Sworn and subscribed to before me, one of the Justices of the Supreme Court of the State of Nebraska at Lincoln on this 11th day of January, A. D. 1869. L. CROUNSE,

Associate Judge of the Supreme Court.
STATE OF
NEBRASKA 85.

I. Wm. H. James, Sec'y of the State of Nebraska, do hereby certify that I have carefully compared the foregoing copy of the oath of office of David Butler, Governor of Nebraska, with the original now on file in the Secretary's office, and that the same is a true and perfect copy of said oath of office.

In witness whereof I have hereunto

set my hand and affixed the great
Seal of the State of Nebraska.
Done at Lincoln this 14th day of
March, A. D. 1871.

WM. H. JAMES,
Secretary of State."

Now comes this other document, going to show that no official oath of David Butler, as Governor, has been put upon record since.

State of Nebraska, Secretary's Depart

ment.

I. Wm. H. James, Secretary of State for the State of Nebraska, do hereby certify that no official oath of David Butler, Governor of Nebraska, has been filed in this office, since I have been Secretary of State.

In witness whereof I have hereunto set my hand and affixed the great seal of the State of Nebraska.

Done at Lincoln this 14th day of March, A. D. 1871.

W. H. JAMES,
Secretary of State."

It seems from that, Mr. President, there is nothing appearing since the oath taken by Governor Butler, in 1869.

Manager PORTER. Mr. President. The counsel for respondent, if I understand correctly, have charged that there is no precedent for the position we have taken in this matter, in reference to the introduction of these resolutions. I have here the report of a

I

trial of impeachment in the State of Wisconsin, against Levi Hubbell. quote from page 70 of the report:

"Mr. KNOWLTON. I have two questions which I wish to submit to the Court; two legal propositions which, as counsel for defendant, I am not at liberty to waive.

1st. Whether this court has the constitutional jurisdiction to act upon charges of impeachment preferred by the Hon. The Assembly; and

2d. If it has such general jurisdiction, whether that jurisdiction must be confined to charges of offenses committed, or alleged to have been committed by the respondent, in or during the exercise of the office which he now holds or whether it can consider charges for offenses or crimes committed or alleged to have been committed during the existence of his term of office, either as a judge of a circuit or supreme court, after such term has expired."

Manager PORTER. Now it seems to me that in that trial, a similar position was taken to that taken by the counsel in this trial.

They allege that

this court has no right to look into acts committed in a former term of office. In the case cited. Mr. Dunn moved the following resolutions:

Resolved, That this court has the constitutional jurisdiction to try an impeachment preferred by the Hon. "The Assembly of the State of Wisconsin."

Resolved, That this court, on the trial of the impeachment now pending, have jurisdiction to inquire into offenses charged to have been committed, as well during the former term of office of Levi Hubbell, Judge of the 2d Judicial Circuit of this State, as into offences charged to have been committed during the present term of his said office."

In the decision of that question, the first of the resolutions introduced by Mr. Dunn was adopted unanimously; the second, adopted by a vote of 19 to 5. Now then, Mr. President, how are we to decide this question if we go into an argument upon the point

ernor, and as a consequence, they would turn him out of this tribunal,

Mr. MARQUETTE. In the case of Blount, in the United States Senate, the whole merits of the case were argued on the opening of the case on a plea put in by respondent that he was not then a Senator; "that, although true it is, that he, the said Wm. Blount, was a Senator of the United States from the State of Tennessee, at the several periods in the said articles of impeachment referred to; yet that he, the said Wm. Blount, is not now a Senator, and is not nor was at the several periods referred to, an officer of the United States; nor is he, in and by the said articles, charged with having committed any crime or misdemeanor in the execution of any civil office held under the United States, or with any malconduct in any civil office, or in the abuse of any public trust in the execution thereof.

Mr. ESTABROOK. The plea set forth in the Dunn case, which my friend alludes to, was one of general denial.

Mr. MARQUETTE. I am not going to say now, whether David Butler was elected or not. I would not so insult.the intelligence of the members of the Legislature, who were present and heard David Butler qualified. The records of your body show that to be true. The filing of the oath in the Secretary's office is simply directory, and that written proof may be preserved of the fact that the Governor has been duly qualified and inducted into office. The Managers of the House, in coming in at this early hour with this declaration, are proving too much. They would prove

that David Butler is not now Gov

tion over him. [Mr. Marquette again read the plea put in by Senator Blount.] In that case there was no contention as to who should open and close the argument.

Mr. ESTABROOK. Will the gentleman say who opened the case?

Mr. MARQUETTE. The Managers. But the counsel for the respondent offered no objection, perhaps not deeming the point of any magnitude. In this case, however, the respondent's counsel will yield no right to which they feel themselves entitled.

Mr. BRIGGS. I would ask the gentlemen managing the trial of the impeachment of the Governor, whether the whole question of law is not already presented without a resort to the expedient they bring up this morning? In their propositions they refer to acts alleged to have been committed by David Butler when Governor in 1869. Now, sir, in all courts of justice there are certain matters of which official notice is taken. For instance, the courts take official notice of the executive officers who administer the state government; of boundary lines, and other subjects of which there is written record.

man of intellect-a man to whom Story in his commentaries, and Rawle had awarded the credit of being high authority, although his speech was exparte. Judge Briggs, I think, is too shrewd a lawyer to say that a plea put in will give any defendant the right to open and close the argument. I wish the gentleman would continue to furnish his authorities. The decision in the Blount case referred to, supports us, and if that is to be taken in this case it gives to us the right of opening and closing. It seems to me, may it please this honorable Senate, that it is authority directly in point, and concludes this question.

The PRESIDENT. The Secretary will read the resolutions offered by the Managers. (Resolutions read).

Senator HASCALL. Mr. President, I move that the Senate retire 15 minutes for the consideration of the resolutions.

The motion was sustained, the following Senators voting in the affirmative: Brown, Cropsey, Gerrard, Hawke, Hascall, Hilton, Metz, Kennedy, Sheldon, Thomas, Tucker, Tennant and Mr. President. None in the negative.

The PRESIDENT. The Senate will retire 15 minutes for consultation.

AFTER RECESS

the Senate returned to the Senate Chamber.

The PRESIDENT. The Senate will come to order. Gentlemen the Senate have had under consideration the application submitted by the Managers and have adopted the following order:

Ordered. That the parties proceed to argue the exceptions in the case as ordered upon yesterday, and that the counsel for the respondant have the opening and closing."

Senator HASCALL. Mr. President, I move that the Senate adjourn until 2 P. M. Adopted.

The PRESIDENT. The Senate will take a recess until 2 P. M.

AFTERNOON SESSION.

At 2 P. M. the Senate was called to order. Present.-Senators Brown, Cropsey. Gerrard, Hawke, Hascall, Hilton, Metz. Kennedy, Sheldon, Thomas, Tucker and Mr. President. Absent.-Senator Tennant.

The PRESIDENT. Gentlemen, under the order adopted by the Senate, the Senate will hear and decide upon the exceptions filed by the counsel for the respondent, on the articles of impeachment. The chair will call the attention of the gentlemen to the 19th rule, which reads as follows: 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."

"All

Mr. BRIGGS. Mr. President, I hardly think that the rule should apply in the argument of this question.which involves the points at issue in this case. I think the time ought to be extended to the counsel on both sides. I intend to be brief myself, but before I proceed.I would like if the Senate would extend the time to two or three hours.

Mr. REDICK. Under that rule, if the articles were taken up one at a time, we would certainly have an hour on each, and when considered together we ought to have at least three hours on either side. I would be glad if the Senators would extend the time. Senator HASCALL. I move the time be extended one half hour.

(Motion stated by the chair.) Senator TUCKER. Mr. President, I move to amend so that they will be allowed three hours on each siue.

The PRESIDENT. The question is on the amendment of the gentleman from Johnson.

Senator THOMAS. I understand the motion applies to this particular question, and of course does not set aside the rule.

Senator HASCALL. My motion is that the time in this particular case be extended one half hour.

The PRESIDENT. The Chair requests the gentleman from Johnson to send up his motion in writing. The Secretary will please read the amend

ment.

The Secretary read the following amendment:

Ordered that in the argument of the exceptions, the Counsel and Managers have such time as they may deem necessary, not exceeding three hours each.

Roll was called, the following Senators voting in the affirmative: Brown, Cropsey, Gerrard, Hawke, Hilton, Thomas, Tucker and Mr. President. And the following voting in the negative: Hascall, Metz, Kennedy and Sheldon.

The PRESIDENT. On the motion, eight Senators voting in the affirmative, and four in the negative, the amendment is adopted. The question is now on the motion as amended.

Roll called, the following Senators voting in the affirmative: Messrs. Brown, Cropsey, Gerrard, Hawke, Hascall, Hilton, Metz, Sheldon, Thomas, Tucker and Mr. President. Mr. Kennedy voting in the negative.

The PRESIDENT. Eleven Senators having voted in the affirmative and one in the negative, the motion is adopted as amended.

MR. BRIGGS. Mr. President, it is hardly necessary for me to state to you that I am fully impressed with the importance of the work that has been assigned to me by my colleagues in opening this case; but without indulging in any introductory or pre

liminary remarks, I propose to proceed at once to the consideration of the exceptions which are interposed by our answer; and if the Senators will pardon me, I will take the last exception contained in the answer instead of in the order in which they are printed. I will read:

"And finally this respondent, having finally answered to the merits of all the allegations contained in the several articles, and specifications exhibited against him, comes now and submits to this honorable Court, whether he shall be held to answer any of said articles or specifications, and this respondent insists that he ought not to be held to answer the same, because the acts, doings and omissions complained of and alleged to have been committed, or omitted, prior to the commencement of his present term of office of Governor."

The reason why I desire to consider this exception first, is, that it really should have been put first in order in the answer; because if this exception is well taken, the other exceptions become immaterial. This exception covers the acts which are alleged to have been committed by the respondent prior to his present term of office, as also the acts alleged against him in his capacity as Commissioner, I certainly am thankful to Senators for having extended the time beyond the hour limited by the rules. I do not expect, however, on my part, nor the gentlemen associated with me, will consume the time which has been allotted to us. But we feel, in view of the importance of the question we have to consider, that we ought, at least, to have ample time to do justice to the subject as far as we are capable. The Constitution of this State, of course, must be our guide, and I will read two sections of the Constitution, which invest this Senate with power and jurisdiction to try the

same. I read sections 28 and 29, page 8:

"Sec. 28. The House of Representatives shall have the sole power of impeachment, but a majority of the members elected must concur therein. Impeachment shall be tried by the Senate; and the Senators, when sitting for that purpose, shall be on oath or affirmation to do justice according to law and evidence. No person shall be convicted without the concurrence of two thirds of the Senators.

"SEC. 29. The Governor, Secretary of State, Auditor, Treasurer, and Judges of the Supreme and District Courts, shall be liable to impeachment for any misdemeanors in office; but judgment in such cases shall extend only to removal from office, and disqualification to hold any office of honor, trust, or profit under this State; but the party convicted or acquitted, shall, nevertheless, be liable to indictment, trial and punishment, according to law. All other civil officers shall be tried for misdemeanors in office in such manner as the Legislature may provide."

We have filed, it is true, an answer to the merits of this case. We have answered each and every article and specification exhibited against us, for the reputation of the respondent, as a man, demanded this. We have answered to the law involved in each of these answers and specifications. It was his duty to do this because of the fact that he was Governor of the State of Nebraska. He would be unworthy of the high trust which has been imposed in him, did he not, when his right to hold the position was called in question, avail himself of the law to protect his office. He must not yield simply because he is assailed; he must, if retired, do so in obedience to law. It will be our duty to consider the nature of this impeachment. It seems to me that we must all of us, have a vague and indefinite idea upon this subject-an idea mainly derived from English precedent. We have

heard of the famous trial of Warren Hastings, that most celebrated trial, and having the most wide-spread notoriety of any State trial that has occurred in the history of any nation. From that case the position is sought to be deduced that a person can be impeached for misdemeanors or for high crimes just as well when he is out of office as when he is in. For we are told, Warren Hastings had ceased to be Governor General of India before the articles of impeachment were presented against him, and that is given as a precedent to show that in this country and this State any man who has once held an office, if he has committed misdemeanors in that office, can be called in to answer for them; although, at the time the House of Representatives prefers the articles against him and at the time of the trial, he be only a private citizen, now we stand here to controvert that position. While that was so in England it is not so in this country. And we propose to show, by the authorities, that the position I have taken cannot be successfully assailed. Then, again, the case of Lord Bacon is cited, where he had been impeached. Why is this? Because in England, as you gentlemen know, every subject of the realm was subject to impeachment whether an officer or not. The object of the proceeding was not for the purpose of removing a man from office, but the sole purpose, and the principal and primary object was punishment. And if you take the trouble to examine the cases, (I think the first one occurred in 1350, the case of Roger Mortimer), down to the case of Queen Caroline, in 1820, the principal object in view was to punish the offender. And the punishment inflicted was of the most extraordinary, and sometimes, the most severe character.