Year: 1867


of his relationship to Judge Frazier, We
deemed him disqualified from being a
member Of the court which vas 10 try him.
The report does me injustice in this, that l
did not withdraw the objection | made to
DR.. Frazier. Remarks were made at the
same time by Senator Senter, of the same
purport as those he delivered here the day
before yesterday.


| Mr. East stated that he had informed DR..
Frazier that he ought TO attend, as his
presence might be necessary TO constitute
| quorum, as on Monday last, and in that
event his absence would lay him liable TO
censure.


Senator Ssnter repeated substantially
what he said on Tuesday in his explanation
of his connection with the matter.


Senator Smith sent to the clerks desk
resolution, which was read, to the effect
that in conformity with the rule adopted
by the court we hold that every member of
this court who had formed or expressed an
opinion in regard to the guilt or innocence
of the accused is incapacitated TO sit in
judicial capacity on this trial, and that to
test his capacity the question shall be put
% each member, have you formed or ex-
pressed an opinion a. TO the guilt or inno-
cence Of the respondent? TO which he shall
answer on oath.


Mr.. MAYNARD. will merely remind the
court of the facts | stated yesterday in
reference 10 Judge Pickering, where three
/ gentlemen, who had been members of the
| House Of Representatives, when the articles
of impeachment were adopted, were sub.
sequently removed to the Senate before the
trial came on, and to whom it was objected
that they were disqualified by the fact of
their having participated in the action of
the House, which drew up the articles of
impeachment, from sitting as Senators on
the trial of the case. The question being
mooted in the Senate that body decided
| that they were competent to sit and vote
judicially, and accordingly they did 20. /
hold that this is a precedent binding on
this court


Mr.. Trimble: The objection implied in
the resolution submitted to this court, it
| will be observed is a mere abstraction, it
makes reference to no particular person,
who is a member of the court, that is
deemed on any grounds incompetent, and
therefore, / say it is a mere abstract obiec-
ton that may have no applicability 10 the
circumstances of this court in any degree
whatever. Whereas, without this resolu-
tion being adopted, it is competent to any
member to except to his own, or to any
body else's participation in the proceed
ings of this court, on the grounds of his in
competency or disqualification.


Mr.. East In reply TO the remarks Of
the counsel, on the part of the prosecution,
| would say that we had thought that bias
arising from relationship, or from opinions
entertained, or expressed regarding the
merits of the issue to be tried, had not at
least heretofore been valid reason for ex-
clusion in a court of impeachment. Here
tofore il has been held that bias on the
part of an individual member of the court
could not invalidate the proceedings Of
body, numbering twenty or more members.
But the decision of this body involves the
opposite theory, and they are bound in all
consistency to act in accordance with
principle which they have 30 emphatically
affirmed.


Judge Brien: had supposed, sir, that
when this court was organized, on the llth
of March, that its organization was COM
pIete, and that subsequently no question
could possibly arise as TO the qualification
Of member / so regarded it, and so acted
upon it. The question, however, was made
BY the counsel for the prosecution. 1t was
held that there was a member who was not
qualified to act and to participate in its
proceedings; and though this court bad
been formally organized and its members
duly sworn, it was decided by this court to
be in order TO inquire into the competency
of those members. / was therefore wrong
| in my Judgment, for according to the de-
cision Of this court, that relationship dis
| qualities Senator from sitting on trial
| involving the interests or character of a
relative, it follows likewise that interest, en-
nifty, or anything else that would disquaIify
q man from passing upon the guilt of any
one arraigned before q Criminal Court,
would, in like manner, unfit him for dis
charging the functions of member Of this
court. What it is that works disqualified
ton for the exercise Of these functions, we
must look for in the statutes in which all
this has been determined. All the restric-
tions there imposed must, under the rule
now adopted, apply with equal force here.
viii it do to take only such parts Of the
restrictions of the statute that suit us and
reject such az do not suit us2 This scarce
lY comports with that even-handed justice
which the court is sacredly engaged to ad-
minister


Judge Patterson: | would ask whether
there is any statute which disqualihes a
Judge from sitting on a case where he has
expressed an opinion.


Judge Brien: No, there is moi. But
there is no appositeness in the question, for
members of this court sit not as Judges but
as jurors.


Judge Patterson: Would not the princi-
pie thus urged apply equally to the case of
a chancellor, who is both judge and a
Juror?


Judge Brien: Does chancellor try
criminal cases? He is restricted to ques-
tions Of equity and good conscience, and
therefore the rules that govern him can
furnish no analogy for our guidance in a
case like this, where charge of felony is
pending. II will not do sir to shirk the
broad issues which are forced upon our at
tention. We must face them and mantully
and honestly encounter them. That at
least, is my plan. 1t won't do TO say that
because Of relationship man may be dis
qualified from Judging of the innocence
: or guilt of the accused, but that for having
; formed and expressed an opinion on this
: point in advance of his trial, he is not dis
l qualified. am not here to call in ques-
l ton the laws. but TO have them enforced
according to their spirit and meaning
; Now. why does it become important to OBJ
/ serve tHOst Tlktu Iuios III loletShtV ~ P1i-
ties whose lives, liberties or characters may
e be involved? The necessity springs ou
4 OF that sacred regard for human rights
e which has ever been the Distinguishing
s trait of our race-a sentiment which We
have inherited from our fathers, and which
we hope to transmit unimpaired, as the
dearest inheritance, TO our children. Il
: was the FIRST concern Of the trainers Of thi'
E government to protect the citi zens il
: their lives, liberties and social rights lfa
man is charged with crime, 10 that his
/ life, liberty or property is put in jeopardy
4 by the accusation preferred, the law pro
= vides that the jurors TO try him, shall b
; Judges not only Of the facts, but also of the
I, laws affecting the case. IL they are thu
e to determine laws and facts, and SO have th'
e destiny ofthe man inltheir.own hands, how
: essential is il that they should ACT free from
e prejudice, free from passion, free from bia'
n through relationship or interest Now e
n meet this case and secure his end, the wis
e dom Of our fathers has proyided-snd v
Il in a spirit Of grateful appreciation OF th'
4 magnanimity and justice that governe'
= them in their deed-hsve adopted the pro


vision, that men invested with these sacres