Evening star. [volume] (Washington, D.C.) 1854-1972, 1913-09-19
Four Senators, Challenged by
Defense, Will Retain
Seats.
WERE ON committee
INVESTIGATING GOVERNOR
Herrick and Parker Argue Their
Right to Sit as Judges,
Also. -

Suffers lawyers lost their first fight In
the high court of impeachment today
when the four senators challenged by
the defense were permitted TO retain
their seats
The vote, which was on the question Of
whether the court should entertain the
challenges, was unanimous against such
procedure. The four senators directly
concerned-Frawley. Wagner Ramsperger
and Sanner-did not vote.
Immediately following the vote OF the
court. the reading of the long articles OF
impeachment was begun.
Although Presiding Judge Cullen had
the right to decide the question of the
qualifications of the senators for holding
their seats, he did not take advantage of
this prerogative He first expressed his
opinion that the objections were not well
grounded and then permitted the entire
court to vote on the issue
Questions Right of Court.
In addressing the court Judge Cullen
said that no court had the right to sit
In judgment on any one of its members.
In this. he said, a court differed greatly
from jury, the qualifications of MEM
bers of which might be decided by the
courts.
The vote came after a morning of
legal argument between Judges Her
rick and Parker. representing the de-
Tense and the prosecution, respectively
Judge Herrick's chief argument was
that no man might sit both as prose-
cutor and judge. In reply Judge Par
ker said the members OF the court were
here as representatives OF the whole
people, that the people established the
court of Impeachment in the begin
ming and that none other than the peo-
pie had a right to remove their repre-
Sentatives.
Objections to Wagner.
Judge Herrick stated that the objeo-
tion to Senator Wagner was based upon
the fact that las acting lieutenant gov
ernor he Is interested in the result Of
the trial, as in the event of the con-
viction Of the respondent he would
succeed to the dignity. profits and
em0luments of the Office OF lieutenant
governor.
This case" said Judge Herrick. in
some respects is the greatest since the
impeachment trial OF President johnson.
1t has aroused the country. There can
be no question that the senators on the
Frawley committee have formed and eA-
pressed opinions on every article OF I'M
parchment.
u
of Impeachment as adopted by the as
sembly. declaring that the defense's chal-
lenge is founded on the right TO seek
trial by an impartial tribunal-one that
is not .prejudiced in advance. he cited
court opinions bearing on the absolute
necessity of all the judges being uncon-
taminated by bias.
Urges Fair Treatment.
Every member Of this high court" he
said, should be free from even sus-
picion of bias in order that the governor
might be given such fair treatment as
Is accorded the meanest criminal &C
cused of the smallest crime
At the completion OF his arguments ne
formally challenged the rlSht vi the iour
senators to sit.
AS Judge Herrick closed Judge Alton
b. Parker rose and began TO speak with
out notes.
Il shall contend before this high court.
he argued that you are without autnof-
ity to exclude from its membership any
member The people OF the state OF New
York are sovereign. ihey salo IN lhe
beginning that this court shall DE COM
nosed of the court of appeals and the
senate and YOU are without power to say
To any member, whether judge or SEN
ator: You shall not sit IN tins court.
/ Judge Parker declared that the state
const.tuti made no provision for judge.
ktsT
| member of the high court.
Precedents Are Cited.
citing precedents established in the
trial of the impeachment OF PRESIDENT
Andrew Johnson and other executives
and judicial officers, he argued that the
people of each senate district in the state
were entitled to the vote of their repre-
sentative He recalled numerous IN
stances where members OF former courts
Of impeachment who had served on CON-
mittees the reports of which hao resulted
In the adoption OF Impeachment arucies.
h.d ranuested TO be excused from sitting
i'm Judgment, but had their request denied
by their colleagues
His precedenLs ranged In time from tne
seventeenth century, in England, TO 1919,
wban during the impeach of John
II Shiyely auditor of the state OF Wash-
| inrtou. sixteen of the forty-two members
+ Cf the senate Were challenged
In the Shively case, Judge farker
| nointed out, il had been held that a SEN
ator's vote belonged TO his constituents
and TO himself
The only precedent in support or the
challenges. he said. was in one case In
which 4 senator had been excluded be-
cause he was a brother of the accused.
He did not specifically mention the case
Opinion of Cullen.
At the close Of the arguments on the
qualification of the senators to serve on
the mpeachment court Judge Cullen said
II was his opinion that the challenges
could not be entertained. He added. how
ever. that he would permit the entire
court to vote on the question after ex-
pressing his views.
The court voted unanimously not to
consider the challenges OF the four SEN
ators to sit In the Sulzer hearing
Judge Cullen then directed Clerk Nc
Cabe to read the articles OF fmpeach-
nent. The motion by Senator Pollock OF
New York that thhe reading he dispensed
with was lost and and the clerk began
slowly to read the lengthy articles.
"What answer does the respondent in
terpose to the articles or impeachment
f1led by the assembly," Queried Judge
Cullen when Clerk McCabe had finished
Judge Herrick thereupon stated that,
nursuant to the notice OF yesterday that
ohiections would be made to the validity
Of the impeachment, Louis Marshall or
The governors counsel would argue tha:
point.
Would Halt Proceedinga
Attorney Marshall, reading from Q pre-
pared brief. first asked that q ent1rs
procssdinss be dismissed. on u ground