Nashville union and dispatch. [volume] (Nashville, Tenn.) 1866-1868, 1867-05-11
FIFTH DAY.

C0LKB OF DAVIDSON COUNTY.
REFORE THE SENATE.
FIFTH DAY.
Presentation of Protest. by the ne.
SpOndent-ObjeetiOn by the Counsel
for the State.
FRIDAY, May 10, l867.-The President
called the court TO order at nine O'Clock,
and upon call Of the roll eighteen mem
bers answered 10 Ghelr names.
Senator Carrigan read letter from the
Hon. j. P. Thompson, Senator from War
ren, as follows:
NASHVILLE. 9Th May, ls67.-The Hon. j. o.
Frierson My granddaughter died az P. Al.
this day. | leave immediately 10 see her. and
j. P, THOMPSON
Senator Carrigan moved that leave Of
absence be granted to the Senator from
Warren.
The President remarked that the ques-
ton to his mind was, whether the court
could proceed in the trial of the case dur
ing the absence Of one of the sworn men,
bers of the court. The contents. of the
note showed that the Senator was absent
from the city. The best thing, under
these circumstances, in his opinion, was to
adjourn to Monday, as it was really doubt
ful whether the court could proceed with
the trial during bis absence,
Senator Bosom: Would exception be
taken to his absence by counsel on either
side?
Mr.. Trimble: The Senator Is Of the
legal profession and well understands
therefore, of what vital importance il is TO
the validity Of these proceedings that he
should be present, and ] have no doubt
he will return to his post with the least
possible delay.
Judge Brien | have Just seen funeral
card. which shows that the funeral is to
take place at two o'clock to-day, and think,
therefore, that we may safely reckon upon
the Senator's return by Monday morning.
Mr.. Trimble: / think il is due TO the
member himself his age, his legal attain
ments, that we should adjourn. As mat
ter of respect, this is due TO him. If he is
not present on Monday we can proceed
without him.
Mr.. Ewing suggest that an adjourn
ment take place till Monday, as being the
best course under the circumstances.
Mr.. Trimble: | think il would be right
to read the journal.
This was done by the clerk, whereupon
the following discussion arose:
Mr.. Ewing: | observe there is no record
in the journal, as now read, OF the defend
ants application for leave to file protest,
nor Of the fact that liberty was given him
to do SO, by this morning.
Mr.. Trimble; The protest will be re-
eeiyed any how, and therefore it Is not ne
cessary that the record should show that
fact.
Mr., Fast hereupon handed the protest to
the clerk who read il as follows:
| II rHr MATER OF IuPEkCHIEvr PRESENTED BY
THE HoUsF OF kEPREsESTA AVIS 4gAIEsI IBOs-
a FRA- -IIs, SO NOV PHsDTN0 BEFORE THE
SENATE As HIoH COURT Oh INPEACHHFSF
| The defendant. by leave Of the court, respect
fully objects and protests against being tried by
( the number Of Senators now remaining on the
| court, since the exclusion by the court Of the
| Hon. B. Frazier, the Senator from Knox and
| Rosne: Because the court is now composed of 8
| less number Of Senators than that guaranteed
10 him by the constitution. Il insisted that no
| person can be impeHched by the constitution OF
| the State, except for sgme crime committed in
| his Official capacity; all other crimes and mis-
| demeanors, from the highest TO the lowest, are
20 be tried By a court and jury Of twelve men,
| and all that twelve men must concur to convict.
| An impeachment is 10 be tried By the Senate,
| not by all the members, whether present and
| sworn or not az by the constitution Of 1875,
| but by all the members present and sworn.
PENDANTS 10 impeachments have the constItu-
tional right to require and demand that every
Senator present shall be sworn, no matter what
may be their bias, relationship, or other cOndi-
| ton, and whenever the Senators are sworn no
| one of them can be excluded, without the con-
| sent Of the Senate, and the cause be tried by
/ the residue, no more than a man could be tried
] by eleven jurors for murder. II a juror Is re-
| lated or otherwise Incompetent bis place can be
! supplied, not so with Senator. Hence, 70 meet
1 contingencies, such rs bias, relationship, OI
l previously formed convictions. the constitution
| provides in effect that One-third of the votes
| upon the trial may be thrown away moi
| counted, and still the defendant be convicted, il
the other two thirds concur IN the con
vction. IL il required the concurrence
of all the Senators sworn 60 convict. then rela-
| tiOns and biased members ought to be excluded
| and the constitution would have provided some
mode to supply their places; for the trainers Of
that instrument never did, nor never could have
intended 10 subject citizen 10 be tried upon {
high offense charged before uUcertain tribu
! nal, upon one that might be increased or lessen
| ed, varied OF changed merely from circumstance
Have not right 70 the opinion and decision
] of a Senator ffom Knox and Roane, IS much al
| from any other district in the State and mast
be deprived Of that right because | was so un'
fortunate as TO have brother representing tha
district? 1t was bat accidental. if that acciden
was favorable 10 the defendant and unfayorabl'
| 70 the prosecution. Is 10 right and in Keeping
with the spirit OF our free Institutions tha
| it should be taken from the accused anC
given TO the accuser2 This advantage. thus ac
| cidental is By the constitution given TO the de
fendant, 20 compensate him for the loss Of
concurrence OF all the members upon a convie-
| tiOn. The number of Senators sworn is vtally
| material to the protection OF the defendant, a
| thus by a sufficient number Of exclusions. any
| defendant might be subjected to a conviction
| For these and many other reasons that might b'
| urged, this defendant insists that he cannot b'
| legally and cOnstitutiOnRlly tried, by less mum
her than all Senators present ana sworn, or tina
are present and ready 10 be sworn, not that il !
desired or expected that the related Senato
should vote OF take part in the procee1ings, bu
that he shall be counted as one OF the court II
making mp the result Of any material question.
THos. N. Frazier.
Mr. Trimble We do not admit tn,
right Of the respondent or his counsel q
put any protest on the journals of thi
house. But this is not a protest, but al
argument. Of course we do not conced
the right Of defendant TO put in an argu
ment in the form Of a protest. The Law
gives no such right TO a defendant. Mem
bers Of either House Of the General Assem-
bly, have the right to enter their protests il
certain cases. This is provided for in sec
ton %, article ?, Of the constitution O
Tennessee, as follows:
Any member Of either House Of the Genera
Assembly shall have the liberty TO dissent from
and protest against. any act OF resolve which h
NAV think injurious 90 IA e public or 90 any ~
dividuai and TO have the reasons for his dissen
NnltltA NN Alf lNAAAhArs
This applies TO each Senator and membe
of the House Of Representatives, but il doe
not extend beyond that. There is oertainl,
no foundation in the constitution ON whici
an impeached party can ground claim L
put a protest, and especially an argumen
ia the form of a protest, on the journals @
the court. In the Supreme Court, when
criminal case is pending, did ever spybod,
hear Of counsel asking permission 70
the defendant TO enter his protes
on the records, because Of an advers
decision Did ever any body hear any
thing like it2 But here the counsel ask
us TO put on record lengthy argument im
pugning the lawfulness Of the acts Of thi
court. and 10 have it recorded under thi
name Of a protest. But there is no right
no authority on which their demand can b
made on the court. OF course, we're per
mission given TO counsel to prepare an'
record document Of this sort, il would b