if we are here to answer to-day, and to go into the trial to-day, then this is the day fixed for the trial by your rules. Let us see whether it is. Rule nine provides : At twelve o'clock and thirty minutes afternoon of the day appointed for the return of the summons against the person impeached. This is the return day; it is not the trial day. The letter answers the gentlemen. According to the letter of the eighth rule they say "this is the trial day; go on; not a moment's delay; file your answer and proceed to trial; or without your answer let a general plea of not guilty be entered, and proceed at once with the trial." The ninth rule says this is the return day, not the trial day. Then the tenth rule says: The person impeached shall then be called to appear and answer the articles of impeachment against him. That is the call made on the return day. The accused is called to appear and answer. He is here; he appears; he states his willingness to answer; he only asks a reasonable time to prepare the answer. Then rule eleven speaks "of the day appointed for the trial." That is not this day. This day, the day which the gentlemen would make the first day of the trial, is, in your own rules, put down for the return day, and you must have some other day for the trial day to suit the convenience of the parties; so that the letter of one rule answers the letter of another rule But, pray, Mr. Chief Justice, is it possible that under these circumstances we are to be caught in this trap of the letter? As yet there has not been time to prepare an answer to a single one of these articles. As yet the President has been engaged in procuring his counsel, and all the time occupied with so much consultation as was necessary to enable us to fix the shortest period which in our judgment is necessary for the due preparation of his answer. Now, look back through the the whole line of impeachments, even to the worst times, and where there was the greatest haste; go back to English precedents, and English fair play always gave fair time. This is the first instance to be found on record anywhere, in which, upon the appearance day, the defendant was required to put in his answer and immediately proceed to the trial. Why, sir, we have not a witness summoned; we hardly know what witnesses to summon until the pleadings are prepared. We are entirely at sea. I submit, Mr. Chief Justice, to the honorable court that are to try this case, whether we are to be put through with this railroad speed? "Strike, but hear." Give us the opportunity that even in common civil cases is allowed to the defendant, hardly ever less than thirty days for his pleading and answer; more often sixty. Give us time; give us a reasonable time; and then, with a fair hearing. we shall be prepared for that sentence, whatever it may be, that you shall pro nounce. Mr. Manager BINGHAM. Mr. President, it The CHIEF JUSTICE. Before counsel proceed, the Chief Justice desires to state to the Senate that he is embarrassed in the construction of the rule. The twenty-first rule provides that "the case on each side shall be opened by one person." He understands that as referring to the case when the evidence is in and the cause is ready for argument. The twentieth rule provides that "all preliminary or interlocutory questions and all motions shall be argued for not exceeding one hour on each side, unless the Senate shall by order extend the time." Whether that is intended to apply to the whole argument upon each side or to the argument of each counsel who may address the court is the question which the Chief Justice is at a loss to solve. In the present case he has allowed the argument to proceed without attempting to restrict it, and, unless the Senate order otherwise, he will proceed in that course. Mr. Manager BINGHAM. Mr. President, it was not my purpose when I raised the question, under the rule, to be decided by the Senate, to touch in any way upon the merits of any application that might hereafter be made, after issue joined, for an extension of time for preparation for the trial. The only object I had in view, Mr. President, was to see whether the Senate was disposed to abide by its own rules, and, by raising the question, to remind senators of what they do know, that in this proceeding they are a rule and a law to themselves. Neither the common law nor the civil law furnishes any rule whatever for the conduct of this trial, save, it may be, the rule which governs in matters of evidence. There is nothing more clearly settled in this country, and in that country whence we derive our laws generally, than the proposition which I have just stated; and hence the necessity that the Senate should prescribe rules for the conduct of the trial; and, having prescribed rules, my associate managers and myself deemed it important to inquire whether those rules, upon the threshold of the proceeding, were to be disregarded and set aside. I may be pardoned for saying that I am greatly surprised at the hasty word which dropped from the lips of my learned and accomplished friend who has just taken his seat, [Mr. Stanbery,] when he failed to discriminate between the objection made here and an objection that may hereafter be made to a motion for the continuance of the trial. When the learned gentleman spoke of the trial day, he seemed to forget that the trial day never comes until issue joined. Why, Mr. President, there is nothing clearer, nothing better known, I think, to my learned friend than this, that the making up of the issue before any tribunal of justice and the trial are very distinct transactions-perfectly distinct. A very remarkable case in the twelfth volume of State Trials lies before me, wherein Lord Holt presided, on the trial of Sir Richard Grahme, Viscount Preston, and others, charged with high treason. In that case the accused appeared, as the accused by the learned gentlemen appears this morning, after the indictment presented in the court, and before plea asked for continuance. The answer that fell from the lips of the Lord Chief Justice was, we are not to consider the question of trial or the time of trial until plea be pleaded. Let me give his very words: L. C. J. HOLT. My lord, we debate the time of your trial too early; for you must put yourself upon your trial first by pleading. And when Lord Preston presses him again on the point, Lord Chief Justice Holt responds: My lord, we cannot dispute with you concerning your trial till you have pleaded. I know not what you will say to it; for aught I know there may be no occasion for a trial. I cannot tell what you will plead; your lordship must answer to the indictment before we can enter into the debate of this matter.-12 State Trials, 664. The eighth rule of the Senate, last clause, provides that if the party appearing shall plead guilty there may be no further proceedings in the case, no trial about it; nothing remains to be done but to pronounce judgment under the Constitution. It is time enough for us to talk about a trial when we have an issue. The rule is a plain one, a simple one. And I may be pardoned for saying that I fail to perceive anything in rules ten or eleven, to which the learned counsel have referred, that by any kind of construction can be supposed to limit the effect of the words in rule eight, to wit: If the accused, after service, shall fail to appear, either in person or by attorney, on the day so fixed therefor as aforesaid, or appearing shall fail to file his answer, [on the day on which he is summoned to appear, ] the trial shall proceed nevertheless as upon a plea of not guilty. When words are plain in a written law there is an end to all construction; they must be followed. The managers so thought when they appeared at this bar. All they ask is the enforcement of the rule, not a postponement of forty days, and at the end of that time to be met with a dilatory plea-a motion, if you please, to quash the articles, or a question raising the inquiry whether this is the Senate of the United States. It seems to me, if I may be pardoned for making one further remark, that in prescribing by this rule that the summons, with a copy of the articles, should issue, to be returned on a day certain, giving, as in this case, six days in advance, it was intended thereby to require as well as to enable the party on the day fixed for his appearance, as the rule prescribes, to come to this bar prepared to make answer to the articles. Permit me to say further-what is doubtless known to every one within the hearing of my voice-that technical rules do in nowise control or limit or fetter the action of this body; and under the plea of "not guilty," as provided in the rules, every conceivable defence that the party accused could make to the articles here preferred can be admitted. Why, then, this delay of forty days to draw up an answer of not guilty? But what we desire to know on behalf of the House of Representatives, by whose order we appear here, is whether an answer is to be filed in accordance with the rule; and, if it be not filed, whether the rule itself is to be enforced by the Senate which made it, and a plea of not guilty be entered for the accused. That is our inquiry. It is not my purpose to enter into any discussion upon the question of postponing the day for the commencement of the trial. My desire is at present to see whether, under this rule, and by force of this rule, we can obtain an issue. The CHIEF JUSTICE. Senators, the counsel for the President submit a motion that forty days be allowed for the preparation of his answer. The rule requires that this, as other questions, shall be taken without debate. You who are in favor of that motion will say "aye." Mr. EDMUNDS. Upon that subject I submit the following order: Ordered, That the respondent file his answer to the articles of impeachment on or before the 1st day of April next, and that the managers of the impeachment file their replication thereto within three days thereafter, and that the matter stand for trial on Monday, April 6, 1868. Mr. MORTON. I move that the Senate retire to consult in regard to its deter mination. Mr. Manager BINGHAM. I am instructed by the managers respectfully to ask that the Senate shall pass upon the motion to reject, under the eighth rule of this Senate until that rule be set aside, the application to defer the day of answer. The CHIEF JUSTICE. The motion of the counsel for the President is the motion in order before the Chair. The Chair regards the motion submitted by the senator from Vermont [Mr. Edmunds] as an amendment; and the question is upon agreeing to the order submitted by him as an amendment to the motion of the President's counsel. Mr. CONKLING. What becomes of the motion of the senator from Indiana? Mr. SUMNER. What was the motion of the senator from Indiana? Mr. MORTON. That the Senate retire to consult in regard to its determination. Mr. SUMNER. That is the true motion. The CHIEF JUSTICE. The question is on the motion of the senator from Indiana, that the court now retire for consultation. The motion was agreed to; and at three minutes before two o'clock the senators, with the Chief Justice, repaired to the reception-room of the Senate for consultation. At eight minutes past four o'clock the senators returned to the Senate chamber, and the Chief Justice resumed the chair. The CHIEF JUSTICE. The Chief Justice is instructed to state to the counsel for the accused that the motion made by them is overruled, denied, and that the Senate has adopted an order, which will be read by the Secretary. The Secretary read as follows: Ordered, That the respondent file answer to the articles of impeachment on or before Monday, the 23d day of March instant. Mr. Manager BINGHAM. Mr. President, I am instructed by the managers to submit to the consideration of the Senate a motion which I send to the desk to be read. The Secretary read as follows: The managers ask the Senate respectfully to adopt the following order: Ordered, That upon the filing of a replication by the managers on the part of the House of Representatives the trial of Andrew Johnson, President of the United States, upon the articles of impeachment exhibited by the House of Representatives, shall proceed forthwith. The CHIEF JUSTICE put the question upon the order asked by the managers and declared that it appeared to be rejected. Mr. SUMNER called for the yeas and nays, and they were ordered; and being taken, resulted—yeas 25, nays 26; as follows: YEAS-Messrs. Cameron, Cattell, Chandler, Cole, Conkling, Conness, Corbett, Drake, Ferry, Harlan, Howard, Morgan, Morton, Nye, Patterson of New Hampshire, Pomeroy, Ramsey, Ross, Stewart, Sumner, Thayer, Tipton, Williams, Wilson, and Yates—25. NAYS-Messrs. Anthony, Bayard, Buckalew, Davis, Dixon, Edmunds, Fessenden, Fowler, Frelinghuysen, Grimes, Henderson, Hendricks, Howe, Johnson, McCreery, Morrill of Maine, Morrill of Vermont, Norton, Patterson of Tennessee, Saulsbury, Sherman, Sprague, Trumbull, Van Winkle, Vickers, and Willey-26. ABSENT-Messrs. Cragin, Doolittle, and Wade-3. The CHIEF JUSTICE. The order asked by the managers is denied. Ordered, That the trial of the articles of impeachment shall proceed on the 6th day of April next. Mr. WILSON. I move to amend that order by striking out "the 6th day of April" and inserting "the 1st day of April." Mr. Manager BUTLER. I should like to inquire of the President and the Senate if the managers in behalf of the House of Representatives have a right to be heard upon that motion? Mr. SUMNER. Unquestionably. The CHIEF JUSTICE. The Chair is of the opinion that the managers have a right to be heard, and also the counsel for the accused. Mr. Manager BUTLER. Mr. President and gentlemen of the Senate, however ungracious it may seem on the part of the managers acting for the House of Representatives, and thereby representing the people of the United States, to press an early trial of the accused, yet our duty to those who sent us here, representing their wishes, speaking in their presence and by their command, the state of the country, the interests of the people, all seem to require that we should urge the speediest possible trial. Among the reasons why the trial should be put off which the learned gentlemen who appear for the accused have brought to the attention of the Senate, are precedents of delay in the trials of the earlier days of the republic; and we were told that "railroad speed" ought not to be used in this trial. Sir, why not? Railroads have affected every other business in the civilized world; telegraphs have brought places together that were thousands of miles apart. It takes less time to send to California and get a witness-it takes infinitely less time, if I may use so strong an expression, to send a message for him-from California now than it took to send for a witness from Philadelphia to Boston at the trial of Judge Chase. We must not shut our eyes to the fact that there are railroads and that there are telegraphs, as bearing upon this trial. They give the accused the privilege of calling his counsel together instantly, of getting answers from any witness that he may have instantly, of bringing him here in hours where it once, and not long ago, took months; and, therefore, I respectfully submit that it is not to be overlooked that railroads and telegraphs have changed the order of time. In every other business of life we recognize that change, and why should we not in this? But, passing from that, which is but an incident and a detail of the trial, will you allow me further to suggest that the ordinary course of justice, the ordinary delays in court, the ordinary time given in ordinary cases for men to answer when called before tribunals of justice, have no application to this case. The rules by which cases are heard and determined before the Supreme Court of the United States are not rules applicable to the case at bar; and for this reason, if for no other, when ordinary trials are had, when ordinary questions are examined at the bar of any court, there is no danger to the common weal in delay; the republic may take no detriment if the trial is postponed; to give the accused time injures nobody; to grant him indulgence hurts no one, and may help one, and perhaps an innocent man. But here the House of Representatives have presented at the bar of the Senate, in the most solemn form, the Chief Executive officer of the nation. They say (and they desire your judgment upon their accusation) that he has usurped power which does not belong to him; that he is, at this very time, breaking the laws solemnly enacted by you, the Senate, and those who present him here, the Congress of the United States, and that he still proposes so to do. Sir, who is the criminal-I beg pardon for the word-the respondent at the bar? He is the Chief Executive of the nation; and when I have said that, I have taken out from all ordinary rules this trial, because I submit with deference that here and now, for the first time in the history of the world, has any nation brought its ruler to the bar of its highest tribunal in a constitutional method, under the rules and forms prescribed by its constitution; and therefore all the rules, all the analogies, all the likeness to a common and ordinary trial of any cause, civil or criminal, cease at once, are silent, and ought not to weigh in judgment. Other nations have tried and condemned their kings and rulers, but the process has always been in violence and subversion of their constitutions and framework of government, not in submission to and in accordance with it. When I name the respondent as the Chief Executive, I thereby say he is the Commander-in-chief of your armies; he specially claims that command, not by force and under the limitations of your laws, but as a prerogative of his office, and subject to his arbitrary will. He controls, through his subordinates, your treasury. He commands your navy. Thus he has all the elements of power. He controls your foreign relations. In any hour of passion, of prejudice, of revenge for fancied wrong in his own mind, he may complicate your peace with any nation of the earth, even while he is being arraigned as a respondent at your bar. And mark me, sir, may I respectfully submit that the very question here at issue this day and this hour is, whether he shall control beyond the reach of your laws, and outside of your laws, the army of the United States. The one greatest of all questions here at issue is whether he shall be able, against law— setting aside your laws, setting aside the decrees of the Senate, setting aside the laws enacted by Congress, overriding the legislative power of the country, claiming it as an attribute of executive power only-to control the great military arm of this government, and control it if he chooses, at his own good pleasure, to your ruin and the ruin of the country. Indeed, sir, do we not know, may we not upon this motion assume, the fact upon common fame and the current history of events that the whole business of the War Department of this country pauses until this trial goes through? He will not recognize, as we all know, the Secretary of War; him whom this body has declared the legal Secretary of War, and whom Congress, under its power legitimately exercised, has determined shall be recognized as the Tegal Secretary of War. Do we not also know, that while he claims to have appointed a Secretary ad interim, he dare not recognize him, and thus the entire business of the War Department is stopped? The Senate of the United States have confirmed the appointment of many a gallant officer of the army who, by law and by right, ought to have his duties and pay commence the day and the hour when his commission reaches him; yet those commissions have been delayed weeks, and the proposition on the respondent's part is that they shall be |