Nashville union and dispatch. [volume] (Nashville, Tenn.) 1866-1868, 1867-05-10

| you are not at liberty TO recognize such
| parts of the statutes of Tennessee as may
seem to suit your purpose aud reject such
as do not. know that this court does not
intend 10 do wrong, and that if through
inadyertence they should ere and perpe-
trate a wrong, that it wonld be source of
regret and grief to them to the last day of
their lives.
Judge Trimble having read the resolu-
| ton, remarked This would be very good
entering wedge to break up this court by
| factious and vexatious proceedings for i'm
| peding its operations and impairing its effi-
| cheney, inasmHch az il takes exception to
every member of this court.
We object to this resolution because Of
the mode of proceeding which it prescribes
because it takes exception TO the whole
| Senate. 1t looks to me as il this rule lnust
result in breaking up the Senate entirely.
That the principles which Il embodies can
| be legitimatsly dedueed from the decision
of the court in the case of Dr.. Frazier, APP
pears TO mea gratnitons assumption, utterly
unsustained BY reason or common sense
That decision merely establishes the right
of the court to except TO any particular
Senator, il his disqualification is alleged by
any other member Of the court and how
! this simple, and / may say self-eyident
principle brings with it such a train of
| formidable consequences as is attempted to
| be tackled on to it, am utterly at loss to
conceive.
NJ. Ewing: We think that We have the
right, under the resolution offered by the
Senator from Shelby, to discuss its merits
and yindicate its principles, and that the
court has the right to decide on the propo-
sition presented to it. We are convinced
moreover, that the adoption of this or
something equivalent to it, under the cir
cumstances in which the court has placed
| itself, has become necessity necessity
not by our action, but by the action of the
/ prosecution and the Senate in relation to
the present case. Now, sir, when the Sem
ators were sworn to try this case we be-
lieyed that the law was that every member
| of the Senate was a qualified member of
the court of impeachment, if he should be
sworn in in the case. We urged it yester-
day and the day before with what force we
| might that, as no objection could be taken
in IimiRe to any Senator as member of
the court of impeachment, it could not be
| taken at all after the court was organized
I dilu llt LutluUCAt chOAh. AlOn MOulu ~
have looked on our part to have made an
| objection to any member OF this court, on
the ground that he was disqualified as
brother or as having expressed an opinion?
Had the principle now adopted been
acted upon from the first inception
| of this business, our course would have
been quite different. We might have chal-
lenged every member of the court, for
scarcely any member it may be presumed,
but has formed or expressed an opinion
regarding the merits Of the question under
adjudication They have brought this
necessity by their objection to the organi-
zation of the court.
| Mr.. Trimble: We objected not to the
organization of the court, but to member
| of the court.
Mr.. Ewing: | say that they make an
| objection to the organization of the court
| by obiectng to one Of its members. When
| a rule of law is laid down overruling the
common law or the proceedings in inn
| peachment, il becomes law of this court,
| and is obliged to be followed by its conse-
| quences whatever they may be. Then you
| have established by this court that MEM
| bers may be attacked on the ground of
4 DlaS, YOU nave eStdbi1cnCu NOuA Oen law .
| and the consequences inherent in it. But
| this establishes on our part, the necessity Of
seeing that the consequences Of that deci-
sion are properly carried out AT present
| an objection stands to the organization OF
| this court, that the members have not been
| catechised as the law demands, according
to the practice in the case of jurors. And
as the resolution now under consideration
secures this, it certainly merits adoption.
| How does the law stand as it is now ad-
| Judged by this court We said that a
member could not, before the innovation
which this court has just inaugurated, be
| excluded on the ground of bias, relation
| ship, enmity or the expression of an opin-
ion prejudging matter that is sub jitdice
We asked them 10 appeal to common
law, but we did not ask them for their de-
cisions about mature" treason" and
common sense" but common lat0-the
common law-the one thing found in
books of precedents, the law embodied in
judicial proceedings the records of which
have come down to US through the lapse ol
ages. This is what / mean by common
law. In that common law | do not find
that brother cannot sit in Judgment on
his brother. We urged this, and challenged
the production of single instance in
which a brother had ever been declared
incompetent to sit on trial on his brother
But when we see them abandoning the
common law and asserting as their rule the
regulations which govern in courts of ordi
nary jurisdiction, we conclude that the
gentlemen of the Senate must have beer
driven to adopt as their guide the prinei
Piles of analogy derived from the statutory
provisions ruling in such cases in the
State of Tennessee, affecting the rights anC
qualifications of jurors and judges. Ther
il so, let us carry out that analogy. Wher
vou have opened the door to statutory OBJ
iections and restrictions and limitations OF
one ground, ought you not to extend then
| to all? 1t seems that one member of tn,
Senate entertained the feeling that he wa
| disqualified from sitting on this court, OF
the ground that he had been employed a
counsel in the babeas corpus case.* If thi
was a valid ground for excepting to him
self then every thing that the statute
recognise as disqualifying judges or juror
is equally Of force when applied here. AnC
certainly the court, though acting, as W.
conceive, under wrong impressions, ha
certainly, by its act ratified the CORRECTNESS
Il
of the Senate's position. ] wish we coulI
determine once for all whether this cour
is a court in the ordinary sense, or whethe
it is an impeachment court, or whether i
is a court s,a generis think it is a pecu
liar court, whose members are jurors a
well as judges. They are trying case il
which the criminal is charged feloniously
for high crimes and misdemeanors ar
felonious offenses. 1t is, at all events, in
cumbent on it that its functions and it
rules Of procedure should be clearly defined
that there should be no ambiguity abou
it. If common law court, LET it regulate it
procedure by the principles of commol
law, but if it be any ordinary court, wit
everything pertaining to it defined and de
termined by statutory provisions and en-
actments, then let all its acts conform :
the statute in that case made and provided
Mr.. Maynard: ] notice that the mai
| point Of the defense is that this court ha
decided a new principle. | do not so an
derstand IT, This court has simply state
the law as it has stood for centuries. The
have decided upon precedents shown
| that they have authority 10 enquire int
. | the qualifications of members Of their ow
| body. Precedents from England, precedent
| from our own Senate, precedents from siste
States, and from the Senate Of the Unite
States, have been followed in making ths