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 trne 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 Hal 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 respectfully 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 fatigued, but would proceed if the court did not now desire to adjourn.

Senator YATES submitted his motion and the court thereupon adjourned.

PROCEEDINGS OF FRIDAY, APRIL 24.

At the opening of the court, this morning, the Chief Justice stated that the first business in order was the consideration of the following order, offered yesterday by Mr. Grimes:

Hour for Assembling.

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 Argument 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

which he has assumed here in argument. If I understand the honorable manager's position, while he in its as I understood yesterday, that you are to look to the common law, and not merely the law of Parlia ment, în order to ascertain the use of the words crime and misdemeanor 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 Con stitution, and that such crime or misdemeanor is an im peachable offense. If I correctly understand the gentle man's position, I hope neither he nor the court will mis understand me when 1 call attention to those parts of the gentleman's argument which I rely upon, because the ar guments 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 crime or misdemeanor to be one in its nature or consequences subversive of some fundamertal or essential principle of government, or highly prejudicial to the public inte rest, and this may consist of & 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 species 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 tried in England for very slight and very trivial offenses, and severe punishments, were flicted on various occasions in the progress of English his tory, 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 true, 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.

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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 theConsti 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 understood to be such at the time of the adoption of the Constitution. 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 honorable 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.

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 inasmuch 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 ene mies." 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 hesi tated 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 man, 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 lese 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, Senators, 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 Congress 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 ato 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 80 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 House 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 concerned. 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.

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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 of the articles of impeachment, although it must necessarily become, to some extent, a tedious business, yet I do so because, Senators, if you follow 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 & separate way. Now, in regard to the first article of impeachment, it may not be out of place to look to that article 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 different thing. Burglary, is one thing, and an attempt 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 you 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 Teuure 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 responsible 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 office contrary to the will of the Presi dent, 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 soon 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 Representatives, 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 irobably 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 crimiuality imputed to him in these articles of impeachment? I hope you will allow me, Senators, to call your attention 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 case 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

cient to justify his action in any given case that might be covered by that opinion.

The act of September 24, 1788, provides that there shall be appointed an Attorney-General of the United States, whose duty it shall be to prosecute and conduct all cases in the Supreme Court in which the United States are concerned, and to give his advice and opinion of ques tions of law, when required by the head of any of the departments touching matters connected with their respective departments.

Take the two provisions together-the provision in the Constitution that the President may call on these officers for advice and information, and the provision in the act of 1789, that he may call on the Attorney-General for advice and opinion then I maintain, Senators, that, when opinions have been given in cases like the one under consideration, those opinions are in the nature of judicial opinions, and are a perfect shield and protection to the President, if he can bring his act in that particular case within the spirit and meaning of them.

Mr. Nelson referred to the opinions of Attorney-General Wirt, Attorney-General Berry, Attorney-General Legare, Attorney-General Nelson, Attorney-General Crittenden, and Attorney-General Speed, on several points having more or less affinity with the question of the power of removal and appointments. In reference to Mr. Speed, he said that gentlemen stood very high in some quarters of the United States, and his opinion was entitled to much weight in those quarters.

Senator CONKLING asked whether the opinion of Mr. Speed was published in the volumes of opinions of the Attorny-General?

Mr. NELSON said it was not, but that he had a certified copy of it, and proceeded to read an extract from the opionion, as follows:

"It is his duty (meaning the President) to do all that he has the power to do when occasion requires the exercise of authority. To do less on such an occasion would be prolanto to abdicate his high office. The Constitution is the supreme law-a law superior and paramount to any other. If any law be repugnant to the Constitution it is void."

This, said Mr. Nelson, bears not only upon the Civil Tenure bill, but it is square up to all the questions which the gentlemen on the other side have argued in connection with it. Here is advice given to the President by a man on whose judgment he had a right to rely; for, be it known to you, the President of the United States is not himself a lawyer. He never studied the degal profession, and has no claim or pretensions to know anything about it. In the discharge of his official duties he has a right to consult the legal advisers who are given to guide and direct him on questions of law by the Constitution of the country and by the act of 1789, and when he finds an opinion on file in his office, or recorded in any reported volume of the opinions of the Attorney-General's, and when he acts upon that opinion it must protect him against the imputation of unlawful or improper motives. And now, Mr. Chief Justice, if you see fit, in the discharge of your duty, to comply with the respectful request to you to deliver an opinion upon any legal question involved in this case, I most respectfully ask you to consider this opinion of Attorney-General Speed, and to say that it is sound law. Allow me to call attention to the closing sentence of that opinion, which, I think, is the very essence of the law itself. It is as follows:

"But before such a case arises, and in the absence of an unauthoritative exposition of the law by the Judicial Department, it is equally the duty of the officer holding the executive powers of the government to determine for the purpose of his conduct and action as well as the operation of conflicting laws the unconstitutionality of any law."

This, continued Mr. Nelson, is the opinion of an Attorney-General who is not a member of Mr. Johnson Cabinet, not a serf of the President's, who gave his opinion before the present incumbent came into office.

There is his opinion, placed on record in one of the departments of the government, to stand there and to stand forever, so far as the opinion of any one will go, to guide the highest executive officer of the government- It declares that if a law is unconstitutional in the view of the President it is no law at all, and he is not bound to follow it. It declares that the President has the right, in the absence of any judicial exposition, to construe the law for himself. I need not tell the Senate that that is no new doctrine. Why, Senators, within your day and mine, we all recol. lect an executive oflicer of the United States-a man of strong will, a man not possessing any great advantages of education or of mental culture, but still a man of strong intellect, and of a determination just as strong as his intellect; we all recollect Andrew Jackson, a name which was once potent in the United States. No name was ev r more powerful in this government from the time of its foundation to the present than the name of Andrew JackBon."There were giants in those days."When Andrew Jackson was at the head of the United States he exercised his powers of removal. His right to do so was called in question by some of the ablest men that ever stood within the Senate of the United States. It was discussed, and learnedly discussed, yet he persevered in his determination of the power and authority of the President of the United States to remove from office, and to make appointments. A resolution was introduced into the Senate, I believe, in reference to the removal of Mr. Duane, to the effect that the President of the United States, in his late proceedings, had violated the Constitution. That resolution passed the Senate, A gentleman who is now no more, but whose name is well known in the political history of the United States (Mr. Bentoa), took up the subject. I have not referred to the history of the debate with

sufficient accuracy to tell you how long it was that he continued to agitate the question. My own recollection is, that it it was for several years, and I remember, as the Senators will remember, the remarkable expression which Mr. Benton used:-"Solitary and alone," said he, "I set this ball in motion."

He determined that that resolution censuring the action of the President should be expunged from the records of the Senate. He debated it time and again with tremedous energy and fervor until at last the resolution was expunged from the records of the Senate of the United States, and that is the latest record we have in favor of the power removal. So far as that action.of the Senate of the United States goes, it is in favor of the power and authority for which I have argued. There are two other subjects to which I deside to bring your attention in this connection. But let us see first how far we have pro gressed in the argument. I have shown you the opinions of Mr. Madison and Mr. Sedgwick, and others in the debate of 1789. I have shown you the opinions of Judges Kent and Story, two of our ablest American commenta.. tors.

I have shown you the opinions of Attorney-Generals eminent in their profession, and standing high in the confidence of the country. I have shown you the action of the American Senate in the expunging resolution. I thus present to you what I may call in the language of Judge Story, an unbroken current of authority in favor of the proposition, that not only is the Civil Tenure bill unconstitutional, but that the President has the right to remove from office, which he claims in his answer; and I maintain, Senators, that, whether he was right or wrong, this current of authority for eighty years is sufficient to throw protection around him.

When I show, as I have done, from the opinion of Mr. Speed, that in the absence of any judicial determination, it is the sworn and bounden duty of the President of the United States to judge of a constitutional question for himself, I do not present to this Senate any novel doctrine. It is not for me to say whether the doctrine is right or wrong. My opinions are of no sort of consequence in this Senate. If my arguments are well founded and well supported, they will have influence, and if not, they will be rejected. So it is not necessary for me to say what I think, but I maintain that that is no novel doctrine in the United States.

I told you yesterday that the President is a Democrat of the strictest sect. I told you that he was really nominated as a Democrat in the Convention which nominated Mr. Lincoln and himself for President and Vice President of the United States. That was not a Democratic convention; it was a convention composed of Union men, without any reference to the old lines of demarcation between Whigs and Democrats; it was a convention which as sembled together for the purpose of sustaining Mr. Lincoln, and whose view and opinion was, that by sustaining Mr. Lincoln and the measures of his administration, it would be sustaining the strong arm of the government in putting down the Rebellion, which had not then been brought to a couclusion.

In the reply which he made when he was informed of his nomination, he remarked that he was a Democrat; and now. Senators, I will read you the two opinions of Mr. Jefferson and General Jackson on the subject of appointments to office, and before I do so, let me call your attention to one fact. Keep the political training of the President of the United States ever in your minds. Go to his standpoint; look at things as he looked at them -judge of them as he judged of them-for you are now in search of motive; that is what you are trying to determine in this case.

You are in search of the question of intention, and when you judge of his conduct, recollect that he is a Democrat of the Jefferson and Jackson school, if I can show you, as I will presently show you, that Mr. Jefferson and General Jackson undertook to construe the Constitution for themselves and claimed that as Executive officers they had s right to do so: when I will show you that, according to the political training and education of Mr. Johnson, he might well believe that they had, and especially when he had Mr. Speed's opinion confirmatory of that doctrine, it furnishes us a satisfactory vindication and protection of the President as to the exercise of his judgment.

Mr. Nelson referred to a letter written by Mr. Jefferson, and found in the sixth volume of Jefferson's works, page 461, and said that the Senate would see that Mr. Jefferson went far beyond Mr. Johnson in the views which he entertained. Mr. Johnson had said that he was anxious to have this question between him and Congress settled by the judicial department, but Mr. Jefferson claimed that he had a right to decide for himself, irrespective both of Congress and of the Judiciary.

Mr. Nelson also referred to another letter of Mr. Jefferson, to be fouud in the seventh volume of his works, page 135, in which he says that his construction of the Constitution is that each department is truly independent of the other, and has an equal right to decide for itself what is the meaning of the Constitution, or the cases submitted to its action, and especially where it is to act ultimately and without ap peal. If that doctrine be correct, the President of the United States had a right to decide this question for himself, independent of any intention or design to have a case made and prepared for the adjudication of the judicial tribunal of the country; but if that be not correct, then, Senators, it certainly goes far to explain if not to justify, the action of the President in the removal of Mr. Stanton. Mr. Nelson also referred to General Jackson's veto of the United States Bank bill, wherein he declared that if