The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1868-04-01

d
Representatives:-"It is that when the House Of
Representatives states a question of law to the
dent OF the United States, the Chief Justice presiding
IN the Senate sitting as court can stand between
the House OF Representatives and the Senate and
decide the question: Then unless by the courtesy of
some member of the Senate, the House OF Representa-
tiyes through its Managers cannot get that question
OF law decided by the Senate should be inclined
to deem 1t my duty and the duty Of the other
Managers II we were put i'm that position, to ask in
structions OF the House before we allowed the rights
OF the House to be bound hand and foot at the beck
OF any man, Il do not care who he may be- for
II Is, | respectfully submit, q question of most
m0mentous consequences; not OF so much cOnSe
quence now wnen we nave learned, able, honest,
candid, patriotic Chief Justice OF the United States
But lie. us look forward to the time which may come
in the history OF this nation when get Jeffries
Lord High Steward. We desire that the precedents
OF this good time with good men, when everything
Is quiet-when the country will not be disturbed by
the precedent-we desire that the precedent be so
settled that it will hold Jeries it did of old for
it brings my mind instance OF Jerries' conduct
on an exactly similar question: where, the trial Of
Lord Stanley Jeffries being Lord High Steward said
to the Earl, as he came to .pead-U give The sub
stance OF the words:-"You had better confess and
throw yourself the mercy of the King, your
master. He is the fountain Of your mercy and it will
Stanley, II | remember the name Alright, replied to
him, 'Are yon, sir, one OF my judges that give
And Jellres quaed before the indignant eye OF the
man with whose rights he had tried TO interfere, and
oniy advising YOU as your friend" want the pre-.
cedent fixed In good times as they were before
Jefries, so that II we have the misfortune to have
such Chief Justice 1--WE have Andrew Johnson In the
chair OF the PresidenU the precedent will be
settled that they cannot in any way be disturbed but
will be securely fixed for all time.
The CHIEF JUSTICE repeated his decision to the
effect that IL was his right and duty under the rules
to decide preliminary questions In the first instance
without submitting them to the Senate, and II any
Senator demanded the Judgment OF the Senate upon
them they might then be submitted to the Senate
Mr.. DRAKE raise the question that the presiding
officer OF the Senate has no right to make decision
The CHEF JUSTICE (determinedly)-T Senator Is
Mr., DRAKE mot needing the Chief Justice>-I de.
mand that that question be put to the Senate
The CHIEF JUSTICE with still more determine
ti0n)-The Senator IL not In order.
90 senator Of ask whether the
as to whether the presiding officer be competent to
decide that question.
The CHIEF JUsTICE-It is the question whether the
Chair in the first instance, is capable OF deciding
that question On that the CLERK will proceed to call
Senator CoNKIINd- Before the yeas and nays are
called beg that the latter clause OF the seventh rule
be read.
Senator HOWARD read the whole rule, as follows:-
The presiding necessary
r the Senate shamSe ana the of
wn Ss 3 a tor tine I S n e
specially provided for The presiding officer may in The
s instance submit 70 the Senate without division ali ques
evidence incidental questions; but the
shall demand one-hh of the members present. be
cided by yeas and nays.
Mr. BINGHAM one Of the Managers, rose to call the
attention Of the Senate to the language OF the rule
just read, and submitted. with all due respect to the
presiding officer, that that rule meant nothing more
than ths-that II question be raised by the Senate,
and onehfth OF the Senators do not demand the
yeas and nays, it authorized the presiding officer
Simply to take the OF the Senate all ques-
lions without division, and there 1t ended. lie
had fallen from lis associate mir. Butier that he
looked the question as settled by the very terms
OF the constitution Itself. The constitution, he
he urged, provides that the Senate shall
have the sole power - Try impeachments.
'.The sole power' necessarily means, as the Senate
t.n Nt.t,t -
everything pertaining 70 the trial and every judg-
ment that may be made as part of the trial, whe-
Their il be on preliminary question or on the final
question. It seems to me that Tie word was ncor.
pOrated in the constitution touching proceedings in
impeachment in the very light of long continued
usage and practice OF Parliament II Is settled In
the very elaborate and exhaustive report Of the
Commons OF England on the Lords Journal that the
Peers alone decide all the questions OF law and act
arising In such trials. In other words, 1t Is settled
that the Peers alone are the judges in every OF
the law and the fact and that the Lord Chancellor
presiding is but ministerial officer to keep
ORDER TO present to the consideration OF the
Peers the various questions as they arise to take
| their judgment upon them. There his authority
| stops. This question Is considered well
settled that it is carried into the great text book OF
| the law and finds place in the institute Of Coke,
wherein 1t Is declared that the peers are tie judges
OF the law and OF the facts, and conduct the whole
proceedings according 10 the law and usage OF Par
Lament. IL Is as understand this question as it IL
presented here. agree with M associate tnat It Is
Of very great Importance, not only touching the adj
instability OF evidence, buc touching every other
question that can arise. For example, questions
Of the charges preferred In these articles We under
stand that the question is whether the senate shall
decide that the presiding oflcer himself being u
member Of this body, which Is invested with the
sole power to try impeachment, and, therefore, to
decide all questions In the trial, himself
make decision, which decision Is to stand as the
judgment OF this tribunal, unless reversed by SUISSE
quent action OF the Senate. That understand that
To be the question submitted and on which the senate
is to rule. II Is suggested to me by my associate
mt Buter) that this also involves the further pro-
position that the Managers in the event of such deci
anpn
even call for review of that decision by the Senate
Senator WILSON moved that the Senate retire for
consultation.
Senator CoNKLrNG and others-No, no.
Senator SHERMAN sent to the Secretarys desk
paper, which was read as follOws:-
Of Impeachment the United States point Did the
Vice Presiden presiding officer decide preliminary ques
ssnae p d'd lie summit 'H' In tue hr'' instance to the
Mr.. BOUTWELL, one of the Managers said-T am
not disposed to ask the attention VI the Senate
further To this matter rs question concerning the
seems to me OF the gravest character, and yet can
very well understand the practical assertion on all
questions arising here OF the principle for which the
Managers in behalf Of the House stand would be
calculated TO delay the proceedings and very likely
involve involve us IN d,9cn,ty what say speak with the
presdes here, feeling that In the rulings he may
make on questions Of law and the adlnissbility Of
testimony he would always be guided by that con-
scientious regard for right for which he IL
distinguishes; but after all | forcscc that II the
Managers here acting for the House In the case now
before the Senate, and before the country. and acting
l may say, in behalf OF other generations and or
other men, who unfortunately may be similarly situ-
ated in future times, were now to make the surren-
der OF the right that the Chief Justice OF the Supreme
Court OF the United states, sitting here as the pre-
siding oficer Of this body for specific purpose, and
for no other, has power TO decide even In q pre-
liminary and conditional way questions that may be
vital to the final decisions OF this tribunal on the
questions OF the guilt innocence OF the person ar
raigned here, they would make surrender which
would I'm substance abandon the constitutional
rights OF the House OF Representatives ana the con-
stitutCnal rights Of the Senate sitting as tribunal
to try mpeachments presented by the House OF
Representatives; and with all Difference say that
the language OF the constitution when the President
OF the United states tried that the Chief Justice shall
preside. Is conclusive on this whole matter. He
presides here not as member OF this hody; for II
That were assumed, then the claim would be not only
In derogatiOn but In violation OF another provision
OF the constitution, which comedies to the Senate the
sole power OF trying all Impeachments: and know