proves he shall sign it, but if not he shall return it, with his objections, to the house in which it shall have originated, who shall enter the objections upon their journal, and proceed to reconsider it, and if after such reconsideration two-thirds of the house shall agree to pass the bill, it shall be sent, together with the objections, to the other house, by which it shall likewise be reconsidered, and if passed by two-thirds of that house it shall become a law.

If any bill shall not be returned by the President within ten days, Sundays excepted, after it shall have been presented to him, the same shall be a law in like manner as if he had signed it, unless the Congress by its adjournment prevents its return, in which case it shall not be a law. I ask the Senators to please note in this controversy between the Representatives of the people and the advocates of the President, that it is there written in the Constitution so plainly that no mortal man can gainsay it, that every bill which shall have passed the Congress of the United States, and been presented to the President, and shall receive his signature, shall be a law. And it further provides, that every bill which he shall disapprove and return to the house in which it had originated, if reconsidered and passed by the Congress of the United States, shall become a law; and that every bill which shall have passed the Congress of the United States, and shall have been presented to the President for his approval, which he shall retain for more than ten days (Sundays excepted) during the session of Congress, shall become a law.

That is the language of the Constitution. It shall be a law if he approves; it shall be a law if he disapprove it and Congress pass it over his veto it shall be a law. Says the Constitution:-If he retain a bill for more than ten days during the session of Congress, Sundays excepted, it shall be a law. It is in vain altogether-in vain against this bulwark of the Constitution that the gentlemen come in-not with their rifled ordnance, but with their small armsplay. ing upon it, and telling the Senate of the United States and the people of the United States, in the face of the plain words of the Constitution, that it shall not be a law.

The people meant precisely what they said, that it shall be a law." Though the Presidant gives ever so many reasons why, by veto, he, deemed it unconstitutional, nevertheless, if the Congress, by a two-thirds vote, pass it over his veto, it shall be a law. That is the language of the Constitution. What is their answer? Oh. it is not to be a law unless in pursuance of the Constitution. An unconstitutional law, they say, is no law. We agree to that. But the President, and that is the point in controversy here, is not the department of the government to determine that issue between the people and their representatives, and the man is inexcusable, absolutely inexcusable, who ever had the advantage of common schools and learned to read the plain text of his native vernacular, who dares to raise the issue in the plain text of the Constitution, that the President, in the face of the Constitution, is to say it shall not be a law, despite his veto, though the Constittuion says expressly it shall be a law. I admit that when an enactment of Congress shall have been set aside by the constitutional authority of this country, it thenceforward ceases to be law, and the President himself may well be protected for not thereafter recognizing it as law.

I admit it. Gentlemen on that side of the chamber (Democratic) will pardon me if I make an allusion I have no disrespect to propose, in saying-I say it rather because it has been pressed into this controversy by the other side-that it was the doctrine taught by the man called' the great apostle of Democracy in America, that the Supreme Court of the United States could not decide the Constitutionality of a law for any department of this government; that they only decided for themselves and the suitors at their bar; and what earthly use this citation from Jefferson was intended to be put by the learned gentleman from Tennessee, who first referred to it, and by the learned Attorney-General, I cannot for the life of me, comprehend In the light of the answer interposed here by the President, he tells you, Senators, by his answer, that he only violated the law, he only as serted this prerogative that would have cost any crowned head in Europe this day his life, that he only violated it inuocently, for the pupose of taking the judgment of the Supreme Court, and here comes his learned advocate, the Attorney-General, quoting the opinion of Thomas Jefferson, to show that at least the declaration of the Supreme Court could not control at all, that it could not decide any question. I am not disposed to cast reproach upon Mr. Jefferson. I know well that he was one of the framers of the Constitution. I know well that he was one of the builders of the fabric of American liberty; one of those who worked out the emancipation of the American people from the domination of British rule, and that he deserved well of his country as one of the authors of the Declaration of Independence. Yet I know well that his opinions on that subject are not accepted at this day by the great body of the American people, and find no place in the authorities and in the writers upon the Constitution.

He was a man, doubtless, of fine philosophical mind; he was a man of noble, patriotic impulses; he rendered great service to his country, and deserved well of his country but he is not an authoritative exponent of the principles of your country, and never was. I may be pardoned further, here, for saying in connection with this claim that is made here, right in the face of the answer of the accused that his only object in violating the law was to have the decision of the Supreme Court upon the subject, that there was another distinguished man of the Demo

cratic party, afterwards lifted to the Presidency of the United States, who, in his place in the Senate Chamber, years ago, in the controversy about the constitutionality of the United States Bank, stated that, while he should give respectful attention to the decisions of the Supreme Court touching the constitutionality of an act of Congress, he should nevertheless, as a Senator upon his oath, not hold himself bound by it at all. That was Mr. Buchanan. One thing is very certain, that these authorities quoted by those great men do sustain, in some sort, if it gives any support at all. the position that I have ventured to assume before this Senate, that upon all trials of impeachment presented by the House of Representatives the Senate of the United States is the highest judicial tribunal of the land, and is the exclusive judge of the law and the fact, no matter what any court may have said touching any ques. tion involved in the issue.

Allow me now, Senators, to take one step further in this argument, touching this position of the President, for I intend in every step I take to stand with the Constitution of my country, the obligations of which are upon me as a representative of the people. I refer to another provision of the Constitution, that which defines and limits the executive powers of the President.

The President shall be Commander-in-Chief of the Army and Navy of the United States, and the militia of the several States when called into the actual service of the United States. He may require the opinion in writing of the principal officers of each of the Executive departments upon any subject relating to their respective offices, and he shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment. He shall have power by and with the advice and consent of the Senate to make treaties, provided two-thirds of the Senators present concur, and shall nominate by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers, and Consuls, and Judges of the Supreme Court, and all other officers of the United States, whose appoinments are not herein otherwise provided for, and which shall be established by law. But the Congress may, by law, vest the appointment of such inferior officers as they think proper in the President alone, in the courts of law, or in the heads of departments. The President shall have power to fill all vacancies that may happen during the recess of the Senate, by granting commissions, which shall expire at the end of their next session. He shall, from time to time, give to the Congress information of the state of the Union, and recommend to their consideration such measures as he shall judge necessary and expedient. He may, on extraordinary occasions, convene both Houses, or either of them, and in case of disagreement between them, with respect to the time of adjournment, he may adjourn them to such time as he shall think proper, &c.

These are the specific powers conferred upon the Presi dent by the Constitution. I shall have occasion hereafter in the course of this argument to take notice of that other provision which says that the executive power shall be vested in the President. This provision of the Constitution grants to the President of the United States neither legislative nor judicial power. Both of these powers-legislative and judicial-are necessarily involved in the defense which is attempted to be set up by the Executive, first, in the words of his own counsel that he may judicially interpret the Constitution for himself and judicially determine upon the validity of every enactment of Congress; and, second, in the position assumed by himself, and for which he stands charged here at your bar as a criminal, to repeal-I use the word advisedly-to repeal by his own will and pleasure the laws enacted by the representatives of the people. This power of suspending those laws, and dispensing with their execu tion until such time as it may suit his pleasure to test their validity in the courts of justice, is a repeal for the time being, and, if he be sustained by the Senate, may last during his natural life, if the American people should so long tolerate him in the office of Chief Magistrate of the nation.

Why should I stop to argue the question whether such a power as this legislative and judicial may be rightfully as sumed by the President of the United States under the Constitution, when that Constitution expressly declares that all legislative powers granted by it should be vested in the Congress, and that all judicial powers shall be vested in the Supreme Court, and in such inferior courts as the Congress may, by law, establish, subject, nevertheless, to the limitations and donations of power embraced in the Constitution. The assumption upon which the defense rests that he shall only execute such laws as he approves is an assumption which invests him with legislative and judicial power in direct contravention of the express words of the Constitution itself.

If the President may dispense with one act of Congress upon his own discretion, may he not in like manner dispense with every act of Congress? I ask you, Senators, whether this conclusion does not necessarily result as nenecessarily. as effect follows efficient cause? If not pray why not? Is the Senate of the United States, in order to shelter this great criminal, to adopt the assumption of unrestricted prerogative-the wild and guilty phantasy that "the king can do no wrong," and thereby clothe the Executive of the American people with power to suspend and dispense with the execution of their laws at his plea sule; to interpret their Constitution for himself, and thereby inherit their government.

Senators, I have endeavored to open this question before you in its magnitude. I trust that I have succeeded. Be assured of one thing-that, according to the best of my ability, in the presence of the representatives of the ns

tion, I have not been unmindful of my oath; and I beg leave to say to you, Senators, in all candor, this day, that in my judgment no question of mightier import was ever before presented to the American Senate, and to say further, that no question of greater magnitude ever can come by possibility before the American Senate, or any question upon the decision of which graver interests necessarily depend.

In considering, Senators, this great question of the power of the President, by virtue of his executive authority, to suspend the laws and dispense with their execution, I pray you consider that the Constitution of your country, essential to your national life, cannot exist without legislation, duly enacted by the representatives of the people in Congress assembled, and duly executed by their chosen Chief Magistrate. Courts, neither supreme nor inferior, can exist without legislation.

Is the Senate to be told that the department of the government essential to the peace of the republic, essential to the general administration of justice between man and man, those ministers of justice, who, in the simple oath of the purer days of the republic, were sworn to do equal justice between the poor and the rich, shall not administer justice at all, if perchance the President of the United States may choose when Congress comes to enact a law for the organization of the judiciary, and pass it despite his objection to the contrary, in accordance with the Constitution, by a two-third vote, to declare that, according to his judgment and convictions, it violates the Constitution of the country, and, therefore, it shall not be put into execution?

Senators, if he has the power to sit in jugment judicially' and I use the words of his advocate, upon the Tenure of Office act of 1867, he has like power to sit in judgment judicially upon every other act of Congress. I would like to know, in the event of the President of the United States interfering with the execution of the Judiciary act, whereby, for the first time, if you please, in your history, or for the second time, if you please, by some strange intervention of Providence, by which the existing judges have perished from the earth, I would like to know what becomes of this wicked and bold pretense, unfit to be played upon children, that the President only violated the law innocently to have the question decided in the courts, and he has the power to prevent any court sitting in judgment upon it. Representatives to the Congress of the United States cannot be chosen without legisfation:-First. The legislation of Congress appertaining to representation among the several States according to the whole number of representative population in cach.1

Second. The enactment either by Congress or by the legislatures of the several States, fixing the time, place and manner of holding the elections. Is it possible that the President of the United States, in the event of such legislation by Congress, clearly authorized by the very terms of the Constitution, and essential to the very existence of the governmnnt, is permitted, in the exercise of his judicial executive, authority to sit down in judgment upon your Constitution and say that it shall not be executed?

Why, this power, given by the Constitution to the Congress, to prescribe the time, place and manner of holding elections for representatives in Congress, in the several States, was, in the words of the framers of the Constitution, to enable the people, through the National Legislature, to perpetuate the legislative department of this government, and we are to be told here, and we are to deUberate upon it from day to day, and from week to week, that the President is by virtue of his executiye office, his executive prerogative, clothed with the authority to determine the validity of your law, to suspend it and dispense with its execution at his pleasure, Again, a President of the United States, to execute the laws of the people, enacted by their Represensatives in Congress assembled, cannot be chosen without legislation. Are we to be told the President at every step is vested with authority to dispense with the execution of the laws and to suspend with its operation until he can have a decision, if you please, in the courts of justice?

If the President may set aside the laws and suspend their action at pleasure, it results that he may annul the Constitution and annihilate the government. That is the issue before the American Senate. I do not go outside of the President's answer to establish it. The Constitution itself, according to this assumption, is at his mercy, as well as the laws, and the people of the United States are to stand by and to be mocked and derided in their own Capital, when, in accordance with the express provisions of their Constitution, they bring him to the bar of the Senate to answer for his great crime, than which none greater was ever committed since that day when the first crime was committed on this planet, as it sprung from the hand of its Creator, that crime which covered one man's brow with the ashy paleness of death, and covered the brow of another man with the damning blotch of fratricide. The people of the United States are not to be answered at this bar. It is in vain that they have put into the hands of their representatives the power to impeach such a malefactor, and by the express words of their Constitution have given to the Senate the power, the exclusive power, the sole power, to try him for his high crimes and misdemeanors,

The question touches the nation's life, but I know, Senators, that your matchless Constitution of the government, the hope of the struggling friends of liberty in all lands. and for the perpetuity and triumph of which millions of hands are lifted this day in prayer to the God of nations, can no more exist without laws duly enacted by the lawmaking power, than can the people of the United States themselves exist without air or without that light of Hea

ven which shines above us, filled with the light and breath of the Almighty. A Constitution and laws which are not and cannot be enforced, are dead.

The vital principle of your Constitution and laws is that they shall be the supreme law of the land-supreme in every State, supreme in every territory, supreme in every rood, supreme on every deck covered with your flag, in every zone of the globe; and yet we are debating here today whether a man whose breath is in his nostrils, a mere servant of the people, may not suspend the execution both of the Constitution and of the law at his pleasure, and defy the power of the people.

If I am right in the proposition that the acts of Congress are law, and are to be executed until repealed or reversed in the mode prescribed by the Constitution, in the courts of the United States, acting within their jurisdiction and under the limitations of the Constitution, it results that the violation of such acts by the President of the United States and his refusal to execute them, is a high crime and misdemeanor within the terms of the Constitution, for which he is impeachable, and for which, if he be guilty, he ought to be convicted and removed from the office which he has dishonored. It is not needful to inquire whether only crimes and misdemeanors, specially made such by the Constitution of the United States, are impeachable, because by the laws of the United States all crimes and misdemeanors at common law, committed within the District of Columbia, are made indictaable.

I believe it is conceded on every hand that a crime or misdemeanor made indictable by the laws of the United States, when committed by an officer of the United States, in his office, after violation of his sworn duty, is a high crime and misdemeanor, within the meaning of the Constitution. At all events, if that be not accepted as a true and self-evident proposition by the Senate, it would be in vain that I should argue further, for I might as well expect to kindle life under the throes of death as to persuade a Senate so lost to every sense of duty, and to the voice of freedom itself, as to come to the conclusion that after all it is not a high crime and misdemeanor, under the Constitution, for the President of the United States, deliberately and purposely, in violation of his oath, in violation of the plain letter of the Constitution that he should take care that the laws should be faithfully executed, to set aside the laws, and to declare defiantly that he will not execute

them.

Mr. BINGHAM in this connection referred to the act of 1801 extending the common law of Maryland to the District of Columbia, and argued from it, and from the opinion of the court in the Kendall case, that the President's aets were indictable in the District, and that being indictable they must therefore be impeachable. He then continued:I do not propose, Senators, to waste words in noticing what but for the respect I bear to the learned counsel from Massachusetts (Mr. Curtis) I would call the mere lawyers' quibble of the defense, that even if the President be guilty of the crimes laid to his charge in the articles presented by the House of Representatives, still they are not high crimes and misdemeanors within the meaning of the Constitution, because they are not kindred to the great crimes of treason and bribery.

It is enough. Senators, for me to remind you of what I have already said, that they are crimes which touch the life of the nation, which touch the stability of our institutions; that they are crimes which, if tolerated by this the highest tribunal of the land, would vest the President, by its solemn judgment, with a power under the Constitution to suspend, at his pleasure, all laws upon your statute books, and thereby to annihilate your government. They have heretofore been held crimes in history, and crimes of such magnitude, that they have cost their perpetrators their lives; not merely their offices, but their lives.

Of that I may have more to say hereafter, but I return to my proposition, the defense of the President is not whether indictable crimes or offenses are laid to his charge, but it rests upon the broad proposition, as already stated, that impeachment does not lay against him for any violation of the Constitution or of the laws, because of his asserted constitutional right judicially to intepret every provision of the Constitution for himself, and also to interpret for himself the validity of every law, and to exclude or disregard, at his election, any provision either of the Constitu tion or of the law, and especially if he declares at the fact or after the fact, that his only purpose in violating the one or the other, is to have a true construction of the Constitu tion in the one case, and a judicial determination of the validity of the other in the courts of the United States.

I do not state this, as the position of the President, too strongly, although I pray Senators to notice, for I would account myself a dishonorable man, if purposely, here or elsewhere, I should misrepresent the position assumed by the President that the counsel for the defense, Mr. Curtis, in his opening, attempts to gainsay the statement as I have just made it, that the defense of the President rests upon the assumption as stated in his answer.

Mr. Curtis, in his opening address says:-"But when, Senators, a question arises whether a particular law has cut off a power confided to him by the people through the Constitution, and he alone can raise that question, and he alone can cause a judicial decision to come between the two branches of the government, to say which of them is right, and after due deliberation, with advice of those who are his proper advisers, he settles down firmly upon the opinion that such is the character of the law, it remains to be settled by you whether there is any violation of his duty when he takes the needful steps to raise that question and have it peacefully decided."

Now, I ask, Senators, in all candor, what there is to hin

der the President, if by force of the Constitution, as the learned counsel argues, he is vested with judicial authority to interpret the Constitution and to decide on the validity of any law of Congress, what there is to hinder him to say of every law of the land that it cut off some power confided to him by the people. The learned gentleman from Massachusetts was too self-raised, and he is manfestly too profound a man to launch ont on this wild stormy sea of anarchy. careless of all success, in the manner in which some of his associates. did. You may remember, and I give it only from memory, but it is burned into my brain and will only perish with my life, you will remember the utterances of the gentleman from New York (Mr. Evarts), who was not go careful of his words, when he stood before you and said, in the progress of his argument, that the Constitution of the United States had invested the President with the power to guard the people's rights against Congressional usurpation.

You recollect that as he kindled in his argument, he ventured on the further assertion, in the presence of the Senate of the United States, that if you dared to decide against the President on this issue, the question would be raised by the people under the banner of the supremacy of the Constitution in defense of the President, and of the supremacy or authority of Congress on the other side. The supremacy of the Constitution is to be the sign under which the President shall conquer against the unlimited authority of Congress to bind him, by laws enacted by themselves in the modes prescribed by the Constitution. Senators, I may be pardoned for summoning the learned counsel from Massachusetts, Mr. Curtis, as a witness against the assumption of his client, and against the assumption of his associate counsel touching this power of the President to dispense with the execution of the law. In 1862 there was a pamphlet published, bearing the name of the learned gentleman from Massachusetts, touching limitations on the executive power, and I will read an extract or two from that pamphlet to show the difference between the current of a learned man's thoughts when he speaks for the people according to his own convictions and a similar man when he speaks under a retainer.

His pamphlet is addressed "to all persons who have sworn to support the Constitution, and to all citizens who guard the principles of civil liberty which that Constitution embodies, and for the preservation of which it is our only security, these speeches are 1espectfully dedicated. Benjamin W. Curtis." The President, he says, is "the Commander-in-Chief of the Army and Navy, not only by force of the Constitution, by under and subject to the Constitution, and to certain restrictions therein contained, and to every law enacted by Its authority as completely and clearly as the private in the ranks.

"He is General-in-Chief, but can a General-in-Chief disobey any law of his own authority? When he can, he superadds to his right as commander the power of being a judge, and that is military despotism. The mere authority to command an army is not an authority to dis obey the laws of the country. Besides, all the powers of the President are executive merely, He cannot make a law, he cannot repeal one; he can only execute a law; he can neither make, nor suspend, nor alter it; he cannot even make an inquiry."

That is good law; not good law exactly in the midst of the Rebellion, but it is good law enough under the Constitution-in the light of the interpretation given to it by that great man, Mr. John Quincy Adams, whom I have before cited-when the limitations of the Constitution are in operation, and when the land is covered with the serene light of peace; whenever a human being, citizen or stranger, within our gates is under the shadow of the Constitution. It is the law and nothing but the law, that the claim on the part of the Executive to suspend, at his discretion, all the laws on your statute book, and to dispense with their execution, is the defense, and the whole defense of the President seems to me clear, clear as that light in which we live, and so clear, that whatever may be the decision of this tribunal, that will be the judgment of the American people.

It cannot be otherwise. It is written in this answer; it is written in the arguments of his counsel, and no mortal man can evade it. It is all that there is of it, and to establish this assertion that it is all there is of it, I ask Senators, to consider what articles the President has denied. Not one. I ask the Senate to consider what offense charged against him in the articles presented by the House of Representatives, he has not openly by his answer confessed, or what charge is not clearly re-established by the proof. Not one.

Who can doubt that when the Senate was in session, the President in direct violation of the express requirement of the law, which, in the language of the honorable Chief Justice, in the Mississippi case, left no discretion in him, but enjoined a special duty upon him, did purposely, deliberately violate the law and defied its authority, in that he issued an order for the removal of the Secretary of War, and issued a letter of authority for the appointment of a successor, the Senate being in session and not consulted in the premises.

The order and the letter of authority are written witnesses of all the guilt of the accused. They are confessions of reference, and there is no escape from them. This order is a clear violation of the Tenure of Office act. The President is manifestiy guilty in manner and form, as he stands charged in the first, second, third, eighth and eleventh articles of impeachment, and no man can deny it except a man who accepts as the law's assumption in his answer, that it is an executive prerogative, judicially, to

interpret the Constitution, and to set aside, to violate and to defy the law when it vests no discretion in him what ever, and to challenge the people to bring him to trial and punishment.

Senators, on this question, at the magnitude and charaoter of the offenses charged against the President, I may be permitted, inasmuch as the gentleman from New York re ferred to it, to ask your attention to what was ruled and settled, and I think well settled, on the trial of Judge Peck The counsel took occasion to quote a certain statement from the record of that trial, and took especial pains to evade in their statement of what was actually settled by it. I choose to have the whole of the precedent. If the gentleman insists On the law in that case, I insist on all its forms and on all its provisions. In the trial of the Peck case Mr. Bu chanan, speaking for the managers on the part of the House of Representatives, made the statement that an impeachable violation of law could consist in the abuse as well as in the usurpation of authority; and if you look carefully through that record, you will find none of the learned counsel who appeared in behalf of Judge Peck questioning for a moment the correctness of the propo sition.

I think it capable of the clearest demonstration that that is the rule which ought to govern the decision in this case, inasmuch as all the offenses charged were committed with in this district, and as I have already shown, are indictable. It is conceded that there is a partial exception to this rule A judge cannot be held accountable for an error of judg ment, however erroneous his judgment may be, unless fraud be asserted and proved.

No such rule ever was held to apply to an executive officer. That is an exception running through all the law in favor of judicial officers. A mere executive officer, clothed with no judicial authority, would be guilty of usurpation without frand. An error of judgment would not excuse an executive officer. I refer to the general rule of law, as stated by Sedgwick in his work upon statutory and constitutional law, in which he says:-"Good faith is no excuse for the violation of a statute. Ignorance of the law cannot be set up in defense, and this rule holds good in civil as well as in criminal cases."

The gentleman from New York, Mr. Evarts, entered upon a wonderful adventure here when he undertook to tell the Senate that that rule which holds the violator of law answerable, and necessarily implies a guilty purpose, applies to offenses which are mala in se. The gentleman should have known when he made that utterance that the highest writer on law in America, a man second to no writer on law in the English tongue in any country, has truly recorded in his great commentaries on the law that the distinction between mala prohibita and mala in se, has been long ago exploded, and that the same rule applies to the one 28 to the other, I refer to 1 Kent's Commentaries, p. 529, and really cannot see why it should not be so, and I doubt very much whether it is within the compass of the mind of any Senator to see why it should not be so.

Mr. Bingham went on to argue that the limitation of six months within which an office must be filled would be evaded if the President were allowed to make an ad interim nomination, and at the end of six months make an other ad interim nomination, and so on to the end of his term of office.

He then continued-But it has been further stated here by the counsel for the defense, by way of illustration and answer, suppose the Congress of the United States should enact a law, in clear violation of the express power con ferred in the Constitution, as for example, a law declaring that the President shall not be Commander-in-Chief of the Army, or a law declaring that he shall not exercise the pardoning power in any case whatever, is not the President of the United States to intervene to protect the Constitution? I say, no! The President is not to intervene and protect the Constitution.

The people of the United States are the guardians of their own Constitution; and if there be one thing in that Constitution more clearly written and more firmly estab lished than another, it is the express and clear provision that the Legislative Department of the government is responsible to no power on earth for the exercise of its legis lative authority and for the discharge of its duty save the people.

It is a new doctrine altogether, that the Constitution is exclusively in the keeping of the President. When that day comes, Senators, that the Constitution of this country, so essenital to your national existence, and so essential to the peace, happiness and prosperity of the people, rests exclusively on the fidelity and patriotism, and integrity of Andrew Johnson, may God save the Constitution, and save the Republic. (Laughter.) No, sir, there is no such power vested in the President of the United States. It is only coming back to the old proposition. But, say the gentleman, certainly it would be unconstitutional for Congress so to legislate. Agreed; I admit that it would be not only unconstitutional, but that it would be criminal But the question is, before what tribunal is the Congress to answer? Only before the tribunal of the people. Ad mit that Congress passed such a law corruptly, and yet every one at all conversant with the Constitution of the country, knows well that it is written in that instrument that the members of Congress shall not be held to answer in any place, or before any body whatever, for their official acts in Congress assembled, save before their con stituents. That is the end of it. They answer to the people, and the people alone can apply the remedy.

You cannot answer in the courts, and, of course, when a majority votes that way in each House you cannot ex

pect very well to expel them. Their only responsibility is to the people; the people alone have the right to challenge them. That is precisely what the people have written in the Consttiution, and every man in the country so understands that proposition.

I might make another remark which shows the utter fallacy of any such proposition as that contended for by the counsel for the President, and that is that if Congress were so lost to all sense of justice and duty as to take away the pardoning power from the President, it would have it in its power to take away all right of appeal to the courts of the United States on that question, so that there would be an end of it, and there would be no remedy but with the people, except indeed the President is to take up arms and set aside the laws of Congress,

Having disposed of this proposition, the next inquiry to be considered by the Senate, and to which I desire to direct your attention is, that of the power of the President under the Constitution to remove the heads of the departments, and to fill the vacancies so created during the sesBion of the Senate of the Uniteed States, without its consent and against the express authority of law.

At this stage of his argument, Mr. Bingham yielded to a motion to adjourn, and the court, at ten minutes before four o'clock adjourned.

PROCEEDINGS OF TUESDAY, MAY 5.

When the Senate was called to order, Mr. CAMERON moved that the members of the National Medical Association be admitted to places in the gallery. In reply to a question of Mr. Morrill, of Vermont, he said there were about two hundred of them.

Senator DRAKE opposed the motion, saying that Senators and Representatives could furnish them tickets, and thus avoid thronging the galleries.

After some further talk the motion was lost, and the chair was vacated for the Chief Justice.

Mr. Bingham Resumes.

The court having been opened in due form Mr. Bingham proceeded with his argument.

In his opening remarks, indistinctly heard, he was. understood to repeat the view taken by him yesterday, that no man, in office or out of office, is above the law, but that all persons are bound to obey it; that the President, above all others, is bound to take care that the laws be faithfully executed, and that the suspending and dispensing power asserted by the President is a violation of the rights of the people, and cannot for a moment be allowed.

Mr. BINGHAM continued as follows:-—

When I had the honor to close my remarks yesterday, I called the attention of the Senators to this proposition:That their inquiries were to be directed, first, to the question whether the President has power, under the Constitution, to remove the heads of departments and to fill the vacancies so created by himself, during the session of the Senate, in the absence of express authority, or law authorizing him so to do? If the President has not the power, he is confessedly guilty, as charged in the first, second, third, eighth and eleventh articles, unless, indeed, the Senate is to come to the conclusion that it is no crime in the President of the United States, deliberately and purposely, and defiantly, to violate the express letter of the Constitution of the United States, and the express prohibition of the law of Congress.

I have said that the act was criminal, for it was done deliberately, purposely and defiantly. What answer has been made to this, Senators? The allegation that the violation of law charged in these articles was not with criminal intent, and the learned counsel stood here, from hour to hour, and from day to day, to show that the criminal intent is to be proved. I deny it. I deny that there is any authority which justified any such assumption. The law declares, and has declared for centuries, that any act done deliberately in violation of law, that is to say, any uplawful act done by any person of sound mind and understanding, responsible for acts, necessarily implies that the party doing it intended the necessary consequences of his own act. I make no apology, Senators, for the insertion of the word "intent" in the articles.

It is a surplusage, and is not needful, but I make no apology for it. It is found in every indictment. Who ever heard of a court where the rules are applied with more strictness than they can be expected to be applied in the Senate of the United States? Who ever heard of a court demanding of the prosecution in any instance whatever that he should offer testimony of the criminal

intent specially averred in the indictment, when he had proved that the act was done, and that the act was unfawful? It is a rule not to be challenged here or elsewhere among intelligent men, that every person, whether in office or out of office, who does an unlawful act, made criminal by the very terms of the statutes of the country in which he lives, and to the jurisdiction of which he is subject, intends all that is involved in the doing of the aot, and the intent, therefore, is already established.

No proof is required. Why to require it would simply defeat the ends of justice. Who is able to penetrate the human intellect, to spy into its secret and hidden recesses in the brain or heart of man, and there witness that which it meditates and which it purposes? Men, intelligent men, and especially the ministers of justice, judge of men's purposes by their acts, and necessarily hold that they intend exactly that which they do, and then it is for them-not for their accusers-to show that they do it without intention; to show that they did it under a temporary delirium · of the intellect, by which in the providence of God they were for the time being deprived of the power of knowing their duty, and of doing their duty under the law.

Senators, on a remarkable occasion, not unlike that which to-day attracts the attention of the people of the United States, and attracts the attention of the people of the civilized world, the same question was raised before the tribunal of the people, whether intent was to be estab lished, and one of those men on that occasion when Strafford knelt before the assembled majesty of England, arose in his place, and anwered that question in words so clear and strong that they ought to satisfy the judgment and satisfy the conscience of every Senator. Iread the works of Pym on the trial of Strafford as to the intent.

"Another excuse," says Pym, "is this that whatsoever he hath spoken was out of good intention. Sometimes, my lords, good and evil, truth and falsehood, lie so near together, that they are hardly to be distinguished. Matters fraught with danger may be accompanied with such cir cumstances as may make them appear useful and convenient, and in all such cases good intentions will justify evil consequences. But where matters arc evil in their own nature, such as the matters are wherewith the Earl of Strafford is charged, breaking the public faith and subverting laws and government, they can never be justified by any intention of good, of whichsoever they may be pretended."

Is there no endeavor here to break public faith? Is there no endeavor here to subvert laws and government? I leave Senators to answer that question upon their own consciences and upon their oaths. On this subject of in tent, I might illustrate the utter futility of the position assumed here by the learned counsel, but I will refer to a notable instance in history where certain fanatics in the reign of Frederic II put little children to death with the intent of sending them to heaven, because the Master had written of such is the Kingdom of Heaven." It does not appear that there was any intention of staying the inno cents, with their sunny voices and sunny hearts, but that they could send them at once to heaven was of no avail in the courts of justice.

I read also of a Swedish Minister who found within the kingdom certain subjects who were the beneficiaries of charity, upon whose heads Time's frosty fingers had scattered the snows of five and seventy winters, whom he put brutally and cruelly to death with the good intent of thereby increasing the charity in the interest of the living with a longer measure of years before them. I never read Senators, that any such plea as that availed in the courts of justice against the charge of murder with malice aforethought. It is a puerile conceit, unfit to be uttered in the hearing of Senators, and condemned by every letter and line and word of the common law, "the growth of centuries, the gathered wisdom of a thousand years."

It is suggested by one of my colleagues, and it is not unfit that I should notice it in passing, that, doubtless, Booth on the 14th day of February, 1865, when he sent the pure spirit of your martyred President back to the God who gave it, declared-declared is the proper word, because the case here rests upon declarations-declared that he did that act in the service of his country-in the service of liberty-in the service of law-in the service of a common humanity. If the avenging hand of justice had not cut him off upon the spot where he stood, instantly, as though overtaken by the direct judgment of offended humanity, I suppose that he would have had this sort of argument interposed in his behalf, that his intentions were good, and therefore the violated law itself ought to justify the act, and allow him to depart, not a condemned criminal, but a crowned and honored man.

I really feel, Senators, that I ought to ask your pardon for having dwelt at all upon this proposition, but you know with what pertinacity it has been pressed upon the consideration of the Senate, and with all respect to the learned and accomplished gentleman who made it, I feel it due to myself to say here that I think it was unworthy of them, and unworthy of the place. Again I ask you, Senators, has the President this power under the Const tution and the laws during the session of the Senate to create vacancies in the heads of departments, under your Constitution, and fill them without the authority of an express law, without the advice and consent of the Senate? If he has not, he has violated the Constitution, he has vio lated, as I shall show you hereafter, the express law of the land, and is, therefore, criminal. Criminal in his conduct and in his intention before this tribunal, where he stands by the order of the people.

First, then, is this violation by the act of removal and appointment, and here, Senators, although I shall have occasion to notice it more specially hereafter, I ask to be