assert a constitutional authority by the President had been effectual, no pretense is made or can be made that anything was contemplated which could be considered as placing any branch of the government out of the authority of law. Whatever there might be of favor or support of public opinion in favor of Mr. Stanton for that post, and however well deserved all that may be, Senators cannot refuse to understand that there was nothing in his removal which should be exaggered iuto a crime against the safety of the State.

But I go a little further than that and say, that however great may have been the credit with the houses of Congress, and with the people of his own party, which Mr. Stanton enjoyed, it cannot be doubted that there was a general and substantial concurrence of view in Congress, among all the public men in the service of the government, and among the citizens generally, that the situation disclosed to public view and public criticism, an antagonism between a head of a department and the President of the United States, not suitable for the public service, and was not to be encouraged as a situation in the conduct of the executive government; and that there was a general opinion among thoughtful men and considerate people that, however much the politics of the Secretary of War might be regarded as better than the politics of the President, if they would uphold the form of government and recognize the official rights that belong to the two positions, it was a fair and just thing for the President to expect the retirement of the Secretary of War, rather than that his just and necessary powers should be crippled. It follows that the whole thing, in act, in purpose and in conduct, is a formal contravention of a statute. I will not say how criminal that may be; I will not say whether absolute, inflexible, personal obedience to every law of the land may not be exacted under penalty of death from everybody holding public station. That is a matter for the legislators. Now when you consider that this new law really reverses the whole action of the government; that, in the language of the Senators and Representatives who spoke in its behalf, it revolutionizes the practice of the government; and when you consider that the only person in the United States whom that law in relation to the holders of offices was intended to affect, or could, by its terms, affect, was the President of the United States; when you consider that nobody was subjected to it; that it was made a rule, a control, a restraint, a mandate, a diction, to nobody else in the United States except the President, just as distinctly as if it had said in it--If, the President shall remove from.office, he shall be punished by fines and imprisonment, and when you know that it was claimed that the President, under the Constitution, had a right to remove from offiee, you at once see that, by a necessary exclusion and conclusion, it was an act political in its nature, and that its violation in support of, and in obedience to a higher obligation of the Constitution, should bring no such consequences as are attempted to be inflicted here now. Whenever anybody puts himself in that position it cannot be made a crime of in the moral judgment, or in the judicial determination of the sentence and measure of punishment.

But we are committed by the managers to the most extraordinary views on the subject of violating what is called an unconstitutional law. Why, nobody ever violates an unconstitutional law, because there never is any such obstacle to man's action, freedom, duty and right as - an unconstitutional law. The question is whether he violates the law; not whether he violates a written paper published in a statute book, but whether he violates law; and the first lessons under a written constitution are and must be that a law unconstitutional is no law at all. The learned manager, Mr. Boutwell, speaks of law being annulled by the judgment of the Supreme Court, but the Supreme Court never annuls a law.

There is no difference in the binding force of a law, after the Supreme Court has annulled it, as he calls it, from what there was before. The Supreme Court has no political function; it has no authority or power to annul a law It has the faculty of judgment to discern what the law is, and what the law has been, and so to administer it. Apply this to an indictment for a violation of the Tenure of Office act, and, supposing that act to be unconstitutional, is a man to be punished because he has violated it, and because the Supreme Court has not yet declared it unconstitutional? No; he comes into court and says, "I have violated no law." The statute is read. The Constitution is read. The judges say you have violated no law, and that ends the matter, The man does not need to appeal to the decision of the court as to the measure of punishment, or to the mercy of the Executive. In the matter of pardons he has done what was right, and he needs to make no apology to Congress or to anybody else, but Congress Owes an apology to him. I shall consider this matter more fully hereafter, and now allude to it only in view of fixing a necessarily reduced estimate of criminality in the act. Much has been said about the duty of the President to execute unconstitutional law. I claim that the President has no greater right in relation to a law which operates on him in his public duty, and upon him obviously to raise a question under the Constitution to determine to his right, and what his duty is, than any citizen has in private capacity, when a law infringes upon his constitutional rights, to say that Congress has no right to pass unconstitutional laws, and yet, that everybody is to obey them just as if they were constitutional, and to be punished for breaking them just as if they were constitutional; and to be prevented from raising the question whether they are constitutional, is, of course, trampling the Constitution, and those who obey it into the dust. Obey the Constitution as against an act

of Congress which invades it. If the act of Con grees, with the sword of its justice. can cut off his head, and the Constitution has no power to save him, and there can be nothing but debate hereafter, whether he was properly punished or not, gentlemen neglect the first and necessary conditions of all constitutional govern ment of this nature. But, again, the form of the alleged infraction of this law, whether it was constitutional or not, is not such as to bring any person within any impu tation, I will not say of formal infraction of the law, but of any violent resistance to or contempt of the law. Nothing was done whatever but to issue a paper and have it deli vered, which puts the posture of things in this condition, and nothing else. The Constitution, we will suppose says that the President has a right to remove the Secretary of War.

The act of Congress says that the President shall not remove the Secretary of War. The President says, will issue an official order which will raise the question between my conduct and the statute that the statute raises between itself and the Constitution." As there is and can be, and ever should be a reference of a law to the revision and determination of the Supreme Court, or of some other court, so when the Constitution and the law are, or are supposed to be at variance, or inconsistent everybody upon whose rights are invaded has a right, under the usual condition of conduct, to put himself in a position to act under the Constitution and not under the law. The President of the United States has it all on paper thus far. The Constitution is on paper. The law is on paper, and he issued an order on paper, which is an assertion of the Constitution and a denial of the law. That paper has legal validity if the Constitution sustains it, and is illegal, invalid, and ineffectual,

If the law prohibits it, and if the law is conformed to the Constitution therefore, it appears that nothing was done but the mere course and process in the exercise of right, claimed under the Constitution, without force without violence, and making nothing but the altitude of assertion, which, if questioned, might raise the point of judicial determination. Now, Senators, you are not, you cannot be unfamiliar with the principle of our criminal law, the good sense and common justice of which, "although it sometimes is pushed to extremes," approves itself to every honest mind, and that is that criminal punishments under any form of statute, or any definition of crime, shall never be made to operate upon acts, even of force and violence, which are or honestly may be believed to be done under claim of right.

It is for that purpose that the animus, the intent, the 'animus farani," in cases of larceny; the malice prepense' in cases of murder, are made the very substance of the crime; and nothing is felt to be more oppressive, nothing has fewer precedents in the history of our legisla tion or of our judicial decisions, than any attempt to coerce the assertion that peaceful and civil claims of right by penal enactment. It is for that reason that our com munities and our law-givers have always frowned upon any attempt to coerce the right of appeal under any restrictions or any penalties or costs. Civil rights are rights available and practical, just according as the people can avail themselves of them, and the moment you attach a punishment to the assertion of a claimed right, you infringe upon one of the necessary rights of the people.

Now, I ask your attention, at least I confesss that I do it with reluctance, and contrary to my own tastes and judg ment, very much to what is but a low level of illustration and of argument. But day after day it has been pressed upon you that a formal violation of a statute, although made under claim of a constitutional right and duty honestly felt by the President, is, nevertheless, a ground of impeachment, not to be impeded or prevented by any of those considerate inducements. I ask your attention to what is but an illustration of the general principle that penal laws shall not be enforced in reference to an intent governed by a claim of title. A poacher had set his wires with the domain of the lord of a manor and had caught a pheasant in the wires; the gamester took possession of the wire and of the dead pheasant.

The poacher approached him with threats of force and violence, and took from him the wires and the dead phea sant. The poacher was arrested and tried for robbery. Vaughan, Baron, says: "If the prisoner demanded the wires under the honest conviction that he had a right to them, though he may be liable for trespass in setting them, it is not robbery. The gamekeeper had a right to take them, and when so taken they never could have been recovered from him by the prisoner. Yet, still, if the prisoner acted under the honest belief that the property in them continued in himself. I think it is not a robbery. If, how ever, he used it simply as a pretense, it would be a robbery. The question for the jury is whether the prisoner did honestly believe that the property was in himself, or not." Thus does the criminal law of a free people distinguish be tween technical and actual faults. What mean the guarantees of the Constitution? What mean the practice and habits of English liberty, which will not allow anybody enjoying that liberty to be drawn into question criminally by any technical or formal view of law?'

What mean those fundamental principles of our liberty, that no man shall be put on trial for accusation of crime, though formally committed, unless the grand jury shall choose to bring him under inculpation, and that, when he is brought under inculpation, he shall not be condemned by any judge or magistrate, but by the condemnation of hfs peers. Certainly, we have not so far forgotten our liberties and on what they rest, that we should bring a President of the United States under the formal apparatus of iron oppression, which, by necessity, if you set it a going

shall, without crime, without fault, without turpitude, without the moral fault even of violating a statute which he believed to be binding upon him, bring about these monstrous consequences, monstrous in their condemnation of depriving him of his office and the people of the country of an executive head.

The court here, at two o'clock, took a recess for a quarter of an hour.

Mr. EVARTS continued.-I am quite amazed. Mr. Chief Justice and Senators, at the manner in which these learned managers are disposed to bear down upon people that obey the Constitution to the neglect or avoidance of a law.

It is the commonest duty of the profession to advise and maintain and advocate the violation of a law in obedience to the Constitution, and in the case of an officer whose duty is ministerial, whose whole obligation in his official capacity is to execute or give force to a law, even when the law does not bear upon him, his right then, in good faith and for the purpose of the public service, and with the view of ascertaining by the ultimate tribunal in season to prevent public mischief, whether the Constitution or the law is to be the rule of his conduct, and whether they be at variance, the officer should and does appeal to the Court. I ask your attention to a case in third Seldon's reports, New York Court of Appeals, page 9, in the case of Newell, Auditor of the Canal Department, in error, against The People, State of New York The Constitution of the State of New York contains provisions restrictive upon the capacity or power of the Legislature to incur public debt.

The Legislature deeming it, however, within its right to raise money for the completion of the canals, upon a pledge of the canals and their revenue, not including what may be called the personal obligation of the State. undertook to raise a loan of six or ten millions of dollars, and Mr. Newell, the Canal Auditor, when a draft was drawn upon him, in his capacity as a ministerial officer, and obeyant to the law, refused to pay it, and raised the question whether this act was unconstitutional. now, he ought to have been impeached; he ought to have had the Senate and the Court of Appeals convened on him, and been removed from office. The idea of a mere auditor getting himself up against what the learned manager calls law? He set himself up in favor of law, and against its contravention.

Well,

The question was carried to the Supreme Court of that State, and the court decided that the law was constitu tional; but, upon an appeal to the Court of Appeals, that court held it unconstitutional, and the six million loan was rolled away as a scroll. Now, I would like to know if the President of the United States-who has taken an oath to preserve, protect and defend the Constitution of the United States when a law is passed over his head, and he has appealed to the Constitution, this Constitution is to answer through the House of Representatives. We admit, for argument, that the law is unconstitutional; we admit It bears on you and your just rights, and on nothing else; and we admit that you have raised the constitutional question; yet such is the peril under which you do that, that we will cut off your head for questioning an unconstitional law that bears upon vour rights and contravens that Constitution that you have sworn to protect and defend.

How will our learned managers dispose of this case of Newell, the auditor, against the people of the State of New York, where an upright and faithful officer acted in the common interest and for the maintenance of the Constitution? And are, we such bad citizens when we advise that the Constitution of the United States may be defended, and that the President, without a breach of the peace, and with an honest purpose may make a case where the judgment of the court may be had and the Constitution sustained? Why, not long since the State of New York passed a law laying a tax on brokers' sales in the city of New York, at a half or three-quarters per cent. on all goods that should be sold by brokers, seeking to raise for the revenue purposes of the State of New York about ten millions of dollars on the brokers' sales of merchandise, which sales distributed, through the operations of that emporium, the commerce of the whole country for consumption through all the States of the Union.

Your sugar, your tea, your coffee that you consume in the valley of the Mississippi, was to be made to pay a tax In the city of New York to support the State of New York in this gigantic scheme, and they made it penal for any broker to sell them without giving a bond to pay it. Well, now, when all the brokers were in this distress, I advised some of them that the shortest way to settle that matter was, not to give the bonds, and when one of the most respectable citizens of the State was indicted by the grand jury for selling coffee without giving a bond. and it came before the courts, according to my advice, and I had the good fortune to be sustained in the Court of Appeals of the State of New York, in the proposition that the law was unconstitutional, and the indictment failed.

Was I a bad citizen for invoking the Constitution of the United States against these infractions of law? Was this defendant, in the indictment, a bad citizen for undertaking to obe y the Constitution of the United States? Where are your constitutional decisions? Look at the case of Brown vs. Maryland, the Banks tax cases, all these instances by which a constitution is arrayed for the protection of the rights of the citizen; it is always by instances; it is always by big acts, and the only condition is, that it shall be done without a breach of the peace and in good faith. When Mr. Lincoln, before the insurrection had broken out, had issued the habeas corpus and undertook to arrest the mischief that was going on at Key West, where,

through the form of peace, an attack was made upon that fort and upon the government navy yard through the ha beas corpus-an excellent way to take a fortI do not know whether the honorable manager, who is so good a lawyer, tried that in any of his military expe riences or not (laughter), but a habeas corpus was tried in order to strip that fort of all its soldiers, and it was sueceeding admirably. The fort would have been taken by habeas corpus, but that President Lincoln suspended the habeas corpus, violating the law, violating the Constitu tion. Now, was it necessary that he should be impeached? What did he do? He suspended it by proclamation, on the 10th of May, 1861, and at the opening of the next session he referred to the fact of the illegality of the measures in question, saying they were ventured upon under public necessity, and committed them to the judgment of Congress. I will give you another act of this great, heroic President, the arrest of the members of the Legislature of Maryland, never justified by any law that I know of, nor by the Constitution; and it so happens that the very statement there was, that public action is to be judged by public men and public officers as pri vate actions are to be judged by private men, according to the quality of the act," whether it shall be impeached or whether it shall be indemnified. I do not make this argument as going further than to meet the necessity which I understand the honorable managers to put forth that an infraction of a statute must carry out of office any President of the United States. Why the very next statute in this book, after the Civil Office Tenure act, on page 402, is an act to declare valid and conclusive certain proclamations of the President, and acts done in parso ance thereof in the supression of the late Rebellion. The military commissions had been declared invalid by the Supreme Court, and here we have an act of indemnity. covering a multitude of formal and technical sins, by indemnity and protection, to have the same effect as if the ' law had been passed.

If, therefore, this interpretation of law and duty, by their act unqualified, unserutinized, unweighed, unmea sured, is to make the necessary occasion of a verdict of impeachment, it must be considered under the clear bright light on which true statesmanship sheds upon the subject. We, as conveniently at this point as afterwards, pay some attention to the astronomical punishment which the learned and honorable manager, Mr. Boutwell, thinks should be applied to the novel case of impeachment Cicero, I think it is, who says that a lawyer should know everything, for, sooner or later, there is no fact in history, in science, or in human knowledge, that will not come into play in his argument. Profoundly sensible of my ignorance, being devoted to a profession, "which sharpens and does not enlarge the mind," I can admire without envying the superior knowledge evinced by the honor able manager. But, nevertheless, while some of his col leagues were paying attention to an unoccupied and unappropriated island on the surface of the seas, Mr. Manager Boutwell, more ambitious, had discovered an un tenanted and unappropriated region in the skies, (laughter) reserved, he would have us think in the final coup cils of the Almighty, as a place of punishment for cont victed and deposed American Presidents. (Laughter.)

Now, at first, I thought that his mind had become so enlarged that it was not sharp enough to observe that the Constitution had limited the punishment (laughter), but on reflection, I saw that he was as legal and logical as he was ambitious and astronomical, for the Constitution has said, "removal from office," and has put no limit to the distance of removal. (Great laughter.) So, without shedding a drop of his blood, or taking a penny of his property, or ironing his limbs, he is sentenced to removal from office and transportation to the skies. (Laughter.) This is the great undertaking, and if the learned manager can only get over the obstacle of the laws of nature, the Constitu tion won't stand in the way. (Laughter.)

I can think of no method but that of a convulsion of the earth that should project the deposed President to this infinitely distant space; but a shock of nature of so vast an energy and so great a result might unsettle even the so firm members of Congress. (Laughter.) How shall we accomplish it? Why, in the first place, nobody knows where that space is but the learned manager himself (laughter), and he is the necessary deputy to execute the judgment of the court.

Let it then be provided, that in case of your sentence of deposition and removal from office, the honorable the astronomical manager shall take into his own hands the execution of the sentence. With the President made fast to his broad and strong shoulders, and having already essayed the flight, by imagination, better prepared to execute it in form, taking advantage of ladders, as far as ladders would go, to the top of this high Capitol, and, spurning them with his feet, from theGoddess of Liberty let him set out upon his flight (laughter), while the Houses of Congress and all the people of the United States shall shout "Sicitur ad astra" (Laughter, loud and long continued.)

Here an oppressive doubt strikes me; how will the man ager get back? How when he gets beyond the power of gravitation to restore him, will he get back? And so ambi tious a wing as he could never stoop to a downward flight. No doubt as he passes through the expanse, that famous question of Carlyle, by which he points out the lit tleness of human affairs:-"What thinks Bootis of them as he leads his hunting dogs over the zenith in their leash of sideral fire," willoccur to the managers. What indeed would Bootis think of this new constellation (laughter) looming through space, beyond the power of Congress to send for persons and papers? (Laughter.)

Who shall return and how decide in the contest there

begun in this new revolution thus established? Who shall decide which is the sun and which is the moon? Who shall determine the only scientific test, which reflects hardest upon the other? (Laughter). I wish to draw your attention to what I regard as an important part of my argument, a matter of great concernment and influence for all statesmen and all lovers of the Constitution-to the particular circumstances under which the two departments of the government now brought in controversy are placed. I speak not of persons, but of the actual, constant division of the two parties.

Now, the office of President of the United States, in the view of the framers of the Constitution, the experience of our national history, and in the estimation of the people, is an office of great trust and power. It is not dependent on any tenure of office, because the tenure of office is a source of original commission; yet it is, and is intended to be, an office of great authority, and the government, in its co-ordinate departments, cannot be sustained without maintaining all the authority that the Constitution has intended for this Executive office; but it depends for its place in the Constitution upon the fact that its authority is committed to the suffrage of the people, and that when this authority is exerted, it is not by individual purpose or will. Why the mere strength that a single individual can oppose to the corrective power of the Congress of the United States? It is because the people, who, by their suffrage have raised the President to his place, are behind him, holding up his hands, speaking with his voice, sustaining him in his high duties, that the President has his voice under the Constitution.

Its great power is safe thus to the people for the reasons I have stated, and it is safe to the President because the people are behind him, and have exhibited their confidence in him by their suffrage, but when one is lifted to the Presidential office who has not received the suffrage of the people for that office, then at once discord; dislocation begins; then at once the great powers of the office which are consonant with a free Constitution and with the popular will, and owes the very breath of life to the continuing power of the people; then it is that in the criticisms of the press, in the views of the people, these great powers, strictly within the Constitution, seem to be despotic and personal; and then you are subject to another difficulty that our vicious system of politics has introduced, and that is that in our nominations for the two offices, selecting always the true leader of the popular sentiment of the time for the place of Presieent, we look about for a candidate for the Vice President to attract the minority and to assuage difficulty and to bring in consistent supporters.

Coupled with this phase in our politics, when the Vice President becomes President of the United States, not only is he in the attitude of not having the popular support for the great powers of the Constitution, but of not having the authoritative support for the fidelity and maintenance of his authority. Then, adhering to the original opinion and political attitudes which form the argument for placing him in the second place, he is denounced as a traitor to his party, and insulted and criticised by all the leaders of that party.

I speak not particularly in reference to the present in cumbent, and the actual condition of parties here, but all the public men, all the ambitious men, all the men engaged in the public service, and in carrying on the government in their own views and the interests and duties of the party, all have formed these views and established their relations with the President, who has disappeared, and they, then, are not in the attitude and support, personal or political, that should properly be maintained among the leaders of a party.

Then it is that ambitious men who had formed the purpose both for the present and for the future, upon the faith of Presidential nomination, find their calculations disturbed Then it is, that prudence and wisdom find that terrible evils threaten the conduct of the government and the nation.

This we all know by looking back at the party differences in times past, as in the time of the Presidency of Mr. Tyler, when an impeachment was moved against him in the House of Representatives and had more than a hundred supporters, and it was found after it was all over that there was nothing in the conduct of Mr. Tyler to justify it. So, too, a similar imputation will be remembered in the conduct of Mr. Fillmore.

Then the opposition seize upon this opportunity, enter into the controversy, urged on the quarrel, but do not espouse it, and thus it ended in the President being left without the support of the guarantees of authority which underlie and vivify the Constitution of the United States, namely, the favor of the people; and so, when this unfortunate, this irregular condition of the Executive office concurs with a time of great national conjointure, then, at once, you have at work the special or peculiar operation of forces upon the Executive office, which the Constitution left unprotected and undefended with the full measure of support which every department of the government should have in order to resist the others, pressing on to dangers and difficulties which may shake and bring down the pillars of the Constitution itself. I suggest then to you, as wise men, that you understand how out of circumstances for which, as man is responsible, attributable to the workings of the Constitution itself, there is a weakness, and a special weakness, in the Presidency of the United States, which is, as it were, an undefended fort, and to see to it that an invasion is not urged and made successful, by the temptation that is presented.

This exceptional weakness of the President, under our Constitution, is accompanied, in the present state of

affairs, by the extraordinary development of party strength in Congress. There are, in the Constitution, but three barriers against the will of a majority in Congress. One is that which requires a two-thirds vote to expel a member of either House; another is that a two-thirds vote is necessary to pass a law over the objections of the President, and the third is that a two-thirds vote of the Senate, sitting as a court for the trial of impeachment, is necessary for conviction. And now these last two proteo tions of the Executive office have disappeared from the Constitution, in its practical working, by the condition of parties, which has given to one the firm possession, by three-fourths, I think, in both houses, of the control of the government, of each of the other branches of the govern ment. Reflect upon this.

I do not touch upon the particular circumstance that the non-restoration of the States has left the members in both Houses less than they might under other circumstances be I do not calculate on whether that absence increases or di minishes the proportion that there would be in parties Possibly their presence might even aggravate the political majority which overrides practically, on the calculations of the President's protection, in the guarantees of the Con stitution. What did the two-thirds mean? It meant that in a free country where intelligence is diffused it was im possible to suppose that there would not be a somewhat equal division of parties. It was impossible to suppose that the excitement and zeal of party would carry all the members of it into any extravagancies. I do not call them extravagancies in any sense of reproach. I merely speak as to the extreme measures which parties may be disposed to adopt.

Certainly, then, there is ground to reflect before bringing to the determination this great struggle between the coordinate branches of the government, whether the co-or dination in the Constitution can be preserved, or whether it is better to urge a test which may operate upon the framework of the Constitution and upon its future, unat tended by any exception of a peculiar nature which go verns the actual situation. Ah, that is the misery of human affairs-that distresses come when the system is least prepared to receive it. It is misery that disease in vades the form when health is depressed and the powers of the constitution to resist it are at the lowest ebb; it is misery that the gale rises and sweeps the ship to destruc tion when there is no rea room for it, and when it is on a lee shore, and if concurrently with these dangers to the good ship her crew be short, and her helm unsettled, and disorder begins to prevail, and there comes to be a final strug gle for the maintenance of mastery against the elements, how wretched is the condition of that people whose for tunes are embarked in that ship of State. What other protection is there for the Presidential office but these two-third guarantees of the Constitution and the Supreme Court, placed there to determine the lines of separation, and of duty, and of power under our Constitution, be tween the Legislature and the President. Under the evi dence proposed and rejected, the effort of the President was, when the two-thirds majority had urged the contest against him, to raise a case for the Supreme Court to de cide, and then the Legislature, coming in by its special jurisdiction of impeachment, intercepts his efforts, and brings his head again within the mere power of Congress, where the two-thirds rule is equally ineffectual as between the parties to the contest.

aunoticed, on account of the very serious impression it brings upon the political situation which forms a staple of pressure on the part of the managers. I mean the very peculiar political situation of the country itself. The suppression of the armed rebellion, and the reduction of the revolted States to the power of the government, left a problem of as great difficulty in human affairs as was ever proposed to the action of any government.

The work of pacification after so great a struggle, where so great passions were enlisted, so great wounds had been inflicted; where so great discontents had originated controversies, and so much bitterness prevailed, its formal setDenient presented a work of great difficulty, but there concurred with it a special circumstance, which by itself would have taken all the resources of statesmanship-I mean the emancipation of the slaves-which had thrown four millions of men, not by the process of peace, but by the sudden blow of war, into the possession of their freedom; which had placed at once, and against their will, all the rest of the population under those who had been their daves.

Now, the process of adaptation of society and of law to so great a social change as that, even when accomplished in peace, and when not disturbed by the processes of war and by the discontent of a suppressed rebellion, was so much as any courage or any property as is given to any government can expect to carry through successfully. When these two great political facts concur and press apon a government, how vast, how difficult, how impracticable and unmanageable seems the posture of affairs. But this does not represent the measure, or even the prinCipal feature of the difficulty.

When the government, whose arms had triumphed and suppressed resistance, is itself, by the theory and action of the Constitution, the government which by positive law is to maintain its authority, the process is simple; but under our complete government the restored Constitution surrenders their domestic affairs at once to the local governments of the people who have been in Rebellion. And then arises the question-What has formed the staple of our politics for the last four yearswhat has tried the wisdom, the courage, the patriotism of all? The question is, how far, under the Constitution as it stands, the General Government can exercise absolute control in the transition period between war and peace, and how much found to be thus manageable should be committed to the changes in the Constitution. When we understand that the great controversy in the formation of the Constitution itself, was how far the General Government should be intrusted with the domestic concerns, and that the people of the States were not willing to intrust the General Government with their domestic interests. We see at once how wide, how dangerous, how difficult is the arena of the controversy of Constitutional law, and of differences of opinion as to what was or is constitutional, and as to what changes should be, ar ought to be made in the Constitution to meet the praciical situation. When you add that the people are divided on these questions, and as the parties of force on one side, and on the other are the loyal masses and the Rebel masses, and whoever divides from his neighbor, from his associates, from his party adherents in this line of constitutional opinion, and in this line of governmental action, which seems to press the least changes on the Constitution, and the least control on the masses lately in Rebellion, will be suspected and charged as an ally of traitors and Rebels. You have at once disclosed how the names of traitor and of Rebel, which belonged to the war, have been made the current phrases of political discussion. I do not question the rectitude, nor do I question the wisdom of any positions that have been taken as matter of argument, as matter of faith, or as matter of action in the disposition of this peculiar situation. I only attract your attention to the necessities and dangers of the situation itself, both in reference to public order and in reference to the changed condition of the slave. We were urged "stave super vias antiquae. It is not the question of standing upon ancient ways, for we are not on them. The problem of the situation is, as it was then, how to get on the ancient ways from those paths which disorder and violence and rebellion had forced us into, and here it was that the exasperations of politics came up, mingled with charges of infidelity to party, and of moral and political treason to the State. How many theories did we have in this Senate? If I am not mistaken, one very influential, and able and eloquent Senator was disposed to take the declaration of independence in the working forces of our Constitution as a sort of free constitution. In the other House a great leader was disposed to treat it on the trans-constitutional necessities which the situation itself imposed. And thus it was that minds trained in the old school, attached to the Constitution, were unable as orators and as reasoners, to adopt these learned phrases.

And now let me urge it, that all this is within the province of politics, and free governments would be unworthy of their freedom, and could not maintain it if their public servants, their public men, their chosen servants, were not able to draw the distinction between legal constitutional offenses and odious and abominable faults. When passions and struggles of force, in any form of violence, or of impeachment as an engine of power come into play, then freedom has become license, and then party has become faction. I hold in my hands an article from the Tribune, written in reference to this trial, and put with great force and skill. I do not propose to read it. I bring it here to show, and to say that it is an excellent series of articles of impeachment against the President of the United States, within the forum of politics, for political

repugnance and obstruction, and as an honest conviction that the technical and formal crimes imputed in the arti cles before this court are of but paltry consideration. Now, that is an excellent article of impeachment for the forum of politics, and for discussion at the hustings. There it belongs, there it must be taken. But this being a court, we are not to be tried for that of which we are not charged. How wretched the condition of him who is to be oppressed by vague, uncertain shadows, which he cannot resist. Our honorable managers must go back to the source of their authority if they would obtain what was once denied them-a general and open political charge. It must, I know, be maintainable in law, it must be main tainable in fact; but then it would be brought here, it would be written down, its dimensions would be known and understood, its weight would be estimated. The answer could be made, and then your leisure and that of the nation being occupied with hearing witnesses about political difficulties, and questions of political repugnance, and political obstruction on the part of the President, we should be heard in his defense in that political trial, and would at least have the opportunity of reducing the force of the testimony, and of bringing in the opposing and controverting proofs.

Then at least, if you would have a political trial, there would be something substantial to work upon. But the idea that the President of the United States is to be brought into the procedure of this court by a limited accusation, and be found not guilty under that, but be convicted under an indictment which the House refused to sustain, or under that wider indictment which the newspaper press present, and without an opportunity to bring proof and to make argument on the subject, seems to us too monstrous for any intelligence within or without this political circle, this arena of controversy, to maintain for a moment. My hope has been briefly to draw your attention to what lies at the basis of the discussion of the power and authority that may be rightfully exercised, or reasonably assumed to be exercised, by the President, between these two branches of the government.

The co-ordination of the powers of the government is not one of the greatest efforts in the frame of a paper constitution, but I think it must be conceded that as it occupies the main portion of the Constitution itself, so it has been regarded by all competent critics at home and abroad to have been a work most successfully accomplished by the framers of our governmet. Indeed if you will look at the Constitu tion, you will find that beyond that limit of defining what belongs to the government and what must be left to the liberties of the people, and then discriminating between what should be accorded to the General Government and what should be left to the domestic government of the States. The whole effort of the Constitution is to build up these three departments of the government, so that each should have strength to stand against the others, and not strength to encroach upon or overthrow the others.

Much has been said about Congress being the great depositor of power. Why, of course it is; it is the depositor of power and of will."

Congress must be intrusted with all the strings of power, and, therefore, the effort of the Constitution was to curb and restrain the exercise of that power by Congress, and 80 you find that almost all the additions to the Constitution are based upon Congress, restraining it from exercising power over the people, or over the States, or over the coordinate branches of the government. Nevertheless, there is an absolute and necessary deposit of authority in Congress. It is left master of the whole. To what purpose is it to provide that the judges of the Supreme Court shall hold their offices for life, and that their salaries shall not be diminished during their term of service, if Congress may omit or refuse to appropriate a dollar for the salary of that particular judge?

Nevertheless government is to be administered by men, and in an elective government the trust is that the elected agents of the people will be faithful to their interests. But simple as is the institution of the judiciary, when you come to the executive authority, then comes the problem which has puzzled, and which will puzzle all framers of government having no knowledge or idea of authority except what springs from the people. Under the British Constitution there is no difficulty in tracing up the Parlia ment, provided you leave standing the authority of the barons. But here the problem is, how is it without the support of the nobles? You can make an executive strong enough to maintain itself by the balance, as it is found in the Constitution. Our ancestors disposed of that question. It has served us till this time.

Sometimes in the heat of party the Executive has seemed too strong. Sometimes, in the heat of party, Congress has seemed too strong; yet every danger passes away, and the government is administered, controlled, protected by the great superior predominant interest and power of the people themselves. The essence of the Constitution is, that there is no period of authority granted by it in the six years' term to the Senate, in the four years' term to the Presi dent, and in the two years' term to the House of Representatives, that cannot be lived through in patience, subordinate and obedient, to the Constitution. As it was said in the debate in the Convention on a particular topic of impeachment, there will be no danger when a four years' occurring election restores to the common master of Congress and of the Executive the trust reposed in them. In connection with this part of his argument, Mr. Evarts read two extracts from speeches of Mr. Webster, and then, on motion of Senator Conkling, the court adjourned till twelve o'clock tomorrow.

Mr. NELSON-Mr. Chief Justice, it is a very difficult question for me to answer. During the recess of the Senate, the honorable gentleman remarked to me that he was going to say something on the subject of Alta Vela, and desired me to remain. He then directed his remarks to the Senate. I regarded them as charging me with dishonorable conduct before the Senate, and in the heat of the discussion, I made use of language which was intended to signify that I hurled back the gentleman's charge upon him, and that I would answer the charge in any way that he decided to call me to account for it. I cannot say that I had a duel in my mind; I am not a duelist by profession. Nevertheless, my idea was that I would answer the gentlemen in any way that he chose. I did not intend to claim any exemption on account of age, or anything else. I hope the Senate will recollect the circumstances. I have treated the gentleman with the utmost kindness and politeness, and gave marked attention to what he said, and to insult the Senate was an idea that never entered my mind. I entertain the kindest feeling towards the Senate, and would be as far as any man on the face of the earth, from insulting the gentlemen of the Senate, whom I was addressing.

The motion to lay on the table was agreed to by the following vote:

The Vote.

YEAS.-Messr s. Anthony, Bayard. Buckalew, Cattell Chandler, Corbet, Cragin, Davis, Dixon, Doolittle, Drake, Edmunds, Ferry, Fessenden, Fowler, Frelinguysen, Grimes, Harlan, Hendricks, Howe, Johnson, Morrill (Me.), Morton, Norton, Patterson (N. H.), Patterson (Tenn.), Ramsey, Ross, Saulsbury, Sherman. Tipton, Trumbull, Van Winkle, Vickers and Williams-35.

NAYS.-Messrs. Cameron, Howard, Morgan, Morrill (Vt.), Pomeroy, Stewart, Sumner, Thayer, Wilson and Yates-10. So the order was laid on the table.

The Chief Justice then stated that the next business to the consideration of Mr. Cameron's order, offered yesterday, that the Senate hereafter hold sessions from 8 P. M. to 11 P. M.

Senator SUMNER offered the following as a substitute:Ordered, That the Senate will sit during the remainder of the trial from 10 o'clock in the forenoon till 5 o'clock in the afternoon, with such brief recess as may be ordered. Senator TRUMBULL moved to lay the whole subject on the table, which was agreed to by the following vote:YEAS.-Messrs. Anthony, Bayard, Buckalew, Cattell, Corbet, Davis, Dixon, Doolittle, Drake. Ferry, Fessenden, Fowler, Frelinghuysen, Grimes, Hendricks, Howe, Johnson, McCreery, Morrill (Me.), Morrill (Vt.), Morton, Norton, Patterson (N. H.), Patterson (Tenn.), Ramsey, Ross, Saulsbury, Sprague, Trumbull, Van Winkle, Willey and Vickers-32.

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

And the subject was laid on the table.

Mr. Evarts Resumes.

Mr. EVARTS then proceeded with his argument, as follows:

We perceive, then, Mr. Chief Justice and Senators, that the subject out of which this controversy has arisen between the two branches of the government-the executive and legislative-touches the very foundations of the balance of power in the Constitution; and in the arguments of the honorable managers it has to some extent been so pressed upon your attention. You have been made to believe, so mighty and important is this point in the Controversy the arrogation of the power of office included in the function of removal-that if it is carried to the credit of the Executive Department of government, it makes it. a monarchy.

Why, Mr. Chief Justice and Senators, what a grave reproach is this upon the wisdom and foresight, the civil prudence of our ancestors, that has left uneamined andx unexplored and unsatisfied, these doubts or measures of

the strength of the Executive. Upon so severe a test or inquiry of being a monarchy, or a free republic, I al without reading the whole of it, your attention to a passage from the Federalist, one of the papers by Alexan der Hamilton, who felt in advance these aspersions that are sought to be placed upon the establishment of the executive power in the President.

He then suggests in brief the solid discrimination and dis tinction between the President and a monarchy, and concludes by saying this, "What answer shall we give to those who would persuade that things unlike resemble each other? The same that ought to be given to those who tell us that a government, the whole power of which is to be in the hands of the executive and judicial servants of the people, is an aristocracy, a monarchy and a despotism" But a little closer attention to both the history of the fram ing of the Constitution, and to the opinions which ma tained a contest in the body of the Convention-which should finally determine the general character and nature of the Constitution-will show us that this matter of the power of removal or the control of office as m dispute between the President and the Senate, touches more nearly one of the other great balances of the Consti tution. I mean that that balance between the weight of numbers in the people and the equality of the States, irre spective of population, of wealth, and of size. Here it if I may be allowed to say so; that the opinions to which public attention was drawn by the honorable manager Mr. Boutwell-the opinions of Mr. Sherman and their origin, one of the greatest statesmen of the last generation said to me that it was to Mr. Sherman, and to his youry colleague, Mr. Ellsworth, and to Judge Patterson, of New Jersey, that we owed it more than all else, in that Con vention, that our government was made what that states man pronounced the best government in the world-a Fe eral Republic; instead of being what it would have been but for these members of the Convention, as this statesman of the last generation expressed it-a consolidated empire, the worst government in the world.

And now between these two opinions it was the con troversy whether the Senate should be admitted into a share of executive power of appointment. The great arm the strength of the government came in play, and on this question of the equality of the States Mr. Sherman in sisted that this participation should be reserved to the Senate, which others resisted as too great a subtraction from the sum of executive power to be safe. In this disin tegration and frittering away, Mr. Adams, the first Presi dent under the Constitution, I am informed upon autho rity not doubted, bringing it to me from the opinions from his friends, did, in the opinion that participation in ap pointment, as construed and maintained in the practice of this government, would be the point upon which the Con stitution would fail; that the allotting of power to a com paratively irresponsible administration in the Senate would ultimately so destroy the strength of the Executive with the people, and create so great a discontent among the people themselves with the Executive of their own choice; that they would not submit to the executive power thus bestowed, if given to a body that had its con stitution without any popular election whatever, and where its basis and strength came, not by the strength and power of the people, but by the equality of the States When you add to that this change which gave the Senate a voice in the removal from office, and then gave it the first hold upon the question of the weight of official power in the country, you change wholly the question of the Con stitution, and instead of giving the Senate only the ad visory course which that instrument commits to it, you change it into the absolute preliminary power of that body to say to the Executive of the United States that every administrative office under him shall remain as it is; that the officers shall be over him and against him, and that they will be with the Senate and for the Senate; and when you add to that the power of the Senate to say that "until we know and determine who the successor will be, we hold the reins of power, so that the office shall not be va cated," then you do indeed break down at once the balance between the Executive and the legislative power, and you break down the Federal election of the President at once and commit to the equality of States the partition and distribution of the executive power of this country.

I would like to know how it is that the people of the country are to be made to adopt this principle of the Con stitution, that the Executive power attributed to federal members, made up of Senators and Representatives added together from each State, that that executive power which the people supposed was involved in its choice of President, is to be administered and controlled by a body made up of the equality of States.

I would like to know on what plan of politics it is to be carried out. How can you make the combination? How the forces; how the effects which are to clothe themselves into a popular election, and then to find that the executita power is already administered on the principle of the equality of States. I should like to know how it is that New York, and Pennsylvania, and Ohio, and Indians and Illinois, and Missouri, and the great and growing States are to carry the force of popular will into the exe cutive chair, on federal members in the electoral collegs and then find that Maryland and Delaware and the dis tant States unpeopled, are to control the whole possession and administration of the executive power.

the

I would like to know how long we are to keep up t form of electing a President, with the people behind him and then bind him, stripped of the power that is commit ted to him in a partition of it between the States, withou regard to numbers or popular opinion; there is the grave dislocation of the balances of the Constitution. There is