pose of these articles, and they were quite right about it. If you cannot get in what is political and nothing but poitical, you cannot get hold of anything that is criminal or personal.

Now, having passed from the general estimate of the ameness and feebleness of the addresses and charges, I begin with the consideration of the article in reference to t, and to the subject matter of which I am disposed to concede there is some proof, and that as to the speeches. Now. I think that it has been proved here that the peeches charged upon the President, in substance and in general, were made.

My first difficulty about them is, that they were made In 1866, and that they related to a Congress which has passed out of existence, and that they were the subject of report of the Judiciary Committee to the House, and which the House voted that it would not impeach. My next difficulty 18, that they are orimes against argument, against rhetoric, against taste, and perhaps against logic; but that the Constitution of the United States, neither in Itself nor by any subsequent administration, has provided for the government of the people in this country in these regards.

Now, it is a new thing in this country to punish any man For making a speech. There is a great many speeches made in this country, and, therefore, cases would undoubtedly have arisen in eighty years of our history where men were punished for making speeches. Indeed, I believo if there is anything which more particularly marks Is the approval of other nations, it is that every man in this country not only has a right to make a speech, but can make a speech, and a very good one, and that he does at some time or other actually do so.

The very lowest epithet for speech-making in the American republic adopted by the newspapers is "able and eloquent.' (Laughter.) I have seen applied in the newspapers to the efforts of honorable managers here, the epithet in advance of "tremendous." (Laughter.) I have seen them spoken of before they were delivered as of tremendous force; and I saw once an accurate, authentical statement of the force of one, and that in advance, that it consisted of 33.000 words. (Laughter.)

Therefore a case must have arisen for a question if there was to be any punishment for speech-making. But now, for the first time, we begin with the President, and accuse him; we take him before no ordinary court, but we o ganize a court for the purpose, which court adjourns the moment it is over with the trial. furnishing no precedents, and must remove him from office and order a new election. Now that is a good deal to turn upon a speech. Only think of it-to be able to make a speech which would require a new election of President to be made. (Laughter.) Well, if the trial is to take place, let the proclamation Isue to this speech-making people. "Let him who is without sin among you cast the first stone," and see how the nation, on tip-toc, awaits to see who will answer that dainty challenge, who assumes that fastidious duty. We see, in addition, the necessary requirement. It must be one who, by long discipline, has learned to speak without bounds, one whose lips would stammer at an imputation, whose cheek would blush at a reproach, whose ears would tingle at an invective, and whose eyes would close at an indecorum. It must be one who, by strict continuance of spech, and by control over the tongue-that unruly member has gained with all his countrymen the praise of ruling his own spirit, which is greater than one wlio taketh a city.

And now the challenge is answered, and it seems that the honorable manager to whom this duty is assigned, is one who would be recognized at once, in the judgment of all, as "First in war, first in peace, first in boldness of words, and first in the hearts of all his countrymen, who love this wordy intrepidity." (Unrepressed laughter.) Well, now, the champion being gained, we ask for the rules, and in an interlocutory inquiry, which I had the honor to address to him, he said the rule was the opinion of the court which was to try the case.

Now let us see whether we can get any guidance as to what your opinions are as to this subject of freedom of speech, for we are brought down to that, having no law or precedents, besides I find that the matter charged against the President, is, that he has been unmindful of the har mony and courtesies which should prevail between the legislative and the executive.

If it should prevail from the Executive towards the legislative, it should also prevail from the legislative to the Executive. Except I am to be met with what I must regard as a most novel view presented by Mr. Manager Williams, in his argument the other day, that, as the Constitution of the United States prevents your being drawn in question anywhere for what you say, it is, therefore, a rule which does not work both ways. Well, that is an agreeable view of personal duty, that if I wear an impenetrable shirt of mail, it is just the thing for me to be drawing daggers against every one else.

Noblesse oblige seems to be a law which the honorable manager does not think applicable to the houses of Congress. If there were anything in that suggestion, how should you guard and regulate your use of freedom of speech? Now I have not gone outside of the debates which are connected with the Civil Tenure act.

My time has been sufficiently occupied with reading all that has been said in behalf of the House on that subject, but I find a well recorded precedent, not merely in the observation of a single Senator, but in the direct determination of the Senate itself, in passing on the quostion, which certainly points at least to freedom of speech as between two departments of the government.

The honorable Senator from Massachusetts, in the course

He says:

"I shall insist always on complete freedom of debate, and I shall exercise it. John Milton, in his glorions aspirations, said:-(Give me the liberty to know, to utter and to argue freely above all liberties.) "Thank God now that slave-masters have been driven from this court-such is the liberty of American Senators.

Of course, there can be no citizen of a republic too high for exposure, as there can be none too low for protection. These are not only invaluable liberties, but commanded duties. Now, is there anything in the President's answer that is nobler or more thorough-going than that? And if the President is not too high; if it a commanded, duty to call him an enemy of the country, is not the House of Representatives to be exposed to the imputation of a most intelligible aspersion upon them that they are hanging on the verge of the government. (Laughter.)

Then the honorable Senator proceeds in a style of observation, on which I shall make no eriticism whatever, except that that of Cicero against Cataline and against Verres does not contain more eloquence against the objects of his invective than that speech of the honorable Senator; and then it all ends in a wonderfully sensible and pithy observation, on the part of the honorable Senator from Michigan, Mr. Howard, who says, "the Senator from Massachusetts has advanced the idea that the President has become an enemy to his country," but I suppose that not only to be the condition of the sentiment in this Senate, touching the President of the United States, but I suppose we never had a President in regard to whom the opinion of the Senate was not divided on just that question-some thinking he was an enemy of the country, and others thinking that he was not; and I respectfully submit therefore that the Senator from Massachusetts will be as competent to try an impeachment if sent here against the President as I concede the Senator from Maryland, Mr. Johnson, will be competent to try it." Now that is good sense. Senatorial license may be made so wide as that.

We have also a report in the House of Representatives of a very brief debate between two of the most distinguished members of that hody, who can. as well as any others, for the purpose of this trial, furnish a standard of what is called by the honorable manager "propriety of speech." Mr. Bingham says, "I desire to say, Mr. Chairman, that it does not become a gentleman who recorded his vote fifty times for Jefferson Davis, the arch-traitor in this Rebellion (roars of laughter), as his candidate for the Presidency of the United States, to undertake to damage this cause by attempting to fasten au imputation either on my integrity or on my honor; I repel with scorn and contempt, any utterances of that sort, from any man, whether he be the hero of Fort Fisher not taken, or of Fort Fisher taken." (Continuous laughter.) Mr. Butler, after some remarks, said:-"But if, during the war, the gentleman from Ohio did as much as I did in that direction, I shall be glad to recognize that much.

"But the only victim of the gentlemen's prowess that I know of was an innocent woman hung upon the scaffold, one Mrs. Surratt; and I can sustain the inemory of Fort Fisher, if he and his present associates can sustain him in shedding the blood of a woman who was tried by a military commission and convicted without sufficient evidence, in my judgment." Mr. Bingham replied with spirit:--"I challenge the gentleman; I dare him here, or anywhere in this tribunal, or any tribunal, to assert that I spoliated or mutilated any book. But such a charge, without one tittle of evidence, is only fit to come from a man who lives in a bottle, and is fed with a spoon." What that refers to I do not know.

[While the court and galleries were convulsed with laughter at the expense of the two managers referred to both these gentlemen sat at the table apparently unconcerned and uninterested spectators.]

Mr. EVARTS, continuing, said:

This all comes within the common law of courtesy, in the judgment of the House of Representatives. We have attempted to show that in the President's addresses to the people there was something of irritation, something in the subject, something in the manner of the crowd which excused and explained, if it did not justify, the style of his speeches; and you might suppose that this interchange of debate which I have just read grew out of some subject which was irritating, which was in itself savage and ferocious. But what do you think the subject was that these honorable gentlemen were debating upon? Why it was charity.

A Senator-What?

Mr. EVARTS Charity-a question of charity to the South; that was the whole staple of debate. "Charity which suffereth all things and is kind." (Laughter.) Charity which envieth not; charity which vaunteth not itself, is not puffed up, and doth not behave itself unseemly seeketh not her own, is not easily provoked; thinketh no evil, rejoiceth not in iniquity, but rejoiceth in the truth; beareth all things, believeth all things, hopeth all things, endureth all things. "Charity never fails." But the apostle adds, what may not be exactly true in regard to the managers, "Tongues may fail." (Laughter.)

But now, now to be serious. In a free Republic who will tolerate this fanfaronade about speech-making. Quis tole rit gracchos de seditione querentes? Who will tolerate public orators prating about propriety of speech? Why can we not learn that their estimates of others must proceed on general views, and not vary according to particular passions and prejudice?

When Cromwell, in his career through Ireland in the name of the Parliament, had set himself down before the town of Ross, and summoned it to surrender, the Papist community, exhausted in its resistance, asked to surrender only on condition of freedom of conscience.

Cromwell replied:-"As to freedom of conscience, I meddle with no man's conscience, but if you mean by that liberty to celebrate the Mass, I would have you to underetand that in no place where the power of the Parliament of England prevails, shall that be permitted." So the honorable managers do not complain of freedom of speech, but if any nan says that the House of Representatives is hanging on the verge of the government," we are to understand that in no place where the power of the two Houses of Congress prevails, shall that be permitted, although they meddle with no man's property or freedom of speech? (Laughter.) Now, Mr. Jefferson, who had occasion to give his views about infractions of the freedom of writing when the Sedition. law was introduced into the legislation of this country, and, at the same time, to give some notions about the right of the Executive to have an opinion, says, in a letter to Mr. President Adams, written in 1804:-"I discharged every person under punishment and prosecution under the Sedition law, because I considered and now consider that law to be a nullity as absolute and as palpable as if Congress had ordered us to fall down and worship the golden image, and that it was as much my duty to arrest its execution in every State as it would have been to have rescued from the fiery furnace those who should have been cast into it for refusing to worship the image." It was accordingly done in every instance, without asking what the offenders had done, or against whom they had offended, but whether the pains they were suffering were inflicted under the pretended sedition law, and in another letter he replies to some observation as to the freedom of the Executive about the constitutionality of laws:-"You seem to think it devolved on the judges to decide on the validity of the Sedition law, but nothing in the Constitution has given them a right to decide for the Executive more than for the Executive to decide for them. Both magistrates are equally independent in the sphere of action assigned to them; the judges believing the law constitutional had a right to pass sentence of fine or imprisonment, because the power is placed. in their hands by the Constitution, but the Execu tive, believing the law to be unconstitutional, was bound to remit the execution of it, because that power had been confided to him by the Constitution, that its co-ordinate branches should be checks upon each other; but the opinion that gives the judges the right to administer what laws are constitutional and what are not, not only for themselves in their own sphere of action, but for the legislative and Executive also in their spheres, would render the judiciary despotic and tyrannical." Now, we have no occasion to assert, and we have not asserted, the right to resort to these extreme opinions, which, it is known Mr. Jefferson entertained. The opinions of Mr. Madison, more temperate but equaly thorough, were to the same effect, and the co-ordinate branches of the government must surrender their co-ordination whenever they allow the past history to be a final bar from renewing or presenting constitutional questions for reconsideration and redetermination, if necessary, even by the Supreme Court; but we have here some questions of the courtesies of the different branches of the government in the severe expression of opinon which Mr. Manager Boutwell indulged in relation to the heads of departments.

What he said is as much severer and as much more degrading to that branch of the government than anything which was said by the President in relation to Congress, as can be imagined. Exception is here taken to the fact,

that the President called Congress, in a telegram, a set of individuals. Well, we have heard of an old lady, not very well instructed, who got very violent on being called an individual, but here we have an imputation in so many words on the heads of departments of this government, that they are serfs, the servants of a master, slaves of an owner and yet, in this very presence, sits the eminent Chief Justice of the United States, and the eminent Senator from Maine (Mr. Fessenden), and the distinguished Senator from Pennsylvania (Mr. Cameron), all of whom have held Cabinet offices which are thus deprecated and derided, and if I were to estimate the Senators who aspire in the future to hold these degrad ing positions, I am afraid I should not have judges enough here to determine this case. (Laughter). I know this is all extravagance, est modus in rebus, sunt certi deniqus fines. There is some measure in things; there is some limit to the bounds of debate and discussion. Now, I agree that nothing can be more unfortunate than the language used by the President in the speech made in St. Louis.

The difficulty is undoubtedly that the President is not familiar with the graces; he has not been taught at school costly ornament and the studied contrivances of speech, but that he speaks right on, and when an article is presented in his path he steps right over it. Here is a rheto rical difficulty presented for a man who is not a rhetori cian, as a sort of a metaphorical allusion was made to Judas. Well, now, if anybody attempts to become logi cal with a metaphor it will get him into trouble at once (laughter), and that is what the President did. If you look around with the eye of a logician you see that Judas was the betrayer of all goodness, and a man would natu rally say, where is the goodness I have betrayed?

The moment, therefore, that you seek to be logical, by introducing the name of the divinity against whom Judas had thus sinned, there, of course, you produce that offense to our religious sentiment, which otherwise would not have been committed. I am not entirely sure that when you make allowance for the difference between the extempore speech of the President to a mob, and a writ ten, prepared and printed speech to this court by the honorable managers, but there will be some little trace of the same impropriety of that figure of argument which presented Mr. Carpenter to your observation as an inspired painter, whose pencil was guided by the hand of Provi dence, and the appointment of Mr. Edwin M. Stanton to perpetual blies and Governor Seward to eternal pain. (Laughter.)

But all that is matter of taste, matter of feeling; matter of distinction, matter of judgment. The serious views impressed upon you with so much force by the counsel for the President who opened this case (Mr. Curtis), and supported by the quotations from Mr. Madison, present this whole subject in its proper view to an American audience. I think that if our newspapers would find some more discriminating scale of comment on speeches than to make the lowest in the scale able and eloquent, we should have a better state of things in our orations.

Now, our position in reference to the speeches is that the subjects produced in proof should be considered; that words put into the speaker's mouth by the crowd, or called for by their unfriendly or impolite suggestions, are to have their weight and that without apologizing, for no man is bound to apologize before the laws before the court for the exercise of freedom of speech. It may be fairly admitted that it would be well if all men were accomplished rheto ricians and finished logicians, and had a bridle on their tongues. And now, without verging at all upon the eleventh article, which I leave to the observations of the honorable managers, and leave among themselves to dispose of, I will take up the Emory article.

The Emory article is an offense which began and ended on the 22d of February, and is comprised within a short conversation between the President and a general of our army. I dare say that in the rapid and heated course of events which took impeachment through the House of Representatives, it might have been understood by rumor, uncertain and implied, that there had occurred some kind of military purpose or communication on the part of the President which looked to the use of force. But under the proofs what can we say of it but that the President, under an intimation from Secretary Welles that all the officers were being called away from what, doubtless, is their proper occupation in time of peace, "attendance on levees," and were being summoned, as they were from the halls of revelry at Brussels to the battle of Waterloo, inquired, as it was natural to inquire, when and, where this battle was to take place?

The President received it with great indifference; said he did not know about General Emory, and did not seem to care anything about it. But, finally, when Secretary Welles said that it would be better to look into it, the President did look into it, and it ended with a discussion of constitutional law between the President and General Emory, in which the General, reinforced by Mr. Reverdy Johnson, a lawyer, and Mr. Robert J. Walker, a lawyer, actually put down the President entirely. (Laughter.)

Now, if the President ought to be removed from office for that, and a new election ordered for that, you will so determine in judgment, and if any other President can go through four years without doing something worse than that we shall have to be more careful in our preliminary examinations, and in our nominating conventions. I understand this article to be hardly insisted on, then comes the conspiracy articles. Now, the consipracy consists in this: It was all commenced and accomplished in writing. The documents were published; they were immediately promulgated, and that is the conspiracy," if it be one. It is quite true that the honorable manager who con

Stanton, to consider that point but for the purpose of Mr. Thomas' appointment. No such discrimination need to be made. The question of the right of the executive to vacate an office, to be discriminated between the recess of the Senate and its session, arises out of the constitutional distinction that is taken, to-wit, that the Prosident can only fill offices during the session by the advice and consent of the Senate, and that he can, during the recess, commission by authority, to expire with the next session, but ad interim appointments do not rest upon the Constitution at all. They are not regarded, they never have been regarded, as an exercise of the appointing power in the sense of filling an office. They are regarded as fall ing within either the executive or the legislative duty of providing for the management of the duties of an office, before an appointment is or can properly be made.

Now in the absence of legislation it might be said that the power belonged to the executive; that part of his duty was when he saw that an accident had vacated an office, or that necessity required the removal of an incumbent so that the laws should be executed, and to provide that the laws should be executed, and to provide that the public service should be temporarily taken up and carried on, it might be fairly determined it was a casus omissus, for which the Constitution had provided a rule, and which the legislation of Congress might properly occupy

As early, therefore, as 1792, provision was made for the temporary occupation of an office. The act of 1792, regu lating three of the departments, provided that temporary absences and disabilities of the heads of departments might be met by appointments of a temporary character, to take charge of the office. The act of 1795 provides that in case of the vacancy in an office there should be power in the Executive which would not require him to fill the office by by the constitutional method, but temporarily to provide for the discharge of its duties.

Before considering the act of 1863, which, in terms, covers to a certain extent, but not fully, both of those points, I wish to ask your attention to some circumstances in regard to the passage of that act of 1863. I have said that the eighth section of the act of 1792 provided for the filling temporarily of vacancies. In January, 1863, the President sent to Congress this message, and Senators will perceive that it relates to this particular subject:

"I submit to Congress the expediency of extending to other departments of the government the authority con ferred on the President by the eighth section of the act of May 8, 1792, to appoint a person temporarily to discharge the duties of Secretary of State, Secretary of the Treasury and Secretary of War, in case of death, absence from the seat of government, or sickness."

That is to say, the temporary disability provision of the act of 1863, which covered all the departments then in existence, had never been extended by law to cover the other departments, and the President desired to have that act extended. This message having been referred to the Judiciary Committee, the honorable Senator from Illinois (Mr. Trumbull), chairman of the committee, madè, I believe, a very brief report, in which he said:

There have been several statutes on the subject, and as the law now exists the President has authority tempora rily to fill the offices of Secretary of State and Secretary of War from one of the other departments, by calling on somebody to discharge the duties. That other department was the Treasury, We have received a communication from the President of of the United States, asking that the law may be extended to the other executive departments of the government, which seems to be proper, and we have framed a bill covering all of these cases, so that whenever there is a removal the President may temporarily devolve the office upon another cabinet officer, and appoint the chief officer of the department for the time being."

There does not seem to have been brought to the notice of the Senate or the honorable Senator the act of 1795. Nothing is said of it, and it would appear as if the whole of the legislation of 1863 proceeded upon the proposition of extending the act of 1792, of disabilities and not of vacan cies, except that the honorable Senator uses the phrase "vacancy," and that he speaks of having provided for the occasions that might arise.-07.ia

Now, the act of 1863 does not cover the case of vacancies, except by resignation. It does not add to the disability which the President had referred to in the case of the re signation which he did not ask to have covered, and which did not need to be covered by new legislation, because the act of 1795 covered it. But this act of 1863 does not cover all the cases of vacancy. It does not cover cases of va tancy by removal, and it does not cover the case of expira cion of office, which is a case of vacancy. The Te

Now, under that additional light, it seems as if the only question presented of guilt on the part of the President in respect to the appointments to office, ad interim, was a question of the final law. The Senators will remark the very limited form in which that question arises. It is not pretended that the appointment of Thomas, if the office was vacant, was a violation of the Civil Tenure act, although, perhaps, it may be so charged in the articles, because an examination of the articles shows that the only appointments, the infringement of which is made penal, is the appointment under the provi sions of this act, as was pointed out by my colleague

(Mr. Which seems to be a subject of argu