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DEBATE

ON THE

RIGHT OF SENATOR WADE TO SIT AS A MEMBER OF THE COURT.

IN SENATE, March 5, 1868.

[For the proceedings see volume 1, page 11.]

The CHIEF JUSTICE. Senators, the oath will now be administered to the senators as they will be called by the Secretary in succession. (To the Secretary.) Call the roll.

The Secretary proceeded to call the roll alphabetically, and the Chief Justice administered the oath to Senators Anthony, Bayard, Buckalew, Cameron, Cattell, Chandler, Cole, Conkling, Conness, Corbett, Cragin, Davis, Dixon, Drake, Ferry, Fessenden, Fowler, Frelinghuysen, Grimes, Harlan, Henderson, Hendricks, Howard, Howe, Johnson, McCreery, Morgan, Morrill of Maine, Morrill of Vermont, Morton, Norton, Nye, Patterson of Tennessee, Pomeroy, Ramsey, Ross, Sherman, Sprague, Stewart, Sumner, Thayer, Tipton, Trumbull, and Van Winkle. The Secretary then called the name of Mr. Wade, who rose from his seat in the Senate and advanced toward the Chair.

Mr. HENDRICKS. Before the senator just called takes the oath I wish to submit to the presiding officer and to the Senate a question. The senator just called is the presiding officer of this body, and under the Constitution and laws will become the President of the United States should the proceeding of impeachment, now to be tried, be sustained. The Constitution providing that in such a case the possible successor cannot even preside in the body during the trial, I submit for the consideration of the presiding officer and of the Senate the question whether, being a senator, representing a State, it is competent for him, notwithstanding that, to take the oath and become thereby a part of the court? I submit that upon two grounds-first, the ground that the Constitution does not allow him to preside during these deliberations because of his possible succession, and second, the parliamentary or legal ground that he is interested, in view of his possible connection with the office, in the result of the proceedings-he is not competent to sit as a member of the court.

Mr. SHERMAN. Mr. President, this question, I think, is answered by the Constitution of the United States, which declares that each State shall be entitled to two senators on this floor, and that the court or tribunal for the trial of all impeachments shall be the Senate of the United States. My colleague is one of the senators from the State of Ohio; he is a member of this Senate, and is therefore made one of the tribunal to try all cases of impeachment. This. tribunal is not to be tested by the ordinary rules that may apply in cases at civil law; for the mere interest of the party does not exclude a person from sitting as a member of the Senate for the trial of impeachment, nor does mere affinity or relation by blood or marriage. The tribunal is constituted by the Constitution of the United States, and is composed of two senators from each State, and Ohio is entitled to two voices upon the trial of this case. It seems to me, therefore, that the question ought not to be made.

If this were to be tested by the rule in ordinary civil tribunals the same objection might have been made to one other senator, who has already taken the oath

without objection, being connected by ties of marriage with the person accused before us. It is, therefore, perfectly clear that while the rule might exclude the senator from Ohio in deciding in ordinary cases, or he might retire from exercising his right to vote, that is a question for him alone to determine. So far as the court is concerned he is entitled to be sworn as one of the triers in this case as senator from the State of Ohio, without regard to his interest in the result of the trial.

I have, as a matter of course, as the colleague of the senator who is now proposed to be sworn, looked into this matter, and I have no doubt of it. I was prepared, to some extent, for the raising of this question, though I hoped it would not be presented. How far the senator from Ohio, my colleague, may participate in the proceedings of impeachment, how far he shall vote, when he shall vote, and upon what questions he shall vote, are matters that must be left to him, and not for the tribunal or any senator to make against him. His right as a senator from the State of Ohio is complete and perfect, and there is no exclusion of him on account of interest, affinity, blood relationship, or for any other

cause.

Mr. HOWARD. Mr. President, I do not suppose that under the Constitution any senator is to be challenged, even for cause, upon the trial of an impeachment. I concur entirely with the view presented by the honorable senator from Ohio [Mr. Sherman] which he has just expressed. The objection raised by the honorable senator from Indiana [Mr. Hendricks] is in the nature of a challenge, if I understand it properly, upon the ground of interest in the question about to be decided by the Senate sitting for the trial of an impeachment. Now, sir, as has been very justly remarked, each State has the right to send to the Senate two members, and the Constitution declares, whatever may be the character of those members, whatever may be their relation to the accused or their interest in the question involved, that they shall be component parts of the body trying the impeachment. If an objection upon the ground of interest is tenable an objection upon the ground of affinity must also be available. The Senate has already seen one member of its body proceed to take the oath prescribed in our rules who is known to be related by affinity to the accused. I can see no distinction between an objection resting upon interest and one resting upon affinity. Besides, sir, the honorable senator from Ohio who now offers to take the oath is but the President pro tempore of the Senate. It is possible, and merely possible, that he may remain in that capacity until the conclusion of these proceedings; but at the same time it is not to be overlooked that it is but a possibility. The Senate has in its power at all times to choose another President pro tempore to preside over its proceedings. I cannot, therefore, see any such interest in the question as would seem to justify the objection which is taken by the honorable senator from Indiana. I hope the senator from Ohio, the President pro tempore of this body, will proceed to take the oath.

Mr. JOHNSON. Mr. President, the question is a purely legal one, and is to be decided upon principle. I have no doubt that the honorable member from Ohio will, as far as he may be able under the temptations to which he may be subjected unknowingly to himself, decide upon the issues which are involved in the impeachment trial with as much impartiality as any of us. It is not, therefore, any objection to the honorable member which induces me to say a word to the Senate on the subject.

The general rule, we all know, is applicable to a jury as well as to a court, that no one should serve in either tribunal who has a clear interest in the result of the trial. The honorable member from Ohio [Mr. Sherman] and the honorable member from Michigan [Mr. Howard] tell us that the Constitution provides that the court in this instance is to consist of the senators of the several States. That is true; but that does not prove that a senator may not be in a situation which should exclude him from the privilege of being a member of the court.

The Constitution of the United States provides that the Supreme Court shall consist of a Chief Justice and associate justices; the law from time to time has regulated their number; but I never heard it questioned that, although by the Constitution and the laws cases within the jurisdiction of that tribunal are to be tried by them, a judge would not be permitted to sit in a case in which he had a direct interest. It by no means follows, therefore, that because the honorable member from Ohio [Mr. Wade] is a senator, and as such entitled to be a member of this court, he is not as liable to the objection of interest in the result which your honor, the Chief Justice of the Supreme Court, would be liable to in a case before your high tribunal in which you had a direct interest in the possible result. This is, as the honorable member from Ohio [Mr. Sherman] says, the only tribunal to try such a case as is now before us. That is true; but if the honorable member and the Senate will look to the sixty-fifth number of the Federalist they will find why it was that the court was constituted when the President is to be on trial as it is constitued by the Constitution. It was because of the manner in which impeachments are tried in the mother country. There they are tried in the House of Lords. And I have a recollection, not altogether distinct-I did not know that the question was to be raised to-day, or I should have refreshed my recollection-that when in the case of the senator from New Jersey, Hon. Mr. Stockton, who had been received as a senator on this floor upon his credentials, and it was proposed to exclude him, which required a majority vote, the honorable member from Massachusetts, [Mr. Sumner,] and I think several other members, but particularly the honorable member from Massachusetts, in order to satisfy the Senate that Mr. Stockton had no right to vote in his own case, cited many instances in the House of Lords in which it had been held that a member of the House of Lords was not competent to decide in a case in which he had an interest. It was upon the authority of those cases, as well as upon the general ground which runs through the whole of our jurisprudence and the jurisprudence of the mother country, and is founded in the nature of things, that Mr. Stockton was denied the privilege of voting in his own case.

Now what was his case compared in point of supposed influence to the case of the honorable member from Ohio? He was to have a temporary seat in this body, invested only with that proportion of the power of the legislative department of the government which one member of this body has in reference to the whole number composing the body and the numbers which compose the House of Representatives. His voice, therefore, would be comparatively unimportant. And yet it was adjudged by the Senate, as well as I remember, and almost with unanimity, especially by those who thought Mr. Stockton was not entitled to his seat, that he should not be permitted to vote upon that question. How does his case compare with that of the honorable member from Ohio? The honorable member becomes, in a contingency which this impeachment seeks to bring about, a judgment of guilty, the President of the United States, invested with all the executive power of the government. Is it right, would anybody desire, to be subjected to such a temptation, which might lead him, unknowingly to himself, into an erroneous judgment? The whole executive powers of the United States, to say nothing of the pecuniary compensation belonging to the office $25,000 a year, are to be his in a certain result of the prosecution; and his vote may produce that result.

I submit, then, and certainly without the slightest feeling of disrespect for the honorable member from Ohio, that it is due to the cause of impartial justice, it is due to the character of the Senate, in its management of this proceeding, that there should not be established a precedent which may in the end produce excitement and bring into disrepute the Senate itself. The reason why it is, Mr. Chief Justice, that you are here to preside over the deliberations of this court, shows that, in the judgment of our fathers, it was improper that any man should be placed in the situation in which the honorable member from Ohio will

be placed if he is admitted to be a member of this court and exercise that function. Our fathers thought, and they have incorporated the thought into the Constitution, that he who is to be benefited by the result should not be permitted even to preside over the deliberations of this court when the President of the United States is on trial; that the Vice-President of the United States, who is entitled only to vote in case of a tie, of an equal division of the Senate, should not be permitted even to be a member of a court to preside over its deliberations. It was, Mr. Chief Justice, because our fathers were deeply versed in the history of the world, perfectly acquainted with the frailties of man's nature, as exhibited in the history of all political bodies, that they denied, in a case of this description, to the Vice-President of the United States the privilege even of presiding over the deliberations of such a court, much less of voting, and by his vote bringing about the judgment which was to make him President.

Mr. President, I do not know that we are able to decide this question at once. My impression is such as I have stated; but it is a grave question, an important question. It will be considered a grave and important question in the eyes of the country, and it should be by the Senate of the United States so esteemed. It is a new question; and I submit to you and the Senate whether it is not better to postpone the decision of it in ths case until to morrow, above all for the purpose of ascertaining what are the precedents of the House of Lords. Should they prove to be what I think they are, then, unless we are disposed to depart from the model upon which was formed this high tribunal, I am sure the Senate ought to decide-and I have no doubt the honorable member from Ohio will acquiesce cheerfully in that decision, and will himself see the propriety of so acting-that he is not entitled to take his seat as a member of this court. I move, therefore, that the question be postponed until to-morrow.

Mr. DAVIS. Mr. President, I will make a remark on this question before the vote is taken. If the senator from Ohio [Mr. Wade] asks to be excused from taking any part in this trial, it must be upon some principle established by the Constitution. The Vice-President presides in every case of impeachment, except upon the trial of the President, and there he is expressly excluded by a provision of the Constitution-upon what reason? Because of his interest in the question from the fact that if there is a judgment of a motion from office against the President the Vice-President is to succeed to his place. The Constitution thus establishes a principle, and that principle is this: that when the President of the United States, whether he has been elected by the electoral vote or has succeeded to the office by the amotion of the President from officewhen a President who actually holds the office is under trial, the man who is to take the place, if he be removed upon that trial by the judgment of the court which is to try him, is disqualified from forming a part of the court. That is the principle. Now, can the senator from Michigan or any other senator adduce any principle that would require the exclusion of the Vice-President from presiding over a court of impeachment of the President of the United States that will not apply to the President pro tempore of the Senate when there is no Vice-President, when the President pro tempore is presiding officer of the Senate, and when by the Constitution and laws of the United States, if the acting President, as he is sometimes called, is removed, the President pro tempore of the Senate is to take his place?

Mr. President, my argument is that the Constitution itself, in relation to this court, has established a principle, and that principle is that any man standing in a position where he is to succeed to the office of the President in the event of his conviction cannot form a part of the court of impeachment that is to try whether the President shall be removed or not. It seems to me clearly that, although the exclusion of the President pro tempore of the Senate does not come within the strict letter of the Constitution, it does plainly and unequivocally within its principle and spirit. To every lawyer it is a familiar principle

that where a law by its language and express terms does not include a case, but that case comes clearly within its principle and meaning, the law shall be extended by force of its spirit to comprehend the case that it is not strictly within its letter but is clearly and undeniably within its principles.

It seems to me, therefore, clear as a constitutional principle that the President pro tempore of the Senate, on the occasion of the impeachment trial, occupies the same position in relation to the office of President that the Vice-President would if he was here and was the presiding officer of the Senate; and the VicePresident being excluded for the reason and upon the principle that he is to take no part in the trial because he is to succeed to the vacant place if there be a judgment of amotion from office, the same principle, clearly, undeniably, in its full force and reason, applies to the President pro tempore of the Senate, and therefore he is excluded by the spirit and by the principle of the Constitution. Mr. MORRILL, of Maine. Mr. Chief Justice, it strikes me that the whole proceeding is premature, for the obvious reason that there is no party here to take the objection. If this is a court there is no party before the court to raise this objection. It certainly does not lie in the mouth of any member of this court, of any senator, to raise the objection of disqualification against any other senator; and, therefore, there is no party here properly to raise the objection against the administration of the oath. Whenever the proper parties appear here on the one side and the other, either for the people or for the respondent, then the court will be in a condition to hear objections to the constitution of the body; then the people will be represented, and may put the inquiry as to the constitution of this court, and then, also, the respondent may institute the same inquiry. It may turn out that we are so constituted that it will be necessary to raise this question and to determine it; but at the present moment it seems to me that there is no option and no discretion but to administer the oath to all those who, by the Constitution, are senators representing the States.

Mr. HENDRICKS. Mr. President, I do not propose at this time to protract the debate; but I wish to reply to the technical point made by the senator from Maine. It is inherent in a court to judge of its own organization; it is a power necessarily possessed by the court itself; and it is not for the suitors to present the question whether a party claiming a seat in a court composed of more than one member is justly and legally entitled to that seat. It is for the court itself to decide whether a member proposing to exercise the right to sit in that court is entitled to that right. Therefore, sir, the question is not prematurely presented. To the point made by the senator from Michigan, which is not upon the merits, I have just this to reply; that the possibility that the senator now proposing to be sworn may cease to be President of the Senate pro tempore is not an answer to the objection. He is now the presiding officer of the Senate, and as such will become the President of the United States if the impeachment be sustained and he continue to be the President pro tempore until the termination of the trial. If he ceases, during the progress of the trial, to be the presiding officer of this body, then he becomes competent, and under the second rule which has been adopted, if the rules should be recognized by the court, he will be sworn in as a member of the court. The point I make is, that now being the presiding officer of the Senate, and now being competent to become the President in case impeachment be sustained, he is now incompetent to participate in the trial.

The substantial merits of this question were settled in the case referred to by the senator from Maryland-the case of Senator Stockton, from New Jersey. There the Senate decided that a member of the body could not be a party to a decision in the Senate in which he is interested; and the possibility of holding an office was regarded as an interest by the Senate.

Nor do I think the point made by the senator from Ohio [Mr. Sherman] a good one, that, being a senator from a State, the presiding officer has the right

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