cution both of the Constitution and of the laws at his pleasure, and defy the power of the people. The determination, Senators, of all these questions is involved in this issue, and it is for the Senate, and the Senate alone, to decide them and to decide them aright. That common-law offenses are indictable in the District has been settled by the courts of the District and by the Supreme Court. In the United States vs. Watkins, 3 Cranch, the circuit court of the District ruled "In regard to offenses committed within this part of the District the United States have a criminal common law and the court has criminal common-law jurisdiction." And in the case of the United States vs. Ken|| dall, before referred to in 12 Peters, 614, the court ruled: That the common law as it was in force in Mary land when the cession was made remained in force in the District.' It is clear that the offenses charged in the articles, if committed in the District of Columbia, would be indictable, for at the common law an indictment lies for all misdemeanors of a public evil example, for neglecting duties imposed by law, and for offenses against common decency, 4 Bacon's Abridgement, page 302, letter E. I have dwelt thus long upon this point because it underlies the whole question in issue here between the President and the people, and upon its determination the decision of the whole issue depends. If I am right in the position that the acts of Congress are law, binding upon the President and to be executed by him until repealed by Congress or actually reversed by the courts, it results that the willful violation of such acts of Congress by the President and the persistent refusal to execute them is a high crime or misdemeanor, within the terms of the Constitution, for which he is impeachable, and of which, if he be guilty, he ought to be convicted and removed from the office that he has dishonored. It is not needful to inquire whether only crimes or misde- || meanors specifically made such by the statutes of the United States are impeachable, because by the laws of the United States all crimes and misdemeanors at the common law, committed within the District of Columbia, are made indictable. 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, in 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 Senators, it would be in vain that I should argue further with them. And I might as well expect to kindle life under the ribs of death as to persuade a Senate, so lost to every sense of duty and to the voice of reason itself, which comes to the conclusion that after all it is not a high crime and misdemeanor under the Constitution for a Presidentatives, they are not high crimes and misdeof the United States deliberately and purposely, in violation of his oath, in violation of the plain || letter of the Constitution that he shall take care that the laws be faithfully executed, to set the laws aside and defiantly declare that he will not execute them. Senators, I refer in passing, without stop ping to read the statute, for I believe it was read by my associate, [Mr. Manager BOUTWELL,] to the act of February 27, 1801, (2|| Statutes-at-Large, 103, 104,) which declares that the common law as it existed in Maryland at the date of the cession shall be in force in the District. I refer also to 4 Statutes-at-Large, page 450, section fifteen, which declares that all crimes and offenses not therein specifically provided for shall be punished as theretofore provided, referring to the act of 1801. I refer also to 12 Statutes-at-Large, page 763, section three, which confers jurisdiction to try all these offenses upon the courts of the District. This is all, Senators, that I deem it important at present to say upon the impeachable character of the offenses specified in the articles against the President further than to remark that although the question does not arise upon this trial for the reasons already stated, a crime or misdemeanor committed by a civil officer of the United States not indictable by our own laws or by any laws, has never yet been decided not to be impeachable under the Constitution of the United States; nor can that question ever be decided save by the Senate of the United States. I do not propose to waste words, if the Senate please, in noticing what but for the respect I bear him I would call the mere lawyer's quirk of the learned counsel from Massachusetts upon the defense [Mr. Curtis] that even if the President be guilty of the crimes laid to his charge in the articles presented by the House of Represent meanors 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 nation's life, which touch the stability of your institutions; they are crimes which, if tolerated by this highest judicial tribunal in the land, vest the President by solemn judg ment with the power under the Constitution to suspend at pleasure all the laws upon your statute-book, and thereby overturn your Government. They have heretofore been held crimes, and crimes of such magnitude that they have cost the perpetrators their lives-not simply their offices, but their lives. Of this 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 said, that impeachment will not lie against him for any violation of the Constitution and laws because of his asserted constitutional right to judicially interpret every provision of the Constitution for himself, and also to interpret for himself the validity of every law and execute or disregard upon his election any provision of either the Constitution or the laws, especially if he declare at or after the fact that his only purpose in violating the one or the other was to have a true construction of the Constitution in the one case and a judicial determination of the validity of the law in the other, in the courts of the United States. That I do not state this as the position of the President too strongly, I pray Senators to notice what I now say, for I would count myself a dishonored man if purposely here or elsewhere I should misrepresent the position assumed by the President. The counsel for the President [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. The counsel, in the opening, states, that-I quote his words from page 382, and they were qualified by none of his associates who followed him; the statement was considerately made; he meant precisely what he said, as follows: "But when, Senators, the question arises whether a particular law has cut off a power confided to him (the President) 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 the advice of those who are his proper advisers, he settles down firmly upon the opinion that such is the character of the law" That is to say, that it is unconstitutional, that it cuts off a power confided to him by the people "it remains to be decided 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 in the courts." I ask, Senators, in all candor, if the President of the United States, by force of the Constitution, as the learned counsel argue, is vested with judicial authority thus to interpret the Constitution and decide upon the validity of any law of Congress upon this statement of counsel as I have just read it from the report now before you and upon your tables, what is there to hinder the President from saying this of every law of the land; that it cuts off some power confided to him by the people? Senators, the learned gentleman from Massachusetts was too self-poised; he is, manifestly, too profound a man to launch out upon this wild, stormy sea of anarchy, careless of all consequences, in the manner in which some of his associates did. You may remember and I quote it only from memory, but it is burned into my brain, and will only perish with my life-you remember the utterance of the gentleman from New York, not so careful of his words, who before you said, in the progress of his argument, that the Constitution had C. I.-51.. invested the President with the power to guard the people's rights against congressional encroachments. You remember that as he progressed in his argument he ventured upon the further assertion in the presence of the Senate of the United States, and so you will find it written doubtless in the report, that if you dared to decide against the President upon this issue, the question would be raised before the people under the banner of the supremacy of the Constitution in defense of the President, and the omnipotence of Congress upon the other; the supremacy of the Constitution would be the sign under which the President was to conquer against the omnipotence of Congress to bind him by laws enacted by themselves in the mode prescribed by the Constitution. Senators, I may be pardoned for summoning the learned counsel from Massachusetts 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 laws. In 1862 there was a pamphlet issued bearing the name of the learned gentleman from Massachusetts touching the limitations upon execu tive power imposed by the Constitution. I read from that pamphlet, and pledge myself to pro duce the original, so that it may be inspected by the Senate. I regret that my reporter has not brought it into the court. It shows the difference between the current of a learned man's thoughts when he speaks for the people and according to his own convictions, and the thoughts of the same learned man when he speaks for a retainer: tary despot the powers of a usurper; and that is milthe mere authority to command an army is not an authority to disobey the laws of the country.” legislative, not judicial. The learned counsel has The President has only executive power, not learned that word "judicial" after he entered upon the defense of the President. I may be pardoned in saying that I lay nothing to his charge in this. He bore himself bravely and well in the presence of this tribunal. He discharged his duty and his whole duty to his client. to change it in the interests of his client; but If he has even changed his mind he had a right I have a right to have him bear witness in the interests of the people and in support of the Constitution of my country. I therefore read further from him: "Besides all the powers of the President are executive merely. He cannot make a law. He cannot repeal one. He can only execute the laws. He can neither make nor suspend nor alter them. He cannot even make an article of war." That is good law. It was not good law in the midst of the rebellion, but it is good law, nevertheless, under the Constitution, in the light of the interpretation given to it by that great man, Mr. John Quincy Adams, whom I before cited. When the limitations of the Constitution are operative, when the whole land is covered with the serene light of peace, when every human being, citizen and stranger, within your gates is under the shelter of the limitations of the Constitution, it is the very law and nothing but the law. Now, Senators, that this alleged judicial executive power of the President to suspend at his discretion all the laws upon your statutebook and to dispense with their execution is the defense and the whole defense of this President seems to me clear-clear as that light of heaven in which we live, and so clear, whatever may be the decision of this tribunal, that it will be apparent to the judgment of the American people. It cannot be otherwise. It is written in his answer. It is written in the arguments of his counsel printed and laid upon your tables. No mortal man can evade it. It is all there is of it; and to establish this assertion that it is all there is of it I ask Senators to consider what article the President has denied? Not one. I ask the Senate to consider what offense charged against him in the articles of the House of Representatives he has not openly by his answer confessed or is not clearly established by the proof? Not one. Who can doubt that while the Senate was in session the President, in direct violation of the express requirement of the law, which, in the language of his honor, the Chief Justice, in the Mississippi case, left no discretion in him, enjoined a special duty on him, did purposely, deliberately, violate the law and defy its authority, in that he issued an order for the removal of the Secretary for the Department 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 the guilt of the accused. They are confessions of record. There is no escape from them. If this order is a clear violation of the tenureof-office act, if the letter of authority is also a clear violation of the tenure-of-office act, the President is manifestly guilty, in manner and form, as he stands charged in the first, the second, the third, the eighth, and the eleventh articles of impeachment; and no man can gainsay it except a man who accepts as law the assumption of his answer that it is his executive prerogative judicially to interpret the Constitution for himself; to set aside, to violate, and to defy the law when it vests no discretion in him whatever, and challenge the people to bring him to trial and judgment. Senators, on this question of the magnitude and character of these offenses charged against the President I shall be permitted, inasmuch as the counsel from New York thought it important to refer 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, as you may remember, a certain statement from the record of that trial, but took special pains to avoid any statement of what was actually settled by it. I choose to have the whole of the authority. If the gentleman insists upon the law in this case, I insist upon all the forms and upon all its provisions. In the trial of Peck, from which I read on page 427, Mr. Buchanan, chairman of the Managers on the part of the House of Representatives, made the statement that— An impeachable violation of law may consist in the abuse as well as in the usurpation of authority." Subject, if you please, to the limitations of your own law that the abuse and the usurpation, as is clearly the fact here in the capital, are indictable. I venture to say, Senators, if you look carefully through that record you will find none of the learned gentlemen who appeared in behalf of Judge Peck questioning for a moment the correctness of the proposition. The learned and accomplished and lamented ex-Attorney General of the United States, Mr. Wirt, who appeared on that trial, admitted it. There seemed to have been no question in the Senate upon the subject against it. I think Mr. Buchanan was most happy in his statement of the law in declaring that it may consist in an abuse of power and may consist in a usurpation of authority. For the purposes of this case I think it capable of the clearest demonstration that this is the rule which ought to govern its decision, inasmach as all the offenses charged, when committed within the District, as already shown, are indictable. It is conceded that there is a partial exception to this rule, and that exception furnishes all the law which has appeared in this case, so far as I have been able to discover, in the defense of the Executive. defense of the Executive. It is an exception, however, made exclusively in the interests of judicial officers. The rule is well stated in 5 Johnson, 291, by Chancellor Kent, in the case of Yates vs. Lansing. I read from that authority: "Judicial exercise of power is imposed upon the courts, and they must decide and act according to their judgment, and therefore the law will protect them." He adds: "The doctrine which holds a judge exempt from a civil suit or indictment for any act done or omitted to be done by him sitting as judge has a deep root in the common law. It is to be found in the earliest judicial records, and it has been steadily maintained by an undisturbed current of decisions in the English courts amid every change of policy and through every revolution of their Government.' A judge manifestly, upon this authority, acting within his general authority, cannot be held to answer for an error of judgment. He would only be impeachable, however erroneous his judgment might be, for an abuse, for a usurp ation of authority great in itself, and it must be specially averred, and must be proved as averred. No such rule ever was held to apply, since the courts first sat at Westminster, to an executive officer. It 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 the averment of corruption. I beg to say that it has never been averred, or held necessary if averred, in any authoritative case against any executive officer whatever. An error of judgment would not excuse him. I refer to the general rule of law on this subject as stated by Sedgwick in his work on statutory and constitutional law, in which he says: Good faith is no excuse for the violation of statutes. Ignorance of the law cannot be set up in defense, and this rule holds good in civil as well as in criminal cases."-1 Sedgwick, 100. Mr. CONNESS. Mr. President, I should like to ask the Manager whether he feels able to go on further to-day or not? I make the suggestion to him. Mr. Manager BINGHAM. I am at the pleasure of the Senate. I will be able to proceed, if it be the pleasure of the Senate, for half an hour or so more with this argument; but I abide the pleasure of the Senate, and will defer to whatever may be their wishes about it. Several SENATORS. Go on! Go on! Mr. Manager BINGHAM. Senators, at this point of the argument the gentleman from New York, speaking for the President, knowing that the rule as I have read it from Sedgwick is the rule of universal application to executive officers and to all officers save judicial officers, that ignorance of the law can never be interposed as an excuse either in civil or criminal proceedings for the deliberate violation of the law, entered upon a wonderful adventure when he undertook to tell the Senate of the United States-I really thought it was a slip of the tongue, for I have great respect for his learning, and I could not but think he knew.better-but he intimated that this rule, which holds the violator of law answerable and necessarily implies the guilty purpose and the guilty intent from the fact of its violation, was a rule that was restricted to offenses mala in se. The gentleman ought to have known when he made that utterance that the highest writer upon the law in America, and second to no writer upon the law who writes in the English language in any country, has truly recorded in his great commentaries upon the laws that the distinction between mala prohibita and mala in se is long ago exploded, and the same rule applies to the one as to the other. I refer to 1 Kent's Commentaries, page 529, and really I cannot see why it should not be so. I doubt very much whether it is within the compass of the mind of any Senator within the hearing of my voice to say it should not be so. Chancellor Kent says upon that subject, page 529: "The distinction between statutory offenses which are mala prohibita only, or mala in se, is now exploded, and a breach of the statute law in either case is equally unlawful and equally a breach of duty." The Senate will remember the very curious and ingenious use that the gentleman attempted to make of this statement of his, and that was that it cannot be possible that you are to hold these acts of the President criminal by force of the act of 1801 which, by relation simply, makes common-law offenses indictable crimes within the District of Columbia; that was not the only use, but that was a part of it and he went on to say to the Senate further that he could not see the force of the remark made by my colleague, [Mr. BoUTWELL,] that the President of the United States in this letter of authority by the appointment ad interim of Lorenzo Thomas in the presence of the Senate, during its session, without its advice and consent, twelve days after the expiration of the six months limited by the provisions of the act of 1795, could be held a criminal act. The defense of the President in some sort rested on the provisions of that law which authorized him to supply a vacancy in the several Departments for a period not exceeding six months. Well, I will try to explain it here if I may be pardoned in case I should happen to refer to it again in the progress of my argument. It is explained by this simple word, that the act of 1795, under which he attempts in his distress to shelter himself, says that no one vacancy shall be so supplied for a longer period than six months; he did supply it, according to the very words of his answer, for he tells you he made a vacancy indefinitely when he suspended Edwin M. Stanton, Secretary of War; he says in his answer it was an indefinite suspension, not simply for six months, but during the time he might occupy the executive power in this country. He indefinitely sus pended him, he says, under the Constitution and laws; and he tells you further, in the same answer, that under the act of 1795 he supplied the vacancy. That act told him he should not supply it for a longer period than six months, unless it results that at the end of every six months he may supply it again and the statute thereby be repealed, supply it to the end of the time allotted him under the Constitution to execute the office of President of the United States. would like some Senator, in your deliberations, to make answer to that suggestion and see how it can be got rid of. He makes a vacancy indefinitely; he appoints General Grant Secretary of War ad interim; at the end of six months, and twelve days after the expiration of six months, in utter defiance of the law of 1795, he makes another appointment; and at the end of that six months and twelve days after, if you please, in further defiance of it, I he makes another, and so on until the end of the time during which he may exercise the office of President, while the law itself expressly declares that no vacancy shall be so supplied for a longer period than six months. I think the gentleman from New York could have seen it but for the interest he felt in the fate of his client. That is my impression, and everybody else can see it in this country. ruled that you cannot try them by impeachment, and of course when a majority vote that way in each House you can hardly expect to expel them. Their only responsibility is to the people, and the people alone have the right to challenge them. That is precisely what the people have written in the Constitution, and every man in this country so understands it. Senators, I may make another remark which shows here the utter fallacy of any such position as that interposed by the counsel, and that is, that the Congress which would be so lost to all sense of justice and duty as to take away the pardoning power from the Executive in any case whatever have it in their power to take away any appeal to the courts of justice in the United States upon that question, so that there would be an end to it, and there would be no remedy but with the people, unless, indeed, the President is to take up arms to set aside the laws of the Congress of the United States. The Constitution of your country is no such weak or wicked invention. But it has been further said, by way of illustration and answer to all this, said by the counsel for the President, "Suppose the Congress of the United States should enact a law in clear violation of the express power conferred upon the President, as, for example, a law declaring that he shall not be Commander-in-Chief of the Army, a law declaring that he shall not exercise the pardoning power in any case whatever, is not the President to intervene and protect the Constitution?" I answer, no; not by repealing the laws. The President is not to intervene and protect the Constitution against the laws. The people of the United States are the guardians of their own honor, the protectors of their own Constitution, and if there be anything in that Constitution more clearly written and defined and established than another, it is the express and clear provision that the legislative department of this Government is responsible to no power on earth for the exercise of their legislative authority and the discharge of their duties during the sessions of the Congress save to the people that appointed them. It is a new doctrine altogether that the Constitution is exclusively in the keep-charged in the first, second, and third articles. ing of the President. When that day comes, Senators, that the Constitution of your country, so essential to your national existence and so essential to the peace, the happiness, and the prosperity of the people, rests exclusively upon the fidelity and patriotism and integrity of Andrew Johnson, may God save the Constitution and save the republic from its defender! No, sirs; there is no such power vested in the President of the United States. It is only coming back to the old proposition. Why, say the gentlemen, surely it would be unconstitutional for Congress so to legislate. Agreed, agreed; I admit that it would be not only unconstitutional, but it would be criminal. But the question is, before what tribunal is the Congress to answer? Only before the tribunal of the people. Admit that they did it corruptly, admit that they did it upon bribe; and yet every man at all conversant with the Constitution of the country knows well that it is written in that instrument that members. of Congress shall not be held to answer in any other place or before any body whatever for their official conduct in Congress assembled save to their respective Houses. That is the end of it. They answer to the people, and the people alone can apply the remedy, and of course ought to apply it. You cannot make them answer in the courts. You have had it Having disposed of this proposition, Senators, the next inquiry to be considered before the Senate, and to which I will direct their attention, is, has the President power under the Constitution to remove the heads of Departments and fill vacancies so created during the session of the Senate of the United States without its consent, without and against the express authority of law? If he has not this power he is confessedly guilty as charged. If he has, of course he ought to go acquitted as Mr. CONNESS. I move that the Senate, sitting as a court, adjourn until to-morrow. Mr. Manager BINGHAM. I shall be very glad, indeed, for that courtesy. The motion was agreed to; and the Senate, sitting for the trial of the impeachment, adjourned. TUESDAY, May 5, 1868. The Chief Justice of the United States took the chair. The usual proclamation having been made by the Sergeant-at-Arms, The Managers of the impeachment on the part of the House of Representatives and Messrs. Evarts, Groesbeck, and Nelson, of counsel for the respondent, appeared and took the seats assigned to them respectively. The members of the House of Representatives, as in Committee of the Whole, preceded by Mr. E. B. WASHBURNE, chairman of that committee, and accompanied by the Speaker and Clerk, appeared and were conducted to the seats provided for them. The Journal of yesterday's proceedings of the Senate, sitting for the trial of the impeachment, was read. The CHIEF JUSTICE. Mr. Manager BINGHAM will proceed with the argument in behalf of the House of Representatives. |
