Year: 1867

4 a


objection is too late, it should have beer


taken at an earlier stage of the. pro


ceedings 1t is known TO every mem


ber that in pleadings in courts of common


law, or in the courts of equity, there is 8


certain form of proceeding, and that GER
tain objections may be made at certain


stage Of the proceedings, and that at an.
other stage they cannot be made. In this
| trial we have already felt the operation Of
this principle. We desired to make first a


demurrer" and after that to submit our


ANSWER" But as the answer could not
come after the demurrer, we had to put in
| the latter, emitting the former. If there
was any objection to any member of the
court, that objection was the first to be
made; and if it be not made at the thres-
hold, it is waived. II, then, an objection
to jurisdiction is waived, We proceed to
another stage of the proceeding. II
an answer, then no demurrer. / main-
tain, therefore, that at this stage the
objection comes too late; nor is there
any pretext for such proceeding inasmuch
as the court is not invalidated even if q
member who has no right to sit takes part
in its proceedings. It's proceedings still
hold good. But may i pisYe the court,
do not wish 10 rest out defense against the
objection takento DR.. Frazier on the ground
Of time alone. | say, sir, there is no law
either in usage under the common Law, which
was derived from our fathers in Great
Britain and adopted by these United States
of America, norm any statutory provisions,
by which this member can be rejected, ex-
cluded, or expelled-not as a Senator, but
as judge-from partakingin the delibera-
tious and Judgment of this court. / do
not propose to try this question on
speculative vagaries but on the
law of the land. l admit precedent may be
adduced from other impeachments, i ad.
NIT that in the absence of statutory pro-
visions we are governed by common law as
il is given to us in books of proceedings
and precedents derived from other times.
But where the constitution of Tennessee
has spoken authoritatively, where it has
spoken definitely, we are yet governed by
common laws. say that the constitution
of Tennessee defines who shall be court of
Impeachment. We, ssir, have not intro
duced any statutes here as a rule by which
this court is to be governed. Wehaye had
them introduced on the other side.
The rule respecting the admissabi.ity
of a juror has been propounded as
applicable to this case But if no statute
can touch this question by the obligatory
Interpretation Of the constitution of Ten
nessee, then it is vain to look into statutes
for solution of this question. Waving
the constitution, however, have they been
able to point us to any source whence the
requisite authority can emanate for deci-
ding this question? Now, / say without
fear of contradiction, that there cannot be
found in any book of common law any
principle apon which a brother can be
prevented from sitting in a tribunal which
Is to try his brother. "Christian ciyiliza-
tion," "the moral sensibilities," and even
common deeency," may be impressed
into the argument, but they will yield them
no further service than to protest against
so wanton a PROCLAMATION of holy things,
and thus, perhaps, recall the perpetrators
to better state of heart and feeling.


say, then, that the common law con-
tains no principle by which any man can
be excluded from voting as Judge on any
trial, except it be on his own case. That no
man can be Judge in his own case, is an
old principle in common law. SO far,
common law has gone, but it has gone no
farther. If he is interested to the extent Of
a single farthing, he is not competent to act
as Judge. All other objections on the
score OF relationship, ON the score of
bias, on the score of interest, on the
score of prejudice, on the score Of
party feeling, all these objections are
founded only on statutory provisions and
of them alone Lord Coke has laid dswn
this principle, that no man can preside as
Judge when his own case is to be tried, but
he carries the restriction no further. Black
stone lays down the rule that a man cannot
be Judge in case in which he himself has
a personal interest, provided any other
man can be found competent to act. So
far we admit that man ia excluded from
sitting and judging. We are not under the
necessity of producing authorities; the
burden is On the other side. They have to
show that this man is incompetent for par
ticipating in the deliberations Of this court,
and giving the award of his personal judg-
ment by final vote on the question to be
tried by the court. rest here till authori-
ties OF that subject can be produced. Sec.
ton 4009 of the Code provides that, "either
party to an action may challenge for cause
any person presented as a petit juror, in
either a civil or criminal proceeding, who
is incompetent TO act as a juror" All
these things are to be found in the statutes,
but our constitution, when it comes to pro-
vide for this question, makes no such ex-
ceptions and limitations. The constitution
has made provisions applying to judges
Tart. 6, Sec H. as follows:


mo Judge of the Supreme or inferior courts
shall preside on the trial Of any cause in the
event Of which he may be interested, or where
either otthe parties shall be connected with him
by affinity or eonsanguinty, within such degrees
as may be prescribed by law. or ia which he
may have been of counsel, or in which he may
have presided in any inferior court, except BY
consent of all the parties"


The provision is complete and plenary
from the Supreme ldown to the inferior
courts. Now we have the same constitu-
tion, have the same provision in regard to
trial of impeachments, of whom the court is
10 consist, and how it is to be constituted,
and if it we're thought proper to exclude
member on the score of bias, relationship,
interest, etc, why have we not provision
similar TO those cited in the other cases
1t is peculiar court, a constitutional
court, but it is a court that is made in
virtue of the constitution. When the
court fer the trial of Impeachment comes
to have its elements defined it is defined in
the constitution that call impeachments
shall be tried by the Senate when sitting
for that purpose, the Senators shall
be upon oath or affirmation. No person
shall be convicted without the concurrence
of two--thirds of the Senators sworn to try
the officer impeached. Now l ask, may it
please the court, who constitute this court
The Senate Of Tennessee. The members
sworn constitute the court. Can any men,
Der of the Senate, unless he be sworn in,
be allowed to vote on any subordinate or
on the final question? Assuredly not.
Mr. james Campbell may have applied to
be excused, and the Senate may have
granted his request, but it would be mean
ing nothing disrespectfnl to the court to
declare it a mere tTlItitn fitlnen. You can
resort to no statute, to no common law,
to no enactment that can relieve you of
an obligatory duty that is imposed on
you by the constitution of Tennessee.


II, then, we begin to impose restrictions
where the law does not impose them; if
we arbitrarily deny 10 q brother the right
Of irdging his brother, kwhere will you
stop3 Will you give TO a cousin Alright
which you deny 10 a brother? have
Sometimes known a case where a cousin
stuck closer than brother. You have no
stopping point, then, shorter than the stat
utes of Tennessee. You cannot 60 to com