ever tried in the Senate of the Under States under the Constitution, the case of Blount, although the accused had interposed a plea to the jurisdictions, the argument was closed by the manager on the part of the House. I had risen for the purpose of making some response to the remarks last made; but as the presiding officer has interposed the objection to the Senate, do not deem it proper for me to proceed further until the Senate shall have passed on the question.

Senator HOWARD said he rose to move to lay the motion of the counsel on the table.

Mr. BOUTWELL, one of the managers, remarked that it seemed to the managers, and to himself, especially, a matter of so much importance as to whether the managers should have the closing argument, that he wished, and they wished, that to be decided now.

Senator HOWARD said that it was not his intention to shut off debate or discussion, either on the part of the managers or on the part of counsel for the accused, and if there was any desire on the part of either to proceed with the discussion he would withdraw his moto lay on the table.

Mr. BINGHAM then said-I deeply regret, Mr. President, that the counsel for the accused have made any question here, or any intimation, if you please, that a question is made or intended to be made by the managers touching the entire sincerity with which they ask this time. I am sure that nothing was further from our purpose than that. The gentleman who last took his seat (Mr. Stanbery) spoke of having presented this application on their honor. No man questions their honor-no man who knows them will question their honor-but we must be pardoned for saying that it is altogether unusual, on questions of this kind, to allow continuance to be obtained on a mere point of honor.

The rule of the Senate which was adopted on the 13th inst., is the ordinary rule in courts of law, namely, that the trial shall proceed unless for cause shown further time shall be allowed. I submit that a question of this magnitude has never been decided on the mere presentation of counsel in this country or any other country. The point of continuance arising on a question of this sort, I venture to say, has never been decided affirmatively, at least in favor of such a proposition, on the mere statement of counsel. If Andrew Johnson will say that there are witnesses not within the process of this court, but whose attendance he can hope to procure if time be allowed him; and if he will make affidavit before this tribune that they are material, and will set forth in his affidavit what he expects to prove by them. I concede that on such a showing there would be something on which the Senate might probably act, but instead of that he throws himself back on his counsel, and has them to make their statement here that it will require thirty days of time in which to prepare tor trial. He sent those gentlemen at the bar of this tribunal on the 13th inst., to notify the Senate, on their honor, that it would require forty days to prepare an answer, and now he sends them back, upon their honors, to notify the Senate that it will require thirty days to prepare for trial. I take it, sir, that the counsel for the accused have quite as much time for preparation, if this trial shall proceed tomorrow, as had the managers on the part of the House, who are charged with duties by the people which they are not permitted to lay aside from day to day, in the other end of the Capitol. I think, on the showing made here this day by the President of the United States, unless very good cause is shown, and that, too, under the obligation of his own oath at the bar of the Senate, that not another hour's continuance should be allowed him after the case shall have been put at issue. We asked leave to suggest to the Senate that we hoped on to-morrow, by leave of the people's representatives, to put this case at issue by filing a replication. That is all the delay we desire.

They have had the opportunity for process ever since the 13th inst.. and they are guilty of gross neglect-I do not speak of the counsel, but of the accused-in not having the witnesses subpoenaed; and yet not a single summons has been required by him, under the rule and order of this tribunal, to bring to the bar a single witness on his behalf. He has shown a total neglect; and yet he comes here with a confession and avoidance of the matters presented by the House of Representatives, and tells the Senate, and tells the country that he defies their power, thus trifling with the great power which the people, for various purposes, have reposed in the hands of their Representatives and Senators in Congress assembled.

What is this power of impeachment if the President of the United States, holding the whole executive power of the nation, is permitted, when arraigned at the bar of the Senate, in the name of all the people, and charged with high crimes and misdemeanors, in that he has violated his oath, in that he has violated the Constitution of the country, in that he has violated the peoples' laws, and attempted by his violation to lay hands upon the peoples' treasury? What, I say, is this great defensive power worth if the President, on a mere statement of counsel, be permitted to postpone for further inquiry for thirty days, until he prepare to do what?

Until he prepare to make good his elaborate statement set forth in his answer that the Constitution is but a ca

binet in his hands, and that he defies our power to restrain him When I heard this discussion going on, I thought of the weighty words of that great man whose luminous in tellect shed lustre on the jurisprudence of his country and the great State of New York for more than one-third of a century, when he wrote it down in his commentaries on the laws-commentaries that will live as long as our language lives-that if the President of the United States will not be restrained from abusing the trust committed to him by the people, either by the obligations of his oath or by the written requirement of the Constitution, that he shall take care that the laws be faithfully executed, or by the other provision that his term of office is limited to the short tenure of four years; nor yet by the decent respect to the public opinion of the country, there remains the tremendous power lodged by the people under the Constitution in the hands of their representatives to arrest him by impeachment in the abuse of the great trust committed to his hands.

Faithful to the duties imposed upon us by our oaths as the representatives of the people, we have interposed that remedy by arresting the man. He comes to-day to answer us, and he says to us, "I defy your impeachment; by the Executive power reposed in me by the Constitution, I claim, in the presence of the Senate and in the presence of the country, the right. without challenge, let or hindrance, to suspend every Executive officer of this government, at my pleasure." I venture to say, before the enlightened bar of public opinion in America, that by those motives incorporated, in his answer the President is as guilty of malfeasance and misdemeanor in office, as ever man was guilty of malfeasance and misdemeanor in office since the nations began to be on earth. What, that he will suspend all the executive officers of the government at his pleasure, not by force of the Tenure of Office act, to which he makes reference, and which he says is void and of no effect, but by force of the Constitution of the United States; that, too, while the Senate is in session. What does he mean by it? Let the Senate answer when it comes to vote on this Proposition for the extension of time. Does he mean by it that he will vacate the offices and not fill them? Does he mean by that, your money appropriated for carrying on and administering the government shall remain locked up in the vaults of the Treasury, and shall not be applied, or does he mean by it that he will repeal what he has already done in the presence of the Senate and in violation of the Constitution and the laws, and will remove without the consent of the Senate, and will appoint while the Senate is in session, without its consent and advice, just such persons as will answer his own purpose? Is that what he means by it? If it is, it is a very easy method of repealing the Constitution of the United States. I admit that it is a time honored rule of law, the gathered wisdom of a thousand years, that the accused has the right to a speedy and impartial trial.

I claim that the people also have a right to a speedy and impartial trial, and that the question pending here touches in some sort the rights of the people. In their name we demand here a speedy and impartial trial. If the President is not guilty, we ask in behalf of the country that he shall be declared innocent of the offenses of which he stands charged. If it be the judgment of the Senate that he has laid violent hands on the Constitution of the country, and rent it to tatters in the presence of its custodians, the sooner that judgment is pronounced the better. In this view of the case the public interests demand that the triat shall proceed until, by the solemn oath of the accused, made at the bar, it shall be made to appear that he cannot proceed on account of the absence of witnesses material to him, and until he states what he expects to prove by them.

I venture to say that he can make no showing of that sort which we are not ready to meet, by saying that we will admit that his witnesses will swear to his statements, and let him have the benefit of that. Nearly all the testimony involved in the issue is documentary. Much of it is official. It will occur to the Senate that as this trial progresses, they will have as much time for preparation by the time that the case closes on the part of the government as we have had. We make no boast of any superior preparation of this matter. We desire simply to discharge our duty as best we can. We assume no superiority over counsel, as was intimated by the gentleman (Mr. Stanbery). We desire simply to discharge our duty here; to discharge it promptly, to discharge it faithfully.

We appeal to the Senate to grant us the opportunity of doing so, that justice may be done between the people of the United States and the President of the United Stases; that the Constitution which he had violated may be vindicated, and that the wrong he has committed against an outraged and betrayed people may be speedily redressed. Mr. BUTLER, another of the managers, said he would like to call the attention of the Senate to the position in which the managers would be placed if the question of time were not settled now. If a replication were made at all, he thought he could say for his associates that it would be simply a gaining of issue to the answer, and therefore, and for that purpose, it might be considered already filed. The managers would have to be ready at all hazards by tomorrow to go on with the case, with the uncertainty of having the court, or rather, "he begged pardon," the Senate postponing the trial for thirty days.

He therefore agreed with the counsel for the defense, that it was better for all that the question should be settled now. He knew he spoke for the managers and for the House of Representatives when he urged that the question should be settled now. Our subpoenas, said he, are out. Our witnesses have been called. We want to

know when to bring them here. We have got to come here sure, and we will be here. (Langhter, which was promptly suppressed by the Chair.) That is all we ask. Therefore I trust that the Senate will fix, at this time, the hour and the day that this trial shall certainly proceed.

Senator HENDERSON offered the following:Ordered, That the application of counsel for the President to be allowed thirty days to prepare for the trial of impeachment, be postponed until after the replication is filed.

The question was taken by yeas and nays, and resulted as follows:

YEAS-Messrs. Anthony, Buckalew, Cattell, Cole, Dixon, Doolittle. Edmunds, Fessenden, Fowler, Frelinghuysen, Grimes, Henderson, Hendricks, Johnson, McCreery, Morrill (Me.), Norton, Patterson (Tenn.), Ross, Saulsbury, Sherman, Sprague, Trumbull, Van Winkle and Vickers -25.

NAYS-Messrs. Bayard, Cameron, Chandler, Conkling, Conness, Corbett, Cragin, Davis, Drake, Ferry, Harlan, Howard, Howe, Morgan, Morrill (Vt.), Morton, Nye, Patterson (N. H.), Pomeroy, Ramsey, Stewart, Sumner. Thayer, Tipton, Willey, Williams, Wilson and Yates-21, Senator HOWARD moved that the motion of the counsel for the accused be laid on the table.

Senator DRAKE made the question of order that it was not in order to move to lay on the table a proposition of the counsel for the accused, or of the managers.

The Chief Justice sustained the point of order, and the motion was received.

The question recurring on the application of counsel for the President that they be allowed thirty days to prepare for the trial.

The question was taken by yeas and nays, and resultedyeas, 11; nays, 41, as follows:

YEAS-Messrs. Bayard, Buckalew, Davis, Dixon, Doolittle, Hendricks, Johnson, McCreery, Patterson, of Tennessee, Saulsbury and Vickers.

NAYS.-Messrs. Anthony, Cameron, Cattell, Chandler, Cenkling, Conness, Corbett, Cragin, Drake, Edmunds, Ferry Fessenden, Fowler, Frelinghuysen, Grimes, Har lan, Henderson, Howard, Howe, Morgan, Morrill (Me.), Morrill (Vt.), Morton, Nye, Patterson (N. H.), Pomeroy, Ramsey, Ross, Sherman, Sprague, Stewart, Sumner, Thayer, Trumbull, Upson, Van Winkle, Willey, Williams, Wilson and Yates.

The application was rejected.

Mr. EVARTS then submitted the following:

Counsel for the President now move that there be allowed for preparation to the President of the United States for the trial, after the replication shall be filed and before the trial shall be required to proceed, such reasonable time as shall be now fixed by the Senate.

Senator JOHNSON inquired whether it was in order to amend that motion.

The Chief Justice informed him that it was in order to submit an independent proposition.

Mr. JOHNSON-I move, then, that ten days be allowed after the filing of the replieation.

Mr. SHERMAN then moved that the Senate, sitting as a court of impeachment, adjourn till to-morrow at one o'clock.

The motion was agreed to.

The Chief Justice thereupon vacated the Chair, which was resumed by the presiding officer of the Senate, and the Senate, at 4:45 P. M. adjourned.

PROCEEDINGS OF TUESDAY, MARCH 24.

The Replication of the Managers. During the morning session of the Senate, the Clerk of the House appeared and announced that the Honse had adopted a replication to the answer of the President of the United States to the articles of impeach

ment.

One o'clock having arrived, the President pro tem. vacated the chair for the Chief Justice, who entered and took his seat, ordering proclamation, which was made accordingly by the Sergeant-at-Arms.

In the meantime the counsel for the President, Messrs. Stanbery, Curtis, Evarts, Nelson and Groesbeck, entered and took their seats.

At five minutes past one o'clock the managers were announced and took their seats, with the exception of Mr. Stevens.

The House was announced immediately, and the members disposed themselves outside the bar.

The minutes of the session of yesterday were read by the Secretary.

Replication.

Replication of the House of Representatives of the United States to the answer of Audrew Johnson, President of the United States, to the articles of impeachment ex hibited against him by the House of Representatives. The House of Representatives of the United States have considered the several answers of Andrew Johnson, Prest dent of the United States, to the several articles of im peachment against him by them exhibited in the name of themselves and of all the people of the United States, and reserving to themselves all the advantage of exception to the insufficiency of the answer to each and all of the several articles of impeachment exhibited against the said Andrew Johnson, President of the United States, do deny each and every averment in said several answers, or either of them, which denies or traverses the acts, intents, crimes or misdemeanors charged against the said Andrew John son in said articles of impeachment, or either of them, and for replication to the said answer do say that the said Andrew Johnson, President of the United States, is guilty of the high crimes and misdemeanors mentioned in said articles, and that the House of Representatives are ready to prove the same.

At the conclusion of the reading, Senator JOHN, SON said:-Mr. Chief Justice, I move that an authen, ticated copy be presented to the counsel for the Presi dent. The motion was agreed to.

Time for Preparation

The Chief Justice-Last evening a motion was pending on the part of the counsel for the President, that such time should be allowed for their preparation as the Senate shonld please to determine; thereupon the Senator from Maryland (Mr. Johnson) presented an order which will be read by the Secretary.

The Secretary read the order providing that ten days time be allowed.

Mr. SUMNER-Mr. President, I send to the Chair an amendment, to come immediately after the word "ordered," being in the nature of a substitute.

The Secretary read the amendment, as follows:That now that replication has been filed, the Senate, adhering to its rule already adopted, shall proceed with the trial from day to day, Sundays excepted, unless otherwise ordered or reasons shown.

Mr. EDMUNDS-I move that the Senate retire to consider that order.

Senator SUMNER, and others-No, no.

The yeas and nays were demanded and ordered, re sulting as follows:-

YEAS-Messrs. Anthony, Bavard, Buckalew, Corbett, Davis, Dixon, Doolittle, Edmunds. Fessenden, Fowler, Fre linghuysen, Grimes, Henderson, Hendricks, Howe, John son, McCreery, Morrill, (Me.); Morrill, (Vt.); Norton, Patterson, Patterson, (N. H.); (Tenn.); Saulsbury, Sprague, Van Winkle, Vickers, Willey and Williams-29. NAYS-Messrs. Cameron, Cattell, Chandler, Cole, Conk ling, Conness, Cragin, Drake, Ferry, Harlan, Howard, Morgan, Nye, Pomeroy, Ramsey, Ross, Sherman, Stewart Sumner, Thayer, Tipton, Trumbull and Wilson-23. So the Senate retired for consideration at 1-25.

Consultation.

After the Senators had retired, Mr. Stevens was dis covered sitting to the left and rear of the President's desk, having entered unnoticed during the proceed. ings. In the meantime the galleries, hitherto very quiet, rippled with fans and chit-chat, in the assurance that the curtain was down, while on the floor the seats sacred to Senators were invaded by knots of members and others in conversation.

The Private Consultation.

When the Senate had retired for consultation, Mr. JOHNSON modified the resolution he had previously submitted in the Chamber, by providing that the trial of the President shall commence on Thursday, April 2. Mr. WILLIAMS moved that the further consideration of the respondent's application for time be postponed until the managers have opened their case and

submitted their evidence.

This was disagreed to by a vote of 42 nays to 9 yeas as follows:

YEAS.--Messrs. Anthony, Chandler, Dixon, Grimes, Hap lan, Howard, Morgan, Patterson (Tenn.) and Williams. NAYS.-Messrs. Bayard, Buckalew, Cameron, Cattell, Cole, Conkling, Conness, Cragin, Davis, Doolittle, Drake, Edmunds, Ferry, Fessenden, Fowler, Frelinghuysen, Henderson, Hendricks, Howe, Johnson, McCreery, Morrill Sherman, Pomeroy, Ramsey, Ross, Saulsbury, H.) Sprague, Stewart, Sumner, Thayer, Tipton, Trumbull Van Winkle, Vickers, Willey and Wilson.

Mr. BOUTWELL, one of the managers, then rose and said:

Mr. President:-I am charged by the managers with the duty of presenting the replication offered by the House. He read the replication, as follows:

Absent or not voting.-Messrs. Corbett, Wade and Yates. Mr. SUMNER had offered the following amendment, which ie subsequently withdrew:

Now that replication has been filed, the Senate, adher

ence to the orders of his sovereign. He is answerable for the justice, the honesty, the utility of all measures emanating from the Crown, as well as for their legality; and thus the executive administration is, or ought to be, subordinate in all great matters of policy to the superintendence and virtual control of the two houses of Parliament. Mr. Christian, in his notes to the Commentaries of Blackstone, explains the collocation and use of the words "high crimes and misdemeanors" by saying:

When the words "high crimes and misdemeanors" are used in prosecutions by impeachment, the words "high crimes" have no definite signification, but are used merely to give greater solemnity to the charge.

A like interpretation must have been given by the framers of the Constitution, because a like definition to ours was in the mind of Mr. Madison, to whom more than to any other we are indebted for the phraseology of our Constitution, for, in the first Congress, when discussing the power to remove an officer by the President, which is one of the very material questions before the Senate at this moment, he uses the following words:

The danger consists mainly in this:-That the President can displace from office a man whose merits require he should be continued in it. In the first place, he will be impeachable by the House for such an act of maladministration, for I contend that the wanton removal of meritorious officers would subject him to impeachment and removal from his own high trust. Strengthening this view, we find that within ten years afterwards impeachment was applied by the very men who framed the Constitution to the acts of public officers, which under no common law definition could be justly called crimes or misdemeanors, either high or low. Leav ing, however, the correctness of our proposition to be sustained by the authorities we furnish, we are naturally brought to the consideration of the method of the procedure, and the nature of the proceedings in cases of impeachment, and the character and powers of the tribunal by which high crimes and misdemeanors are to be adjudged or determined.

One of the important questions which meets us at the outset is, Is this proceeding a trial, as that term is understood so far as relates to the rights and duties of a court and jury upon an indictment for crime? Is it not rather more in the nature of an inquest of office?

The Constitution seems to have determined it to be the latter, because, under its provisions the right to retain and hold office is the only subject that can be finally adjudicated; all preliminary inquiry being carried on solely to determine that question and that alone.

All investigations of fact are in some sense trials, but not in the sense in which the word is used by courts. Again, as a correlative question:

Is this body, now sitting to determine the accusation of the House of Representatives against the President of the United States, the Senate of the United States, or a court? I trust, Mr. President and Senatore, I may be pardoned for making some suggestions upon these topics, because to us it seems these are questions not of forms, but of substance. If this body here is a court in any manner as contra-distinguished from the Senate, then we agree that many, if not all the analogies of the procedures of courts must obtain; that the common-law incidents of a trial in court must have place: that you may be bound in your proceedings and adjudication by the rules and precedents of the common or statute law; that the interest, bias or preconceived opinions or affinities to the party, of the judges, may be open to inquiry, and even the rules of order and precedents in courts should have effect; that the managers of the House of Representatives must conform to those rules as they would be applicable to public or private prosecutors of crime in courts, and that the accused may claim the benefit of the rule in criminal cases, that he may only be convicted when the evidence makes the fact clear beyond reasonable doubt, instead of by a preponderance of the evidence.

We claim and respectfully insist that this tribunal has none of the attributes of a judicial court, as they are commonly received and understood. Of course, this question must be largely determined by the express provisions of the Constitution, and in it there is no word, as is well known to you, Senators, which gives the slightest coloring to the idea that this is a court, save that in the trial of this particular respondent, the Chief Justice of the Supreme Court must preside. But even this provision can have no determining effect upon the question, because, is not this the same tribunal in all its powers, incidents and duties, when other civil officers are brought to its bar för trial, when the Vice President (not a judicial officer) must preside? Can it be contended for a moment that this is the Senate of the United States when sitting on the trial of all other officers, and a court only when the President is at the bar? solely because in this case, the Constitution has designated the Chief Justice as the presiding officer?

The fact that Senators are sitting for this purpose on oath or affirmation does not influence the argument, because it is well understood that this was but a substitute for the obligation of honor under which, by the theory of the British Constitution, the peers of England were supposed to sit in like cases.

A peer of England makes answer in a court of chancery upon honor, when ommon person must answer upon oath. But our fathers, sweeping away all distinctions of caste, require every man alike, acting in a solemn proceeding like this, to take an oath. Our Constitution holds all good men alike honorable, and entitled to honor.

The idea that this tribunal was a court seems to have crept in because of the analogy to similar proceedings in trials before the House of Lords,

Analogies have ever been found deceptive and illusory. Before such analogy is invoked we must not forget that the Houses of Parliament at first, and latterly the House of Lords, claimed and exercised jurisdiction over all crimes, even where the punishment extended to life and limb. By express provision of our Constitution all such jurisdiction is taken from the Senate, and "the judicial power of the United States is vested in one Supreme Court, and such inferior courts as from time to time Congress may ordain and establish." We suggest, therefore, that we are in the presence of the Senate of the United States, convened as a Constitutional tribunal, to inquire into and determine whether Andrew Johnson, because of malversation in office, is longer fit to retain the office of President of the United States, or hereafter to hold any office of honor or profit.

I respectfully submit that thus far your mode of proceeding has no analogy to that of a court. Prot issue a summons to give the respondent notice of the case pending against him. You do not sequester his person-you do not require his personal appearance even; you proceed against him, and will go on to determine his cause in his absence, and make the final order therein. How different is each step from those of ordinary criminal procedure.

A constitutional tribunal solely, you are bound by no law, either statute or common, which may limit your constitu tional prerogative. You consult no precedents, save those of the law and custom of parliamentary bodies. You are & law unto yourselves, bound only by, the natural principles of equity and justice, and that salus populi suprema est lex.

Upon these principles and parliamentary law no judges can aid you, and, indeed, in late years, the judges of England in the trial of impeachment. declined to speak to a question of parliamentary law, even at the request of the House of Peers, although they attended on them in their robes of office.

Nearly five hundred years ago, in 1338, the House of Lords resolved, in the case of Belknap and the other judges, that these matters, when brought before them, shall be discussed and adjudged by the course of Parlia ment, and not by the civil law, nor by the common law of the land used in other inferior courts." And that regulation, which was in contravention of the opinion of all the judges of England, and against the remonstrance of Richard II, remains the unquestioned law of England to this day.

Another determining quality of the tribunal, distinguishing it from a court and the analogies of ordinary legal proceedings, and showing that it is a Senate only, is that there can be no right of challenge by either party to any of its members for favor or malice, affinity or interest. This has been held from the earliest times in Parliament, even when that was the high court of judicature of the realm, sitting to punish all crimes against the peace,

In the case of the Duke of Somerset (1 Howell's State Trials, p. 521), as early as 1551, it was held that the Duke of Northumberland and the Marquis of Northampton and the Earl of Pembroke, for an attempt upon whose lives Somerset was on trial, should sit in judgment upon him against the objection of the accused because "a peer of the realm might not be challenged."

Again, the Duke of Northumberland, (ibid, 1st State Trials, p. 765,) Marquis of Northampton and Earl of Warwick, on trial for their crimes, A. D. 1553, before the Court of the Lord High Steward of England, being one of the prisoners, inquired whether any such persons as were equally culpable in that crime, and those by whose letters and commandments he was directed in all his doings, might be his judges or pass upon his trial at his death. It was answered that:

"If any were as deeply to be touched as himself in that case, yet as long as no attainder of record were against them, they were nevertheless persons able in the law to pass upon any trial, and not to be challenged therefor, but at the Prince's pleasure.

Again, on the trial of the Earls of Essex and Southampton (ibid., 1 State Trials, p. 1335) for high treason, before all the justices of England, A. D. 1600, the Earl of Essex desired to know of my Lord Chief Justice whether he might challenge any of the peers or no. Whereunto the Lord Chief Justice answered 'No.'"

Again, in Lord Audley's case (ibid 3 State Trials, page 402. A. D. 1631), it was questioned whether a peer might challenge his peers, as in the case of common jurats. It was answered by all the judges, after consultation, "he might not," [This case was of more value, because it was an indictment for being accessory to rape upon his own wife, and had no political influence in it whatever.] The same point was ruled in the Countess of Essex's case, on trial for treason. (Moore's Reports, 621.)

In the Earl of Portland's case, A. D. 1701 (ibid, State Trials, page 288), the Commons objected that Lord Sommers, the Earl of Oxford and Lord Halifax, who had been impeached by the Commons before the House of Lords for being concerned in the same acts for which Portland was being brought to trial, voted and acted with the House of Lo: Is in the preliminary proceedings of said trial, and were upon a committee of conference in relation thereto. But the lords, after discussion, solemnly resolved "That no lord of Parliament, impeached of high crimes and misdemeanors, can be precluded from voting on any occasion except on his own trial."

In the trial of Lord Viscount Melville, A. D. 1806, (ibid. 29 State Trials, p. 1398), some observations having been made as to the possible bias of some portion of the peers (by the counsel for defendant), Mr. Whitebread, one of the ma nagers on the part of the Commons, answered as follows:

*

"My lords, as to your own court, something has been thrown out about the possibility of a challenge. Upon such a subject it will not be necessary to say more than this, which has been admitted-that an order was given by the House of Commons to prosecute Lord Melville in a court of law where he would have the right to challenge his jurors. What did the noble Viscount then do by the means of one of his friends? From the mouth of that learned gentleman came at last the successful motion "That Henry, Viscount of Melville, be impeached of high crimes and misdemeanors." I am justified, then, in saying that he is here by his own option But, my lords, a challenge to your lordships! Is not every individual peer the guardian of his own honor?

In the trial of Warren Hastings the same point was ruled, or, more properly speaking, taken for granted, for of the more than one hundred and seventy peers who commenced the trial, but twenty-nine sat and pronounced the verdict at the close. and some of these were peers created since the trial began, and had not heard either the opening or much of the evidence; and during the trial there had been by death, succession and creation, more than one hundred and eighty changes in the House of Peers, who were his judges.

We have abundant authority, also, on this point in our own country. In the case of Judge Pickering, who was tried March, 1804, for drunkenness in office, although undefended in form, yet he had all his rights preserved. This trial being postponed a session, three Senators Samuel Smith, o Maryland: Israel Smith. of Vermont, and John Smith, of New York-who had all been members of the House of Representatives, and there voted in favor of impeaching Judge Pickering, were Senators when his trial came off.

Mr. Smith, of New York, raised the question asking to be excused from voting. Mr. Smith, of Maryland, declared "he would not be influenced from his duty by any false delicacy: that he, for his part, felt no delicacy upon the subject; the vote he had given in the other House to impeach Judge Pickering, would have no influence upon him In the court; his constituents had a right to his vote, and he would not by any act of his deprive, or consent to deprive them of their right, but would claim and ex ercise it upon this as upon every other question that might be submitted to the Senate while he had the honor of a seat."

A vote being had upon the question, it was determined that these gentlemen should sit and vote on the trial. This passed in the affirmative, by a vote of 19 to 7, and all the gentlemen sat and voted on every question during the trial.

On the trial of. Samuel Chase before the Senate of the United States, no challenge was attempted, although the case was decided by an almost strict party vote in high party times, and doubtless many of the Senators had formed and expressed opinions upon his conduct. That arbitrary judge, but learned lawyer, knew too much to attempt any such fntile movement as a challenge to a Senator. Certain it is that the proprieties of the occasion were not marred by the worse than anomalous proceeding of the challenge of one Senator to another, especially before the defendant had appeared.

Nor did the managers exercise the right of challenge, although Senators Smith and Mitchell of New York were members of the Senate on the trial, and voted not guilty on every article, who had been members of the House when the articles were found, and had there voted steadily against the whole proceeding.

Judge Peck's case, which was tried in 1831, affords another instance in point.

The conduct of Judge Peck had been the subject of much animadversion and comment by the public, and had been for four years pending before the Congress of the United States before it finally came to trial. It was not possible but that many of the Senate had both formed and expressed opinions upon Peck's proceedings, and yet it never occurred to that good lawyer to make objections to his triers. Nor did the managers challenge, although Webster, of Massachusetts, was a member of the committee of the House of Representatives, to whom the petition for impeachment was referred, and which, after examination, reported thereon "leave to withdraw," and Sprague, of Maine, voted against the proceedings in the House, while Livingston, of Louisiana, voted for them.

All of these gentlemen sat upon the trial, and voted as they did in the House. A very remarkable and instructive case was that of Judge Addison, of Pennsylvania, in 1804. There, after the articles of impeachment were framed, the trial was postponed to another session of the Legislature. Meanwhile, three members of the House of Representatives who had voted for the articles of impeachment were elected to the Senate, and became the triers of the articles of impeachment of which they had solemnly voted the respondent to be guilty.

To their sitting on the trial Judge Addison objected, but after an exhaustive argument his objection was overruled, 17 to 6. Two of the minority were the gentlemen who had voted him guilty, and who themselves objected to sitting on the trial.

Thus stands the case upon authority. How does it stand upon principle?

In a conference held in 1691, between the lords and com mons, on a proposition to limit the number of judges, the lords made answer:

"That in the case of impeachment, which are the groans of the people, and for the highest crimes, and carry with them a greater supposition of guilt than any other accusation, there all the lords must judge."

There have been many instances in England where this necessity, that no peer be excused from sitting on such trials, has produced curious results. Brothers have sat upon the trials of brothers; fathers upon the trials of sons and daughters; uncles upon the trials of nephews and nieces; no excuse being admitted,

One, and a most peculiar and painful instance, will suffice upon this point to illustrate the strength of the rule. In the trial of Anne Boleyn, the wife of one sovereign of England. and the mother of another, her father, Lord Rochefort, and her uncle, the Duke of Norfolk, sat as judges and voted guilty, although one of the charges against daughter and niece was a criminal intimacy with her brother, the son and nephew of the judges,

It would seem impossible that in a proceeding before such a tribunal so constituted, there could be a challenge, because as the number of triers is limited by law, and as there are not now, and never have been, any provisions either in England or in this country for substituting another for the challenged party, as a talesman is substi tuted in a jury, the accused might escape punishment altogether by challenging a sufficient number to prevent a quorum: or the accusers might oppress the respondent by challenging all persons favorable to him until the necessary unanimity for conviction was secured.

This proceeding being but an inquest of office, and, except in a few rare instances, always partaking, more or less, of political considerations, and required to be discussed, before presentation to the triers, by the co-ordinate branch of the legislature, it is impossible that Senators should not have opinions and convictions upon the subject matter more or less decidedly formed before the case reaches them. If, therefore, challenges could be allowed because of such opinions, as in the case of jurors, no trial could go forward, because every intelligent Senator could be objected to upon one side or the other.

I should have hardly dared to trouble the Senate with such minuteness of citation and argument upon this point, were it not that certain persons and papers outside of this body, by sophistries drawn from the analogies of the proceedings in courts before juries, have endeavored, in advance, to prejudice the public mind, but little instructed in this topic, because of the infrequency of impeachments, against the legal validity and propriety of the proceedings upon this trial.

I may be permitted, without offense, further to state, that these and similar reasons have prevented the managers from objecting, by challenge or otherwise, to the competency of one of the triers, of near affinity to the accused. We believe it is his right, nay, his duty, to the State he represents, to sit upon the trial as he would upon any other matter which should come before the Senate. His seat and vote belongs to his constituents, and not to himself, to be used, according to his best judgment, upon every grave matter that comes before the Senate.

Again, as political considerations are in this trial, raising questions of interest to the constituents of every Senator, it is his right and duty to express himself as fully and freely upon such questions as upon any other, even to express a belief in the guilt or innocence of the accused, or to say he will sustain him in the course he is taking, although he so says after accusation brought.

Let me illustrate. Suppose that after this impeachment had been voted by the House of Representatives, the constituents of any Senator had called a public meeting to sustain the President against what they were pleased to term the "tyrannical acts of Congress towards him in impeaching him," and should call upon their Senator to attend and take part in such meeting, I do not conceive that it would or ought to be legally objected against him as a disqualification to sit upon this trial, upon the principles I have stated, if he should attend the meeting or favor the object, or if his engagements in the Senate prevented his leaving.

I have not been able to find any legal objection in the books to his writing a letter to such meeting, containing, among other things, statements like the following:

SENATE CHAMBER, Feb. 24, 1868.-Gentlemen:-My public and professional engagements will be such on the 4th of March that I am reluctantly compelled to decline your invitation to be present and address the meeting to be held in your city on that day.

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That the President of the United States has sincerely endeavored to preserve those (our free institutions) from violation I have no doubt, and I have, therefore, throughout the unfortunate difference of opinion between him and Congress sustained him. And this I shall continue to do so long as he shall prove faithful to duty. With my best thanks for the honor you have done me by your invitation, and regretting that it is not in my power to accept it, I remain, with regard, your obedient servant, REVERDY JOHNSON. We should have as much right to expect his vote on a clearly proven case of guilty, as had King Henry the Eighth to hope for the vote of her father against his wife. He got it.

King Henry knew the strength of his case, and we know the strength of ours against this respondent.

If it is said that this is an infelicity, it is a sufficient and decisive answer that it is the infelicity of a precise constitutional provision, which provides that the Senate shall have the sole power to try impeachment, and the only security against bias or prejudice on the part of any Senator is that two-thirds of the Senators present are necessary for conviction.

To this rule there is but one possible exception, founded on both reason and authority, that a Senator may not be a judge in his own case. I have thought it necessary to determine the nature and attributes of the tribunal, before