Year: 1867




into all the country and are read. And, as
have shown, were such course adopted
il would be necessary 10 append rejoinder,
to enable the citizens to Judge of the real
merits Of the case, and what sort of book
would this make?


Judge Cant 1t would scarcely be treat
ing this court with Difference if the protest
did not contain the reasons for entering it.
If a man enter protest, we ought certainly
10 allow him to justify himself by adduc'
ing his reasons


Mr.. Trimble: The gentleman is learned
in the law allow me 10 ask him If there
be any precedent Of respondent entering
a protest in civil action


Judge Cant fnthe form OF afiidaFlts of
a bill Of exceptions, he undoubtedly has
the right.


Mr.. Trimble: Is bill of exceptions put
on the minutes Of the journal


Judge Gaut: If not, what amounts TO
the same thing, it is enrolled as one of the
archieyes of the court.


Mr.. Ewing | wish to make an addi-
tional remark or two, may it please the
court in reference TO this matter of the
protest If counsel had drawn up this
paper, perhaps it would not have been just
in the form in which it now appears
am willing TO admit that it is susceptible OF
improvement. 1t was scarcely to be ex-
pected that it should be quite free from ex-
pressions denoting some excitement OF
feeling or that it should be quite as calm
| or passionless as mathematical demonstra-
ton OF a legislative enactment. But this
might be amended Now the defendant
| himself is unwell this morning, otherwise
were he in court it might be amended, and
some other paper substituted in Its place.
And now the question arises whether this
paper may be Withdrawn by the defendant
! and another substituted in its place.
should prefer that this paper be presented
| in a different form.


With regard to the right of the respon-
/ dent TO have his protest recorded on the
/ journals, would remind the court that we
must recur to the nature of the court itself
in deciding this question. This may at
| least furnish us with a clue by which 10
guide our inquiries. This is not like or
| dinary courts which have, so to speak,
| permanent existence, but it is created from
| time to time as exigencies may arise to
| demand it. 1t is restricted to the trial of
| one class Of offenders and to one class of
offenses. Officers of the government alone
are liable to be tried by COURT Of impeach-
ment. aud official delinquency is the only
matter Of which it can take cognizanee.
Now surely the high character Of the court
and the gravity of the offense charged, de-
mand that we have at least equal guaran-
tees that the defendant shall have Justice
that are afforded by the ordinary courts of
the country. A court that has only an oc-
casional and temporary existence, and from
| which there is not and cannot be any
appeal, should not deny to the accused
those privileges which are accorded by all
other courts, and which are especially
needed here TO act as a check to uneon-
troIled, and had almost said, irresponsi-
BILE powers. An impeachment is a thing of
| such rare occurrence that we are evidently
at some disadvantage for lack of expert
ence and to some extent of precedent, TO
( Guide us- Nhs T. tie lifot ialle Ih4t havs
ever appeared in an impeachment case.
This, i believe, is only the fourth that has
ever occurred in this State since its organi-
zation as a State Indeed there have been
very few impeachments in the world.


Mr.. Trimble Few at least FIVE
hundred in England.


Mr. Ewing Well, perhaps so, but l
confess ] am a little incredulous. How
ever, am not so conversant as the learned
counsel with the history of the House Of
Lords There may have been five hum
dred, but what are FIVE hundred impeach-
ments extending as they do through long
centuries, dating from a remote antiquity,
in comparison with ordinary trials, which
number not five hundred, or FIVE thousand,
or even FIVE hundred thousand, but more
nearly fifty millions, which have taken
place within the same period At all
events as to ourselves, this is the first
essay, | apprehend, of all of us = of court
/ as we'll as counsel-on the matter of inn


peachment This being then peculiar
court, il may be that We are not SO we'll
prepared rs We might be if we were en-
gagged in trial before an ordinary civil
court. / think that before this trial is
concluded it will be found that we have
involved ourselves in a little trouble and
confusion and perplexity. The thing
which has been done here never was done
before, and that will involve a correspond
ing departure from precedents in other


matters. Inasmuch as il has been done,


right or wrong, we must not only abide by
that, but be prepared to accept all il in


wolves. We want to show in the records
of this court that we do not acquiesce in


the proceedings of the court in rejecting a
member of the Senate from participating
in its judicial proceedings. The defend
ant objects to the exercise of this power as
an unwarrantahle assumption Of pre-.
rogative that does not by right pertain to
il. If it be right even-and / do not say
that it is not right-yet this departure


from ordinary methods of procedure may
/ I L.. 20 ho 10


dient to meet it.


Mr.. Trimble: What is the object to b,
accomplished by putting this protest upor
the journal?


Mr.. Ewing: 1t is to place himself right


IN regard to this case before the world, tC


which he is responsible. His character


his future life, and all his interests ar,
involved in the pending issue. If he hai
the right of citizen Of Tennessee to defenC
himself before the people of Tennessee


and TO vindicate his innocence in thi
court, then he has the right to demand tina
his protest be entered en- the records o


the court And if that be his right, he i
entitled to assert and maintain it, Ant


whether it be TO accomplish one object o


another, il does not lie with the eounse
Of the prosecution to demand.
say, then, may il please the court, tina


in the peculiar nature of the circumstance
that have arisen in relation TO the position
that we now occupy, that there arises
corresponding right 10 the defendant &
place himself in a beitting attitude il
reference to the changed order of things
Our position is such rs TO demand that W
be allowed 10 put upon the record our pro
test against the proceedings which were 81
, unlocked for, and 30 anomalous. We hay'
the right 10 place it on the record as a bill
T | Of exceptions.


Mr.. Trimble VIII you allow me to ssl
, YOU the question is it usual to enrol al
: argument


Mr. Ewing IL is usual to enrol bill 0
J exceptions, and this would have been bil
Of exceptions if the court had not don'
, that which we conceive 10 be contrary 4


all precedent


On motion Of Senator Hall, the cour
, adjourned till Monday morning at min
( o'clock


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