impeached before them; and thus the House of Representatives unite with Madison in supplying a sufficient reason for the provision that on the trial of the President the Chief Justice shall preside.

In abandoning the reason which I have thus traced to contemporary authority, you launch upon an uncertain sea. You may think the reason assigned by the commentators to be satisfactory. It may please your taste; but it cannot be accepted as an authentic statement. If the original propositions were before me, I should listen to any such suggestion with the greatest respect. I do not mean to say now, that, as a general rule, it has not much in its favor; but I insist, that, so far as we are informed, the reason of the commentators was an afterthought, and that there was another reason which sufficiently explains the rule now under consideration.

I respectfully submit, Sir, that you cannot proceed in the interpretation of this text upon the theory adopted by the learned Senators over the way. You must take the text as it is. You cannot go behind it; you cannot extend it. Here it is: "When the President of the United States is tried, the Chief Justice shall preside." That is the whole, Sir. "The Chief Justice shall preside." No reason is assigned. Can you assign a reason? Can you supply a reason? Especially can you supply one which is not sustained by the authentic. contemporary history of the Constitution, and particularly when you have authentic contemporary history which supplies another reason? Unless I am much mistaken, this disposes of the objection, proceeding from so many Senators, that the Senator from Ohio cannot take the oath because he may possibly succeed

to the President now impeached at your bar. He may vote or not, as he pleases; and there is no authority in the Constitution, or any of its contemporary expounders, to criticize him.

This is all, Sir, I have to say at this time on this head. There were other remarks made by Senators over the way to which I might reply. There was one that fell from my learned friend, the Senator from Maryland, [Mr. JOHNSON,] in which he alluded to myself. He represented me as having cited many authorities from the House of Lords, tending to show, in the case of Mr. Stockton, that this person at the time was not entitled to vote on the question of his seat. The Senator does not remember that debate, I think, as well as I do. The point which I tried to present to the Senate, and which, I believe, was affirmed by a vote of the body, was simply this: that a man cannot sit as a judge in his own case. That was all, - at least so far as I recollect; and I submitted that Mr. Stockton at that time was a judge undertaking to sit in his own case. Pray, Sir, what is the pertinency of this citation? Is it applicable at all to the Senator from Ohio? Is his case under consideration? Is he impeached at the bar of the Senate? Is he in any way called in question? Is he to answer for himself? Not at all. How, then, does the principle of law, that no man shall sit as a judge in his own case, apply to him? How does the action of the Senate in the case of Mr. Stockton apply to him? Not at all. The two cases are as wide as the poles asunder. One has nothing to do with the other.

1 See, ante, Vol. X. pp. 391, seqq.

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 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,