
court TO act in view Of that competency or
incompetency. The first question has not
been seriously urged by the opposite side,
and presume il will not be, that brother
is fit person 10 sit on the trial of
brother. II is a question that Christian
civilization never offered, and one that
trust will not now be exhibited for the first
| time in the annals of civilization But il
is supposed that under the organization Of
this court 1t becomes a legal necessity that
cannot be avoided. II is supposed, there
| fore, that a member Of the Senate, because
he is component part of the court, becomes
| Judge in any question and on any trial
| brought before the court, despite of the
fact even of his own personal or relative
interests being intimately interviewer with
the issues which it involves. The case
stated yesterday of Judge Williams was
the last case of impeachment in this State.
Senator Campbell presented reasons why
he should not sit on the court. These rea-
sons were, that he was party complaining
to the accusations with which the Judge
had been charged, and that he had ex-
pressed an opinion as to the guilt of the
accused. Members Of the legal profession
are familiar with these facts, and it is not
necessary that | should comment upon
them here they carry with them their own
force and significance. The court set aside
or excused that member Il exercised
the pouer of doing that which if is alleged
this court cannot do. For | need not say
that this court cannot excuse, that it hasno
| legal right to excuse one Of it, members as
matter Of Jdt0T. II is matter Of obliga-
tion or necessity, not of discretion that each
member Of the Senate or Of the court into
which il resolves itself, should discharge
the several functions which pertain to him
| in virtue Of the Office he sustains, and moth
ing can relieve him Of that responsibility.
| His brother Senators are as impotent TO re-
| lieve him Of his obligations as he is to rid
himself of them. For the Senate, or the
court composed Of Senators, to excuse one
Of its members from participating in its
| proceedings is only another way of saying
that it adjudged him disqualified from par
ticipating in them. The reason assigned
for being excused from participating in the
present case was, the Senator was one of the
aggrieved parties Suppose the defendant
had made objection, would the action of
/ the court have been any different Not at
| all, for he was excused not as
a matter Of personal favor, but for
a weighty reason. The reason is set forth
on the journal, and is expressly alleged 10
consist in the fact that the Senator was, as
have said, one of the aggrieved parties
| i. III I,,;,- -. -,
| The statement sets forth this fact, and the
Senate conceded its force by granting the
request of the Senator TO be excused from
sitting on the trial. lnanother case, before
/ the Senate of the United States, which
occurred in 1903, the trial Of Judge Pick
| ering, who was impeached, convicted, and
removed from Office, between the time of
/ the articles of Impeachment in the House
of Representatives and trial by the Senate,
three gentlemen had been transferred from
the House Of Representatives to the Senate,
and objection was made 10 their sitting on
the trial of Judge Pickering Oh the ground
that they had been party TO making the
charges, inasmuch as they were members
of the House when the articles of impsach-
ment were drawn up. In the Annals of
Congress, vol. lS, the statement is given il
these words:
Early in the trial question was raised as 20
| the propriety Of those gentlemen, viz: Samuel
| Smith, Israel Smith, and John Smith, of New
| York. who were here during the last session as
members of the House Of Representatives, and
| voted here upon the question for impeaching
Judge Pickering, sitting and voting as judges
Mr.. smith, of New York, wished to be excused.
| NJ. s. Smith declared that he would not be in
| hueuced from his duty by any false dehcacy;
| that he, for his part. felt no delicacy upon the
| subject; the vote he had given IN the other
| House TO impeach Judge Pickering. would have
| no influence upon him in the court his con-
stituents had right 70 bis vote, and he would
! net by any act Of his deprive or consent 10 de-
1 prive them Of that right, but would claim and
exercise upon this as upon every other question
/ that might be submitted 10 the Senate whilst he
! had the honor Of n seat
! Upon the vote it was carried by the usual
majority
This settles the two principles, first, that
the finding and expressing an opinion
about a case is no disqualification for act
ing in judicial capacity, upon the trial in
which the merits Of the question have to
be tested. IL works no disqualification.
Secondly, il also determines the right Of the
Senate TO decide upon the question, whether
in any given case, one of its members is,
or is not, competent to discharge judicial
functions. In the report Of a trial of i'm
] UtaNnntttt III kltG H'ltttt " AAAlANsiSt lAIu
have not IS yet examined, il appears seve-
raj changes we're made in the court after
the court had been formed, in virtue Of
/ the same power as we see has been exer-
cised by our own Senate, and that Of the
| United States. The conclusion that We
are brought to is, that we are bound to
concur in the authority that underlies
those decisions-that every court has
complete power over its own members
/ This is necessary 10 that power Of
Of selfprotection which pertains to every
court Of justice and to every legislative
body. But il is said the constitution Of
Tennessee provides that the Senate shall
try every officer who is imPeached for high
crimes or misdemeanors. And as the whole
is made up Of its parts il Is claimed that
this must mean that every member Of the
Senate hss an absolute, unconditional right
20 participate equally with every other SEN
slor in All Judicial proceedings OF that body,
irrespective, and even in spite, Of any for
NAL decision which they might arrive at
, regarding his right 10 do so, But does the