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EXPULSION OF THE PEESIDENT. 
 
 -^ -*-*-*- 
 
 o i> I N I o isr 
 
 HON. CHARLES SUMNER, OF MASSACHUSETTS, 
 
 IN THE CASE OF THE 
 
 IMPEACHMENT OF ANDREW JOHNSON, 
 
 PRESIDENT OF THE UNITED STATES. 
 
 WASHINGTON: 
 
 O O V E R \ .M E N T PRINTING OFFICE 
 
 ISGS. 
 

OPI>riON 
 
 :? HON. CHARLES SUMNER, OF MASSACHUSETTS. 
 
 IN THE CASE OF THE 
 
 IMPEACHMENT OF ANDREW JOHNSON, 
 
 PRESIDENT OF THE UNITED STATES. 
 
 I voted against the rule of tlie Senate allowing Opinions to be filed in this 
 proceeding, and regretted its adoption. "With some hesitation I now take 
 advantage of the opportunity, if not the invitation, which it affoi-ds. Voting 
 "guilty" on all the articles, I feel that there is no need of explanation or 
 iipology. Such a vote is its own best defender. But I follow the example of 
 others. 
 
 BATTLE WITH SLAVERY. 
 
 This is one of the last great battles with slavery. Driven from these legis- 
 lative chambers, driven from the field of war, this monstrous power has found 
 a refuge in the Executive Mansion, where, in utter disregard of the Constitution 
 and laws, it seeks to exercise its ancient far-reaching sway. All this is very 
 plain. Nobody can question it. Andrew Johnson is the impersonation of the 
 tyrannical slave power. In him it lives again. He is the lineal successor of 
 John C. Calhoun and Jefferson Davis ; and he gathers about him the same 
 supporters. Original partisans of slavery north and south ; habitual compro- 
 misers of great principles; maligners of the Declaration of Independence; poli- 
 ticians without heart; lawyers, for whom a technicality is everything, and a 
 promiscuous company who at every stage of the battle have set their faces 
 against equal rights; these are his allies. It is the old troop of slavery, with 
 a few recruits, ready as of old for violence — cunning in device, andheaitless in 
 quibble. With the President at their head, they are now entrenched in the 
 Executive Mansion. 
 
 Not to dislodge them is to leave the country a prey to one of the most hate- 
 ful tyrannies of history. Especially is it to surrender the Unionists of the 
 rebel States to violence and bloodshed. Not a month, not a week, not a day 
 should be lost. Tlie safety of the Ilcpuhlic requires action at once. The lives 
 of innocent men must be rescued from sacrifice. 
 
 I would not in this judgment depart from that moderntion which belongs to 
 the occasion^ but God forbid that, when called to deal with so great an offender, 
 I should affect a coldness which I cannot feel. Slavery has been our worst 
 enemy, assailing all, murdering our children, filling our homes with mourning, and 
 darkening the land with tragedy; and now it rears its crest anew, with Andrew 
 Johnson as its representative. Through him it assumes once more to rule the 
 Republic and to impose its cruel law. The enormity of his conduct is aggra- 
 vated by his barefaced treachery. He once declared himself the Moses of the 
 
colored race Beliold Iiim now the Pharaoh. With such treachery in such a 
 cause thei'e can be no parley. Every sentiment, every conviction, every vow 
 against shwery must now be directed against him. Pharaoh is at the bar of 
 the Senate for judgment. 
 
 The formal accusation is founded on certain recent transgressions, enumerated 
 in articles of impeachment, but it is wrong to suppose that this is the whole 
 case. It is very wrong to try this impeachment merely on these articles. It 
 is unpardonable to higgle over Avords and phrases when, for more than two 
 years the tyrannical pretensions of this offender, now in evidence before the 
 Senate, as I shall show, have been manifest in their terrible, heart-rending con- 
 sequences. 
 
 IMPEACHMENT A POLITICAL AND NOT A JUDICIAL PROCEEDING. 
 
 Before entering upon the consideration of the formal accusation, instituted by 
 the House of Representatives of the United States in their own name and in the 
 name of all of the people thereof, it is important to understand the nature of the 
 proceeding ; and here on the threshold we encounter the effort of the apologists 
 who have sought in every way to confound this great constitutional trial with 
 an ordinary case at Nisi Prius and to win for the criminal President an Old 
 Bailey acquittal, where on some quibble the prisoner is allowed to go Avithout 
 day. From beginning to end this has been painfully apparent, thus degrading 
 the trial and baffling justice. Point by point has been pressed, sometimes by 
 counsel and sometimes even by senators, leaving the substantial merits un- 
 touched, as if on a solemn occasion like this, involving the safety of the Republic, 
 there could be any other question. 
 • The first effort was to call the Senate, sitting for the trial of impeachment, a 
 court, and not a Senate. Ordinarily names are of little consequence, but it cannot 
 be doubted that this appellation has been made the starting-point for those tech- 
 nicalities which are so proverbial in courts. Constantly we have been reminded 
 of what is called our judicial character and of the supplementary oath we have 
 taken, as if a senator were not always under oath, and as if other things within 
 the sphere of his duties were not equally judicial in character. Out of this 
 plausible assumption has come that fine-spun thread which lawyers know so well 
 how to weave. 
 
 The whole mystification disappears when v,'e look at our Constitution, which 
 in no way speaks of impeachment as judicial in character, and in no way speaks 
 of the Senate as a court. On the contrary it uses positive language, inconsistent 
 with this assumption and all its pretended consequences. On this head there 
 can be no doubt. 
 
 By the Constitution it is expressly provided that " the judicial jjoiver shall be 
 vested in one Supreme Court and in such inferior courts as the Congress may 
 from time to time ordain and establish," thus positively excluding the Senate 
 from any exercise of "the judicial power." And yet this same Constitution 
 provides that "the Senate shall have the sole power to try all impeachments." 
 In the face of these plain texts it is impossible not to conclude that in trying 
 impeachments senators exercise a function vrhich is not regarded by the Consti- 
 tution as "judicial," or, in other words, as subject to the ordinary conditions of 
 judicial power. Call it senatorial or political, it is a power by itself and subject 
 to its own conditions. 
 
 Nor can any adverse conclusion be drawn from the unathorized designation 
 of court, which has been foisted into our proceedings. This term is very 
 expansive and sometimes very insignificant. In Europe it means the household 
 of a prince. In Massachusetts it is still applied to the legislature of the State, 
 which is known as the General Court. If applied to the Senate it must be inter- 
 preted by the Constitution, and cannot be made in any respect a source of power 
 or a constraint. 
 
It is difficult to understand bow this term, which playj^ such a part in present 
 pretensions, obtained its vogue. It does not appear in English impeachments, 
 although there is reason for it there, which is not found here. From ancient 
 times Parliament, including both houses, has been called a court, and the House 
 of Lords is known as a court of appeal. The judgment on English impeachments 
 embraces not merely removal from othce, as under our Constitution, but also 
 punishment. And yet it does not appear that the lords sitting on impeachments are 
 called a court. They are not so called in any of the cases, from the first in 
 1330, entitled simply, " Impeachment of Roger Mortimer, Earl of March, for 
 Treason," down to the last in 1806, entitled, " Trial of Right Honorable Henry 
 Lord Viscount Melville before the Lords House of Parliament in Westminster 
 for High Crimes and Misdemeanors whereof he was accused in certain articles 
 of Impeachment." In the historic case of Lord Bacon, we find, at the first 
 stage, this title, " Proceedings in Parliament against Francis Bacon Lord 
 Verulam ;" and after the impeachment was presented, the simple title, " Pro- 
 ceedings in the House of Lords." Had this simplicity been followed in our 
 proceedings, one source of misunderstanding would have been removed. 
 
 There is another provision of the Constitution which testifies still further, and, 
 if possible, more completely. It is the limitation of the judgment in cases^of 
 impeachment, making it political and nothing else. It is not in the nature of 
 2^umshinent, but in the nature of j^^otcction to the Republic. It is confined to 
 removal from office and disqualification ; but, as if aware that this was no pun- 
 ishment, the Constitution further provides that this judgment shall be no impedi- 
 ment to indictment, trial, judgment, and punishment ''according to law." Thus 
 again is the distinction declared between an impeachment and a proceeding 
 "according to law." The first, which is political, belongs to the Senate, which 
 is a political body ; the latter, which is judicial, belongs to the courts, which 
 are judicial bodies. The Senate removes ffom office; the courts punish. I am 
 not alone in drawing this distinction. It is well known to all who have studied 
 the subject. Early in our history it was put forth by the distinguished Mr. 
 Bayard, of Delaware, the father of senators, in the case of Blount, and it is 
 adopted by no less an authority than our highest commentator, Judge Story, 
 who was as much disposed as anybody to amplify the judicial power. In 
 speaking of this text, he says that impeachment ^'is not so much designed to 
 punish the offender as to secure the State against gross official misdemeanors ; 
 that it touches neither his person nor his property, but simply divests him of Ids 
 political capacity. {Story, Commentaries, vol. 1, sec. 803.) All this seems to 
 have been forgotten by certain apologists on the present trial, who, assuming that 
 impeachment was a proceeding "according to law," have treated the Senate to 
 the technicalities of the law, to say nothing of the law's delay. 
 
 As we discern the true character of impeachment under our Constitution we 
 shall be constrained to confess that it is a political proceeding before a political 
 body, with political purposes ; that it is founded on political offences, proper for 
 the consideration of a political body and subject to a political judgment only. 
 Even in cases of treason and bribery the judgment is political, and nothing more. 
 If I were to sum up in one word the object of impeachment under our Consti- 
 tution, meaning that M'hich it has especially in view, and to which it is practi- 
 cally limited, I should say Expulsion fro77i Office. The present question is, shall 
 Andrew Johnson, on the case before the Senate, be expelled from office. 
 
 Expulsion from office is not unknown to our proceedings. By the Constitu- 
 tion a senator may be expelled with " the concurrence of two-thirds ;" precisely 
 as a President may be expelled with "the concurren(?e of two-thirds." In each 
 of these cases the same exceptional v^ote of two-thirds is required. Do not 
 the two illustrate each other? From the nature of things they are essentially 
 similar in character, except that on the expulsion of the President the motion is 
 made by the House of Representatives at the bar of the Senate, while on the 
 
expulsion of a senator the motion i? made by a senator. And liow can we 
 require a technicality of proceeding in the one which is rejected in the other? 
 If the Senate is a court, bound to judicial forms on the expulsion of the Presi- 
 dent, must it not be the same on the expulsion of a senator? But nobody 
 attributes to it any such strictness in the latter case. Numerous precedents 
 attest how, in dealing with its own members, the Senate has sought to do sub- 
 stantial justice without reference to forms. In the case of Blount, which is the 
 first in our history, the expulsion was on the report of a committee, declaring 
 him "guilty of a high misdemeanor, entirely inconsistent with his public trust 
 and duty as a senator." ( Annals of Congress, 15th Congress, 1797, p. 44.) 
 At least one senator has been expelled on simple motion, even without reference 
 to a committee. Others have been expelled without any formal allegations or 
 formal proofs. 
 
 There is another provision of the Constitution which overrides both cases. 
 It is this : " Each house may determine its rules of proceeding." The Senate 
 on the expulsion of its own members has already done this practically and set 
 an example of simplicity. But it has the same power over its " rules of pro- 
 ceeding " on the expulsion of the President ; and there can be no reason for 
 simplicity in the one case not equally applicable in the other. Technicality is 
 as little consonant with the one as with the other. Each has for its object the 
 Public Safety. For this the senator is expelled ; for this, also, the President is 
 expelled. Sahis jyojndi suprcma lex. The proceedings in each case must be 
 in subordination to this rule. 
 
 There is one formal difference, under the Constitution, between the power to 
 expel a senator and the power to expel the President. The power to expel a 
 senator is unlimited in its terms. The Senate may, "with the concurrence of 
 two-thirds, expel a member," nothing being said of the offence ; whereas the 
 President can be expelled only "for treason, bribery, or other Idgh crimes and 
 misdemeanors." A careful inquiry will show that, under the latter words, there 
 is such a latitude as to leave little difference between the two cases. This brings 
 us to the question of impeachable offences. 
 
 POLITICAL OFFENCKS ARE IMPEACHABLE OFFENCES. 
 
 So much depends on the right understanding of the character of this proceed- 
 ing, that even at the risk of protracting this discussion, I cannot hesitate to con- 
 sider this branch of the subject, although what I have already said may render 
 it superfluous. WJiat are impeachahlc offences has been much considered in this 
 trial, and sometimes with very little appreciation of the question. Next to the 
 mystification from calling the Senate a court has been that other mystification 
 from not calling the transgressions of Andrev/ Johnson impeachable offences. 
 
 It is sometimes boldly argued that there can be no impeachment under the 
 Constitution of the United States, unless for an offence defined and made 
 indictable by an act of Congress ; and, therefore, Andrew Johnson must go 
 free, unless it can be shown that he is such an offender. But this argument 
 mistakes the Constitution, and also mistakes the whole theory of impeachment. 
 
 Il mistakes the Constitution in attributing to it any such absurd limitation. 
 The argument is this : Because in the Constitution of the United States there 
 are no common- lavv^ crimes, therefore there are no such crimes on which an 
 impeachment can be maintained. To this there are two answers on the present 
 occasion ; first, that the District of Columbia, where the President resides and 
 exercises his functions, was •once a part of Maryland, where the common law 
 prevailed; that when it came under the jurisdiction of the United States it brought 
 with it the whole body of the law of Maryland, including the common law, and 
 that at this day the common law of crimes is still recognized here. But the 
 second answer is stronger still. By the Constitution Expulsion from Office is " on 
 
impeachment for and conviction of treason, bribery, or other high crimes and 
 misdemeanors ;^^ and this, according to another clause of the Constitution, is "the 
 supreme law of the land." Now, when a constitutional provision can be executed 
 without superadded legislation, it is absurd to suppose that such superadded 
 legislation is necessary. Here the provision executes itself without any re-en- 
 actment ; and, as for the definition of "treason " and " bribery " we resort to the 
 common law, so for the definition of "high crimes and misdemeanors" we resort 
 to the parliamentary law and the instances of impeachment by which it is illus- 
 trated. And thus clearly the whole testimony of English history enters into 
 this case Avitli its authoritative law. From the earliest text-writer on this sub- 
 ject ( Woodeson, Lechires, vol. II, p. 601) we learn the undefined and expansive 
 character of these offences ; and these instances are in point now. Thus, where 
 a lord chancellor has been thought to put the great seal to an ignominious treaty; 
 a lord admiral to neglect the safeguard of the seas ; an ambassador to betray 
 his trust ; a privy councillor to propound dishonorable measures ; a confidential 
 adviser to obtain exorbitant grants or incompatible employments, or where any 
 magistrate has attempted to subvert the fundamental law or introduce arhitary 
 poiver ; all these are high crimes and misdemeanors, according to these prece- 
 dents by which our Constitution must be interpreted. How completely they 
 cover the charges against Andrew Johnson, whether in the formal accusation or 
 in the long antecedent transgressions to which I sliall soon call attention as an 
 essential part of the case nobody can question. 
 
 Broad as this definition may seem, it is in harmony Avitli the declared ophiions 
 of the best minds that have been turned m this direction. Of these none so great 
 as Edmund Burke, who, as manager on the impeachment of Warren Hastings, 
 excited the admiration of all by the varied stores of knowledge and philosophy, 
 illumined by the rarest eloquence, with which he elucidated his cause. These, 
 are his words : 
 
 It is by tnis tribunal that statesmen who abuse their power are tried before statesmea 
 and by statesmen, xipon solid principles of state morality. It is here that those who by an 
 abuse of poiccr have polluted the spirit of all laics can never hope for the least protection from 
 any of its forms. It is here that those who have refused to conform themselves to the pro- 
 tection of law can never hope to escape through any of its defects. (Bond, Speeches on 
 Trial of Hastings, vol. 1 p. 4.) 
 
 The value of this testimony is not diminished, because the orator spoke as a 
 manager. By a professional license an advocate may state opinions v/hich are 
 not his own ; but a manager cannot. Representing the House of Representa- 
 tives and all the people, he speaks with the responsibility of a judge, so that 
 his words may be cited hereafter. In saying this I but follow the claim of Mr. 
 Fox. Therefore, the words of Burke are as authoritative as beautiful. 
 
 In different but most sententious terms, Mr. Hallam, who is so great a light 
 in constitutional history, -thus exhibits the latitude of impeachment and its com- 
 prehensive grasp : 
 
 A minister is answerable for the justice, the honesty, the utility of all measures emanating' 
 from the Crown, as ictll as their legality; and thus the executive administration is or ought 
 to be subordinate in all great matters of policy to the superintendence and virtual control of 
 the two houses of Parliament. (Hallam, Constitutional History, vol. 2, chap. 12.) 
 
 Thus, according to Hallam, even a failure in justice, honesty, and utility, as 
 well as in legality, may be the ground of impeachment ; and the administration 
 should in all great matters of policy be subject to the two houses of Parliament — 
 the House of Commons to impeacli and the House of Lords to try. Here again 
 the case of Andrew Johnson is provided for. 
 
 Our best American lights are similar in character, beginning with the Feder- 
 alist itself. According to this authority impeachment is for " those oftences 
 which proceed from ilia misconduct of jmhlic men, or, in other words, from the 
 abuse or violation of some public trust ; and they may with peculiar propriety 
 be ^qqvuqA. political, as they i elate to injuries done immediately to society itself" 
 
(No. 65.) If ever injuries v/ere done immediately to society itself; if ever there 
 was an abuse or violation of public trust ; if ever tliere was misconduct of a 
 public m.iu ; all these are now before us in the case of Andrew Johnson. The 
 Federalist has been echood ever since by all who have spoken with knowledge 
 and without prejudice. First came the respected corameutator, Rawle, who 
 specifies among causes of impeachment " the fondness for the individual exten- 
 sion of power;" "the influence of party and prejudice;" "the seductions of 
 foreign states;" "the baser appetite for illegitimate emolument;" and "the 
 involutions and varieties of vice too many and too artful to be anticipated, 
 by positive law;" all resulting in what the commentator says are "not inaptly 
 termed political offences^ (Page 19.) And thus Rawle unites with the 
 Federalist in stamping upon impeachable oftences the epithet " political." 
 If in the present case there has been on the part of Andrew Johnson no 
 base appetite for illegitimate emolument and no yielding to foreign seduc- 
 tions, there has been most notoriously the influence of party and prejudice, also 
 to an unprecedent degree an individual extension of power, and an involution 
 and variety of vice impossible to be anticipated by positive law, all of which, 
 in gross or in detail, is impeachable. Here it is in gross. Then comes Story, 
 who, writing with the combined testimony of English and Amei'ican history 
 before him, and moved only by a desire of truth, records his opinion with all the 
 original emphasis of the Federalist. His words are like a judgment. According 
 to him the process of impeachment is intended to reach " personal misconduct, 
 or gross neglect, or usurpation or habitual disregard of the public interests in 
 ^he discharge of the duties of jmlitical office ;'' and the commentator adds that 
 it is " to be exercised over oftences committed by public men in violation of 
 their public trust and duties ;" that " the offences to which it is ordinarily 
 applied are of a political character;" and that strictly speaking " the power 
 partakes of a j)olitical character." {Story's Commentaries, vol. 2, § 746, 764 ) 
 Every Avord here is like an Kgis for the present case. The later commentator, 
 Curtis, is, if possible, more explicit even than Story. According to him an 
 "impeachment is not necessarily a trial for crime;" "its purposes lie wholly 
 beyond the penalties of the statute or customary law ;" and this commentator 
 does not hesitate to say that it is a " proceeding to ascertain ivhetker cause exists 
 ^ or removing a puhlic officer from office;'" and he adds that "such cause of 
 removal may exist where no oftence against public law has been committed, as, 
 where the individual has, from immorality or imbecility, or maladministration, 
 become unfit to exercise the office^ {Curtis on the Constitution, j)- 360.) Here 
 again the power of the Senate over Andrew Johnson is vindicated, so as to 
 make all doubt or question absurd. 
 
 I close this question of impeachable oftences by asking you to consider that 
 all the cases which have occurred in our history are in conformity with the rule 
 which so many commentators have announced. The several trials of Pickering, 
 Chase, Peck, and Humphreys exhibit its latitude in different forms. Oflicial 
 misconduct, including in the cases of Chase and Humphreys offensive utterances, 
 constituted the high crimes and misdemeanors for which they were respectively 
 arraigned. These are precedents. Add still further, that Madison, in debate 
 on the appointing power, at the very beginning of our government, said : " I con- 
 tend that the wanton removal of meritorious officers would subject the President 
 to impeachment and removal from his own high trust." {Elliot's Debates, voh 
 4, p. 141.) But Andrew Johnson, standing before a crowd, said of meritorious 
 officers that " he would kick them out," and forthwith proceeded to execute his 
 foul-mouthed menace. How sm;ill was all that Madison imagined ; how small 
 was all that was spread out in the successive impeachments of our history, if 
 gathered into one case, compared with the terrible mass now before ns. 
 
 From all these concurring authorities, English and American, it is plain that 
 impeachment is a power broad as the Constitution itself, and applicable to the 
 
President, Vice President, and all civil officers tlirough whom the republic suffers 
 or is in any way imperilled. Show me an act of evil example or infiueuce com- 
 mitted by a President, and I show you an impeachable offence, which becomes 
 great in proportion to the scale on which it is done, and the consequences which 
 are menaced. The Republic must receive no detriment ; and impeachment is one 
 of the powers of the Constitution by which this sovereign rule is maintained. 
 
 Ui\TECH.MICAL FORM OF PROCEDURE. 
 
 The Form of Procedure is a topic germane to the last head, and helping to 
 illustrate it. Already it has been noticed in considering the political character 
 of impeachment ; but it deserves further treatment by itself. Here we meet the 
 same latitude. It is natural that the trial of political offences, before a political 
 body, with a political judgment only, should have less of form than a trial at 
 common law; and yet tliis obvious distinction is constantly disregarded. The 
 authorities, whether English or American, do not leave this question open to doubt. 
 
 An impeachment is not a technical proceeding, as at nhi irrius q\ in a county 
 court, where the rigid rules of the common law prevail. On the contrary, it is 
 a proceeding according to parliamentary law. with rules of its own, unknown in 
 ordinary courts. The foi-mal statement and reduplication of words, which con- 
 stitute the stock-in-trade of so many lawyers, are exchanged for a broader man- 
 ner moi'e consistent with the transactions of actual life. The precision of history 
 is enough without the technical precision of an indictment. In declaring this 
 rule I but follow a memorable judgment in a case which occupied the attention 
 of England at the beginning of the last century. I refer to the case of the 
 preacher Sacheverell, impeached of high crimes and misdemeanors on account 
 of two sermons, in which he put forth the doctrine of non-resistance, and denounced 
 the revolution of 1688, by which Euglish liberty was saved. After the argu- 
 ments on both sides, the judges on questions from the Lords answered that by 
 the law of England and constant practice " the particular words supposed lo be 
 criminal ought to be specified in indictments." And yet, in face of this declara- 
 tion b}' the judges of England of a familiar and indisputable rule of tlie common 
 law, we hftve the rule of parliamentary law, which was thus set forth : 
 
 II is rasolecd by the lords spiritual and temporal in Parliament assembled, That by the law 
 aud usage of Parliameut iu prosecutions by impeachments for high crimes and misdemeanors 
 by writing or speaking, the particular words supposed to be criminal are not necessary to be 
 expressly specified in such iiiipeachincnts. {HowelVs State Trials. Aol. 15, p. 4(37.) 
 
 The judgment here does not extend in terms beyond the case iu hand ; but 
 plainly the principle announced is that iu impeachments the technicalities of the 
 common law are out of place, and the proceedings are substantially according to 
 the rule of reason. A mere technicality, much more a quibble, such as is often 
 so efficacious on a demurrer, is a w^retched anachronism when we are considering 
 a question of history or political duty. Even if tolerated on the impeachment 
 of an inferior functionary, such a resort must be disclaimed on the trial of a Chief 
 Magistrate, involving the Public Safety. 
 
 The technicalities of the law were made for pi-otection against power, not f -r 
 the immunity of a usurper or a tyrant. They are respectable when set up for 
 the safeguard of the weak, but they are out of place on impeachments. Here 
 again I cite Edmund Eurke : 
 
 God forbid that those who cannot defend themselves upon tlieir merits aud their actions 
 may defend themselves behind those fences and intreuchmeuts that are made to secure the 
 liberty of the people ; that power and the abuses of power sliould cover themselves by those 
 things which were made to secure liberty. (Bond^s Trial of Hastings, vol. 1, p. 10.) 
 
 Never was tliere a case where this principle, belonging to the law of impeach- 
 ment, was more applicable than now. 
 
 The origin of impeachment in our own Constitution and contemporary 
 authority vindicate this very latitude. One of the apologists sought to sustain 
 
10 
 
 himself in an argument against this latitude, by insisting that it was with much 
 hesitation, and only at the last moment, that this jurisdiction over impeachment 
 was originally conferred on the Senate. This is a mistake, as will appear from 
 a simple statement. The proposition to confer this jurisdiction on the Supreme 
 Court was made before it had been determined that the judges should be 
 appointed by the President with the advice and consent of the Senate. The 
 latter conclusion was reached by a unanimous vote of the convention 7th Sep- 
 tember, 1787. On the next day, Sth September, Roger Sherman raised the objec- 
 tion, that the Supreme Court was " improper to try the President because the 
 judges would be appointed by him." This objection prevailed, and the trial 
 was at once intrusted to the Senate, by the vote of all the States with one 
 exception ; and then immediately thereafter, on the same day, the scope of 
 impeachment was extended from " treason to bribery," so as to embrace " other 
 high crimes and misdemeanors," and, thus intrusted and thus enlarged, it was 
 made to embrace " the Vice-President and other civil officers of the United 
 States." 
 
 From this simple narrative it appears, that, Vv'hile the Supreme Court, a judi- 
 cial body, was contemplated for the trial of impeachments, the jurisdiction was 
 restrained to two well-known crimes at common law, which have since been 
 defined by statutes of the United States ; but this jurisdiction, when confided 
 to the Senate, a ivMtlcal body, was extended to political offences, in the trial 
 of which a commensurate discretion followed from the nature of tlie case. It 
 was in this light that the proceeding was explained by the Federalist, in words 
 which should be a guide to us now : 
 
 The nature of the proceeding can never he tied down by surk strict rides, either in the 
 delineation of the ofience by the prosecutors or in the construction of it by tlie judges, as in 
 common cases serve to limit the discretion of couits in favor of personal security. (Federal- 
 ist, No. 65.) 
 
 This article was by Alexander Hamilton, writing in concert with James 
 Madison and John Jay. Thus by the highest authority at the adoption of the 
 Constitution we frnd that impeachment " can never be tied down by strict rules," 
 and that this latitude is applicable to " the delineation of the offence," meaning 
 thereby the procedure or pleading, and also to the "construction of theeffence," 
 in both of which cases the " discretion " of the Senate is enlarged beyond that 
 of ordinary courts. 
 
 RULES OF EVIDE.\CB. 
 
 From the form of procedure I pass to the Rules (if Evidence ; and here again 
 the Senate must avoid all technicalities and not allow any artificial rule to shut 
 out the truth. It Y>'Ould allow no such thing on the expulsion of a senator. 
 How can it allow any such thing on the expulsion of a President 1 On this 
 account I voted to admit all evidence that was offered during the trial, believing, 
 in the first place, that it ought to be heard and considered ; and, in the second 
 place, that, even if it were shut out from these proceedings, it could not be shut 
 out from the public or be shut out from history, both of which must be the ulti- 
 mate judges. On the impeachment of Prince Polignac and his colleagues of 
 the cabinet, in 1830, for signing the ordinances which cost Charles X his throne, 
 some forty witnesses were sworn Avithout objection, in a brief space of time, and 
 no testimony was excluded. An examination of the two volumes, entitled 
 Proces dcs Derniers Minist?-es de Charles X will confirm what I say. This 
 example was to my mind not unworthy of imitation on the present occasion. 
 
 There are other rules, which it is not too late to profit by. One of tliese 
 relates to the burden of proof and is calculated to have a practical bearing. 
 The other relates to matters of which the Senate will take cognizance without 
 any special proof, thus importing into the case unquestionable evidence, which 
 explains and aggravates the transgressions charged. 
 
11 
 
 (1.) Look carefully at tlie object of this trial. Primarily it is for the expul- 
 sion of the President from office. Its motive is not punishment, not vengeance, 
 but the Puhlic Safety. Nothing less than this could justify the ponderous pro- 
 ceeding. It will be for the criminal courts to award the punishment due to his 
 offences. The Senate considers only how the safety of the people, which is the 
 supreme law, can be best preserved ; andto this end the ordinary rule of evi- 
 dence is reversed. If on any point you entertain doubts, the benefit of those 
 doubts must be given to your country ; and this is the supreme law. When 
 tried on an indictment in the criminal courts Andrew Johnson may justly claim 
 the benefit of your doubts ; but at the bar of the Senate on the question of his 
 expulsion from office, his vindication must be in every respect and on each 
 charge beyond a doubt. He must show that his longer continuance in office is 
 not inconsistent with the Puhlic Safety : 
 
 Or, at least so prove it, 
 That the probation bear no hinf^e or loop 
 To hang a doubt oo. 
 
 Anything short of this is to trifle with the Republic and its transcendent for- 
 tunes. 
 
 It is by insisting upon doubts that the apologists of the Presidetit, at the bar 
 and in the Senate, seek to save him. For myself, I can see none such, but 
 assuming that they exist, then should they be marshalled for our country. This 
 is not a criminal trial, where the rule prevails: better that many guilty men 
 should escape than one innocent man should suffer. This rule, which is so 
 proper in its place, is not applicable to a proceeding for expulsion from office ; 
 and who will undertake to say that any claim of office can be set against the 
 Public Safety ? 
 
 In thus stating the just rule of evidence, I do little more than apply those 
 time-honored maxims of jurisprudence, which require that every interpretation 
 shall be always in favor of liberty. Early in the common law we were told that 
 he is to be adjudged impious and cruel who does not favor liberty : impius r.t 
 arudelis judicandics est- qui libertatl non favet. Blackstone, whose personal 
 sympathies were with power, is constrained to confess that "the law is always 
 ready to catch at anything in favor of liberty." [Blackstonc's Commentarus, 
 vol. 2, J). 94.) But liberty and all else are contained in the Public Safety ; they 
 depend on the rescue of the country from a presidential usurper. Therefore 
 should wenow, in the name of tlie law, "catch at anything" to save the Republic. 
 
 2. There is another rule of evidence which, though of common acceptance in 
 the courts, has peculiar value in this case, where it must exercise a decisive 
 "influence. It is this : Courts will take judicial cognizance of certain matters, 
 ivithout any special proof on the trial. Some of these are of general knowledge, 
 and others are within the special knowledge of the court. Among these, accora- 
 ing to express decision, are the frame of government and the public officers 
 administering it; the accession of the Chief Executive ; the sitting of Congress 
 and its usual course of proceeding; the usual course of travel ; the ebbs and flows 
 of the tide ; also wliatever ought to he generally known within the limits of thi 
 jurisdiction, including the history of the country. Besides these matters of geti- 
 eral knowledge a court will take notice of its own records, the conduct of its own 
 officers, and whatever passes in its own presence or under its own eyes. For 
 all this I cite no authority ; it is superfluous. I add a single illustration from 
 the great English commentator : " If a contempt be committed in the face of the 
 court, the offender maybe instantly apprehended and imprisoned at the discretion 
 of the judges, without any further proof or examination." {Blackstonc's Com- 
 mentaries, vol. 4., p. 286.) 
 
 If this be the rule of courts, a fortiori it must be the rule of the Senate on 
 impeachments ; for we have seen that; when sitting for this purpose, the Senate^ 
 enjoys a latitude of its own. Its object is the- Public Safety, and, therefore, no 
 
12 
 
 aid for the arrival at truth cau be rejected. No gate can be closed. Bat here 
 is a g-ate opened by the sages of the law and standing open alwaj^s, to the end 
 that justice may not fail. 
 
 Applying this rule to the present proceeding, it will be seen at once how it 
 brings before the Senate, without any further evidence, a long catalogue of crime, 
 affecting the character of the President beyond all possibility of defence, and 
 serving to explain the latter acts on which the impeachment is founded. It was 
 in this chamber, in the face of the Senate and the ministers of foreign powers, 
 and surrounded by the gaze of thronged galleries, that Andrew Johnson exhib- 
 ited himself in beastly intoxication while he took his oath of otiice as Vice- 
 President ; and all that he has done since is of record here. Much of it appears 
 on our journals. The rest is in authentic documents published by the order of 
 the Senate. Never was a record more complete. 
 
 Here in the Senate we know officially how he has made himself the attorney 
 of slaver^' — the usurper of legislative power — the violator of law — the patron of 
 rebel.'i— the helping hand of rebellion — the kicker from office of good citizens — the 
 open bung-hole of the treasury — the architect of the " whiskey ring" — the stum- 
 l)!ing block to all good laws by wanton vetoes and then by criminal hindrances ; 
 all these things are known here beyond question. To the apologists of the 
 President, who set up the quibbling objection that they are not alleged in the 
 articles of impeachment, I reply that, even if excluded on this account from 
 judgmsent, they may be treated as evidence. They are the reservoir from which to 
 draw in determining the true character of the latter acts for which the President 
 is arraigned, and especially the intent by which he was animated. If these latter 
 were ah:!ne, without connection with the transgressions of the past, they would 
 have remained unnoticed. Impeachment would not have been ordered. It is 
 because they are a prolongation of that wickedness, under which the country has 
 so long suffered, and spring from the same bloody fountain, that they are now 
 presented for judgment. They are not alone ; nor can they be faithfully con- 
 sidered without drawing upon the past. The story of the God Thor in Scandi- 
 navian mytholo£:y is revived, whose drinking-horn could not be drained by the 
 strongest quafter, for it communicated with the vast and inexhaustible ocean, 
 Andrew Johnson is our God Thor, and these latter acts for which he stands 
 impeached are the drinking-horn whose depths are unfathomable. 
 
 OUTLI.XR OF TRA.\SGRESSIOi\S OF ANDREW JOHi\SO\. 
 
 From this review of the character of this proceeding,, showing how it is polit- 
 ical in character — before a political body — and with a political judgment, being 
 expulsion from office and nothing more ; then how the transgressions of the 
 President, in their protracted line, are embraced under "impeachable offences;" 
 then how the form of procedure is liberated from the ordinary technicalities of 
 the law ; and lastly how unquestionable rules of evidence open the gates to over- 
 whelming testimony, I pass now to the consideration of this overwhelming tes- 
 timony and how the present impeachment became a necessity. I have already 
 called it one of the last great battles with slavery. See now how the battle 
 lugau. 
 
 Slavery in all its pretensions is a defiance of law ; for it can have no law in 
 its support. Whoso becomes its representative must act accordingly; and this 
 is the transcendent crime of Andrew Johnson. For the sake of slavery and to 
 uphold its original supporters in their endeavors to continue this wrong under 
 another name, he has set at defiance the Constitution and laws of the land, and 
 he has accompanied this unquestionable usurpation by brutalities and indecen- 
 cies in office without precedent, unless we go back to the Roman emperor fid- 
 dling, or the French monarch dancing among his minions. This usurpation, 
 with its brutalities and indecencies, became manifest as long ago as the winter 
 
13 
 
 of 1866, when, being President, and bound by his oath of office to preserve, pro- 
 tect, and defend the Constitution, and to take care that the laws are faithfully 
 executed, he took to himself legislative powers in the reconstruction of the rebel 
 States, and, in carrying forward this usurpation, nullified an act of Congress, 
 intended as the corner-stone of reconstruction, by virtue of which rebels are 
 excluded from office under the government of the United States, and thereafter, 
 in vindication of this misconduct, uttered a scandalous speech in which he openly 
 charged members of Congress with being assassins, and mentioned some by 
 name. Plainly he should have been impeached and expelled at that early day. 
 The case against him was complete. That great patriot of English history. 
 Lord Somers, has likened impeachment to Goliath's sword hanging in the tem- 
 ple to be taken down only when occasion required ; but if ever there v/as an 
 occasion for its promptest vengeance it was then. Had there been no failure at 
 that time we should be now nearer by two years to restoration of all kinds, 
 whether political or financial. So strong is my conviction of the fatal remiss- 
 ness of the House, that I think the Senate would do a duty in strict harmony 
 with its constitutional place in the government, and the analogies of judicial 
 tribunals so often adduced, if it reprimanded the House of Representatives for 
 this delay. Of course the Senate could not originate an impeacliment. It could 
 not take down the sword of Goliath. It must wait on the House, as the coui't 
 waits on the grand jury. But this waiting has cost the country more than can 
 be told. 
 
 Meanwhile the President proceeded in his transgressions. There is nothing 
 of usurpation which he has not attempted. Beginning with an assumption of 
 all power in the rebel States, he has shrunk from nothing in the maintenance of 
 this unparalleled assumption. This is a plain statement of fact. Timid at first, 
 he grew bolder and bolder. He saw too well that his attempt to substitute him- 
 self for Congress in the work of reconstruction was sheer usurpation, and, there- 
 fore, by his Secretary of State, did not hesitate to announce that " it must be 
 distinctly understood that the restoration will be subject to the decision of Con- 
 gress." On two separate occasions, in July and September, 1865, he confessed 
 the power of Congress over the subject ; but when Congress came together in 
 December, this confessor of congressional power found that he alone had this 
 great prerogative. According to his new-fangled theory. Congress had nothing 
 to do but admit the States with the governments which had been instituted 
 through his will alone. It is difficult to measure the vastuess of this usurpation, 
 involving as it did a general nullification. Strafford was not bolder, when, 
 speaking for Charles I, he boasted that " the little finger of prerogative was 
 heavier than the loins of the law ;" but these words helped the proud minister 
 to the scaffold. No monarch, no despot, no Sultan, could claim more than an 
 American President ; for he claimed all. By his edict alone governments were 
 organized, taxes were levied, and even the fi'anchises of the citizen were deter- 
 mined. 
 
 Had this assumption of power been incidental, for the exigency of the moment, 
 as under the pressure of war, and especially to serve the cause of human rights, 
 to which before his elevation tlie President had professed such vociferous 
 devotion, it might have been pardoned. It would have passed into the chapter 
 of unauthorized acts which a patriot people had condoned. But it was the oppo- 
 site in every particular. Beginning and continuing in usurpation, it was hateful 
 beyond pardon, because it sacrificed the rights of Unionists, white and black, 
 and was in the interest of the rebellion and of those very rebels who had been 
 in arms against their country. 
 
 More than one person was appointed provisional governor who could not 
 take the oath of office required by act of Congress. Other persons in the same 
 predicament were appointed in the revenue service. The effect of these appoint- 
 ments was disastrous. They were in the nature of notice to rebel? everywhere, 
 
14 
 
 that participation in the rebellion was no bar to office. If one of their number 
 could be appointed governor, if another could be appointed to a confidential 
 position in the Treasury Department, then there was nobody on the long list of 
 blood who might not look for preferment. And thus all offices from governor 
 to constable were handed over to a disloyal scramble. Rebels crawled forth 
 from their retreats. Men who had hardly ventured to expect their lives were 
 now candidates for office, and the rebellion became strong again. The change 
 was felt in all the gradations of government, whether in States, counties, towns, 
 or villages. Rebels found themselves in places of trust, while the true-hearted 
 Unionists, who had watched for the coming of our flag and ought to have 
 enjoyed its protecting power, were driven into hiding-places. AH this was 
 under the auspices of Andrew Johnson. It was he who animated the wicked 
 crew. He was at the head of the work. Loyalty everywhere was persecuted. 
 White and black, whose only offence was th;it they had been true to their coun- 
 try, were insulted, abused, murdered. There was no safety for the loyal man 
 except within the flash of our bayonets. The story is as authentic as hideous. 
 More than two thousand murders have been reported in Texas alonesince the 
 surrender of Kirby Smith In other States there was a similar carnival. 
 Property, person, life, were all in jeopardy. Acts were done " to make a holi- 
 day in hell." At New Orleans there was a fearful massacre, which, considering 
 the age and the place, was worse than that of St. Bartholomew, which darkens 
 a century of France, or that of Glencoe, which has printed an ineffaceable stain 
 upon one of the greatest reigns of English history. All this is directly traced 
 to Andrew Johnson. The words of bitterness uttered at another time are justi- 
 fied, while Fire, Famine, and Slaughter shriek forth — 
 
 He let me loose, and cried Halloo I 
 To him alone the praise is due. 
 
 ACCUMULATION OF IMPEACHABLE OFFENCES. 
 
 This is nothing but the outline, derived from historic sources which the Saiate 
 on this occasion is bound to recognize. Other acts fall within the picture. The 
 officers he had appointed in defiance of law were paid also in the same defiance. 
 Millions of property were turned over without consideration to railroad com- 
 panies, whose special recommendation was their participation in the rebellion. 
 The Freedman's Bureau, that sacred charity of the Republic, was despoiled of its 
 possessions for the sake of rebels, to whom their forfeited estates were given 
 back after they had been vested by law in the United Stares. The proceeds of 
 captured and abandoned property, lodged under the law in the national treasury, 
 were ravished from their place of deposit and sacrificed. Rebels were allowed 
 to fill the ante-chambers of the Executive Mansion and to enter into his counsels. 
 The pardoning power was prostituted, and pardons were issued in lots to suit 
 rebels, thus grossly abusing that trust whose discreet exercise is so essential to 
 the administration of justice. The powers of the Senate over appointments 
 were trifled with and disregarded by reappointing persons who had been already 
 rejected, and by refusing to communicate the names of others appointed by him 
 during the recess. The veto power conferred by the Constitution as a remedy 
 for ill-considered legislation, was turned by him into a weapon of ofi'ence against 
 Congress and into an instrument to beat down the just opposition which his 
 usurpation had aroused. The power of removal, which patriot Presidents had 
 exercised so sparingly, was seized as an engine of tyranny and openly employed 
 to maintain his wicked purposes by the sacrifice of good citizens who would not 
 consent to be his tools. Incompetent and dishonest creatures, whose only recom- 
 mendation was that they echoed his voice, were appointed to office, especially in 
 the collection of the internal revenue, through whom a new organization, known 
 as the "Whisky Ring," has been able to prevail over the government and to 
 rob the treasury of millions at the cost of tax-paying citizens, whose burdens 
 
15 
 
 are thus increased. Laws enacted by Congress for the benefit of tlie colored 
 race, including that great statute for the establishment of the Freedmen's Bureau, 
 and that other great statute for the establishment of Civil Rights, were first 
 attacked by his veto, and, when finally passed by the requisite majority over his 
 veto, were treated by him as little better than dead letters, while he boldly attempted 
 to prevent the adoption of a constitutional amendment, by which the right of citi- 
 zens and the national debt were placed under the guarantee of irrepealable law. 
 During these successive assumptions, usurpations, and tyrannies, utterly with- 
 out precedent in our history, this deeply guilty man ventured upon public speeches, 
 each an ofience to good morals, where, lost to all shame, he appealed in coarse 
 words to the coarse passions of the coarsest people, scattering firebrands of sedi- 
 tion, inflaming anew the rebel spirit, insulting good citizens, and, with regard to 
 ofiice-holders, announcing in his own characteristic phrase that he would " kick 
 them out" — the whole succession of speeches being from their brutalities and 
 indecencies in the nature of a " criminal exposure of his person," indictable at 
 common law, for which no judgment can be too severe. But even this revolting 
 transgression is aggravated, when it is considered that through these utterances 
 the cause of justice was imperiled and the accursed demon of civil feud was 
 lashed again into vengeful fury. All these things from beginning to end are 
 plain facts, already recorded in history and known to all. And it is further 
 recorded in history and known to all, that, through these enormities, any one of 
 which is enough for condemnation, while all together present an aggregation of 
 crime, untold calamities have been brought upon our country ; disturbing busi- 
 ness and finance ; diminishing the national revenues ; postponing specie pay- 
 ments ; dishonoring the Declaration of Independence in its grandest truths ; 
 arresting the restoration of the rebel States ; reviving the dying rebellion, and 
 instead of that peace and reconciliation so much longed for, sowing strife and 
 wrong, whose natural fruit is violence aud blood. 
 
 OPEN DEFIANCK OF COXGRESS. 
 
 For all these, or any one of them, Andrew Johnson should have been 
 impeached and expelled from office. The case required a statement only ; not 
 an argument. Unhappily this was not done. As a petty substitute for the 
 judgment which should have been pronounced, and as a bridle on presidential 
 tyrfinny in " kicking out of office," Congress enacted a law known as the tenure- 
 of-office act, passed March 2, 18G7, over his veto by the vote of two-thirds of 
 both houses. And in order to prepare the way for impeachment, by removing 
 certain scruples of technicality, its violation was expressly declared to be a high 
 misdemeanor. 
 
 The President began at once to chafe under its restraint. Recognizing the 
 act and following its terms, he first suspended Mr. Stanton from office, 
 and then, on his restoration by the Senate, made an attempt to win General 
 Grant into a surrender of the department, so as to oust Mr. Stanton and 
 to render the restoration by the Senate ineffectual. Meanwhile Sheridan in 
 Louisiana, Pope in Alabama, and Sickles in South Carolina, who, as military 
 commanders, were carrying into the pacification of these States all the energies 
 which had been so brilliantly displayed in the war, were pursued by the same 
 vindictive spirit. They were removed by the President, and rebellion through- 
 out that whole region clapped its hands. This was done in the exercise of his 
 power as Commander-in-chief. At last, in his unappeased rage, he openly 
 violated. the tenure-of-office act, so as to bringhimself under its judgment, by the 
 defiant attempt to remove Mr. Stanton from the War Department, without the 
 consent of the Senate, and the appointment of Lorenzo Thomas, Adjutant General 
 of the United States, as Secretary of War ad interim. 
 
16 
 
 I.MPEACHMB.NT AT LAST. 
 
 The Grand Inquest of the nation, Avhich" had slept on so many enormities, was 
 awakened by this open defiance. The gauntlet was flung into its very chamber, 
 and there it lay on the floor. The President, who had already claimed every- 
 thing for the Executive with impunity, now rushed into conflict with Congress 
 on the very ground selected in advance by the latter. The field was narrow, 
 but sufiicieut. There was but one thing for the House of Representatives to 
 do. Andrew Johnson must be impeached, or the tenure-of-office act would 
 become a dead letter, while his tyranny would receive a letter of license, and 
 impeachment as a remedy for wrong-doitig v/ould be blotted from the C<nisti- 
 tution. 
 
 Accordingly it was resolved that the offender, whose crimes had so long 
 escaped judgment, should be impeached. Once entered upon this work, the 
 House of Representatives, after setting forth the removal of Mr. Stantori and 
 the appointment of General Thomas in violation of the law and Constitution, 
 proceeded further to charge him in diffei*ent forms with conspiracy wrongfully 
 to get possession of the War Department ; also with an attempt to corrupt 
 General Emory and induce him to violate an act of Congress ; also with scan- 
 dalous speeches, such as no President could be justified in making; concluding 
 with a general article setting forth attempts on his part to prevent the execution 
 of certain acts of Congress. 
 
 Such is a simple narrative, which brings us to the articles of impeachment. 
 Nothing that 1 have said thus far is superfluous ; for it shows the origin of this 
 proceeding, and illustrates its moving cause. The articles themselves are 
 narrow, if not technical. But they are filled and broadened by the transgres- 
 sions of the past, all of which enter into the present offences. The whole is an 
 unbi'oken series with a common life. As well separate the Siamese twins as 
 separate the offences now charged from that succession of antecedent crimes 
 with which they are linked, any one of which is enough for judgment. The 
 present springs from the past and can be truly seen only in its light, which, in 
 this case, is nothing less than "darkness visible." 
 
 ARTICLES OF IMPEACHMENT. 
 
 In entering upon the discussion of the articles of impeachment, I confess my 
 regret that so great a cause, on which so much depends, should be presented on 
 such narrow ground, althoifgh I cannot doubt that the whole past must be taken 
 into consideration in determining the character of the acts alleged. If there has 
 been a violation of the Constitution aVid laws, t!ie apologists of the President 
 then insist that all vv'as done with good intentions. In reply to this it is enough 
 if we point to the past, which thus becomes a part of the case. But of this 
 hereafter. It is unnecessary for me to take time in setting forth the articles. 
 The abstract already presented is enough. They will naturally come under 
 review before the close of the inquiry. 
 
 Of the transactions embraced by the articles, the removal of Mr. Stanton has 
 uncjuestionably attracted the most attention, although I cannot doubt that the 
 scandalous harangues are as justly worthy of condemnation. But the former 
 has been made the pivot of this impeachment ; so much so that the whole case 
 seems to revolve on this transaction. I'herefore I shall not err, if, following 
 the articles, I put this foremost in the present inquiry. 
 
 This transaction may be brought to the touchstone of the Constitution, and 
 also of the tenure-of-office act. But since the allegation of a violation of this 
 act has been so conspicuous, and this act may be regarded as a congressional 
 interpretation of the power of removals under the Constitution, I begin with 
 the consideration of the questions arising under it. 
 
17 
 
 T F, .\ U R R - O F - (1 F F I C K A C T . 
 
 The general object of the tenure-of-office act was to protect civil officers from 
 removal without the advice and consent of the Senate ; and it was made in 
 express terms applicable to " every person holding any civil office to which he 
 has been appointed by and with the advice and consent of the Senate." To 
 this provision, so broad in il.s character, was appended a proviso as follows : 
 
 Provided, That the Secretaries of State, of the Tieasury, of War, of the Navy, and of the 
 Interior, the Postmaster Generul, and the Attorney General shall hold their offices respectively 
 for and during the term of the President by wliom they may have been appointed and for 
 one month thereafter, subject to removal by and with tlie advice and consent of the Senate. 
 
 As this general protection from removal without the advice and consent of the 
 Senate might be productive of embarrassment during the recess of the Senate, 
 it was further provided, in a second section, that during such recess any person 
 may be suspended from office by the President on reasons assigned, which it is 
 made his duty to report to the Senate within twenty days after its next meet- 
 ing, and if the Senate concurs, then the President may remove the officer 
 and appoint a successor ; but if the Senate does not concur, then the suspended 
 officer shall forthwith resume his functions. 
 
 On this statute two questions arise : first as to its constitutionality, and 
 secondly as to its application to Mr. Stanton, so as to protect him from removal 
 without the advice and consent of the Senate. It is impossible not to confess 
 in advance that both have been already practically settled. The statute was 
 passed over the veto of the President by a vote of two-thirds, who thus solemnly 
 united in declaring its constitutionality. Then came the suspension of Mr. 
 Stanton, and his restoration to office by a triumphant vote of tlje Senate, being 
 no less than 35 to 6, thus establishing not only the constitutionality of the 
 statute, but also its protecting application to Mr. Stanton. And then came the 
 resolution of the Senate, adopted after protracted debate on the 21st February, 
 by a vote of 27 to 6, declaring, that, under the Constitution and laws of the 
 United States, the President has no power to remove the Secretary of War and 
 to designate any other officer to perform the duties of that office ad interim ; 
 thus for the third time affirming the constitutionality of the statute, and for the 
 second time its protecting application to Mr. Stanton. There is no instance in 
 our history where there has been such a succession of votes, with such large 
 majorities, declaiing the conclusions of the Senate and fixing them beyond 
 recall. "Thrice is he armed who hath his quarrel just ;" but the tenure-of- 
 officc act is armed thrice by the votes of the Senate. The apologists of the 
 President seem to say of these solemn votes, " Thrice the brinded cat hath 
 mewed ;" but such a three-fold record of the Senate cannot be treated with levity. 
 
 The question of the constitutionality of this stalute complicates itself M'ith 
 the power of removal under the Constitution ; bat I shall not consider the lat- 
 ter question at this stage It will naturally preseni itself when we consider 
 the power of removal under the Constitution whicli has been claimed by the 
 President. For the present I assume the constitutionality of the statute. 
 
 ITS APPLICATIOX TO MR. STANTON. 
 
 I come at once to the question of the application ol' the statute to Mr. Stanton, 
 so as to protect him against removal without the consent of the Senate. And 
 here I doubt if any question would have arisen but for the hasty words of the 
 senator from Ohio, [Mr. Sherman,] so often quoted in this proceeding. 
 
 Unquestionably the senator from Ohio, when the report of the conference 
 
 committee of the two houses was under discussion, stated that the statute did 
 
 not protect Mr. Stanton in his office ; but this was the individual opinion of this 
 
 senator, and nothing more. On hearing it I cried from my seat, " The senator 
 
 2 Sumner 
 
.18 
 
 must speak for himgelf ;" for 1 held the opposite opinion. It Avas clear to my 
 mind that the statute was intended to protect Mr. Stanton, and that it did pro- 
 tect him. The senator from Oregon, [^[r. Williams,] who was the chairman of 
 the conference committee and conducted its deliberations, informs us that there 
 was no suggestion in the committee that the statute did not protect all of the 
 President's cabinet, including, of course, Mr. Stanton. The debates in the 
 House of Repiesentatives are the same v/ay. Without underraking to hold 
 the scales in which to weigh any such conflicting opinions, I re?t nn the received 
 rule of law that they cannot be taken into account in determiuiug the meaning 
 of the statute. And here I quote the judgment of the Supreme Court of the 
 United States, pronounced by Chief Justice Taney : 
 
 In expounding' tliis law, the judgment of the court cannot in any degree he iiijlucnccd by the 
 construction placed upon it by individual membtrs of Congress in the debate tchich took place 
 on its passage, nor by the motives or reasons assigned by them for supporting or opposing 
 amendments that were offered. The law that passed is the will of the majority ot both 
 houses, and the only mode in which that will is spoken is in the act itself; and we must 
 gather their intention from the language there used, comparing it, when any ambiguity 
 exists, with the laws upon the same sabject, and looking, if necessary, to the public history 
 oj the times in irhich it teas passed. (Aldridge %"s. U'tlliants, 3 Howard's Rep., 2A.) 
 
 It is obvious to all acquainted with a legislative body that the rule thus 
 authoritatively declared is the only one that could be safely applied. The Sen- 
 ate in construing the present statute must follow- this rule. Therefore, I repair 
 to the statute, stopping for a moment to glance at the public history of the 
 times, in order to understand its object. 
 
 Already, we have seen how the President, in carrying forward his usurpation 
 in the interest of the rebellion, has trifled with the Senate in regard to appoint- 
 ments, and abused the traditional power of removal, openly threatening good 
 citizens in oilGce that he would " kick them out," and filling all vacancies, from 
 high to low, with creatures whose first promise was to sustain his barbarous 
 policy. I do not stop to portray the extent of this outrage, constituting an 
 impeachable offence, according to the declared opinion of Mr. Madison, one of 
 the strongest advocates of the presidential power of removal. Congress, instead 
 of adopting the remedy, suggested by this father of the Constitution, and expel- 
 ling the President by process of impeachment, attempted to wrest from him the 
 power he was abusing. For this purpose the tenure-of-oflice act v/as passed. 
 It was deemed advisable to include the cabinet officers Avithin its protection ; 
 but, considering the intimate relations between them and the President, a pro- 
 viso was appended securing to the latter the right of choosing them in the first 
 instance. Its object was, v.-here the President finds himself, on accession to 
 office, confronted by a hostile Senate to seciire to him this right of choice, with- 
 out obliging him to keep the cabinet of his predecessor; and accordingly it 
 says to him, " Choose your own cabinet, but expect to abide by your choice, 
 unless you can obtain the consent of the Senate to a change." 
 
 Any other conclusion is flat absurdity. It begins by misconstruing the oper- 
 ative words of the proviso, that the cabinet officers " shall hold their offices 
 respectively for and during the term of the President by wliom they are 
 appointed." On its face there is no ambiguity here. It is only by going out- 
 side that any can be found, and this disappears on a brief inquiry. At the date 
 of the statute Andrew Johnson had been in oflice two 3'ears. Some of his 
 cabinet Avere originally appointed by President Lincoln ; others had been for- 
 mally appointed by himself. But all were tlicre cquoUy hy his ajjproval and 
 consent. One may do an act himself, or make it his own by ratifying it Avheu 
 done by another. In law it is equally his act. AndreAv Johnson did not orig- 
 inally appoint Mr. Stanton, Mr. SeAvard, or Mr. Welles, but he adopted their 
 appointments, so that at the passage of the statute they stood on the same foot- 
 ing as if originally appointed by him. Practically and in the sense of the 
 statute, they ivcre appointed hy him. They were a cabinet of his own choice, 
 
19 
 
 just as much as the cabiuet of his successor, dulj' appointed, will be of his own 
 choice. If the statute compels the latter, as it clearly does, to abide by his 
 choice, it is unreasonable to suppose that it is not equally obligatory on Andrew 
 Johnson. Otherwise we find a special immunity for that President whose 
 misconduct rendered it necessaiy, and Congress is exhibited as legislating for 
 some future mikuov,ai President, and not for Andrew Johnson, already too well 
 known. 
 
 Even the presidential apologists do not question that the members of the 
 cabinet commissioned by Andrew Johnson are protected by the statute. How 
 grossly unreasonable to suppose that Congress intended to make such a dis- 
 tinction among his cabinet as to protect those whose support of his usurpation 
 had gained them seats which they enjoyed, while it exposed to his caprice a 
 great citizen, whose faithful services during the war had won the gratitude of 
 his country, whose continuance in office was regarded as an assurance of public 
 safety, and whose attempted removal has been felt as a national calamity. 
 Clearly, then, it was the intention of the statute to protect the whole cabinet, 
 whether originally appointed by Andrew Johnson or originally appointed by 
 his predecessor and continued by him. 
 
 I have no hesitation in saying that no other conclusion is possible without 
 doing violence to the statute. I cannot forget that, while Ave are permitted "to 
 open the law on doubts," we are solemnly v/arned *' not to open doubts on the 
 law." It is Lord Bacon who gives us this rule, whose obvious meaning is, that 
 where doubts do not exist they should not be invented. It is only by this for- 
 bidden course that any question can be raised. If we look at the statute in its 
 simplicity, its twofold object is apparent: first, to prohibit removals; and sec- 
 ondly, to limit certain terms of service. The iirohibition to remove plainly 
 applies to all. The limitation oj" service applies only to members of the cabi- 
 net. I agree with the excellent senator from Iowa [Mr. Harlan] that this, 
 analysis removes all ambiguity. The pretension that any one of the cabinet 
 was left to the unchecked power of the President is irreconcilable with the con- 
 cluding woi-ds of the proviso, which declares that they shall " be subject to 
 removal by and with the advice and consent of the Senate;" thus expressly 
 excluding the prerogative of the President. 
 
 Let us push this inquiry still further by looking more particularly at the 
 statute, reduced to a skeleton, so that we may see its bones. It is as follows : 
 
 (L) Every 'person holding any civil office, by and with the advice and con- 
 sent of the Senate, shall be entitled to hold such office until a successor is 
 appointed. 
 
 (2.) If members of the cabinet, then during the term of the President by 
 whom they may have been appointed and one month thereafter, unless sooner 
 removed by consent of the Senate. 
 
 Mr. Stanton obviously falls within the general class, " every person holding 
 any civil office;" and he is entitled to the full benefit of the provision for their 
 benefit. 
 
 As obviously he falls within the sub-class, " members of the cabinet." 
 
 In this latt'n- class his rights are equally clear. It is in the discussions under 
 this head that the ingenuity of lawyers has found the amplest play, mainly turn- 
 ing upon what is meant by " tf^'rm" in the statute. I glance for a moment at 
 some of these theories. 
 
 (1.) One pretension is that the " term," having expired with the life of Presi- 
 dent Lincoln, Mr. Stanton is retroactively legislated out of office on the 15th 
 May, 18(35. As this is a penal statute, this construction makes it ex post facto, 
 and therefore unconstitutional. It also makes Congress enact tliis absurdity 
 that Mr. Stanton had for two years been holding office illegally, whereas he had 
 been holding under the clearest legal title, v^hicli could no more be altered by 
 
20 
 
 legislation than black could be made white. A construction which makes the 
 statute at once unconstitutional and absurd must be rejected, 
 
 (2.) The quibble that would exclude Mr. Stanton from the protection of the 
 statute, because he was appointed during the lirst "term" of President Lin- 
 'Coln, and the statute does not speak of " terms," is hardly worthy of notice. 
 It leads to the same absurd results as follow from the first supposition, enhanced 
 by increasing the retroactive effect. 
 
 (3.) Assuming that the statute does not termiuate Mr. Stanton's right a month 
 after President Line: In's death, it is insisted that it must take effect at the 
 earliest possible moment, and therefore on its passage. From this it follows 
 that Mr. Stanton has been illegally in oiUce since the 2d March, 1867, and that 
 both he and the President have been guilty of a violation of law, the former in 
 exercising the duties of an ofiice to which he had no right, and the latter for 
 appointing him, or continuing him, in office, without the consent of the Senate, 
 in violation of the Constitution and the statute in question. Here is another 
 absurdity to be rejected. 
 
 (4.) Assuming, as it is easy to Jo, that it is President Lincoln's " term," we 
 have the better theory, that it did not expire with his life, but continues until 
 the 4th of ]\Iarch, 1S69, in which event Mr. Stanton is clearly entitled to hold 
 until a month thereafter. This construction is entirely reasonable and in har- 
 mony Avith the Constitution and legislation under it. I confess that it is one to 
 which I have often inclined. 
 
 This brings me back to the construction with which I began, and I find 
 Andrew Johnson is the President who appointed Mr. Stanton. To make this 
 simple, it is only necessary to read " chosen " for " appointed " in the statute, 
 or, if you please, consider the continuance of Mr. Stanton in office, with the 
 concurrence of the President, as a j)ractical appointment or equivalent thereto. 
 Clearly Mr. Stanton was in office, when the statute passed, from the " choice " of 
 the President. Otherwise he would have been removed. His continuance was 
 like another commission. This carries out the intention of the framers of the 
 statute, violates no sound canon of construction, and is entirely reasonable in 
 every respect. Or, if preferred, Ave may consider the "term" to be that of 
 President Lincoln, and then Mr. Stanton would be protected in office until one 
 month after the 4th of March next. But whether th.e " term " be of Andrew 
 Johnson or of President Lincoln, he is equally- protected. 
 
 Great efforts have been made to show that Mr. Stanton does not come within 
 "the special protection of the proviso, without considering the irresistible conse- 
 quence that he is then within the general protection of the statute, being " a 
 person holding a civil office." Turn him out of the proviso and he falls into 
 the statute, unless you are as imaginative as one of the apologists, who placed 
 him in a sort of intermediate limbo, like a lost spirit floating in space, as in one 
 of Flaxman's Illustrations of Dante. But the imagination of this conception can- 
 not make us insensible to its surpassing absurdity. It is utterly unreasonable, 
 and every construction must be rtyecterl which cannot stand the touchstone of 
 common sense. 
 
 THE SUSPENSION OF MR. STA.\TO.\ RECOGMZf'.D HIM AS PROTECTED BY THE 
 
 STATUTE. 
 
 Here I might close this part of the case ; but there is still another illustration. 
 In suspending Mr. Stanton from office, as long ago as August, the President 
 himself recognized that he was protected by the statute. The facts are familiar. 
 The President, in formal words, undertook to say that the suspension was by 
 virtue of the Constitution ; but this was a dishonest pretext in harmony with so 
 much in his career. Whatever he may say, his acts speak louder than his 
 words. In sending notice of the suspension to the Secretary of the Treasury, 
 and then again in sending a message to the Senate assigning his reasons for the 
 
21 
 
 suspension, botli being according to the requirements of th*e statute, he testified 
 that, in his judgment at that time, Mr. Stanton came within its protection. If 
 not, why thus elaborately comply with its requirements ? Why the notice to 
 the Secretary of the Treasury '? Why the reasons to the Senate ? All this was 
 novel and without example. Why ivrite to General Grant of " being sustained " 
 by the Senate ? The approval or disapproval of the Senate could make no dif- 
 ference in the exercise of the power which he now sets up. The approval could 
 not confirm the suspension ; the disapproval could not restore the suspended 
 Secretary of War. In fine, why suspend at all ? Why exercise the power of 
 suspension when the President sets up the power of removal 1 If Mr. Stanton 
 was unfit for office and a thorn in his side, why not remove him at once ? Why 
 resort to this long and untried experiment merely to remove at last ? There is 
 but one answer. Beyond all question the President thought Mr, Stanton pro- 
 tected by the statute, and sought to remove him according to its provisions, 
 beginning, therefore, with his suspension. Failing in this, he undertook to- 
 remove him in contravention of the statute, relying in justification on his preten- 
 sion to judge of its constitutionality, or the pusillanimity of Congress, or some- 
 thing else "to tarn up," which should render justification unnecessary. 
 
 Clearly the suspension was made under the tenure-of-office act and can be 
 justified in no other way. From this conclusion the following dilemma results : 
 If Mr. StantOA was within the statute, by what right vras he removed ? If 
 he was not, by what right was he suspended 1 The President may choose his 
 horn. Either will be sufficient to convict. 
 
 I should not proceed further under this head but for the new device, which 
 makes its appearance under the auspices of the senator from Maine, [Mr. Fes- 
 senden,] who tells us that " whether Mr. Stanton came under the first section of 
 the statute or not, the President had a clear right to suspend him under the 
 second." Thus, a statute, intended as a bridle on the President, gives to the 
 President the power to suspend Mr. Stanton, but fiiils to give to Mr. Stanton 
 any protection against the President. This statement would seem to be enough. 
 The invention of the senator is not less fallacious than the pretext of the Presi- 
 dent. It is a device well calculated to help the President and to hurt Mr. Stan- 
 ton, with those who regard devices more than the reason of the statute and its 
 spirit. 
 
 Study the statute in its reason and its spirit, and you cannot fail to see that 
 the second section was intended merely as a pendant to the first, and was meant 
 to apply to the cases included in the first, and none other. It was a sort of 
 safety-valve or contrivance to guard against the possible evils from bad men , 
 who could not be removed during the recess of the Senate. There was no rea- 
 son to suspend a person who could be removed. It is absurd to suppose that a 
 President would resort to a dilatory and roundabout suspension, when the short 
 cut of removal was open to him. Construing the statute by this plain reason, 
 its second section must have precisely the same sphere of operation as the first. 
 By the letter, Mr. Stanton falls Avithin both ; by the intention, it is the same. 
 It is only by applying to the first section his own idea of the intention, and by 
 availing himself of the letter of the second, that the senator is able to limit the 
 one and to enlarge the other, so as to exclude Mr. Stanton from the protection of 
 the statute, and to include him in the part allowing suspensions. Applying 
 either letter or spirit consistently, the case is plain. 
 
 I turn for the present from the tenure-of-office act, insisting that Mr. Stanton 
 is within its protection, and being so, that his removal was, under the circum- 
 stances, a high misdemeanor, aggravated by its defiant purpose and the long 
 series of transgressions which preceded it, all showing a criminal intent. The 
 apologies of the President will be considered hereafter. 
 
22 
 
 THE SUBSTITUTION OF THOMAS AD INTERIM 
 
 The case of Mr. Stanton has two branches : first, his removal, and, secondly, 
 the substitution of General Thomas as Secretary of War ad interim. As the 
 first was contrary to positive statute, so also was the latter without support in 
 the acts of Congress. For the present I content myself with this latter propo- 
 sition, without opening the question of the powers of the President under the 
 Constitution. 
 
 The offender rests his case on the act of Congress of February 13, 1795, (1 
 Statutes at Large, 415,) which authorizes the President, " in case of vacancy in 
 the office of Secretary of War, Avhereby he cannot perform the duties of said 
 office," to appoint " any person" until a successor be appointed or such vacancy 
 be filled ; and the supply of the vacancy is limited to six months. Under this 
 early statute the President defends himself by insisting that there was a 
 " vacancy," when, in fact, there was none. All this is in that unfailing spirit 
 of prerogative which is his guide. Here is an assumption of pov/er. In point 
 of fact, Mr. Stanton was at his office quietly discharging its duries when the 
 President assumed that there was a " vacancy," and forthwith sent the valiant 
 Adjutant General to enter upon possession. The assumption and the commis- 
 sion were on a par. There is nothing in any law of the land to sanction either. 
 Each testifies against the offender. 
 
 The hardihood of this proceeding becomes more apparent, when it is under- 
 stood that this very statute of 1795, on which the offender relies, Avas repealed 
 by the statute of February 20, 1863, passed in our own day, and freshly remem- 
 bered by many of us. The latter statute, by necessary implication, obliterated 
 the former. Such is the obvious intention, and I do not hesitate to say that 
 any other construction leads into those absurdities which constitute the staple 
 of the presidential apologists. The object of Congress was to provide a substi- 
 tute for previous statutes, restricting at once the number of vacancies which 
 might be filled and the persons who might fill them. And this was done. 
 
 As by the Constitution all appointments must receive the consent of the 
 Senate, therefore any legislation in derogation thereof must be construed strictly ; 
 but the President insists that it shall be extended even in face of the constitu- 
 tional requirement. To such pretensions is he driven. The exception recog- 
 nized by the Constitution is only where a vacancy occurs during the recess of 
 the Senate, when the President is authorized to appoint until he can obtain the 
 consent of the Senate and no longer. It is obvious, however, that cases may 
 arise where a sudden accident vacates the office or where the incumbent is tem- 
 porarily disabled. Here was the occasion for an ad interim appointment, and 
 the repealing statute embodying the whole law of the subject, was intended to 
 provide for such cases ; securing to the President time to select a successor, and 
 also power to provide for a temporary disability. Such is the underlying prin- 
 ciple of this statute, which it is for us to apply on the present occasion. The 
 expiration of a commission, which ordinary care can foresee, is not one of these 
 sudden emergencies for which provision must be made ; and, assuming that 
 vacancies by removal were contemplated, which must be denied, it is plain that 
 the delay required for the examination of the case would give time to select a 
 successor, while a removal without cause would never be made until a successor 
 was ready. 
 
 Look now at the actual facts and you will see how little they come within the 
 reason of an ad interim appointment. Evidently the President had resolved to 
 remove Mr. Stanton last summer. Months passed, and he did not consummate 
 his purpose till February. All the intervening time was his to select a succes- 
 sor, being a period longer than the longest fixed for the duration of an ad interim 
 appointment by the very statutes under which he professed to act. In conver- 
 sation with General Sherman, a month before the removal, he showed that he 
 "was then looking for a successor ad. interim. Why not s. f-crmajient successor? 
 
23 
 
 It took him only a day to find Mr. Ewiug. If, as there is reason to suppose, 
 Mr. Ewin^ was ah-eady selected, when General Thomas was pushed forward, 
 why ajipoint General Thomas at all ? Why not, in tlie usual way, transmit Mr. 
 Ewing's name as the successor? For the excellent reason, that the offender 
 knew the Senate would not confirm him, and that, therefore, xMr. Stanton would 
 remain in office ; whereas through an ad interim appointment he might obtain 
 possession of the War Department, which was his end and aim. The ad interim 
 appointment of General Thomas was, therefore, an attempt to obtain possession 
 of an office without the consent of the Senate, precisely hccause the offender 
 kn€2v that he could not obtain that consent. And all this was under the pretext 
 of an act of Congress, which, alike in letter and spirit, was inapplicable to the 
 case. 
 
 Thus does it appear, that, wliile Mr. Stanton was removed in violation of the 
 tenure-of-office act. General Thomas was appointed Secretary of War ad interim 
 in equal derogation of the acts of Congress regulating the subject. 
 
 KE.MOVAI, AND SUBSTITUT.'O.X AD INTERIM A VIOLATION OF THE CONSTITUTION. 
 
 It remains to consider if the removal and substitution were not each in viola- 
 tion of the Constitution. The case is new, for never until now could it arise. 
 Assuming that the tenure-of-office act does not protect Mr. Stanton, who is thus 
 left afloat in the limbo between the body of the act and the proviso, then the 
 President is remitted to his prerogative under the Constitution, and he must be 
 judged accordingly, independent of statute. Finding the power of removal 
 there, he may be justified ; but not finding it there, he must bear the consequences. 
 And here the tenure- of- offi,ce act furnishes a living and practical construction oj 
 the Constitution from which there is no appeal. 
 
 From the Constitution it appears that the power of appointment is vested in 
 the President and Senate conjointly, and that nothing is said of the power of 
 removal, except in case of impeachment, when it is made by the Senate. 
 Therefore, the power of removal is not express, but implied only, and must 
 exist, if at all, as a necessary consequence of the power to appoint. In whom 
 must it exist ? It is a familiar rule that the power which makes can unmake. 
 Unless this rule be rejected, the power of ren^.oval must exist in the President and 
 Senate conjointly ; nor is there anything unreasonable in this conclusion, l^emoval 
 can always be effected during the session of the Senate by the nomination and con- 
 firmation of a successor, while provision can be made for the recess by an act of 
 Congress. This conclusion would be irresistible, Avere the Senate always in ses- 
 sion, but since it is not, and since cases may arise during the recess requiring 
 the immediate exercise of this power of removal, it has been argued that at least 
 during the recess it must be in the President alone. From this position there 
 has been a jump to the next, and it has been insisted that since, for the sake of 
 public convenience, the power of removal exists in the President, he is at lib- 
 erty to exercise it, either during the recess or the session itself. Here is an 
 obvious extension of the conclusion which the premises do not warrant. The 
 reason failing the conclusion must fiiil. Cessante ratione cessat ctiam ipsa lex. 
 Especially must this be the case under the Constitution. A power founded on 
 implied necessity must fail when that necessity does not exist. The implication 
 cannot be carried beyond the reason. Therefore, the power of removal during 
 the recess, doubtful at best unless sanctioned by act of Congress, cannot be 
 extended to justify the exercise of that power while the Senate is in session, 
 ready to act conjointly with the President. 
 
 Against this natural conclusion we have the assumption that a contrary con- 
 struction of the Constitution was established after debate in 17S9. I avoid 
 all details with regard to this debate which has been considered and cited so often. 
 I content myself by asking if at best it was anything but a congressional construc- 
 tion of the Constitution, and, as such, subject to be set aside by another voice from 
 
24 
 
 tlie same quarter. It; was, moreover, a congressional construction adopted during 
 the administration ol' Washington, whose personal character must have influ- 
 enced opinion largely ; and it prevailed in the House of Representatives only 
 after earnest debate, by a bare majority, and in the Senate only by the casting 
 vote of the Vice-President, John Adams, who, from position as well as principle, 
 was not inclined to shear the President of any prerogative. Once adopted, and 
 no strong necessity for a change occurring, it was allowed to go unaltered, bnt 
 not unquestioned. Jurists like Kent and Story, statesmen like Webster, Clay, 
 Calhoun, and Benton, recorded themselves adversely, and it was once reversed 
 by the vote of the Senate. This was in 1835, when a bill passed the Senate, 
 reported by Mr. Calhoun and sustained by the ablest statesmen of the time, 
 practically denying the power of the President. The tenure-of-office act was 
 heralded in 1 863 by a statute making the Comptroller of the Currency removable 
 " by and with the advice and consent of the Senate," thus, in this individual 
 case, asserting for the Senate a check on the President; and then in 1866, by 
 a more important measure, being the provision in the army appropriation act, 
 that " no military or naval officer shall be dismissed except upan the sentence 
 of a court-martial;" thus putting another check on the President. Finally, this 
 congressional construction, born of a casting vote, and questioned ever since, 
 has been overruled by another congressional construction, which has been twice 
 adopted in both houses, first by large majorities on the original passage of the 
 tenure of-o£dce act, and then by a vote of two-thirds on the final passage of the 
 same act over the veto of the President ; and then again adopted by a vote of 
 more than two-thirds of the Senate, when the latter condemned the removal of 
 Mr. Stanton ; and all this in the light of experience, after ample debate, and 
 with all the consequences before them. Such a congressional construction must 
 have a controlling influence, and the fact that it reversed the practice of eighty 
 years and overcame the disposition tO'Stand on the ancient ways, would seem 
 to increase rather than diminish its weight. 
 
 Now, mark the consequences. Originally, in 1789, there was a congressional 
 construction, which, in effect, made the Constitution read : 
 
 The President shall have the power of removal. 
 For the next eighty years all removals were made under this construction. 
 The tenure-of-office act was a new congressional construction, overruling the 
 first and entitled to equal if not supt-rior weight. By virtue of this congres- 
 sional construction, the Constitution now reads : 
 
 The President shall not have the power of removal. 
 It follows, then, that in removing ^Mr, Stanton the President violated the Con- 
 stitution as now construed. 
 
 The dilemma is this : If the President can remove Mr. Stanton during the 
 session of the Senate, without any power by statute, it is only by virtue of a 
 prerogative vested in him by the Constitution, which must necessarily override 
 the tenure-of-office act, as an unconstitutional effort to abridge it. If, on the 
 other hand, this act is constitutional, the prerogative of removal is not in the 
 President, and he violated the Constitution when he assumed to exercise it. 
 
 The tenure-of-office act cannot be treated otherwise than constitutional. Cer- 
 tainly not in the Senate, where some among the apologists of the Pi-esident 
 voted for it. Therefore the prerogative of removal is not in the President. 
 The long practice which grew up under a mere reading of the Constitution, 
 has been declared erroneous. To this extent the Constitution has been amended, 
 and it is as absurd to plead the practice under the first reading in order to jus- 
 tify an offence under the second, as to plead the existence of slavery before the 
 constitutional amendment in order to justify this monstrosity now. 
 
 Thus must we conclude that the offender has not only violated the tenure-of- 
 office act, but also the Constitution ; that, even assuming that Mr. Stanton is 
 not protected by the statute, the case is not ended ; that this statute, if con- 
 
25 
 
 strued so as to exclude him, cannot be rejected as a congressional construc- 
 tion of the Constitution; and that, under this congressional construction, which 
 in value is second only to a constitutional amendment, the prerogative of removal 
 without the consent of the Senate does not belong to the President. Of course 
 the power of suspension under the Constitution, which is only an incident of the 
 larger pretension, must fall also. Therefore, in the defiant removal of Mr. 
 Stanton, and also in the pretended suspension under the Constitution with v/liich 
 the transaction began, the President violated the Constitution, and was guilty of 
 an impeachable offence. i 
 
 And so, also, we must conclude that, in the substitution of Lorenzo Thomas 
 as Secretary of War ad interim, the offender violated not only the acts of Con- 
 gress for the supply of vacancies, but also the Constitution. Knowing that he 
 could not obtain possession of the office with the consent of the Senate, he 
 sought to accomplish this purpo.'?e without that consent. Thus, undercolor of 
 a statute, he practically set the Constitution at defiance. Mark here his incon- 
 sistency. He violates the tenure-of-office act, alleging that it is against the 
 Constitution, whose champion he professes to be, and then takes advantage of 
 the acts of Congress for the supply of vacancies to set aside the Constitution 
 in one of its most important requirements ; for all which he is justly charged 
 with an impeachable offence. 
 
 All this seems clear. Any other conclusion gives to the President the power 
 under the Constitution to vacate all national offices and leaves the republic the 
 w retched victim of tyranny, with a ruler who is not even a constitutional mon- 
 arch, but a king above all laws. It was solemnly alleged in the articles against 
 Charles I of England, that " being admitted king of England, and therein 
 trusted with a limited power to govern hy and according to the laws oj" the land 
 and NOT OTHERWISE," he nevertheless undertook " to rule according tohisioill 
 and to overthroAV the rights and liberties of the people." These very words 
 might be adopted now to declare the crime of Andrew Johnson. 
 
 THE APOLOGIES. 
 
 Here I might close; but the offender has found apologists, who plead his 
 cause at the bar and in the Senate, The apologies are a strange compound, 
 enlarging rather than diminishing the offences proved. There is, first, the 
 Apology of Good Intentions; next, the Apology of making a case for the 
 Supreme Court, being the Moot Court Apology ; and, then, the Apology that the 
 President may sit in judgment on the laws, and determine whether they shall 
 be executed, which I call the Apology of Prerogative. Following these is a 
 swarm of technicalities, devices, and quibbles, utterly unworthy of che Senate, 
 and to be reprobated by all who love justice. 
 
 THE APOLOGY OF GOOD I.NTENTIONS. 
 
 I begin with the Apology of Good Intentions. In the light of all that has 
 occurred, with the volume of history open before us, with the records of the 
 Senate in our hands, and with the evidence at the bar not utterly forgotten, it 
 is inconceivable that such an apology can ^e put forward. While making it 
 the apologists should be veiled, so that the derisive smile on their faces may 
 not be observed by the Senate, to whose simplicity it is addressed. It is hard 
 to treat this apology; but it belongs to the case, and therefore I deal with it. 
 
 Of course a mere technical violation of law, with no evil consequences and 
 without any claim of title, is followed by nominal damages only. If a person 
 steps on a field of grass belonging to another, without permission, he is a tres- 
 passer, and the law furnishes a familiar proceeding against him; but if he has 
 done this accidentally, and without any real damage, it would be hard to pursue 
 him, unless the assertion of the title were thought important. But if this tres- 
 passer is an old offender, wlio from the beginning has broken fences, ruined 
 
■ w 
 
 trees, and trampled down the garden, and who now defiantly comes upon the 
 field of grass, insisting upon absolute ownership, then it is vain to set up the 
 apology that very little damage is done. The antecedent transgressions, end- 
 ing in a claim of title, enter into the present trespass and make it a question 
 whether the rightful owner or the trespasser shall hold possession. Here the 
 rightful owner is the people of the United States, and the trespasser is Andrew 
 Johnson. Therefore in the name of the people is he impeached. 
 
 This simple illustration opens tlie whole case. Tiie mere technical violation, 
 of a stfftute or of the Constitution, without antecedents and without consequents, 
 would not justify an impeachment. All of us can recall such, even in the admin- 
 istration of Abraham Lincoln, and I cannot doubt that, since this proceeding 
 began, the Chief Justice violated the. Constitutio)! v,'hen he undertook to give a 
 casting vote, not being a member of the Senate. But these were accidents, 
 besides being innocuous. From a violatioi) of the Constitution or of a statute, 
 the law ordinarily infers evil intent, and where such a case is submitted to judg- 
 ment, it throws upon the violator the burden of exculpation. He must show 
 that his conduct was innocent ; in other words, that it was without evil intent 
 or claim of title. In the present cause we have a denial of evil intent, with a 
 claim of title. 
 
 The question of intent thus raised by this offender cannot be considered nar- 
 rowly. This is a trial of impeaclnnent, and not a criminal case in a county court. 
 It is a proceeding for expulsion from office on account of political o^ences, and 
 not a suit at law. When the offender sets up good intentions, he challenges 
 inquisition, according to the latitude of such a proceeding. The whole past is 
 unrolled by himself, and he cannot prevent the Senate from seeing it. By a 
 commanding rule of evidence it is all before us without any farther proof. You 
 cannot shut it out; yon cannot refuse to look at it. And yet we have been 
 seriously told that we must shut out from sight everything bat the technical 
 tre.spass. It only remains that, imitating the ostrich, we should thrust our 
 heads in the sand, and, not seeing danger, foolishly imagine it does not exist. 
 This may do at Nisi Prius; it will not do in the Senate. 
 
 To such extent has this ostrich pretension been carried, that vv^e have been 
 solemnly admonished at the bar, and the paradox has found voice in the Senate, 
 that we must judge the acts of Andrew Johnson "as if committed by George 
 Washington." Here is the paradox in its length and breadth. I deny it. I 
 scout it. On the contrary, I say that we must judge all these acts as if com- 
 mitted by Andrew Johnson, and nobody else. In other words, we must see 
 things as they are. As well insist that an act of guilt should be judged as the 
 mistake of innocence As well argue that the stab of the assassin should be 
 treated as the cut of the surgeon. 
 
 To the Apology of Good Intentions, I oppose all that long unbroken series of 
 transgressions, each with a voice to drown every pretext of innocence. I would 
 not repeat v/hat I have already said, but, in the presence of this apology, it is 
 ray duty to remind the Senate how the career of this offender is compounded of 
 falsehood and usurpation ; how, beginning with promises to make treason odious, 
 he soon installed it in authorit}'; how, from declared sympathy with Unionists, 
 wliite and black, he changed to be their persecator ; how in him are continued 
 the worst elements of slavery, an insensibility to right and a passion for power; 
 how in this spirit he usurped great prerogatives which did not belong to him; 
 how in the maintenance of this usurpation he stuck at nothing; how he violated 
 law ; how he abused the pardoning power ; how he prostituted the appointing 
 power; how he wielded the power of re:novaI to maintain his tyranny; how he 
 sacrificed the Freedmen's Bureau and lifted up the Whiskey Ring ; how he 
 patronized massacre and bloodshed, and gave a license to the Ku-Klux-Klan ; 
 how, in madness, he entered into conflict with Congress, contesting its riglitful 
 power over the reconstruction of the rebel States, and, Avhen Congress Avould 
 
27 
 
 not succumb to bis usurpation, bow be tbwaited and villified it, expectorating 
 foul-moutbed utterances, wbicli are a disgrace to bumau nature ; bow he so far 
 triumphed in his wickedness that in nine States no Union man is safe and no 
 murderer of a Union man can be punished ; and, lastly, for time fails, though 
 not the long list of transgressions, how be conspired against the patriot Secretary 
 of War, because be found in that adamantine character an obstacle to his revo- 
 lutionary career. And now, in the face of this terrible and indisputable record, 
 entering into and filling this impeachment, I bear a voice saying that we must 
 judge the acts in question " as if committed by George Washington." The 
 statement of this pretension is enbugh. I hand it over to the contempt it 
 deserves. 
 
 THE MOOT-COURT APOLOGY. 
 
 Kindred to the Apology of G-ood Intentions, or, perhaps, a rib out of its side, 
 is the Moot Court Apology, which pretends that the President, in removing Mr. 
 Stanton, only wished to make a case for the Supreme Court, and thus submit to 
 this tribunal the constitutionality of the tenure-of-office act. 
 
 By this pretension the Supreme Court is converted into a moot-court to sit in 
 judgment on acts of Congress, and the President becomes what, in the time of 
 Charles II, Roger North said good lawyers must be, a " put case." Even 
 assuming against the evidence that such was bis purpose, it is hard to treat it 
 without reprobation. The Supreme Court is not the arbiter of acts of Congress. 
 If tliis pretension ever found favor, it was from the partisans of slavery and 
 State rights, who, assured of the sympathy of the court, sought in this way to 
 complete an unjust triumph. The power claimed is tribunitial in character, being 
 nothing less than a veto. Its nearest parallel in history is in the ancient Justitia 
 of Arragon, which could set aside laws as unconstitutional. Our Constitution 
 leaves no doubt as to the proper functions of the Supreme Court. It may bear 
 and determine ''all cases in law and equifj' arising under the Constitution, the 
 laws of the United States, and the treaties made under their authority ;" but 
 this is all. Its business is to decide '' cases ;" not to sit in judgment on acts 
 of Congress and issue its tribunitial veto. If a " case" arises where a statute 
 is said to clash with the Constitution, it must be decided as any other case of 
 conflict of laws. But nothing within the just powers of the court can touch an 
 act of Congress, except incidentally, and then its judgment is binding only on 
 the parties. The incidental reason assigned, as, for instance, that a statute is 
 unconstitutional, does not bind anybody, not even the parties or the court itself. 
 Of course, this incidental reason cannot bind Congress. 
 
 On the evidence it is clear enough that the President bad no honest purpose 
 to make a case for the Supreme Court. He m.ay have talked about it, but he 
 was never in earnest. When asked by G-eneral Sherman " why the lawyers 
 .could not make a case," he said in reply that " it was found impossible, or that 
 a case could not be made up." And so at each stage we find him practically 
 discarding the idea. He issues the order of removal. Mr. Stanton disobeys. 
 Here Avas exactly bis opportunity. Instead of making the case by commencing 
 the proper process, he tells General Thomas to '■ go on and take possession of 
 the oflice;" and then, putting an end to this whole pretension of a case for the 
 court, he proceeds to treat the latter in every respect, whether of law or fact, as 
 Secretary, welcomes him to his cabinet, invites him to ])resent the business of 
 his department, and, so far from taking advantage of the opportunity he had 
 professed to desire, denies its existence. How could be inquire by what author- 
 ity Mr. Stanton assumed to hold the office of Secretary of War, when be denied, 
 in fact, that he was holding \t'( 
 
 Look a little further and you cannot fail to see the reason of this indifference. 
 The old writ of qyo ^oarranto was the only process by which a case could be 
 made; and this could be issued only at the suit of the Attorney General. Had 
 the President made an order of removal, the Secretary would have been com- 
 
28 
 
 pelled to hold only by virtue of the law and the Constitution. In answer to 
 the writ he woiald have pleaded this protection, and the court must have decided 
 the validity of the plea. Meanwhile he would have remained in office. Had he 
 left, the process would have failed, and there was no other process by which he 
 could raise the ([uestion. The decision of the Supreme Court in Wallace vs. 
 Anderson would prevent a resort to a quo ivarranto on his part, while the earlier 
 case of Alarha-ij vs. Madison v/ould shut him out from a viandanms. The 
 apologists have not suggested any other remedy. It is clear, therefore, that Mr. 
 Stanton's possession of the office v/as a sine qua non to a case in the Supreme 
 Court ; and that this could be only by quo warranto. The local attorney 
 employed by the President testifies that a judgment in such a case could not be 
 reached v/ithin a year. This was enough to make it impracticable; for, if com- 
 menced, it would leave the hated Secretary at his post for the remainder of the 
 presidential term. During the pendency of the proceeding Mr. Stanton would 
 continue the legitimate possessor of the office. Therefore the commencement of 
 a case would defeat the presidential passion for his instant removal. True to 
 his passion, he removed the Secretary, well knowing that in this way he pre- 
 vented a case for the court. 
 
 Against this conclusion, where all the testimony is harmonized, we have cer- 
 tain fruitless conversations with his cabinet, and an attempt to raise the ques- 
 tion on a habeas corpus after the arrest of Cleneral Thomas. The conversations, 
 whose exclusion has given a handle to the apologists, which they do not fail to 
 use, only show that the President had made this question a subject of talk, and 
 that, in the end, it was apparent that he could not make a case for the court so 
 as to remove Mr. Stanton during his term, and as this was his darling object 
 the whole idea was abandoned. The arrest of General Thomas seemed for a 
 moment to furnish another chance ; but it is enough to say of the futile attempt 
 at that time, that it was not only aftdr the removal of Mr. Stanton but after the 
 impeachment had been voted by the'House. 
 
 Had the President been in earnest, it was very easy for him to make a case 
 by proceeding against a simple postmaster; but this did not suit him. He was 
 in earnest only to remove Mr. Stanton. 
 
 Nothing is clearer than that this Moot Court Apology is a wretched pretension 
 and after-thought. It is the subterfuge of a criminal to cover up his crime — as 
 if a surgeon had committed murder and then set up the apology that it was an 
 experiment in science. 
 
 THE APOLOGY OF PREROGATIVE. 
 
 Then comes the Apology of Prerogative, being nothing less than the intolera- 
 ble pretension that the President can sit in judgment on acts of Congress, and, 
 in his discretion, refuse to execute them. This apology is in the nature uf a 
 claim of right. Let this be established, and instead of a government of laws,. 
 which is the glory of a republic, v/e have only tlie government of a single man. 
 Here is the one-man power with a vengeance. 
 
 Of course, if the President can sit in judgment on the tenure-of-office act, 
 and set it aside as unconstitutional, there is no act of Congress which he may 
 not treat in the same way. He may set aside the whole succession of statutes 
 for the government of the army ; and his interview with General Emory attests 
 his willingness to venture in that direction. In that spirit of oppression which 
 seems to govern him, he may set aside the great statute for the establishment of 
 civil rights without distinction of color. But why confine myself to instances? 
 The whole statute-book will be subject to his prerogative. Vain is the require- 
 ment of the Constitution that " the President shall take care that the lavi^s be 
 faithfully executed." Vain is that other requirement, that a bill, approved by 
 two-thirds of both houses over his veto, "shall become a law." His veto is 
 perpetual ; nor is it limited to any special enactment. It is as broad as the 
 
29 
 
 whole recorded legislation of the Republic. There is nothing which it cannot 
 hurry into that maelstrom engulfing all. 
 
 The President considers the statute unconstitutional, say the apologists. A 
 mistake in judgment on such a question is not an impeachable offence, add the 
 apologists. To which I reply, that it is not for a mistake in judgment but for 
 usurpation in undertaking to exercise his judgment at all on such a question 
 that he is impeached ; in other words, he is impeached for undertaking to set 
 aside a statute. Whether the statute is constitutional or not is immaterial in 
 this view. The President, after the statute has become a law, is not the person 
 to decide. 
 
 Ingenuity seeks to perplex the question by putting impossible cases. For 
 instance, suppose Congress should have lost its wits, so far as to enact, in direct 
 terms, that the President should not be Commander-in-chief of the army and navy, 
 or that he should nothave the power to grant pardons ; and suppose still further, 
 that Congress, in defiance of the positive text of the Constitution, should undertake 
 to create " titles of nobility," must not the President treat such enactments as 
 unconstitutional? Of course he must; but such instances do not help the pre- 
 rogative now claimed. Every such enactment would be on its face nnconstitu- 
 tional. It would be an act of unreasoning madness, which the President, as 
 well as the courts, must disregard as if it were plain nonsense. Its unconstitu- 
 tionality would be like an axiom, not to be questioned. No argument or author- 
 ity would be needed. It proves itself. Nor would the duty of disobedience be 
 less obligatory, even if the enactment had been sanctioned by the Supreme 
 Court; and it is not more violent for me to suppose it sanctioned by the 
 Supreme Court, than for the apologists to suppose it sanctioned by Congress. The 
 enactment would be a self-evident monstrosity, and therefore must be disobejed 
 as much as if one of the ten commandments were reversed, so that it should read, 
 " Thou shalt kill." Such extreme cases serve no good purpose. The Constitu- 
 tion is the supreme law of the land, and the people will not allow its axiomatic 
 requirements to be set aside. An illustration outside the limits of reason is of 
 no value. 
 
 In the cases supposed, the unconstitutionality of the enactment is axiomatic, 
 excluding opinion or argument. It is a matter of tact and not a matter of opin- 
 ion. When the case is one on which there are two sides or two different views, 
 it is then within the domain of argument. It is in no sense axiomatic. It is 
 no longer a matter of fact but a matter of opinion. When submitted to the 
 Supreme Court it is for their "opinion." Without occupying time with refine- 
 ments on this head. I content myself with asserting that the judgment of the 
 court must be a matter of opinion. One of the apologists has asserted that 
 such a judgment is a matter of fact, and, generally, that the constitutionality of 
 a statute is a matter of fact. I assert the contrary. When a bench of judges 
 stands five to four, shall we say that the majority declare a fact and the minority 
 declare an opinion ? 
 
 Assuming, then, what I think cannot be denied, that the constitutionality of 
 a statute is a matter of opinion, the question occurs, what opinion shall be 
 regarded for the time as decisive. Clearly the opinion of Congress must control 
 all executive officers, from the lowest to the President. According to a vener- 
 able maxim of jurisprudence, all public acts are presumed to be correct ; omnia 
 rite presumuntur. A statute must be presumed constitutional, unless on its face 
 the contrary; and no decision of any court is required in its favor. It is the 
 law of the land, and must be obeyed as such. The maxim which presumes 
 constitutionality is just as binding as the analogous maxim of the criminal law, 
 which presumes innocence. The President reversing all this has presumed the 
 statute unconstitutional, and acted accordingly. In the name of prerogative 
 he has set it aside. 
 
 The apologists have been driven to invoke the authority of President Jack- 
 son, who asserted for himself the power to judge the constitutionality of an act 
 
30 
 
 of Congress, which in the course of legislation required his approval, although 
 the question involved had been already adjudged by the Supreme Court. And 
 he was clearly right. The court itself would not be bound by its adjudication. 
 How could it constrain another branch of the government ? But Andrew Jack- 
 son never put forth the pretension that it was within his prerogative to nullify 
 a statute which had been passed over his veto in the way prescribed by the 
 Constitution. He was courageous, but there was no such unconstitutional 
 audacity in his life. 
 
 The apologists have also summoned to their aid those great instances where 
 conscientious citizens have refused obedience to unjust laws. Such was the case 
 of Hampden, Avho set an example for all time in refusing to pay ship money. 
 Such also was the case of many in our own country who spurned the fugitive 
 slave bill. These exalted characters, on their conscience, refused to obey the 
 law and suffered accordingly. The early Christians were required by imperial 
 mandate to strew grain on the altar of Jove. Though good citizens, they pre- 
 ferred to be martyrs. Such a refusal can be no apology for a President, who, 
 in the name of prerogative breaks the great oath which he has sworn to see 
 that the laws are faithfully executed. Rather do these instances, in their moral 
 grandeur, rebuke the offender. 
 
 Here I turn from this Apology of Prerogative, regretting that Icannot say 
 more to unfold its destructive character. If anything could aggravate the trans- 
 gressions of Andrew Johnson, stretching in long line from the beginning of his 
 administration, it would be the claim of right which he sets up. Under such 
 a claim the slenderest violation of law becomes a high crime and misdemeanor, 
 to be pursued and judged by an indignant people. The supremacy of the laws 
 must be preserved or the liberties of all will suffer. 
 
 8VVARM OF TECHNICALITIES AND (QUIBBLES 
 
 I now come upon that swarm of technicalities, devices, quirks, and quibbles, 
 which, from the beginning, have infested this great proceeding. It is hard to 
 speak of such things without giving utterance to a contempt not entirely par- 
 liamentary. To>a3r-^at they are petty and miserable is not enough. To say 
 that they are utterly imworthy of this historic occasion is to treat them politely. 
 They are nothing but parasitic insects, like " vermin gendered in a lion's mane; " 
 and they are so nimble and numerous that to deal with them as they skip about, 
 one must have the patience of the Italian peasant, vA\o catches and kills, one 
 by one, the diminutive animals that infest liis person. The public has not for- 
 gotten the exhibition of " industrious fleas." The Senate has witnessed the 
 kindred exhibition of " industrious quibbles." 
 
 I can give specimens only, and out of many I take one which can never be for- 
 gotten. Itwillbe found in the Opinion of the senator from West Virginia, (Mr. Van 
 Winkle,) which, from beginning to end, treats this impeachment as if it were a 
 prosecution for sheep-stealing in the police court of Wheeling, and brings to the 
 defence all the unhesitating resources of a well-trained criminal lawyer. This 
 famous Opinion, which is without a parallel in the annals of jurisprudence, must 
 always be admired as the marvel of technicality in a proceeding where techni- 
 cality should not intrude. It stands by itself, solitary in its originality. Other? 
 have been technical also, but the senator from West Virginia is nothing else. 
 Travelling from law point to law point, or rather seeing law point after law point 
 skip before him. at last he lights upon one of the largest dimensions, and this 
 he boldly seizes and presents to the Senate. 
 
 According to him there is no allegation in the articles, that the order for the 
 removal of Mr. Stanton was actually delivered to him, and, this being so, the 
 senator declares that " if there is evidence of a delivery to be found in the pro- 
 ceedings it cannot be applied to this article, in v/hich there is no charge or aver- 
 ment." And this is gravely uttered on this transcendent occasion, when an 
 
indignant people lias risen to demand judgment of a criminal luler. The article 
 alleges that the order was " unlawfully issued," and nobody doubts that its 
 delivery was proved ; but this is not enough, according to this senator. I chal- 
 lenge history for another instance of equal absurdity in legal pretension. The 
 case which approaches it the closest is the famous extravagance of the Crown law- 
 yer in the British Parliament, who, in reply to the argument of our fathers, that 
 they could not be taxed without representation, bravely insisted that they wer(^ 
 represented, and sustained himself by saying that, under the colonial charters, 
 the lands were held " in common socage as of the borough of Greenwich in 
 Kent," and, as Greenwich was represented in Parliament, therefore the colonies 
 were represented there. The pretension was perfect in form, but essentially 
 absurd. The senator from West Virginia has outdone even this climax of tech- 
 nicality. Other generations, as they read this great trial, with its accumulation 
 of transgressions ending in the removal of Mr. Stanton, will note Avith wonder 
 that a pri)icipal reason assigned for the verdict of not guilty was that there was 
 no allegation in the articles, that the order for the removal was actually received 
 by Mr. Stanton, although there was a distinct allegation that it was " unlav/fnlly 
 issued," and, in point of fact, it was in evidence that the order was received by 
 him, and no hum;in being, not even the technical seuator, imagined that it was 
 not. 
 
 There is another invention, which has in its support some of the ablest of the 
 apologists, like the senator from Iowa, (Mr. Grimes,) the senator from Maine, 
 (Mr. Fessenden,) and the senator from Illinois, (Mr. Trumbull.) It is said that 
 "as Mr. Stanton did not go out, therefore there was no removal ;" and therefore 
 Andrew Johnson is not guilty. If, on an occasion like the present, the authority 
 of names could change the uiu-eal into the real, then this pretension might have 
 weight. But it is impossible that anything so essentially frivolous should be 
 recognized in this proceeding. Such are the shifts of a cause to be defended 
 only by shifts. Clearly the offence of the President was in the order " unlaw- 
 fully issued," and this was complete the moment it was delivered. So far as 
 depended upon him, Mr. Stanton was renioved. This was the way in which 
 the country saw the transaction ; and this is the way in which it will be recorded 
 by history. 
 
 But these same apologists, with curious inconsistency, when they come to 
 consider the appointment of General Thomas, insist that there was a vacancy 
 in point of law, called by the senator from Maine a legal vacancy. If there 
 was such a vacancy, it was because there had been a removal in point of law. 
 There is no escape from this consequence. If there was a removal in point of 
 law, and there was uo right to make it, the President was guilty of a misde- 
 meanor in point of law and must take the consequences. 
 
 It would be unprofitable to follow these inventions further. From those know 
 all. In the face of presidential pretensions, inconsistent with constitutional 
 liberty, the apologists have contributed their efibrts to save the criminal by sub- 
 tleties, which can secure his acquittal in form only, as by a flaw in an indict- 
 ment, and they have done this, knowing that he will be left in power to assert 
 his prerogative, and that his acquittal will be a new letter of license. Nothing 
 which the skill of the lawyer could supply has been wanting. This learned 
 profession has lent to the criminal all the arts in which it excels, giving all to 
 him and forgetting the Republic. Every doubt, every scruple, every technicality, 
 every subtlety, every quibble has been arrayed on his side, when, by every 
 rule of reason and patriotism, all should have been arrayed on the side of our 
 country. The Public Safety, which is the supreme law, is now imperilled. Are 
 we not told by Biackstone that the law is always ready to catch at anything in 
 favor of liberty ? But these apologists " catch at anything " to save a usurper. 
 In the early days of the common law there were technicalities in abundance, but 
 these were for the maiat(;nauce of justice. On such was founded that extensive 
 
32 
 
 ac f;!/fiwi jurisdiction of tlie King's Bench, which gives occasion for the elegant 
 commentator to remark that, however startling these may be at first to the 
 student, " he will find thom, upon further consideration, to be highly beneficent 
 and useful." {BJaclistonc's Com., vol. Ill, p. 43.) But these generous fictions 
 for the sake of justice must not be confounded with the devices by which justice 
 is defeated. 
 
 The trick of the apologists has been this : by the stringent application of 
 technical rules to shut out all except the offences charged in the articles, and 
 then, when stress was laid upon these offences, to cry out that at most they 
 were only technical, and too trifling for impeachment. To satisfy lawyers the 
 House weakly declined to act on the bloody transgressions of two years ; but 
 they sought to provide against the future. Like the Roman ambassadors, they 
 traced a line about the offender, which he was not to pass except at his peril. 
 This was the line of law. At last he passed this line, openly, knowingly, defi- 
 antly, and now, that he is arraigned for this plain offence, we are told that it is 
 nothing, only a little technicality. One of the counsel at the bar, Mr. Groes- 
 beck, in a speech wliich sliowed how much feeling and talent could be given to 
 a wrong side, exclaimed : 
 
 It almost shocks uie to think that the President of the United States is to be dragged out 
 of otWce on these miserable little questions whether he could make an ad interim appoint 
 nient for a single day. 
 
 Only by excluding the whole context and all its antecedents could the ques- 
 tion be reduced to this trivial form ; and yet, even thus reduced, it involved 
 nothing less than the supremacy of the laws. 
 
 I know not how such a question can be called " trifling." Often a great cause 
 is presented on a narrow issue. Thus it was when English liberty was argued 
 on the claim of ship-money, which was a tax of a few shillings only. Behind 
 this question, called trifling by the kingly apologists of that day, loftily stood 
 the great cause of the People against Prerogative, being the same which is now 
 pending before the Senate. That other cause, on which at a later day hung 
 the destinies of this continent, was presented on a narrower issue still. There 
 was a tax of threepence a pound on tea, which our fathers refused to pay. But 
 behind this question, so trifling to the apologists of prerogative, as behind that 
 of ship-money, stood loftily the same great cause. The first cost Charles I 
 his head. The second cost George III his colonies. If such a question can be 
 disparaged as of small moment, then have the martyred dead in all times suffered 
 in vain ; then was the costly blood lavished for the suppression of our rebellion 
 an empty sacrifice. 
 
 Constantly Ave arc admonished that we must confine ourselves to the articles. 
 Senators express a pious horror at looking outside the articles, and insist upon 
 directing attention to these only. Here the senator from Maine is very strong. 
 It is the " specific offences charged " and these only that he can see. He will 
 not look at anything else, although spread upon the record of the Senate, and 
 filling the land with its accumuhated horrors. Of course such a system of 
 exclusion sacrifices justice, belittles this trial, and forgets that essential latitude 
 of inquiry which belongs to a political proceeding, having for its object Expul- 
 sion from Office only and not punisliment. It is easy by looking at an object 
 through the wrong end of an opera glass to find it dwarfed, contracted, and sol- 
 itary. This is not the way to look at nature ; nor is it the way to look at 
 Andrew Johnson. This great offender should be seen in the light of day ; pre- 
 cisely as he is; nor more, nor less; with nothing dwarfed; with no limits to 
 the vision, and with all the immense background of accumulated transgressions 
 filling the horizon as far as'the eye can reach. The sight might ache ; but how 
 else can justice be done? A senator who begins by turning these articles into 
 an inverted opera glass, takes the first step towards a judgment of acquittal. 
 Alas ! that the words of Burke are not true, when, asserting the comprehensive 
 character of impeachment, he denied that, under it, " they who have no hope in 
 
the justice of their cause can have any hope that by some subtleties of form, 
 some mode of pleading, by something, in short, different from the merits of the 
 case, they may prevail." {Bond's Trial of Hastings, vol. \, p. 11.) The 
 orator was right in thus indignantly dismissing all questions of pleading and all 
 subtleties of form. This proceeding is of substance and not of form. It is on 
 the merits only that it can be judged. Anything short of this is the sacrifice 
 of justice. 
 
 Such is the case of this enormous criminal. Events belonging to history, 
 enrolled in the records of the Senate, and familiar to the country, are deliber- 
 ately shut out from view, while we are treated to legal niceties without end. 
 The lawyers have made a painful record. Nothing ever occurred so much 
 calculated to bring the profession into disrepute ; for never before has been 
 such a theatre where lawyers were the actors. Their peculiarities have been 
 exhibited to the world. Here was a great question of justice appealing to the 
 highest sentiments and involving the best interests of the country — one of the 
 greatest questions of all time ; but the lawyers, in their instincts for the 
 dialectics of the profession, forgot that everlasting truth which cannot be 
 forgotten with impunity. They started at once in full cry. A quibble is to a 
 lawyer what Dr. Johnson says it was to Shakspeare : " He follows it at all adven- 
 tures ; it is sure to lead him out of the way; it has some malignant power over his 
 mind, and its fascinations are irresistible. A quibble is the golden apple for 
 which he will always turn aside from his career ; a quibble, poor and barren as 
 it is, gives him such delight that he is content to purchase it by the sacrifice of 
 reason, propriety, and truth." In this Shakspearian spirit our lawyers have 
 acted. They have pursued their quibbles with the ardor of the great dramatist : 
 and even now are chasing them through the Senate chamber. 
 
 Unhappily this is according to history, and our lawyers are not among the- 
 splendid exceptions. But there is a reward for those who stand firm. Who 
 does nothonor the exalted magistrate of France, the Chancellor L'Hospital, who 
 set such an example of rectitude and perfect justice ? Who does not honor those 
 lawyers of English history, through whose toils liberty was upheld ? There 
 was Selden, so wise and learned ; Pym, so grand in statesmanship ; Somers,. 
 who did so much to establish the best securities of the constitution. Nor can I 
 forget, at a later day, that greatest advocate, Erskine, who lent to the oppressed 
 his wonderful eloquence ; nor Mackintosh and Brougham, who carried into the 
 courts that enlarged intelligence and sympathetic nature which the profession 
 of the law could not constrain. These are among the names that have already 
 had their reward, above the artful crowd which in all times has come to the 
 defence of prerogative. It is no new thing that v/e witness now. The lawyer 
 in other days has been, as Ave know him, prone to the support of power and 
 ready with his technical reasons. Whichever side he takes he finds reasons, 
 plenty as pins. When free to choose and not hired, liis argument is the reflec- 
 tion of himself. All that he says is his own image. He takes sides on a law 
 point according to his sentiments. Cultured in the law, and with that aptitude 
 which is sharpened by its contests, too easily he finds a legal reason for an ille- 
 gal judgment. Next to an outright mercenary, give me a lawyer to betray a 
 great cause. The forms of law lend themselves to the betrayal. It is impos- 
 ible to forget that the v^orst pretensions of prerogative, no matter how collossal, 
 have been shouldered by the lawyers. It was they who carried ship-money 
 against the patriot exertions of Hampden ; and in our country it was they who 
 held up slavery in all its terrible pretensions from beginning to end. What is 
 sometimes called the legal mind of Massachusetts, my own honored State, bent 
 before the technical reasoning which justified the unutterable atrocities of the 
 fugitive slave bill, while the supreme court of the State adopted this crime 
 from the bench. Alas! that it should be so. When will lawyers and judges,, 
 see that nothing short of justice can stand ? 
 3 Sumner 
 
34 
 
 GUILTY ON ALL THE ARTULES. 
 
 After this survey it is easy for me to declare how I shall vote. My duty will 
 Toe to vote guilty on all the articles. If cousisteut with the rules of the Senate 
 I .should vote, " Guilty of all and infinitely more." 
 
 Not doubting that Mr. Stanton was protected by the tenure-of-office act, and 
 that he was believed to be so by the President, it is clear to me that the charges 
 in the first and second articles are sustained. These two articles go together. 
 I have already said in the course of this Opinion that the appointment of Gen- 
 eral Thomas as Secretary of War ad interim was without authority of law, 
 and under the circumstances a violation of the Constitution, Accordingly the 
 third article is sustained. 
 
 Then come what are called the conspiracy articles. Here also I am clear. 
 Plainly there was an agreement between the President and General Thomas to get 
 possession of the War Department, and to prevent Mr. Stanton from continuing 
 in office, and this embraced the control of the mails and property belonging to 
 the department, all of which was contrary to the tenure-of-office act. Intimi- 
 dation and threats were certainly used by one of the conspirators, and in the 
 case of conspiracy the acts of one are the acts of all. The evidence that force 
 was intended is considerable, and all this must be interpreted by the general 
 character of the offender, his menacing speeches, and the long series of trans- 
 gressions which preceded this conspiracy. I cannot doubt that the conspiracy 
 was to obtain possession of the War Department, peaceably if possible, forcibly 
 if necessary. As such it v/as a violation of law, worthy of the judgment of the 
 Senate. This disposes of the fourth, fifth, sixth, and seventh articles. 
 
 The eighth article charges that General Thomas Avas appointed to get the 
 control of the moneys appropriated fox the military service and the Department 
 of War. All this would be an incident to the control of the War Department, 
 In getting the control of the latter he would be able to wield the former. The 
 evidence applicable to the one is also applicable to the other. 
 
 The ninth article opens a different question. This charges a wicked purpose 
 to corrupt General Emory and draw him from his military duty. Not much 
 passed between the President and the General ; but it was enough to show that 
 the President was playing the part of lago. There was a hypocritical profes- 
 sion of regard for the Constitution, while he was betraying it. Here again his 
 past character explains his purpose, so as not to leave any reasonable doubt 
 with regard to it. 
 
 Then come the scandalous speeches, pi'oved as set forth in the articles, so that 
 even the senator from Virginia [Mr. Van WinkleJ must admit that the evidence 
 and the pleading concur. Here is no question of form. To my mind this is 
 one of the strongest articles. On this alone, without anything else, I should 
 deem it my duty to vote for ex})ulsion from office. A young lieutenant, at the 
 bottom of the ladder, if guilty of such things, would be "cashiered" at once. A 
 President, at the top of the ladder, with less excuse from the inexperience of early 
 life, and with greater responsibility from the elevation he had reached, should 
 be "cashiered " also ; and this is the object of impeachment. No person capa- 
 ble of such speeches should be allowed to govern this country. It is absurd to toler- 
 ate the idea. Besides being degraded, the country cannot be safe in such hands. 
 The speeches are a revelation of himself, not materially different fromiwell-known 
 incidents ; but they serve to exhibit him in his true character. They show 
 him to be unfit for the official trust he enjoys. They were the utterances of a 
 drunken man ; and yet it does not appear that he was drunk. Now it is accord- 
 ing to the precedents of our history that a person disqualified by drunkenness 
 shall be removed from office. This was the case of Pickering in 1804. But a 
 sober man, whose conduct suggests drunkenness, is as bad at least as if he were 
 
35 
 
 drunk. Is he not worse? If without the explanation of drunkenness he made- 
 such harangues, it seems to me that his unfitness for office becomes more evi- 
 dent, inasmuch as his deplorable condition is natural and not abnormal. The 
 drunken man has lucid intervals ; but where is the assurance of a lucid interval 
 for this perpetual offender ] Derangement is with him the normal condition. 
 
 It is astonishing to find that these infamous utterances, where ribaldry vies- 
 with blasphemy, have received a coat of varnish from the senator from Maine,. 
 [Mr. Fessendeu,] who pleads that they were not "official;" nor did they "vio- 
 late the Constitution, or any provision of the common or statute law, either in. 
 letter or spirit." In presence of such apologies for revolting indecencies, it is- 
 hard to preserve a proper calmness. Were they not uttered ? This is enough. 
 The drunkenness of Andrew Johnson, when he took his oath as Vice-President^ 
 "was not "official;" but who will say that it was not an impeachable offence ? 
 And who will say that these expectorations differ in vileness from that drunken- 
 ness 1 If they did not violate the Constitution pr any provision of the common 
 or statute law, as is apologetically alleged, I cannot doubt that they violated the 
 spirit of all laws. And then Ave are further i-eminded by the apologist of that 
 "freedom of speech " which is a constitutional right; and thus, in the name of 
 a great right, we arc to give a license to utterances that shock the moral sense, 
 and are a scandal to human nature. Spirit of John Milton ! who pleaded so 
 grandly for this great liberty, biit would not allow it to be confounded wnth 
 license, speak now to save this republic from the shame of surrender to an insuffer- 
 able pretension ! 
 
 The eleventh article is the most comprehensive of all. In some respects it is an 
 omnium gatherum. Here in one mass is what is contained in other articles, and 
 something else beside. Here is an allegation of a speech by the President in 
 which he denied that Congress was a Congress ; and then, in pursuance of this 
 denial, it is alleged that he attempted to prevent the execution of the tenure-of- 
 office act; also of an important clause in the army appropriation act ; and also 
 of the reconstruction act ; and then the evidence followed, sustaining completely 
 the allegation. The speech was made as set forth. The attempt to prevent the 
 execution of the tenure-of-office act, who can question ? The attempt to cor- 
 rupt General Emory is in evidence. The whole history of the country shows 
 how earnest the President has been to arrest the reconstruction act, and gener- 
 ally the congressional scheme of reconstruction. The removal of Mr. Stanton 
 was in order to be relieved of an impediment to his purpose. I accept this 
 article in gross ana in detail. It has been proved in all its parts. 
 
 CONCLUSIO.V. 
 
 In the judgment which I now deliver I cannot hesitate. To my vision the 
 path is clear as day. Never in history was there a great case moi-e free from 
 all just doubt. If Andrew Johnson is not guilty, then never was a political 
 offender guilty before ; and, if his acquittal is taken as a precedent, never can a 
 political offender be found guilty again. The proofs are mountainous. There- 
 fore, yoii aro now determining v/hether impeachment shall continue a beneficent 
 remedy in the Constitution, or be blotted out forever, and the country handed 
 over to the terrible process of revolution as its sole protection. If the milder 
 process cannot be made effective now, when will it ev^er be 1 Under what 
 influences ? On what proofs \ You wait for something. What ? Is it usur- 
 pation ] You have it before you, open, plain, insolent. Is it the abuse of dele- 
 gated power ? That, too, you have in this offender, hardly less broad than the 
 powers he has exercised. Is it the violation of law ? For more than two years 
 he has set your laws at defiance; and when Congress, by a special enactment, 
 strove to constrain him, he broke forth in rebellion against this constitutional 
 authority. Perhaps you ask still for something more. Is it a long catalogue 
 
36 
 
 of crime, where violence aud corruption alternate, while loyal men are sacrificed 
 and the rebellion is lifted to its feet 'I That also is here. 
 
 The apologists are prone to remind the Senate that they are acting viuder the 
 obligation of an oath. So are the rest of lis, even if we do not ostentatiously 
 declare it. By this oath, which is the same for all, Ave are sworn to do " impar- 
 tial justice." It is justice, and this justice must be impartial. There must be 
 no false weights and no exclusion of proper weights. Therefore, I cannot allow 
 the jargon of lawyers on mere questions of form to sway this judgment against 
 justice. Nor can I consent to shut out from view that long list of transgressions 
 explaining and coloring the final act of defiance. To do so is not to render impar- 
 tial justice, but to depart from this golden rule. The oath we have taken is 
 poorly kept if we forget the Public Safety in devices for the criminal. Above 
 all else, now and forever, is that justice wliich " holds the scales of right with 
 even hand." In this sacred name, and in the name also of country, that great 
 charity embracing so many other charities, I now make this final protest against 
 all questions of form at the expense of the Republic. 
 
 Something also has been said of the people, now watching our proceedings 
 with patriotic solicitude, and it has been proclaimed that they are wrong to 
 intrude their judgment. I do not think so. This is a political proceeding, 
 which the people at this moment are as competent to decide as the Senate. 
 They are the multitudinous jury, coming from no small vicinage, but from the 
 whole country ; for, on this impeachment, involving the Public Safety, the vicin- 
 age is the whole country. It is they who have sent us here, as their represen- 
 tatives, and in their name to consult for the common weal. In nothing can v/e 
 escape their judgment, least of all on a question like that now before us. It is 
 a mistake to suppose that the Senate only has heard the evidence. The jycoj^le 
 have heard it also, day by day, as it was delivered, and. have carefully consid- 
 ered the case on its merits, j^roperly disniissing all apologetic suhtleties. It will 
 be for them to review what has been done. They are above the Senate, aud 
 will " rejudge its justice." Thus it has been in other cases. The popular super- 
 stition, which long surrounded the Supreme Court, could not save this tribunal 
 from condemnation, amounting sometimes to execration, when, by an odious 
 judgment, it undertook to uphold slavery ; and down to this day Congress has 
 justly refused to place the bust of the Chief Justice, who pronounced this judg- 
 ment, in the hall of that tribunal where he presided so long. His predecessors 
 are all there in marble ; no marble of Taney is there. The present trial, like 
 that in the Supreme Court, is a battle with slavery. Acquittal is another Dred 
 Scott decisio?), and another chapter in the Barbarism of Slavery. How can sen- 
 ators, who are discharging a political function only, expect that the voice of the 
 people will be more tender for them than it was for a Chief Justice pronouncing 
 judgment from the bench of the Supreme Court, in the exercise of judicial power ? 
 His fate we know. Nor learning, nor private virtues, nor venerable years, could 
 save him from justice. In the great pillory of history he stands, and there he 
 must stand forever. 
 
 The people cannot witness with indifference the abandonment of tlie great 
 Secretary, who organized their armies against the rebellion and then organized 
 victory. Following him gratefully through the trials of the war, they found 
 new occasion for gratitude when he stood out aloiie against that wickedness 
 which was lifted to power on the pistol of an assassin. During these latter days, 
 while tyrannical prerogative invaded all, he has kept the bridge. When at a 
 similar crisis of English history Hampden stood out against the power of the 
 Crown, it is recorded by the contemporary historian, Clarendon, that " he became 
 the argument of all tongues ; every man inquiring who aud what he was, that 
 durst at his own charge support the liberty aud property of the kingdom and 
 rescue his country from being made a prey to the Court." Such things are also 
 said with equal force of our Secretary. Nor is it forgotten that the Senate, by 
 
37 
 
 tw^o solemn votes of more than two-thirds, has twice instructed him to stay at 
 the War Department, the President to the contrary notwithstanding. The 
 people will not easily understand on what principle of Constitution, law, or 
 morals, the Senate can twice instruct the [Secretary to stay, and then, by another 
 vote, deliberately surrender him a prey to presidential tyranny. Talk of a 
 somersault; talk of self-stultification ; are not both here? God save me from 
 participation in this disastrous wrong, and may He temper it kindly to our 
 aiflicted country. 
 
 For myself, I cannot despair of the Republic. It is a life-boat, which wind and 
 wave cannot sink; but it may suffer much and be beaten by storms. All this 
 I cleai-ly see before us, if you fail to displace an unfit commander, whose power 
 is a peril and a shame. 
 
 Alas ! for all the evil that must break upon the country, especially in the suf- 
 fering south, as it goes forth that this bad man is confirmed in the prerogatives 
 he has usurped. 
 
 Alas ! for that peace and reconciliation, the longing of good men, now post- 
 poned. 
 
 Alas! for that security, so important to all, as the only foundation on which 
 to build, politically or financially. This, too, is postponed. How can people 
 found a government or plant or buy, unless they are first secure 1 
 
 Alas ! for the Republic, degraded as never before, while the "Whiskey Ring 
 holds its orgy of corruption, and the Ku-Klux-Klan holds its orgy of blood ! 
 
 Alas ! for the hearts of the people, bruised to unutterable sadness, as they 
 witness a cruel tyranny installed once more ! 
 
 Alas ! for that race so long oppressed, but at last redeemed from bondage, now 
 plunged back into another hell of torment. 
 
 Alas ! for the fresh graves, which already begin to yawn, while violence, 
 armed with your verdict, goes forth, like another Fury, and murder is quickened 
 anew. 
 
 Alas ! for the Unionists, white and black alike, who have trusted to our flag. 
 You now offer them a sacrifice to those persecutors whose representative is before 
 you for judgment. They are the last in my thoughts, as I pronounce that vote 
 which is too feeble to save them from intolerable wrong and outrage. They are 
 fellow-citizens of a common country, brethren of a common humanity, two com- 
 manding titles, both strong against the deed. I send them at this terrible mo- 
 ment the sympathy and fellowship of a heart that suffers with them. So just a 
 cause cannot be lost. Meanwhile may they find in themselves, and in the good- 
 ness of an overruling Providence, that rescue and protection which the Senate 
 refuses to give. 
 
APPENDIX TO MR. SUMNER'S OPINION. 
 
 [In the course of this trial there was an important claim of power by the 
 Chief Justice, as presiding officer of the Senate, on which at the time Mr. Sum- 
 ner expressed his opinion to the Senate, when it withdrew for consultation. As 
 this claim was calculated in certain contingencies to affect the course of proceed- 
 ings, possibly the final judgment, and as it may hereafter be drawn into a pre- 
 cedent, Mr. Sumner has been unwilling to lose this opportunity of recording 
 his reasons against it. Therefore, to his Opinion on the merits, he annexes this 
 further Opinion on an incidental question in the proceedings.] 
 
 OPINION OF HON. CHARLES SUMNER, OF MASSACHUSETTS, ON THE QUES- 
 TION CAN THE CHIEF JUSTICE, PRESIDING IN TPIE SENATE, RULE OR 
 VOTE ? 
 
 In determining the relations of the Chief Justice to the trial of the President, 
 we must l6ok, first, to the Constitution ; for it is solely by virtue of the Con- 
 stitution that this eminent magistrate is transported from his own natural field 
 to another, where he is for the time an exotic. Of course, the Chief Justice in 
 his OAvn court is at home ; but it is equally clear that when he comes into the 
 Senate he is a stranger. Though justly received v/ith welcome and honor, he 
 cannot expect membership or anything beyond those powers which are derived 
 directly from the Constitution, by virtue of which he temporarily occupies the 
 chair. 
 
 Repairing to our authoritative text we find the only applicable words to be 
 these : 
 
 The Seuate shall have the sole power to try all impeachments. When the President of the 
 United States is tried, the Chief Justice shall preside ; and uo person shall be convicted with- 
 out the concurrence of two-thirds of the members present. 
 
 This is all. The Chief Justice ^hdll j^reside but this is subject to two limit- 
 ations specifically declared. First, the trial is to be by the Senate solehj, and 
 nobody else ; thus carefully excluding the presiding officer from all participa- 
 tion, except so far as is implied in the power to preside ; and secondly, judg- 
 ment of conviction can be only by a vote of "two-thirds of the members j)res- 
 ent,^' thus again excluding the presiding officer, unless it is assumed that he is a 
 member of the Senate. 
 
 On the face of this text it is difficult to find any ambiguity. Nobody ques- 
 tions that the Chief Justice must preside. Can anybody question that the trial 
 must be by the Senate solely, and nobody else .^ To change this requirement 
 is to fly in the face of the Constitution. Can anybody question that the judg- 
 ment of conviction mast be by the votes of ''' members present," and nobody 
 else? Now, smce the Chief Justice is not a "member" of the Senate, it is 
 plain that he is positively excluded from any vote on the final question. It 
 only remains that he should "preside." And here the question recurs as to the 
 meaning of this familiar term. 
 
 The person who presides is simply, according to the language of our rules, 
 "presiding officer," and this designation is the equivalent or synonym of 
 speaker, and also of prolocutor, each of which signifies somebody who speaks , 
 for the house. It is not implied that he votes with the house, much less that 
 he decides for the house, but only that he is the voice of the house — its speaker. 
 What the house has to say it says through him; but, except as the organ of 
 the house, he is silent, unless he be also a member, when he superadds to his 
 powers as presiding officer the powers of a member also. From this brief state- 
 ment it appears at once how limited his functions must be. 
 4 Sumner 
 
40 
 
 Here I might stop; but, since this question has assumed an unexpected 
 importance, I am induced to go further. It will be easy to show that the 
 language of the Constitution, if seen in the light of English parliamentary his- 
 \ tory, must have an interpretation identical with its natural import. • 
 
 Nothing is clearer than this. If language employed in the Constitution had 
 already, at the time of its formation, received a definite meaning, it must be 
 interpreted accordingly. Thus, when the Constitution secures the " trial by 
 jury," it secures that institution as defined by antecedent English law. So, 
 also, when it declares that the judicial power shall extend to "all cases in law 
 and equity" arising under the Constitution, it recognizes the distinction between 
 law and equity peculiar to English law. Courts of common law and courts of 
 equity are all implied in this language; and, since there is no further definition 
 of their powers, we must ascertain them in England. Cushing, in determining 
 the rules of proceeding in our American legislatures, says : 
 
 Such was the practice of tie two liouses of the British Parliauieut when our ancestors 
 eniigruted; and such has continued to be and now is the practice in tijut body. (Cushin<T, 
 Lex Parliamenlaria, see. 'M'2.) 
 
 This resource has been most persuasively presented by Mr. Wirt, in his 
 remarkable argument on the impeachment of Judge Peck, where he has vindi- 
 cated and expounded the true rule of interpretation. 
 
 According to this eminent authority, what he calls " the English archetypes" 
 were the models for the framers of our Constitution. The courts were fashioned 
 after these " archetypes." They were instituted according to " English originals, 
 to which they Avere manifestly referred by the Constitution itself." (Trial of 
 Peck, p. 499.) Here again I quote the words of Mr. Wirt. 
 
 All this is precisely applicable to that part of the Constitution now under 
 consideration. In its essential features it was borrowed from England. There 
 is its original, its model, its archetype. Therefore, to England we go. 
 
 Not only to England must we go, but also to parliamentary law, as recognized 
 in England at the adoption of our Constitution. The powers of a presiding 
 ofiicer, where not specifically declared, must be found in parliamentary law. 
 The very term j^rcside is parliamentary. It belongs to the technicalities of this 
 branch of law as much as indict belongs to the technicalities of the common 
 law. In determining the signification of this term it will be of little avail to 
 show some local usage, or, perhaps, some decision of a court. The usage or 
 decision of a Parliament must be shown. Against this all vague speculation or 
 divination of reason is futile. I will not encumber this discussion by superflu- 
 ous authorities. In now insisting that this question must be determined by 
 parliamentary law, I content myself with citing the often-cited words of Lord 
 Coke in his Fourth Institute : 
 
 And as every court of justice hath laws and customs for its direction, some by the common 
 ieiw, some by the civil and canon laws and customs, so the high court of Parliament suis 
 propriis legibus et consuetiidinibus snbsistit ; all weighty matters in any Parliament, moved 
 concerning the peers of the realm or lords or commons in Parliament assembled, ought to be 
 determined, adjudged, and discussed bij the court of Parliament, and not by the civil law, nor 
 yet by the common laws of this realm, used in more inferior'courts. (Coke, 4th Institute, 
 p. 15.) ■ 
 
 Here is the true rule. It is to " the course of Parliament" that we must 
 resort. It is in "the course of Parliament" that we must find all the powers 
 of a presiding ofiicer, and all that is implied in the authority fo jireside. " The 
 Chief Justice shall fresideT Such is the Constitution. Nothing is specified 
 with regard to his powers. Nothing is said. What was intended was left to 
 inference from the language employed, which must be interpreted according to 
 " the course of Parliament ;" precisely as what was intended by trial hy jury 
 is ascertained from the " common law." In the latter case we go to the " com- 
 mon law," in the former case we go to the " course of Parliament." You may 
 as well turn away from the common law in the one as from the " course of Par- 
 
41 
 
 liameut" ia the other. In determining the " course of Parliament" we may 
 resort to the summary of text-writers, and, better still, to the authentic instances 
 of history. 
 
 Something has been said in this discussion with regard to the example of 
 Lord Erskine, who presided at the impeachment of Lord Melville. This was 
 in 1806, during the short-lived ministry of Fox, when Erskine was chancellor. 
 It is by a misapprehension that this instance is supposed to sustain the present 
 assumptipux When seen in its true light it will be found to be in harmony with 
 what appears to be the general rule. Erskine had at the time two characters. 
 He was lord chancellor, and in this capacity was presiding officer of the House 
 of Lords, without the right to rule or vote or even to speak. Besides being 
 chancellor he was also a member of the House of Lords, with all the rights of 
 other members. It will be seen, as we advance in this inquiry, that, again and 
 again, it has been practically decided, that, whatever may be the powers of a 
 presiding officer, who is actually a member of the body, a presiding officer who 
 is not a member cannot rule or vote or even speak. In making this statement 
 now I anticipate the argument. I do it at this stage only to put aside the sug- 
 gestion founded on the instance of Lord Chancellor Erskine. 
 
 I begin with the most familiar authority — I mean the eminent writer and 
 judge. Sir "William Blackstone. In his Commentaries, where will be found, in 
 elegant form, the complete body of English law, you have this whole matter 
 stated in a few suggestive words : 
 
 The speaker of the House of Lords, if a lord of Parliament, may give his opinion or aro'ue 
 any question in the House. 
 
 Of course, if not a lord of Parliament, be could not give his opinion or argue 
 any question. This is in accordance with all the authorities and unbroken 
 usage : but it has peculiar value at this moment, because it is the text of Black- 
 stone. This work was the guide-book of our fathers. It first appeared in 
 17G5-'69, the very period when the controversy with the mother country was 
 fervid ; and it is an unquestionable fact of history that it was read in the colo- 
 nies with peculiar interest. Burke, in one of his masterly orations, portraying 
 the character of our fathers, says that more than one-half of the first edition of 
 Blackstone's Commentaries was bought by them. Nothing can be clearer than 
 that they knew it well. 
 
 The framers of the Constitution had it before them constantly. It was their 
 most familiar work. It was to them as Bowditch's Navigator is to the mariner 
 in our day. They looked to it for guidance on the sea they were traversing. 
 When they undertook to provide that the Chief Justice, who was not a member 
 of the Senate, should preside at the impeachment of the President, they knew 
 well that he could have no power " to give an opinion or argue any question in 
 the House ;" for Blackstone had instructed them explicitly on this head. They 
 knew that he was simply a presiding officer according to the immemorial usage 
 of the upper House in England, icith sucJi powers as belong to a jyresiding officer 
 who is not a rnember of the hotise, and none other. 
 
 The powers of the presiding officer of the House of Lords are illustrated by 
 authority and precedents, all in harmony with the statement of Blackstone. 
 Ordinarily the keeper of the great seal is the presiding officer ; but he can do 
 little more than put the question, unless he is a member of the body. Any other 
 person, as a chief justice, may be delegated by royal commission. According 
 to the rules of the house, even if he is a peer, he cannot speak without quitting 
 the woolsack, which is the chair, and going " to his own place as a peer." The 
 right of speech belongs to him as a member, but he cannot exercise it without 
 leaving his place as presiding officer. To this extent is he circumscribed. 
 
 A late writer on parliamentary law, whose work is a satisfactory guide, thus 
 sententiously sums up the law and usage : 
 
 The position of the speaker of the House of Lords is somewhat anomalous, for though he 
 is the president of a deliberative assembly, he is invested with no more authority than any 
 
42 
 
 other member ; and if not hiinsclf a inemhcr, his office is limited to the putting of questions 
 and other formal proceedings. (May, Parliamentiary Practice, p. 22(1, cbap. 7.) 
 
 This statement is in obvious harmony with that of Blackstone, so that there 
 is no difference between the writer v/ho is our guide to-day, and the learneil 
 commentator who was the guide of our fathers. 
 
 Mr. May goes still further, and lets us know that it is only as a member of 
 the house that the presiding officer can address it, ever' on jiomts of order. 
 
 Upon points of order the speaker, if a peer, may address the house, but as liis opinion is 
 liable to be questioned, lihe that of any other uicr, he does not often exercise the right. (P. 
 220.) 
 
 Thus, even if a peer — even if a member of the upper house — the presiding 
 officer cannot rale a point of order nor address the house upon it, except as any 
 other member ; and what lie says is open to question, like the utterance of any 
 other member. Such is the conclusion of the most approved English authority. 
 
 American writers on parliamentary law concur v.'ith the English. Gushing, 
 who has done so much to illustrate this whole subject, says of the presiding 
 officer of the lords that " he is invested witli no more authority for the preser- 
 vation of order than any other member, and if not a member, his office is limited 
 to the putting of questions and other formal proceedings ; if he is a peer, he 
 may address the house and participate in the debate as a member." He then 
 says again, " if a peer he votes w'ith the other members ; if not, he does not 
 vote at all y and he adds, "(here is no casting rote in the lords." (§ 2SS.) 
 This statement was made long after the adoption of the national Constitution, 
 and anterior to the present controversy. 
 
 There are occasions when the lords have a presiding officer, called a lord high 
 steward. This is on the trial of a peer, whether upon impeachment or indict- 
 ment. Here again we find the same rule stated by Edmund Burke, in his 
 masterly report to the House of Commons on the impeachment of Warren Has- 
 tings. These are his words : 
 
 Every peer present at the trial and every temporal ]>eer hath a right to be present in every 
 part of the proceeding, voteth upon every question of law and fact ; and the question is carried 
 by the major vote, the lord high stexcard himself voting merely as u peer and member of t/iat 
 court, in common icith the rest of the. peers, and in no other right. (Burke's Works, vol. 6, p. 
 512, Bohn's Edition.) 
 
 In another place the report, quoting the Commons' journal, says : 
 
 That the lord high steward was but as a speaker or chairman for the more orderly pn>- 
 ceeding at the trial. (Ibid., p. 515.) 
 
 In our day there have been instances where the lord chancellor sat as presiding 
 officer -Nvithoitt being a peer. Brougham took his seat on the 22d November, 
 1830, before his patent as a peer had been made out, and during this interval his 
 energies were suppressed while he was simply presiding officer and nothing else. 
 The same was the case with that emment lawyer. Sir Edward Sugden, who sat 
 as presiding officer on the 4th of March, 1852, although he was still a commoner ; 
 and it was also the case with Sir Frederick Thesiger, who sat as presiding officer 
 on the 1st March, 1858, although he was still a commoner. These instances attest 
 practically the prevalence of the early rule down to our day. Even Brougham, 
 who never shrank from speech or from the exercise of power, was constrained 
 to bend to its exigency. He sat as lord chancellor, and in that character put 
 the question ; but this was all until he became a member of the house. Lord 
 Campbell expressly records that, while his name appears in the entry of those 
 present on the 22d November, 1S30, as Henricus Broughain, Cancellarius, " he 
 had no right to debate and vote till the follovviug day," when the entry of his 
 name and office appears as Dominus Brougham ct Vaux, Cancellarius. 
 
 I pass from these examples of recent history and go back to the rule as known 
 to our fathers at the adoption of the Constitution. On this head ihe evidence 
 is complete. It will be found in the State Trials of England, in parliamentary 
 history, and in the books of law^, but it is nowhere better exhibited than in the 
 
43 
 
 Lives of the Chancellors, b}' Lord Campbeli, himself a member of the House 
 of Lords and a chasicellor, f;imilliar with it historically and practically. jEIe 
 has stated the original rule, and in his work, which is as interesting as volumi- 
 nous, has furnished constantly recurring illustrations of it. In the introduc- 
 tion to his Lives, where he describes the office of chancellor, Lord Campbell 
 enunciates the rule, which I give in his own words : 
 
 AYliether per or commoner, the Chaucellor is not, like the Speaker of the Commons, 
 moderator of the proceedings of the house in which he seems to preside. He is not addressed 
 in debate ; he does not name the peer who is to be heard. He, is not appealed to as an 
 authority on points of order, and he may cheer the sentiments expressed by his colleagues in 
 the ministry. (Campbell's Lives of Chancellors, vol. ], p. 17.) 
 
 The existing rules of the Senate have added to these powers ; but such is the 
 rule wPth regard to the presiding officer of the House of hords, even when a peer. 
 He is not appealed to on points of order. If a commoner, his power is still 
 less. 
 
 If he be a commoner, notwithstanding a resolution of the House that he is to be proceeded 
 against for any misconduct as if he were a peer, he has neither vote nor deliberative voice, and 
 he can only put the question, and communicate the resolutions of the House according to the 
 directions he receives. (Ibid.) 
 
 In the early period of English history the chancellors were often ecclesiastics, 
 though generally commoners. Fortescue, Wolsey, and More were never peertj. 
 This also was the case with Sir Nicholas Bacon, the father of Lord Bacon, who 
 held the seals under Queen Elizabeth for twenty years, and was the colleague iu 
 the cabinet of Burleigh. Lord Campbell thus remarks on his positio)i as pre- 
 siding officer of the House of Lords : 
 
 Not being a peer, he could not take a share in the Lords debutes, but presiding as Speaker on 
 the woolsack he exercised a considerable influence over their deiiberatious. (Ibid., vol. 2, p. 
 104.) 
 
 Then again we are told : 
 
 Being aconmioner, he could neither act as Lord Steward nor sit upon the trial of the 
 Duke of Norfolk, who was the first who suffered for favoring Mary's cause. (Ibid., p. 105.) 
 
 Thus early do we find an illustration of this rule, which constantly reappears 
 as we travel down the annals of Parliament. 
 
 The successor of Sir Nicholas Bacon was Lord Chancellor Bromley; and here 
 Ave find a record interesting to us at this moment. After presiding at the trial 
 of Mary, Queen of Scots, the lord chancellor became ill and took to his bed. 
 Under the circumstances Sir Edmund Anderson, chief justice of the common 
 pleas, was authorized by the Queen to act as a substitute for the chancellor, and 
 thus the chief justice became the presiding officer of the House of Lords to the 
 close of the session without being a peer. 
 
 Then came Sir Christopher Hatton, the favorite of Queen Elizabeth, and so 
 famous as the dancing chancellor, who presided in the House of Lords by vir- 
 tue of his office, but never as a peer. He v,-as followed by the exemplary 
 Ellesjnere, who was for many years chancellor without beluga peer, but finished 
 his career by adding to his title as presiding officer the functions of a member. 
 The greatest of all in the list now followed. After much effort and solicitation 
 Bacon becomes chancellor with a peerage ; but it is recorded in the Lords' 
 journals that when he spoke he removed " from the woolsack to his seat as a 
 peer," thus attesting that he hud no voice as presiding officer. At last, when 
 the corruptions of this remarkable character began to overshadow the land, the 
 chief jiistice of the King's Bench, Sir James Ley, was designated by the King 
 to act as Speaker of the House of Lords. Soon afterward Bacon fell. i\Iean- 
 while it is said that the chief justice had very creditably performed "the duties 
 of Speaker of the House of Lords." (Campbell's Lives of Chancellors, vol. 2, 
 p. 443.) In other words, according to the language of our Constitution, he had 
 jn'csided well. 
 
 Then came Coventry and Finch as lord keepers. As the latter absconded 
 
 '^W ' ^ 
 
44 
 
 to avoid impeaclimeut by tlie House of Commons Littleton, chief justice of the 
 common fleas, " was placed on tlie woolsack as Speaker." At a later time he 
 received tlie great seal as lord keeper. This promotion was followed by a 
 peerage, at the prompting of no less a pei'son than the Earl of Strafford, " who 
 thought he might be more useful if permitted to take part in the proceedings of 
 the House as a peer than if he could only put the question as Spea/ce?-." (Ibid., 
 vol. 2, p. 585.) Clarendon in his history says that, as a peer, he could have 
 done Strafford " notable service." (History of the Rebellion, book .3, p. 104.) 
 But the timid peer did not render the expected service. 
 
 Then came the period of civil war, when one great seal was with the King 
 and another was with Parliament. Meanwhile the Earl of ]\Ianchester was 
 appointed Speaker of the upper house, and as such took his place on the wool- 
 sack. As a peer he had all the privileges of a member of the house over which 
 he presided. Charles II, during his exile, had appointed Hyde, afterward Earl 
 of Clarendon, as chancellor ; but the monarch was for the time without a court 
 and without a Parliament. On the restoration in 1660 the chancellor at once 
 entered upon all his duties, judicial and parliamentary ; and it is recorded that, 
 " though still a commoner, he took his place on the woolsack as Speaker by pre- 
 scription." (Campbell's Lives, vol. 3, p. 187.) A year later the commoner 
 was raised to the peerage, thus becoming more than presiding officer. During 
 illness from the gout the place of the chancellor as presiding officer was some- 
 times supplied by Sir Orlando Bridgman, chief justice of the common pleas, 
 who, on these occasions, was presiding officer, and notiiing more. Lord Camp- 
 bell says " he frequently sat as Speaker in the House of Lords " — (Ibid., 279) — 
 which means that hejrrcsicled. < 
 
 On the disgrace of Lord Clarendon, the disposal of the great seal was the 
 occasion of perplexity. The historian informs us that " after many doubts and 
 conflicting plans among the King's male and female advisers it was put into the 
 hands of a grave common-law judge," (ibid., p. 272,) being none other than the 
 chief justice of the common pleas, Avho had already presided in the absence of 
 Lord Clarendon ; but he was never raised to the peerage. Here we have another 
 explanation of the precise relation of such an official to the House. Lord Camp- 
 bell expressly remarks that " never being created a peer, his only duty in the 
 House of Lords tvas to put the question, and to address the two houses in (^xplana- 
 tton of the royal will on the assembling of Parliament." (Ibid., p. 281.) Here 
 is the same recurring definition of the term jJi'csidc. 
 
 For some time afterward there seems to have been little embarrassment. 
 Nottingham, who did so much for equity; Shaftsbury, who did so little; Guil- 
 ford, so famous through contemporary biography, and Jeffries, so justly imfa- 
 raous — successively heads of the law — were all peers. But at the revolution of 
 1688 there was an interregnum, which brought into relief tlie relations between 
 the upper house and its presiding officer. Jeffries, on his flight, dropped the 
 great seal in the Thames. King James had gone. There was, therefore, no 
 presiding officer for the Lords. In order to supply this Avant, the Lords, at the 
 meeting of the Convention Parliament, chose one of their own number, the 
 Marquis of Halifax, as their Speaker, and, in the exercise of the power inherent 
 in them, they continued to re-elect him day by day. During this period he was 
 strictly President pro tempore. At last, Sir Robert Atkyns, chief baron of the 
 exchequer, a commoner, took his seat upon the woolsack as Speaker, appointed 
 by the Crown. Here, again, we learn that "serious inconvenience was 
 experienced from the occupier of the woolsack not being a memher of the House.'''' 
 (Ibid., vol. 4, p. 53 ) At last, in 1693, the great seal was handed to Sir John 
 Somers, lord keeper ; and here we have another authentic iHustratiou of the 
 rule. Although the official head of the English law, and already exalted for 
 his ability and varied knowledge, this great man, one of the saviors of constitu- 
 tional liberty in England, was for some time merely presiding officer. The his- 
 
 iV^t. 
 
45 
 
 torian records that " while he remainecl a comraonor lie presided on the woolsack 
 only as Speaker," (ibid., p. 118;) that he "had only to put the question, and 
 took no part in debate." (Ibid., p. 122.) This is the more worthy of notice 
 because Somers was recognized as a consummate orator. At last, according to 
 the historian, " there was a strong desire that he should take part in the debates ;" 
 and the King, to enable him to do this, pressed his acceptance of a peerage, which, 
 after some further delay, .he did, and he was afterward known as Lord Somers. 
 (Ibid., p. 125.) 
 
 In the vicissitudes of public life this great character was dismissed from office, 
 and a successor was found in an inferior person. Sir Matthew Wright, who was 
 created lord keeper without a peerage. For the five years of his official life it 
 is recorded that he occupied the woolsack, " merely putting the question, and, 
 having no influence over the proceedings.'''' (Ibid., p. 245.) Thus he presided. 
 
 Then came the polished Cowper, at first without a peerage, but after a short 
 time created a member of the House. Here again the historian records that 
 while he remained a coni'iioner ''he took his place on the woolsack as Speaker, 
 without a right to delate or vote.'" It appears that "not being permitted to share 
 in the debates of the House of Lords, he amused himself by taking notes of the 
 speeches on the opposite sides." (Ibid., pp. 304, 305.) Afterward, even when 
 a peer, and as chancellor, presiding at the impeachment of Sacheverell, Lord 
 Cowper did not interfere farther than by saying, " Gentlemen of the House of 
 Commons," or "Gentlemen, you that are counsel for the prisoner may proceed." 
 (Ibid., p. 318.) 
 
 Harcourt followed Cowper as keeper of the great seal, but he was not imme- 
 diately raised to the peerage. It is recorded that during one year he had " only 
 to sit as Speaker." (Ibid., p. 456.) That is, he had only to preside. After- 
 wards, as a peer, he became a member of the body. He was succeeded as chan- 
 cellor by the Earl of Macclesfield, with all the rights of membership. 
 
 Lord Macclesfield, being impeached of high crimes and misdemeanors as chan- 
 cellor. Sir Peter King, at the time ch'ief justice of the commnn pleas, ivas made 
 presid'mg officer of the upper house, with only the limited powers belonging to 
 a presiding officer, who is not a member of the body. Here the record is com- 
 plete. Turn to the trial and you will see it all. It Avas he who gave directions 
 to the managers, and also to the counsel ; who put the question, and afterward 
 pronounced the sentence ; but he acted always as presiding officer, and nothing 
 else. I do not perceive that he made any rulings during the progress of the trial. 
 He was chief justice of the common pleas, acting as president ^^ro tempore. 
 The report describing the opening of the proceedings says that -the articles of 
 impeachment, with the answer and replication, were read " by direction of Lord 
 Chief Justice King, speaker of the House of Lords." (Howell, State Trials, vol. 
 IG, p. 768.) This instance furnishes another definition of the term preside. 
 
 All this is compendiously described by Lord Campbell, as follows : 
 
 Sir Peter, not being a peer, of course had no deliberatice voice, but, during tlie trial, as the 
 organ of the house of peers, he regulated the procedure without any special vote, intima- 
 ting to the managers and to the counsel for the defendant when they were to speak and to 
 adduce their evidence. After the verdict of guilty, he ordered the Black Eod to produce his 
 prisoner at the bar ; and the speaker of the House of Commons having demanded judgment, 
 he, in good taste, abstaining from making any comment, dryly, but solemnly and impres- 
 sively pronounced the sentence which the house had agreed upon. (Campbell's Lives, vol. 
 4, p. 6U9.) 
 
 This proceeding was in 1725. At this time, Benjamin Franklin, the printer- 
 boy, was actually in London. It is difficult to imagine that this precocious 
 character, whose observation in public affairs was as remarkable as in philosophy, 
 should have passed 18 months in London at this very period without noting 
 this remarkable trial and the manner in which it was conducted. Thus, early 
 in life he saw that a chief justice might jyreside at an impeachment without being 
 a member of the House of Lords or exercising any of the powers which belong 
 to membership. 
 
46 
 
 Besides bis emineuce as a chief justice, King was the nephew of the great 
 thinker Avho has exercised such influence on English and American opinion, 
 John Locke. Shortly after presiding at the impeachment as chief justice he 
 became chancellor, with a peerage. 
 
 He was followed in his high post by Talbot and Hardwicke, each Avith a 
 peerage. Jumping the long period of their successful administrations, when 
 the presiding officer was also a member of the upper -house, I come to another 
 instance where the position of the presiding officer became peculiarly apparent ; 
 and this, too, occurred when Benjamin Franklin was on his protracted visit to 
 London as agent for the colonies. I refer to Sir Robert Henley, who became 
 lord keeper in 1757, without a peerage. The King, George II, did not like 
 him, and therefore, while placing him at the head of the law, declined to make 
 him a member of the house over which he was to preside. At last, in 1760, 
 the necessities of the public service constrained his elevation to the peerage, 
 and soon afterward George III, who succeeded to the throne without the ani- 
 mosities of his grandfather, created him chancellor and Earl of Northington. 
 
 For four years Henley, while still a commoner, was presiding officer of the 
 House of Lords. During this considerable period he was without a voice or vote. 
 The historian remarks that " if there had been any debates he was precluded 
 from taking part in them." (Campbell's Lives, vol. 4, p. ISS.) And then, again, 
 in another place, he pictures the defenceless condition of the unhappy magistrate 
 with regard to his ov/a decisions in the court below, when heard on appeal, as 
 follows : 
 
 Lord Keeper Heuley, till raised lo the peerage, used to complaiu bitterly of being obliged 
 to put the questiou for the reversal of his own decrees, without being permitted to say a 
 word in support of them. (Ibid., vol. 1, p. 17, note.) 
 
 Lord Eldon, in his Anecdote Book, furnishes another statement of this case, 
 as follows : 
 
 When Sir Robert Henley presided iu the House of Lords as lordjkeeper, he could not enter 
 into debate as a chancellor being a peer, does ; and, therefore, when tliere was an appeal 
 from his judgment in the court of chancery, and the law lords then in the liouse moved to 
 reverse his judgments, he could not state the grounds of his opinions and support his decisions. 
 (Twiss's Life of Eldon, vol. 1, p. 319.) 
 
 And thus for four years this commoner presided over the House of Lords. 
 
 A few months before Henley first took his place as presiding officer, Franklin 
 arrived in London for the second time, and continued there, a busy observer, 
 until after the judge was created a peer. Even if he had been ignorant of 
 parliamentary usage, or had forgotten what passed at the trial of Lord Maccles- 
 field, he could not have ftiiled to note that the House of Lords had for its pre- 
 siding officer an eminent judge, who, not being a member, could take no part in 
 its proceedings beyond putting the rjuestion. 
 
 Afterward, in 1790, there was a different arrangement. Owing to a difficulty 
 in finding a proper person as chancellor, the great seal was put in commission, 
 and Lord Mansfield, chief justice of England, was persuaded to act as presid- 
 ing officer of the upper house. Curiously enough, Franklin was again in 
 England, on his third visit, and remained through the service of Lord Mansfield 
 in this capacity. Thus this illustrous American, afterward a member of the 
 convention that framed the National Constitution, had, at two different times, 
 seen the House of Lords with a presiding officer who, not being a member of 
 the body, could only put the question, and then again with another presiding 
 officer, who, being a member of the body, could vote and speak, as well as put 
 the question. 
 
 But Franklin was not the only member of the national convention to whom 
 these precedents were known. One or more had been educated at the Temple 
 in London. Others v/ere accomplished lawyers, familiar with the courts of the 
 mother country. I have already mentioned that Blackstone's Commentaries, 
 
47 
 
 where the general rule is clearly stated, was as well known in the colonies as 
 in the mother country. Besides, our fathers were not ignorant of the history 
 of England, which, down to the Declaration of Independence, had been their 
 history. The English law was also theirs. Not a case in its books which 
 did not belong to them as well as to the frequenters of Westminster Hall. 
 The State Trials, involving principles of constitutional law, and embodying 
 these very precedents, were all known. Hargrave's collection, in several folios, 
 had already passed through at least four editions some time before the adoption 
 of our National Constitution. I cannot err in supposing that all these were 
 authoritative guides in our country at that time, and that the National Consti- 
 tution was fashioned in all the various lights, historical and judicial, which they 
 furnished. 
 
 The conclusion is irresistible, that when our fathers provided that on the 
 trial of the President of the United States "the Chief Justice shall 'preside''' 
 they used the term " preside " in the sense it had already acquired in parlia- 
 mentary law, and did not intend to attach to it any different signification ; that 
 they knew perfectly well the parliamentary distinction between a presiding offi- 
 cer a member of t!ie house and a presiding officer not a member ; that in consti- 
 tuting the Chief Justic presiding officer for a special temporary purpose they 
 had in view similar instances in the mother country, when the lord keeper, 
 chief justice, or other judicial personage had been appointed to " preside " over 
 the House of Lords, of which he was not a member, as our Chief Justice is 
 appointed to preside over the Senate, of which he is not a member; that they 
 found in this constantly recurring example an apt precedent for their guidance ; 
 that they followed this precedent to all intents and purposes, using, with regard 
 to the Chief Justice, the received parliamentary language, that he shall " pre- 
 side," and nothing more; that, according to this precedent, they never intended 
 to impart to the Chief Justice, president ino temjwre of the Senate, any other 
 powers than those of a presiding officer, not a member of the body ; and that 
 these powers, as exemplified in an unbroken series of instances extending over 
 centuries, under different kings and through various administrations, were simply 
 to put the question and to direct generally the conduct of business, without 
 undertaking in anyway, by voice or vote, todeteraiiiie any question preliminary, 
 interlocutory, or final. 
 
 In stating this conclusion I iiresent simplj^ the result of the authorities. It 
 is not I who speak; it is the authorities. My own judgment may be imperfect; 
 but here is a mass of testimony, concurring and cumulative, without a single 
 exception, which cannot err. 
 
 Plainly and unmistakably the provision in our Constitution authorizing the 
 Chief Justice to -jvcside in the Senate, of which he is not a member, was modelled 
 on the English original. This English original was, according to the language 
 of Mr. Wirt, the "archetype" which our fathers followed. As such it was 
 embodied in our Constitution as much as if the Constitution in its text expressly 
 provided that the Chief Justice, when pi-csiding in the Senate, had all the powers 
 accorded by parliamentary usage to such a functionary when presiding in the 
 upper house of Parliament, without being a member thereof. In saying that 
 he shall "preside" the Constitution confers on the Chief Justice no powers of 
 membership in the Senate, and by the Avell-defined term employed, limits him to 
 those precise functions sanctioned at the time by immemorial usage. 
 
 Thus far I have considered this provision in the light of authorities already 
 known and recognized at the adoption of the national Constitution. This is 
 enough ; for it is by these authorities that its meaning must be determined. You 
 cannot reject these without setting at defiance a fixed rule of interpretation, and 
 resorting instead to vague inference or mere imagination, quickened, perhaps, by 
 your desires. Mere imagination and vague inference — quickened, perhaps, by 
 your desires — are out of place when parliamentary law is beyond all question. 
 
48 
 
 Pardon me if I protract tliis argument by an additional illustration derived 
 from our own congressional history. This will be found under the parallel 
 provision of the Constitution relating to the Vice-President, which, after much 
 debate in another generation, received an authoritative interpretation. It is as 
 lollows : " The Vice-President of the United States shall be President of the 
 Senatc,\i\}X shall have no vote unless they be equally divided." In other words, 
 the Vice-President, like the Chief Justice, shall y;;-f'i/r^," in the .Se/?a/'e, but, unlike 
 the Chief Justice, Avith a casting vote. His general powers are all implied in 
 the provision that he shall preside. 
 
 No question has occurred with regard to the vote of the Vice-President, for 
 this is expressly regulated by the Constitution. But the other powers of the 
 Vice-President, when j>residing in the Senate, are left to parliamentary law and 
 express rules of the body. Some of the latter were settled at an early day. On 
 looking at the rules of the Senate adopted at the beginning it will be found that, 
 independent of his casting vote, nothing was originally recognized as belonging 
 to a presiding Vice-President beyond his power to occupy the chair. All else 
 was determined by the rules. For instance, senators, when speaking, are to 
 address the Chair. This rule, which seems to us so superfluous, was adopted IGth 
 April, 1789, early in the session of the first Congress, in order to change the 
 existing parlianKnitary law, under Avhich a member of the upper house of Parlia- 
 ment habitually addresses his associates, and never the Chair, Down to this 
 day, in England, a peer, rising to speak, says, " My Lords," and never " My 
 Lord Chancellor," although the latter presides. Another rule, adopted at the 
 same date, has a similar origin. By parliamentary law, in the upper house of 
 Parliament, when two members rise at the same time, the House, by tiieir cry, 
 indicate Avho shall speak. This was set aside by a positive rule of the Senate 
 that in such a case " the president shall name the person to speak." The parlia- 
 mentary law, that the presiding officer, whether a member or not a member, 
 shall put the question, was re-enforced by an express rule that "all questions 
 shall be put by the president of the Senate." 
 
 Although the rules originally provided that when a member is called to order 
 " the president shall determine whether he is in order or not," they failed to 
 declare by whom the call to order should be made. There was nothing conferring 
 this power upon the presiding officer, while, by parliamentary law in the upper 
 house of Parliament, no presiding officer, as such, could call to order, whatever 
 he might do as a member. The powers of the presiding officer in the Senate were 
 left in this uncertainty ; but the small numbers of senators and the prevailing 
 courtesy prevented trouble. At last, in the lapse of time, the numbers increased 
 and the debates assumed a more animated character. MeauAvhile, in 1825, Mr. 
 Calhoun became Vice-President. This ingenious person, severely logical, and 
 at the same time enjoying the confidence of the country to a rare degree, insisted 
 that, as a presiding officer, he had no power but to carry into effect the rules 
 adopted by the body, and that, therefore, in the absence of any rule on the 
 subject, he was not empowered to call a senator to order for words spoken in 
 debate. His conclusion was given as follows : 
 
 The ciiair had no po^ver beyond the rules of the Senate. It irould stand in the light of a 
 
 usurper ivcre it to attempt to exercise such a power. It was too high a power for the Chair. 
 
 ^ * * * Xhe Chair wouhl never assume any power not vested in 
 
 it; but would ever show firmness in exercising those powers that Vi'ere vested in the Ciiair. 
 
 (Congressional Debates, 18'2.5-'20, p. 759.) 
 
 The question Avith regard to the poAvers of the Chair Avas transferred from the 
 Senate chamber to the public press, where it Avas discussed Avith memorable 
 ability. An article in the National Intelligencer, under the signature of Patrick 
 Henry, attributed to John Quincy Adams, at the time President, assumed that 
 the poAvcrs of the Vice-President, in calling to order, Avere not derived from the 
 Senate, but that they came strictly from the Constitution itself, which authorizes 
 
49 
 
 him to preside, and that in their exercise the Vice-President was wholly inde- 
 pendent of the Senate. To this assumption Mr. Calhoun replied in two articles, 
 under the signature of Onslow, where he shows an ability not unworthy of 
 the eminent parliamentarian whose name he for the time adopted. The point 
 in issue was not unlike that now before us. It was insisted, on the one 
 side, that certain powers were inherent in the Vice-President as presiding 
 officer of the Senate, precisely as it is now insisted that certain powers are 
 inherent in the Chief Justice when he becomes presiding officer of the Senate. 
 Mr. Calhoun thus replied, in words applicable to the present occasion : 
 
 I affirm that, as a presiding officer, the Vice-President bas no inherent power whatever, 
 unless that of doing icliat the Senate may prescribe hy its rules he such a poiccr. There are, 
 indeed, inherent powers, but they are in the body and not in the officer. He is a mere agent 
 to exercise the will of the former. He can exercise no power which he does not hold by 
 delegation, express or implied. (Calhoun's Life and Speeches, p. 17.) 
 
 Then again he says, in reply to an illustration that had been employed : 
 
 There is not the least analogy between the rights and duties of a judge and those of a pre- 
 siding officer in a deliberative assembly. The analogy is altogether the other way. It is 
 between the court and the House. (Ibid., p. 20.) 
 
 It would be difficult to answer the reasoning of Mr. Calhoun. Unless all the 
 precedents, in unbroken series, are set aside, a presiding officer not a member of 
 the Senate has no inherent powers except to occupy the chair and to put the 
 question. All else must be derived from grant in the Constitution or in the 
 rules of the body. In the absence of any such grant we must be contented to 
 observe the mandates of the " Lex Parlia?nentaria." The objections of Mr. Cal- 
 houn brought to light the feeble powers of our presiding officer, and a remedy 
 was forthwith applied by an amendment of the rules, making it his duty to call 
 to order. Thus to his general power as presiding officer v/as superadded, by 
 express rule, a further power not existing by parliamentary lav/; and such is 
 the rule of the Senate at this day. 
 
 I turn away from this Vice-Presidential episode, contenting myself with 
 reminding you how clearly it shows that, independent of the rules of the Sen- 
 ate, the presiding officer as such had small powers ; that he could do very little 
 more than put the question and direct the Secretary ; and, in short, that our 
 fathers, in the interpretation of his powers, had tacitly recognized the time-hon- 
 ored and prevailing usage of Parliament, which in itself is a commanding law. 
 But a Chief Justice, when presiding in the Senate, is not less under this com- 
 manding law than the Vice-President. 
 
 Thus far I have confined myself to the parliamentary law governing the 
 Upper House of Parliament and of Congress. Further illustration may be 
 found in the position of the Speaker, whether in the House of Commons or the 
 Plouse of Representatives. Here there is one cardinal distinction to be noted 
 at the outset.' The Speaker is always a memher of the House, in which respect 
 he differs from the presiding officer of the upper house in either country. As 
 a m.ember he has a constituency which is rSpreseuted through him ; and here is 
 another difference. The presiding officer of the upper house has no constitu- 
 ency. Therefore his only duty is to preside, unless some other function be 
 supei-added by the constitution or the rules of the body. 
 
 All the authorities make the Speaker merely the organ of the House, except 
 so far as his representative capacity is recognized. In the Commons he can 
 vote only when the house is equally divided. In our House of Representatives 
 his name is sometimes called, although there is no tie ; but in each case he votes 
 in his representative capacity, and not as Speaker. In the time of Queen Eliza- 
 beth it was insisted that " because he was one out of our own number and not 
 a stranger, therefore he hath a voice." But Sir Walter Raleigh replied that 
 " the speaker -vvas foreclosed of his voice hy taking that place." (D'Ewes's Joui'- 
 nals, 683, 684.) The latter opinion, which has been since overruled, attests the 
 disposition at that early day to limit his powers. 
 
50 
 
 Gushing, in his elaborate work, brings together numerous illustrations under 
 this head Here is his own language containing the essence of all : 
 
 The presidiuo: officer, though entitled ou all occasions to be treated with the g^reatest atten- 
 tion and respect by the individual members, because the power and dignity and honor of the 
 assembly are officially embodied in his person, is yet but the seriiant of the House, to declare 
 \ts will and to obey implicitly all its commands. (Cushing's Lex Parliamentaria, sec. 294.) 
 
 The duties of a presiding officer are of such a nature, and require him to possess so entirely 
 and exclusively the confidence of the assembly, tliat, with certain exceptions, wliich will 
 presently be mentioned, lie is not allowed to exercise any other functions than those which 
 properly belong to his office; that is to say, he is excluded from submitting propositions to the 
 assembly, from participating in its dtiiberations, and from voting. (Ibid., section 300.) 
 
 •At an early day an English Speaker vividly characterized his relations to the 
 House when he describes himself as "one of themselves to be the mouth, and, 
 indeed, the servant of all the rest." (Hansard's Parliamentary History, vol. 2, 
 p. 535.) This character appears in the memorable incident when King Charles 
 in his madness entered the Commons, and going directly to the Speaker asked 
 for the five members he wished to arrest. Speaker Lenthall replied in ready 
 words, which reveal the function of the presiding officer: "May it please your 
 Majesty, I have neither eyes to see, nor tongue to speak, m this place, but as the 
 House is pleased to direct me, who.se servant I am here.'" (Hatsell, vol. 2, p. 
 242.) This reply was as good in law as in patriotism Different Avords were 
 employed by Sir William Scott, afterward Lord Stowell, when, in 1802, on 
 moving the election of Mr. Speaker Abbott, he declared that a Speaker must add 
 "to a jealous affection for the privileges of the House an awful sense of its duties." 
 (Hansard's Parliamentary History, vol. 36, p. 915.) But the early Speaker and 
 the great judge did not differ in substance. They both attest that the Speaker, 
 when in the chair, is only the organ of the House and nothing more. 
 
 Passing from the Speaker to the Clerk, we shall find still another illustration 
 showing that the word vrcside, under which the Chief Justice derives all his 
 powers, has received an authoritative interpretation in the Hules of the House 
 of Representatives, and the commentaries thereon. I cite from Barclay's Digest 
 the following suminary: 
 
 Under the authority contained in the manner and the usage of the House, the Cleric pre- 
 sided over its deliberations while there was no Speaker, but simply put questions and where 
 specially authorized preserved order, not, hoicevcr, undertaking to decide questions of order. 
 (Barclay's Digest, p. 44.) 
 
 In another place, after stating that in several Congresses there was a failure to 
 elect a Speaker for several days ; that in the twenty-sixth Congress there was a 
 failure for eleven days ; that in the thirty-first Congress there was a failure for 
 nearly a month ; that in the thirty-fourth and thirty-sixth Congresses, respect- 
 ively, there was a failure for not less than two months, the author says : 
 
 During the three last-named periods, while the House was without a Spe^iker, the Clerk 
 presided over its deliberations ; 7iut, however, exercising the functions of Speaker to the extent of 
 deciding questions of order, but, as in the case of other questions, putting them to the House 
 for its decision. (Page ]14.) 
 
 This limited power of the Clerk is thus described in a marginal note of the 
 author — " Clerk inesides.''' The author then proceeds to say : 
 
 To relieve future houses of some of the difficulties which grew out of the very limited power 
 of the Clerk as a presiding officer, the House of the thirty-sixth Congress adopted the present 
 14Gth and 147th rales, which provide that, ])ending tlie election of a Speaker, the Clerk shall 
 preserve order and decorum, and shall decide all (juestions of order that may arise, subject 
 to apjjeal to the House. (Page 114.) 
 
 From this impartial statement we have a j) radical (hJijiiiio7i of the word^;?'e- 
 sidc. It is difficult to see how it can have a different signification when it is 
 said in the Constitution " the Chief Justice shall ^;?r5/f7e." The Avord is the 
 same in the two cases, and it must have substantially the same meaning, whether 
 it concern a Clerk or a Chief Justice. Nobody ever supposed that a prcsidivg 
 Clerk could rule or vote. Can n. presiding Chief Justice? 
 
51 
 
 The claim of n ]7rcsiding Chief Justice becomes stili more questionable when 
 it is considered how positively the Constitution declares that the Senate " shall 
 have the sole power to try all impeachments," and, still further, that conviction 
 can be only by " the concurrence of two-thirds of the members present.^'' These 
 two provisions accoi'd powers to the Senate solely. If a presiding Chief Justice 
 can rule or vote, the Senate has not " the solo power to try ;" for ruling and 
 voting, even on interlocutory questions, may determine the trial. A vote to 
 postpone, to withdraw, even to adjourn, might, under peculiar circumstances, 
 exercise a decisive influence. A vote for a protracted adjournment might defeat 
 the trial. Notoriously such votes are among the devices of parliamentary oppo- 
 sition. In doing anything like this a presiding Chief Justice makes himself a 
 trier, and. if he votes on the final judgment, he makes himself a memher of the 
 Senate; but he cannot be either. 
 
 It is onl}' a casting vote that thus far the p/ esiding Chief Justice has assumed 
 to give. But he has the same power to vote always as to vote when the Senate 
 are equally divided. No such power in either case can be found in the Consti- 
 tution or in parliamentary law. By the Constitution he, presides and nothing 
 more, Avhile by parliamentary law there is no casting vote where the presiding 
 officer is not a member of the body. Nor does there seem to be an3' difference 
 between a casting vote on an interlocutory question and a casting vote on the 
 final question. The first is determined by a majority, and the latter by two- 
 thirds; but it has been decided in our country that " if the assembly on a divi- 
 sion stands exactly one-third to two-thirds there is the occasion for the giving 
 of a casting vote, because the presiding officer can then, by giving his vote, 
 decide the question either way." (Cushing, Lex Parliamentaria, section 306.) 
 This statement reveals still further how inconsistent is the claim of, the presiding 
 Chief Justice with the positive requirement of the Constitution. 
 
 I Avould not keep out of sight any consideration which seems in any quarter 
 to throw light on this claim ; and therefore I take time to mention an analogy 
 which has been invoked. The exceptional provision in the Constitution, under 
 which the Vice-President has a casting vote on ordinary occasions, is taken 
 from its place in another clause and applied to the Chief Justice. It is gravely 
 argued that the Chief Justice is a substitute for the Vice-President, and, as the 
 latter, by express grant, has a casting vote on ordinary occasions, therefore the 
 Chief Justice has such when presiding on an impeachment. To this argument 
 there are two obvious objections : first, there is no language giving any casting- 
 vote to the Chief Justice, and in the absence of express grant, it is impossible 
 to imply it in opposition to the prevailing rule of parliamentary law ; and, 
 secondly, it is by no means clear that the Vice-President has a casting vote 
 when called to preside on an impeachment. On ordinary occasions, in the 
 business of the Senate, the grant is explicit ; but it does not follow that this 
 grant can be extended to embrace an impeachment, in face of the positive pro- 
 visions of the Constitution, by which the power to Ir?/ and vote are confined to 
 senators. According to the undoubted rule of interpretation, ut res ?nagis valeat 
 quani pereat, the casting vote of the Vice-Pi-esident must be subject to this 
 curtailment. Therefore, if the Chief Justice is regarded as a substitute for the 
 Vice-President, it will be only to find himself again within the limitations of 
 the Constitution. 
 
 I cannot bring this survey to an end without an expression of deep regret that 
 I find myself constrained to differ from the Chief Justice. In faithful fellowship 
 for long years we have striven together for the establishment of liberty and 
 equality as a fundamental law of this republic. I know his fidelity and revere 
 his services, but not on this account can I hesitate the less when I find him 
 claiming for himself in this chamber an important power which, in my judg- 
 ment, is three times denied in the Constitution : first, when it is declared that 
 the Senate alone shall try impeachments ; secondly, when it is declared that 
 
52 
 
 members only sliall convict; and, thirdly, when it is declared that the Chief 
 Justice $ha\\ 2>r€sidc, and nothing more, thus conferring upon him those powers 
 only which by parliamentary law belong to a presiding officer not a member 
 of the body. In the face of such a claim, so entirely without example, and of 
 such possible consequences, I cannot be silent. Reluctantly and painfully I 
 offer this respectful protest. 
 
 There is a familiar saying of jurisprudence, that it is the part of a good judge 
 to amplify his jurisdiction ; Boni judicis est. ampliare jurisdictionem. This 
 maxim, borrowed from the horn-books, was originally established for the sake 
 of justice and humanity, that they might not fail ; but it has never been extended 
 to otlier exercises of authority. On the contrary, all accepted maxims are 
 against such assumption in other cases. Never has it been said that it is the part 
 of a good presiding officer to amplify his power ; and there is at least one obvious 
 reason — a pi'esiding officer is only an agent, acting always in the presence of 
 h\s jfrhicipal. Whatever may be the promptings of the present moment, such 
 an amplification can find no sanction in the Constitution or in that parliamentary 
 law from which there is no appeal. 
 
 Thus, which way soever we turn, whether to the Constitution or to parlia- 
 mentary law, as illustrated in England or the United States, we are brought 
 to conclude that the Chief Justice in the Senate chamber is not in any respect 
 Chief Justice, but only presiding officer; th'it he has no judicial powers, or, in 
 other words, powers to try, but only the powers of a presiding officer, not a 
 member of the body. According to the injunction of the Constitution, he can 
 jncsidc — "the Chief Justice shall ^re^zVZc; " but this is all, unless other powers 
 are superadded by the concession of the Senate, subject always to the constitu- 
 tional limitation that the Senate alone can try, and, therefore, alone can rule or 
 vote on questions which enter into the trial. The function of a presiding officer 
 may be limited, but it must not be disparaged. For a succession of generations 
 great men in the law, chancellors and chief justices, have not disdained to 
 discharge it. Out of the long and famous list I mention one name of sur- 
 passing authority. Somers, the illustrious defender of constitutional liberty, 
 unequalled in debate as in judgment, exercised this limited function without 
 claiming other power. He was satisfied to jncside. Such an example is not 
 unworthy of us. If the present question could be determined by sentiments of 
 personal regard, I should gladly say that our Chief Justice is needed to the 
 Senate more than the Senate is needed to him. But the Constitution, which 
 has regulated the duties of all, leaves to us no alternative. We are the Senate ; 
 he is the presiding officer ; although, whether in the court-room or the Senate 
 chamber, he is always the most exalted servant of the law. This character he 
 cannot lose by any change of seat. As such he lends to this historic occasion 
 the dignity of his presence and the authority of his example. Sitting in that 
 chair, he can do much to smooth the course of business, and to fill the chamber 
 with the spirit of justice. Under the rules of the Senate he can become its 
 organ, but nothing more. 
 
 LBAp'05