delivered the following dissenting ©pinion.:
The communication of Governor Eeed states a case purporting to be the case made by the record of proceedings ©£ the Senate organized for. the trial of his impeachment.
The casé as found in the journal of the Senate does not differ essentially in any legal aspect from that stated by Mm.
The question presented is, what is the effect of the action taken by the Senate and Assembly upon the impeachment by the Honorable the Assembly, which was lately pending before the Senate, upon the personal and political rights of ©overnor Eeed, and the political rights of the Legislature and the people ?
The office and purpose of the process of impeachment, as was well stated by one of the counsel who appeared in behalf of the Lieutenant-Governor, is to provide that the State may not be degraded by a delinquent officer; and as well, as was stated by other counsel, that in this process neither the State nor any citizen should be deprived of any lawful Eight by the action of any branch of the government.
It was well urged that this court had no authority to sit :la review of or to reverse or nullify the action or proceedings- of the Senate. But it was not well said, in a legal sense, that the Senate was a body having a superior jurisdiction, because its powers comprehended a broader and more elevated plane, untrammeled by the severe rules and axioms of the common or statute law. If this be true, the modern theories of government and the forms of civil governments framed in the later periods, are but solemn complicated frauds, machines for the amusement and the impoverishment ©i the people. If all political and judicial supervisory power ,is lodged in one body of men, notwithstanding the establishments which all peoples have so reverently organized snder written Constitutions, which in terms divide the *311powers of government into several departments of magistracy, supposed to be created to perform the offices of adjustments and balances, then are such several departments mere cheats and shams, baubles and play-tkings invented to delude and ensnare.
If this be so, what need of any other department than a single body of men, or indeed a single human being, covered with tinsel, whose “ ambrosial locks ” and imperious nod may dispense all power and all justice, and command the obedience of all other men ; a government fashioned after that of heaven itself, but whose Mentor is a mere piece of crumbling pottery %
On the other hand, the Senate, created by the ■ written law of the people, like any other department or fraction, has such authority as is conferred by the law. It has not been supposed to be a tribunal higher than the executive or judicial branches of government. As a judicial body, it can act only upon the request of another branch called the Assembly. It has judicial jurisdiction of but a single proceeding. It cannot reverse or set aside the judgment of the Supreme Court or of a Justice of the Peace* It may, if the Assembly complain and prove, dismiss our members for violation of law, but it cannot prescribe our judgments. Neither department is utterly independent of .or “above” the other. The Legislature, by the repeal of a law, may take from the courts the power to act in a given case defending upon the existence of the repealed act, but it cannot deprive the courts of the power to administer the existing law. It may pass an unconstitutional act, and no power can prevent its. action, but it cannot enforce it, nor will the courts permit its enforcement; nor can the Legislature, enforce any law without the aid of the judicial tribunals1— neither is superior, neither is inferior.
The remarks addressed to the court by counsel concerning the higher or supervisory character of the branches of the Legislature, as judicial tribunals of which the courts may *312stand in peculiar awe, cannot be considered otherwise than as an argument that the proceedings of the Senate in such capacity were beyond the control of any other tribunal.. This is not a question in the consideration of the matter now under examination.
The simple question is, what is the necessary legal effect and result of the action of the Senate and Assembly upon the impeachment and trial of the Governor ? I may further remark that the proceedings of the Senate in this matter are, unquestionably, beyond the control of this court, even as the proceedings of the court are beyond the control of the Senate. The respect which each body owes to ‘ itself precludes the possibility of any interference by it with the action of the other, or any invasion by either with the jurisdiction of the other. The final action of the Senate is to be examined only for the purpose of ascertaining what action it has taken and what results legally flow from such action, to the end that such results may be declared. And I venture to declare that this final action must he examined with reference to the law governing the powers of the actor,, for, so far as the rights of others are concerned, even a legislative or judicial body cannot violate the law so as to deprive the people or any one of them of rights intended to-be secured by law, without abrogating the principle underlying the whole fabric of republican institutions, that governments are instituted among men for the protection of men’s rights ; and the courts are organized as integral parts of the government for the purpose of enforcing this protection.
The house of Assembly impeached the Governor, and .by virtue of the Constitution he stood bereft at once of the Executive function, which at once devolved upon the Lieutenant-Governor. The Governor yielded, and pleaded to the charges.
The- Senate by its first rule, its law adopted for the purposes of the trial, resolved to continue in “session from day *313to day, Sundays excepted, until final judgment shall be. rendered.”
The Assembly declared itself not ready to prove the charges, by reason of the absence of testimony and witnesses».
The Senate, by a vote of eleven in the negative to nine, in the affirmative, rejected an order proposed by one of its members “ that the Senate, sitting as a High Court of Impeachment, do now adjourn in accordance with the concurrent resolution adopted by the Senate and Assembly for the adjournment of the Legislature.”
The Senate thus refused to postpone the trial as requested by the Assembly, and thus practically repeated the rule to proceed from day to day until final judgment.
The Governor demanded a trial, and protested that the trial should not be postponed to a time beyond the expiration of his term of office, and insisted that such postponement not only -would deprive him of his right to a trial and his right to be heard in his defence, which was secured to • him by the terms of the Constitution, but would deprive the Senate of the power to try him, as he would be out of. office by the constitutional limitation of his term before the ■ next meeting of the Legislature, and the power of the. Senate, therefore, to give judgment would be gone; such postponement would leave nothing upon which a judgment., could operate. Whereupon the Assembly not proceeding, with the trial, the Senate sitting for the trial adjourned, and the Senate and Assembly forthwith adjourned without day..
Now the sole question is, what is the legal result and the-legal effect upon the rights of all the parties affected ? 1 cannot avoid the question by declining to answer upon the ground that the court cannot determine the regularity or review the action of the Senate in its judicial capacity. I would not decline such interference whenever it should be demanded from any source. Has the Senate taken such action that as to itself, and to Gov. Reed, and to the proeeed*314ing, it must necessarily take any further action in the ease, to bring it to a termination ? Is its power over the case exhausted? If I understand the majority of the court, they decline to interpret this action of the Senate; and then, I think, they do proceed to construe it, differing with me as to our duty to declare our opinion of its legal effect.
They conclude that the proceedings had by the Senate were not final until so declared by that body, while my conclusions are that the action taken was final as to result and effect; and if the Senate consider the matter again it should come to the same conclusion, uninfluenced, however, by our opinions in the matter of its duty, of which it alone will judge. - ■
I have had neither time nor inclination, nor is it material in my judgment, to comment upon the various authorities, legal and historical, relating to impeachment proceedings, upon the legal effect of the prorogation or dissolution of the British Parliament, for, according to the view I take of the case, I may agree consistently with the argument of the learned counsel who responded to the counsel of Gov. Reed. I deal only with the case presented and its peculiar circumstances.
I conceive that the analogy between the qualities and organization and powers of the House of Lords, and those of the Senate of this State, is utterly wanting in at least two important particulars. The points of departure may be discovered in the following statement: ■
1. The Senate in conjunction with the Assembly may adjourn and thus dissolve their session, and may thus cease to act and deprive themselves of the power to act in a legislative or judicial capacity, of their own volition.
The House of Lords is a1 court in its fundamental existence, having all the incidents and jurisdiction of. a judicial tribunal at the common law; having power to try not only political but other offences, and to review the judgments and proceedings of all other courts; its judicial existence cannot *315be divested or destroyed by its own action; it cannot- dispose of cases before it by its dissolution or adjournment .; it cannot dissolve itself; like all common-law courts, its cases remain before it until it takes affirmative action; it cannot terminate its own sessions by adjournment, but only by tbe command of the sovereign, and the sovereign cannot dismiss causes from its jurisdiction. Hence the prorogation or dissolution of the Parliament, being done in virtue of the royal ■ command, a power not to be resisted in that respect, does not. divest it of jurisdiction over pending causes, and an impeachment, being a proceeding against the person, survives every accident save the death of the accused. (I understand this to be the law of England, and I think that the death of the accused destroys from that moment all jurisdiction of the House of Lords or other criminal courts over the proceeding, and that such proceedings as were pending are from that moment abated.) -
2. The impeachment before the House of Lords is a proceeding against the citizen and peer in his individual- capacity for offences committed either in his official or personal cai ■ pacity. The trial is the trial of an offender, and the judgment is that of a court, the highest in the kingdom, whose process issues to enforce its judgments, even to the taking of the life of the person convicted. It tries and convicts of murder and of larceny upon an impeachment, and as an appellate court it.tries the rights of liberty and property, and., pronounces and enforces its judgments and decrees at law- and in equity. ■
The Senate can judicially try only upon impeachment, and it can try, not the citizen for commiting crime, but only an officer, as such, for the sole purpose of deposition from . his office and eligibility. • Its judgments can be enforced only by means of judicial process from the courts of law,-construing and acting upon the judgment of the Senate-as > upon a law of the State. '
One deposed from office by the judgment of the Senate *316may be kept from office only by. the courts, the power of the Senate being exhausted by the rendition of its judgment. But the judgment of the Senate even will not be enforced by the courts, if the judgment be not authorized by the law of the land, of which the courts cannot refuse to determine.
The Senate .must have jurisdiction of the officer or it. cannot try him. If the Senate postpone the trial to a day when the officer ceases to exist, it doth forthwith postpone and divest itself of jurisdiction over the matter charged, of power over the officer, of the power to render a judgment, and there is no other logical sequence, in my judgment, than that it postpones the case out of its jurisdiction, and so there is nothing further upon which the Senate or court can: operate. In other words, the case is dismissed, gone out of existence so effectually that it cannot breathe again ; no power can restore it, and the accused is discharged from the custody of the court.
It cannot be said with any degree of plausibility that the constitutional provision, that the officer impeached shall be “ deemed under arrest and disqualified from performing any of the duties of the office until acquitted by the Senate,” contemplates an acquittal only by a vote of “ not guilty.”
An acquittal, as I understand it, is a discharge by virtue of any action of the Senate whereby it refuses expressly or otherwise further to entertain the case or act upon it, or which places the cause beyond its reach, and by which it has no longer any power or authority to render a judgment upon the guilt or innocence of the officer. ,
The Senate has already established this as the correct interpretation, in the case of the impeachment of a high judicial officer of this State, by its vote that the prosecution be discontinued and the case dismissed. Upon this the officer-resumed, without question, the duties of his office. If the constitutional provision referred to. contemplates a vote of ec. not guilty,” or any judgmentupon the merits of the charges, *317then is the judge of the Sixtli Circuit still suspended, and incalculable mischief and wrong done to the people by his subsequent unauthorized action. I am of the opinion^ and I submit that any action of the tribunal in question which precludes a further proceeding in the case pending before it, necessarily terminates the case as effectually as though it were dismissed in express words. It puts an end to the case absolutely, and necessarily discharges the party from the. arrest.
The right to a trial on the part of the accused is -as sacred as the right to try on the part of the accuser.
The power to suspend and postpone the trial and to resume it depends upon the jurisdiction. The right to arrest and suspend from office depend upon the power to give a trial and to convict or acquit. The Constitution contemplates a trial, and the power to try once gone, all the consequences of the accusation cease. A refusal to try is a refusal to convict. '
"Without denying the power claimed on the part of-the House of Lords to proceed at its next session after a dissolution of the Parliament and to conclude any business begun and not concluded, and not denying the power of the Senate to adjourn and postpone the trial of an impeachment to a day when it may proceed to try the officer accused, it is my judgment that the postponement to a day when it will have no jurisdiction of the officer, is an absolute dismissal of the mattor from the further consideration of the Senate, and a discharge of the accused must follow as a matter of law.
So concluding upon the premises stated, I must, upon my convictions of duty, say that, in my opinion, Governor Reed has the right officially to solicit the opinion of the court, whenever, after the adjournment of the Legislature, he saw tit to do so; that he had a lawful right after such adjournment to resume the power and proceed to the discharge of the duties pertaining to the Executive Department whenever he saw fit. Yet it was wise to address the constitutional *318advisers of the Executive upon the matter before resorting to any measure which would have disturbed the peace of the community.
As my brethren have come to other conclusions as to their duty '; have formed other opinions as to the status of the proceeding in question, or that the Senate alone can determine the effect of its action by an express declaration, while I regret to be obliged to differ from them, I am equally obliged, out of respect to the law, cheerfully to acknowledge that my conclusions are not legitimate, for so the court decides. And I respect its opinions, as all good citizens should, notwithstanding any differences of private judgment.