[Hinds' Precedents, Volume 3]
[Chapter 66 - Procedure of the Senate in Impeachment]
[From the U.S. Government Publishing Office, www.gpo.gov]
PROCEDURE OF THE SENATE IN IMPEACHMENT.
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1. Hour of meeting for trial. Sections 2069-2070.
2. Sittings and adjournments. Sections 2071-2078.
3. Administration of the oath. Sections 2079, 2081.\1\
4. Functions and powers of Presiding Officer. Sections 2082-
2089.\2\
5. Duties of the Secretary. Section 2090.
6. Arguments on preliminary or interlocutory questions.
Sections 2091-2093.
7. Voting and debate. Section 2094.\3\
8. Secret session. Sections 2095-2097.
9. Voting in judgment. Section 2098.\4\
10. Rules, practice, etc. Sections 2099-2115.\5\
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2069. Unless otherwise ordered, the Senate, sitting for an
impeachment trial, begins its proceedings at 12 m. daily.
The Presiding Officer of the Senate announces the hour for sitting in
an impeachment trial and the Presiding Officer on the trial directs
proclamation to be made and the trial to proceed.
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\1\ As to administration of the oath, see, also, Blount's trial (sec.
2303 of this volume), Peck's (secs. 2369, 2375), Humphreys's (sec.
2389), Johnson's (sec. 2422), Belknap's (sec. 2450), Swayne's (sec.
2477).
\2\ See, also, sections 2065-2067, 2082-2089.
The president pro tempore presides during absence of the Vice-
President. Sections 2309, 2337, 2394.
Medium for putting questions to witnesses and motions to the Senate.
Section 2176.
Rulings of, as to evidence. Sections 2193, 2195, 2208.
Does not decide as to attachment of witnesses. Section 2152.
Calls counsel to order for improper utterances. Sections 2140, 2169.
Calls respondent to order. Section 2349.
Admonishes managers and counsel not to delay. Section 2151.
\3\ A majority vote only is required on incidental questions. Section
2059.
As to the vote of the Chief Justice when presiding. Sections 2057,
2067.
Debate as to admission of evidence. Sections 2196-2202.
\4\ Parliamentary law, as to. Section 2027.
Constitution requires two-thirds vote. Section 2055.
Debate on the question. Section 2094.
Where a plea of guilty might be entered. Section 2127.
Process of judgment in various cases: Blount's (sec. 2318),
Pickering's (secs. 2339, 2340), Chase's (sec. 2363), Humphreys's (secs.
2396), Johnson's (secs. 2437-2440), Belknap's (sec. 2466), Swayne's
(sec. 2485).
\5\ The rules continue from Congress to Congress. Section 2372.
Adoption of, at various times. Sections 2389, 2314.
Sec. 2070
An adjournment of the Senate sitting for an impeachment trial does
not operate as an adjournment of the Senate.
Immediately upon the adjournment of the Senate sitting for an
impeachment trial the ordinary business is resumed.
Present form and history of Rule XII of the Senate sitting for
impeachment trials.
Rule XII of the ``rules of procedure and practice in the Senate when
sitting on impeachment trials'' is as follows:
The hour of the day at which the Senate shall sit upon the trial of
an impeachment shall be (unless otherwise ordered) 12 o'clock m., and
when the hour for such thing [sitting?] shall arrive, the Presiding
Officer of the Senate shall so announce, and thereupon the Presiding
Officer upon such trial shall cause proclamation to be made, and the
business of the trial shall proceed. The adjournment of the Senate
sitting in said trial shall not operate as an adjournment of the
Senate; but on such adjournment the Senate shall resume the
consideration of its legislative and executive business.
This rule was first drafted by the committee appointed in 18681 to
revise the rules preparatory to the trial of President Johnson. In the
House, on March 2, the original form was modified by eliminating the
words ``high court of impeachment'' wherever found and substituting the
words ``the trial.'' The form adopted in 1868 is identical with the
present form, except that the word ``thing'' appears instead of
``sitting.'''
2070. At 12.30 p. m. of the day appointed for an impeachment trial
the Senate suspends ordinary business and the Secretary notifies the
House of Representatives that the Senate is ready to proceed.
Present form and history of Rule XI of the Senate sitting for
impeachments.
Rule XI of the ``Rules of procedure and practice in the Senate when
sitting on impeachment trials'' is as follows:
At 12.30 o'clock afternoon of the day appointed for the trial of an
impeachment, the legislative and executive business of the Senate shall
be suspended, and the Secretary shall give notice to the House of
Representatives that the Senate is ready to proceed upon the
impeachment of ____ ____, in the Senate Chamber, which chamber is
prepared with accommodations for the reception of the House of
Representatives.
This is the form reported and agreed to in the revision of 1868.\3\
It was formed by uniting portions of rules 11 and 12, which had been
framed in 1805 \4\ at the time of the trial of Judge Chase.
2071. The hour of meeting of the Senate sitting for an impeachment
trial being fixed, a motion to adjourn to a different hour is not in
order.--On March 30, 1868,\5\ in the Senate, sitting for the
impeachment trial of Andrew Johnson, President of the United States,
Mr. John Sherman moved an adjournment.
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\1\ Second session Fortieth Congress, Senate Report No. 59; Senate
Journal, p. 813; Globe, pp. 1534, 1602.
\2\ Apparently a misprint.
\3\ Second session Fortieth Congress, Senate Report No. 59; Senate
Journal, p. 813; Globe, p. 1534.
\4\ Second session Eighth Congress, Senate Journal, pp. 511-513;
Annals, pp. 89-92.
\5\ Second session Fortieth Congress, Globe Supplement, p. 53.
Sec. 2072
Mr. Charles Sumner, of Massachusetts, suggested that the adjournment
be to 10 o'clock on the morrow.
The Chief Justice\1\ said:
The hour of meeting is fixed by the rule, and the motion of the
Senator from Massachusetts is not in order.
2072. In the Johnson trial the Chief Justice held that the motion to
adjourn took precedence of a motion to fix the day to which the Senate
should adjourn.--On April 3, 1868,\2\ in the Senate sitting for the
impeachment trial of Andrew Johnson, President of the United States,
Mr. George F. Edmunds, of Vermont, moved that the Senate adjourn.
Mr. William Pitt Fessenden, of Maine, moved that when the court
should adjourn, it adjourn to meet on Monday next.
Mr. Edmunds made the point of order that the motion to adjourn took
precedence.
The Chief Justice\1\ said:
The Chair is of opinion that the motion to adjourn takes precedence
of every other motion if it is not withdrawn.
2073. In the Senate sitting for an impeachment trial no debate is in
order pending a question of adjournment.--On Saturday, April 4,
1868,\3\ in the Senate, sitting for the impeachment trial of Andrew
Johnson, President of the United States, a motion was made that when
the Senate, sitting as a court of impeachment, should adjourn, it
should be to meet on Thursday, April 9.
Debate having arisen, the Chief Justice\1\ said:
The Chief Justice is of opinion that, pending the question of
adjournment, no debate is in order from any quarter. It is a question
exclusively for the Senate. Senators, you who are in favor of the
adjournment of the Senate sitting as a court of impeachment until
Thursday next will, as your names are called, answer ``yea;'' those of
the contrary opinion, ``nay.''
And there appeared yeas 37, nays 10. So the motion was agreed to.
2074. The motion to adjourn to a certain time has been admitted in
the Senate sitting for an impeachment trial.--On June 1, 1876,\4\ in
the Senate sitting for the impeachment trial of William W. Belknap,
late Secretary of War, Mr. George G. Wright, a Senator from Iowa,
proposed this inquiry:
Mr. President, I wish to inquire whether it would be in order now to
move to adjourn to a day certain, or whether the order should be
properly that when the Senate sitting as a court of impeachment
adjourns, it be to a definite time?
The President pro tempore\5\ said:
It would be in order to move to adjourn to a certain time.
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\1\ Salmon P. Chase, of Ohio, Chief Justice.
\2\ Second session Fortieth Congress, Globe Supplement, pp. 110, 111.
\3\ Second session Fortieth Congress, Globe Supplement, p. 121.
\4\ First session Forty-fourth Congress, Record of trial, p. 161.
\5\ T. W. Ferry, of Michigan, President pro tempore
Sec. 2075
2075. The Senate sits for an impeachment trial with open doors, but
may deliberate on its decisions in secret.
Present form and history of Rule XIX of the Senate sitting in
impeachment trials.
Rule XIX of the ``Rules of procedure and practice for the Senate when
sitting in impeachment trials,'' is as follows:
At all times while the Senate is sitting upon the trial of an
impeachment the doors of the Senate shall be kept open, unless the
Senate shall direct the doors to be closed while deliberating upon its
decisions.
The first clause of this rule is in the form adopted in 1805,\1\ for
the trial of judge Chase. The second clause, setting forth a
contingency in which the doors may be closed, was added in the revision
of 1868,\2\ preparatory to the trial of President Johnson.
On July 31, 1876,\3\ when the Senate sitting for the impeachment
trial of William W. Belknap, late Secretary of War, was about to
proceed to judgment, Mr. Hannibal Hamlin, a Senator from Maine,
proposed to amend the rule by striking off the qualifying clause, so
that the proceedings should be held in open session. But the Senate by
a vote of yeas 23, nays 32, declined to consider the proposition.
2076. If the Senate fail to sit in an impeachment trial on the day or
hour fixed, it may fix a time for resuming the trial.
Present form and history of Rule XXV of the Senate sitting for
impeachment trials.
Rule XXV of the ``rules of procedure and practice for the Senate when
sitting in impeachment trials,'' is as follows:
If the Senate shall at any time fail to sit for the consideration of
articles of impeachment on the day or hour fixed therefor, the Senate
may, by an order to be adopted without debate, fix a day and hour for
resuming such consideration.
This rule was adopted in 1868,\4\ preparatory to the proceedings for
the trial of President Johnson.
2077. An order for postponement of an impeachment trial was held in
order after the organization of the Senate for the trial.--On March 23,
1868,\5\ in the Senate as organized for the trial of President Johnson,
the Chief Justice of the United States presiding, Mr. Garrett Davis, a
member of the Senate from Kentucky, proposed a preamble and order,
reciting that the seats of Senators from several States were vacant,
and declaring that the trial should be postponed until the Senators
from those States should be permitted to take their seats.
Mr. Timothy O. Howe, of Wisconsin, a Senator, objected that the
proposition was not in order.
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\1\ Second session Eighth Congress, Senate Journal, pp. 511-513;
Annals, pp. 89-92.
\2\ Second session Fortieth Congress, Senate Report No. 59; Senate
Journal, p. 814: Globe, p. 1568.
\3\ First session Forty-fourth Congress, Record of trial, p. 341.
\4\ Second session Fortieth Congress, Senate Report No. 59; Senate
Journal, p. 252: Globe, p. 1503.
\5\ Second session Fortieth Congress. Globe supplement, p. 12.
Sec. 2078
The Chief Justice,\1\ said:
The motion comes before the Senate in the shape of an order submitted
by a Member of the Senate and of the court of impeachment. The twenty-
third rule requires that ``all the orders and decisions shall be made
and had by yeas and nays, which shall be entered on the record, and
without debate, subject, however, to the operation of rule seven.'' The
seventh rule requires the Presiding Officer of the Senate to ``submit
to the Senate, without a division, all questions of evidence and
incidental questions; but the same shall on the demand of one-fifth of
the Members present, be decided by yeas and nays.'' By amendment this
rule has been applied to orders and decisions proposed by a Member of
the Senate under the twenty-third rule. The Chair rules therefore that
the motion of the Senator from Kentucky is in order.
Thereupon the proposition was entertained.
2078. When informed that managers are to present articles of
impeachment, the Senate, by rule, requires its Secretary to inform the
House of its readiness to receive the managers.
Present form and history of Senate Rule I as to impeachments.
Rule I, of the ``Rules of procedure and practice in the Senate when
sitting on impeachment trials,'' \2\ is as follows:
Whensoever the Senate shall receive notice from the House of
Representatives that managers are appointed on their part to conduct an
impeachment against any person and are directed to carry articles of
impeachment to the Senate, the Secretary of the Senate shall
immediately inform the House of Representatives that the Senate is
ready to receive the managers for the purpose of exhibiting such
articles of impeachment, agreeably to such notice.
This rule, with two immaterial verbal changes, is in the form adopted
for the trial of Judge Chase in 1804.\3\ It merely put in form of a
permanent rule the practice followed in the trials of Senator Blount
and Judge Pickering. In 1868,\4\ for the trial of Andrew Johnson,
President of the United States, the rule received slight verbal
changes, and was adopted in the form above, except the last two words,
which read ``said notice,'' instead of ``such notice.''
2079. Articles of impeachment being presented, the Senate is required
by its rule to proceed to prompt consideration thereof.
Before consideration of articles of impeachment, the Presiding
Officer is required by rule to administer the oath to the Senators
present, and later to others as they may appear.
The Senate, in its rules, has refrained from prescribing an oath for
the Chief Justice when he presides at an impeachment trial.
The Senate is required by rule to continue in session from day to
day, Sundays excepted, during impeachment trials, unless otherwise
ordered.
In 1868 the Senate eliminated from its rules all mention of itself as
a ``high court of impeachment.''
Present form and history of Rule III of the Senate for impeachment
cases.
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\1\ Salmon P. Chase, of Ohio, Chief Justice.
\2\ See Senate Manual, p. 171.
\3\ Senate Journal, pages 509, 510, second session Eighth Congress.
\4\ Second session Fortieth Congress, Journal, pp. 248, 811; Globe,
p. 1521; Senate Report No. 59.
Sec. 2079
Rule III, of the ``Rules of procedure and practice of the Senate when
sitting on impeachment trials,'' is as follows:
Upon such articles being presented to the Senate, the Senate shall,
at 1 o'clock afternoon of the day (Sunday excepted) following such
presentation or, sooner if ordered by the Senate, proceed to the
consideration of such articles, and shall continue in session from day
to day (Sundays excepted) after the trial shall commence (unless
otherwise ordered by the Senate) until final judgment shall be
rendered, and so much longer as may, in its judgment, be needful.
Before proceeding to the consideration of the articles of impeachment,
the Presiding Officer shall administer the oath hereinafter provided to
the Members of the Senate then present and to the other Members of the
Senate as they shall appear, whose duty it shall be to take the same.
This rule, which formulated the practice of previous trials, dates
from 1868,\1\ when a committee, of which Mr. Jacob M. Howard, of
Michigan, was chairman, reported a series of rules for the proceedings
incident to the impeachment of President Johnson. This rule was
reported in form as follows:
III. Upon such articles being presented to the Senate, the Senate
shall, at 1 o'clock afternoon of the day (Sunday excepted) following
such presentation, or sooner if so ordered by the Senate, resolve
itself into a high court of impeachment for proceeding thereon. A
quorum of the Senate shall constitute a quorum of the court, and it
shall continue in session from day to day (Sundays excepted) after the
trial shall commence (unless otherwise ordered by the court) until
final judgment shall be rendered, and so much longer as it may, in its
judgment, be needful. Immediately upon the Senate resolving itself into
such high court of impeachment the Secretary of the Senate shall
administer to the Presiding Officer (unless he shall be the Chief
Justice) the oath required by the Constitution of the United States in
such cases, and in the form hereinafter prescribed, and thereupon the
Presiding Officer shall administer such oath to the Members of the
Senate then present, and to the other Members of the Senate as they
shall appear, whose duty it shall be to take the same.
The wording of this language, with its references to the ``high court
of impeachment'' and the quorum thereof, gave rise to a discussion \2\
as to the constitutional status of the Senate in such procedure; and
resulted in amendment \3\ striking out those words, and bringing the
rule in this respect to its present form. Another question arose over a
proposition to strike out the words providing for administering the
oath to the Presiding Officer. Mr. Charles R. Buckalew, of
Pennsylvania, said:
I think the Presiding Officer of the court of impeachment should be
under oath, but it should be an oath different from that taken by the
Members who try the case. In the rule, as reported to us, it was
contemplated that the same oath should be administered to him that was
administered to the Members of the Senate. I believe in former
impeachment trials the Presiding Officer was sworn. There may be some
difficulty about our prescribing an oath for the Presiding Officer. I
think it very clear that by an act of Congress the form of an oath to
be taken by the Presiding Officer might be provided, and that it would
be binding. It seems an anomaly that we should have a Presiding Officer
sitting here and not under any legal obligation or any moral obligation
such as in oath would impose. I agree that the amendment already made
excepting him from the operation of the general form of oath provided
for Members of the Senate is eminently just and proper; and his
exception becomes indispensable after the decision which has been made
by the Senate on several occasions, withdrawing him altogether from any
interference with our proceedings except on questions of order. I
suppose, Mr. President, we have the same power to prescribe an oath for
the Presiding Officer of the Senate that we have to prescribe an oath
for the Members of the Senate, if, indeed, there be any authority to
bind him by such an obligation.
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\1\ Second session Fortieth Congress, Senate Report No. 59.
\2\ Globe, p. 1521 et seq.
\3\ Globe, pp. 1602, 1603.
Sec. 2080
Mr. Stephen C. Pomeroy, of Kansas, said:
The Chief Justice of the United States is under oath. When he entered
upon the discharge of his functions as Chief Justice, he took an oath
to discharge all the duties that were incumbent upon him as such
officer; and this duty is placed upon him by the Constitution of the
United States, and was embraced in his oath to discharge his duties as
Chief Justice of the United States; and any further oath than that I
think would be unnecessary.
* * * I beg leave to say to the Senator from Pennsylvania that the
reason why Senators have to be sworn, in addition to their usual oath
as Senators, is that it is provided for by the Constitution, which says
that ``When sitting for that purpose they shall be on oath or
affirmation;'' and goes on, ``When the President of the United States
is tried, the Chief Justice shall preside,'' but it does not say that
the Chief Justice shall be sworn. In the same sentence in which the
Constitution provides that the Senate shall be sworn when sitting to
try an impeachment, it says that the Chief Justice shall preside, and,
of course, in the absence of any requirement of a special oath, we are
to understand that he is sworn to the discharge of his duties, and this
duty among the rest, when he took his oath of office. I believe that is
all the oath required of him.
The amendment was agreed to, bringing the latter portion of the rule
into the form now existing.
2080. Form of oath to be administered to Senators sitting in
impeachment trials.
The Senate declined to require that the Chief Justice be sworn when
about to preside at an impeachment trial.
Present form and history of Senate Rule XXIV as to impeachments.
Rule XXIV of the ``Rules of procedure and practice of the Senate when
sitting in impeachment trials'' provides:
FORM OF OATH TO BE ADMINISTERED TO THE MEMBERS OF THE SENATE SITTING IN
THE TRIAL OF IMPEACHMENTS.
``I solemnly swear (or affirm, as the case may be) that in all things
appertaining to the trial of the impeachment of ------ ------, now
pending, I will do impartial justice according to the Constitution and
laws: So help me God.''
This is the form agreed to in 1868.\1\
As originally reported the form of oath for Members of the Senate had
this heading:
Form of oath to be administered to the Presiding Officer and Members
of the Senate.
Mr. Charles D. Drake, of Missouri, raised the point \2\ that the
Constitution did not require the Presiding Officer to be sworn, but
only the Senators. Some discussion arose over this question. Mr.
Charles R. Buckalew, of Pennsylvania, thought the Presiding Officer
should be sworn.
Mr. Stephen C. Pomeroy, of Kansas, said that the Chief Justice was
already sworn to perform his duties, and this was part of his duties as
Chief Justice.
The Senate, without division, agreed to an amendment striking out the
words ``Presiding Officer and'' from the heading.
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\1\ Second session Fortieth Congress, Senate Report No. 59, Senate
Journal, pp. 244-246; Globe, pp. 1590-1593.
\2\ Globe, p. 1603.
Sec. 2081
2081. In 1876 the Senate doubted its authority to empower its
Presiding Officer to administer to Senators the oath required for an
impeachment trial.
In the Belknap trial the oath to Senators was administered by the
Chief Justice until by law authority was conferred on the Presiding
Officer of the Senate.
On April 5, 1876,\1\ in the Senate pending proceedings for the
impeachment of William W. Belknap, Secretary of War, Mr. George F.
Edmunds, of Vermont, said:
I wish to ask the attention of the Senate to a matter which I, after
consultation with as many Senators as I could find, think it necessary
to bring to the notice of the Senate respecting the matter of the
impeachment to-day. The third rule of the Senate in regard to
impeachments provides that on this day at one o'clock--
``The Presiding Officer shall administer the oath hereinafter
provided to the Members of the Senate then present, and to the other
Members of the Senate as they shall appear, whose duty it shall be to
take the same.''
But on examination we are unable to find any statute of the United
States which authorizes the President of the Senate or the Presiding
Officer to administer this oath. It stands upon the rule alone. The
language of the statute about the authority of the Presiding Officer is
that, when Senators appear to take their seats upon an election to this
body, the Presiding Officer shall swear them in, and any Senator may
administer a similar oath to the Vice-President, the President of the
Senate, when he appears; and there the statute stops except in respect
of witnesses who are by law to be sworn by the President of the Senate.
In this state of difficulty and in the very grave doubt, at least,
that in the minds of all the gentlemen whom I have been able to consult
there is about this being a constitutional compliance with that
requirement which obliges us to be under oath (which, of course,
implies a legal and binding oath), we have thought it best for this
occasion, until provision can be made by law, to submit to the Senate a
proposition that the Chief Justice of the United States be invited to
attend at one o'clock to-day to administer these oaths, there being no
question about his authority to do so. Therefore, Mr. President, I ask
unanimous consent that this portion of Rule 3 which I have read,
respecting the administration of the oath by the Presiding Officer,
shall be suspended for this day; and if that be unanimously agreed to,
as of course it requires unanimous consent to suspend this rule, I
shall then offer an order which will accomplish the next step in the
matter.
In accordance with this suggestion the rule was suspended, and the
order referred to by Mr. Edmunds was submitted and agreed to.
To remedy this difficulty a bill was prepared, passed both Houses,
and was approved by the President on April 18, 1876.\2\ This empowers
the Presiding Officer of the Senate for the time being to administer
all oaths or affirmations that are or may be required by the
Constitution or by law to be taken by any Senator, officer of the
Senate, witness, or other person, in respect to any matter within the
jurisdiction of the Senate. Also the Secretary and Chief Clerk of the
Senate are respectively empowered to administer any oath or affirmation
required by law, or by the rules or orders of the Senate to be taken by
any officer of the Senate, or by any witness produced before it.
In accordance with this law the President pro tempore, on April
27,\3\ administered the oath required of Senators sitting for
impeachment trials, to Mr. Bainbridge Wadleigh, of New Hampshire.
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\1\ First session Forty-fourth Congress, Senate Journal, p. 394;
Record. p. 2212.
\2\ 19 Stat. L., p. 34.
\3\ Senate Journal, p. 915; Record of trial, p. 8.
Sec. 2082
2082. When the President of the United States is impeached the Chief
Justice of the Supreme Court presides.
When the Chief Justice is to preside at an impeachment trial the
Presiding Officer of the Senate is required by rule to give him notice
of time and place and request his attendance.
The Senate by rule have implied that the Chief Justice attends and
presides only after the articles of impeachment have been presented.
In 1868 the Senate eliminated from its rules all mention of itself as
a ``high court of impeachment.''
Present form and history of Rule IV of the Senate sitting for
impeachment trials.
Rule IV of the ``Rules of procedure and practice in the Senate when
sitting on impeachment trials,'' provides:
When the President of the United States or the Vice-President of the
United States, upon whom the powers and duties of the office of
President shall have devolved, shall be impeached, the Chief Justice of
the Supreme Court of the United States shall preside; and in a case
requiring the said Chief Justice to preside notice shall be given to
him by the Presiding Officer of the Senate of the time and place fixed
for the consideration of the articles of impeachment, as aforesaid,
with a request to attend; and the said Chief Justice shall preside over
the Senate during the consideration of said articles and upon the trial
of the person impeached therein.
The discussion of the constitutional status of the Senate in
impeachment proceedings, incident to the adoption of rules in 1868,
resulted in the present form of the rule. The committee having the
subject of rules under consideration at that time, reported \1\ it as a
new rule in form as follows:
IV. The Presiding Officer of the Senate shall be the presiding
officer of the high court of impeachment, except when the President of
the United States, or the Vice-President of the United States upon whom
the powers and duties of the office of President shall have devolved,
shall be impeached, in which case the Chief Justice of the Supreme
Court of the United States shall preside; and in a case requiring the
said Chief Justice to preside, notice shall be given to him by the
Presiding Officer of the Senate of the time and place fixed for the
organization of the high court of impeachment as aforesaid, with a
request to attend, and he shall preside over said court until its final
adjournment.
On March 2,\2\ after the debate as to the use of the words ``high
court of impeachment,'' amendments were offered by Mr. Orris S. Ferry,
of Connecticut, and agreed to, which brought the rule to its present
form. The debate on this rule showed the understanding to be that the
Chief Justice should not be notified to attend and preside until after
the articles of impeachment had been presented.
2083. In impeachments the Presiding Officer of the Senate is
empowered by rule to make and issue, by himself or by the Secretary,
authorized orders, writs, precepts, and regulations.
Present form and history of Rule V of the Senate sitting for
impeachment trials.
Rule V of the ``Rules of procedure and practice in the Senate when
sitting on impeachment trials,'' provides:
The Presiding Officer shall have power to make and issue, by himself
or by the Secretary of the Senate, all orders, mandates, writs, and
precepts authorized by these rules or by the Senate, and to make and
enforce such other regulations and orders in the premises as the Senate
may authorize or provide.
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\1\ Second session Fortieth Congress, Senate Reports, p. 59.
\2\ Senate Journal, p. 812 Globe. pp. 1602. 1603.
Sec. 2084
This rule dates from 1868, when it was reported \1\ in nearly its
present form by the committee having in charge the rules to be adopted
in view of the impeachment of President Johnson. It was changed to its
present form by substituting the word ``Senate'' for ``Court'' in two
places, in accordance with conclusions arrived at after discussion as
to the constitutional status of the Senate.\2\
2084. The preparations in the Senate Chamber for an impeachment trial
are directed by the Presiding Officer of the Senate.
During an impeachment trial the Presiding Officer on the trial
directs all forms not otherwise specially provided for.
The Presiding Officer on an impeachment trial may make preliminary
rulings on questions of evidence and incidental questions or may submit
such questions to the Senate at once.
The preliminary rulings of the Presiding Officer on an impeachment
trial stand as the judgments of the Senate, unless some Senator
requires a vote.
On questions of evidence and incidental questions arising during an
impeachment trial the voting is without division unless the yeas and
nays are demanded by one-fifth.
Discussion of the propriety of the Presiding Officer on an
impeachment making a preliminary decision on questions of evidence.
Discussions of the functions of the Chief Justice in decisions as to
evidence in an impeachment trial.
In the Johnson trial Chief Justice Chase held that the managers might
not appeal from a decision of the Presiding Officer as to evidence.
Present form and history of Rule VII of the Senate sitting for
impeachment trials.
Rule VII of the ``Rules of procedure and practice in the Senate when
sitting on impeachment trials,'' is as follows:
The Presiding Officer of the Senate shall direct all necessary
preparations in the Senate Chamber, and the Presiding Officer on the
trial shall direct all the forms of proceedings while the Senate is
sitting for the purpose of trying an impeachment, and all forms during
the trial not otherwise specially provided for. And the Presiding
Officer on the trial may rule all questions of evidence and incidental
questions, which ruling shall stand as the judgment of the Senate,
unless some Member of the Senate shall ask that a formal vote be taken
thereon, in which case it shall be submitted to the Senate for
decision; or he may at his option, in the first instance, submit any
such question to a vote of the Members of the Senate. Upon all such
questions the vote shall be without a division, unless the yeas and
nays be demanded by one-fifth of the Members present, when the same
shall be taken.
The first sentence of the rule is the substance of Rule VII, adopted
in 1805,\3\ at the time of the trial of Judge Chase. In 1868, at the
time of the proceedings for the impeachment of President Johnson, the
committee of which Mr. Jacob M. Howard, of Michigan, was chairman,
reported \4\ it in substantially its present form. In the first draft
the word ``court'' was generally used instead of ``Senate;'' but in
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\1\ Second session Fortieth Congress, Senate Report No. 59.
\2\ Senate Journal, pp. 230, 812; Globe, pp. 1526, 1602.
\3\ Second session Eighth Congress, Senate Journal, pp. 511-513;
Annals, pp. 89-92.
\4\ Second session Fortieth Congress, Senate Report No. 59.
Sec. 2084
accordance with a general principle established at that time that
phraseology was changed.\1\ Also the draft reported from the committee
did not contain the last sentence of the present form.
On March 2,\2\ while the report was under debate, Mr. Charles D.
Drake, of Missouri, moved to strike out these words:
And the Presiding Officer of the court may rule all questions of
evidence and incidental questions, which rulings shall stand as the
judgment of the court, unless some member of the court shall ask that a
formal vote be taken thereon, in which case it shall be submitted to
the court for decision; or he may, at his option, in the first
instance, submit any such question to a vote of the members of the
court,
and insert in lieu thereof:
The Presiding Officer may, in the first instance, submit to the
Senate, without a division, all questions of evidence and incidental
questions, but the same shall, on the demand of one-fifth of the
Members present, be decided by yeas and nays.
The words to be inserted were suggested by Mr. Jacob M. Howard, of
Michigan.
A long debate resulted on this motion.
Mr. Drake explained his reasons:
The Constitution simply, says that when the President of the United
States is tried the Chief Justice shall preside. In that position he
has just exactly the same powers and functions that the Vice-President
would have in any other case of impeachment, and no more. Now, sir, any
man in the country, whether a lawyer or not, may, in the course of
events, come to fill the position of Vice-President of the United
States. Suppose that a man who had never been a lawyer, never made law
his study, and did not know anything at all about the complex rules of
evidence in the courts of justice were to be elevated to the Vice-
Presidency, and the Senate should consist, as it does now, of a large
majority of those who have made the law their study during a large
portion of their lives, and he should be set up in the chair as the
Presiding Officer of that body to decide questions of law. I will
venture to say that the Senate would regard it as quite preposterous.
Now, sir, why should we set the Chief Justice there to decide these
questions? We can not do it, in my opinion, without a violation of the
spirit of the Constitution, which does not entitle him to any more
prerogatives as the Presiding Officer of the court than the Vice-
President would have in other cases.
But, sir, there is a very grave objection to this. Even taking the
distinguished Chief Justice of the United States, so justly
distinguished for his great mind and his great knowledge of the law, it
is not proper, it is not judicious, it is not for the purposes of
justice expedient that the Senate, sitting as a court of impeachment,
should ever be brought to the point of overruling a decision made by
the Chief Justice of the United States sitting in the chair as the
Presiding Officer of the court. It is not proper that the judgment of
the Senate upon questions of law, which it must ultimately decide, if a
single Senator demands its decision, should be warped, or if not
warped, in any degree affected by the previous announcement of an
opinion upon that question by so high a judicial officer as the Chief
Justice.
Sir, it might be that, on some future occasion, when a President of
the United States should be impeached again, the Chief Justice might be
a very strong opponent of his, or a very strong advocate of his, and
that his decisions might be influenced one way or the other by the
personal considerations or the political considerations which bound him
to the President or made him the President's opponent. Under these
circumstances, it is not wise or judicious, in my opinion, that we
should lay down a rule, not only for this trial but for all other
trials, which might bring the Chief Justice, sitting as our Presiding
Officer, in continual conflict with the Senate. Let the Senate decide
its own questions of law. Let it not, by simple acquiescence, put the
Chief Justice there to decide these questions of law. Let them come up
to the work themselves and pronounce their own decision, without the
necessity of appealing from his decision, and being brought into
antagonism with him.
-----------------------------------------------------------------------
\1\ Globe, pp. 1602, 1603; Journal, pp. 247, 248, 812.
\2\ Senate Journal, pp. 247, 248; Globe, pp. 1595-1602.
Sec. 2084
Mr. John Sherman, of Ohio, opposed this view on the ground that the
trial would be unnecessarily prolonged were the preliminary decision
taken from the Presiding Officer. That was the function of every
presiding officer, and he considered that ``a departure from the
ordinary customs and courtesies extended to presiding officers,
especially in a case where the Presiding Officer was made so by the
Constitution of the United States,'' would be a very remarkable
circumstance.
Mr. George H. Williams, of Oregon, argued elaborately in the same
line:
I say that the Senators alone do not constitute a perfect Senate, but
the Vice-President of the United States is a part of the Senate, and
has certain functions to perform as a part of the Senate, and his right
to vote as an officer of the Senate is recognized under certain
circumstances. When the Senators are equally divided, he has a right to
vote, for the language is:
``The Vice-President of the United States shall be President of the
Senate, but shall have no vote unless they be equally divided.''
That is, unless the Senators be equally divided he shall have no
vote; but, if they are equally divided, then he is to have a vote.
Certainly he could have no vote under any circumstances unless he did,
for certain purposes at any rate, constitute a part of the Senate. Then
the Constitution provides that--
``The Senate shall choose their other officers, and also a President
pro tempore, in the absence of the Vice-President or when he shall
exercise the office of President of the United States.''
Then it says:
``The Senate shall have the sole power to try all impeachments.''
Does that mean solely and exclusively; that the Senators shall have
the sole power to try all impeachments; or does it mean that the Senate
as an organized body, constituted under the provisions of the
Constitution, shall try an impeachment? I say that it means that the
Senate, with the Vice-President of the United States presiding, and the
Constitution contemplates that he is to participate in the trial of
every impeachment, except where the President of the United States is
upon trial.
``When sitting for that purpose they shall be on oath or
affirmation.''
Does that mean that the Senators alone shall be upon oath or
affirmation, or does it mean that the Senate, that all the constituent
Members of the Senate who participate in the trial, shall be upon oath
or affirmation?
``When the President of the United States is tried, the Chief Justice
shall preside.''
Now, sir, I understand the Constitution to make the Chief Justice of
the United States a part of the Senate when it is engaged in trying an
impeachment against the President of the United States. I do not
undertake to say that he possesses the power to vote like a Senator; I
will not make that declaration at this time; but he is a part of the
Senate, and I maintain that the Senate, by its rules, may confer upon
him such powers as it sees proper in the proceedings of the trial. He
is not to be treated, when the Constitution requires him to come here
and preside over this body, as a stranger and an interloper, because,
under the Constitution, he has as much right to be here as any Member
of this body. It is as much his duty to be here as it is the duty of
any Member of this body to be here; and if he is here under the
Constitution, he is here for certain purposes and must necessarily
possess the powers of a presiding officer. Why should there be evinced
a kind of jealousy, as it seems to me, on the part of the Senate, lest
if the Chief Justice comes in here be may assume to exercise powers
which do not belong to him? Are we to assume that position, and hence
refuse to give to him those rights and powers and privileges which the
Constitution contemplates he should have?
It seems to me that there is a perfect propriety, when the
Constitution compels him to come here and preside upon the trial of the
President, in allowing him, in the first instance, to decide in that
court as he would in the other court where he presides as Chief
Justice.
Mr. Thomas A. Hendricks, of Indiana, while not holding that the Chief
Justice might vote, considered it eminently proper that he should
exercise a preliminary decision:
In the first place, he is an eminent judge, because of his position.
Is he not competent, in all probability, to correctly and safely decide
the questions that are likely to arise during the progress of
Sec. 2084
the trial? In his office as Chief Justice he participates in the
greatest decisions that are made in any court in the world, and as a
judge of one of the circuits he presides over the controversies
incident to life and property. Shall he not be heard to express in the
first place for the Senate a judgment, and if not agreeable, the Senate
shall say it is not agreeable? What harm can come of it? It brings the
question directly before the body, promptly, conveniently, safely,
prudently, in my opinion.
But if he is not to participate that far, to say the least of it, in
the business of the body, why has the Constitution been so careful to
have him here? Certainly for the purpose merely of presiding and seeing
that good order is preserved in the body the Constitution would not be
so careful that he should preside. Some power, it is presumed, is to be
exercised by him. The Constitution presumes that and what power? To
decide questions as they arise in the progress of the case, as
questions ordinarily are decided, though subject, of course, to the
superior will of the Senate.
Mr. Roscoe Conkling, of New York, who took the view advanced by Mr.
Drake, cited precedents:
We may gain information at this point from the practice and
precedents under the British constitution. ``The House of Lords,''
called at times ``the court of the King in Parliament,'' was, like the
Senate, an entirety; an ascertained, defined body. There was a
presiding officer at all times, and his existence and ministration was
derived from the constitution as much as from our Constitution proceeds
the existence of a presiding officer here. This presiding officer was
sometimes a member of the House of Lords--taken from the body to
preside in it, as our Presiding Officer for several sessions has been
taken from the Members of the Senate. Sometimes the presiding officer
in the Lords was made a member of the body contemporaneously with his
installment as presiding officer--not having been a peer before, he was
ennobled at the time and thus became a member. Sometimes not being a
peer, and therefore not a member of the Lords, he presided without a
peerage being conferred, and thus he was presiding officer, with all
the prerogatives appurtenant to the presiding chair, but still was not
a member of the body. By turning to the powers accorded to the Lord
Chancellor as presiding officer, and to the duties and prerogatives of
the lord high steward of England in the trial of impeachments, we may
be able to measure the force of the expression, ``When the President of
the United States is tried, the Chief Justice shall preside.'' A
distinction has been made between the right to vote and to decide of
the lord high steward between a trial before the Lords in Parliament--
that is to say before the House of Lords at large and a trial before a
commission of the peers. It has been insisted that the lord steward
never participated in the decision if the trial was before a chosen
number of the peers, but that he did take part in judgment and decision
when the trial was before the House of Lords in full. Lord Campbell, in
his Lives of the Chancellors, refers to this distinction; so does May
in his Law of Parliament. But the journal of the House of Lords affords
no reason to believe that such a difference of practice in the two
tribunals was observed. On the contrary, the question whether the lord
steward had or had not a vote or a voice in giving judgment seems to
have hinged entirely upon his being merely a presiding officer or being
also a member of the House of Lords itself. In virtue of his place as
presiding officer he seems in no case to have participated in voting or
determining the cause. His right and power and designation to preside
seems never to have been supposed to carry with it any permission or
obligation to join in deciding questions submitted to the tribunal. In
many instances the lord high steward did vote, however, in trials of
impeachment, but always in virtue of his being a member of the House,
independent of the fact that he was also its presiding officer.
To substantiate this I refer, first, to the cause of the Earl of
Ferrers, brought to the bar in 1760. The cause is reported at length by
Sir Michael Foster, one of the judges of the court of king's bench. The
earl having been convicted, the House propounded to the judges two
questions, one of which went to the power of the presiding officer and
of the House without the presiding officer. The judges answered the
questions after deliberation, in writing, and the reasoning appears in
Foster's Crown Law at page 138 and onward. I read from page 143. Having
discussed some matters incident to a trial of a peer before a
commission of peers he proceeds:
``But in a trial of a peer in full Parliament, or, to speak with
legal precision, before the King in Parliament, of a capital offense,
whether upon impeachment or indictment, the case is quite otherwise.
Every peer present at the trial (and every temporal peer hath a right
to be present in every part of the proceeding) voteth upon every
question of law and fact, and the question is carried by the major
Sec. 2084
vote, the high steward himself voting merely as a peer and member of
that court in common with the rest of the peers, and in no other right,
``It hath indeed been usual, and very expedient it is in point of
order and regularity, and for the solemnity of the proceeding, to
appoint an officer for presiding during the time of the trial and until
judgment, and to give him the style and title of steward of England.
But this maketh no sort of alteration in the constitution of the court.
It is the same court founded in immemorial usage, in the law and custom
of Parliament, whether such appointment be made or not.
``It acteth in its judicial capacity in every order made touching the
time and place of the trial, the postponing the trial from time to time
upon petition according to the nature and circumstance of the case, the
allowance or nonallowance of counsel to the prisoner, and other matters
relative to the trial, and all this before an high steward hath been
appointed: and so little was it apprehended in some cases which I shall
mention presently, that the existence of the court depended on the
appointment of an high steward, that the court itself directed in what
manner and by what form of words he should be appointed. It hath
likewise received and recorded the prisoner's confession, which
amounteth to a conviction, before the appointment of an high steward,
and hath allowed to prisoners the benefit of acts of general pardon,
where they appeared entitled to it, as well without the appointment of
an high steward as after his commission dissolved.''
On the next page, referring to the case of the Earl of Danby, he
states certain proceedings between the two Houses of Parliament, and
remarks--
``That the Lords' committees said `The High Steward is but Speaker
pro tempore, and giveth his vote as well as the other Lords.' ''
And upon this appears the following entry:
``In the Commons' Journal of the 15th of May it standeth thus: Their
lordships farther declared to the committee that a Lord High Steward
was made hac vice only, that notwithstanding the making of a Lord High
Steward the court remained the same and was not thereby altered, but
still remained the court of peers in Parliament; that the Lord High
Steward was but as a speaker or chairman for the more orderly
proceeding at the trials.''
This the Commons wished entered on the Lords' Journal.
On page 147, speaking of the law as laid down by the Lords, Sir
Michael says:
``The letter of the resolution, it is admitted, goeth no farther, but
this is easily accounted for. A proceeding by impeachment was the
subject-matter of the conference, and the Commons had no pretense to
interpose any other. But what say the Lords? The High Steward is but as
a speaker or chairman pro tempore for the more orderly proceeding at
the trials; the appointment of him doth not alter the nature of the
court, which still remaineth the court of the peers in Parliament. From
these premises they draw the conclusion I have mentioned. Are not these
premises equally true in the case of a proceeding upon indictment? They
undoubtedly are.''
This case and the authorities referred to in stating it seem to make
it clear that the immemorial understanding in England has been that the
officer whose duty it is to preside at trials of impeachment has
definite functions, convenient and conducive to order, and the dispatch
of business, and that the duty to vote or to decide is not among his
duties or his powers. The fact of his presiding or of his being
authorized or commissioned to preside, according to these cases,
carries with it no right to act as a trier or a member. The same
doctrine will be found in Sharswood's Blackstone, at pages 261 and 262
of the second volume. Lord Campbell, in the third volume of his Lives
of the Chancellors, page 557, refers to the case of Lord Dellamere,
tried in 1686 for complicity with Monmouth. Jeffries was Lord High
Steward and seems to have conducted himself with all the brutality to
have been expected of him. He began by a harangue to the culprit,
urging him, in the presence of the king, to confess. Dellamere
interposed to inquire if he was to be one of his judges, to which the
Lord High Steward replied, ``No, my Lord; I am judge of the court, but
I am none of your triers.'' This trial was not before the House of
Lords, but before a commission of peers, and in so far it is not a
literal precedent. Here are other cases of antiquity and of note, more
or less instructive, cases in which the presiding officer voted, not
apparently sui juris, but by reason of his peerage.
In the trial of Lord Lovat, impeached by the Commons for high treason
in 1746:
``The Lord High Steward, by a list, called every peer by his name,
beginning with the lowest baron, and asked them, ``If Simon, Lord
Lovat, was guilty of the high treason whereof he stands impeached or
not guilty?''
Sec. 2084
``And thereupon every Lord, standing up uncovered, answered: `Guilty,
upon my honor,' \1\ laying his right hand upon his breast.
Which done, the Lord High Steward, standing uncovered at the chair,
as he did when he put the question to the other Lords, declared his
opinion to the same effect and in the same manner.'' (27 Lords'
Journals, p. 76.)
In the trial of the Earl of Oxford and of Earl Mortimer, impeached in
1717:
``The Lord High Steward stated the question before agreed on, and
asked every Lord present severally, `Whether content or not content?'
``And they all answering in the affirmative, as did the Lord High
Steward declare his opinion also:
``The Lord High Steward declared that Robert, Earl of Oxford and Earl
Mortimer, was, by the unanimous vote of all the Lords present,
acquitted of the articles of impeachment exhibited against him by the
House of Commons for high treason and other high crimes and
misdemeanors, and of all things therein contained.'' * * * ``And then
the Lord High Steward stood up uncovered; and, declaring `that there
was nothing more to be done by virtue of the present commission,' broke
the staff and pronounced the commission of Lord High Steward
dissolved.'' (20 Lords' Journals, p. 525.)
The same form was observed in the case of Earls Derwentwater et al,
impeached for high treason, in 1715.
In Viscount Melville's trial on an impeachment, in 1806, according to
the Journal of the House of Lords--
``The Lord Chancellor having asked every Lord present, beginning with
the junior baron, `What says your lordship on this first article?' and
the Lords having severally answered thereto, and the Lord Chancellor
having declared his opinion also, the said several other questions were
in like manner stated, and each Lord was severally asked in manner
aforesaid touching the same. And the Lords `having severally answered
to the same, and the Lord Chancellor having declared his opinion also
on each of the said questions, the Lord Chancellor declared that the
answer of a majority of the Lords to each of the said questions,
respectively, was `not guilty.' ''
Here are cases decided by the Lords without the vote or voice of the
presiding officer--cases in which there was a presiding officer with
every right as such, but without any participation in the decisions
made.
In the case of Lord Chancellor Bacon, in 1621--
``The House (of Lords) being resumed, and the Lord Chief Justice
returned to his place, it was put to the question whether the Lord
Viscount St. Albans (Lord Chancellor) shall be suspended from all his
titles of nobility during his life or no? and it was agreed per plures
that he should not be suspended thereof.'' (40 Lords' Journals, p.
302.)
In Sacheverell's case, impeached in 1709--
``Then his lordship put the question, beginning at the junior baron
first, as follows: `Is Doctor Henry Sacheverell guilty of high crimes
and misdemeanors, charged upon him by the impeachment of the House of
Commons?'
``And having asked every Lord present, and they having declared
guilty or not guilty,
``His lordship having cast up the votes, declared him guilty.''
(Ibid.)
In the case of the Earl of Macclesfield, in 1725--
``It was agreed that the question to be put to each Lord, severally,
shall be, `Is Thomas, Earl of Macclesfield, guilty of high crimes and
misdemeanors charged on him by the impeachment of the House of Commons,
or not guilty?'
``And every Lord present shall declare his opinion, `guilty or not
guilty, upon his honor', laying his right hand upon his breast.
``When the Lord Chief Justice, Speaker of this House, directed the
Gentleman Usher of the Black Rod to bring thither the Earl of
Macclesfield, who, after low obeisances made, kneeled until the said
Lord Chief Justice acquainted him he might rise. (Judgment pronounced.
Record of mode of obtaining the votes of the Lords on each resolution
is, `The question was put thereupon; and it was resolved in the
affirmative.' '') (Ibid.)
Mr. President, there may be arguments on this point which these
precedents do not answer, but, it seems to me, they confront the view
presented by the Senator from Oregon. The Lord Chancellor and the Lord
High Steward of England, by the British constitution, were invested
with the prerogatives
Sec. 2084
and powers of presiding officers. Their attributes were more potential,
their sway was greater, the examples of their supremacy were more
copious, than the genius of our Constitution would tolerate, And if we
ascertain the full measure in the less liberal days of British monarchy
of what a presiding officer might do, surrounded by peers and
commissioned by the King, we shall not fall short at least of the
intention of those who adopted the language to which the Senator
referred. The framers of our Constitution were profoundly learned in
the practice and the meaning of British law, and the word ``preside,''
when used by them, may well be supposed not to have been selected to
convey a greater meaning than had been attached to it in the great
struggles of privilege and power from which they had derived the
philosophy of government.
The amendment proposed by Mr. Drake was agreed to, yeas 21, nays 7.
On March 31, 1868,\1\ at the outset of the trial, on the objection of
Mr. Henry Stanbery, counsel for the President, to certain testimony,
the Chief Justice ruled that the testimony was competent.
Mr. Charles D. Drake, of Missouri, a Senator, at once objected that
the question of the competency of evidence should be determined by the
Senate and not by the Presiding Officer.
The Chief Justice \2\ thereupon said:
The Chief Justice states to the Senate that in his judgment it is his
duty to decide upon questions of evidence in the first instance, and
that if any Senator desires that the question shall then be submitted
to the Senate it is his duty to submit it. So far as he is aware that
has been the usual course of practice in trials of persons impeached in
the House of Lords and in the Senate of the United States.
Thereupon Mr. Manager Benjamin F. Butler, seconded by Messrs. John A.
Bingham and George S. Boutwell, urged on behalf of the House of
Representatives, (a) that the Chief Justice might not make such
preliminary decision, and (b) that such decision having been made by
the Chief Justice the managers as well as any Senator might call for a
decision of the Senate. In presenting their views the managers quoted
at length from English precedents.
The Chief Justice, stating his position more fully, said:
The Chief Justice will state the rule which he conceives to be
applicable once more. In this body he is the Presiding Officer; he is
so in virtue of his high office under the Constitution. He is Chief
Justice of the United States, and therefore, when the President of the
United States is tried by the Senate, it is his duty to preside in that
body; and, as he understands, he is therefore the President of the
Senate sitting as a court of impeachment. The rule of the Senate which
applies to this question is the seventh rule, which declares that ``the
Presiding Officer may, in the first instance, submit to the Senate,
without a division, all questions of evidence and incidental
questions.'' He is not required by that rule so to submit those
questions in the first instance; but for the dispatch of business, as
is usual in the Supreme Court, he expresses his opinion in the first
instance. If the Senate, who constitute the court, or any Member of it,
desires the opinion of the Senate to be taken, it is his duty then to
ask for the opinion of the court.
Mr. Manager Butler having asked whether the right to ask the opinion
of the Senate would extend to a manager, the Chief Justice replied:
The Chief Justice thinks not. It must be by the action of the court
or a member of it.
The Senate having retired for consultation, Mr. John B. Henderson, of
Missouri, proposed an amendment to Rule VII which in effect struck out
all after the first sentence of the present draft of the rule and
inserted what is now the
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\1\ Second session Fortieth Congress, Globe Supplement, pp. 59-63;
Senate Journal, pp. 867-870.
\2\ Salmon P. Chase, of Ohio, Chief Justice.
Sec. 2085
second sentence. This amendment was agreed to, yeas 31, nays 19, after
the Senate had by a vote of yeas 20, nays 30, disagreed to the
following declaration proposed by Mr. Drake:
It is the judgment of the Senate that under the Constitution the
Chief Justice presiding over the Senate in the pending trial has no
privilege of ruling questions of law arising thereon, but that all such
questions should be submitted to a decision by the Senate alone.
The last sentence of the rule relating to method of voting was not
included by the above proceedings, and on April 1, 1868,\1\ when a vote
was about to be taken on a question of evidence, Mr. Drake insisted
that, under Rule XXIII, and in the absence of a provision in Rule VII,
the vote should be taken by yeas and nays.
But the Chief Justice decided:
Upon the question of order raised by the Senator from Missouri, the
Chair is of opinion that he may submit this question to the Senate
without having the yeas and nays taken, unless the yeas and nays are
demanded by one-fifth of the Members present.
On April 2, 1868,\2\ Mr. Drake proposed the following addition to the
rule:
Upon all such questions the vote shall be without a division, unless
the yeas and nays be demanded by one-fifth of the Members present or
requested by the Presiding Officer, when the same shall be taken.
When the proposition came up for action on the next day, on motion of
Mr. George F. Edmunds, of Vermont, the words ``or requested by the
Presiding Officer'' were stricken out, and then the amendment as
amended was agreed to without division.
Thus the rule attained its present form.
2085. The Presiding Officer during an impeachment trial sometimes
rules preliminarily on evidence and cautions or interrogates
witnesses.--In the impeachment trial of William W. Belknap, late
Secretary of War, the President pro tempore\3\ of the Senate presided.
On questions arising over the admissibility of testimony he usually
submitted the questions directly to the Senate for decision, without
expressing a preliminary judgment.\4\ In five instances, on questions
wherein the principles had already been passed on by the Senate, he
ruled.\5\ In two cases he ruled on questions not already determined by
the Senate, but announced that if counsel requested he would submit the
matter.\6\
2086. On February 13, 1805,\7\ in the high court of impeachment,
during the trial of the case of the United States v. Samuel Chase, one
of the associate justices of the Supreme Court of the United States, a
witness, John Basset, was testifying, when the following occurred:
The Witness. The court considered me a good juror, and I was sworn
accordingly. After the trial had been gone through, the jury retired to
their room. I informed the jury that I thought we should have the book
read through.
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\1\ Globe Supplement, p. 70.
\2\ Journal, pp. 874, 878; Globe Supplement, pp. 77, 92.
\3\ T. W. Ferry, of Michigan, President pro tempore.
\4\ First session Forty-fourth Congress, Record of Trial, pp. 189,
192, 195, 205, 208, 219, etc.
\5\ Pages 192, 211, 221, 222, 224.
\6\ Pages 236, 256.
\7\ Second session Eighth Congress, Annals, p. 222.
Sec. 2087
The President \1\ here stopped the witness, and informed him that it
was useless waste of time to relate what took place in the room of the
jury.
The witness, however, continuing the statement he had previously
begun, the President desired him to go on, if it were necessary for the
purpose of connecting the testimony he had to give; but to pass over
what occurred among the jury as briefly as possible.
2087. On April 1, 1868 \2\ in the Senate sitting for the impeachment
trial of Andrew Johnson, President of the United States, while Mr.
Manager Butler was examining a witness, the Chief Justice,\3\ who was
presiding, interposed and asked a question of the witness.
Also again, on April 2,\4\ the Chief Justice interrogated William E.
Chandler, a witness.
2088. An instance wherein a President pro tempore presiding at an
impeachment trial declined to entertain an appeal from his decision on
a point of order.
Rigid enforcement of the rule that decisions of the Senate sitting
for an impeachment trial shall be without debate.
On June 26, 1862,\5\ in the high court of impeachment, during the
trial of the cause of the United States v. West H. Humphreys, a
question arose as to the form in which the court should pronounce
judgment, and debate was going on, when Mr. Garrett Davis, of Kentucky,
was called to order by Mr. Benjamin F. Wade, of Ohio, who insisted that
the rule that ``all decisions shall be had by ayes and noes and without
debate,'' should be enforced.
The President pro tempore \6\ said:
The rule is very explicit, leaves no room for doubt that these
questions are to be decided without debate.\7\
Mr. Davis then proposed an appeal from the decision.
The President pro tempore declined to entertain the appeal.
The President pro tempore did not explain this decision, but when Mr.
John P. Hale, of New Hampshire, questioned it, Mr. O. H. Browning, of
Illinois, said:
I think an appeal can not be taken from the judgment of the
presiding officer of a court.
2089. The Senate elected a presiding o1ficer for the Swayne trial,
and gave him the powers of the President of the Senate for signing
orders, writs, etc.--On January 24, 1905,\8\ the President pro tempore
(William P. Frye, of Maine) in the Senate sitting in legislative
session, requested that he be relieved of the duty of presiding at the
impeachment trial of Judge Charles Swayne. Thereupon the Senate chose
Mr. Orville H. Platt, of Connecticut, as presiding officer for the
trial.
-----------------------------------------------------------------------
\1\ Aaron Burr, of New York, Vice-President and President of the
Senate.
\2\ Second session Forty-first Congress, Globe Supplement, p. 72.
\3\ Salmon P. Chase, of Ohio, Chief Justice.
\4\ Globe Supplement, p. 89.
\5\ Second session Thirty-seventh Congress, Globe, p. 2953.
\6\ Solomon Foote, of Vermont, President pro tempore.
\7\ See Rule XIV as framed for trial of Judge Chase. The language of
the entire rule suggests a question as to this interpretation. The
present Rule XXIII modifies this rule materially.
\8\ Third session Fifty-eighth Congress, Record, pp. 1289, 1291.
Sec. 2090
On the same day Mr. John C. Spooner, of Wisconsin, chairman of the
Committee on Rules, made a statement as follows:
Mr. President, the rules of the Senate governing the sessions of the
Senate when it is sitting in the trial of impeachments seems to draw a
distinction between the Presiding Officer of the Senate and the
presiding officer on the trial. Rule V provides:
``The Presiding Officer shall have power to make and issue, by
himself or by the Secretary of the Senate, all orders, mandates, writs,
and precepts authorized by these rules, or by the Senate, and to make
and enforce such other regulations and orders in the premises as the
Senate may authorize or provide.''
The forms of summonses and subpoenas are all signed by the Presiding
Officer of the Senate. In order to remove all possible question as to
who shall sign the mandates of the Senate, including subpoenas, I offer
the regulation which I send to the desk. * * *
The Constitution invests each House with the power, without limit, to
make its own rules of procedure. Under the Constitution the function of
trying impeachment cases devolves upon the Senate, and the provision of
the Constitution must be construed as authorizing the Senate to make
the rules which it may deem necessary for the proper discharge of all
of the duties and functions devolved upon it by the Constitution. The
Senate has, I think, within its power and with perfect propriety under
the circumstances, appointed a Senator to preside, using the language
of the rule to be, ``the presiding officer on the trial.'' That clearly
vests in him the functions, as I think, of passing upon the
admissibility of evidence and upon the various questions which may
arise in the course of the trial.
This question is one which must be determined at once, for a summons
is to be issued to Judge Swayne to appear, and it is important, of
course, that there shall be no doubt that the officer signing the
summons has the power to do so.
Mr. Spooner offered the following resolution, which was agreed to by
the Senate:
Resolved, That the presiding officer on the trial of the impeachment
of Charles Swayne, judge of the United States in and for the northern
district of Florida, be, and is hereby, authorized to sign all orders,
mandates, writs, and precepts authorized by the rules of procedure and
practice in the Senate when sitting on impeachment trials and by the
Senate.
2090. The Secretary of the Senate records proceedings in impeachments
as he records legislative proceedings.
The proceedings of an impeachment trial are reported like the
legislative proceedings.
Present form and history of Rule XIII of the Senate sitting for
impeachments.
Rule XIII of the ``Rules of procedure and practice in the Senate when
sitting on impeachment trials'' is as follows:
The Secretary of the Senate shall record the proceedings in cases of
impeachment as in the case of legislative proceedings, and the same
shall be reported in the same manner as the legislative proceedings of
the Senate.
This rule was framed in 1868,\1\ preparatory to the impeachment of
President Johnson.
2091. In an impeachment trial all preliminary or interlocutory
questions and all motions are argued not over an hour on a side.
The Senate, by order, may extend the time for the argument of motions
and interlocutory questions in impeachment trials.
In arguing interlocutory questions in impeachment trials the opening
and closing belong to the side making the motion or objection.
-----------------------------------------------------------------------
\1\ Second session Fortieth Congress, Senate Report No. 59; Senate
Journal, p. 813; Globe, p. 1568.
Sec. 2091
The Senate declined to sanction unlimited argument on interlocutory
questions in impeachment trials.
The rule limiting the time of arguments on interlocutory questions in
impeachment trials does not limit the number of persons speaking.
Present form and history of Rule XX of the Senate sitting for the
trial of an impeachment.
Rule XX of the ``rules of procedure and practice for the Senate when
sitting in impeachment trials'' is as follows:
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.
This rule dates from 1868, when the rules were revised preparatory to
the trial of President Johnson. The committee, of which Mr. Jacob M.
Howard, of Michigan, was chairman, reported \1\ the rule in this form:
XX. All preliminary or interlocutory questions and all motions shall
be argued by one person only on each side, and for not exceeding one
hour on each side, unless the court shall, by order, extend the time.
This rule was debated at great length and amended to its present form
on March 2.\2\ It was first objected by Mr. Charles D. Drake, of
Missouri, that there should be a provision giving the opening and
closing to the one making the motion or objection, and also dividing
the time. Mr. Roscoe Conkling, however, answered this satisfactorily by
saying that the committee had considered the question, and concluded
that the provisions would be unnecessary, since it was habitual for the
counsel making the motion or raising the objection to yield after
taking a portion of his time, and then conclude after his opponent. The
committee conceived that this would be the practice under this rule.
Mr. Frederick T. Frelinghuysen, of New Jersey, moved an amendment
striking out the provision limiting the argument to one person on each
side, which was agreed to without division. A motion by Mr.
Frelinghuysen to change the time limit from one to two hours was
disagreed to, yeas 20, nays 24, and a third amendment proposed by him,
to add at the end the words ``before the argument commences,'' was
disagreed to--yeas 10, nays 33.
Mr. James W. Grimes, of Iowa, proposed to strike out the rule
altogether, as contrary to the Senate's practice of unlimited debate,
and as an innovation on the practice of all preceding impeachment
trials. It was argued that interlocutory questions might be of the
greatest importance, and that the argument thus limited might be one on
which the result hinged. On the other hand, it was urged that
impeachment trials, notably in England, were often prolonged, and that
the Senate should provide against this at the outset. The motion to
strike out was disagreed to--yeas 19, nays 23.
So the rule was left in its present form.
-----------------------------------------------------------------------
\1\ Second session Fortieth Congress, Senate Report No. 59.
\2\ Senate Journal, pp. 241, 242, 814; Globe, pp. 1568-1580.
Sec. 2092
2092. On April 1, 1868,\1\ during the trial of President Johnson, a
question arose, and the Chief Justice \2\ said:
Senators, the Chair will state the question to the Senate. 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.''
The twenty-first rule provides:
``The case on each side shall be opened by one person. The final
argument on the merits may be made by two persons on each side (unless
otherwise ordered by the Senate upon application for that purpose), and
the argument shall be opened and closed on the part of the House of
Representatives.''
On looking at these two rules together, the Chief Justice was under
the impression that it was intended by the twentieth rule to limit the
time, and not limit the persons; whereas, by the twenty-first rule, it
was intended to limit the number of persons and leave the time
unlimited; and he has acted upon that construction. He will now, with
the leave of the Senate, submit to them the question: Does the
twentieth rule limit the time without respect to the number of persons?
Upon that question the Chair will take the sense of the Senate.
The question being put, it was decided in the affirmative nem. con.
The Chief Justice then said:
The Senate decides that the limitation of one hour has reference to
the whole number of persons to speak on each side, and not to each
person severally; and will apply the rule as thus construed.
2093. On April 27, 1876,\3\ during the proceedings in the trial of W.
W. Belknap, late Secretary of War, the counsel for the respondent moved
a postponement of the further hearing of the case until the first
Monday of the next December, and for the discussion of this motion Mr.
Matt H. Carpenter, of counsel for the respondent, asked that the Senate
make an order temporarily modifying the rule, so as to admit of two
hours on a side. This request was granted by the Senate by a vote of
yeas 48, nays 13, an order to that effect being offered and acted on at
the same sitting.
2094. In impeachment trials all orders and decisions of the Senate,
with certain specified exceptions, are by the yeas and nays.
During impeachment trials in the Senate the yeas and nays on
adjournment are procured by one-fifth and not by rule.
The orders and decisions of the Senate in impeachment cases are
without debate, unless in secret session.
Debate in secret session of the Senate sitting on impeachment trials
is limited by rule.
On the decision of the final question in an impeachment case, debate
in secret session of the Senate is limited to fifteen minutes to each
Senator.
Present form and history of Rule XXIII of the Senate sitting for
impeachment trials.
Rule XXIII of the ``rules of procedure and practice for the Senate
when sitting in impeachment trials'' provides:
All the orders and decisions shall be made and had by yeas and nays,
which shall be entered on the record, and without debate, subject,
however, to the operation of Rule VII, except when the doors shall be
closed for deliberation, and in that case no Member shall speak more
than once on one question,
-----------------------------------------------------------------------
\1\ Globe Supplement, p. 70.
\2\ Salmon P. Chase, of Ohio, Chief Justice.
\3\ First session Forty-fourth Congress, Senate Journal, p. 921;
Record of trial, p. 10,
Sec. 2095
and for not more than ten minutes on an interlocutory question, and for
not more than fifteen minutes on the final question, unless by consent
of the Senate, to be had without debate; but a motion to adjourn may be
decided without the yeas and nays, unless they be demanded by one-fifth
of the members present. The fifteen minutes herein allowed shall be for
the whole deliberation on the final question, and not to the final
question on each article of impeachment.
This rule dates from 1868,\1\ when a committee reported a revision in
preparation for the trial of President Johnson. The rule was debated on
March 2 \2\ and was amended in matters of detail, so it stood
practically in its present form as far as the last sentence, which had
not at that time been added.
On March 13,\3\ in the Senate as organized for the trial, Mr. Roscoe
Conkling, of New York, arose and said:
To correct a clerical error in the rules or a mistake of the types
which has introduced a repugnance into the rules, I offer the following
resolution by direction of the committee which reported the rules:
``Ordered, That the twenty-third rule, respecting proceedings on
trial of impeachments, be amended by inserting after the word `debate'
the words `subject, however, to the operation of rule seven.' ''
If thus amended the rule will read:
``All orders and decisions shall be made and had by yeas and nays,
which shall be entered on the record and without debate, subject,
however, to the operation of rule seven, except when the doors shall be
closed, etc.''
The whole object is to commit to the Presiding Officer the option to
submit a question without the call of the yeas and nays, unless they be
demanded. That was the intention originally, but the qualifying words
were dropped out in the print.
The order was agreed to without division.
The last sentence of the rule, ``the fifteen minutes herein
allowed,'' etc., was added on March 7, 1868, on motion of Mr. Charles
Drake, of Missouri, immediately before the Senate proceeded to
pronounce judgment in the case of President Johnson.\4\
On July 31, 1876,\5\ when the Senate sitting for the impeachment
trial of William W. Belknap, late Secretary of War, was about to
proceed to judgment, Mr. Hannibal Hamlin, a Senator from Maine,
proposed an amendment which would have stricken out the words ``except
when the doors shall be closed for deliberation.'' This amendment was
proposed in connection with one to Rule XIX, which would have abolished
secret sessions in impeachment trials. The Senate, by a vote of yeas
23, nays 32, declined to consider either amendment.
2095. In the Senate, sitting for impeachment trials, the doors may be
closed for consultation on motion put and carried.--On February 16,
1905,\6\ in the Senate, sitting for the impeachment trial of Judge
Charles Swayne, a question arose as to the admissibility of certain
evidence, and Mr. Joseph W. Bailey, a Senator from Texas, moved that
the doors be closed for deliberation, or, in case the motion should be
otherwise, that the Senate retire to its conference chamber.
A question arose as to the interpretation of the rule, and the
Presiding Officer said:
-----------------------------------------------------------------------
\1\ Second session Fortieth Congress, Senate Report No. 59.
\2\ Senate Journal, pp. 243, 244, 814; Globe, pp. 1588. 1589, 1602.
\3\ Senate Journal, pp. 824, 825, Globe Supplement, p. 6.
\4\ Senate Journal, p. 937; Globe Supplement, p. 408.
\5\ First session Forty-fourth Congress, Record of trial, p. 341.
\6\ Third session Fifty-eighth Congress, Record, p. 2720.
Sec. 2096
The rule is as follows:
``All the orders and decisions shall be made and had by yeas and
nays, which shall be entered on the record, and without debate,
subject, however, to the operation of Rule VII, except when the doors
shall be closed for deliberation, and in that case no Member shall
speak more than once on one question, and for not more than ten minutes
on an interlocutory question, and for not more than fifteen minutes on
the final question, unless by consent of the Senate, to be had without
debate.''
The Presiding Officer is of the opinion that the consent of the
Senate applies to the time during which a Senator may speak upon a
question, and not to the question whether the Senate may proceed in the
Senate Chamber as a court without closing the doors.
Mr. Bailey thereupon asked unanimous consent that the doors be
closed. There being objection, he made a motion.
The Presiding Officer said:
The Presiding Officer will submit the motion to the Senate. Will the
Senate order the doors to be closed for the purpose of deliberating
upon the question?
There appeared yeas 53, nays 18. So the doors were closed.
2096. Secret sessions of the Senate to discuss incidental questions
arising during an impeachment trial.--On May 14, 1876,\1\ in the
Senate, sitting for the impeachment trial of William W. Belknap, late
Secretary of War, the doors were closed and the galleries cleared,
while deliberation was going on as to the question of the jurisdiction
of the Senate to try a civil officer who had resigned and whose
resignation had been accepted. And the Senate continued to deliberate
with closed doors until the decision of the question, on May 29.
2097. On July 19, 1876,\2\ in the Senate, sitting for the impeachment
trial of William W. Belknap, late Secretary of War, it was ordered that
the floor and galleries be cleared, and that the doors be closed. The
session thereupon was held in secret, while determination was reached
as to certain propositions relating to the time of beginning the taking
of testimony, to the filing of a paper presented by counsel for
respondent, and to the propriety of continuing the trial at a time when
the House of Representatives was not in session.
2098. On the final question whether an impeachment is sustained, the
yeas and nays are taken on each article separately.
If an impeachment is not sustained by a two-thirds vote on any
article a judgment of acquittal shall be entered.
If the respondent be convicted by a two-thirds vote on any article of
impeachment the Senate shall pronounce judgment.
A certified copy of the judgment in an impeachment case is deposited
with the Secretary of State.
Discussion as to whether or not the Chief Justice, presiding at an
impeachment trial, is entitled to vote.
The reasons for eliminating from the Senate rules for impeachment
trials the words ``high court.''
Present form and history of Rule XXII of the Senate sitting for
impeachment trials.
-----------------------------------------------------------------------
\1\ First session Forty-fourth Congress, Senate Journal, pp. 933-947;
Record of trial, pp. 72-77.
\2\ First session Forty-fourth Congress, Journal of Senate, p. 954;
Record of trial, p. 172.
Sec. 2098
Rule XXII of the ``rules of procedure and practice for the Senate
when sitting in impeachment trials'' is as follows:
On the final question whether the impeachment is sustained, the yeas
and nays shall be taken on each article of impeachment separately; and
if the impeachment shall not, upon any of the articles presented, be
sustained by the votes of two-thirds of the Members present, a judgment
of acquittal shall be entered; but if the person accused in such
articles of impeachment shall be convicted upon any of said articles by
the votes of two-thirds of the Members present, the Senate shall
proceed to pronounce judgment, and a certified copy of such judgment
shall be deposited in the office of the Secretary of State.
This rule was framed in 1868,\1\ when a committee, of which Mr. Jacob
M. Howard, of Michigan, was chairman, reported a revision of the rules
in view of the approaching trial of President Johnson. As reported the
rule was as follows:
XXII. If the impeachment shall not be sustained by the votes of two-
thirds of the Members of said high court of impeachment present and
voting a judgment of acquittal shall be entered; but if the person
accused in such articles of impeachment shall be convicted by the votes
of two-thirds of the Members of such court present the court, by its
Presiding Officer, shall proceed to pronounce judgment, and a certified
copy of such judgment shall be deposited in the office of the Secretary
of State.
On motion of Mr. Frederick T. Frelinghuysen, of New Jersey, and
without division, an amendment was inserted \2\ at the beginning, in
the following words:
On the final question, whether the impeachment is sustained, the yeas
and nays shall be taken on each article of impeachment separately and;
Then Mr. Lot M. Morrill, of Maine, proposed an amendment \3\ so
changing the first clause of the rule that it would read:
On the final question, whether the impeachment is sustained, the yeas
and nays shall be taken on each article of impeachment separately, and
if the impeachment shall not be sustained by the votes of two-thirds of
the Senators present a judgment of acquittal shall be entered.
This proposition, by substituting the words ``Senators'' for ``high
court of impeachment,'' brought up the question as to whether or not
the Chief Justice would have a vote. Mr. John Sherman, of Ohio, said:
Now, if a Presiding Officer is elected by the Senate, either on
account of the sickness or absence or inability of the Vice-President
to preside, he would undoubtedly have a right to vote. The Presiding
Officer would undoubtedly have a right to vote, because he is not only
a Senator having a personal right to his seat as a Senator, but he is a
representative of a State, and that State would have a right to vote;
and his mere election as Presiding Officer would not disfranchise him
from voting.
Under these circumstances, when the President is to be tried, the
Constitution declares, the Senate still having the sole power to try
all impeachments, that the Chief Justice shall preside over that
tribunal. What does that mean? That he shall be here simply as a
figurehead? No, sir. In every case where a man is made the presiding
officer of any tribunal, of any convention, of any political body, it
necessarily implies the right to vote, unless that implication is
excluded by the instrument itself. There is no doubt whatever but that
the Vice-President of the United States could vote every day in our
proceedings but for one thing; and that is, that the Constitution
carefully excludes him from the right to vote except in case of a tie.
But who doubts that but for that single clause of the Constitution
which declares that the Vice-President of the United States shall not
vote except in case of a tie he could do it? Suppose the clause read
``the Vice-President of the United States shall be President of the
Senate;'' suppose it stopped there; would not the Vice-President have a
right to vote? The very implication drawn from
-----------------------------------------------------------------------
\1\ Second session Fortieth Congress, Senate Report No. 59.
\2\ Senate Journal, p. 243; Globe, p. 1585.
\3\ Senate Journal, p. 243; Globe, pp. 1585-1587.
Sec. 2098
the fact that he is the Presiding Officer of the Senate would give him
a vote; but it goes on and says, ``but shall have no vote unless they
be equally divided.'' The very fact that this language was used to
exclude him from the right to vote shows that in the absence of that
language he would have the right to vote.
And, sir, when the Chief Justice is substituted in the place of the
Presiding Officer of this body, without any exclusion from the right to
vote, without any exception made as against him, he is made a member of
this court, to participate in the proceedings of this court; and it
does seem to me, in the absence of all other precedents of exclusion or
constitutional provision, he would have a right to vote. I do not know
that the Chief Justice would take the same view of it or desire to
vote, but it does seem to me that the Constitution, by substituting
this high officer here as the Presiding Officer of this body, did not
intend to make him a mere instrument or medium to put a question to the
body, but intended to make him a part of the tribunal or court to try
the case.
Mr. Howard, of Michigan, said:
The amendment of the Senator from Maine adopts, in effect, the
language of the Constitution itself, as I understand it; and so far I
think it entirely proper to be adopted. I must, however, now and at all
times, so far as I can see my way, repel the idea that the Chief
Justice is a member of the so-called court of impeachment, or has any
right to vote during the deliberations of that court, or upon any
question arising during the trial. I do not propose to go into it
further now, although I see the gravity of the question, and have for
some time been entirely sensible of it.
I will say, however, before I take my seat, that if we regard the
analogies presented to us in the constitutional history of England, the
same result which I claim to be the truth here will be arrived at. The
House of Lords sit as a high court of impeachment. They are presided
over when thus sitting either by the Lord Chancellor or the Lord High
Steward; and the precedents are numerous and clear that the Lord
Chancellor, although thus presiding, or the Lord Steward thus
presiding, has no vote in the House of Lords in virtue of his
presidency of the body; but if he be a peer he has, in right of his
peerage, the right to vote; but it is put upon that ground, and that
ground only. As president of the body he has no right even to decide
questions where the body is equally divided.
Mr. Roscoe Conkling, of New York, referred to the important question
raised and suggested that, to avoid that question, the amendment be
modified so as to read ``members present'' ``instead of ``Senators
present.'' That would be the very Language of the Constitution.
Mr. Morrill finally yielded to that request and the modified
amendment was agreed to without division.
A little later the Senate recurred to Rule VII again, and after
discussion of the powers of the Chief Justice in presiding, determined
upon such amendment of that and other rules as to eliminate the words
``high court of impeachment'' wherever they occurred, the object
evidently being to remove all idea that the Chief Justice had any other
function than to preside.\1\ In fact, the Chief Justice did vote on an
occasion when the vote of the Senate was a tie,\2\ on March 31, but did
not vote in the final judgment.\3\
Mr. Peter G. Van Winkle, of West Virginia, then proposed \4\ an
amendment to the second clause so it should read as follows:
But if the person accused in such articles of impeachment shall be
convicted by the votes of two-thirds of the members of such court
present, the court shall proceed to ascertain what judgment shall be
rendered in the case, which judgment, being rendered, shall be
pronounced by the Presiding Officer, etc.
-----------------------------------------------------------------------
\1\ See Proceedings on Rule VII and on functions of the Senate
sitting for the trial. Section 2094 of this volume.
\2\ Senate Journal, pp. 868, 869.
\3\ Senate Journal, pp. 939-951.
\4\ Senate Journal, p. 243; Globe, p. 1587.
Sec. 2099
This was in view of the fact that the Constitution does not say that
the punishment shall necessarily extend to disqualification to hold
office. Mr. George F. Edmunds, of Vermont, suggested that the same
result could be attained by striking out the words ``of such court''
and ``by its Presiding Officer.'' Mr. VanWinkle accepted the amendment,
which was agreed to without division.
Mr. George H. Williams, of Oregon, next proposed to insert after the
words ``impeachment shall not'' the words ``upon any of the articles be
presented,'' and after the word ``convicted'' the words ``upon any of
said articles.'' \1\
The object of this amendment was to make it certain that a conviction
on one article, as on one count of an indictment, should be sufficient
for judgment, after the analogy of the criminal law. The amendment was
agreed to without division.
So the rule received its present form.
2099. In 1804 the Senate, sitting as a high court of impeachment,
considered and adopted rules for the trial.--On December 10, 1804,\2\
the stSenate, sitting as a high court of impeachment, took into
consideration the report of the committee appointed on November 30 to
prepare and report proper rules of proceedings, to be observed by the
Senate in cases of impeachments.
This report consisted of a series of rules, prescribing forms and
methods of procedure. On this day the high court agreed to a portion of
the rules, and then postponed the consideration of the remainder.
On December 24 the high court resumed consideration of the report,
and agreed to the remaining portion.
In the meanwhile, on December 14, action had been taken in accordance
with the rules agreed to on December 10.
2100. Where the special rules for impeachment trials are silent, the
general rules of the Senate are regarded as applicable.
At the Johnson trial the Chief Justice felt constrained to submit to
the Senate for decision a question of order affecting the organization.
At the Johnson trial the Chief Justice ruled that one point of order
might not be made while another was pending.
The Chief Justice ruled in the Johnson trial that debate must be
confined to the pending question.
Rule XXIII, prohibiting debate in open Senate sitting for an
impeachment trial, was held by the Chief Justice not to apply to a
question arising during organization.
Instance of an appeal from the decision of the Chief Justice on a
question of order arising during the Johnson trial.
In the Johnson trial the Chief Justice ruled that a proposed rule or
order should lie over for one day.
On March 6, 1868,\3\ while the Senate was organizing for the trial of
Andrew Johnson, President of the United States, after the Chief Justice
had taken the chair as presiding officer, and while the oath was being
administered to the Senators, an
-----------------------------------------------------------------------
\1\ Senate Journal, p. 243 , Globe, pp. 1587, 1588.
\2\ Second session, Eighth Congress, Senate Impeachment Journal pp.
510, 511.
\3\ Second session Fortieth Congress, Senate Journal, pp. 810, 811;
Globe, pp. 1696, 1697, 1698, 1700.
Sec. 2100
objection was made to the competency of Mr. Benjamin F. Wade, of Ohio,
to take the oath.
Discussion having arisen, Mr. Jacob M. Howard, of Michigan, submitted
a question of order.
The Chief Justice \1\ said:
The Senator from Connecticut is called to order. The Senator from
Michigan has submitted a point of order for the consideration of the
body. During the proceedings for the organization of the Senate for the
trial of an impeachment of the President the Chair regards the general
rules of the Senate as applicable and that the Senate must determine
for itself every question which arises, unless the Chair is permitted
to determine it. In a case of this sort affecting so nearly the
organization of this body the Chair feels himself constrained to submit
the question of order to the Senate. Will the Senator from Michigan
state his point of order in writing?
While the point of order raised by Mr. Howard was being reduced to
writing at the desk, Mr. James Dixon, of Connecticut, submitted as a
point of order whether a question of order such as was pending could be
raised.
The Chief Justice said: \2\
A point of order is already pending, and a second point of order can
not be made until that is disposed of.
Mr. Howard's question was then submitted in writing, as follows:
That the objection raised to administering the oath to Mr. Wade is
out of order, and that the motion of the Senator from Maryland, to
postpone the administering of the oath to Mr. Wade until other Senators
are sworn, is also out of order under the rules adopted by the Senate
on the 2d of March, instant, and under the Constitution of the United
States.
The Chief Justice announced that this question was open to debate.
Mr. Dixon having proceeded in debate, was discussing the competency
of Mr. Wade to participate in the trial, when Mr. John Sherman, of
Ohio, called him to order for not confining himself to the question
under consideration.
Thereupon the Chief Justice held:
The Senator from Ohio makes the point of order that the Senator from
Connecticut, in discussing the pending question of order, must confine
himself strictly to that question, and not discuss the main question
before the Senate. In that point of order the Chair conceives that the
Senator from Ohio is correct, and that the Senator from Connecticut
must confine himself strictly to the discussion of the point of order
before the House.
Mr. Dixon having proceeded, was again called to order by Mr. Howard,
who objected that no debate was in order under Rule XXIII of ``the
rules of procedure and practice in the Senate when sitting on
impeachment trials.'' This rule he quoted as follows:
All the orders and decisions shall be made and had by yeas and nays,
which shall be entered on the record, and without debate, except when
the doors shall be closed for deliberation, and in that case no Member
shall speak, etc.
The Chief Justice overruled the point of order, saying:
The twenty-third rule is a rule for the proceeding of the Senate when
organized for the trial of an impeachment. It is not yet organized; and
in the opinion of the Chair the twenty-third rule does not apply at
present.
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\1\ Salmon P. Chase, of Ohio, Chief Justice.
\2\ Globe, p. 1697.
Sec. 2101
Mr. Charles D. Drake, of Missouri, having appealed, the Chief Justice
put the question:
As many Senators as are of opinion that the decision of the Chair
shall stand as the judgment of the Senate will, when their names are
called, answer ``yea;'' as many as are of the contrary opinion will
answer ``nay.''
And there were yeas 24, nays 20; so the decision of the Chief Justice
was sustained.
2101. On April 11, 1868,\1\ in the Senate sitting for the impeachment
trial of Andrew Johnson, President of the United States, the Chief
Justice,\2\ in ruling on a question of order said:
The Chief Justice in conducting the business of the court adopts for
his general guidance the rules of the Senate sitting in legislative
session as far as they are applicable. That is the ground of his
decision.
2102. On April 14, 1868,\3\ in the Senate sitting for the impeachment
trial of Andrew Johnson, President of the United States, Mr. Charles
Sumner, of Massachusetts, proposed the following:
Ordered, In answer to the motion of the managers, that under the rule
limiting the argument to two on a side unless otherwise ordered, such
other managers and counsel as choose may print and file arguments at
any time before the argument of the closing manager.
Objection being made to the immediate consideration of the order, and
Mr. Sumner having demanded its consideration, the Chief Justice \1\
said:
The Chief Justice stated on Saturday that in conducting the business
of the court he applied, as far as they were applicable, the general
rules of the Senate. This has been done upon several occasions, and
when objection has been made orders have been laid over to the next day
for consideration.
2103. In the Johnson trial the Chief Justice admitted a motion to lay
a pending proposition on the table.--On April 13, 1868,\4\ in the
Senate sitting for the impeachment trial of Andrew Johnson, President
of the United States, an order relating to the final arguments in the
trial, was under consideration.
Mr. George H. Williams, of Oregon, moved that the resolution lie on
the table.
Mr. Charles D. Drake, of Missouri, said:
I raise a question of order, Mr. President, that in this Senate
sitting for the trial of an impeachment there is no authority for
moving to lay any proposition on the table. We must come to a direct
vote, I think, one way or the other.
The Chief Justice \1\ said:
The Chief Justice can not undertake to limit the Senate in respect to
its mode of disposing of a question; and as the Senator from Oregon
[Mr. Williams] announced his purpose to test the sense of the Senate in
regard to whether they will alter the rule at all the Chief Justice
conceives his motion to be in order.
2104. Instance wherein a Senator sitting in an impeachment trial was
excused from voting on an incidental question.--On May 15, 1876,\5\ in
the
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\1\ Second session Fortieth Congress, Globe Supplement, p. 147.
\2\ Salmon P. Chase, of Ohio, Chief Justice.
\3\ Second session Fortieth Congress, Senate Journal, p. 896; Globe
Supplement, p. 174.
\4\ Second session Fortieth Congress, Globe Supplement, p. 162.
\5\ First session Fortieth Congress, Senate Journal, p. 933; Record
of trial, pp. 72, 73.
Sec. 2105
Senate sitting for the impeachment trial of William W. Belknap, late
Secretary of War, a question arose as to the sufficiency of the
pleadings. After the arguments had been concluded, but before the
Senate had rendered a decision, Mr. James L. Alcorn, a Senator from
Mississippi, attended and took the oath prescribed for Senators sitting
in impeachment trials.
Having taken the oath, Mr. Alcorn rose and stated that he had been
unavoidably absent from the sessions of the Senate sitting for the
trial of impeachment heretofore held, and for that reason he asked to
be excused from voting upon the question now under consideration
presented by the pleadings.
Thereupon Mr. John Sherman moved that Mr. Alcorn, for the reasons
stated, be excused from voting on the question as presented by the
pleadings and now before the Senate.
The motion was agreed to.
2105. Instances of a call for a quorum in the Senate sitting for an
impeachment trial.
The Presiding Officer of the Senate sitting in an impeachment trial
directed the counting of the Senate to ascertain the presence of a
quorum.
On April 22, 1868,\1\ in the Senate sitting for the impeachment trial
of Andrew Johnson, President of the United States, during the argument
of Mr. Manager George S. Boutwell, the attendance after a recess was so
scanty that Mr. John Sherman, of Ohio, moved a call of the Senate under
the then existing Rule 16 of the Senate. The motion was carried and the
roll was called.
2106. On May 4, 1876,\2\ in the Senate sitting for the impeachment
trial of William W. Belknap, late Secretary of War, Mr. Aaron A.
Sargent, of California, commented on the fact that less than a quorum
were present, and moved a call of the Senate.
And thereupon the roll was called.
2107. On June 16, 1876,\3\ in the Senate sitting for the impeachment
trial of William W. Belknap, late Secretary of War, Mr. George F.
Edmunds, of Vermont, suggested that there was no quorum present, and
asked the President pro tempore to ascertain.
The President pro tempore \4\ said:
The Secretary will count the Senate.
The Chief Clerk having counted the Senators present, the President
pro tempore announced that the Senators present did not constitute a
quorum.
Thereupon, on motion of Mr. Edmunds, the Sergeant-at-Arms was
directed to request the attendance of absentees.
This having failed to secure sufficient attendance, the Senate
thereupon adjourned.
2108. Instances of temporary suspensions of the sitting of the Senate
in an impeachment trial.--On July 10, 1876,\5\ in the Senate sitting
for the
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\1\ Second session Fortieth Congress, Senate Journal, p. 921; Globe
Supplement, p. 274.
\2\ First session Forty-fourth Congress, Record of trial, p. 31.
\3\ First session Forty-fourth Congress, Senate Journal, p. 952;
Record of trial, p. 171.
\4\ T. W. Ferry, of Michigan, President pro tempore.
\5\ First session Forty-fourth Congress, Record of trial, p. 230.
Sec. 2109
impeachment trial of William W. Belknap, late Secretary of War, the
President pro tempore \1\ said:
The Chair is informed that there is a message to be submitted from
the House of Representatives. If there be no objection the proceedings
of the trial will be temporarily suspended for that purpose.
A message was received from the House of Representatives.
After which, the President pro tempore said:
The Senate resumes its session sitting for the trial of the
impeachment.
Later another message was received in the same way.\2\
2109. On July 19, 1876,\3\ in the Senate sitting for the impeachment
trial of William W. Belknap, late Secretary of War, Mr. William Windom,
a Senator from Minnesota, asked that the proceedings might be suspended
in order that he might make a report from the committee of conference
on the sundry civil bill.
The President pro tempore \4\ said:
If there be no objection proceedings will be suspended for that
purpose.
After some time spent in legislative session, the Senate resumed the
trial of the impeachment of William W. Belknap.
2110. Admission to the Senate galleries during the Johnson trial was
regulated by tickets.
The Senators occupied their usual seats during the Johnson trial.
On March 4, 1868,\5\ Mr. Henry B. Anthony, of Rhode Island, during
the proceedings preliminary to the trial of President Andrew Johnson,
proposed the following:
Ordered, That during the trial of the impeachment now pending no
person besides those who now have the privilege of the floor shall be
admitted to the galleries, or to that portion of the Capitol set apart
for the use of the Senate and its officers, except upon tickets to be
issued by the Sergeant-at-Arms. Such tickets shall be numbered, and
shall be good only for the day on which they are dated. The number of
tickets issued shall not exceed the number of persons who can be
comfortably seated in the galleries, leaving the steps and passages
entirely free. The portion of the gallery set apart for the diplomatic
corps shall be exclusively appropriated to it, and tickets of admission
thereto shall be issued to the foreign legations. Four tickets shall be
issued to each Senator, 2 tickets to each Member of the House of
Representatives, 2 tickets to the Chief Justice and to each justice of
the Supreme Court of the United States, 2 tickets to the chief justice
and to each justice of the supreme court of the District of Columbia,
and 2 tickets to the chief justice and to each judge of the Court of
Claims. Sixty tickets shall be issued by the Presiding Officer to the
reporters for the press, and the remaining tickets shall be distributed
under his direction.
The Sergeant-at-Arms, under the direction of the Presiding Officer of
the Senate, shall carry out these regulations, and, with the
approbation of the Committee on Contingent Expenses, shall be
authorized to employ such additional force as may be necessary for the
preservation of order.
On March 6 \6\ this proposition was referred to the select committee,
of which Mr. Jacob M. Howard, of Michigan, was chairman, and which had
in charge the forms of procedure and arrangements for the trial.
-----------------------------------------------------------------------
\1\ T. W. Ferry, of Michigan, President pro tempore.
\2\ Record of trial, p. 234.
\3\ First session Forty-fourth Congress, Record of trial, p. 282.
\4\ T. W. Ferry, of Michigan, President pro tempore.
\5\ Second session Fortieth Congress, Senate Journal, pp. 258, 259;
Globe, p. 1649.
\6\ Senate Journal, p. 277; Globe, pp. 1701, 1702.
Sec. 2110
On March 10 \1\ Mr. Howard reported the order with amendment. There
was considerable debate as to the propriety of making any rule, the
argument being that the public should not be excluded. On the other
hand it was urged that order and decorum during the trial were of great
importance, and that there should be arrangements which would secure an
audience disposed to preserve order.
Another question that was discussed at length was the provision for
seating Senators. At the Humphries trial the Senators had occupied
benches placed at the right and left of the presiding officer. Senators
who had sat during those proceedings objected to such arrangement as
uncomfortable and also as inconvenient because of difficulty in
hearing. It was pointed out that the attendance of Members of the House
was not likely to be large, as already in the preliminary proceedings
not over fifty had attended at any one time. Finally, on motion of Mr.
Anthony, an amendment was agreed to providing that the Senators should
occupy their usual seats during the trial. The order as amended was
agreed to as follows:
That during the trial of the impeachment now pending no persons
besides those who have the privilege of the floor and clerks of the
standing committees of the Senate shall be admitted to that portion of
the Capitol set apart for the use of the Senate and its officers,
except upon tickets to be issued by the Sergeant-at-Arms.
The number of tickets shall not exceed 1,000.
Tickets shall be numbered and dated, and be good only for the day on
which they are dated.
The portion of the gallery set apart for the diplomatic corps shall
be exclusively appropriated to it, and 40 tickets of admission thereto
shall be issued to the Baron Gerolt for the foreign legations.
Four tickets shall be issued to each Senator, 4 tickets each to the
Chief Justice of the United States and the Speaker of the House of
Representatives, 2 tickets to each Member of the House of
Representatives, 2 tickets each to the associate justices of the
Supreme Court of the United States, 2 tickets each to the chief justice
and associate justices of the supreme court of the District of
Columbia, 2 tickets to the chief justice and each judge of the Court of
Claims, 2 tickets to each Cabinet officer, 2 tickets to the General
commanding the Army, 20 tickets to the Private Secretary of the
President of the United States, for the use of the President, and 60
tickets shall be issued by the President pro tempore of the Senate to
the reporters of the press. The residue of the tickets to be issued
shall be distributed among the Members of the Senate in proportion to
the representation of their respective States in the House of
Representatives, and the seats now occupied by the Senators shall be
reserved for them.
On March 24,\2\ during the trial, Mr. John Sherman, of Ohio, proposed
the following:
Ordered, That after to-morrow the order of the 15th of March ultimo,
relative to admission to the gallery, be suspended until further order,
and that the Sergeant-at-Arms of the Senate shall take special care
that order shall be observed in the galleries during the trial of the
impeachment now pending, and he is hereby authorized to arrest and
bring before the Senate any person who violates the orders of the
Senate, and he shall take effective measures to secure admission to the
diplomatic gallery, the ladies' gallery, and the reporters' gallery to
those only who are entitled to admission thereto under the rules.
On April 2 \3\ the resolution was debated briefly. Mr. Sherman
intimated that the audiences had not been very orderly, and that the
people who would attend with open galleries would do as well.
On April 4 \4\ the proposition was debated, principally as to the
conduct of the
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\1\ Senate Journal, p. 288; Globe, pp. 1775-1782.
\2\ Senate Journal, p. 336; Globe, p. 2078.
\3\ Senate Journal, p. 364; Globe, p. 2233.
\4\ Senate Journal, p. 366; Globe, pp. 2237, 2238.
Sec. 2111
audiences, but was not acted on and apparently did not come before the
Senate again.
On May 5 \1\ a proposition to give seats in the gallery to the
members of the United States Medical Association was discouraged in
debate, and did not come to a vote, it being urged that they could seek
admission by tickets in the usual way.
2111. According to the best considered practice, the Senate sitting
for an impeachment trial does not obtain the use of Senate archives
without an order made in legislative session.--On April 4, 1868,\2\ in
the Senate sitting as a court of impeachment for the trial of Andrew
Johnson, President of the United States, Mr. Manager Benjamin F.
Butler, in the course of the production of testimony on behalf of the
House of Representatives, asked that the Executive Journal of the
Senate for a certain date might be produced, and he asked that the
Senate direct its production.
Mr. John Sherman, of Ohio, a Senator, moved that the Journal be
furnished.
The motion was agreed to.
2112. On April 15, 1868,\3\ in the Senate sitting for the impeachment
trial of Andrew Johnson, President of the United States, Mr. Benjamin
R. Curtis, of counsel for the respondent, moved for an order on the
proper officer of the Senate to furnish a statement of the dates of the
beginning and end of each session of the Senate.
The Chief Justice \4\ said:
The Chief Justice is of opinion that that is an application which can
only be addressed to the Senate in legislative session. If the court
desire it, he will vacate the chair in order that the President pro
tempore may take it.
Very soon thereafter, on motion of Mr. Reverdy Johnson, of Maryland,
``the Senate sitting for the trial of the President upon articles of
impeachment adjourned to 12 o'clock m. to-morrow.''
Thereupon the President pro tempore resumed the Chair, and in the
course of legislative business, on motion of Mr. Johnson, it was:
Ordered, That the Secretary of the Senate be directed to furnish to
the counsel for the President a statement of the beginning and end of
each executive and legislative session from 1789 to 1868.
2113. During the trial of President Johnson the Senate voted to
receive resolutions of a State constitutional convention on the subject
of the impeachment.--On March 25, 1868,\5\ while proceedings for the
impeachment of President Johnson were going on before the Senate, the
President pro tempore \6\ laid before the Senate resolutions adopted by
the constitutional convention of North Carolina, returning thanks for
the vigilance with which the House and Senate had proceeded in the
matter of impeachment.
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\1\ Globe, p. 2362.
\2\ Second session Fortieth Congress, Globe Supplement, p. 119.
\3\ Second session Fortieth Congress, Senate Journal, pp. 383, 901;
Globe Supplement, p. 194.
\4\ Salmon P. Chase, of Ohio, Chief Justice.
\5\ Second session Fortieth Congress, Senate Journal, p. 337; Globe,
p. 2084.
\6\ Benj. F. Wade, of Ohio, President pro tempore.
Sec. 2114
Mr. Willard Saulsbury, of Delaware, said:
I object, Mr. President, to the reception of that paper, and for this
reason: It purports to be addressed to the Senate of the United States,
and the Members of the Senate of the United States compose the court of
impeachment, and any communication addressed to the Members of that
court upon the pending subject is improper to be entertained by the
Senate, the Senate composing that court, as being an attempt to
exercise an influence upon the minds of the judges.
The President pro tempore put the question on the reception of the
resolutions, and the Senate voted to receive them.
The resolutions were then laid on the table.
2114. In the Swayne trial a Senator who had not heard the evidence
was excused from voting on the question of guilt.--On February 27,
1905,\1\ in the Senate sitting for the impeachment trial of Judge
Charles Swayne, as the vote was about to be taken on the first article,
Mr. P. C. Knox, of Pennsylvania, said:
Mr. President, having been prevented by illness from attending the
sessions of the Senate sitting in this impeachment trial at which the
testimony was produced, and also having been prevented by the effects
of the illness from reading the testimony, I ask that the Senate may
excuse me from voting upon this and all subsequent roll calls taken to
ascertain the judgment of the Senate upon the charges against the
respondent.
The Presiding Officer said:
Senators, you have heard the request of the Senator from Pennsylvania
[Mr. Knox]. Those who would excuse him from voting will say ``aye;''
opposed, ``no.'' [Putting the question.] The ``ayes'' have it. The
Senator from Pennsylvania is excused.
2115. The expenses of the Senate in the Swayne trial was defrayed
from the Treasury.--On January 24, 1905.\1\ the Senate, in legislative
session, agreed to this resolution:
Resolved, etc., That there be appropriated from any money in the
Treasury not otherwise appropriated the sum of $40,000, or so much
thereof as may be necessary, to defray the expenses of the Senate in
the impeachment trial of Charles Swayne.
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\1\ Third session Fifty-eighth Congress, Senate Record, p. 3468.
\2\ Third session Fifty-eighth Congress, Record, p. 1289; 33 Stat.
L., p. 1280.