Ecience, and not binding according to the law of the land. This would invest the Senate of the United States with the most dangerous power that ever was invested in any tribuhal on the face of the earth.

It would enable the Senate of the United States, under the pretext of being a law unto itself, to defeat the will of the American people, and remove from oflice any man who might be displeasing to it; to set at naught elections and to engross into its own hands all the powers of the country. Senators, I can conceive of no despotism worse than that I can conceive of no dangers menacing the liberts of the American people more awful and fearful than the dangers which menace them now, if this doctrine finds any sort of favor in the mind or heart of any Senator to whom it is addressed.

I do not believe that the American Senate will, for one moment, cherish any such doctrine, or act upon it in th slightest degree. It would prostrate all the ramparts of the Constitution, despoil the will of the American people, and engross in the hands of the Congress of the United States all the powers that were intended to be limited and distributed among the different departments of the government.

Another question, Mr. Chief Justice, and it is a question of very considerable interest, is as to what are crimes and misdemeanors under the Constitution. I desire to remind the Senate and the Chief Justice of a proposition which was asserted at an early period in this trial, by one of the learned managers. I regretted at the moment that I had not answered it, but it is in the record and it is not too late to give a passing remark to it now. The honorable manager made use of the expression, that "The great pulse of the nation beats perturbedly, fitfully, pauses when we pause, and goes forward when we go forward."

And we have been told time and time again, that the honorable managers are acting for all the people of the United States. I may have something to say about that, Senators, before I close my remarks which I have to make, but I shall postpone the consideration of that for the present. The honorable managers told you that "The public pulse beats perturbedly, that it pauses when you pause, and goes forward when you go forward." And you have been told, time and time again, that the people out of doors are anxious for the conviction of the President of the United States. Permit me, Mr. Senators, to be guilty of the indecorum almost of saving one word about myself, and I am only doing so by the way of stating my argument.

In the whole course of my professional career, from the time I came first a young man to practice law till the pre*sent moment, I never had the impudence or the presumption to talk to a judge out of court about any case in which I was concerned. My arguments before him have always been made in court. I have had sufficient respect for the independence of the judges before whom I had the honor to practice my profession to take it for granted that they were men of honor, men of intelligence, and that they would not hear any remark which I should make to them out of doors, and not in the presence of my adversary.

Bat the doctrine here is that the "public pulse beats"— Ah! have we come to that? Is this case to be tried before the greatest court in Christendom, not upon the law, not upon the evidence, not under the instruction of the Chief Justice of the United States, but to be tried on common rumor; and is it to become interesting, or to cease to be interesting, just according to the beating of the public pulse. Why. Senators, if it were not that I do not intend to say one word designed to be offensive to any gentleman on the other side, or to the Senate, I would say that I almost regard this as an insulting argument. But I do not make use of that expression. It is not my intention in anything that I have said or may say to wound the sensibilities of any one, or to give just offense to anybody connected with this case.

But you are told that you are to try the case according to the public pulse. What an argument to advance to the American Senate! What an argument put forward in the American nation! Why, all history teems with examples of the gross, outrageous injustice which has been done in criminal trials. Trials in Parliament, and trials in courts of justice-aye, and our own country has not been exempt from some notable instances of it, where public clamor was allowed to influence the judgment of the judges. Those instances that are recorded in history, those instances of blood and of murder, of outrage and wrong perpetrated in the name of justice, are admonitions to us that the public pulse should have nothing to do with this trial.

Senators, regarding every man whom I address as a judge, as a sworn judge, allow me for one moment to call your attention to one great trial in this country, which I hope in some of its principles will be applied by you in this. There was a case which occurred in the early history of the American nation where there was a great political trial, and where the waves of political excitement ran high. It was understsod that the President of the United Stated himself desired the conviction of the offender. The public pulse beat fitfully then. It went forward as the judge went forward, and it went backward as the judge went backward.

It was a great occasion. It was one of the most illustrious trials that ever occurred in English or American jurisprudence. There was a great criminal who was morally guilty indeed, for so he has been held in the judgment of posterity. There sat the judge, one of the illustrious predecessors of the illustrious and distinguiseed gentleman who presides over your deliberations now. There he sat, calm, unmoved, unawed by the public pulse, the very impersonation of justice, having no motive under heaven except to administer the law and administer it faithfully,

and he had nerve and fimness to declarre the law in the fear of God rather than in the fear of man.

Although the criminal was acquitted, and although there was some popular clamor in reference to the acquittal, yet the judgment of posterity has sanctioned the correctness of the judicial determination, and every American citizen who has any regard for his country, every judge and every lawyer who has any respect for judicial independence and integrity will look back with veneration and respect to the name and to the conduct of John Marshall; and so long as judicial independence shall be admired, so long as judicial integrity shall be respected, the name of John Marshall will be esteemed in our own country, and throughout the civilized world, as one of the brightest luminaries of the law, and one of the most faithful judges that ever presided in a court.

It is true that clouds of darkness gathered around him for the moment, but they soon passed away, and were forgotten,

"Like some tall cliff that lifts its awful form,

Swells to the gale, and midway meets the storm. Though around its breast the rolling clouds are spread, Eternal sunshine settles on its head."

Such was the name and such the fame of John Marshall, and God grant that his spirit may fall like the mantle of Elijah on the illustrious magistrate who presides, and on every judge who sits here, so that you may catch its inspirations and throw to the owls and to the bats all those appeals to your prejudice, and so that you may discharge your whole duty in the fear of that God to whom you appeal. If I might press such a low, contemptible consideration on the minds of Senators, if I might be pardoned for the very thought which makes me shrink back almost with horror for myself, I would say to Senators that, if you rise above those prejudices cast this clamor away from your thoughts, do your duty like impartial men in the fear of God and in no pitiful political point of view, it would make you stand higher with your own party and with the whole world, Forgive me for such a dissertation, for really it is beneath the dignity of the Senate to entertain such a thought for a moment. No, Senators, I entreat you as judges, I entreat you as honora ble men, I entreat you as sworn officers of the law, and thus entreating you, I say that I banish all such thoughts from my mind, and come before you as an impartial tribunal, believing before God and my country that you will try to do your duty in this case, irrespective of popular clamor and regardless of opinions from without; and when you, and I, and all of us shall pass away from the scene of human actions, and when the memory of the stirring events which now acitate the public mind shall almost be forgotten, I trust that future ages will look back with wonder and admiration, and with love, and respect, and honor, to the American Senate for the manner in which it shall have discharged its duty in this case. I trust, Senators, that the result will be such as to command the approbation, not only of your own consciences, not only of the State which you have the honor to represent, but the approbation of Him who is a greater judge than you are, and the approbation of posterity.

A most excellent rule of interpreting was adverted to by Chief Justice Marshall, in the trial to which I have referred, Burr's trial, speaking of the words "levying war." as used in the Constitution, said that it was a technical term, and that it must be considered as being employed in the Constitution as it was employed in England, unless the contrary was proved by the contract, or unless it was incompatible with other parts of the Constitution. He held that it was used in the same sense in which it was used in England, in the statute of Edward the Third, from which it was borrowed. Now the words treason, bribery, and crimes and misdemeanors, were words jusť as familiar to the framers of the Constitution as they are to us.

One of the honorable managers made an argument here to show that because Dr. Franklin was in London at the time of Warren Hastings' trial, that had a good deal to do with the proper mode of construing the American Consti tution on the subject of the power of the Chief Justice. Those words were almost as familiar to the lawyers at the time of the formation of the Constitution as they are to the lawyers and judges of the present day.

In one passage of Burke, he says that crimes and misde. meanors are almost synonymous words, but, in another and further expression of it, he undertakes to show, and does show, that the word "crimes" is used in the sense of charges such as usually fall within the denomination of felony, and that the word "misdemeanor" is used in the sense of those trivial and lighter offenses, which are not punished with death, but with fine or imprisonment.

Now, what is the rule of interpretation? It is not necessary for me to turn to authorities on the subject. Words are to be construed in the connection in which they are used and the sense of those being of the same kind. If I correctly apprehend the law at the date of the forming of the Constitution, treason, by the law of England, was a felony, punishable with death; bribery was misdemeanor not punishable with death, but punishable with fine and imprisonment. When the word "crimes," therefore, is used in the Constitution, it is to be construed in the same sense as the word "treason."

It is to be understood as a felonious offense; an offense punishable with death or imprisonment in the penitentiary. The word "misdemeanor" has reference to other offenses. It does not mean simple assault, for the expression in the Constitution is "high crimes and mi-demeanors"-high crimes referring, of course, to such crimes

as are punishable with death, and high misdemeanors referring to such misdemeanors as were punishable by fine and imprisonment, uot to such simple misdemeanors as an assault.

What then is the argument upon that? What is the true meaning of the words "crimes and misdemeanors" as embodied in the Constitution of the United States? One set of constitutionists hold that you are not to look at the common law to ascertain the meaning of the words "crimes and misdemeanors," but that you are to look at the parliamentary law to ascertain. Now, so far as I have any knowledge on the subject, the parliamentary does not define or did never undertake to define what is the meaning of "crimes and misdemeanors."

What did the parliamentary law undertake to do? It undertook to punish not only its members, but citizens, for offenses which were regarded as offenses against the government. Often without turning the offender over to the courts, the parliament impeached him, or proceeded against him in a manner similar to impeachment. But there was no definition, as far as I know, of "crimes and misdemeanors."

The language of the honorable manager is in great part a law unto itself; but when framers of the Constitution incorporated these words in our charter, did they borrow them from parliamentary law, or did they get them from Blackstone and Hall and from the other writers on criminal law in England? They got them from the common law of England, and not from the law of parliament. Then what proposition follows as a corollary from the premises? I have laid down, if the premises be correct, why it follows inevitably that the words crimes and misdemeanors received in the sense in which they are employed by writers on criminal law in England.

I doubt whether the laws of the United States within the meaning of the American Constitution has a right to create a new crime and a new misdemeanor from something which was not known as a crime or as a misdemeanor at the date of the adoption of the American Constitution. I think it is a matter of great doubt, to say the least of it.

It is, Mr. Chief Justice, on these and on kindred questions, that I respectfully submit that we have a right re spectfully to demand at the hands of your honor a judicial exposition of the meaning of the Constitution. It will be for you, under your own sense of duty, under your own construction of the powers conferred upon you by the Constitution of our common country, to decide for yourself whether this respectful question will be answered or not. Senator YATES, at 4 o'clock, suggested that if counsel desired the Court might now adjourn.

Mr. NELSON intimated that he did feel somewhat fa tigued, but would proceed if the court did not now desire to adjourn.

Senator YATES submitted his motion and the court thereupon adjourned.

Ordered, That hereafter the hour for the meeting of the Senate, sitting for the trial of impeachment of Andrew Johnson, President of the United States, shall be 12 o'clock M. of each day, except Sunday.

The order was adopted by the following vote:YEAS--Messrs. Anthony, Davis, Doolittle, Fessenden, Fowler, Grimes, Henderson, Hendricks, Johnson, McCreery, Morgan, Morrill (Vt.), Morton, Patterson (Tenn.), Ramsey, Saulsbury, Trumbull, Van Winkle, Vickers, Willey, Yates-21.

NAYS-Messrs. Conkling, Conness, Cragin, Edmunds, Harlan, Howe, Pomeroy, Sprague, Stewart, Sumner, Thayer, Tipton, Wilson-13.

Reporters and the Final Deliberations. Mr. EDMUNDS then offered an amendment to admit the official reporters to report the speeches on the final deliberation of the Senate, which was objected to by a number, and went over under the rules.

Mr. Nelson's Argament Continued. Mr. NELSON then proceeded with his argument as follows:-

Mr. Chief Justice and Senators:-In the course of my argument of yesterday, I alluded to certain opinions expressed by one of the managers in a report, to which his name is affixed, made to the House of Representatives. Lest any misunderstanding should arise, I desire to state, in regard to that portion which I adopt as my argument, that I do not consider that there is any inconsistency in the position which the honorable manager assumed in his report to the House of Representatives and the position

as

which he has assumed here in argument. If I understand the honorable manager's position, while he in it, I understood yesterday, that you are to look to the common law, and not merely the law of Parliament, in order to ascertain the use of the words crime and mi-demeanor in the Constitution, yet if I correctly com prehend his argument, he insists that it is competent for Congress to make a crime or misdemeanor under the Constitution, and that such crime or misdemeanor is an impeachable offen-e. If I correctly understand the gentleman's position, I hope neither he nor the court will mis understand me when I call attention to those parts of the gentleman's argument which I rely upon, because the arguments he makes are much more forcible than any I can hope to make.

Mr. Nelson quoted from the minority report of Mr. Wilson, now one of the managers, made in November, 1867, on a former impeachment investigation, and continued:-I come to a point now which I have already endeavored to make my argument, namely, that the definition given by the honorable manager who opened the argument is not a correct definition. That opening, as the Senate will remember, was accompanied by a very carefully prepared and learned argument on the part of Mr. Lawrence, to which reference was made by the honoraale manager. It

is this--"We define, therefore, an impeachable high erine 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 inte rest, and this may consist of a violation of the Constitution, of law, and official oath.. or of duty by an act committed' or fomitted, or without violating positive law by the abuse of revolu tionary powers from improper motives, or for any improper purpose." Now, if you go to the law of Parliament for a definition of treason or other high crimes, as I have already said, you will not find it. If you will not find it if you go to to the law of Parliament for the purpose of ascertaining what is an impeachable offense, then you go to a law that is not in force in this country at all. Every spécies of offense which Parliament chooses to consider as such, was declared by statute or was the subject matter of impeachment by Commons or the House of Lords. Their form of government is different from ours. Persons were tied in England for very slight and very trivial offenses, and severe punishments, were inflicted on various occasions in the progress of English history, upon persons who were supposed to have been guilty of such offenses. This process of impeachment is one, of which we have not any account in history so far as I' have been able to examine the subject. It is truc, as the gentlemen has said, that five hundred years ago the subject was introduced into the English Parliament, and they considered it then, and claimed that the House of Commons had jurisdiction over this subject in consequence of the law of Parliament, but how that law of Parliament arose, where it originated, neither the House of Lords nor Mr. in his elaborate report and argument, in the House of Commons undertook to state. It arose from what they assumed to be usage, and if you go to Parliament in order to determine that in this country then you would be obliged to punish anything as an offense, without any authority whatever.

Mr. Nelson read from the history of the British Constitution, instances of punishment in England, by the pillory and by whipping at the cart's tail, for trifling offenses, which, he said, if the declaration of the managers were correct, would be impeachable offenses.. He continued, you can only look to the common law for the purpose of ascertaining the definition of high crimes and misdemeanors. Mr Story, I know, says, in his work on the Constitution, that in one case it was settled in this country that the term "crimes and misdemeanors" did not have the signification which I insist upon, but at the same time he asserts that there is a contrariety of opinion on this subject among interpreters of the Constitution, and that distinguished gentlemen, as I understand him, does not regard the question as being by any means finally and authoratively settled, so that in order to ascertain what are impeachable crimes and misdemeanors, it is necessary to go to the common law for a definition of what is an impeachable offense in this country, within the meaning of the Constitution as a crime or misdemeanor. You must show that it was known as such at the time when the Con ti tution was adopted; in other words, I respectfully maintain that Congress has no power to create a crime different in its nature from crimes and misdemeanors known and un derstood to be such at the time of the adoption of the Con stitution. Briefly and imperfectly as this argument has been presented, I will not undertake to dwell upon it further. I desire, although it is not exactly in the order which I had prescribed for my remarks, to call the attention of the Senate to some observations made by the honor able manager who addressed the Senate yesterday; and in order that there may be no misunderstanding as to the observations to which I wish to call your attention, I will read a paragraph from that gentleman's speech of yesterday.

Mr. Nelson quoted a portion of Mr. Boutwell's argument charging that the President is a man of violent passions and unlimited ambition, and that he seeks to use subservient and corrupt men for his own purposes, and then abandons them. And alluding to his treatment of Judge Black, saying that, though announced as the President's counsel, he had never appeared, he continued: -It is true, Senators, a source of much embarrassment how to speak in reply to the accusations which have thus been preferred against the President of the United States." It would seem, from the description given by the honor.

able manager, that the very presence of the President would breed a contagion, as if almost the very atmosphere of his presence would produce death, but I very respectfully insist on the statement of a fact, which I will make to you in a moment, and which, I think, is called for by a reference which has been made to Judge Black, to show that injustice has been done, unintentionally, by the manager in the language he has used. I regret that this topic has been introduced.

I am not aware that I ever saw Judge Black in my life until I met him in consultation in the President's Council Chamber, and in all the interviews we had our intercourse was very pleasant and agreeable, and it is with feelings of embarrassment that under these circumstances I deem it necessary to say anything upon this subject at all; but in order that you may understand what I have to say about it, I desire to refer the Senate to a brief statement which I have prepared, and which, on account of the delicacy of the subject, I choose to put in writing, and, although I have no had the time which I could have desired to prepare it, it will comprehend all the material facts of the case. You will understand that I do not propose to give a full statement, but a synopsis of what may be called the Alta Vela case. A mere outline will be sufficient.

Having given this outline of the facts in relation to the case, Judge Nelson proceeded to say that after the action in the matter which he had recited, while Judge Black was one of the counsel for the President, he had an interview with the respondent in this case, urging upon him to take action in reference to the rights of citizens of the United States upon that island and the sending of an armed vessel to take possession of it. The President having declined to do so, Judge Black declined to appear further as counsel in this case, Such, said he, are the facts, in relation to the withdrawal of Judge Black, and so far as the President of the United States is concerned, the "head and front of his offending hath this extent, no

more."

It is not necessary that I should censure Judge Black, or make any imputation upon him or any of the honorable managers. I have no reasons to charge that any of the managers are engaged or interested in it. The presumption is, that the letter which I read, which was signed by him, was signed as such letters often are, by members of Congress without any personal interest in the matter to which they relate. Judge Black thought it his duty to press this claim, and now Senators, I ask you to put yourselves in the place of the President of the United States, if his action in this matter is made a subject of accusation against him. Ask yourselves how the President must feel in relation to it. I am willing that this subject should he spread before the country, and that even his enemies should understand what has been his conduct and his motives in this matter.

I wish to call your attention particularly to the fact, that all these transactions took place before the impeachment proceedings were commenced, and that the charges have been made since. Another fact in favor of the Presi dent is, that while I do not make any implications against the honororable managers, these recommendations to which I have referred, were signed by the honorable gen tlemen whom the House of Representatives have intrusted with the duty of managing the impeachment against him. Let me suggest a single idea with regard to the impeachment. It the President went to war with a weak and feeble power and gained an island it would seem that he did so in fear of the managers, and in fear of losing the high and valuable services of Judge Black.

If he refused to do what they called upon him to do, there was danger that he would exasperate Judge Black, and it was under these delicate circumstances that this question was presented to the President. He was between Scylla and Charbydis. In forming his determination in regard to the matter, no matter which way he might determine, his integrity might be assailed. But the honorable managers must know the President less familiarly than I do. if they supposed that he could be driven or forced by any consideration to do what he thought wrong. He is a man of a peculiar disposition.

By careful management he may perhaps be led, but it is a délicate and difficult matter to do that which, with his peculiar disposition, no man under Heaven can compel him to do: go one inch beyond what he believes right; and although he knew that by rejecting this claim he night raise up enemies; and although he was well aware that a powerful influence might be brought to bear against him on his trial, and it might be trumpeted over the land, from one end to the other, that Judge Black had abandoned him on account of his belief in his guilt. Although the President knew that a black cloud would be raised against him, he was prepared to say that "though in that cloud were thunders charged with lightning, let them burst."

He placed himself upon the principles of the Constitution, faithful to the rights of the people who had exalted him to that high position, unmindful of self and regardless of consequences, and he was determined not to be driven to any act which he believed to be wrong; determined not to use the whole power of the United States against a little feeble power that had no capacity to resist. He was determined not to be used as an instrument in the hands of anybody, or any set of men under Heaven, to carry on a speculation which he believed might be carried on with dishonor to the government or disgrace to himself, if he consented to be concerned in it. I ask you, then, to weigh his conduct, to allow an impartial judgment, and look this statement of facts in the face, and pronounce upon it as you have to pronounce upon this impeachment, when you come to look over the whole of the President's conduct. I

think you will find that, like the grave charges presented by the honorable manager yesterday, they will vanish away, and "like the baseless fabric of a vision, leave not a wreek behind."

I trust that the conclusion of this trial will be such that, although the President is now passing through the fiery furnace, and although he is for every act being called to an account, he fears not the investigation; he challenges the utmost scrutiny.that can be made into his conduct. While, as I have said, he hurls no defiance at the Senate, and does not desire his counsel to say a word that shall be offensive to this body, yet he defies his enemies as he always has done, and appeals to his own motives of purity and honesty to vindicate him in this case, as in every other. Instead of being a matter for accusation against the Presi dent of the United Statee, in the view that I entertain of it, and in the view which I think every high-minded man will entertain, his conduct will clevate him a head and shoulders taller in the estimation of every high-minded man, and it will le regarded as one of the most worthy acts of his life, that lie could not be coaxed nor driven into a wrong act.

This "Alta Vela" affair is referred to, as though the President had done something wrong. What wrong did he do? How did any failure result from Judge Black's refusal to act as counsel? Did the President discard Judge Black, and tell him he did not want him to appear any more in his case? No, sir; it was upon his own voluntary motion that he withdrew from the case. If the President has done him any injury, he knows it, but his counsel know it not. I leave it for the judgment of the world to determine how much justice there is in the accusations which are so strongly made against him.

Senators Allow me to call your attention to another paragraph in the speech of the honorable manager who last addressed you (Mr. Boutwell). It is not my purpose or intention to endeavor to answer at length that able and carefully-prepared argument which the honorable manager has made. I must leave notice of that to those who are to follow me on the side of the President, but there is another paragraph, which reads in these words: "Having indulged his Cabinet in such freedom of opinion when he consulted them in reference to the constitutionality of the bill, and having covered himself and them with public odium by its announcement, he now vaunts their opinions, extorted by power and given in subserviency, that the law itself may be violated with impunity," "This," says the President, "is the exercise of my constitutional right to the opinion of my Cabinet." "I" says the President, "am responsible for my Cabinet." Yes, the President is responsible for the opinions and conduct of men who give such advice as is demanded, and give it in fear and trembling, lest they be at once deprived of their places. "This is the President's idea of a Cabinet, but it is an idea not in harmony with the theory of the Constitution." In another place the gentleman speaks of the mentbers of the Cabinet as being serfs. "It was the advice of serfs to their lord, of servants to their masters, of slaves to their owners."

I desire, Senators, to refresh your recollection, by calling your attention to the extract from the President's message, which was put in evidence upon the part of the prosecution, dated December 12, 1867, and I wish to state in reference to this message, as well as all other documents signed by the President, that if any rule of law is to cbtain in this high and honorable tribunal, it is that when we put these documents before the Senate they may be permitted to speak as witnesses.

They do not try to discredit this document. I regretted that we were not permitted to introduce certain members of the Cabinet to prove certain statements of the Pre-ident: yet, upon sober, second thought, I am inclined to the opinion that probably the Senate had settled the question exactly right-that it was unnecessary for us to introduce members of the Cabinet or introduce their testimony to sustain these statements so long as they are not impugned on the other side. I will read the extract from page 138 of the reported proceedings:

"This was not the first occasion on which Mr. Stanton, in discharge of a public duty, was called upon to consider the provisions of that law. The Tenure of Office act did not pass without notice. Like other acts, it was sent to the President for approval. As is our custom, I submitted its consideration to my Cabinet for their advice upon the question whether I should approve it or not. It was a grave question of constitutional law, in which I would, of course, relv most upon the opinion of the AttorneyGeneral and Mr. Stanton, who had once been AttorneyGeneral."

Nor can such words be unnoticed as the honorable manager has used-"he calls his serfs around him." The President says: "Every member of my Cabinet advised me that the proposed law was unconstitutional. All spoke without doubt or reservation, but Mr. Stanton's condeinnation of the law was the most elaborate and emphatic. He referred to the constitutional provisions, the debates in Congress, especially to the speech of Mr. Buchanan when a Senator; to decisions of the Supreme Court, and to the usage from the beginning of the government, through every successive administration, all concurring to establish the right of removal as vested by the Constitution in the President.

To all these he added the weight of his own deliberate judgment, and advised me that it was my duty to defend the power of the President from usurpation, and to veto the law." There is the plain, unvarnished statement of the President of the United States, uncontradicted by any one at all, a statement that we offered to verify by the introduction of members of the Cabinet as witnesses. We

offered to prove that every word-at least the substance of every word-contained in that paragraph of the message was correct, had we been permitted to introduce the members of the Cabinet, but our testimony was not admitted; and ina much as it was not admitted, since this message was introduced by the prosecution and we offered to prove it, I assume as an indisputable fact on this occasion, that Mr. Stanton, about whom the world is to be set on fire now, advised the President that this Tenure of Office act, about which such a great cry has been raised in the land' was unconstitutional, and that it was his duty to veto it I never saw Mr. Stanton to my knowledge, but if I were in his place, I think I would say, as some one else has said, "Save me from my friends, and I will take care of my enemies." I think if any man ever had reason to exclaim, Save me from my friends," Mr. Stanton has had reason to do so, and to exclaim, "Save me from the disgrace to any independent officer of the low, mean, debased. mercenary motives by which such an officer may be influenced. But as it is a sort of a family quarrel, I will not interfere any further," One other thing in regard to Mr. Stanton; I will show you that before he advised the President that this law was unconstitutional, he advised him on another matter which does not stand in the category of his opinions as a member of President Johnson's Cabinet.

On the 3d of March, 1865, Mr. Stanton addressed a letter to his Excellency, Andrew Johnson, Vice President elect, in which he says that the War Department had learned with admiration the firmness and faithfulness with which he had discharged his duties as Military Governor of Tennessee, and that his noble and patriotic services were duly appreciated, and congratulating him on being called from the arduous and trying duties which he had so honorably performed, to the safe and easy duties of civil life, assuring him that he was about to assume the duties of Vice President at the close of a period of unparalleled trial, after having brought peace and safety to his own State.

Three short years have elapsed since the letter by Mr. Stanton indorsing the President of the United States was written. I have referred to it for the purpose of showing you that when I spoke of the services of the President, I was only speaking in regard to matters for which at that time he received the high encomium of Mr. Stanton-for services in behalf of the Union for which he had not hesitated to expose even his own life.

It is hardly conceivable that in the short period of three years a gentleman of whom the Secretary of War spoke in high terms of commendation, which I have read to you, should become the monster, the tyrant, the usurper, the wicked inan, whom he is represented to be upon the other side. Mr. Stanton runs through this whole trial. He is, I believe, in eight of the eleven articles of impeachment. His name is almost everywhere, and you have him in two relations. First, as indorsing the President, in the words which I have read to you, and also indorsing the President's action when the Civil Tenure bill was passed, in March, 1867, and if a difference of opinion grew up afterwards, and unkind feelings existed between them, and if there was a loss of confidence on the part of the President, and if their relations towards each other became less harmonious than they had been before, all I have to say about it is, that it furnishes no ground of impeachment; none in the world; nor should it, in the slighest degree, affect his character or motives.

There is one other thing, before I resume the consideration of the various articles of impeachment, that I desire, Senatore, to call your attention to, and that is this same proceeding which was had in the House of Representatives upon the subject of impeachment. I know not how it strikes the minds of Senators, nor how it impresses the minds of the people of the country; but one of the strangest of things in the history of our government is that these articles of impeachment should be gotten up against the President after twelve months' examination of this matter, and that charges against him, of which I will speak after a while, should be founded upon acts that were done in reference to the Thirty-ninth Congress.

Is it not passing strange that if the President was guilty of the acts charged against him, and if he has done acts worthy of impeachment, that the Thirty-ninth Congress took no notice of it; and that after that Cougress is defunct, passed out of existence, its memory and name gone into history, is it not strange that another Congress should take up offenses against that Congress and make them matters of grave accusation against the President? One of the charges presented against him by the House of Representatives is, that he has been guilty of an intent to subvert the government of the United States. [Reading the first article of impeachment.] The fact is, if my memory serves me aright, and I have not been misinformed, the House of Representatives, when they considered these articles referred to

The Chief Justice was compelled to call the Senate to order, as it was impossible to hear the speaker on account of the conversation in the hall and galleries.

Mr. NELSON, resumed:-The House of Representatives refused to entertain these articles of impeachment against the President by a solemn vote, and if there were any law in this tribunal, as the gentlemen say there is, not unless it be that law of Parliament which they rely upon, and which amounts to no law at all. If there was law here, or any application of law by analogy of the law, I would avail myself of the doctrine of estoppel, which was so learnedly expounded by one of the learned managers, and I would insist that the House of Representatives, with all due reference and respect, after having voted down this charge that the President had slandered and maligned the Congress of the United States were stopped making any accusation of that kind against the President now.

But I hope I may say, without offense, that still the Senate of the United States, sitting here as a judicial tribunal, can look to the circumstances under which these charges were preferred, without any disrespect whatever to the House of Representatives; and when you go to the circumstances under which these charges of impeachment were preferred, you have, at least, evidence that they were done without any great amount of deliberation in the House, and possibly under the influence of that excite ment which great assemblies, as well as private indi viduals, are liable to experience, and which this assembly of grave, reverend signors, who are impanelled here under the Constitution, may look upon and must regard in con sidering the facts in the case.

When articles of impeachment were presented against Warren Hastings, in England, they were the subject of long and anxious debate in the Parliament before they were presented; and Senators, I maintain that it is your province and your duty to look to this fact, and not to give the same importance to accusations made under more careful deliberation, especially when the Honse of Representatives had a short time before acquitted the President of a large number of the charges pre sented against him. In the unanimous report, presented by the committee under these circumstances, it will be no disparagement to the House, no disparagement to ourselves to look at the fact that these charges were hastily drawn up, and if upon a sober view of the facts you should believe that these charges came to you in at least a questionable shape, so far as the circumstances under which they were adopted are concerned, it will be no reflection upon the House should you so decide, any more than it would were a private individual only con cerned. As the House of Representatives is composed of men of flesh and blood like yourselves, I trust they will consider it no disparagement to say that they were acting under the impulse of feeling, and what, upon second sober thought, they would not do over again.

We all know human nature well enough, at least in our own persons and characters, to know that when we act in passion, in hate or in excitement, we are apt to do things which, upon reflection, we have reason to regret. And these actions, while they are in a great measure excusable on account of the haste and passion in which they are committed, yet they are actions which do not command the same power and influence in society that they would do if they were the result of grave and careful consideration.

Now, Senators, I will have to call your attention to these different articles of impeachment, though it is rather a disagreeable thing to treat this mill-horse round, and take them up one by one, and make brief comments upon them, as it is my purpose to do, though I know the subject is becoming stale and weary, not only to the Senate but to those who gather around to hear this inves tigation. Yet I cannot, in accordance with my sense of duty in this case, take my seat until I offer some consideration to the Senate on each one of the articles of impeachment, although it must necessarily become, to ↑ some extent, 8 tedious business, yet I do so because, Senators, if vou fol low the precedents of other cases, you will be required to vote upon each one of these articles separately, and will have to form your judgments and opinions on each in a separate way. Now, in regard to the first article of impeachment, it may not be out of place to look to that ar ticle as it is presented, and to state very briefly the article itself. I do not propose to go through all the verbiage of that article, nor to repeat all that is said in the answer, but the principal features of it are these:

The Speaker here quoted the article in substance, and the answer of the President thereto, and then continued: Now, one word or one thought, Senators, before enter ing upon the consideration of this first article, which I conceive is applicable to all the articles. Indeed, much of what we have to say on the first article applies to all the other articles, and involves, to some extent, a necessary repetition, but I shall endeavor, as far as I can, to avoid such repetition. Now all these articles of impeachment, or nearly all all of them, charge a removal.

If you follow the precedents of trials of impeachment which we have already had in the United States, and especially if you follow the decisions on the British Parliament, there ought to be something substantial in the asticles that are preferred against a man. Now, what is it that is provided for by the Civil Tenure bill? Why, it is removal of a person, and that is what is charged in each one of what I may, for want of better work, call the "counts" of this indictment.

Now, Senators, if you follow the law, and the rules of law that have been adopted in other cases, and look to them as being a precedent to some extent, although not binding and obligatory to all intents and purposes as judicial procedures, what is the familiar rule of the law? There is not a judge or lawyer in this Senate who does not know that in every law book that has been written for two hundred years, a distinction is taken between a crime and an attempt to commit a crime. The distinction is just as broad and wide as Pennsylvania avenue?

Why, according to statutory regulations almost every. where, and even according to the common law, murder is one thing, and an attempt to commit murder is another and a dinerent thing. Burglary is one thing, and an at tempt to commit that offense is another and a different thing. Now I ask with all earnestness of this Senate, as lawyers and judges, if the doctrine contended for by the learned managers be the true doctrine, that the civil Tenure bill is constitutional, and that the President has no power to remove except with the advice and consent of

the Senate, then, Senators, I ask you how is it that the President can be found guilty of removing Mr. Stanton from office?

Taking the premises of the honorable gentleman to be correct, when there was no removal at all, but there was an attempt to remove; there is no sort of doubt but there was no removal from office at all; and vou do not bring it within the Civil Tenure bill unless you have a case of removal. It is not a case of removal, but, if their construction be true, it is a case of an attempt to remove a person from office; so that it is impossible for the honorable managers to escape the dilemma which the nature of their case places them in on the first count.

I desire to maintain briefly three propositions. First, that the Tenure of Office bill is unconstitutional and void. Second, that if the civil Tenure of Office bill is not unconstitutional, it does not embrace such a case as the removal of Mr. Stanton; and third, if both these propositions are erroneous, that the President acted with a laudable and honest motive, and is therefore not guilty of any crime or misdemeanor.

On the first proposition as to the unconstitutionality of the Civil Tenure of Office bill, as it has not been done already in behalf of the President, I avail myself of the occasion to remind you of certain things which occurred in the debates of 1789, although I know they are familiar, probably, to every Senator I address, yet I regard these things as material and important to our line of defense, and at the risk of wearying the patience of the Senate, I must ask the privilege of presenting briefly the views I entertain on that subject..

In the House debate which occurred on the 16th of June, 1779, on the bill for establishing an Executive Department, to be denominated the Department of Foreign Affairs, Mr. White moved to strike out the words "to be removable from office by the President of the United States." He advocated this because the Senate had the joint power of appointment. His views were sustained by Mr. Smith, of South Carolina; Mr. Huntington, Mr. Sherman, Mr. Jackson, Mr. Gerry and Mr. Livermore, and were opposed by Messrs. Benson, Ames and others, as is shown in Seaton's Debates, vol. 1, pp. 473 to 608.

Mr. Madison said, in that debate, it was 'evidently the intention of the Constitution that the first magistrate should be responsible for the Executive Department, and that so far, therefore, as we do not make the officers who are to aid him in the duties of that department responsi ble to him, he is not responsible to the country, basing his argument mainly on the constitututional provision that the Executive power shall be vested in the President.

Mr. Sedgwick said if expediency is at all to be considered, gentlemen will perceive that this man is as much an instrument in the hands of the President as the pen is the instrument of the Secretary in corresponding with foreign courts. If, then, the Secretary of Foreign Affairs is the mere instrument of the President, we would suppose, on the principle of expediency, this officer should be dependent upon him.

I say it would be absurd in the highest degree to continue such a person in oflice contrary to the will of the President, who is responsible that the business be conducted with propriety and for the general interest of the nation. Upon that debate I merely suggest that it states plainly the affair as it exists between the President and Mr. Stanton, and as this debate occurred goon after the adoption of the Constitution, and that several gentlemen who had participated in the formation of the Constitution-among them Mr. Madison, one of the ablest men who ever wrote on this subject, not even excepting Alexander Hamilton-also took part in this debate. We must give it the highest consideration, and if there is to be anything in the doctrine of the law, which is applied to every other case, that when a decision of a legal question is made, that decision should stand; and if there be anything in the doctrine of State decisions, I maintain, Senators, that an opinion which, so far as I know, has never been controverted at any time except during the time of Andrew Jackson, and an opinion which has stood for nearly eighty years, is not an authority, then I can conceive of nothing that is sufficient to be taken as a precedent.

If, according to the English law, a man is protected in his real estate after sixty years' possession, and if, as in my own State, seven years' adverse possession gives a good title, why may we not argue and argue with propriety, before the American Senate, that this question was settled eighty years ago, and when the decision has never been controverted until the present time, except on the occasion to which I have referred, I do maintain, Senators, as earnestly as I am capable of maintaining, any proposition, that that decision is an authoritative conclusion, and is on principle binding and obligatory on this Senate, and that you must follow it on the same principle that judges are in the habit of following judicial determinations in reference to the rights of property which have been long acquiesced it, and have become principles of law.

Mr. Nelson then went on to quote the argument made by Mr. Sedgwick, in the debate in the House of Representa tives, in 1789, when the subject of the President's power to remove civil officers was under discussion, in which argument Mr. Sedgwick had stated many of the reasons why the power of removal must be left in the President. Among those reasons were the following:-That the President might be fully convinced of the moral or mental unfitness of the person to hold his position, but could not in one case out of ten bring sufficient evidence thereof, before the Senate; that under those circumstances it would be wrong to saddle such an officer upon the Presi

dent against his will, and that the President could not be held responsible unless he had control over the officer. Never, said Mr. Nelson, had more sensible remarks fallen from the lips of mortal man than those observations of Mr. Sedgwick, and they are as descriptive as it is possible for language to be, of the circumstances under which the removal of Mr. Stanton occurred.

Mr. Nelson went on to quote still further from the same debate, and then referred the Senate to the remarks of Chancellor Kent and of Judge Story on the same subject. Thus we see, said he, that although the Federalist opposed the power of removal, Mr. Madison and Judges Kent and Story regarded it as firmly settled and estab lished. If authority is worth anything, if the opinions of two of the ablest judges of this country are worth anything, I maintain that it follows inevitably that the Civil Tenure bill is unconstitutional, and that the President was justified in exercising his veto power against it. Whether or not that view of the case be correct, there is still another view of it.

If the President was wrong, if he was erroneously advised by his Cabinet, if he came to an improper conclusion, if the view taken by counsel on the subject be incorrect. still the argument is pertinent and appropriate as to the question of intention

I respectfully ask whether the Senate, sitting as judge, cannot rely with the greatest confidence on the opinion of the two most eminent jurists whom our country has produced-Kent and Story. They are names as familiar to every judge and every lawyer in the United States as household words. And not here alone are those names ditinguished. In Westminster Hall, in that country from which we borrowed our law, the names of Kent and Story are almost as familiar as they are in the chamber where your Honor presides as Chief Justice of the United States, Their words are quoted by British judges, by British lawyers, by text writers, and no two names in English or American jurisprudence stand higher than the names of those two distinguished men. If they are not sufficient authority to satisfy the minds of the Senate, as they 1 robably could not be in view of its action hitherto on the subject that the Civil Tenure law is unconstitutional, yet I ask you, Senators, if the views of two such distinguished men as these, might not well guide the action of the President of the United States, and relieve him from the criminality imputed to him in these articles of impeachment? I hope you will allow me, Senators, to call your atten tion to some other opinions on this subject. Appointments to and removals from office have been the subject of investigation in various forms by the Attorney-General of the United States. I know that the learned manager (Mr. Butler), when he came to speak of the opinion of the Attorney-General, said that after the office became political, he did not consider it a matter of any great importance to quote these opinions. No one is more skilled than that gentleman in the management of a case. I will do him the Justice to say, although I do not exactly agree with him in his notions about the decency and propriety of speech, that I have hardly ever seen a gentleman who managed a care with more skill and art and ability that he had done for the prosecution.

With that astuteness which distinguished him, he passed over the opinions of the Attorney-General with the remark I have referred to. I had a slight suspicion that possibly the authority of the Attorney-General might not be just exactly the kind of authority which gentlemen wanted, and so, although I did not know much on the subject, I concluded I would look at those opinions of the AttorneyGeneral, and I will state to you what I have learned from the slight examination I have given them; I maintain that in the proper construction of the act of 1789 it is a matter of perfect indifference whether the President is advised by the particular Attorney-General who may belong to the Cabinet in reference to any particular act. I maintain that the opinions delivered by the Attorney-General are in the nature of the judicial decisions.

I do not say they are to all intents and purposes judicial decisions, but in the view which I entertain of the act of 1789, I insist that they should be as operative and effectual in this high and honorable court as judicial decisions are in the court over which your Honor presides. Why do I say so? Unless I have misread the Constitution of the United States, there is no provision there declaring that the deci sion of the Supreme Court of the United States shall be final, and conclusive, and authoritative in questions of law. The framers of the Constitution assumed that there was a certain state of things in existence at the time they made it; they assumed that the history of English jurisprudence would be known to the American Senators. In other words they assumed that there was and would continue to be a certain amount of knowledge, and information, and reformation in the world. It was, therefore, unnecessary for them to put in the Constitution that the decision made by the Supreme Court of the United States would be binding. They knew that the practices of English judges had been for years to regard a decision by a judicial tribunal in a case carefully considered, and especially where it had stood for any length of time unreversed, as an authority from which it was not safe in administration of the law to depart.

Now the argument that I make is, that while the Constitution of the United States does not specify that the decision of judges shall have all the force of authority in the land, any more than it does in reference to the opinions of the Attorney-General, yet on any fair construction, or any fair legal intendment. I argue that under the act of 1789, the opinions of the Attorney-General may be regarded by the President, and by all others who have anything to do with that opinion as a valid authority, and should be suffi