give him the succession under the Constitution in case of amotion; but the office, the condition, the predicament which is his position to-day may be the reversion of any one of us to-morrow; we are remainder-men if he should happen to retire from that office by the judgment of the Senate. Mr. FRELINGHUYSEN. And consequently all of us are interested. Mr. HOWE. All his interest would thus be removed, and that same interest would be vested in some one of the rest of us; I do not know exactly who; but the same possible interest, contingent interest, which is objected to to-day in him is an objection which can be urged against every one of us, because we are liable to be, before the termination of this litigation, placed in precisely the same predicament, and no one of us can be fit, because of this possible interest, to try this question. Mr. President, I believe, by a rule of the body governing this proceeding, the remarks of members are limited to ten minutes. I have said all I care to say upon the question. Mr. DRAKE. Mr. President, I do not propose to go over any of the grounds that have heretofore been taken by other Senators on this subject; but there are one or two questions which seem to me to lie in the foreground of this matter, and to which I should like to call the attention of those gentleman who insist upon this exception at this time. If the objection has any vitality, any legal validity whatever, it is one that requires to be passed upon affirmatively or negatively by some body; and I should like to know who is to pass upon it at this stage of the proceeding? Is it addressed to the Presiding Officer of the Senate, as if he had the right to pass upon it? I imagine not. I suppose it will hardly be contended that so grave a question as this can be passed upon by that officer, even if any question in this trial can be passed upon by him at all. If not to be passed upon by the Presiding Officer of the Senate, then what body is to determine the question affirmatively or negatively? The Senate is not yet constituted for the trial of the impeachment. Besides the honorable Senator from Ohio, there are no less than four other Senators in their seats on this floor at this time waiting to have the oath required by the Constitution administered to them. They are entitled to vote upon all questions which may arise in the Senate sitting in the matter of impeachment. Are you going to stop the proceedings|| of the Senate at this point and exclude four of the Senators here that are ready and waiting to take the oath? If you are, then if it had so happened that the first name on the roll had been that of the President pro tempore of the Senate, all the remainder on the roll after him might, before being sworn, have undertaken to adjudge that he should not be sworn. It just so happens that the name of the Senator from Ohio is low down on the roll of the Senate, alphabetically taken. If it had been the very first one the objection could have been just as well taken and decided by a Senate not one single member of which had yet been sworn in the matter of impeachment. Mr. President, for these reasons, aside from all others, I hold that there is no person here who can pass upon this question; the President of the Senate cannot pass upon it; or even if he, in virtue of his presidency, could pass upon questions in the course of this trial, the court, if you call it so, is not yet organized; it is only in the process of organization. There are members of the court here, if you call it a court, waiting to be sworn; and you stop the whole thing here and vote, do you, upon this question, when the vote of those four members that are waiting to be sworn might change the determination one way or the other? Sir, the whole thing resolves itself at last into a question of order, of entertaining this proposition at all. I will venture to say that if the court had been organized and the present incumbent of the presidency of the Senate had been accustomed, as he is in another tribunal, to announce the decision upon questions of order, he would instantly have decided that this question was out of order at the time it was raised. These are the views about this matter which have led me to participate for these few minutes in the debate on this subject. Mr. THAYER. Mr. President, it seems to me that the question might with propriety be asked, what is there in a name? With all due respect for the honorable Senators who have by argument attempted to convince the Senate that this is a court, I am compelled to think that it is a waste of words. It is true that in the earlier trials of impeachment the term "high court of impeachment" was used; but it was, in my judgment, a matter of taste or of form. We are, after all, obliged to come back to the plain, pointed, explicit language of the Constitution "The Senate shall have the sole power to try all impeachments. When sitting for that purpose”— Sitting as a Senate for the trial of an impeachment 66 Could language be plainer? Could meaning be more apparent than this? If we have passed into a high court of impeachment" when did that transposition take place? This Senate was sitting as a Senate to-day from twelve o'clock till one. It did not adjourn. What became of it? Where is it if we are here as a court to-day? The Senate does not die. The Senate is in existence. It is here in this body, or is this body sitting as a Senate to try a question on a case of impeachment? But, after all, that is not material. I have risen more for the purpose of noticing the objection raised by the honorable Senator from Indiana, [Mr. HENDRICKS.] The question of interest is made against the taking of the oath by the honorable Senator from Ohio, [Mr. WADE,] upon a rule of law in the courts that a person having an interest in the verdict which may be rendered is excluded from sitting upon that jury. If that rule is to prevail here I am surprised that the honorable Senator from Indiana did not raise the question at an earlier stage in the progress of these proceedings today. There is another rule of law, or the same rule applicable with equal force, which excludes from the jury a person related by blood or marriage to the accused. If the objection is good in one case is it not equally good in the other? If it should exclude the honorable Senator from Ohio why should it not exclude the honorable Senator from Tennessee, [Mr. PATTER SON?] I cast no imputation upon that Senator; I do not question his determination to try this case justly and fairly according to the Constitution, the law, and the evidence; I make no objection to the Senator from Tennessee; but I desire to say that if this objection is to be raised in the case of the honorable Senator from Ohio it ought, by the same rule of law and of evidence and of construction, to be applied to the honorable Senator from Tennessee. But, sir, in regard to the question of interest, if that objection is valid against the Senator from Ohio it lies against every member of this body, only one degree more remote. If, by the verdict to be rendered in this trial, the Senator from Ohio should pass from that chair into the more exalted position of President of the United States, it devolves upon this Senate to elect one of the Senators sitting here to fill that vacancy. Human life is in the hands of One who is above all human tribunals, and in the course of human events the honorable Senator from Ohio, elevated to the position of Chief Magistrate of this nation, may pass away, and that Senator sitting here on this trial who has been elevated to the position of Presiding Officer of this body may become the successor of him to whom objection is made to-day in the office of President of the United States. I repeat that the interest lies with every Senator here, only one degree more remote. ation of power. He is here as a Senator in the possession and exercise of every right of a Senator until you expel him by a vote of two thirds of this body. Then he ceases to have those rights, and not till then. Again, on this question of interest, suppose some ten or fifteen Senators were related in some way to the accused; if the rule holds good you might reduce this body below a que rum, and thus defeat the very object which th Constitution had in view in creating this as the tribunal to try questions of impeachment. Again, in courts of law, if objections are made to any one sitting upon a jury, and he is || excluded, an officer is sent out into the streets and the highways to pick up talesmen and bring them in to fill up the jury. Can you do that here? Suppose you exclude the honorable Senator from Ohio, can you send an officer of this Senate out into the lobbies or into the streets of Washington to bring in a man to take his || place? By no means. I need not state that. But, Mr. President, it has been said repeatedly this afternoon, and it is not necessary for me to dwell upon it, that we are here as a Senate of the United States. The honorable Senator from Ohio is here as a Senator of the State of Ohio, clothed with the rights and all the power possessed by any other Senator on this floor. He is the equal in every particular of every Senator who is now sitting as a member of this body. I challenge the honorable Senator from Indiana or the honorable Senator from Maryland to point me to one iota in the Constitution which recognizes the right of this body to deprive any individual Senator of his vote. No matter what opinions we may entertain as to the propriety of the honorable Senator from Ohio casting a vote on this question, he is here as a Senator, and you cannot take away his right to vote except by a gross usurp- || Thus I come back to the proposition that we are a Senate, composed of constituent members, two from every State, sworn to do our duty as Senators of the United States; and when you attempt to exclude a Senator from the performance of that duty you assume functions which are not known in the Constitution and cannot for a moment be recognized. When you attempt to exercise the power, and do exercise it, are you any longer the Senate of the United States? The Senate, no other parties or bodies forming any part of it, is the only body known to the Constitution of the United States for this purpose, and the Senate is composed of two Senators from each State. Mr. HOWARD. I do not rise to prolong the debate, and I entertain the hope that we may be able to dispose of this question very soon. I rise more for the purpose of calling the attention of the Chair to the real matter before us, and of inquiring whether the proposition now made to us is in order. I believe the motion is, that other Senators shall be called to take the oath, and the Senator from Ohio be passed by for the present, until other Senators are all sworn in. If I am mistaken about that, I should like to be corrected. The CHIEF JUSTICE. The Senator from Ohio [Mr. WADE] presents himself to take the oath. The Senator from Indiana [Mr. HENdRICKS] objects. The question then is, Shall the Senator from Ohio be sworn? Pending that proposition, the Senator from Maryland [Mr. JOHNSON] moves that in administering the oath to Senators the name of the Senator from Ohio [Mr. WADE] be omitted in the call until the remaining names on the roll shall have been called.. That is the question now before the body. Mr. HOWARD. Yes, Mr. President, I so understood; and that is a question, allow me to say, which I suppose to be entirely within the competency of the Chair. There is no rule requiring the members to be called alphabet ically to take the oath. If the Chair should see fit upon his own responsibility to call them in reverse order undoubtedly he could do so. I do not see, therefore, any necessity of spending further time in the discussion of this particular motion; but at the same time I must confess, on reflecting upon this objection, that it seems to me to resolve itself into a pure question of order. The Senate of the United States are endeavoring to assume their judicial functions in a particular case, and are sitting, or endeavoring to sit, upon the trial of an impeachment. Therefore, it seems to me, it must be held that the trial has commenced. If I am correct in this, it appears to me that but one conclusion can be arrived at by the Chair. The Senate shall have the sole power to try all impeachments. When sitting for that purpose, they shall be on oath or affirmation." The Constitution is mandatory; it is imperative in its very terms. When a Senator offers, therefore, to take the oath, it becomes the duty of the Chair, under the Constitution, to administer the oath to him, and any objection to his taking the oath such as is made here seems to me to be out of order, because it implies that we may, or somebody here may, disobey and disregard this imperative mandate of the fundamental law. That will be a question, I apprehend, for the President of the Senate to decide. ration in the Constitution found its way there Mr. BUCKALEW. I should like to inquire of the Senator from Michigan if his own rules, for the adoption of which he has asked our assent some days since, do not provide that the Presiding Officer may submit any question to the Senate for decision? Having called upon us to adopt such a rule, and we having assented to his request, I think it very extraordinary that he endeavors to place upon the Chair the entire responsibility of deciding this question in any of the varied forms which it may assume, even assuming it to be (which I do not) a ques-ganization of any body made tion of order, pure and simple. Gentlemen read to us a section of the Constitution which says that the Senate shall be composed of two members from each State, and that each Senator shall possess one vote. I suppose, if we were to be curious upon a point of constitutional history, we might ascertain that that last clause was put in the Constitution with reference to the previous practice in the Congress of the Confederation, where the votes were taken by States. This clause, declaring that each member of the Senate, representing a State under the new system, should give a single direct vote, was to exclude, I suppose, the practice which had previously obtained of voting by States. A fundamental idea in constituting bodies consisting of more than one person is that the members shall be equal; that each shall possess an equal voice in its proceedings. I take it, therefore, that upon principle each member of the Senate ought to possess one vote; and that this decla Gentlemen seem to feel great difficulty of mind, because, as they say, without the swearing in of the Senator from Ohio the court will not be fully constituted; that we are at present in an imperfect condition; that the taking of an oath by him, and the taking of a place among us by him in the new capacity which we are assuming, is necessary and essential to the constitution of the body. That argument has no weight with me in determining the question which has been raised by the objection of the Senator from Indiana. Sir, this is a difficulty which may arise in the organization of any body made up of many members. It may arise in a judicial, in a legislative, or in a popular body anywhere; a question with regard to the membership of the body in its organization. Questions of this kind have been continually occurring from the foundation of the Government in the two Houses of Congress. Formerly, in the Senate, the practice was that a member who presented his credentials was sworn, and afterward, in case there was objection to his right, his case was investigated and determined. Recently, however, the Senate seem to have fallen into a different practice. Upon one or more occasions recently, one notably in my mind, the recent case from Maryland, a member appearing in the Senate and claiming a right to a seat, with regular credentials from his State, upon an objection made was not sworn. The objection was sustained. The case was sent to a committee of this body and investigated through many months, and the case was, in fact, acted upon at a subsequent session of the Senate, when a decision was arrived at and the judgment of the Senate was pronounced. || Now, sir, in what respect does this case differ in principle from that? Here the Senate is about to organize itself into a court; its members to be put under oath. The Chief Justice The Chief Justice. of the Supreme Court is called to preside over the proceedings, and we are to proceed as judges of law and of fact to decide the gravest question which can be presented to any tribunal in this country. The Senator from Indiana, when the Senator from Ohio appears, suggests-not as a challenge in the ordinary way, or upon ordinary principles-that under the Constitution of the United States the member from Ohio cannot sit in this court. Now, sir, that question involves the question of his right to be sworn, and it is made at the proper time, for it is made when the question arises legiti- || mately in the course of our proceedings. If If the objection be well grounded in the Constitution of the United States this is the time to make it for a very plain reason. If it be not now made, assuming it to be a just objection, what will be the consequence? That a member not qualified to act will become a member of the court and take part in its proceedings; and he will remain a judge in the case, entitled to vote upon all questions which may arise, until at some future time, perhaps days, weeks, or months hence, a Manager for the House or an attorney for the accused may raise the question of his right to sit by a motion or challenge. Then only (according to the argument) can our power of action upon this question be duly exerted. The argument has been made by a member in debate that perhaps the counsel who come in here will not make the objection to this particular member; and what then? The Senate is to be unable at any time during the trial to relieve itself from an incompetent member! Then an unlawful member may continue to sit from the beginning to the end of the proceed ing! At all events it is insisted that some attorney-at-law or manager must raise the question in order that we may assume jurisdiction over it and decide it. Can anything be more absurd than that? When you pursue this argument to its consequences, I think it becomes manifest that this is the time to raise the question; and I believe that it is not only within our power to raise the question now, but that it is our duty to determine it. We are acting under the Constitution of the United States. Most of us have already been sworn by you, sir, to obey that Constitution; and if, indeed, it be true that by that provision of the Constitution which calls you here to preside over our proceed ings-not to give dignity to them merely, but for the other and better and higher purpose, to give purity and a disinterested character to those proceedings-if, indeed, it be true that by that provision the member from Ohio (our Presiding Officer) is disqualified, we cannot shirk our duty of declaring his incompetency on the first occasion when the question is made. Now, sir, upon what ground is it that gentlemen would deprive us of that ordinary power which exists in the nature of things, to decide upon the constitution of our own body? As I said before, this is not a question of challenge for partiality, nor even for interest under some law which gives it to a party in a court of justice. It is a question which arises under the Constitution as to the organization of our own body-who shall compose it; and we are to meet that question, and decide it, in the very outset of our proceedings. The Senator from Massachusetts has read to us what Judge Story wrote about 1830, in which he stated an opinion similar to that which was contained in a communication from yourself, sir, to the Senate yesterday; and that was that when the President of the United States is on trial upon articles of impeachment the Chief Justice is called to preside because the Presiding Officer of the Senate is a party in interest, and it would be a scandal to have him preside in a case where his own possible accession to the office of President of the United States was involved. I am content for the present to take the opinion of the present Chief Justice of the Supreme Court of the United States, and the opinion of the most eminent commentator upon American law, in preference to the opinion of the Senator from Massachusetts pronounced here in debate. I think it would be an impropriety, if nothing worse, for the Senate to proceed at this moment, upon the strength of his opinion and of his argument against the highest authorities, to pronounce that the Senator from Ohio is entitled, as a member of the Senate sitting as a court of impeachment, to try the present case. In the courts of justice I understand that challenges are to be made to jurors before they are sworn. If that time has passed by, and the juror is charged, under oath, with the trial of the case, it is too late to object; and, undoubtedly, if, during the progress of this trial, an objection should be made to the competency of one of the members of the court to sit in the case, the answer which would be made before us and pressed upon our attention would be that the objection came too late, that the member had already been sworn. Mr. FRELINGHUYSEN. I should like to ask the Senator from Pennsylvania whether he considers that the respondent, the accused, has waived his right to challenge, if any such right exists, as to all those members of the Senate who have been sworn; and if he has not waived that right, is not that conclusive proof that this is not the time to interpose the objection, but that the challenge, if a challenge can be made, must be made to giving the vote, not to taking the oath? Mr. BUCKALEW. I am not arguing the question of a challenge which may be presented đuring the trial. All that I was alluding to at lawful thing? That was done in the very beginning of the proceedings, before the members of the Senate were sworn at all-earlier than the Senator from Indiana now interposes in the present case upon this question of swear not resent that demand of the House of Representatives. They made no objection to it. Subsequently, however, for good reasons, which I need not now recite, they did what was more effectual: they expelled Blount from membership by virtue of the constitutional power which they possessed. By a two-thirds vote they not only sequestered him from the Senate during the trial, but deprived him of his seat during his whole term. That was the action of the Senate. the moment the Senator interrupted me was the point that the particular argument I mentioned would be made. I am not treating this as a question of challenge by a party before us. I am not arguing on that ground. The question has not been put upon that grounding the Senator from Ohio. The Senate did by the Senator from Indiana or the Senator from Maryland. A right of challenge is a right given by a statute to a party in court to interpose in a particular manner and raise a particular question. We have nothing of that kind here. It It is not involved in the present debate. The question now before us and for our decision is this: in proceeding to constitute ourselves into a court, an objection being made that a particular Senator is not qualified to sit in that court at all, is it not our duty to meet the question and decide it? The prac- Now, Mr. President, if the House of Repretice that I was going to point out of both sentatives has a right to ask the Senate to reHouses of Congress, at least in recent times, move or to sequester a member from this body would seem fully to sustain this course. because he is interested in the trial which is to have already mentioned the case of the Sen- take place, it must be upon an affirmance of the ator from Maryland. In the House of Repre- very point in this debate, that is, that the Sensentatives, when members have appeared there ate, in constituting itself into a court, has a in the present Congress, the whole delegation right in a proper case to omit a member from from a State have had their cases referred. being sworn, from becoming a part of the body Their being sworn in was deferred for the time as reorganized for the special purpose. I insist, until some investigation took place. It is an therefore, that this case, to which the Senator ordinary mode of proceeding, and it is a power from Massachusetts has referred as authority, which may be assumed by any body, unless will instruct us that it is our duty now to act there be some statute or constitution to pre- upon this case, and, by omitting to swear the vent it, in deciding upon the qualifications of Senator from Ohio, to leave him to his general its own members. The Senate has a general rights as a Senator; but, for a particular conpower to decide upon the qualifications of its stitutional reason not to permit him to act with own members. Now, when we come to act in us in this particular trial, when the result of a particular capacity and under oath, have we the trial, if conviction takes places, will be to not the power to decide upon the qualifica-place him in the office of President of the Unitions of the members of the Senate who are to act in this new capacity, and if there be any incapacity to declare it? I One point more, and I will leave the debate. The Senator from Massachusetts informs us that in 1798, when the House of Representatives presented articles of impeachment against Senator Blount, they made a demand of the Senate that he should be sequestered from his seat. Like the Senator from Ohio, he was a member of this body, as it was then constituted, sitting here under oath, speaking the voice of a State, having, one would suppose, as much authority and power as any of his colleagues. What did the House of Representatives do? They asked the Senate, for the purposes of the trial and during the whole trial, to sequester him from his seat; that is, to remove him from it; to say he should not sit and take part in the proceedings. That was the demand of the House of Representatives at a time when that House was composed of giants in intellect, who had participated in the formation of the very Constitution under which this proceeding takes place. They made that demand of the Senate. Was it repelled? Was it supposed to be an unreasonable or an impertinent demand? Was it supposed that the House of Representatives asked the Senate to do an unreasonable or un ted States. I repeat, sir, from my point of view, this is not in the nature of a challenge by a party. Nor is it an objection made as a matter of favor to either party in this proceeding. It is made as a constitutional objection, as a question of membership, as a question upon the organization of the Senate into a court of impeachment. As to the capacity in which the Senate act, it seems to me there is no difficulty. The old writers and the old commentators used clear languagelanguage "the Senate of the United States sitting as a court of impeachment.” That was the description of bodies like the one we are about organizing, in olden times, and the uniform language applied to them down to this day. It is still the Senate of the United States, but it sits as a court; for the time being it must act upon judicial rules, and must administer the laws of the United States which are applicable to the particular case. Its legislative powers and functions are left behind it. It has taken on a new character and is performing a new function, judicial in its nature and judicial only. That is the whole of it. Mr. MORTON. I respectfully submit that the latter part of the argument of the Senator from Pennsylvania does not accord well with the first part. The distinguished Senator from |
