his office when that man himself was to fill the office. He hoped that, in view of the importance of the question, the motion made by the Senator from Maryland would prevail. Mr. WILLIAMS (Ore.) held that the objection was entirely immature. If this body was the Senate, then the presiding officer of the Senate should preside, and if it was not, was there any court organized to decide the question? He never heard that one juror could challenge another juror, or that one judge could challenge another judge. Had a court ever been known to adopt a rule that a certain member of it should or should not participate in its proceedings. It was a matter entirely for the judge himself. Mr. DAVIS asked the question whether, if a Vice President came here to present himself as a member of the court, the court itself could not exclude him? Mr. WILLIAMS did not think that a parallel case, for by the very words of the Constitution the Vice President was excluded. It did not follow that because this court was organized as the Constitution required, a Senator having any interest would participate in the trial. He might, when the time came on for trial, decline to participate. If any Senator should insist, notwithstanding the rule of the Senate referred to, on his right to vote, even on a question where he had an interest, he had a constitutional right to do so. Mr. FESSENDEN (Me.) suggested that the administration of the oath to the Senator from Ohio be passed over for the present until all the other Senators are sworn. The President Might Ask a Questions Mr. MORTON (Ind.) argued that there was no person here authorized to make the objection, because it was the right of a party to waive the objection of interest on the part of a judge or juror, and the President when he came here for trial might say, "Why was not the Senator from Ohio sworn?" The theory of his colleague (Mr. Hendricks) was false. This impeachment was to be tried by the Senate.. The Senator from Ohio was a member of this body, and his rights as such could not be taken from him. His election as Presiding officer took from him none of his rights as Senator; but aside from that, he repeated, that there was no person here entitled to raise the question. A Precedent Cited. Mr. JOHNSON (Md.) urged the propriety of his motion, that the question should be postponed t 'till to-morrow. It was a question in which the people of the United States were concerned, and by no conduct of his, by no waiver of his rights could the court be organized in any other way than the Constitution provides. He repelled the intimation that the body was not a court but was a Senate. As the Senate, he argued, its powers were only legislative, and it had no judicial powers except as a court. So had all their predecessors ruled. In the celebrated impeachment case of Justice Chase, the Senate acted on the idea that they were acting as a court, not as a Senate. The Senators were to declare on their oaths, to decide the question of guilty or not guilty, and Mr. CONNESS (Cal.) objected, that there was no declare the judgment; and who had ever heard of right on the part of the Senate to raise a questiona Senate declaring a judgment. The very fact as to the right of another Senator, and he pre- that the Chief Justice had to preside showed ferred that a vote be now taken and the question that this was a court of the highest character. decided. The question as to whether a Senator As to the argument that a Senator had a right to had such an interest in the result as to keep him vote on a question wherein he had an interest, he from participating in the trial, was a matter for asked who had ever heard before of such a prothe Senator alone. position. The courts had even gone so far as to declare that a judgment pronounced by a judge in a case where he had personal interest was absolutely void, on the general principle that no man had a right to be a judge in his own case. In conclusion, he suspended the motion, and moved that the other members be now sworn. Mr. FESSENDEN explained that his intention was simply that all the other Senators should be sworn, so as to be able to act upon the question as a duly organized court. He cared nothing about it, however, one way or another, and he had no opinion to express on the subject. Can a Senator be Excluded from the Mr. HOWARD (Mich.) sustained the right of the Senator from Ohio to be sworn and to participate in the trial. He did not understand on what ground this objection could be sustained. They were not acting in their ordinary capacity as a Senate, but were acting as a court. What right had the members of the Senate, not yet sworn, to vote on this objection? How was the subject to be got at? Could the members already sworn exclude a Senator? That would be a strange deposition. As the Senate was now fixed it had no right to pass a resolution or an order. It was an act simply coram non judice. He suggested, therefore, that the objection be withdrawn for the preent. Mr. Wade's Rights. Mr. SHERMAN (Ohio) declared that the right of his colleague to take the oath, and his duty to do it was clear in his own mind. If hereafter the question of interest was raised against him it could be discussed and decided. The case of Senator Stockton, to which reference had been made, was a case in point. Notwithstanding the question of the legality of his election, no one questioned his right to be sworn in the first instance. It was only when his case came up før decision that his right to vote on that case was disputed and refused, and he (Mr. Sherman) had ever doubted the correctness of that decision. The same question came up in his own case when he was a candidate for the Speakership of the House of Representatives. He had taken his oath as a member of the House, and he had a right, if he had chosen to exercise it, to cast his vote for himself. He claimed that the State of Ohio had a right to be represented on this trial by its two Senators. His colleague should decide for himself whether he would participate in the trial and vote on questions arising in it. Questions had been introduced in this debate which he thought should not have been introduced. The only question at issue was, should or should not the Senator from Ohio be sworn in. Why the Challenge was Made. Mr. BAYARD (Del.) argued against the right of Senator Wade to take the oath, the object of the Constitution being to exclude the person who was to be benefited by the deposition of the President from taking part in the proceeding leading to such deposition. He proceeded to argue that the character of the body in trying impeachment was that of a court, not that of a Senate. He could not conceive on what ground the questions as to the character of the body was introduced, except it was that Senators, in cutting themselves loose from the restraints of their judicial character, might give a full swing to their partisan passions. If he stood in the same position as the Senator from Ohio, the wealth of the world would not tempt him to sit in such a case. Mr. SUMNER (Mass.) declined to follow Senators in the discussion of the question as to whether this body was a Senate or was a court. Its powers were plainly laid down in the Constitution. The Constitution had not given the body a name, but it had given it powers, and those powers it was now exercising. Distinguished Senators on the other side had stated that the Constitution intended to prevent Senators who were to benefit by the result of impeachment from participating in the trial of the accused. Where did they find that interest? Where did they find the reason alleged for the provision as to the Chiet Justice presiding? It was not to be found in the Constitution itself, nor in the papers of Mr. Madison, nor in the Federalist, nor in any cotemporaneous publications. The first that was to be found of that idea was in Rawle's Commentaries on the Constitution, published in 1825, and the next that was to be found of it was ten years later, in Story's Commentaries, where, in a note, Rawle is cited. If they were to trust to the lights of history, the reason for the introduction of this clause was because the framers of the Constitution had con templated the suspension of the President during impeachment, and because, therefore, the Vice President could not be in the Senate he would be discharging the Executive functions. of interest, he asked who could put into the one scale the great interests of the public justice, and into the other paltry personal temptation. He believed that if the Senator from Ohio was allowed to hold those scales, the one containing personal interest would "kick the beam." Speech of Mr. Howe. Mr. Howe (Wis.) thought the question would not be a very difficult one if they were willing to read what was written, and to abide by it. It was written that the Senate should be composed of two Senators from each State, and it was elsewhere written that Ohio was a State. It was also written that the Senate should have the power to try impeachments-the Senate, and no one else. He conceived, therefore, that that was the end of the law. Whatever after question of delicacy there might be, the question of law was clear, that the Senator from Ohio was entitled to participate in this trial. If the Constitution were silent on the subject, no one would have challenged the right of the presiding officer of the Senate to preside on this trial. The Constitution, however, had provided for that question, and had gone no further. If any objection did exist to the Senator from Ohio, the only party who had a right to raise the objection was not here and was not represented here. Mr. DRAKE (Mo.) argued that if the objection had any legal validity whatever, it was one which had to be passed upon affirmatively or negatively by some body, and he wanted to know what that body was? Was it so passed upon by the presiding officer of the Senate? He hardly thought Was it to be passed upon by this body itself? Then come in the difficulty that there were still four Senators unsworn. It might have been among the first or the very first one, and then would have had to be decided by Senators, not one of whom had been sworn. So. whether this was a court or not. They had to Mr. THAYER (Neb.) discussed the question as to come down to the plain words of the Constitution, "The Senate shall have power to try impeachments." If this body was a court now, where did the transformation take place? It was had not since adjourned; nor could it be said at the Senate when it met at twelve o'clock, and what particular point of time the transformation took place, if at all. If the question of interest Ohio, it ought with greater reason be raised was to be raised in the case of the Senator from against the Senator from Tennessee (Mr. Patterson), who was so closely allied with the President. Besides every Senator who might succeed to the office of presiding officer was also interested The Senator from Ohio could not be deprived of but one degree less than the Senator from Ohio. his vote except by a gross usurpation of power. Suppose ten or fifteen Senators were closely allied to the accused, the objection might be made, and the whole movement defeated by reducing the body below a quorum. Mr. HOWARD rose to call the attention of the chair to the real matter before the body, and to inquire whether the pending motion, that other Senators be sworn in, was in order. Mr. SUMNER referred to the constitutional debates in support of his theory, particularly citing the words of James Madison in the debate in the Virginia Convention, to the effect that the House might impeach the President, that the Senate might convict him, and that they (meaning either the Senate or the Senate and House of Representatives jointly) could suspend him from office, when his duties would devolve upon the Vice President. Here, he argued, was an authentic reason for that provision of the Constitution pro-chair to the real question before the Senate, and viding that when the President was on trial the Chief Justice should preside. He submitted that the Senate could not proceed upon the theory of the Senators on the other side. The text could not be extended from its plain and simple meaning. As to the question Chief Justice CHASE replied affirmatively. Mr. HOWARD rose to call the attention of the asked whether the pending motion, that other Senators be sworn, was not in order? The Chief Justice said that the Senator from Indiana having objected to the Senator from Ohio taking the oath, there was now a motion that the remaining names be called, omitting the name of the Senator from Ohio. Mr. HOWARD said there was no rule requiring the names to be called in alphabetical order. The remaining names could be called now. He saw no necessity for further discussion of this motion, and thought it was merely a question of order. It seemed to him that it must be held that the trial had commenced, and that as the Senate had the sole power to try impeachments, and as the Constitution also prescribed the administration of an oath, it was out of order to interfere with the taking of that oath. Mr. BUCKALEW asked if the rules did not provide that, the presiding officer shall submit all questions to the Senate; but assuming it to be a question of order, he contended that the clause was intended to apply to the old form of taking votes by States. The Senate had already adopted á rule for excluding votes in a particular case-a rule founded in justice. The argument was that the Senator had a right under the Constitution to represent Ohio. in the case. On several occasions recently, Senators had presented themselves and had been denied admission. Here they were organized into a court to decide the gravest possible questions. The objection was made at the proper time, and if not now made, a number of members not qualified to act might take part in the proceedings and be judges It was not only their right but their duty to raise the question now. They are acting under the Constitution, most of them having been sworn already, and the Chief Justice being there to add dignity and disinterestedness to the deliberations; and if they properly raised the question to be decided at the earliest possible moment, it was a question arising under the Senate, and they must meet it before they could organize. He was content to take the decision of the Chief Justice of the United States and the opinion of a distinguished commentator, in preference to that of the Senator from Massachusetts. Objections were always made to jurors before they were sworn; if not, it would be too late. Mr. FRELINGHUYSEN (N. J.) asked whether the Senator supposed the accused waived his right of challenge by the Senators being all sworn? He would challenge, if at all, after they were organized, and, therefore, this was not the time to make objection. Mr. BUCKALEW said he was not talking of challenges. It had not been put upon that ground by the Senator from Indiana (Mr. Hendricks). Challenge was a right given by statute.. Mr. MORTON replied to Mr. Buckalew, and said the Constitution had made the tribunal itself, and they had no right to constitute one. It was not important what they called the Senate now, but it was material that they should sit as the Constitution authorized them, in the trial of an impeachment as a Senate. The Senator from Ohio being a member of the Senate, and the Senate performing duties imposed upon it by the Constitution, it was idle for them to talk about organizing a court, when the Constitution placed certain duties upon them. At 4:30 P. M., Mr. GRIMES (Ia.), after premising that the Chief Justice having sat since 11 A. M., must be fatigued, moved to adjourn. Mr. HOWARD suggested that as a court they could not adjourn the Senate, and Mr. GRIMES moved to adjourn the court until to-morrow morning. PROCEEDINGS OF THURSDAY, MARCH 5. chair by Mr. Pomeroy, the chairman of the comThe Chief Justice was again escorted to the mittee appointed for that purpose. The Secretary of the Senate read the minutes of the court yesterday, including the adjournment of the Senate. The Chief Justice then stated the question to be an objection having been made to the swearing-in of the Senator from Ohio (Mr. Wade)-a motion to postpone the swearing-in of that Senator until the remaining members have been sworn. He also announced that Mr. Dixon (Conn.) had the floor. Mr. DIXON-Mr. President A Point of Order. Mr. HOWARD (Mich.)-Mr. President, I rise to a point of order The Chief Justice-The Senator will state his point of order. Mr. HOWARD-By the Constitution, the Senate, sitting on the trial of impeachment, is to be on oath or affirmation. Each member of the Senate, by the Constitution, is a component member of the body for that purpose. There can, therefore, be no trial unless that oath or affirmation be taken by the respective Senators who are present. The Constitution of the United States is imperative, and when a member presents himself to take the oath, I hold that, as a rule of order, it is the duty of the presiding officer to administer the oath, and that the proposition to take the oath cannot be postponed. Other members have no control over the question. That is the simple duty devolved upon the presiding officer of the body who administers the oath. Further, sir:-The Senate, on the second day of the present month, adopted rules for their government in proceedings of this kind. Rule third declares that, before proceeding to the consideration of the articles of impeachment, the presiding officer shall administer the oath hereinafter provided to the members of the Senate then present. Mr. Wade is present and ready, and the other members if they appear, whose duty it is to take the oath. The form of the oath is also prescribed by our present rules as follows: "I solemnly swear (or affirm as the case may be, that in all the things appertaining to the trial of the will do impartial justice according to the Constitution impeachment of Andrew Johnson, now pending, I and laws. So help me God." That is the form of oath prescribed by our rules. It is the form in which the presiding officer of this body himself is sworn. It is the form in which we all (thus far) have been sworn; and so far as the rules are concerned, I insist that they have already been adopted and recognized by us, so far as it is possible, during the condition in which we now are, of organizing ourselves for the discharge of our present duties. I, therefore, make the point of order, that the ob jection made to the swearing in of Mr. Wade, is out of order, under the rules and under the Constitution of the United States, and I ask the court respectfully, but earnestly, that the President of the Senate, the Chief Justice of the Supreme Court of the United States, now presiding in the body, do decide the question without debate. I object to any further debate. Mr. DIXON-The question before the Senate is whether under this rule the Senator from OhioMr DRAKE (Mo.)—I call the Senator from Con The Chief Justice put the motion and declared necticut to order. it carried, and vacated the chair. The Chief Justice-The Senator from Conecti |