Something has been said of the "interest" of the Senator from Ohio on the present occasion. 'Interest"! This is the word used. We are reminded that in a certain event the Senator may become President, and that on this account he is under peculiar temptations, which may swerve him from justice. The Senator from Maryland went so far as to remind us of the large salary to which he might succeed,-not less than twentyfive thousand dollars a year, and thus added a pecuniary temptation to the other disturbing forces. Is not all this very technical? Does it not forget the character of this great proceeding? Sir, we are a Senate, and not a Court of Nisi Prius. This is not a case of assault and battery, but a trial involving the destinies of this Republic. I doubt if the question of “interest" is properly raised. I speak with all respect for others, but I submit that it is inapplicable. It does not belong here. Every Senator has his vote, to be given on his conscience. If there be any "interest" to sway him, it must be that of justice, and the safety of the country. Against these all else is nothing. The Senator from Ohio, whose vote is now in question, can see nothing but those transcendent interests by the side of which office, power, and money are of small account. Put in one scale these interests, so dear to the heart of the patriot, and in the other all the personal temptations which have been imagined, and I cannot doubt, that, if the Senator from Ohio holds these scales, the latter will kick the beam.

THE CHIEF JUSTICE, PRESIDING IN THE SENATE,

CANNOT RULE OR VOTE.

OPINION IN THE CASE OF THE IMPEACHMENT OF ANDREW JOHNSON, PRESIDENT OF THE UNITED STATES, MARCH 31, 1868.

IN the course of this trial there was an important claim of power by the Chief Justice, as presiding officer of the Senate, on which at the time Mr. Sumner expressed his opinion to the Senate, when it withdrew for consultation. As this claim was calculated in certain contingencies to affect the course of proceedings, possibly the final judgment, and as it might hereafter be drawn into a precedent, Mr. Sumner was unwilling to lose this opportunity of recording his reasons against it.

N determining the relations of the Chief Justice to

IN

the trial of the President, we must look, first, to the National Constitution; for it is solely by virtue of the National Constitution that this eminent magistrate is transported from his own natural field to another, where he is for the time an exotic. The Chief Justice in his own court is at home; but it is equally clear, that, when he comes into the Senate, he is a stranger. Though justly received with welcome and honor, he cannot expect membership, or anything beyond the powers derived directly from the National Constitution, by virtue of which he temporarily occupies the Chair.

Repairing to our authoritative text, we find the only applicable words:

"The Senate shall have the sole power to try all impeachments. . . . . When the President of the United States is tried, the Chief Justice shall preside: and no person shall be convicted without the concurrence of two thirds of the members present."

This is all. The Chief Justice shall preside, but subject to two limitations specifically declared. First, the trial is to be by the Senate solely, and nobody else,thus carefully excluding the presiding officer from all participation, except so far as is implied in the power to preside; and, secondly, judgment of conviction can be only by a vote of "two thirds of the members present,” — thus again excluding the presiding officer, unless it is assumed that he is a member of the Senate.

On the face of this text it is difficult to find ambiguity. Nobody questions that the Chief Justice must preside. Can anybody question that the trial must be by the Senate solely, and nobody else? To change this requirement is to fly in the face of the National Constitution. Can anybody question that the judgment of conviction must be by votes of "members present," and nobody else? Now, since the Chief Justice is not a "member" of the Senate, it is plain that he is positively excluded from vote on the final question. It only remains that he should "preside." And here the question recurs as to the meaning of this familiar term.

The person who presides is simply, according to the language of our Rules, "presiding officer," and this designation is the equivalent or synonym of speaker, and also of prolocutor, each of which signifies somebody who speaks for the house. It is not implied that he votes with the house, much less that he decides for the house, but only that he is the voice of the house,

its speaker. What the house has to say it says through him; but, except as organ of the house, he is silent, unless also a member, when to his powers as presiding officer he superadds the powers of a member also. From this brief statement it appears at once how limited his functions must be.

Here I might stop; but, since this question has assumed unexpected importance, I am induced to go further. It is easy to show that the language of the National Constitution, if seen in the light of English parliamentary history, must have an interpretation identical with its natural import.

Nothing is clearer than this. If language employed in the National Constitution had already, at the time of its formation, received a definite meaning, it must be interpreted accordingly. Thus, when the Constitution secures trial by jury," it secures that institution as defined by antecedent English law. So, also, when it declares that the judicial power shall extend to "all cases in law and equity" arising under the National Constitution, it recognizes the distinction between law and equity peculiar to English law. Courts of Common Law and Courts of Equity are all implied in this language; and since there is no further definition of their powers, we must ascertain them in England. Cushing, in determining the rules of proceeding in our American Legislatures, says :

"Such was the practice of the two Houses of the British Parliament when our ancestors emigrated; . . . . and such has continued to be, and now is, the practice in that body."1

This resource has been most persuasively presented

1 Lex Parliamentaria Americana: Elements of the Law and Practice of Legislative Assemblies in the United States, (2d edit.,) § 302.

by Mr. Wirt, in his remarkable argument on the impeachment of Judge Peck, where he vindicates and expounds the true rule of interpretation.

According to this eminent authority, what he calls "the English archetypes" were the models for the framers of the National Constitution. The courts were fashioned after these "archetypes." They were instituted according to "the English originals, to which they were manifestly referred by the Constitution itself."1 Here again I quote the words of Mr. Wirt.

All this is precisely applicable to that part of the National Constitution under consideration. In essential features it was borrowed from England. There is its original, its model, its archetype. Therefore to England we go.

Not only to England must we go, but also to Parliamentary Law, as recognized in England at the adoption of the National Constitution. The powers of a presiding officer, where not specifically declared, must be found in Parliamentary Law. The very term preside is parliamentary. It belongs to the technicalities of this branch of law, as much as indict belongs to the technicalities of the Common Law. In determining the signification of this term, it will be of little avail to show some local usage, or, perhaps, some decision of a court. The usage or decision of a Parliament must be shown. Against this all vague speculation or divination of reason is futile. I will not encumber this discussion by superfluous authorities. Insisting that this question must be determined by Parliamentary Law, I content myself with adducing the often cited words of Lord Coke:

1 Trial of Judge Peck, Appendix, p. 499.