The New York herald., 1868-03-31

q an tns nStnre Of an inquest oncei The cons
fution seems TO have determined II to be the latter
hold once il the only subject that can be finally ad
6udicated-all preliminary inquiry oelng cairied on
solely TO determine tnas ques.ion ana .1as & S'one; &
mot in the sense In which the word Is used Dy
rourts. Again. as a correative question, Is TINS
body, now sitting to determine the accusation Of the
House Of Representatives against the President OF
the United States the Senate OF the United States or
q courts trust, Mr.. President and Senator's may
ne pardoned for making some suggestions upon these
topics because, TO us II seems these are questions
not OF forms but OF substance. II this body here is
court in any manner as contradisnguished from the
Senate, then We agree that many II not all the
anaogies of the procedures OF courts must obtain;
Ias Ss nave pace @ ay be
proceedings and adjudication by the rules
and precedents Of the common statute
opinions anities TO the party OF the judges may
be open TO inquiry and even the rules OF order and
precedents in courts should have efect that the
Managers Of the House OF Representatives must con.
form 10 those rules, rs they would be applicable to
publc or private prosecutors OF crime m courts and
that the accused may claim the benefit OF the rule in
criminal cases that he may only be convicted when
the evidence makes the fact clear beyond reasonable
dence. We claim, and respectfully insist that this
tribunal has none OF the attributes Of judicial
Understood Gf course ihs nSestieu eIe must be
largely determined by the express provisions
OF the constitution, and In 1t there is no word as s
well known TO you, senators, which gives the shght.
est coorng 10 the idea that this IS court save tnat
In the trial OF this particular respondent me ChleI
Justice or the supreme must preside. But even
this provision can have no determining effect upon
the question, because not ts thesame tribunal IN
all It's powers incidents and dulles when other civil
officers are bro IT'S bar for trial, when the Vice.
President mot judicial oficer must presideS Can It
De contended for moment that THIS is the senate OF
the United states when stng on the trial OF all other
officers and court only when the President Is at the
bar solely because IN tins case the constitution has
designated the Chief justice the presiding officer
The fact that Senators sitting for this purpose
oath affirmation does not nluence The argument,
because II is well understood that that was but q
substitute Tor the obligation OF honor under which,
by the theory Of the British constitution the peers OF
England were supposed TO sit IN like cases. peer
OF England makes answer in a Court OF Chancery
upon honor, When common person must answer
oath. But our fathers, sweeping away all dis
tnctlons Of caste required every alike, acting In
a solemn proceeding IKE this, To take an oath. Our
constitution holds al good men alike honorable and
entitled to honor. Tae idea that this tribunal was
seems to have crept In because Of the anao-
" OF similar proceedings in trials before the House
or Lords. Analoyes have ever been found deceptive
and illusory. Before such analogy is invoked we
must not forget mat the Houses OF Parliament at first,
and atIeriy the house Of Lords, claimed and eXer
cisco jurisdiction over all crimes, even when the
punishment extended to life and limb BY express
provision Of our cons tuition AL such Jurisdiction Is
taken from the senate and tne judicial power Of the
United states Is vested in one supreme Court and
such inferior cours us rom time 10 time Congress
may ordain and establish" We suggest, therefore,
that we are In the presence OF the Senate OF the
United states convened as a constitutional tribunal
T. inquire INTO and determine whether An.
drew Johnson because OF m1lyersatlon in office
l. longer fit to retain the once OF President OF the
United states or hereafter TO hold any Office Of honor
= profit. | respectfully submit that thus far your
NODE OF proceeding has no analogy TO that OF court.
fCu issue summons To give the respondent notice
q the case pending against HIM; you do not seques
5er is person; you ito not require his personal ap.
Eelr1ncs even; you proceed against him and VIII
- ~ 70 determine ms cause in his Absence and make
tne azAl order tnerern. low different Is each step
fr0m t-ose OF ordinary criminal procednre!
= .ccssigutiOuai trlDGna solely, you are
ea41s ~ no law, either statute or common.
wa-cl Eay limit your constitutional pre-
pIecplentS
those * L1e iaw anu custom OF parliamentary
e.dIss. fo1 law unto yourselves, bound ONLY
o. ihe naturai principles OF equity and Justice, and
nat s1ius popati saDD.d es Ter. upon these prin-
ciPes and parliamentary law no judges aid you,
and indeed IN late years the judges Of England in
the trlai OF Impeachment declined TO speak to
question OF parliamentary law. at the request
them in their robes Of oGice. Nearly five hundred
years ago, in lass. the House OF Lords resolved.
IN the case OF Be.snap and the other Judges THAT
these matters, when brought before them, shall be
discussed and adulced BY the course OF Parliament
and not by the css.l 4aw not by the law OF
the land used % c.aeT Eferlor courtsr And that
resolution, wa.cn was IN contraventon of. the
opinion OF all the judges England and against the
remonstrance of Ricnard H.. remains the unaues.
toned law OF England to this day. Another deter
mining quality ol this tribunal, Distinguishing Ii
from court aud the analoges OF ordinary legal pro-
ceed,ngs, ana showing that II Is senate only Is
that there can be no riaid of challenge by either
party to any Of It's members for favor or malice,
affinity or interest. TINS has been held from the
earliest times In Parliament, even when that was
tae hlga court OF Judicature Of the realm,
n toe case OF t4e Duke OF somerset n owels state
Trzs 52l. a. early a. l55l, IL held that the
D4.e OI SOrthumDeriand and the Marquis o. North
'af4pt0n and tae karl Uf Pembroke, for an attempt
nP0n whose lives somerset was on trial. should SIT
"a Judgment upon INN against the objection OF the
accused. because "a peer OF the realm might not be
caAllen ,ed' Again, the Duke OF Northumberland
nDid 1t state Tria.s, p Id5 Marquis Of Norhumoer
land and Ear Of arwick on tral Tor their lives A. d.
l5j3 before the Court OF Peers the Lord High steward
~ England, being one OF the prisoners, inquired
whether any sucR persons as were equally cupnble in
49, E4NFeg ftu tEha latte
Inandments he was directed in all his doings, might
- Ms judges, o. pass upon his trial AT his death 1t
was answered inat, "f any were as deeply TO be
touched a. himself In that case yet az long as no at
tainder OF record were against them. they were
nevertheless persons able in the law 10 pass upon
any trial. aud not 10 be chaiienged therefor but at
the prlnce's pleasure.n Again, on the trial OF the
Ears OF Essex and southampton ubd, State Trials,
\. $3.50 Tor high treason before all the justices OF
England A. u. IB10 the Earl Of Essex desired 10
know of my Lord Chief Justice whether he might
challenge any OF the peers or nor whereunto the
Lord Chief Justice answered "No.n Again. in Lord
Audeys case pbd state Trials page 4O2, a. u. 1851
u was questioned whether peer might challenge
answered by all the Judges, after consultation 'he
might not.n This case l. of more value because IL
was an indictment for being accessory To rape upon
his own wife, and had no political influence IN II
whateverl The same point was ruled In the
reports, Gill; In the Earl of portlands case A. d. 1901
tibId State trials, page 2Ss) the Commons objected
that Lord Summers, the Earl of oxford and Lord
Halifax, who had been impeached by the Commons
before the House OF Lords for being concerned In the
same acts for which Portland was being brought TO
trial, voted and acted with the House OF Lords in
the preliminary proceedings OF said trial. and were
upon committee Of conference In relation thereto.
But the lords after discussion soemny resolved
.'that no lord of Parliament, impeachcd OF high
crimes and misdeDeanors, can be precluded from
voting on any occasion except on his own trial.-
in the trial OF Lord Viscount Melville A. ID. 1s06
bd ~, state Tr,as, page 139s), some observations
having been made as 10 the possible bias Of some
poruon OF the peers tby the counsel for defendantl
Mr.. Whitebread one OF the managers on the part Of
Inc commons answered a. fOowS:-
lords as TO your own court La. been thrown
out hbput he posybiy OF challenge. Upon such
WI not be necessary say than this been
simlued-ha an order given by the House OF
70 prosecute Lord Neville IN OF law he would
have We right TO challenge his jurors. What did the
oLe lsc0unt then do by the or o. friends
IRON the mouth Of that learned gentleman came at
last the succeh "a naaim, "tha Henry, vcoun OF Melville
Oe impeached oi h 2h criue nisdemeanors" am
thed them 10 saying tia, he Is here by his OPTION
But lords challenge your lorlshps Is not every
individual peer the guardian o his own honors
In the trial oil Warren Hastings the same point was
ruled or more properly speaking, taken for granted