my pleasure." I venture to say before the enlightened bar of public opinion in America, by these words incorporated in his answer, the President is as guilty of malfeasance and misdemeanor in office as ever man was guilty of malfeasance or misdemeanor in office since nations began to be upon the earth. What! That he will suspend all executive officers of this Government at his pleasure, not by force of the tenure-of-office act, to which he himself refers, and which he says is void and of no effect, but by force of the Constitution of the United States; and that, too, he adds, while the Senate of the United States is in session! What does he mean by it? Let the Senate answer when they come to vote on this proposition for the extension of time. Does he mean by it that he will vacate the executive offices and not fill them? Does he mean by it that your money appropriated by your laws for carrying on and administering the Government shall remain locked in the vaults of your Treasury, and shall not be applied as your law directs? Or does he mean by it that he will repeat what he has already done in the presence of the Senate, and in violation of the laws, that he will remove without the consent of the Senate, and he will appoint while the Senate is in session without its advice or consent, just such persons as will answer his own purposes? Is that what he means? If he does it is a very easy method of repealing the Constitution of the United States.

The appointing power is "by and with the advice and consent of the Senate." The power to fill vacancies under the Constitution is in the President only as to such vacancies as may happen during the recess of the Senate, and so the Constitution reads. But, according to the logic set out in this elaborate answer, to support which the President wishes thirty days of time for preparation, he is to vacate every executive office of the United States at his own pleasure, in the presence of the Senate, without its consent while they are in session, and fill it at his pleasure ad interim even while they are trying him. If this be permitted, and if his successors should follow his bad example, I ask the Senate to deliberate, to consider whether the time would not soon come, if that example were persisted in and followed, that not a single executive office in America would be filled by any man "by and with the advice

and consent of the Senate;" but, on the contrary, every such office would be filled without the advice or consent of the Senate.

I admit, sir, it is a time-honored rule of the common law, the growth of centuries, the gathered wisdom of a thousand years, that the accused has the right to a speedy and an impartial trial. I claim that the people also have a right to a speedy and impartial trial, and that the question pending here touches in some sort the right of the people. In their name we demand here a speedy and impartial trial. If the President is not guilty, we ask in behalf of the country that he shall be declared not guilty of the offenses with which he stands charged. If it be the judgment of the Senate that he has power thus to lay hands upon the Constitution of the country and rend it in tatters in the presence of its custodians, the sooner that judgment is pronounced the better.

In every view of this case, in the light of the answer to which we have listened, I feel myself justified in saying that the public interests demand that this trial shall proceed until, upon the solemn oath of the accused made at this bar, it shall appear that he cannot proceed on account of the absence of witnesses material to him, nor until he states what he expects to prove by them; because I venture to say that he can make no showing of that sort which we are not ready upon the spot to meet by saying we will admit that the witnesses will swear to his statement, and let him have the benefit of it. Nearly all the testimony involved in this issue is documentary. Much of it is official. Enough of it, I might say, is official in its character to justify the trial to proceed without further inquiry into the facts.

But be that as it may, although they did not request us to do so, although they had no right to demand it of us, we have taken pains to notify the counsel for the accused of the witnesses that we propose to call, the witnesses we have subpoenaed, so that they might prepare to meet them; and it will occur to the Senate as this trial progresses that they have as much time for preparation by the end of that day when the case on the part of the Government of the United States shall be closed as we have. We make no boast of any superior preparation in this matter. We desire simply to discharge our duty as best we can. We assume no superiority to the counsel, as was intimated by the gentleman who last spoke, [Mr. Stanbery ;] but we desire simply to discharge our duty here and to discharge it promptly and to discharge it faithfully, and we appeal to the Senate to grant us the opportunity of doing so, so that justice may be done between the people of the United States and the President, that the Constitution of the United States which he has violated may be vindicated, and that the wrongs which he has committed against an outraged and betrayed people may be speedily redressed. Mr. HENDERSON. Mr. President, I propose an order which I send to the Chair. The CHIEF JUSTICE. The Secretary will read the order.

The Chief Clerk read as follows:

Ordered, That the application of the counsel for the President to be allowed thirty days to prepare for the trial of the impeachment be postponed until after replication filed.

Mr. Manager BUTLER. Mr. President, I should like to call the attention of yourself and the Senate to the position in which that would place the Managers, and I beg to express the question of time shall be settled now. desire on the part of the Managers that this If a replication is needed at all, I think I can say for my associates that it will be the common and formal replication, the sic similiter of the profession, the simple joining issue upon this answer, and therefore for this purpose it may be considered as filed.

We shall have to be ready at all hazards tomorrow to go on with this case, with the uncertainty of having the court or the Senate—I beg pardon for the word "court"-give thirty or more days' time in which the counsel may be prepared. In other words, we shall be obliged, under the high sense of duty which is pressing upon us, to get ready by day or by night, as the case may be, and then with entire uncertainty as to whether the Senate may or may not grant further time. I think I can say that upon this question we agree with the counsel for the defense that it is better for all that it be settled I know I speak for the Managers. I speak for the House of Representatives when I say it is better to have this point settled now. Our subpoenas are out; our witnesses are being summoned. We want to know when to bring them here. Fix a day; tell us when we can come here certain, and we will be here. That is all we desire, sir; and therefore I trust gentlemen will fix at this time the hour and the day when this trial shall certainly proceed, the act of Providence preventing notwithstanding.

now.

The CHIEF JUSTICE. The question is on the order moved by the Senator from Missouri, [Mr. HENDERSON.]

Mr. TRUMBULL. I ask for the yeas and

nays.

The yeas and nays were ordered; and being taken, resulted—yeas 25, nays 28; as follows:

YEAS-Messrs. Anthony, Buckalew, Cattell, Cole, Dixon, Doolittle, Edmunds, Fessenden, Fowler, Frelinghuysen, Grimes, Henderson, Hendricks, Johnson, McCreery, Morrill of Maine, Norton, Patterson of Tennessee, Ross, Saulsbury. Sherman, Sprague, Trumbull, Van Winkle, and Vickers-25.

NAYS-Messrs. Bayard, Cameron, Chandler, Conkling, Conness, Corbett, Cragin, Davis, Drake, Ferry, Harlan, Howard, Howe, Morgan, Morrill of Vermont, Morton, Nye, Patterson of New Hampshire, Pomeroy, Ramsey, Stewart, Sumner, Thayer, Tipton, Willey, Williams, Wilson, and Yates-28. NOT VOTING-Mr. Wade-1.

So the order proposed by Mr. HENDERSON was not agreed to.

Mr. HOWARD. Mr. President, I now move

that the motion of the counsel for the accused do lie on the table.

Mr. DRAKE. Mr. President, I rise to a question of order.

The CHIEF JUSTICE. The Senator will state his question of order.

Mr. DRAKE. That no motion to lay a proposition by the counsel for the defense, or one made by the Managers on the part of the prosecution, upon the table, can, under the rules of the Senate, be entertained, but that the Senate must come to a direct vote upon the proposition.

The CHIEF JUSTICE. The Chair is of opinion that the point of order is well taken, and that the motion of the Senator from Michigan, that the proposition of the counsel for the accused lie on the table, is not in order. Several SENATORS. Question, question. Mr. JOHNSON. Mr. Chief Justice, what is the question?

The CHIEF JUSTICE. The question is on the motion of the counsel for the accused, to be allowed thirty days for preparation.

Mr. DRAKE. On that question I ask for the yeas and nays.

The yeas and nays were ordered; and being taken, resulted-yeas 12, nays 41; as follows: YEAS-Messrs. Bayard, Buckalew, Davis, Dixon, Doolittle, Hendricks, Johnson, McCreery, Norton, Patterson of Tennessee, Saulsbury, and Vickers-12. NAYS-Messrs. Anthony, Cameron, Cattell, Chandler, Cole, Conkling, Conness, Corbett, Cragin, Drake, Edmunds, Ferry, Fessenden, Fowler, Frelinghuysen, Grimes, Harlan, Henderson, Howard, Howe, Morgan, Morrill of Maine, Morrill of Vermont, Morton, Nye, Patterson of New Hampshire, Pomeroy, Ramsey, Ross, Sherman, Sprague, Stewart. Sumner, Thayer, Tipton, Trumbull, Van Winkle, Willey, Williams, Wilson, and Yates-41.

NOT VOTING-Mr. Wade-1.

The CHIEF JUSTICE. On this question the yeas are 12 and the nays are 41. So the application for thirty days for preparation is denied.

Mr. SHERMAN. I move that the Senate sitting for this purpose adjourn until to-morrow at one o'clock.

Mr. EVARTS. Mr. President

Mr. SHERMAN. Certainly. I withdraw the motion.

Mr. EVARTS. I now, Mr. Chief Justice and Senators, move, in behalf of the President and in the name of his counsel, that he be allowed (upon the application which we have made and in which we have named thirty days as a reasonable time) a reasonable time after the replication shall have been filed, to be now fixed by the Senate in their judgment. Mr. JOHNSON. What time is that? Mr. STANBERY. Such time as the Senate shall fix.

The CHIEF JUSTICE. reduce his motion to writing.

The counsel will

Mr. EVARTS. I will state it. I move that on the application we have made, in which we have named thirty days as a reasonable time, there now be allowed to the President of the United States and his counsel such reasonable time for preparation for trial, after the replication shall have been filed, as shall now be fixed by the Senate.

The CHIEF JUSTICE. The counsel will reduce his motion to writing. Does the Senator from Ohio withdraw his motion to adjourn?

Mr. SHERMAN. Yes, sir; but after the motion is reduced to writing I will renew it.

Mr. JOHNSON. Mr. Chief Justice, is the motion proposed to be submitted by one of the counsel for the President of the United States

before the Senate now?

The CHIEF JUSTICE. It is not before the Senate until it has been reduced to writing. Mr. JOHNSON. I thought it had been so reduced.

The CHIEF JUSTICE. It has not.
Mr. EVARTS. It is now.

The CHIEF JUSTICE. The Clerk will report the order.

The Chief Clerk read as follows:

The counsel for the President now move that there be allowed for the preparation of the President of the United States for the trial, after the replication shall be filed and before the trial shall be required to proceed, such reasonable time as shall now be fixed by the Senate.

Mr. JOHNSON. Mr. Chief Justice, is it in order to amend that motion?

Several SENATORS. No, no.

The CHIEF JUSTICE. It is in order to propose an answer to it; not to amend it.

Mr. JOHNSON. I move, then, Mr. President, that ten days be allowed after filing the replication.

Mr. SHERMAN. I move that the Senate sitting as a Court of Impeachment adjourn until one o'clock to-morrow.

The motion was agreed to; and the Chief Justice declared the Senate sitting for the trial of the impeachment of Andrew Johnson adjourned until to-morrow at one o'clock.

The SERGEANT-AT-ARMS. Hear ye! hear ye! All persons are commanded to keep silence while the Senate of the United States is sitting for the trial of the articles of impeachment exhibited by the House of Representatives against Andrew Johnson, President of the United States.

The CHIEF JUSTICE. The Secretary will read the minutes.

The Secretary commenced to read the Journal of yesterday's proceedings.

Mr. JOHNSON. Mr. Chief Justice, I submit to the Chair whether it is not advisable to postpone the reading of the Journal until the Managers and the counsel for the accused are present?

The CHIEF JUSTICE. The Sergeantat-Arms informs the Chief Justice that the Managers are at the door; and he has directed the Secretary to suspend the reading of the

minutes.

The counsel for the respondent, Messrs. Stanbery, Curtis, Evarts, Nelson, and Groesbeck entered the Chamber and took the seats assigned them.

At five minutes past one o'clock the presence of the Managers on the part of the House of Representatives was announced at the door of the Senate Chamber by the Sergeant-atArms.

The CHIEF JUSTICE. The Managers will please to take their seats within the bar.

The Managers were conducted to the seats provided for them.

The members of the House of Represent atives appeared at the door, headed by Mr. E. B. WASHBURNE, chairman of the Committee of the Whole House, and accompanied by the Speaker and Clerk.

The CHIEF JUSTICE. The Secretary will now read the minutes.

The Secretary read the Journal of the proceedings of Monday, March 23, of the Senate sitting for the trial of the articles of impeachment exhibited by the House of Representatives against Andrew Johnson, President of the United States.

The CHIEF JUSTICE. The Chair will lay before the Senate a resolution which has been received from the House of Representatives.

The Secretary read as follows:

IN THE HOUSE OF REPRESENTATIVES,
March 24, 1868.

Resolved. That a message be sent to the Senate by the Clerk of the House, informing the Senate that the House of Representatives has adopted a replication to the answer of the President of the United States, to the articles of impeachment exhibited against him, and that the same will be presented to the Senate by the Managers on the part of the House. Attest:

EDWARD MCPHERSON, Clerk of the House of Representatives. The CHIEF JUSTICE. The Senate will receive the replication of the Managers. Mr. Manager BOUTWELL. Mr. President and Senators, I am charged by the Managers

with presenting the replication which has been adopted by the House of Representatives:

IN THE HOUSE OF REPRESENTATIVES, UNITED STATES, March 24, 1868. Replication by the House of Representatives of the United States to the answer of Andrew Johnson, President of the United States, to the Articles of Impeachment exhibited against him by the House of Representatives. The House of Representatives of the United States have considered the several answers of Andrew Johnson, President of the United States, to the several articles of impeachment against him by them exhibited in the name of themselves and of all the people of the United States, and reserving to themselves all advan tage of exception to the insufficiency of his answer to each and all of the several articles of impeachment exhibited against said Andrew Johnson, President of the United States, do deny each and every averment in said several answers, or either of them, which denies or traverses the acts, intents, crimes, or misdemeanors charged against said Andrew Johnson in the said articles of impeachment, or either of them; and for replication to said answer do say that said Andrew Johnson, President of the United States, is guilty of the high crimes and misdemeanors mentioned in said articles, and that the House of Representatives are ready to prove the same. SCHUYLER COLFAX,

Speaker of the House of Representatives. EDWARD MCPHERSON,

Clerk of the House of Representatives. The CHIEF JUSTICE. The replication will be received by the Secretary and filed.

Mr. JOHNSON. Mr. Chief Justice, I move that an authenticated copy of the replication be furnished to the counsel of the President. The motion was agreed to.

The CHIEF JUSTICE. When the Senate yesterday evening, a motion was pending on sitting as a court of impeachment adjourned the part of the counsel for the President that such time should be allowed for preparation as the Senate might please to determine, and thereupon the Senator from Maryland [Mr. JOHNSON] submitted an order which will be read by the Secretary.

The Secretary read as follows:

Ordered, That the Senate proceed to the trial of the President under the articles of impeachment exhibited against him at the expiration of ten days from this day, unless for causes shown to the contrary.

The CHIEF JUSTICE. The question is on agreeing to the order.

the Chair an amendment, to come in imMr. SUMNER. Mr. President, I send to mediately after the word "Ordered," being in the nature of a substitute.

The CHIEF JUSTICE. The Senator from Massachusetts moves to strike out all after the word "Ordered," and to substitute what will be read by the Secretary.

The Secretary read as follows:

Now that replication has been filed, the Senate, adhering to its rule already adopted, will proceed with the trial from day to day (Sundays excepted) unless otherwise ordered on reason shown.

The CHIEF JUSTICE. The question is on the amendment by way of substitute.

Mr. EDMUNDS. Mr. President, I move that the Senate retire to consider the pending question.

Mr. SUMNER and others. No; no.

The CHIEF JUSTICE. It is moved by the Senator from Vermont that the Senate retire to consider the question arising upon the order moved by the Senator from Maryland and the substitute proposed by the Senator from Massachusetts. [Having put the question.] The ayes appear to have it.

Mr. CONKLING and Mr. SUMNER called for the yeas and nays, and they were ordered; and being taken, resulted-yeas 29, nays 23; as follows:

YEAS-Messrs. Anthony, Bayard, Buckalew, Corbett, Davis, Dixon, Doolittle, Edmunds, Fessenden, Fowler, Frelinghuysen, Grimes, Henderson, Hend

ricks, Howe, Johnson, McCreery, Morrill of Maine, Morrill of Vermont, Morton, Norton, Patterson of New Hampshire, Patterson of Tennessee, Saulsbury, Sprague, Van Winkle, Vickers, Willey, and Williams-29.

NAYS-Messrs. Cameron, Cattell, Chandler, Cole, Conkling, Conness, Cragin, Drake, Ferry, Harlan, Howard, Morgan, Nye, Pomeroy, Ramsey, Ross, Sherman, Stewart, Sumner, Thayer, Tipton, Trumbull, and Wilson-23.

NOT VOTING-Messrs. Wade and Yates-2.

The CHIEF JUSTICE. On this question the yeas are 29 and the nays are 23. So the motion is agreed to, and the Senate will retire for consultation.

The Senate accordingly, at twenty-five minutes past one o'clock, retired, with the Chief Justice, to their conference chamber.

The Senate having been called to order in their conference chamber,

The CHIEF JUSTICE stated the question to be on the amendment proposed by Mr. SUMNER to the order submitted by Mr. JOHNSON.

Mr. JOHNSON modified the order submitted by him so as to read:

Ordered, That the Senate will commence the trial of the President upon the articles of impeachment exhibited against him on Thursday, the 2d of April.

Mr. WILLIAMS submitted the following order:

Ordered, That the further consideration of the respondent's application for time be postponed until the Managers have opened their case and submitted their evidence.

Mr. CONKLING moved to amend the order

proposed by Mr. JOHNSON, by striking out Thursday, the 2d of April," and inserting "Monday, the 30th of March instant."

Mr. SUMNER called for the yeas and nays on this amendment, and they were ordered; and being taken, resulted-yeas 28, nays 24; as follows:

YEAS-Messrs. Cameron, Cattell, Chandler, Cole, Conkling, Conness, Cragin, Drake, Ferry, Harlan, Howard, Howe, Morgan, Morrill of Maine, Morrill of Vermont, Morton, Nye, Patterson of New Hampshire, Pomeroy, Ramsey, Ross, Stewart, Sumner, Thayer, Tipton, Willey, Williams, and Wilson-28.

NAYS-Messrs. Anthony, Bayard, Buckalew, Corbett, Davis, Dixon, Doolittle, Edmunds, Fessenden, Fowler, Frelinghuysen, Grimes, Henderson, Hendricks, Johnson, McCreery, Norton, Patterson of Tennessee, Saulsbury, Sherman, Sprague, Trumbull, Van Winkle, and Vickers-24.

NOT VOTING--Messrs. Wade and Yates-2.
So the amendment was agreed to.

The CHIEF JUSTICE stated the next question to be upon the adoption of the order proposed by Mr. WILLIAMS.

Mr. WILLIAMS called for the yeas and nays, and they were ordered; and being taken, resulted-yeas 9, nays 42; as follows:

YEAS-Messrs. Anthony, Chandler, Dixon, Grimes, Harlan, Howard, Morgan, Patterson of Tennessee, and Williams-9.

NAYS-Messrs. Bayard, Buckalew, Cameron, Cattell, Cole, Conkling, Conness, Cragin, Davis, Doolittle, Drake, Edmunds, Ferry, Fessenden, Fowler, Frelinghuysen, Henderson, Hendricks, Howe, Johnson, McCreery, Morrill of Maine, Morrill of Vermont, Morton, Norton, Nye, Patterson of New Hampshire, Pomeroy, Ramsey, Ross, Saulsbury, Sherman, Sprague, Stewart, Sumner, Thayer, Tipton, Trumbull, Van Winkle, Vickers, Willey, and Wilson-42. NOT VOTING-Messrs. Corbett, Wade, and Yates-3.

So the order proposed by Mr. WILLIAMS WAS not agreed to.

The question recurring on the amendment proposed in the Senate Chamber by Mr. SUMNER to the order submitted by Mr. JOHNSON,

Mr. SUMNER withdrew his amendment. The CHIEF JUSTICE stated the question to be on the order proposed by Mr. JOHNSON, as amended, as follows:

Ordered, That the Senate will commence the trial of the President upon the articles of impeachment exhibited against him on Monday, the 30th of March instant.

Mr. HENDRICKS moved to amend the order by adding thereto the words, "and proceed therein with all convenient dispatch, under the rules of the Senate sitting upon the trial of an impeachment."

The amendment was adopted; and the order, as amended, was agreed to.

On motion of Mr. MORTON, the Senate agreed to return to the Senate Chamber.

The Senate returned to the Chamber, and

the Chief Justice resumed the Chair at twentythree minutes past three o'clock p. m.

The CHIEF JUSTICE. The Chief Justice is instructed to inform the counsel for the respondent that the Senate has agreed upon an order in response to their application, which will now be read.

The Chief Clerk read as follows:

Ordered, That the Senate will commence the trial of the President upon the articles of impeachment exhibited against him, on Monday, the 30th of March instant, and proceed therein with all convenient dispatch, under the rules of the Senate sitting upon the trial of an impeachment.

The CHIEF JUSTICE. Have the Managers on the part of the House anything further to propose?

Mr. Manager BINGHAM. Mr. President, we have nothing further to propose.

The CHIEF JUSTICE. Have the counsel for the respondent anything to propose?

[No response.]

Mr. Manager BUTLER. Will the President allow me to give notice to the witnesses on the part of the House of Representatives who are in attendance, that they must appear here at one o'clock on Monday, the 30th?

Mr. EDMUNDS. Half past twelve o'clock. The rules provide for half past twelve.

Mr. Manager BUTLER. Half past twelve o'clock on Monday, the 30th.

Mr. WILSON. I move that the Senate sitting for the trial of this impeachment adjourn until Monday next at half past twelve o'clock. The motion was agreed to.

The CHIEF JUSTICE. The Senate sitting as a court of impeachment stands adjourned until half past twelve o'clock on Monday next, the 30th instant.

MONDAY, March 30, 1868.

several propositions of fact and law upon which the House of Representatives will endeavor to sustain the cause of the people against the President of the United States, now pending at your bar.

The high station of the accused, the novelty of the proceeding, the gravity of the business, the importance of the questions to be presented to your adjudication, the possible momentous result of the issues, each and all must plead for me to claim your attention for as long a time as your patience may endure.

Now, for the first time in the history of the world, has a nation brought before its highest tribunal its chief executive magistrate for trial and possible deposition from office upon charges of maladministration of the powers and duties of that office. In other times and in other lands it has been found that despotisms could only be tempered by assassination, and nations living under constitutional governments even have found no mode by which to rid themselves of a tyrannical, imbecile, or faithless ruler, save by overturning the very foundation and framework of the Government itself. And but recently, in one of the most civilized and powerful Governments of the world, from which our own institutions have been largely modeled, we have seen a nation submit for years to the rule of an insane king, because its constitution contained no method || for his removal.

Our fathers, more wisely founding our Government, have provided for such and all similar exigencies a conservative, effectual, and practical remedy by the constitutional provision that the "President, Vice President, and all civil officers of the United States shall be removed from office on impeachment for and conviction of treason, bribery, or other high crimes and misdemeanors." The Constitution leaves noth

The CHIEF JUSTICE. The Sergeant-atArms will open the court by proclamation.

The SERGEANT-AT-ARMS. Hear ye! hear ye! hear ye! All persons are commanded to keep silence while the Senate of the United States is sitting for the trial of the articles of impeach ment exhibited by the House of Representatives against Andrew Johnson, President of the United States.

The President's counsel, Messrs. Stanbery, Curtis, Evarts, Nelson, and Groesbeck entered the Chamber and took the seats assigned to them. At twelve o'clock and thirty-five minutes p. m. the Sergeant-at-Arms announced the presence of the Managers of the Impeachment on the part of the House of Representatives, and they were conducted to the seats assigned

to them.

Immediately afterward the presence of the members of the House of Representatives was announced, and the members of the Committee of the Whole House, headed by Mr. E. B. Washburne, of Illinois, the chairman of that committee, and accompanied by the Speaker and Clerk of the House of Representatives, entered the Senate Chamber and took the seats prepared for them.

The CHIEF JUSTICE. The minutes of the

last day's proceedings will now be read by the Secretary.

The Secretary read the proceedings of the Senate sitting on Tuesday, March 24, 1868, for the trial of Andrew Johnson, President of the United States.

The CHIEF JUSTICE. Gentlemen, Managers of the House of Representatives, you will now proceed in support of the articles of impeachment. Senators will please give their

attention.

Opening Argument of Mr. BUTLER, of Massachusetts, one of the Managers on the impeachment of the President. Mr. President and Gentlemen of the Senate:

The onerous duty has fallen to my fortune to present to you, imperfectly as I must, the

whom, or the body by whom, or the tribunal before which, or the offenses for which, or the manner in which this high power should be exercised; each and all are provided for by express words of imperative command.

The House of Representatives shall solely impeach; the Senate only shall try; and in case of conviction the judgment shall alone be office, one or both. These mandatory provisions removal from office and disqualification for became necessary to adapt a well-known procedure of the mother country to the institutions of the then infant Republic. But a single incident only of the business was left to construction, and that concerns the offenses or incapacities which are the groundwork of impeachment. This was wisely done, because human foresight is inadequate and human intelligence fails in the task of anticipating and providing for, by positive enactment, all the infinite gradations of human wrong and sin by which the liberties of a people and the safety of a nation may be endangered from the imbecility, corruption, and unhallowed ambition of its rulers.

It may not be uninstructive to observe that the framers of the Constitution, while engaged in their glorious and, I trust, ever-enduring

mother country, with which our fathers were as familiar as we are with our own?

In the light, therefore, of these precedents, he question arises, What are impeachable offenses under the provisions of our Constitution?

To analyze, to compare, to reconcile these precedents is a work rather for the closet than the forum. In order, therefore, to spare your attention, I have preferred to state the result to which I have arrived, and that you may see the authorities and discussions, both in this country and in England, from which we deduce our propositions, so far as applicable to this case, I pray leave to lay before you, at the close of my argument, a brief of all the precedents and authorities upon this subject in both countries, for which I am indebted to the exhaustive and learned labors of my friend, Hon. WILLIAM LAWRENCE, of Ohio, member of the Judiciary Committee of the House of Representatives, in which I fully concur and which I adopt.

We define, therefore, an impeachable high crime or misdemeanor to be one in its nature or consequences subversive of some fundamental or essential principle of government or highly prejudicial to the public interest, and this may consist of a violation of the Constitution, of law, of an official oath, or of duty, by an act committed or omitted, or, without violating a positive law, by the abuse of discretionary powers from improper motives, or for any improper purpose.

The first criticism which will strike the mind on a cursory examination of this definition is that some of the enumerated acts are not within the common-law definition of crimes. It is but common learning that in the English precedents the words "high crimes and misdemeanors' are universally used; but any malversation in office highly prejudicial to the public interest, or subversive of some fundamental principle of government by which the safety of a people may be in danger, is a high crime against the nation, as the term is used in parliamentary law.

Hallam, in his Constitutional History of England, certainly deduces this doctrine from the precedents, and especially Lord Danby, case 14, State Trials, 600, of which he says:

"The Commons, in impeaching Lord Danby, went a great way toward establishing the principle that no minister can shelter himself behind the throne by

leading obedience to the orders of his sovereign. He is answerable for the justice, the honesty, the utility of all measures emanating from the crown, as well as for their legality; and thus the executive administration is, or ought to be, subordinate in all great matters of policy to the superintendence and virtual control of the two Houses of Parliament."

Mr. Christian, in his notes to the Commentaries of Blackstone, explains the collocation and use of the words "high crimes and misdemeanors" by saying:

"When the words 'high crimes and misdemeanors, are used in prosecutions by impeachment the words 'high crimes' have no definite signification, but are used merely to give greater solemnity to the charge."

A like interpretation must have been given by the framers of the Constitution, because a like definition to ours was in the mind of Mr. Madison, to whom more than to any other we are indebted for the phraseology of our Constitution, for, in the First Congress, when discussing the power to remove an officer by the President, which is one of the very material questions before the Senate at this moment, he uses the following words:

"The danger consists mainly in this: that the President can displace from office a man whose merits require he should be continued in it. In the first place, he will be impeachable by the House for such an act of maladministration, for I contend that the wanton removal of meritorious officers would subject him to impeachment and removal from his own high trust."

work, had their attention aroused and their minds quickened most signally upon this very topic. In the previous year only Mr. Burke, from his place in the House of Commons in England, had preferred charges for impeachment against Warren Hastings, and three days before our convention sat he was impeached at the bar of the House of Lords for misbehavior in office as the ruler of a people whose numbers were counted by millions. The mails were then bringing across the Atlantic, week by week, the eloquent accusations of Burke, the gorgeous and burning denunciations of Sheridan, in behalf of the oppressed people of India, against one who had wielded over them more Strengthening this view, we find that within than regal power. May it not have been that ten years afterward impeachment was applied the trial then in progress was the determining by the very men who framed the Constitution cause why the framers of the Constitution left to the acts of public officers which under no the description of offenses because of which common-law definition could be justly called the conduct of an officer might be inquired of crimes or misdemeanors, either high or low. to be defined by the laws and usages of Par- Leaving, however, the correctness of our propliament as found in the precedents of theosition to be sustained by the authorities we

furnish, we are naturally brought to the consideration of the method of the procedure and the nature of the proceedings in cases of impeachment, and the character and powers of the tribunal by which high crimes and misdemeanors are to be adjudged or determined.

One of the important questions which meets us at the outset is: is this proceeding a trial, as that term is understood so far as relates to the rights and duties of a court and jury upon an indictment for crime? Is it not rather more in the nature of an inquest of office?

The Constitution seems to have determined it to be the latter, because, under its provisions, the right to retain and hold office is the only subject that can be finally adjudicated; all preliminary inquiry being carried on solely to determine that question, and that alone.

All investigations of fact are, in some sense, trials, but not in the sense in which the word is used by courts.

Again, as a correlative question:

Is this body, now sitting to determine the accusation of the House of Representatives against the President of the United States, the Senate of the United States or a court?

I trust, Mr. President and Senators, I may be pardoned for making some suggestions upon these topics, because to us it seems these are questions not of forms, but of substance. If this body here is a court in any manner as contradistinguished from the Senate, then we agree that many, if not all, the analogies of the procedures of courts must obtain; that the common-law incidents of a trial in court must have place; that you may be bound in your proceedings and adjudication by the rules and precedents of the common or statute law; that the interest, bias, or preconceived opinions or affinities to the party of the judges may be open to inquiry, and even the rules of order and precedents in courts should have effect; that the Managers of the House of Representatives must conform to those rules as they would be applicable to public or private prosecutors of crime in courts, and that the accused may claim the benefit of the rule in criminal cases, that he may only be convicted when the evidence makes the fact clear beyond reasonable doubt, instead of by a preponderance of the evidence.

We claim, and respectfully insist, that this tribunal has none of the attributes of a judicial court as they are commonly received and understood. Of course this question must be largely determined by the express provisions of the Constitution, and in it there is no word, as is well known to you, Senators, which gives the slightest coloring to the idea that this is a court, save that in the trial of this particular respondent the Chief Justice of the Supreme Court must preside. But even this provision can have no determining effect upon the question, because is not this the same tribunal in all its powers, incidents, and duties, when other civil officers are brought to its bar for trial, when the Vice President (not a judicial officer) must preside? Can it be contended for a moment that this is the Senate of the United States when sitting on the trial of all other officers, and a court only when the President is at the bar, solely because in this case the Constitution has designated the Chief Justice as the presiding officer?

The fact that Senators are sitting for this purpose on oath or affirmation does not influ ence the argument, because it is well understood that that was but a substitute for the obligation of honor under which, by the theory of the British constitution, the peers of England were supposed to sit in like cases.

similar proceedings in trials before the House of Lords.

Analogies have ever been found deceptive and illusory. Before such analogy is invoked we must not forget that the Houses of Parliament at first, and latterly the House of Lords, claimed and exercised jurisdiction over all crimes, even where the punishment extended to life and limb. By express provision of our Constitution all such jurisdiction is taken from the Senate and "the judicial power of the United States is vested in one Supreme Court and such inferior courts as from time to time Congress may ordain and establish."

We suggest, therefore, that we are in the presence of the Senate of the United States, convened as a constitutional tribunal, to inquire into and determine whether Andrew Johnson, because of malversation in office, is longer fit to retain the office of President of the United States, or hereafter to hold any office of honor or profit.

I respectfully submit that thus far your mode of proceeding has no analogy to that of a court. You issue a summons to give the respondent notice of the case pending against him. You do not sequester his person-you do not require his personal appearance even; you proceed against him and will go on to determine his cause in his absence, and make the final order therein. How different is each step from those of ordinary criminal procedure.

A constitutional tribunal solely, you are bound by no law, either statute or common, which may limit your constitutional prerogative. You consult no precedents save those of the law and custom of parliamentary bodies. You are a law unto yourselves, bound only by the natural principles of equity and justice, and that salus populi suprema est lex.

they were nevertheless persons able in the law to pass upon any trial, and not to be challenged therefor, but at the prince's pleasure."

Again, on the trial of Earls of Essex and Southampton (ibid., 1 State Trials, p. 1335) for high treason, before all the justices of England, A. D. 1600, the Earl of Essex desired to know of my Lord Chief Justice whether he might challenge any of the peers or no. Whereunto the Lord Chief Justice answered "No."

Again, in Lord Audley's case (ibid., 3 State Trials, p. 402, A. D., 1631) it was questioned whether a peer might challenge his peers, as in the case of common jurats. It was answered by all the judges, after consultation, "he might not." [This case is of more value because it was an indictment for being accessory to rape upon his own wife, and had no political influence in it whatever.] The same point was ruled in the Countess of Essex's case, on trial for treason. (Moore's Reports, 621.)

In the Earl of Portland's case, A. D. 1701, (ibid., State Trials, p. 288,) the Commons objected that Lord Sommers, the Earl of Oxford, and Lord Halifax, who had been impeached by the Commons before the House of Lords for being concerned in the same acts for which Portland was being brought to trial, voted and acted with the House of Lords in the preliminary proceedings of said trial, and were upon a committee of conference in relation thereto. But the lords after discussion solemnly resolved "that no lord of Parliament, impeached of high crimes and misdemeanors, can be precluded from voting on any occasion, except on his own trial."

In the trial of Lord Viscount Melville, A. D. 1806, (ibid., 29 State Trials, p. 1398,) some observations having been made as to the possible bias of some portion of the peers, (by the counsel for defendant,) Mr. Whitebread, one of the managers on the part of the Commons,

Upon these principles and parliamentary law no judges can aid you, and, indeed, in late years the judges of England in the trial of impeach-answered as follows: ment, declined to speak to a question of parliamentary law, even at the request of the House of Peers, although they attended on them in their robes of office.

Nearly five hundred years ago, in 1388, the House of Lords resolved, in the case of Belknap and the other judges, "That these matters. when brought before them, shall be discussed and adjudged by the course of Parliament, and not by the civil law, nor by the common law of the land used in other inferior courts."'

And that resolution, which was in contravention of the opinion of all the judges of England, and against the remonstrance of Richard II, remains the unquestioned law of England to this day.

Another determining quality of this tribunal, distinguishing it from a court and the analogies of ordinary legal proceedings, and showing that it is a Senate only, is, that there can be no right of challenge by either party to any of its members for favor or malice, affinity, or interest.

This has been held from the earliest times in Parliament even when that was the high court of judicature of the realm sitting to punish all crimes against the peace.

of the Duke of Somerset, (1 Howell's State Trials, page 521,) as carly as

1551, it was held that the Duke of Northumberland and the Marquis of Northampton and the Earl of Pembroke, for an attempt upon whose lives Somerset was on trial, should sit in judgment upon him against the objection of the accused because " a peer of the realm might not be challenged.'

Again, the Duke of Northumberland, (ibid., 1 State Trials, p. 765,) Marquis of Northampton, and Earl of Warwick, being on trial for their lives, A. D. 1553, before the court of the Lord High Steward of England, one of the prisoners inquired whether any such persons as were equally culpable in that crime, and those by whose letters and commandments he was directed in all his doings, might be his

The idea that this tribunal was a court seems to have crept in because of the analogy to

was answered that, "If any were as deeply to be touched as himself in that case, yet as long as no attainder of record were against them,

"My lords, as to your own court, something has been thrown out about the possibility of a challenge. Upon such a subject it will not be necessary to say more than this, which has been admitted: that an order was given by the House of Commons to prosecuto Lord Melville in a court of law where he would have the right to challenge his jurors."

*

*

"What did the noble viscount then do by the means of one of his friends?" "From the mouth of that learned gentleman came at last the successful motion: that Henry, Viscount of Melville, be impeached of high crimes and misdemeanors.' I am justified, then, in saying that he is here by his own option." * "But, my lords, a challenge to your lordships! Is not every individual peer the guardian of his own honor?"

In the trial of Warren Hastings the same point was ruled, or, more properly speaking, taken for granted, for of the more than one hundred and seventy peers who commenced the trial but twenty-nine sat and pronounced the verdict at the close, and some of those were peers created since the trial began, and had not heard either the opening or much of the evidence; and during the trial there had been by death, succession, and creation, more than one hundred and eighty changes in the House of Peers, who were his judges.

We have abundant authority also on this point our own

In the case of Judge Pickering, who was

tried in March, 1804, for drunkenness in office, although undefended in form, yet he had all his rights preserved.

This trial being postponed a session, three Senators-Samuel Smith of Maryland, Israel Smith of Vermont, and John Smith of New York-who had all been members of the House of Representatives, and there voted in favor of impeaching Judge Pickering, were Senators when his trial came off,

Mr. Smith, of New York, raised the question, by asking to be excused from voting. Mr. Smith, of Maryland, declared "he would not be influenced from his duty by any false delicacy; that he, for his part, felt no delicacy upon the subject; the vote he had given in the other House to impeach Judge Pickering would have no influence upon him in the court; his constituents had a right to his vote, and he would not by any act of his deprive, or consent

to deprive, them of that right, but would claim and exercise it upon this as upon every other question that might be submitted to the Senate while he had the honor of a seat."

A vote being had upon the question, it was determined that these gentlemen should sit and vote on the trial. This passed in the affirmative by a vote of 19 to 7, and all the gentlemen sat and voted on every question during the trial.

On the trial of Samuel Chase before the Senate of the United States no challenge was attempted, although the case was decided by an almost strict party vote in high party times, and doubtless many of the Senators had formed and expressed opinions upon his conduct.

That arbitrary judge, but learned lawyer, knew too much to attempt any such futile movement as a challenge to a Senator. Certain it is that the proprieties of the occasion were not marred by the worse than anomalous proceeding of the challenge of one Senator to another, especially before the defendant had appeared.

Nor did the managers exercise the right of challenge, although Senators Smith and Mitchell, of New York, were members of the Senate on the trial and voted not guilty on every article, who had been members of the House when the articles were found, and had there voted steadily against the whole proceeding.

Judge Peck's case, which was tried in 1831, affords another instance in point.

The conduct of Judge Peck had been the subject of much animadversion and comment by the public, and had been for four years pending before the Congress of the United States before it finally came to trial. It was not possible but that many of the Senate had both formed and expressed opinions upon Peck's proceedings, and yet it never occurred to that good lawyer to make objection to his triers. Nor did the managers challenge, although Webster, of Massachusetts, was a member of the committee of the House of Representatives to whom the petition for impeachment was referred, and which, after examination, reported thereon "leave to withdraw," and Sprague, of Maine, voted against the proceedings of the House, while Livingston, of Louisiana, voted for them. All of these gentlemen sat upon the trial, and voted as they did in the House.

A very remarkable and instructive case was that of Judge Addison, of Pennsylvania, in 1804. There, after the articles of impeachment were framed, the trial was postponed to another session of the Legislature. Meanwhile three members of the House of Representatives, who had voted for the articles of impeachment, were elected to the Senate and became the triers of the articles of impeachment of which they had solemnly voted the respondent to be guilty. To their sitting on the trial Judge Addison objected, but after an exhaustive argument his objection was overruled-17 to 6. Two of the minority were the gentlemen who had voted him guilty, and who themselves objected to sitting on the trial.

Thus stands the case upon authority. How does it stand upon principle?

In a conference held in 1691, between the Lords and Commons, on a proposition to limit the number of judges, the Lords made answer:

"That in the case of impeachments, which are the groans of the people, and for the highest crimes, and carry with them a greater supposition of guilt than any other accusation, there all the lords must judge."

There have been many instances in England where this necessity, that no peer be excused from sitting on such trials, has produced curious results. Brothers have sat upon the trials of brothers, fathers upon the trials of sons and daughters, uncles upon the trials of nephews and nieces; no excuse being admitted.

One, and a most peculiar and painful instance, will suffice upon this point to illustrate the strength of the rule. In the trial of Anne Bullen, the wife of one sovereign of England and the mother of another, her father, Lord Rochefort, and her uncle, the Duke of Norfolk,

sat as judges and voted guilty, although one of the charges against the daughter and niece was a criminal intimacy with her brother, the son and nephew of the judges.

It would seem impossible that in a proceeding before such a tribunal so constituted there could be a challenge, because, as the number of triers is limited by law, and as there are not now, and never have been, any provisions, either in England or in this country, for substituting another for the challenged party, as a talesman is substituted in a jury, the accused might escape punishment altogether by challenging a sufficient number to prevent a quorum, or the accuser might oppress the respondent by challenging all persons favorable to him until the necessary unanimity for conviction was secured.

This proceeding being but an inquest of office, and, except in a few rare instances, always partaking, more or less, of political considerations, and requiring to be discussed, before presentation to the triers, by the coördinate branch of the Legislature, it is impossible that Senators should not have opinions and convictions upon the subject-matter more or less decidedly formed before the case reaches them. If, therefore, challenges could be allowed because of such opinions, as in the case of jurors, no trial could go forward, because every intelligent Senator could be objected to upon one side or the other.

ful to duty. With my best thanks for the honor you have done me by your invitation, and regretting that it is not in my power to accept it,

I remain, with regard, your obedient servant, REVERDY JOHNSON.

We should have as much right to expect his vote on a clearly-proven case of guilty as had King Henry VIII to hope for the vote of her father against his wife. He got it.

King Henry knew the strength of his case, and we know the strength of ours against this respondent.

If it be said that this is an infelicity, it is a sufficient and decisive answer that it is the in

felicity of a precise constitutional provision, which provides that the Senate shall have the sole power to try impeachments, and the only security against bias or prejudice on the part of any Senator is, that two thirds of the Senators present are necessary for conviction.

To this rule there is but one possible excep tion, founded on both reason and authority, that a Senator may not be a judge in his own

case.

I have thought it necessary to determine the nature and attributes of the tribunal before we attend to the scope and meaning of the accusation before it.

The first eight articies set out in several disdinct forms the acts of the respondent in remov. ing Mr. Stanton from office, and appointing Mr. Thomas ad interim, differing in legal effect in the purposes for which and the intent with which either or both of the acts were done, and the legal duties and rights infringed and the acts of Congress violated in so doing.

I may be permitted, without offense, further to state that these and similar reasons have prevented the Managers from objecting by challenge or otherwise to the competency of one of the triers of near affinity to the accused.

We believe it is his right, nay, his duty to the State he represents, to sit upon the trial as he would upon any other matter which should come before the Senate. His seat and vote belong to his constituents, and not to himself, to be used according to his best judgment upon every grave matter that comes before the Senate.

Again, as political considerations are involved in this trial, raising questions of interest to the constituents of every Senator, it is his right and duty to express himself as fully and freely upon such questions as upon any other, even to express a belief in the guilt or innocence of the accused, or to say he will sustain him in the course he is taking, although he so says after accusation brought. Let me illustrate. Suppose that after this impeachment had been voted by the House of Representatives the constituents of any Senator had called a public meeting to sustain the President against what they were pleased to term the "tyrannical acts of Congress toward him in impeaching him," and should call upon their Senator to attend and take part in such meeting, I do not conceive that it would or ought to be legally objected against him as a disqualification to sit upon this trial, upon the principles I have stated, if he should attend the meeting or favor the object, or if his engagements in the Senate prevented his leaving. I have not been able to find any legal objection in the books to his writing a letter to such meeting, containing, among other things, statements like the following:

SENATE CHAMBER, February 24, 1868. GENTLEMEN: My public and professional engagements will be such on the 4th of March that I am reluctantly compelled to decline your invitation to be present and address the meeting to be held in our city on that day.

That the President of the United States has sincerely endeavored to preserve these (our free institutions) from violation I have no doubt, and I have, therefore, throughout the unfortunate difference of opinion between him and Congress, sustained him. And this I shall continue to do as long as he shall prove faith

All the articles allege these acts to be in contravention of his oath of office, and in disregard of the duties thereof.

duct, and, as we have seen, impeachable.

The President has the legal power to do many acts which, if done in disregard of his duty, or for improper purposes, then the exercise of that power is an official misdemeanor. Ex. gr.: he has the power of pardon; if exercised in a given case for a corrupt motive, as for the payment of money, or wantonly pardoning all criminals, it would be a misdemeanor. Examples might be multiplied indefinitely.

Article first, stripped of legal verbiage, alleges that, having suspended Mr. Stanton and reported the same to the Senate, which refused to concur in the suspension, and Stanton haying rightfully resumed the duties of his office, the respondent, with knowledge of the facts, issued an order which is recited for Stanton's removal, with intent to violate the act of March 2, 1867, to regulate the tenure of certain civil offices, and with the further intent to remove Stanton from the office of Secretary of War, then in the lawful discharge of its duties, in contravention of said act, without the advice and consent of the Senate, and against the Constitution of the United States.

Article two charges that the President, without authority of law, on the 21st of February, 1868, issued letter of authority to Lorenzo Thomas to act as Secretary of War ad interim, the Senate being in session, in violation of the tenure-of-office act, and with intent to violate it and the Constitution, there being no vacancy in the office of Secretary of War.

Article three alleges the same act as done without authority of law, and alleges an intent to violate the Constitution.

Article four charges that the President conspired with Lorenzo Thomas and divers other persons, with intent, by intimidation and threats, to prevent Mr. Stanton from holding the office of Secretary of War, in violation of the Constitution and of the act of July 31, 1861.

Article five charges the same conspiracy with Thomas to prevent Mr. Stanton's holding his office, and thereby to prevent the execution of the civil-tenure act.

Article six charges that the President con spired with Thomas to seize and possess the property under the control of the War Depart