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Pennsylvania started out by saying that we were now organizing a court. He then used the words, "We are about to constitute a court." He talked a great deal about the creation or constitution of a court. He proceeded upon the theory, as did my colleague in his first argument, that we were about to constitute a court which was to be selected from the members of the Senate. Mr. President, the error of this whole argument is right here. The Constitution has constituted the tribunal itself. We have no right to organize a court. We have no right to constitute a court. The tribunal is The tribunal is constituted by the Constitution itself, and is simply the Senate of the United States.

The remark was made, I believe, by the Sen. ator from Ohio, and perhaps by the Senator from Massachusetts, that it was immaterial whether you call it a court or a Senate. It is not very material what you call it; but it is material that you shall proceed simply on the idea that it is a Senate and nothing else. That is material; for if you abandon that plain and abandon that plain and || simple idea and adopt the theory that this tribunal is yet to be constituted you will wander from the Constitution itself. The Constitution settles the whole question in a few words. It says, "the Senate shall have the sole power to try all impeachments;" and when it has said that it has itself constituted the tribunal. The Senate is the tribunal. Who compose that tribunal? The Senator from Ohio [Mr. WADE] is one of the men who now compose that tribunal, and we cannot get away from that conclusion.

now; and the Constitution says it shall be under oath. The Senator from Ohio had no choice but to take the oath. As to what he shall do hereafter on the challenge of the accused is a question that I will not discuss now. It is enough to say that all this talk about a high court of impeachment, about a tribunal yet to be constituted, yet to be organized, is outside of the Constitution. We are sitting simply as a Senate, as much so as when we pass a bill or as when we ratify a treaty. The Constitution says so, and there is nobody that is authorized to say no.

Mr. DIXON. Mr. President, the President of the United States is about to be tried before this body, either as a Senate or as a court, upon articles brought against him by the House of Representatives, charging him with high crimes and misdemeanors. In case of his

Mr. GRIMES, (to Mr. Dixon.) Will you give way for a motion to adjourn ?

Mr. DIXON. If the Senate wish to adjourn I will not take up the time of the Senate

now.

Mr. GRIMES. I understand that the Chief Justice of the United States has been sitting in the Supreme Court and in this Chamber since eleven o'clock this morning without an opportunity to leave his chair. I think it is due to him and to the Senate that we should now adjourn, and settle this question to-morrow morning. I therefore make that motion.

Mr. HOWARD. What is the motion?
Mr. GRIMES. To adjourn until to-mor-

row.

Mr. HOWARD. To adjourn what until to-morrow?

Mr. GRIMES. This court.

Mr. HOWARD. We have a rule by which the Senate, sitting for the trial of an impeachment, may adjourn itself, and still the ordinary business of the Senate continue, so that we may relieve the Chief Justice without adjourning the Senate.

It may be said that while the Senate is trying an impeachment it is exercising judicial powers. That makes no difference. Why, sir, when we come in here to counsel as to the confirmation of an appointment of the President we are not acting as a legislative body; our functions are decidedly executive in their character; but still we act not as an executive body, or as part of the Presidency of the United States, but we act simply as the Senate. Our duties are then executive in their charac-adjourn ter; but we are performing them simply as the Senate. So when we exercise what may be called judicial power in this case, we do not do it as a court; we are doing it simply in the character of the Senate of the United States,|| performing certain powers or duties that are imposed upon us by the Constitution.

All this talk about organizing a court; all this talk, in the language of my friend from Pennsylvania, of constituting a tribunal, it seems to me, is idle. The Constitution has done that for us. It only requires that when this tribunal shall act in this capacity it shall be sworn. We have no right to refuse to be sworn. If I were to refuse I should violate my duty. If the Senator from Ohio should refuse he would violate his duty. It seems to me this is the whole of it. The simple idea is, that it is a Senate and the tribunal is already formed-is not to be formed, but is formed

Mr. GRIMES. My motion is that the court until to-morrow at one o'clock. Mr. ANTHONY. I think the proper motion would be that the Senate proceed to the consideration of legislative business.

The CHIEF JUSTICE. The court must first adjourn. Senators, you who are in favor of adjourning the court until to-morrow at one o'clock will say ay, and those of the contrary opinion will say no.

The question being put, the motion was agreed to.

The CHIEF JUSTICE thereupon declared the court adjourned until one o'clock tomorrow, and vacated the chair.

IN SENATE, March 6, 1868.

The PRESIDENT pro tempore. The time having arrived for the Senate to proceed to the consideration of matters connected with the impeachment of the President of the United

States, the chair will be vacated for the Chief Justice of the United States.

The President pro tempore thereupon retired from the chair.

The Chief Justice of the United States entered the Senate Chamber, escorted by Mr. POMEROY, the chairman of the committee appointed for that purpose, and took the chair.

The CHIEF JUSTICE. The Senate will come to order. The proceedings of yesterday will be read.

The Secretary read the "proceedings of the Senate sitting on the trial of the impeachment of Andrew Johnson, President of the United States, on Thursday, March 5, 1868," from the entries on the Journal kept for that purpose by the Secretary.

The CHIEF JUSTICE. At its adjournment last evening the Senate, sitting for the trial of impeachment, had under consideration the motion of the Senator from Maryland, [Mr. JOHNSON,] that objection having been made to the Senator from Ohio [Mr. WADE] taking the oath his name should be passed until the remaining members have been sworn. That is the business now before the body. The Senator from Connecticut [Mr. DIXON] is entitled to the floor on that motion.

Mr. DIXON. Mr. President

Mr. HOWARD. Excuse me one moment. Mr. President, I rise to a question of order. The CHIEF JUSTICE." The Senator from Michigan will state his point of order.

Mr. HOWARD. By the Constitution the Senate sitting on the trial of an 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 this oath or affirmation is 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 his proposition to take the oath cannot be postponed; that other members have no control over the question, but that it is a simple duty devolved upon the presiding officer of the body to administer the oath.

Further, sir, the Senate, on the second day of the present month, adopted rules for their government on proceedings of this kind. Rule 3 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 to take the oath

"and to the other members of the Senate as they shall appear, whose duty it shall be to take the same."

The form of the oath is also prescribed in our present rules, and is as follows:

"I solemnly swear (or affirm, as the case may be)

peachment of now pending, I will do impartial justice according to the Constitution and laws. So help me God.”

That is the form of the oath prescribed by our rules. It is the form in which the presid| ing officer of this boby 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 judicial duty. I therefore made it a point of order that the objection made to the swearing in of Mr. WADE is out of order; and also that the motion of the Senator from Maryland, to postpone the swearing in of Mr. WADE, is out of order under the rules and under the Constitution of the United States; and I ask most 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, will decide this question of order, and without debate.

Mr. DIXON. Mr. President

Mr. HOWARD. I object to any further debate.

Mr. DIXON. The very question before the Senate is whether under this rule the Senator from Ohio can be sworn.

Mr. DRAKE. Mr. President, I call the Senator from Connecticut to order.

The CHIEF JUSTICE. The Senator from Connecticut is called to order. The Senator from Michigan has submitted a point of order for the consideration of the body. During the proceedings for the organization of the Senate for the trial of an impeachment of the President the Chair regards the general rules of the Senate as applicable, and that the Senate must determine for itself every question which arises, unless the Chair is permitted to determine it. In a case of this sort, affecting so nearly the organization of this body, the Chair feels himself constrained to submit the question of order to the Senate. Will the Senator from Michigan state his point of order in writing?

While the point of order raised by Mr. HOWARD was being reduced to writing at the desk,

Mr. DIXON. I rise to a question of order. The CHIEF JUSTICE. A point of order is already pending, and a second point of order cannot be made until that is disposed of.

Mr. DIXON. I submit to the presiding officer whether a point of order can be made with regard to that question, and, with the consent of the Chair, I will stateThe CHIEF JUSTICE. The Chair is of opinion that no point of order can be made pending another point of order.

Mr. HOWARD's point of, order having been reduced to writing,

The CHIEF JUSTICE. Senators, the point of order submitted by the Senator from Mich

that in all things appertaining to the trial of the im-igan is as follows: "That the objection raised

to administering the oath to Mr. WADE is out of order, and that the motion of the Senator from Maryland, to postpone the administering of the oath to Mr. WADE until other Senators are sworn, is also out of order, under the rules adopted by the Senate on the 2d of March instant, and under the Constitution of the United States." The question is open to debate.

Mr. DIXON. Mr. President, as I undersand

Mr. DRAKE. I call the Senator from Connecticut to order. Under the rules of the Senate questions of order are not debatable.

Mr. DIXON. I would remind the Senator that when questions of order are referred to the Senate for their decision they are always debatable.

Mr. DRAKE. I do not so understand the rules of the Senate. There can be a debate upon an appeal from the decision of the Chair; but there can be no debate in the first instance on a question of order, as I understand the rules of the Senate.

The CHIEF JUSTICE. The Chair rules that a question of order is debatable when submitted to the Senate.

Mr. DRAKE. If I am mistaken in the rules of the Senate on that subject I should like to be corrected, but I think I am not.

The CHIEF JUSTICE. The Senator from Missouri is out of order unless he takes an appeal from the decision of the Chair.

Mr. DRAKE. Well, sir, if it is according to the rules of the Senate debatable, I have nothing to say

Mr. POMEROY. The Senator must be aware that when the Chair makes a decision it is to be decided without debate; but when it is submitted to the Senate our custom is that it is debatable.

Mr. JOHNSON and others. Always. Mr. POMEROY. But it is not always submitted to the Senate.

Mr. HOWARD. I ask leave of the Senate to read the sixth of the general rules of the Senate:

"If any member, in speaking or otherwise, transgress the rules of the Senate the Presiding Officer shall, or any member may, call to order; and when a member shall be called to order by the President or a Senator he shall sit down, and shall not proceed without leave of the Senate. And every question of order shall be decided by the President without debate, subject to an appeal to the Senate, and the President may call for the sense of the Senate on any question of order.'

Mr. DIXON. I understand the sense of the Senate to be as I supposed, and I take it I have a right to proceed. How far I have a right to discuss the general question I am somewhat uncertain. I suppose that the question is now presented merely in that different shape alluded to by the Senator from Michigan yesterday when he reminded the Senate that, after all, this was, in his opinion, a question of order, and ought to be so discussed. I take it, Mr. President, the question now before this body

is, whether as a question of order of the orderly | proceedings of this tribunal the Senator from Ohio [Mr. WADE] can be sworn; and it is upon that question that I now propose to address this body.

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Mr. President, when I had the honor yesterday of addressing this tribunal, and gave way to a motion to adjourn, I was remarking that the President of the United States was about to be tried before this body in its judicial capacity, whether called a court or not, upon articles of impeachment presented by the House of Representatives. If upon the trial he be convicted the judgment may extend to his removal from office and to his disqualification hereafter to hold any office of profit or trust under the United States. How far the judg ment would extend in case of his conviction it is of course impossible for any one now to say. In all human probability it would extend at least as far as to his removal from office; and, in that event, the very moment that the judg ment was rendered the office of President of the United States, with all its powers and all its attributes, would be vested in the Senator from Ohio, now holding the office of President of this body. The office would vest in the President of the Senate for the time being. And the question for this tribunal now to decide is whether, upon the trial of the President of the United States, the person holding the office of President of the Senate, and in whom the office of President of the United States, upon the conviction of the accused, will immediately vest, can be a judge in that case. That, sir, is the question before us.

Mr. SHERMAN. I very rarely call a Senator to order, but I feel it my duty on this occasion to do so in regard to the Senator from Connecticut. I think he is not in order in the discussion he is now pursuing. The point submitted to the Senate by the Chair, and to be settled by the Senate, is whether or not it is in order to proceed with this discussion. While that matter is being submitted to the Senate the Senator from Connecticut goes on and discusses the main question that was discussed yesterday. It seems to me that in a tribunal like this each Senator should observe strictly the rules of order. I therefore make the point of order on the Senator from Connecticut, and hope the discussion will be confined to the point of order which is submitted now to the Senate.

Mr. DIXON. If I may be permitted, I beg to say to the Senate that I am attempting to discuss the question of order in what seems to me a proper manner.

The CHIEF JUSTICE. The Senator from Ohio makes the point of order that the Senator from Connecticut, in discussing the pending question of order, must confine himself strictly to that question, and not discuss the main question before the Senate. In that point of order the Chair conceives that the Senator from Ohio is correct, and that the Senator from Connecticut must confine himself strictly to the dis

cussion of the point of order before the House.

Mr. DIXON. Mr. President, I commenced by saying that it was somewhat uncertain in my own mind how far it would be proper to go into the general merits of this question upon the point of order; but that I supposed it would be proper to discuss the general question. And I will now take the liberty to say to the presiding officer of this body that if I were now commencing this debate without the example of those Senators before me who have already in the fullest manner discussed the pending question, who, up to the time when I was permitted the privilege of the floor, made no objection to a full discussion-if I had commenced before that example, I should perhaps consider myself more strictly limited in the course of my remarks than I feel myself to be with that example before me. If permitted to proceed without interruption, I will say frankly to the Senate that I propose to go into the general merits of the question whether the President pro tempore of this body can be sworn in as a judge in this case-the same question which has been discussed by other Senators. If it is the opinion of the Senate that I cannot go into that question, I certainly have not that desire to force myself upon the attention of the Senate that I should insist upon attempting to evade a rule. I should prefer, therefore, that Senators would inform me, or that the Chair would inform me, how far I may proceed, and I certainly shall not willingly be guilty of any impropriety. But I beg leave again to remind the Senate that this strict rule is applied to me after ten Senators at least have fully discussed this question; and the Senator who raises the question himself has spoken, I think, at great length not less than three times. Now, sir, if it is the will of the Senate that I may proceed, I certainly shall be gratified to do it. As I have already said, I have no desire to proceed with constant interruptions upon questions of order.

Mr. JOHNSON. I believe the questions of order raised by the honorable member from Michigan are, that the Senator from Ohio has a right to be sworn and that the Senate have no right to ask that it should be postponed even for a day. He places it upon the ground that, being a Senator of the United States, he is by the Constitution of the United States made a member of the court. The argument yesterday on both sides was an attempt to show the affirmative and the negative of that proposition. Whether it is in order to object to his being sworn necessarily involves the question whether, under the Constitution, he has a right to be sworn. The honorable member made another question of order, or, rather, made it part of his first question of order, that these points are to be decided without debate. You, Mr. Chief Justice, have held that, as you have submitted the questions to the deliberation and decision of the Senate, they may be de

bated. All questions of order, when submitted by the Presiding Officer himself to the Senate, or when they are brought before the Senate by an appeal from his decision, are always open to debate. Then what is to be debated under the question of order, which is, that there is no right to object to the honorable member from Ohio taking the oath as a member of this court? I suppose whether he has that right. The objection that the right is a matter which cannot be disputed assumes the whole controversy. If it was admitted by every member of the Senate that the honorable member from Ohio had a right to be sworn there would be no question before the Senate. Some of the members of the Senate think that, for reasons stated in the debate yesterday, he has no right to be sworn as a member of this court. Whether it is in order to make that objection necessarily involves the question whether he has a right to be sworn. I do not see that there can be any other question discussed upon the question of order raised by the honorable member from Michigan but the question whether the honorable member from Ohio has under the Constitution a right to be sworn:

Mr. HENDRICKS. I ask for the reading of the point of order.

The Secretary again read the point of order submitted by Mr. HOWARD.

Mr. DIXON. I think I shall be able to discuss that question of order.

Mr. HENDRICKS. All that I desired to say was this, that the discussion

Mr. HOWARD. If the Senator from Indiana will allow me one word, I desire to call his attention to the twenty-third rule that we have adopted. Possibly it may have escaped his attention.

"All orders and decisions shall be made and had by yeas and nays, which shall be entered on the record, and without debate."

Mr. JOHNSON. The honorable member will permit me to make a suggestion upon the effect of that rule. I was aware of the exist ence of the twenty-third rule, but that goes into force only after we have become a court. The question now question now is as to the manner in which we are to organize ourselves as a court. After we are organized all questions of order are, by force of the twenty-third rule, to be decided

without debate.

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on, and give rise to a long debate when the presiding officer, in obedience to this rule, is executing the order of the Senate? He might just as well stop the calling of the roll when the yeas and nays were being taken upon a motion and begin a discussion upon the right of a Senator to vote on a pending motion as to stop the execution of this order of the Senate, while the presiding officer, in pursuance of the rule, is executing it. It cannot be done. The presiding officer is bound to execute the rule of the Senate in the ordinary way. Nothing can interrupt the execution of the order when once adopted.

Mr. DIXON. With the consent of the Senate I propose now--if the honorable Senator from Ohio [Mr. SHERMAN] calls me to order I can proceed only by consent to discuss this question as a question of order, under the Constitution of the United States and the rules of this body, as specified in the written statement of the question of order, as made by the Senator from Michigan. Before proceeding I will request the Secretary to read the point of order once more. I wish to know precisely what I may be permitted to say.

The Secretary read as follows:

"That the objection raised to administering the oath to Mr. WADE is out of order, and that the motion of the Senator from Maryland, to postpone the administering of the oath to Mr. WADE until other Senators are sworn, is also out of order, under the rules adopted by the Senate on the 2d of March instant, and under the Constitution of the United States."

Mr. DIXON. The question presented by the point of order is whether, under the Constitution

Mr. HOWARD. Mr. President

Mr. DIXON. If the Senator calls me to order I will yield.

Mr. HOWARD. Well, I call the Senator from Connecticut to order, and ask the Chair if it be in order now to take an appeal from the decision of the Chair?

Mr. DIXON. I submit that is not such a question of order as the Senator has a right to raise. The only question of order that he can now raise upon me is that I am out of order. Mr. HOWARD. Very well; I raise that question distinctly.

Mr. DIXON. If the Senator claims that I am out of order he can call me to order.

Mr. HOWARD. I call the Senator to order. The CHIEF JUSTICE. The Senator from Connecticut is called to order, and will take his seat until the point of order is stated.

Mr. HOWARD. Mr. President, the twentythird rule, adopted by the Senate on the 2d of March, declares that

"All the orders and decisions”. Of course, decisions of the Senate-

shall be made and had by yeas and nays, which shall be entered on the record, and without debate, except when the doors shall be closed for deliberation, and in that case no member shall speak," &c. The Senator from Connecticut, in defiance, as I think, of this rule, persists in his right to

address the Senate and discuss the question of order. I hold that to be out of order, and upon that question I ask a ruling.

Mr. DIXON. I respectfully submit that an appeal is debatable.

The CHIEF JUSTICE. The Chair will decide the point of order. This point of order. is not debatable. The twenty-third rule is a rule for the proceeding of the Senate when organized for the trial of an impeachment. It is not yet organized; and in the opinion of the Chair the twenty-third rule does not apply at present.

Mr. DRAKE. I take an appeal from the decision of the Chair on that point.

The CHIEF JUSTICE. The Senator from Missouri appeals from the decision of the Chair.

Mr. DRAKE. I do not feel disposed to argue the question at this time, consuming time upon it. I take the appeal and ask for a decision upon it by the Senate, if we are in a condition to decide anything until all the Senators are sworn.

The CHIEF JUSTICE. Under the general rules of the Senate, as the Chair understands, an appeal being taken from the decision of the Chair it must be decided without debate.

Mr. GRIMES. Oh, no; it is debatable.

The CHIEF JUSTICE. The Chair ruled that an appeal taken must be decided without debate under an erroneous impression as to the rules of the Senate. Every appeal taken from the decision of the Chair on a question of order is debatable, and this must necessarily be debatable. ["Question!" "Question!"] Senators, are you ready for the question? The question is, Shall the decision of the Chair stand as the judgment of the Senate? and upon that question the yeas and nays will be called. Mr. FESSENDEN. I think the yeas and nays are not called for.

Mr. GRIMES. They must be called. Mr. MORRILL, of Maine. Why? On what rule?

Mr. GRIMES. On some rule of the Senate. Mr. FESSENDEN. They are not always taken, necessarily.

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Several SENATORS.

Call the roll.

Mr. POMEROY. The point of order is not understood. I do not know what we are to vote upon. I do not understand the point of order of the Senator from Missouri.

Mr. FESSENDEN. It is an appeal from the decision of the Chair.

The CHIEF JUSTICE. The Chair decides that the twenty-third rule is not applicable to the proceedings of the Senate when in process of organization for the trial of an impeachment. From that decision the Senator from Missouri appeals. The yeas and nays are not demanded. Mr. FERRY. I call for the yeas and nays. The yeas and nays were ordered.

Mr. DRAKE. The form of the question, if I understand it, is, Shall the decision of the Chair stand as the judgment of the Senate?

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