The Portland daily press., 1868-04-01
Mr. Drake remarked that there was nothing

| When a point of evidence OF form or of Law
| came before the Court in the first instance tn,
and then the Senate, on its being submitted t
them at the suggestion of a member.
Mr. Butler proceeded to quote from yariou;
cases OF impeachment to show that the presd
ing of1cer of an impeachment court had nc
right TO decide questions of law or evidence
MI. Butter complained that the managers o.
tne House would be bound hand and foot by
tnis decision, and would be unable to get the
objections considered unless by the courtesy
OF a member of the Senate.
The Chief Justice then stated the point
raised for the decision of the Senate.
Mr.. Drake objected to the ruling of the
Chair.
The Chief Justice called the Senator to or.
der.
Mr. Conkling called for the reading of the
seventh rule, and it was read.
Mr.. Bingham maintained that the rule only
authorized the Chair to submit questions Ia
the Senate when the yeas and nays were not
called for by one fifth, and that the Constitu-
ton itself, in saying that the Senate should
nave the sole power to try impeachment, set
tied the whole question. The rulings of Par
Lament decided that the presiding officer had
no part in passing on questions of law and
fact, but was there only in ministerial capac-
ity with no right TO make decision. He con-
tended that it was matter of great impor-
lance whether the House could reach the Sem
ate directly or whether the Chief Justice
should stand between them unless some Sena-
tor offered the manager courtesy. He pro-
tested against the House being bound and laid
before the feet of any man however high or
pure he might be. &c the precedent were es.
tablished We might some day have Jeffries
IN the chair. We have had johnson in the
White House and may some time have a JEFF
fries in the chair of the Chief Justice
The Chief Justice put the question whether
his decision should be sustained by the Senate.
Mr.. Drake said the presiding officer had
made decision which he had no right to
make, but before he finished Mr.. Wilson moved
that the Senate retire for consultation. but
withdrew it, when Mr. Sherman asked the
managers what were the presidents bearing
on the question in the trial of impeachment in
this country.
Mr.. Boutwell,, one of the managers, said:-I
am not disposed to ask the attention of the
Senate further to this matter as question
concerning the rights of the House in proceed
ings of this kind. 1t seems 10 me of the gray
est character, and yet can very well under
stand the practical assertion on all questions
arising here of the principle on which the
managers in behalf of the House stand, would
be calculated to delay the proceedings and
very likely involve us in difficulty. What 1
say speak with the highest personal regard
for the Chief Justice who presides here, feel
ing that in the rulings he may make on ques-
tons of laws and the admissibility of testi-
mony, he would always be guided by that con-
scientous regard for the right for which he is
distinguished. But, after all, I foresee that if
the managers here acting for the House in the
case now before the Senate and before the
country, and acting, may say, in behalf of
other generations aud of other men, who I'M
fortunately may be similarly situated in future
times, were now to make the surrender of the
right that the Chief Justice of the Supreme
Court of the United States sitting here as the
nj Of RI 1id hnlu fnpa a.,
pose, and for no other, has power to decide
even in preliminary and conditional way
questions that may be vital to the final decis-
ions of this tribunal on the questions of the
guilt or innocence OF the person arraigned
here, they would make a surrender which
would in substance abandon the constitution
al rights of the House of Representatives
and the constitutional rights of the Senate,
sitting as tribunal to try impeachment pre-
sented by the House of Representatives, In
all Difference, say, that the language of the
Constitution, that when the President of the
United States is tried the Chief Justice shall
preside, is conclusive in this whole matter. He
presides here not as member of this body, for
if that were assumed the claim would be not
only in derogation but i'll violation of another
provision of the Constitution which comedies
to the Senate the sole power of trying all i'm
peachments, and know of no language that
can be used more specific in its character or
more inclusive in its terms. 1t includes, as
we here maintain, all those men chosen under
the Constitution, and representing here the
several States of this Union, whatever may be
their faults, whatever may be their capacity,
whatever may be their interests whatever may
be their affiliations with or to the person ac-
cused sitting here as a tribunal to decide the
questions OF the Constitution with all the
and with all the infelicities which be-
long to the tribunal itself under the Constitu-
ton, with no power TO change it in any par
ticular, and is inclusive. / say it with all due
difference to every other man, whatever his
station, rank or position elsewhere, whatever
his relations to this tribunal, under the Con.
stitution, the Senate has the sole power to try
all impeachments, and no person elsewhere
can in any way interfere to contract or affect
Its decision or judgment in the slightest degree
Therefore, in the present case, 1t follows, as a
constitutional right that the Senate itself with
out advice as a matter of right, must decide
every incidental question which by any posi-
bility can control the ultimate Judgment Of the
Senate on the great question of the guilt or
innocence OF the party accused. II, under any
circumstances, the testimony of a witness may
be denied or may be admitted on the judgment
of any authority except this tribunal before
which we here stand, then the party accused
and impeached by the House of Representa-
tlves may be acquitted, or may be convicted ON
authorities or by influences separate and dis
tlnct from the Judgment aud opinion of the
Senate itself On this point think there can
President, as one of the managers not having
had an opportunity TO consult with my author
tiles on that point, and shaking therefore with
the defence as to what may be their Judgment
and the judgment of the House, would be
very willing for myself to proceed in the con-
duct OF this case, on the understanding that
the right is here and is now solemnly asserted
by the Senate for itself, and as precedent for
all its successors, that every question of law or
evidence arising here is to be decided by the
Senate without consultation with or the inter-
ference of the presiding officer, however worthy
it is, as l know it to be worthy of considera-
ton hold that judgment must be exclusive
ly here. Still, would be willing that in all this
proceeding the presiding officer of the Senate
shall give his opinion or his ruling if you please,
on Incidental questions of law and evidence
as they may arise, the understanding being
that any member of the Senate, or any one of
the managers, or any one acting as counsel for
the respondent may have it settled by the
judgment of the Senate, whether the ruling
OF the presiding officer is correct or otherwise.
In the trial of Lord Melville, Lord Chancellor
Ersklne evidently acted upon this idea A
question of the admissability of evidence hav-
ing been argued by the managers ON one side
only, and by the counsel for the respondent on
the other side, Lord Erskine said: IF any no.
BILE Lord is DESTROYS that the subject should be
matter of further consideration in the cham
Der of Parliament, it will be proper that he
should now move an adjournment. If not
have formed an opinion and shall declare it,"
On that theory he administered the duties of
the chair. With respect to the rights of the
House of Representatives and to the rights of
the respondent should not for myself object,
but 1 cannot eonscienciously, even in this
presence, consent to this doctrine as matter
of right, that the presiding officer of the SEN
ate is to decide this question under the circum-
stances, that it is not in the power OF the man.
ayers to take the management of the Court as
to whether the decision is right or wrong.
Mr.. Evarts, on behalf of the President, said :
Mr.. Chief Justice and Senators-I rise to
make single observation in reference to
position or an argument pressed by one of the
honorable managers, to aid the judgment of
the Senate on the question submitted to it.
according to the rules of this body the Chief
Justice presiding shall determine preliminate-
ly fnterlOcutory questions of evidence of law
as they arise, subject to the decision of the
Senate on presentation by any Senator of the
question to it. Now, the honorable manager,
Mr.. Boutwell,, recognizing the late inconve-
nience that would arise in the retarding of the
trial from that appeal to SO numerous a body
on every interlOcutocy question, while he in
sIsts on the magnitude and Importance of the
right to determine, intimateS that the mana
gers will allow the Chief Justice to decide I'M
less they see reason to object. In behalf of
the counsel for the President, I have only this
to say, that we shall take from this Court the
rule as to whether the first preliminary de-
cision is to be made by the Chief Justice or by
the whole body, and that we shall not 4subm
to the choice Of the managers as to how far
that rule shall be departed from. Whatever
the rule is we shall abide by it, but if the
Court determine that the proper plan is for
the whole body to decide n every interlocuto.
ry question, we shall claim as matter of
right, and as a matter of course, that that pro-
ceeding shall be adopted.
Senator Wilson renewed his moeion tn at
the Senate retire for consultation.