and power. It has great powers. They are not monarchical or tending to monarchy, be cause the tenure of the office, its source of original commission, and its return of the trust to those who control it, and its amenability under the Constitution to this process of impeachment and the authority of Congress, save it from being at all dangerous to the liberties of the nation. Yet it is, and is intended to be, an office of great authority, and the Constitution in its coordinate department cannot be sustained without maintaining all the authority that the Constitution has intended for this executive office. But it depends for its place in the Constitution upon the fact, the practical fact, that its authority is committed by the suffrage of the people, and that when this authority is exerted it is not by individual purpose or will, or upon the mere strength which a single individual can oppose to the collective power of the Congress of the United States. It is because and as the people, who by their suffrage have raised the President to his place, are behind him, holding up his hands, speaking with his voice, sustaining him in his high duties, that the President has the place and can maintain it under the Constitution.

This great power is safe, then, to the people for the reasons I have stated, and it is safe to the President because the people are behind him and have just exhibited their confidence by the suffrage that has promoted him. When, however, alas, our Constitution comes to this trial that one is lifted to the presidential office who has not received the suffrage of the people for that office, then at once discord, dislocation, deficiency, difficulty show themselves; then at once the great powers of the office which were consonant with a free Constitution and with the supremacy of popular will, by the fact that for a brief term the breath of life of the continuing favor of the people gave them efficacy and strength, find no support in fact. Then it is that in the criticisms of the press, in the estimates of public men, in the views of the people, these great powers, strictly in trust and within the Constitution, seem to be despotic and personal. And then, if we will give due force to another difficulty that our system of vicious politics has introduced, and that is that in the nomination for the two offices, selecting always the true leader of the popular sentiment of the time for the place of President, we look about for a candidate for the Vice Presidency to attract minority and to assuage differences and to bring in inconsistent support, and make him different from the President in political position and in general circumstances for popular support, and couple with the fact that I have spoken of in the Constitution and which belongs to it this vice in our politics, then when the Vice President becomes President of the United States, not only is he in the attitude of not having the popular support for the great powers of the Constitution, but he is in the condition of not having the party support for the fidelity and maintenance of his authority that are necessary. Then, adhering to his original opinions, to the very opinions and political attitude which form the argument for placing him in the second place of authority, he is denounced as a traitor to his party and is watched and criticised by all the leaders of that party.

I speak not particularly in reference to the present presidential term and its incumbent, and the actual condition of politics here; I speak of the very nature of the case. All the public men, all the ambitious men, nay, all the men interested in the public service, in carrying on the Government for the purposes and with the views, in the interest of duty, of the party, have made their connections, and formed their views, established their relations with the President who has disappeared. They then are not in the attitude of support, personal or political, that may properly be maintained among the leaders of a party, and that is implied in the fact that an election has taken place by the joint efforts, crowning in the final result the President of the selection of the

culations of the presidental protection through the guarantees of the Constitution; for, what do the two-thirds provisions mean? They meant that in a free country, where elections were dif fused over a vast area, no Congressman having a constituency of over seventy or eighty thou

there would not be a somewhat equal division of parties, or impossible to suppose that the excitements and zeal of party could carry all the members of it into any extravagance. I do not call them extravagances in any sense of reproach; I merely speak of them as the extreme measures that parties in politics, and under whatever motives, may be disposed to adopt.

people. Then it is that high words are interchanged. Then it is that ambitious men, who had framed their purposes, both for the present and for the future, upon the footing of the presidential predomination that had been secured by the election, find these plans dislocated and disturbed; and then it is that if wis-sand people, it was impossible to suppose that dom and prudence and the personal qualities of pacification and of accommodation and of attraction are wanting upon the one side and the other, terrible evils threaten the conduct of the Government and the peace of the State. It was thus, as we all know by looking back to the experience of the Whig party, that differences, even in time of peace and of quiet, had been urged so far in the Presidency of Mr. Tyler, that an impeachment was moved against him in the House of Representatives, and had more than one hundred supporters; and yet, when it was all over, nobody, I think, could have dreamed that there was anything in the conduct of Mr. Tyler, in the matter complained of, that was just ground for impeachment. So, too, in great part during the incumbency of Mr. Fillmore, elevated to the Presidency, his action and his course, tempered and moderated as it was by some of the personal qualities that I have stated, was yet carried on in resistance to the leading ideas of the party that had raised him to power.

Then the Opposition, seizing upon this opportunity, encourage the controversy, urge on the quarrel, but do not espouse it, and thus it ends in the President being left without the support of the currents of authority that underlie and vivify the Constitution of the United States-the favor of the people; and so when this unfortunate, this irregular condition of the executive office concurs with times of great national juncture, of great and serious oppression and difficulty of public affairs, then at once you have at work the special, the peculiar, the irregular operation of forces that expose the Constitution, left unprotected and undefended with the full measure of support that every department of the Government should have to resist the other, pressing on to dangers and to difficulties that may shake and bring down the pillars of the Constitution itself.

I suggest this to you as wise men, to understand how out of circumstances for which no man is responsible, attributable to the working of the Constitution itself, in this effort to provide a successor, and to the inattention paid to it in the suffrages of the people and the selections of the politicians, how there is a weakness, and a special weakness, that the Presidency is as it were an undefended fort, and see to it that the invasion is not urged and made successful by the temptation thus pre

sented.

This exception, weakness of the Presidency under our Constitution, is encountered in the present state of affairs by an extraordinary development of party strength in the Congress. There are in the Constitution but three barriers against the will of a majority of Congress within the terms of their authority. One is that it requires a two-thirds vote to expel a member of either House; another that a twothirds vote is necessary to pass a law over the objections of the President; and another, that a two-thirds vote of the Senate, sitting as a court for the trial of impeachment, is requisite to a sentence. And now how have these two last protections of the executive office disappeared from the Constitution in its practical working by the condition of parties that has given to one the firm possession by a threefourths vote, I think in both Houses, of the control of the action of each body of the Legislature? Reflect upon this. I do not touch upon the particular circumstance that the nonrestoration of the southern States has left your numbers in both Houses of Congress less than they might under other circumstances be. I do not calculate whether that absence diminishes or increases the disproportion that there would be. Possibly their presence might even aggravate the political majority which is thus arrayed and thus overrides practically all the cal

Certainly, then, there is ground to pause and consider before you bring to a determination this great struggle between the coördinate branches of the Government, this agitation and this conclusion in a certain event of the question whether the coördination of the Constitution can be preserved. Attend to these special circumstances and determine for your selves whether under these influences it is best to urge a contest which must operate upon the framework of the Constitution, and its future unattended by any exceptions of a peculiar nature that govern the actual situation. Ah, that is the misery of human affairs, that the stress comes and has its consequence when the system is least prepared to receive it. It is the misery that disease, casual, circumstantial, invades the frame when health is depressed and the powers of the constitution to resist it are at the lowest ebb. It is that the gale rises and sweeps the ship to destruction when there is no sea-room for it and when it is upon a leeshore. And if concurrent with that danger to the good ship, her crew be short, her helm unsettled, and disorder begins to prevail, there comes to be a final struggle for the maintenance of mastery against the elements and over the only chances of safety, how wretched is the condition of that people whose fortunes are embarked in that ship of state!

What other protection is there for the presidential office than these two-thirds guarantees of the Constitution that have disappeared? The Supreme Court placed there to determine, among the remarkable provinces of its jurisdiction, the lines of separation and of duty and of power under our Constitution between the Legislature and the President. Ah! under this evidence, received and rejected, the very effort of the President was, when the two-thirds majorities had urged the contest against him, to raise a case for the Supreme Court to decide; and then the Legislature, coming in by its special condition of impeachment, intercepts the effort and brings his head again within the mere power of Congress where the two-thirds rule is equally ineffectual as between the parties to the contest.

This is matter of grave import, of necessary consideration, and which, with the people of this country, with watchful foreign nations, and in the eyes of history, will be one of the determining features of this great controversy; for great as is the question in the estimate of the Managers or of ourselves or of the public intelligence of this people, of how great the power should be on one side or the other, with Congress or with the President, that question sinks into absolute insignificance compared with the greater and higher question, the question that has been in the Constitution, that has been in the minds of philosophers, of publicists, and of statesmen since it was founded, whether it was in the power of a written constitution to draw lines of separation and put up buttresses of defense between the coördinate branches of the Government? And with that question settled adversely with a determination that one can devour, and having the power, will devour the other, then the balances of the American Constitution are lost and lost for

the people of this country either despair at the theory of paper constitutions, which have been derided by many foreign statesmen, or else an attempt to establish new balances of power by which, the poise of the different departments being more firmly placed, one can be safe against the other. But who can be wiser than our fathers? Who can be juster than they? Who can be more considerate or more disinterested than they? And if their descendants have not the virtue to maintain what they so wisely and so nobly established, how can these same descendants hope to have the virtue and the wisdom to make a better establishment for their posterity?

Nay, Senators, I urge upon you to consider whether you will not recoil from settling so tremendous a subject under so special, so disadvantageous, so disastrous circumstances as I have portrayed to you in the particular situation of these branches of the Government. A stronger Executive, with an absolute veto, with a longer term, with more permanent possession and control of official patronage, will be necessary for the support of this executive department, if the wise and just and considerate measure of our ancestors shall not prove, in your judgment, sufficient; or, if that be distasteful, if that be unacceptable, if that be inadmissible, then we must swing it all over into the omnipotence of Congress, and recur to the exploded experiment of the Confederation, where Congress was executive and legislative, all in one,

There is one other general topic, not to be left unnoticed for the very serious impression that it brings upon the political situation which forms the staple-I must say it-of the pressure on the part of the Managers to make out a crime, a fault, a danger that should enlist your action in the terrible machinery of impeachment and condemnation. I mean the very peculiar political situation in the country itself and in the administration of this Government over the people of the country which has been the womb from which has sprung this disorder and conflict between the departments of the Government. I can, I think, be quite brief about it, and certainly shall not infringe upon any of the political proprieties of the occasion.

The suppression of an armed rebellion and the reduction of the revolted States to the power of the Government, when the region and the population embraced in the rebellion were so vast, and the head to which the revolt had come was so great, and the resistance so continuous, left a problem of as great difficulty in human affairs as was ever proposed to the actions of any Government. The work of pacification would have been a severe task for any Government after so great a struggle, when so great passions were enlisted, when so great wounds had been inflicted, when so great discontents had urged the controversy, and so much bitterness had survived its formal settlement; but wonderful to say, with his situation, so difficult as to surpass almost the powers of Government as exhibited in any former instance in the history of the world, there occurred a special circumstance that by itself would have tasked all the resources of statesmanship under even a simple Government. I mean the emancipation of the slaves, which had thrown four millions of human beings, not by the processes of peace but by the sudden blow of war, into the possession of their freedom, which had changed at once, against their will, the relation of all the rest of the population to these men that had been their slaves.

The process of adaptation of society and of law to so grave a social change as that, even when accomplished in peace, and when not disturbed by the operations of war and by the discontents of a suppressed rebellion, are as much as any wisdom or any courage, or any prosperity that is given to government, can expect to ride through in safety and peace. When, then, these two great political facts concur and press upon the Government that is responsible for their conduct, how vast, how

difficult, how intractable, and unmanageable seems the posture!

But this does not represent the measure or even the principal feature of the difficulty. When the Government whose arms have triumphed and suppressed resistance is itself, by the theory and action of the Constitution, the Government that by peaceful law is to maintain its authority, the process is simple; but under our complex Government, according to the theory and the practice, the interests and the feelings, the restored Constitution surrenders their domestic affairs at once to the local governments of the people who have been in rebellion. And then arises what has formed the staple of our politics for the last four years, what has tried the theory, the wisdom, the courage, the patriotism of all. It is how far under the Constitution as it stands the General Government can exercise absolute control in the transition period between war and absolute restored peace, and how much found to be thus unmanageable shall be committed to changes of the Constitution. And when we understand that the great controversy in the formation of the Constitution itself was how far the General Government should be intrusted with domestic concerns, and when the final triumph and the general features of the Constitution that the people of the States were not willing, in the language of Mr. Ellsworth, to intrust the General Government with their domestic interests, we see at once how wide, how dangerous, how difficult the arena of controversy of constitutional law and of difference of opinion as to what was or is constitutional, and if it be not of what changes shall be or ought to be made in the Constitution to meet the practical situation.

Then when you add to this that as people divide on these questions, and as the practical forces on one side and the other are the loyal masses and the rebel masses, whoever divides from his neighbor, from his associate, from his party adherents in that line of constitutional opinion and in that line of governmental action, which seems to press least changes upon the Constitution and least control upon the masses lately in rebellion, will be suspected and charged and named and called an ally of traitors and rebels, you have at once disclosed how our dangerous politics have been brought to the head in which these names of "traitor" and of "rebel," which belong to war, have been made the current phrases of political discussion.

I do not question the rectitude nor do I question the wisdom of any positions that have been taken as matter of argument or as matter of faith or as matter of action in the disposition of this peculiar situation. I only attract your attention to the necessities and dangers of the situation itself. We were in the condition in which the question of the surrender to the local communities of their domestic affairs, which the order of the Constitution had arranged for the peaceful situation, became impossible without the gravest dangers to the State both in respect to the public order and in respect to this changed condition of the slaves.

In English history the Commons were urged, after they had rejected the king from the British constitution and found the difficulty of making things work smoothly, stare super antiquas vias; but, said Sergeant Maynard, "It is not the question of standing upon the ancient ways, for we are not on them." The problem of the Constitution is, as it was then, how to get upon the ancient ways from these paths that disorder and violence and rebellion had forced us into; and here it was that the exasperations and the exacerbations of politics came up mingling with charges of infidelity to party and with treason, moral treason, political treason, I suppose, to the State. How many theories did we have?

In this Senate, if I am not mistaken, one very influential and able and eloquent Senator was disposed to press the doctrines of the Dec

And

laration of Independence into being working forces of our constituted liberty, and a sort of pre-constitutional theory was adopted to suit the logical and political difficulties of the case. In another House a great leader was disposed to put it upon the transconstitutional necessities that the situation itself imposed in perfect peace as in absolute and flagrant war. thus it was that minds trained in the old school, attached to the Constitution, unable as rhetoricians or as reasoners to adopt these learned phrases and these working theories of preconstitutional or transconstitutional authority and obligation, were puzzled among the ruins of society that the war had produced; and thus, as it seems to me, we find these concur ring dangers leading ever to an important and necessary recognition by whoever has to deal with them of the actual and practical influences that they have upon the controversy.

And now let me urge here that all this is within the province of politics; and a free people are unworthy of their freedom and cannot maintain it if their public men, their chosen servants, are not able to draw distinctions between legal and constitutional offense and odious or even abominable politics. Certainly it is so. Idem sentire de republicâ, to agree in opinion concerning the public interest, is the bond of one party, and diversity from those opinions the bond of the other; and where passions and struggles of force in any form of violence or of impeachment as an engine of power come into play, then freedom has become license, and then party has become faction, and those who do not withhold their hand until the ruin is accomplished will be subject to that judgment that temperance and fortitude and patience were not the adequate qualities for their conduct in the situation in which they were placed. Oh, why not wise enough to stay the pressure till adverse circumstances shall not weigh down the State? Why not in time remember the political wisdom

"Beware of desperate steps. The darkest day, Live till to-morrow, will have passed away."

I hold in my hand an article from the Tribune, written under the instructions of this trial and put with great force and skill. I do not propose to read it. I bring it here to show and to say that it is an excellent series of articles of impeachment against the President of the United States within the forum of politics for political repugnancy and obstruction, and an honest confession that the technical and formal crimes included in these articles are of very paltry consideration. That is an excellent article of impeachment demanding by process suitable to the forum an answer; and for the discussions of the hustings and of the elec tion, there it belongs; there it must be kept. But this being a court, we are not to be tried for that in which we are not inculpated. How wretched the condition of him who is to be thus oppressed by a vague, uncertain shadow which he cannot oppose or resist! If the honorable Managers will go back to the source of their authority, if they will obtain what was once denied them, a general and open political charge, it may, for aught I know, be maintainable in law; it may be maintainable in fact; but then it would be brought here; it would be written down; its dimensions would be known and understood; its weight would be estimated; the answer could be made.

And then your leisure and that of the nation being occupied with hearing witnesses about political differences and the question of political repugnance and obstruction upon the side of the President, those who should be honored with his defense in that political trial would at least have the opportunity of reducing the force of the testimony against them and of bringing opposing and contravening proofs; and then, at least, if you would have a political trial, you would have it with name and with substance to rest upon. But the idea that a President of the United States is to be brought into the procedure of this court by a limited accusation,

found "not guilty" under that, and convicted on an indictment that the House refused to sustain, or upon that wider indictment of the newspaper press, and without an opportunity to bring proof or to make arguments on the subject, seems to us too monstrous for any intelligence within or without this political circle, this arena of controversy, to maintain for a moment.

I may hope, somewhat briefly, to draw your attention to what lies at the basis of the discussion of the power and authority that may be rightfully exercised or reasonably be assumed in the action of the President to be exercised, even if it should prove erroneous within the premises of this matter between the two branches of the Government.

The coordination of the powers of Government is not only the greatest effort in the frame of a written constitution, but I think it must be conceded that as it occupies the main portion of the Constitution itself, so it has been regarded by all competent critics at home and abroad to have been a work most successfully accomplished by the framers of our Government. Indeed, if you will look at the Constitution, you will find that beyond that very limited though very important service, of dividing what belongs to Government and what shall be left to the liberties of the people, and then discriminating between what shall be accorded to the General Government and what shall be left to the domestic governments of the States, the whole service of the Constitution is to build up these three departments of the Government so that they shall have strength to stand as against the others, and not strength to encroach or overthrow.

Much has been said about Congress as being the great repository of power. Why, of course it is. It is the repository of power and of will, and there is not any difficulty in making Congress strong enough. Congress, that must be intrusted with all the strings of power and furnished with all its resources, the effort of the Constitution is to curb and restrain; and so you will find that almost all the inhibitions of the Constitution are placed upon Congress-upon Congress in withholding it from power over the people; from Congress in withholding it from power over the States; from Congress in withholding it from power over the coördinate branches; and, nevertheless, by a necessary and absolute deposit of authority in Congress, it is left master of the whole. This power of Parliament in the British constitution makes the Commons masters of the Government. To what purpose is it to provide that the justices of the Supreme Court shall hold their tenure for life, and that their salaries shall not be diminished during the term of their service, when Congress, by an undoubted constitutional power, may omit and refuse to appropriate one dollar to the support of any particular justice during any particular year or series of years? Nevertheless, the Government is to be administered by men, and in an elective government the trust is that the selected agents of the people will be faithful to their interest and will be endowed with sufficient intelligence to protect them.

But simple as is the constitution of the judiciary, and needing no care, when you come to the executive authority arises the problem which has puzzled, does puzzle, will puzzle, all framers of government having no source and no ideas of authority except what springs from the elective suffrage. You have the balance of the British constitution between the Crown and the Parliament, because it rests upon ideas and traditions and experience which have framed one portion of the Government as springing up from the people and in their right, and the other portion of the Government as descending from Divine authority and in its right; and you have no difficulty in enlarging, confirming, and bracing up the authority of Parliament, provided you leave standing the But authority and majesty of the throne. here the problem is, how, without the support

of nobility, of the fountain of honor, of time, of strength, of inheritance, how under a suffrage and for a brief period to make an Executive that is strong enough to maintain itself against the contentions of the Constitution?

Under these circumstances, and adjusting the balance as it is found in the Constitution, our ancestors disposed of the question. It has served us to this time. Sometimes, in the heat of party, the Executive has seemed too strong; sometimes, in the heat of party, Congress has seemed too strong; yet every contest and every danger passes away, managed, administered, controlled, protected by the great, superior, pre dominant interest and power of the people themselves. And the essence of the Constitution is, that there is no period granted by it of authority to the Senate in their six years' term, to the President in his four years' term, to the House of Representatives in their two years' term, no period that cannot be lived through in patience subordinate and obedient to the Constitution; and that, as was said in the debate which I read from the Convention, applied to the particular topic of impeachment, there will be no danger when a four years' recurring election restores to the common master of Congress and the Executive the trust reposed, that there will be a temptation to carry for political controversy and upon political offense the sword of the Constitution, and make it peremptory and final in the destruction of the office.

I beg leave, in connection with this subject, its delicacy, its solicitudes in the arrangement of constitutional power, to read two passages from a great statesman, whose words when he was alive were as good as anybody's, and since his death have not lost their wisdom with his countrymen; I mean Mr. Webster. In his debate upon the Panama mission he said, in speaking of the question of the confidence of Congress in the Executive:

"This seems a singular notion of confidence, and certainly is not my notion of that confidence which the Constitution requires one branch of the Government to repose in another. The President is not our agent, but, like ourselves, the agent of the people. They have trusted to his hands the proper duties of his office; and we are not to take those duties out of his hands from any opinion of our own that we should execute them better ourselves. The confidence which is due from us to the Executive and from the Executive to us is not personal, but official and constitutional. It has nothing to do with individual likings or dislikings; but results from that division of power among departments and those limitations on the authority of each which belong to the nature and frame of our Government. It would be unfortunate, indeed, if our line of constitutional action were to vibrate backward and forward according to our opinions of persons, swerving this way to-day from undue attachment, and the other way to-morrow from distrust or dislike. This may sometimes happen from the weakness of our virtues or the excitement of our passions; but I trust it will not be coolly recommended to us as the rightful course of public conduct."-Webster's Works, vol. 3, p. 187.

Again, in his speech on the presidential protest in the Senate in 1834,. he said:

The first object of a free people is the preservation of their liberty, and liberty is only to be preserved by maintaining constitutional restraints and just division of political power. Nothing is more deceptive or more dangerous than the pretense of a desire to simplify government. The simplest Governments are despotisms; the next simplest, limited monarchies; but all republics, all Governments of law, must impose numerous limitations and qualifications of authority and give many positive and many qualified rights. In other words, they must be subject to rule and regulation. This is the very essence of free political institutions. The spirit of liberty is, indeed, a bold and fearless spirit; but it is also a sharp-sighted spirit; it is a cautious, sagacious, discriminating, far-seeing intelligence; it is jealous of encroachment, jealous of power, jealous of man. It demands checks; it seeks for guards; it insists on securities; it intrenches itself behind strong defenses, and fortifies itself, with all possible care. against the assaults of ambition and passion. It does not trust the amiable weaknesses of human nature, and, therefore, it will not permit power to overstep its prescribed limits, though benevolence, good intent, and patriotic purpose come along with it. Neither does it satisfy itself with flashy and temporary resistance to illegal authority. Far otherwise. It seeks for duration and permanence; it looks before and after; and, building on the experience of ages which are past, it labors diligently for the benefit of ages to come. This is the nature of constitutional liberty; and this is our liberty, if we will rightly understand and preserve it. Every free Government is necessarily complicated, because all such

Governments establish restraints, as well on the power of Government itself as on that of individuals. If we will abolish the distinction of branches, and have but one branch; if we will abolish jury trials, and leave all to the judge; if we will then ordain that the legislator shall himself be that judge; and if we will place the executive power in the same hands, we may readily simplify government. We may easily bring it to the simplest of all possible forms, a pure despotism. But a separation of departments, so far as practicable, and the preservation of clear lines of division between them, is the fundamental idea in the creation of all our constitutions; and, doubtless, the continuance of regulated liberty depends on maintaining these boundaries."-Webster's Works, vol. 4, p. 122.

I think I need to add nothing to these wise, these discriminating, these absolute and peremptory instructions of this distinguished statesman. The difficulty and the danger are exactly where this Government now finds them in the withholding of the strength of one department from working the ruin of another.

Mr. CONKLING. Mr. President, I move an adjournment for the day.

The motion was agreed to; and the Senate, sitting for the trial of the impeachment, adjourned.

THURSDAY, April 30, 1868.

The Chief Justice of the United States took the chair.

The usual proclamation having been made by the Sergeant-at-Arms,

The Managers of the impeachment on the part of the House of Representatives and the counsel for the respondent, except Mr. Stanbery and Mr. Curtis, appeared and took the seats assigned to them respectively.

The members of the House of Representstives, as in Committee of the Whole, preceded by Mr. E. B. WASHBURNE, chairman of that committee, and accompanied by the Speaker and Clerk, appeared and were conducted to the seats provided for them.

The Journal of yesterday's proceedings of the Senate, sitting for the trial of the impeachment, was read.

The CHIEF JUSTICE. The first business in order is the motion of the Senator from Massachusetts, [Mr. SUMNER,] which the Secretary will read.

The Chief Clerk read as follows:

Whereas Mr. Nelson, one of the counsel for the President, in addressing the Senate, has used disorderly words, as follows, namely: beginning with personalities directed to one of the Managers he proceeded to say: "So far as any question that the gentleman desires to make of a personal character with me is concerned, this is not the place to make it. Let him make it elsewhere if he desires to do it," and whereas such language, besides being discreditable to these proceedings, is apparently intended to provoke a duel or to signify a willingness to fight a duel, contrary to law and good morals: Therefore, Ordered, That Mr. Nelson, one of the counsel of the President, has justly deserved the disapprobation of the Senate.

Mr. JOHNSON. Mr. Chief Justice, I move to lay the resolution on the table.

Mr. SUMNER. On that I ask for the yeas and nays.

The yeas and nays were ordered; and the Chief Clerk called Mr. ANTHONY's name.

Mr. ANTHONY. Before voting on this I should like to propose a question to the counsel, and I will do it in writing, or, if the Senate will allow me, I will do it verbally.

The CHIEF JUSTICE. If there is no objection the Senator from Rhode Island can propose a question.

Mr. ANTHONY. I wish to ask of the counsel if, in the remark which has been quoted in the resolution, it was his intention to challenge the Manager alluded to to a mortal combat?

Mr. NELSON. It is a very difficult ques tion for me to answer. During the recess of the Senate the day before yesterday the honorable gentleman [Mr. Manager BUTLER] remarked to me that he was going to say something upon the subject of Aita Vela, and desired me to remain. When the gentleman read his remarks to the Senate I regarded them as charging me with dishonorable conduct before the Senate, and in the heat of the discussion I made use of language which was intended to

signify that I hurled back the gentleman's charge upon him, and that I would answer that charge in any way in which the gentleman desired to call me to account for it. I cannot say I had particularly the idea of a duel in my mind, as I am not a duelist by profession; but, nevertheless, my idea was that I would answer the gentleman in any way in which he chose to call upon me for it. I did not intend to claim any exemption on account of age or any exemption on account of other things that are apparent to the Senate. That was all that I meant to signify, and I hope the Senate will recollect the circumstances under which this thing was done. The Senate has treated me and every other gentleman concerned in this case with the utmost kindness and politeness, and has given marked attention to what we have said, and the idea of insulting the Senate is a thing that never entered my mind. I had no such thought or design. I entertain the kindest feelings and the most respectful feelings toward the Senate, and would be as far as any man upon the face of the earth from saying anything which would justly give offense to the gentlemen of the Senate whom I was addressing.

Mr. SUMNER. Mr. President, I ask that the resolution be read again.

The Chief Clerk read the resolution. The CHIEF JUSTICE. The Secretary will proceed with the call of the roll on the motion to lay on the table.

The question being taken by yeas and nays, resulted-yeas 35, nays 10; as follows:

YEAS-Messrs. Anthony, Bayard, Buckalew, Cattell, Chandler, Corbett, Cragin, Davis, Dixon, Doolittle, Drake, Edmunds, Ferry, Fessenden, Fowler, Frelinghuysen, Grimes, Harlan, Hendricks, Howe, Johnson, Morrill of Maine, Morton, Norton, Patterson of New Hampshire, Patterson of Tennessee, Ramsey, Ross, Saulsbury, Sherman, Tipton, Trumbull, Van Winkle, Vickers, and Williams-35.

NAYS-Messrs. Cameron, Howard, Morgan, Morrill of Vermont, Pomeroy, Stewart, Sumner, Thayer, Wilson, and Yates-10.

NOT VOTING-Messrs. Cole, Conkling, Conness, Henderson, McCreery, Nye, Sprague, Wade, and Willey-9.

So the resolution was laid upon the table.

The CHIEF JUSTICE. The next business in order is the order proposed by the Senator from Pennsylvania, [Mr. CAMERON,] which the Secretary will read.

The Chief Clerk read as follows:

Ordered, That the Senate, sitting as a court of impeachment, shall hereafter hold night sessions, commencing at eight o'clock p. m. to-day, and continuing until eleven o'clock_p. m., until the arguments of the counsel for the President and of the Managers on the part of the House of Representatives shall be concluded.

Mr. SUMNER. I move to strike out all after the word "Ordered," and insert what I send to the Chair.

The CHIEF JUSTICE. The words proposed to be inserted will be read.

The Chief Clerk read as follows:

That the Senate will sit during the remainder of the trial from ten o'clock in the forenoon to six o'clock in the afternoon, with such brief recess as may be ordered.

Mr. SUMNER. On that I should like to have the yeas and nays.

Mr. TRUMBULL. Mr. President, I move to lay this whole subject on the table.

Mr. SUMNER. On that I ask for the yeas and nays..

The yeas and nays were ordered; and being taken, resulted-yeas 32, nays 17; as follows:

YEAS-Messrs. Anthony, Bayard, Buckalew, Cattell, Corbett, Davis, Dixon, Doolittle, Drake, Ferry, Fessenden, Fowler, Frelinghuysen, Grimes, Hendricks, Howe, Johnson, McCreery, Morrill of Maine, Morrill of Vermont, Morton, Norton, Patterson of New Hampshire, Patterson of Tennessee, Ramsey, Ross, Saulsbury, Sprague, Trumbull, Van Winkle, Vickers, and Willey-32.

NAYS-Messrs. Cameron, Chandler, Conkling, Cragin, Edmunds, Harlan, Howard, Morgan, Pomeroy, Sherman, Stewart, Sumner, Thayer, Tipton, Williams, Wilson, and Yates-17.

NOT VOTING-Messrs. Cole, Conness, Henderson, Nye, and Wade-5.

So the order and amendment were laid upon the table.

The CHIEF JUSTICE. Mr. Evarts will proceed with the argument for the President.

Mr. EVARTS. We perceive then, Mr. Chief Justice and Senators, that the subject out of which this controversy has arisen between the two branches of the Government, executive and legislative, touches the very foundations of the balanced powers of the Constitution; and in the arguments of the honorable Managers it has to some extent been so pressed upon your attention. You have been made to believe that so weighty and important is the point in controversy as to the allocation of the power over office included in the function of removal that if it is carried to the credit of the executive department of this Government it makes it a monarchy. Why, Mr. Chief Jus tice and Senators, what grave reproach is this upon the wisdom and foresight and civil prudence of our ancestors that have left unexamined and unexplored and unsatisfied these doubts or measures of the strength of the Executive as upon so severe a test or inquiry of being a monarchy or a free republic? I ask your attention to a passage from the Federalist, in one of the papers by Alexander Hamilton, who meets in advance these aspersions that were sought to be thrown upon the establish. ment of the executive power in a President. He there suggests in brief and solid discrimi nations the distinctions between the Presidency :

"The President of the United States would be an officer elected by the people for four years; the king of Great Britain is a perpetual and hereditary prince. The one would be amenable to personal punishment and disgrace; the person of the other is sacred and inviolable. The one would have a qualified negative upon the acts of the legislative body; the other has an absolute negative. The one would have a right to command the military and naval forces of the nation: the other, in addition to this right, possesses that of declaring war and of raising and regulating fleets and armies by his own authority. The one would have a concurrent power with a branch of the Legislature in the formation of treaties; the other is the sole possessor of the power of making treaties. The one would havea like concurrent authority in appointing to offices; the other is the sole author of all appointments. The one can confer no privileges whatever; the other can make denizens of aliens, noblemen of commoners, can erect corporations with all the rights incident to corporate bodies. The one can prescribe no rules concerning the commerce or currency of the nation; the other is in several respects the arbiter of commerce, and in this capacity can establish markets and fairs, can regulate weights and measures, can lay embargoes for a limited time, can coin money, can authorize or prohibit the circulation of foreign coin. The one has no particle of spiritual jurisdiction; the other is the supreme head and governor of the national church! What answer shall we give to those who would persuade us that things so unlike resemble each other? The same that ought to be given to those who tell us that a Government, the whole power of which would be in the hands of the elective and periodical servants of the people, is an aristocracy, a monarchy, and a despotism."

But a little closer attention both to the history of the framing of the Constitution and to the opinions that maintained a contest in the body of the Convention which should finally determine the general character and nature of the Constitution will show us that this matter of the power of removal or the control of office, as disputable between the Executive and the Senate, touches more nearly one of the other great balances of the Constitution; I mean that balance between the weight of numbers in the people and the equality of States, irrespective of population, of wealth, and of size. Here it is, if I may be allowed to say so, that the opinions to which my particular attention was drawn by the honorable Manager, [Mr. BOUTWELL,] the opinions of Roger Sherman, had their origin. One of the most eminent statesmen of the last generation said to me that it was to Mr. Sherman and to his young colleague, Mr. Ellsworth, and to Judge Paterson, of New Jersey, that we owed it, more than to all else in that Convention, that our Government was made what that statesman pronounced it to be, the best Government in the world, a Federal Republic, instead of being what it would have been but for those members of the Convention, as this same statesman of the last generation expressed it, a consolidated empire, the worst Government in the world.

Between these two opinions it was that the controversy whether the Senate should be admitted into a share of the executive power of

official appointment, the great arm and strength of the Government came into play; and as a part of his firm maintenance of the equality of the States Mr. Sherman insisted that this participation should be accorded to the Senate; and others resisted as too great a subtraction from the sum of executive power to be capable safely of this distribution and frittering away. Mr. Adams, the first President of that name, I am informed upon authority not doubted, bringing it to me from the opinion of his grandson, died in the conviction that even the participation in appointment that the Constitution, as construed and maintained in the practice of this Government, accorded to the Senate, would be the point upon which the Constitution would fail; that this attraction of power to comparatively irresponsible and unnoticed administration in the Senate would ultimately so destroy the strength of the Executive with the people and create so great discontent with the people themselves that the Executive of their own choice upon the Federal forces and numbers which the Constitution gives to that election would not submit to the executive power thus bestowed being given to a body that had its constitution without any popular election whatever, and had its members and strength made up not by the wealth and power and strength of the people, but by the equality of the States.

When you add to that this change which gives to the Senate a voice in the removal from office, and thus gives them the first hold upon the question of the maintenance of official power in the country, you change wholly the question of the Constitution; and instead of giving the Senate only the advisory force which that instrument commits to it, and only under the conditions that the office being to be filled they have nothing to say but who shall fill it, and if they do not concur still leave it to the Execu tive to name another and another and another, always proceeding from his original and principal motion in the matter, you change it to the absolute preliminary power of this body to say to the Executive of the United States that every administrative office under him shall remain as it is, and these officers shall be over him and against him provided they be with and for you; and when you add to that the power to say until we know and determine who the successor will be, until we get the first move by the Executive's concession to us of the successor, we hold the reins of power that the office shall not be vacated," you do indeed break down at once the balance between the executive and the legislative power as represented in this body of the latter department of the Government, and you break down the Federal election of President at once, and commit to the equality of States the partition and distribution of the executive power of this country.

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I would like to know how it is that the people of this country are to be made to adopt this principle of their Constitution that the executive power attributed to the Federal members, made up of Senators and Representatives added together for each State, is to go through the formality of the election of a President upon that principle and upon that calculation, and then find that the executive power that they supposed was involved in that primary choice and expression of the public will is to be administered and controlled by a body made up of the equality of States. I would like to know on what plan our politics are to be carried on; how can you make the combinations, how the forces, how the interests, how the efforts that are to throw themselves into a popular election to raise a presidential control of executive power, and then find that that executive power is all administered on the principle of equality of States. I would like to know how it is that New York and Pennsylvania and Ohio and Indiana and Illinois and Missouri and the great and growing States are to carry the force of popular will into the executive chair upon the Federal numbers of the Electoral Colleges, and