if it be a count, you must find upon evidence something to make out the guilt of the offender to secure a judgment,

He argues against its being a court, not from any nice criticism of words, but, as he expresses it, for the substance. He has endeavored by many references, and by an interesting and learned brief appended to his opening speech, of English precedents and authorities to show that it is almost anything but a court. But, perhaps, during the hundreds of years in which the instrument of impeachment was used as a political engine, if you look only to the judgments and the reasons of the judgments, you would not think it was really a very judicial proceeding, but that through all English history it was a proceeding in a court controlled by the rules of a court, as a court cannot be doubted.

Indeed, as we all know, though the learned manager has not insisted upon it, the trial, under the peculiar procedure and jurisdiction of impeachment in the House of Lords, was a part of the general jurisdiction of the House of Lords, as the great court of the Kingdom in all matters, civil and criminal. One of the favorite titles of the lords of Parliament in these early days was judges of Parliament; and now the House of Lords in England is the supreme court of that country as distinctly as ever the great tribunal of that name is in this country. But one page of British sound authority will put to flight all those dreamy, misty notions about a law and a procedure of Parliament in this country and in this trial that is to supersede the Constitution and the laws of our country. And now I will show you what Lord Thurlow thought of that suggestion, as prevalent or expected to prevail in England in the trial of Warren Hastings. Lord Thurlow said:

"My lords. with reference to the laws and usages of Parliament, I utterly disclaim all knowledge of such laws; they have no existence. True, it is, in times of despotism and popular fury, when they impeached an individual and wished to crush him by the strong hand of power, of tumult or of violence, the laws and usages of Parliament were arrested in order to justify the most iniquitous or atrocious acts; but in these days of light and of constitutional government, I trust that no man will be tried except by the law of the land, a system admirably calcu lated to protect innocence, and to punish crime." And after showing that in all the State trials under the Stuart reign, and even down to that of Sacheverell, were to be found the strongest marks of tyranny, oppression, and injustice, lord Thurlow continued:

"I trust your lordships will not depart from the recognized established law of the land. The Commons may impeach. Your lordships are to try the case, and the same rules of evidence, and the same legal forms that obtain in courts of law will, I am confident, be observed in this Assembly."

But the learned manager did not tell us what this was if it was not a court. It is true, he said it was a Senate, but that conveys no idea. It is not a Senate conducting legislative business; it is not a Senate acting on executive business; it is not a Senate acting in Congress on political forces; and the question remains, If it is not a Senate. what is it? If this is not an altar of justice; what is it if we are not all ministers of justice here to feel its sacred flame? What is the altar, and what is it that we do here about it? It is an altar of sacrifice, if it is not an altar of justice, and to what divinity is that altar erected but to to the divinity of party hate and party rage.

What, then, is the altar about which you are to minister? Now, our learned managers, representing the House of Representatives do not seem to have been at all at pains to conceal the party spirit and the party hate which displayed itself in the haste, record, and maintenance of this impeachment; and to show you what progress we may make in the course of thirty years in the true idea of the Constitution and of the nature of impeachment, let me read to you what the managers of the impeachment of Judge Peck had to say in that behalf. The managers on that occasion consisted of Judge Ambrose Spencer, of New York; Mr. Henry A. Stories, of New York: Mr. McDuff and Mr. Pinckney, of South Carolina, and Mr. Wickliffe, of Kentucky, a pretty solid body of managers,

Ambrose Spencer, as stern a politician as he was an upright judge, upon the case, let me ask attention to what he said. There is, however," said he, "one cheering and consolatory reflection-the House of Representatives, after a patient and full examination, came to the result to im peach Judge Peck by a very large majority, and the record will show the absence of all party feeling. Could I believe that that appeal for influence had mingled itself with a predominating power in that vote, no earthly consideration could prevail over me as one of the prosecutors of this impeachment. I have no words to express the ab horrence of my soul at the indulgence of such unhallowed feeling upon such a solemn procedure."

Now, Mr. Manager Butler talked to you many hours. Did he say anything wiser or juster or safer for the republic than that. Judge Spencer knew what it was to be a judge as well as a politician for twenty years. While on the bench in New York, a great judicial light in the com mon law jurisprudence of that State, he was the head and leader of a political party, and earnest and unflinching in support of its measures and its discipline, and yet no lawyer, no suitor, no critic, ever ventured to say, to think, or to feel that Judge Spencer, on the bench, was the politician, or carried any trait or trace of party feeling on it, Judge Spencer was a politician. In the House of Repre *sentatives Judge Spencer, in the management of an im. peachment, could only say that, if party feeling mingled in it, he would have nothing to do with it; from his soul he abhorred it in reference to so solemn a procedure. Yes, indeed, this divinity of party hate, when it possesses a man,

throws him now into the fire and now into the water, and he is unsuitable to be a judge until he can come again clothed and in his right mind. But, to come down to the words of our English history and experience, if this is not a court it is a scaffold as the honorable manager (M Stevens) yesterday told you. Each of you brandishes now, according to him, a cord and axe, having tried the offender on the night of the 21st of February last. Now, I would not introduce those bold words which should make this a scaffold in the eyes of the people of the country, and that should make your headsmen brandish your acts. The honorable manager has done so, and I have no difficulty in saying to you that if you are not a court, then you are that which he describes, and nothing else.

Is it true, that on the 21st of February, for a crime committed by the President at midday of that day, and on im peachment already moving forward to this Chamber from the House of Representatives, you did hold a court and did condemn him? If so, then you are here vindicating about the scaffold of execution, and the part which you are to play is only the part assigned you by the honorable manager, and he warned you to hold true fealty to your own judgment, and not to blanch at the sight of blood, Now, to what end is this precedent offered? To expel from this tribunal all ideas of a court and of justice? What is it but a bold, reckless, rash and foolish avowal that if it be a court, there is no case here which, upon judicial rea son, or judicial scrutiny, or judicial weighing and balaneing of facts and of law, could result in a judgment.

Alas! to what ends are the wisdom and the courage of civil prudence and the knowledge of history which our ancestors brought to the framing of the Constitution? Of what service those wise, those honest framers of the Constitution on ex post facto laws and bills of attainder? What is a bill of attainder? What is a bill of pains and penal ties in the experience, the learning of English jurispru dence and Parliamentary history? Why, it is a proceed ing by a Legislature as a Legislature-an act. trial, sen tence and punishment all in one. Certainly, if you do not sit under the law to examine evidence, to be impartial, and to regard it as a question of personal guilt, to be fol lowed by personal punishment and personal consequence to the alleged delinquent,

The counsel and the wisdom of our fathers all pass for nothing now. Our ancestors were brave and wise, but they were not indifferent to the dangers which attended this tribunal. They had no resources where they could so well fix this necessary duty in a free government, to ser vante amenable to public justice unless they devolved it on the Senate. But let me show you within the brief compass of the debate as it appears on the journal of the convention which framed the Constitution, how the fears and the doubts predominated. Mr. Madison objected to the trial of the President by the Senate, and especially as he was to be impeached by the other branch of the Legis lature, and for any act which might be called a misdemeanor. The President, under these circumstances, was made, improperly, dependent upon Congress. He would prefer the Supreme Court for the trial of impeachment, or rather a tribunal of which that might form a part.

Mr. Gouverneur Morris thought that no other tribunal than the Senate could be trusted. The Supreme Court was too few in number, and might be warped or corrupted. He was against the dependence of the executive on the legis lature, considering legislative tyranny the greatest danger to be apprehended; but there conld be no danger that what the Senate would say on a trial. on their oaths, that the President was guilty of crimes of facts, especially as in four years he could be turned out. That was Gouverneur Morris's wisdom as to the extent to which the Senate might be trusted, under the sanction and the obligations of their judicial oaths.

But Mr. Pinckney disapproved of making the Senate a Court of Impeachment, as rendering the President too dependent on the Legislature. If he opposes a primary law the two Houses would combine against him, and, under the influence of hate and faction, throw him out of office. Now, there is the sum and substance of the wisdom which our ancestors could bring to this subject, as to whether this was to be a court. Is undoubtedly a very great burden, and a very exhaustive test on a political body, to turn it into a court for the trial of an Executive. I may hereafter point out to you the very peculiar, the very comprehensive and aggressive concurrence and combination of circumstances combined in this trial, which require of you to brace yourselves on all the virtue that belongs to you, and to hold on to that oath for the Divine aid which may support you under these most extreme tests of human conduct to which our Constitution subjects you.

Now, what does the Constitution do for us? A few little words, that is all. Truth, justice, oath, duty; and what does the whole scope of our moral nature, and what support we may hope for, higher and extend to in any of our affairs of life than this. Truth, justice, oath, duty are the ideas which the Constitution has forced upon your souls to-day.

You receive them, or you neglect them; whichever way you turn you cannot be the same men afterwards that yon were; accept them, embrace, obev, and you are noble, and stronger, and better. Spurn and reject them, and you are worse, and baser, and weaker, and wickeder than before. It is this, that a free government must be always held to the power of duty, to the maintenance of its authority, and to the prevalence of its own strength for its perpetual existence. They are little words, but they have a great power. Truth is to the moral world what gravitation is to the material world. It is the principle on which it is established and coheres. The adaptation of truth

to the affairs of men is in human life what the mechanism of the heavens is to the principle which sustains the forces of the globe, duty is acceptance of obedience to those ideas, and this once gained secures the ope Fation that was intended. When, then, you have been submissive to that oath, that faith among men which, as Burke says, holds the moral elements of the world to. gether, and that faith in God which binds the world to His throne, subdues you to the service of truth and justice. The purity of the family and the sanctity of justice have ever been cared for and will ever be cared for by the ever-living guardian of human rights and interests, who does not neglect what is essential to the preservation of

the human race and its advance.

The faries in old mythology had charge of the sanctity of an oath. The imaginations of the prophets of the world have sanctified the solemnity of an oath, and have peopled the places of punishment with oath-breakers. All the tortures and torments of history are applied to public servants, who, in betrayal of sworn trusts, have disobeyed this high, this necessitous obligation, without which the whole fabric of society falls into pieces. Now, I do not know why or how it is that we are so constituted, but so it is the moral world has it laws as well as the material world why a point of steel lifted over a temple or hut should draw the thunderbolt and speed it safely into the ground.

I know not how, in our moral constitution, an oath lifted to Heaven can draw from the great swollen cloud of passion, and of interest, and of hate, its charge; I know not, but so it is, and be sure that loud and long as these honorable managers may talk, although they speak in the voice of all the people of the United States, with their bold persua sions, that you shall not obey a judicial oath, I can bring against it but a single sentence and a single voice, but that sentence is a commandment, and that voice speaks with ave: "Thou shalt not take the name of the Lord thy God in vain, for the Lord will not hold him guiltless that taketh His name in vain."

The moth may consume the ermine of that Supreme Court whose robes you wear, rust may corrode, Senators, the centre of your power, nay, Messrs. managers, time even shall devour the people whose presence, beating against the door of their Senate, you so much love to taunt and menace, but as to the word which I have spoken heaven and earth may pass away, but no jot or title of it, will fail.

At this point Mr. Evarts yielded to a motion to adjourn, and the court, at 4%, adjourned until 12 o'clock to-morrow.

PROCEEDINGS OF WEDNESDAY, APRIL 29.

The court was opened in due form. Despite the unfavorable weather, the desire to hear Mr. Evarts had filled the galleries at an earlier hour than usual.

Mr. Nelson's Challenge.

Mr. SUMNER submitted an order reciting that Mr. Nelson, of the counsel for the President, having used disorderly words directed to one of the managers, namely:-" So far as any questions that the gentleman desires to make of a personal character with me is concerned, this is not the place to make them. Let him make it elsewhere, if he desires to do it ;" and that language being discreditable to these proceedings, and apparently intended to provoke a duel, therefore that gentleman justly deserves the disapprobation of the Senate.

Mr. NELSON-Mr. Chief Justice and SenatorsMr. SUMNER-I must object unless it is in direct explanation.

Mr. NELSON-All I derire to say this morningMr, SHERMAN-I object to the consideration of the order.

Mr. NELSON-All that I desire to do is to read the letters as I suggested to the Senate on yesterday. The Chief Justice-The order offered by the Senator from Massachusetts is not before the Senate if objected to.

Mr. BUTLER-I trust, so far as I am concerned, that on anything that arose yesterday-any language toward me-no further action will be taken. As to the reading of the letters, I object to them until they can be proved.

Mr. JOHNSON-I move to lay the resolution of fered by the Senator from Massachusetts on the table. The Chief Justice-It is not before the Senate. Mr. NELSON again endeavored to get the attention of the Senate.

Mr. SUMNER-I must object to any person proceeding who has used the language in this Chamber used by that gentleman.

The Chief Justice-The Chief Justice thinks the Senate can undoubtedly give leave to the counsel to proceed if they see fit. If any objection is made, the question must be submitted to the Senate.

Mr. TRUMBULL--After what has occurred, and the statement having been received from them, I think it is proper that the counsel should also have permission to make a statement in explanation, and I move that he have leave.

Mr. SUMNER-I wish to understand the motion made by the Senator from Illinois. Is it that the counsel have leave to explain his language of yesterday?

Mr. JOHNSON-Debate is not in order.
The Chief Justice-No debate is in order.

Mr. TRUMBULL-My motion is, that he have leave to make his explanation. Inasmuch as one of the managers has made an explanation, I think it due to the counsel.

The motion was decided in the affirmative without a division.

Apology.

Mr. NELSON-Mr. Chief Justice and Senators, I hope you will allow me before I make an explanation to say a single word in answer to the resolution of the Senator. My remarks were made in the heat of what I esteemed to be very great provocation. I intended no offense to the Senate in what I said, and if anything is to be done with the resolution, I trust the Senate will permit me to defend myself against the imputation. As the honorable managers desire that this thing should end here, however, I meet it. in the same way. So far as I am concerned I have nothing more to say of a personal nature. I will read the letters as part of my explanation. Senator HOWE and others objected.

The Disputed Letters.

The Chief Justice-The Chief Justice is of the impression that the leave does not extend to the reading of the letters. If any Senator makes the motion it can be done. Senator DAVIS-I rise to a point of order. After the Senate has permitted one of the counsel to make an explanation, I make the question whether a manager has any right to interpose an objection? I think a Senator may have such right, but I deny that the manager has any such right.

The Chief Justice-The Chief Justice understood the motion of the Senator from Illinois, Mr. Trumbull, to be confined to an explanation of the personal matter which arose yesterday, and as it did not extend to the reading of the lettere, it is a question to be submitted to the Senate; leave can be given if the Senate sees fit.

Senator HOWARD-I beg leave respectfully to object to the reading of the letters proposed to be read by the counsel.

The Chief Justice-No debate is in order.

Senator HOWARD-I raise an objection to the letters being read until after they have been submitted to the manage rs for examination.

Senator HENDRICKS-I move that the counsel be allowed to read so much of the letters as will show what date they bear.

Senator TIPTON-I call for the regular order of of the morning, the defense of the President.

The Chief Justice-The regular order is the motion of the the Senator from Indiana, Mr Hendricks.

Senator HOWE called for a restatement of the motion. Senator HENDRICKS-The motion I made is, that the attorneys for the President be allowed to read so much of the letter as will show its date and the place at which it was written.

The motion was agreed to.

Mr. NELSON-The first letter to which I allnded is the letter bearing date March 9th, 1868, addressed by Feaj. F. Butler to Col. J. W. Shaffer, Washington, D. C. Senator JOHNSON-Is that the original letter, or a copy? Mr. NELSON-I understand it to be an original letter. My understanding is tha these are the genuine signatures of Benj. F. Butler, Mr. Logan and Mr. Garfield. I am not acquainted with the handwriting and only speak from information. The Senate will allow me to read it. It is a very short one. I do not meauSenators HOWARD and HOWE objected.

The Chiet Justice-The counsel cannot read it under the order made.

Mr. NELSON-The fact that I want to call attention to, is that this letter on the caption bears date on the 9th of March, 1868. It is signed by Benj. F. Butler. Below the signature, I concur in the opinion above expressed by Mr. Butler," signed John A. Logan. Below that are the words. "and I," signed John. A. Garfield. There is no other date of that title except the 9th of March, 1868. Senator JOHNSON-Is the handwriting of the date the same as the ignature?

Mr. NELSON-The handwriting and the date are in pre

cisely the same handwriting as the address. The body of the letter above the signature, as I take it, is in a different handwriting. On the 16th of March, 1868, Mr. Chauncey F. Black addressed a letter to the President stating that he inclosed the copy of the letter which I just referred to, and in order that the Senate may understand it, you will observe that the copy is, as I believe, identical with the original letter which I have produced here.

Senator HOWE objected to any argument, and the Chief Justice cautioned the counsel.

Mr. NELSON-If your Honor please, I cannot explain the matter without explaining this fact. I am not trying to make any argument.

Senator HENDRICKS-My motion was that the counsel should be permitted to read so much as would show the date, not to go further, except so far as may be in direct explanation to the argument of Manager Butler.

Mr. NELSON-I cannot explain about the date of this copy, unless I tell you the difference about those papers which I have read. It is impossible for me to explain the date. All that I can say is that this copy bears the same date as the original, and bears the additional signatures of Mesers. Koontz, Stevens, Moorhead, Blaine and Bingham, and that there is no other date to this letter except the caption of the letter, and you will see that the copy is precisely like the original down to the words, "And I, John A. Garfield," and then come the words, "I concur," signed by Messrs. Koontz, Stevens, Moorhead, Blaine and Bingham, and on that paper there is no date.

Senator TIPTON-I move that the gentleman be permitted to proceed for one hour.

The Chief Justice-The counsel for the President (Mr. Evarts) will proceed.

Mr. Butler, walking over to the desk of the President's counsel, extended his hand for the letters, and Mr. Nelson. after saying something in an inaudible tone, handed them to him, but Mr. Butler thereon turned away seemingly irritated by the accompanying remark.

Senator CAMERON offered the following:

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

Senator JOHNSON objected, and the order went over. Mr. BUTLER-Mr. President, shall these orders which have been read be placed on the record.

The Chief Justice-The Chief Justice is unable to answer that question. He takes it for granted that no arrangement can be made without the consent of the Senate,

Mr. NELSON-All that I desire to do was this:-I told the honorable manager he could have them, provided he would return the original to me. I am perfectly willing that he should take them with that understanding.

The counsel then sent the letters to Mr. Butler by a page. Mr. BUTLER-(Drawing back indignantly), No, sir. Mr. NELSON-I will deposit them with the Secretary, gir, for the present.

Mr. BUTLER-Let the originals go on file.

Mr. Evarts Resumes his Argument.

Mr. EVARTS then took the floor in continuation of his argument. He said:-Mr. Chief Justice and Senators, if, indeed, we have arrived at a settlement or conclusion that this is a court; that it is governed by the law; that it is to confine its attention to facts applicable to the law, and regarded solely as supposed facts, to be embraced within the testimony of witnesses or documents produced in court, we have made some progress in separating, at least from your further consideration, much that has been pressed upon your attention heretofore. If the idea of power and will is driven from this assembly; if the Presi dent is here no longer exposed to attacks on the same principle that men claim to huat the lion and harpoon the whale, then, indeed, much that has been said by the honorable managers, and much that has been urged upon your attention from so many quarters, falls harmless in your midst. It cannot be said in this Senate, "fertur rumeris legis solutis," that it is caused by numbers and unrestrained by law.

On the contrary, right here is life and power, and as it is a servant in this investigation, you are here. It follows from this, that the President is to be tried on charges which are produced here, and not on common fame, Least of all, is he to be tried, in your judgment, as he has been arraigned, hour after hour in argument, upon charges which the impeaching authority, the House of Representatives, deliberately throw out as unworthy of impeachment, and unsuitable for trial. We at least, when we have an indictment brought into court, and another indictment ignored and thrown out, are to be tried on the former, and not on the latter. And if on the 9th of December last, the House of Representatives, with which by the Constitution rests the sole impeaching power under this government, by a vote of 107 to 57, threw out all the topics which make up the inflammatory addresses of the managers, it is enough for me to say that for reasons satisfactory to that authority, the House of Representatives, those charges were thrown out, so, too, if this be a trial on a public prosecution, and with the ends of public justice alone in view, the ordinary rules for the resisting of prosecuting authorities apply here; and I do not hesitate to say that this trial-to be in iu our annals the most conspicuous in our history; to be scrutinized by more professional eyes; by the attention of more scholars at home and abroad; to be preserved in more libraries; to be judged of as a national trial, a national scale, and a national criterion forever--presents the

unexampled spectacle of a prosecution which overreaches judgment from the very beginning, and invades, impugns and oppresses, at every stage, the victim which it pursues. Now, the duty of constraint upon a prosecuting authority, under a government of law pursuing only public justice, is scarcely less strict and severe than that which rests upon the judge himself.

To select evidence that is not pertinent, to exclude evidence knowing that it bears upon the inquiry, to restrict evidence knowing that the field is thus closed against the true point of justice, is no part of a prosecuting anthority's duty or power. Whatever may be permitted in the contest of the forum and the zeal of contending law yers for contending clients, there is no such authority, no such duty, no such permission for a public prosecutor, much less when the proofs have been thus kept narrowed. When the charges are thus precise and technical, is it permissable for a prosecuting authority to enlarge the area of declamation and invective. Much less is it suitable for a public prosecutor to inspire in the minds of the court prejudice and extravagant jurisdiction.

Now it has usually been supposed, that on an actual trial, involving serious consequences, forensic discussion was the true method of dealing with the subject; and we lawyers appearing for the President, being, as Mr. Manager Butler has been polite enough to say, "attorneys whose practice in the law had sharpened but not enlarged their intellect," have confined ourselves to this method of forensic discussion. But we have learned here that there is another method of forensic controversy, which may be called the method of concussion. Now I understand the method of concussion to be to make a demonstration in the vicinity of the object of attack, whereas the method of discussion is to penetrate the position, and, if successful, capture it. The Chinese method of warfare is the method of concussion, and consists of a great braying of trumpets. sounding of gongs, and shouts and shrieks in the neighborhood of the opposing forces. When all this rolls away, and the air is freer, the effect is to be watched for. But it has been reserved to us in our modern warfare as illustrated here-in the Rebellion-to present a more singular and not able instance of the method of warfare by concussion than ever has been known before. A fort impregnable by the methods of discussion, that is, penetrating and capturing it," has been, on a large scale, attempted to be captured by the method of concussion, and some hundreds of tons of gunpowder placed in a vessel near the walls of the fort, has been made the means to the concussion of this vast experiment.

Unsatisfied with that trial and its result, the honorable manager who opened this case seems to have repeated the experiment in the vicinity of the Senate. (Laughter). While the air was filled with epithets, the dome shook with invective. Wretchedness, misery, suffering and blood were made the means of this explosive mixture, and here we are surviving the concussion, and, after all, reduced to the humble and homely method of discussion which be longs to "attorneys whose intellects have been sharpened, not enlarged by the practice of law." (General and con tinuous laughter.). In approaching the consideration of what constitutes impeachable offenses within the true method and duty of this solemn and unusual procedure, and within the Constitution, we see that the effort of the managers was to make this an inquest of office, instead of a trial of personal and constitutional guilt. If it is an inquest of office, "Crowner's quest law" will do throughout for us, instead of the more solemn precedents and more diguified authorities and duties which belong to solemn trials. Mr. Manager Butler has given us a very thorough and well-considered suggestion of what constitutes an impeachable offense. Let me ask your at tention to it. We define, therefore, an impeachable high crime or misdemeanor to be one, in its nature or conse quences,subversive of some fundamental or essential prin ciple of government, or highly prejudicial to the public interest, and they may consist of a violation of the Constitution, of law, of an official oath, or of duty, by an act committed or omitted. or without violating a positive law, by the abuse of discretionary powers, from improper motives, or for any improper purpose. Now, what large elements are included in that section?

The act must be subversive of some fundamental or essential principle of government, or highly prejudicial to the public interest, and must proceed from improper motives, or for an improper purpose. Now that was intended in the generality of its terms, to avoid the necessity of ac tual and positive crime. But it has given us in one regard everything that was needed to show what an impeachable offense must be. Now the fallacy of these general qualify. ing terms is in making them the substance of the crime, instead of the condition of the peccadility. You must have the crime defined under the law and Constitution, and even then it is not impeachable, unless you affect it with some of those public, general and important qualities which are indicated in this definition by the learned and honorable manager. Now let us look at a statement made by a committee of managers of the House of Representa tives in the case of the impeachment of Judge Peck.

Mr. Evarts read an extract from the remarks of Mr. Buchanan, chairman of the managers in the case of Judge Peck, to the effect that the managers were bound to prove that the respondent had violated the Constitution or some known law of the land, and had committed misbehavior in office. He also read from Burke's invective in the case of Warren Hastings, to show that the charges against Hast ings were not for errors or mistakes, such as wise and good men might fall into, and which might produce very pernicious effects without being, in fact, great offenses, and that a large allowance ought to be made for human in

firmity and for human error, and that the crimes charged against him were not defects of judgment, or errors common to human frailty, which could be allowed for, but were offenses having their roots in avarice, insolence, treachery and criminality.

Mr. Evarts then continued:-I need not insist on the very definite, concise and effective argument of the learned counsel who opened the case for the respondent (Mr. Curtis), as to the clause in the Constitution prohibiting ex post facto laws and bills of attainder. But it is essential here that the act charged shall have what is crime against the Constitution and crime against the law, and then that that crime shall have those public propositions which are indicated in the definition of the opening manager, and those traits of freedom from errors which belongs, in the language of Mr. Burke, to an arduous public station. You will then perceive that under this necessary condition, either this judgment must be arrived at, that there is no impeachable offense here which carries with it these conditions, or else that the evidence offered in behalf of the respondent, which was to negative, which was to countervail which was to refute all these qualifications, should hve been admitted.

When a court like this has excluded the whole range of evidence relating to the public character of the accused, and to the difficulties of an arduous public station, it must have determined that the crime charged does not partake of that quality, or else the court would have regarded the charge to have been affirmatively supported by proof, and would have permitted the proofs to be refuted by a countervailing evidence. When a court sits only for a special trial, when its proceedings are incapable of review, when neither its law nor its facts can be subjected to reconsideration, the nceessary consequence is that when you come to make up your judgment, you must take into consideration all that offered to be proved, all that could fairly have been proved, or else it is your duty, before you reach the inevitable step of judgment and sentence, to resume the trial and call in the rejected evidence.

I submit it to you that a court without review, without new trial, without exception and without possible correction of errors, must deal with evidence in this rule; and that unless you arrive-as I suppose you must-at the conclusion that the determinations of this trial relate to a formal, technical infraction of a statute law that has been brought in evidence here, it will be your duty to reopen your doors, call the respondent again before you, and go into the field of inquiry, which has not been permitted to him, but has been occupied by passion and declamation on the part of the managers. When the powers of the Constitution put into it, as the necessary result of a trial of the President of the United States, and of his conviction, that his punishment should be deprivation of office, and that the public should suffer the necessity of an election they showed you what they meant. by high crimes and misdemeanors.

I know that soft words have been used by every manager here on the subject of the mercy of our Constitution in the smaliness of the punishment-that it does not touch life, liberty or property. Is that the sum of the penalty? Is that the measure of punishment? Why, you might as well say that when the mother feels for the first time the newborn infant's breath, and it is snatched from her and destroyed before her eyes, that you have not deprived her of life, liberty or property; and, therefore, that the punishment is light in a Republic where public spirit is the life, and where public virtue is the glory of the State; and this in the presence of public men, possessing great public talents, high public passions and ambitions made up as this body of men, springing, many of them, from the ordinary conditions of American life, and by the force of their native talents and by the high qualities of endurance and devotion to the public service, who have elevated themselves into their eminent positions, if not the envy, the admiraion of all their countrymen. It is gravely proposed to you, holding this elevated position, and who still not disdains to look upon the Presidency of the United States as still a higher, a nobler, and a greater office, to say that it is a little thing to take a President from his public station and to strike him down, branded with high crimes and misdemeanors, to be a by-word and a reproach through the long vista of history forever and ever. In the great hall of Venice where long rows of doges cover the walls with their portraits, the one erased, the one defeatured canvas attracts to it, every eye; and yet we are to be told that one who, through his devotion to the public service, has reached the highest public eminence in the State, may be cast down forever into a pool, not of oblivion, but of infamy, and may carry with him to his posteriity, for generations, that infamy; and that is a trifling matter, and does not touch life, liberty or property. If these are the estimates of public character, of public fame, of public disgrace, with which you, the writers of this country are to record, you have indeed written for the youth of the country the solemn lesson that he is dust and ashes, indeed.

Why are the people of this country to be called to a Presidential election in the middle of a term, altering the whole calendar, it may be, of the government because there may have been an infraction of penal statute? It is accidental, to be sure, that the enforced and irregular election which must follow on your sentence at this time, concurs with the usual quadrennial elections, but it is simply accidental. The provision of that penal law limiting the scale of punishment is, that the fine shall not exceed ten thou sand dollars, and that the imprisonment shall not exceed five years; but a fine of six cents and an imprisonment of one day, according to the nature of the offense, within the discretion of the court, may satisfy public justice under an indictment for violation of the law. Nor was this unre

stricted mercy of the law unattended to in the debate on the bill. The honorable Senator from Massachusetts (Mr. Sumner) in the course of the discussion of that section of the bill, having suggested that it would be well at least to have a moderate minimum of punishment, and having suggested a thousand dollars or five hundred dollars as the lowest limit, the Senate acted on this wise intimation that some time or other there might come to be a trial under this section before a court which had a political virus.

Mr. Evarts read short extracts from the remarks of Senators Sumner, Edmunds and Williams, and continued: That being the measure and that the reason of the law, there is clamped upon it a necessary and inevitable result which is to bring these vast consequences to the State and to the respondent. But even then you do not know or understand the full measure of the discretion unless you attend to the fact that such formal technical crimes as are made the subject of conviction and sentence are, according to the principles of our Constitution, and to the system of every other civilized government, made the subject of pardon; but under this process of impeachment there is but one punishment, and that the highest that can be inflicted upon the public fame and character of a man. The punishment is immitigable, immutable, irreversible, unpardonable, and no power whatever can lighten or relieve the load with which an impeached and convicted public servant goes forth from your chamber with a punishment heavier than he can bear. And now what answer is there to this but the answer that will take the load of punishment and infamy from him, and place it somewhere else. True it 18 that if he be unjustly convicted for technical and formal faults, then the judgment of this great nation of intelligent and independent men stamps upon his judges the consequences which they have failed to inflict upon the victim of their power. Then it is that the maxim is true-Si innocens damnatur index quoque damnatur. Then it is that the maxim finds its realization in the forum of public opinion, and in the recorded history of the country. I have introduced this consideration simply to show you that those notions that if you can prove that a man has stumbled over a statute, it is essential he must pay the penalty, find no support in reason, none in law, none in the good sense of this high tribunal, none in the habits and views of the great people whom we represent. Indeed, we should come under the condemnation of Cicero if we were to seek on this narrow view of law such consequences as I have pointed out. "Summum jus sacpe, summa injuria est." The extremity of the law is often the extremity of wickedness.

And now I am prepared to consider the general traits and qualities of the offenses charged, and I shall endeavor to pursue in the course of my argument three propositions:

First. That the alleged infractions of this penal statute are not in themselves, or in any quality or color that has been fastened upon them by the evidence in this case, impeachable offenses.

Second. That whatever else there is attendant, appurtenant, or in the neighborhood of the subjects thus presented for your consideration, is wholly political, not the subject of jurisdiction in this court, or in any court, but only in the great forum of political judgment, to be debated at the hustings and in the newspapers, by the orators and writers to whom we are always so much indebted for correct and accurate views of the subjects presented for such determinations. If I can accomplish this, I shall have accomplished everything.

Third. I shall ask your attention to the precise acts and facts as disclosed in the evidence, and charged in the articles, and shall bring you I think, to a safe and indisputable conclusion, that even the alleged infractions of penal law have none of them in fact, taken place.

We must separate, at least for the purpose of argument, the inuendoes, the imputations, the aggravation, which find their place only in the oratory of the managers, or only in your own minds, as conversant with the Constitution. Up to twelve o'clock on February 21, 1868, the President was innocent and unimpeachable, and at one o'clock on the same day he was guilty, and impeachable of the string of offenses which fill up all the articles.

Leaving out the Emory article, which relates to conversation on the morning of the 22d of February, what he did was all writing; what he did was all public and official: what he did was all communicated to all the authorities of the government having relation to the subject.

Therefore you have at once proposed for your consideration, a fault, not of personal delinquency, not of morality, not of turpitude, not one which disparages in the judgment of mankind, not one which degrades or affects the position of the malefactor. It is, as Mr. Senator Williams truly said:"A new offense under the laws, an offense not involving turpitude, and rather of a political character."

Now, too, on the proofs:-This offense carries no consequence beyond what its action indicates, to wit: a change in the head of a department. It is not a change of department; is is not an attempt to wrest a department or apply an office. against the law, contrary to the regulations of the government, or against the safety or the peace of the State. Not in the least. Whatever imagination may sug gest, whatever invective may intimate, the fact is that it had no other object and no other plan, and would have had no other consequence, than the substitution for Mr. Stanton of some other citizen of the United States, who, by the advice and consent of the Senate, should be put in the vacant place of the Secretary of War, and to have, until that advice and consent were given, the office filled by some legal ad interim holder of it.

If, then, the removal had been effected; if the effort to