Year: 1868

decision of the court upon any question
decided first by the presiding officer
Would not the Managers, under that ruling
have to depend entifely upon the courtesy
of some member of the court who might
ask to have the question submitted to the
court


| The Chief Justice thought the ruling
would have that effect.


Mr.. Butler said the question then be-
came one of very grave importance, for
the Chief Justice makes decision which
precludes the Managers representing the
House of Representatives from asking the
court to pass upon a question decided, as
they may believe, erroneously by the Chief
Justice.


The Chief Justice said he did not wish
to be misunderstood. The Managers might
propose to the court any question they
deemed proper, and the court could and
would then pass upon it.


Mr. Butler thought he had clearly un-
derstood the Chief Justice. AS he under
stood it, they could ask any opinion of the
court, but that opinion could not be OBJ
tained except through the courtesy of a
member of the court, who would accede
to the desires Of the Managers and ask for
such opinion. lie contended that this
ruling was all wrong, and that it would be
setting very bad precedent to allow tho
question to be so construed, although tho
point upon which this discussion hinged
had been decided in favor OF tho admission
Of testimony offered by The Managers. He
quoted at length from English cases to
show that the Commons Of England, when
| ;p,o ,bY
Jealous Of this subject, AID had ever in
structed their Managers to address the
court trying the impeachment as "My
Lords" They had ignored the Lord High
Steward or the Lord High Chancellor,
whichever it might be that presided, be-
cause their appeals for any decision were
never to the presiding officer, but to the
Lords direct. This whole question was,
whether upon question of law or the ad-
instability Of evidence, the Chief Justice
or presiding officer could stand between the
Managers Of the House Of Representatives
and the court trying the impeachment,
when the managers desire primary deci-
sion from the court. The Managers could
not agree to any such decision, but they
must stand firm. II such decision were
enforced, he, for one, would be compelled
to withdraw and ask further Instructions
from the House before point of such
| great concern could be yielded. The
question, he believed, was one Of great
moment and concern, and should be de-
| cided here and now. He did not think it
was so necessary that the question should
be securely settled for the purposes of this
trial, for we have an able, honest, learned,
candid, and patriotic Chief Justice in the
chair but let the precedent be set that in
cases of this kind the presiding officer may
decide questions, and let that decision re-
gulate these proceedings in future times,
and some Jeffreys upon the American
bench might take advantage of it, and not
WELD the power so Justly as our present
presiding officer would. He wanted pre-
ccdent set, therefore, which would be a
wholesome example even to {. Jeffreys. He
hoped that no Jeffrey would ever disgrace
the judicial ermine of the United States !;
but we must remember that we have An
drew johnson for President of the United
States, and there is no knowing who may
be thrown to the surface in future years.


No one else rising to speak, the Chief
Justice stated the question to be whether
the Chief Justice had a right to decide
preliminary questions under the rule.


Senator. Drake Gnterrupting) said the
Chief Justice had so decided, and he
Drake) had raised the point Of order, and
appealed from the decision of the Chair.


The Chief Justice trapping with his
caveD: The senator from Missouri will
come TO order.


Mr.. Drake was about to continue speak
ing. when the Chief. Justice again raped
with his ga7el, and called the senator to
order.


Senator Conkln asked that the ques-
ton be again stated.


The Chief Justice repeated that the
question was whether, under the rule, he
had a right to decide preliminary ques-
tions.


MIR, Conklin demanded the yeas and
nays upon the question.


Senator Wilson moved that the Senate
retire for consultation.


Pending the motion,


Mr.. Bingham, addressing the Chair, said
he thought that the whole question was
decided by the rules adopted, and by the
language of the Constitution Of the United
States. That Constitution plainly says
that the Senate of the United States must
try all cases Of impeachment, and that i'm
plies the right and duty to decide all ques-
tiops that may arise. He referred to Bri-
fish decisions to show that in England 1t
was held that upon trials of impeachment
the peers alone can decide all questions OF
law, and the Lord Chancellor, or whoever
presides, is but ministerial officer tc pre-
serve order and see that the rules are pre-
served. No case could be found where
Lord Chancellor had ever decided one OF
these questions, but, on the contrary, all
were submitted to the court, and the court
alone can give its decision.


Senator Sherman submitted in writing
q question asking the Managers what the
precedents were in such cases in impeach-
ment trials in this country, and whether
the President of the Senate decided these
questions or submitted them to the court.


Mr.. Boutwell,, without answering the
question, directed some remarks TO the
main proposition. He said that if the
Managers here, acting for the House OF
Representatives, and not only for them,
but for other generations, should make
surrender of the right that the Chief JUS
tice of the United States, sitting here for
q specifed circumstance, has right to de-
eide in a preliminary way the questions
thew should properly have the sense of the
Senate upon, they might as we'll surrender
At once all right to the further prosecution
of tbe case. With all due Difference to
tho on;nion of the learned Chief Justice
who presides over this tribunal, he must
insist that the language Of the Constitu-
ton was conclusive upon this question q;
That instrument says that the Senate shall