_Speaker of the House of Representatives_.
Attest:
EDWARD McPHERSON,
_Clerk of the House of Representatives_.
IN THE SENATE, _March 4, 1868_.
The President _pro tempore_ laid before the Senate the following letter
from the Hon. Salmon P. Chase, Chief Justice of the Supreme Court of the
United States:
WASHINGTON, _March 4, 1868_.
_To the Senate of the United States_:
Inasmuch as the sole power to try impeachments is vested by the
Constitution in the Senate, and it is made the duty of the Chief Justice
to preside when the President is on trial, I take the liberty of
submitting, very respectfully, some observations in respect to the
proper mode of proceeding upon the impeachment which has been preferred
by the House of Representatives against the President now in office.
That when the Senate sits for the trial of an impeachment it sits as a
court seems unquestionable.
That for the trial of an impeachment of the President this court must be
constituted of the members of the Senate, with the Chief Justice
presiding, seems equally unquestionable.
The Federalist is regarded as the highest contemporary authority on the
construction of the Constitution, and in the sixty-fourth number the
functions of the Senate "sitting in their judicial capacity as a court
for the trial of impeachments" are examined.
In a paragraph explaining the reasons for not uniting "the Supreme Court
with the Senate in the formation of the court of impeachments" it is
observed that--
To a certain extent the benefits of that union will be obtained from
making the Chief Justice of the Supreme Court the president of the court
of impeachments, as is proposed by the plan of the Convention, while the
inconveniences of an entire incorporation of the former into the latter
will be substantially avoided. This was, perhaps, the prudent mean.
This authority seems to leave no doubt upon either of the propositions
just stated; and the statement of them will serve to introduce the
question upon which I think it my duty to state the result of my
reflections to the Senate, namely, At what period, in the case of
an impeachment of the President, should the court of impeachment be
organized under oath, as directed by the Constitution?
It will readily suggest itself to anyone who reflects upon the abilities
and the learning in the law which distinguish so many Senators that
besides the reason assigned in the Federalist there must have been still
another for the provision requiring the Chief Justice to preside in the
court of impeachment. Under the Constitution, in case of a vacancy in
the office of President, the Vice-President succeeds, and it was
doubtless thought prudent and befitting that the next in succession
should not preside in a proceeding through which a vacancy might be
created.
It is not doubted that the Senate, while sitting in its ordinary
capacity, must necessarily receive from the House of Representatives
some notice of its intention to impeach the President at its bar,
but it does not seem to me an unwarranted opinion, in view of this
constitutional provision, that the organization of the Senate as
a court of impeachment, under the Constitution, should precede the
actual announcement of the impeachment on the part of the House.
And it may perhaps be thought a still less unwarranted opinion that
articles of impeachment should only be presented to a court of
impeachment; that no summons or other process should issue except
from the organized court, and that rules for the government of the
proceedings of such a court should be framed only by the court itself.
I have found myself unable to come to any other conclusions than these.
I can assign no reason for requiring the Senate to organize as a court
under any other than its ordinary presiding officer for the latter
proceedings upon an impeachment of the President which does not seem
to me to apply equally to the earlier.
I am informed that the Senate has proceeded upon other views, and it is
not my purpose to contest what its superior wisdom may have directed.
All good citizens will fervently pray that no occasion may ever arise
when the grave proceedings now in progress will be cited as a precedent;
but it is not impossible that such an occasion may come.
Inasmuch, therefore, as the Constitution has charged the Chief Justice
with an important function in the trial of an impeachment of the
President, it has seemed to me fitting and obligatory, where he is
unable to concur in the views of the Senate concerning matters essential
to the trial, that his respectful dissent should appear.