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1 Opinion of Hon. Garrett Davis, of Kentucky, Filed under the Order of the Senate Sitting as a Court of Impeachment for the Trial of Andrew Johnson, President of the United States 1 (1868)

handle is hein.presidentsimp/opgttdv0001 and id is 1 raw text is: 





                         OF KENTUCKY,

Filed under the order of the Senate sitting as a Court of Impeachment for the Trial of
                   Andrew Johnson, President of the United States.

  The subject of impeachment is provided for
in the Constitution by several clauses, which I
will quote:
  -The House of Representatives shall have the sole
power of' impeachment.
  The Senatt shall have the sole power to try all
tmpeachments. When sitting for that purpose they
shall be on oath or affirmation. When the President
of the United States is tried the Chief Justice shall
preside; and no person shall be convicted without
the concurrence of two thirds of the members pres-
  The President, Vice President, and all civil offi-
cers of the United States, shall be removed from
office on impeachment for and conviction of treason,
bribery, or other high crimes and misdemeanors.
  Judgment in cases of impeachment shall not ex-
tend further than to removal from office and disqual-
ification to hold and enjoy any office of honor, trust,
or profit under the United States, but the party con-
vioted shall, nevertheless, be liable and subject to
indictment, trial, judgment, and Punishment accord-
ing to law.
  Our system of impeachment has not been
transferred from any other Government, nor
was its organization confided to Congress; but
the cautious statesmen who founded our Gov-
ernment incorporated it in and built it up as
part of the Constitution itself. They enumer-
ated its essential features and made it sui gert-
eris. 1. No person but civil officers of the
United States are subject to impeachment. 2.
The Senate is constituted the court of impeach-
ment. 3. The Chief Justice of the United
States is to preside over the court when the
President is under trial, and the Vice President
or President pro tempore of the Senate in all
other cases. 4. No conviction can take place
unless two thirds of the Senators present con-
cur. 5. No impeachment can be made but for
treason, bribery, or other high crimes and mis-
demeanors against the United States. 6. Judg-
ment of impeachment cannot extend to death
or other corporal punishment, or fine or im-
prisonment; but is restricted to removal from
and disqualification to hold office; but the
party convicted, nevertheless, to be liable and
subject to indictment, trial, judgment, and pun-
ishment according to law. The offenders, of.
fenses, court, and punishment are all distinctly
impressed with political features.
   But the prosecution has assumed two strange

and untenable positions in the course of this
trial. 1. That the Senate, in the performance
of the present most important office and duty,
is not a court. It is certainly not a legislative
body, nor exercising legislative powers; it is
not an advisory~council connected in a com-
mon function with the President. What, then.
is it ? Most of the States had previously to the
formation of the Constitution organized their
several tribunals to try cases of impeachment,
and by some theyhad been denominated courts
of impeachment, and all had invested them
with the powers and attributes of courts. They
were universally held to be courts. The Con-
stitution invests the Senate with the sole power
to try all impeachments. To try isto examine
a case judicially by the rules of law, and to
apply them to the legal evidence taken in the
trial, and to render the judgment of the law
upon the claims of the parties according to the
evidence. The phrases  to try,'  tried,
  convicted,'' conviction,' and 'judgment
are all used in the Constitution 'in connection
with impeachment and the proceedings in it.
Those words, in connection with their context,
establish, organize, and describe a court; and
as applied to the Senate necessarily constitute
it a court with jurisdiction to try all cases of
  The Senate now and for this occasion is a
court of impeachment for the trial of the Pres-
ident of the United States, and, like all other
courts, is bound by the law and the evidence
properly applicable to the case.
  The other novel position of the prosecution.
that on this trial the Senate is a law to itself,
is still more extraordinary. The power con-
ferred by the Constitution onithe Senate when
trying impeachments is limited and wholly
judicial, and the idea of combining with it any
legislative power whatever is not only without
any warrant, but is in direct hostility to the
fundamental principle of our Government,
which separates and makes mutually impassa-
ble all its legislative and judicial power. But
the position that the Senate, when trying an
impeachment, is a law to itself, is bound
by no law, may decide the case as it wills, is

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