The New York Herald Newspaper, May 5, 1868, Page 3

IMPEACHMENT, “tial of President Andrew Johnson for Mr. Bingham’s Closing Argu- ment for the Prosecution. A Radical’s Definition of the Judiciary’s Power. THE PRESIDENT’S ACQUITTAL CERTAIN. Senator Fessenden Heads a Rebellion in the Radical Ranks. A New Party, With Chase at the Head. Demoralization of the Radicals in Washington. WASHINGTON, May 4, 1868, Imercsting Newe—President Johnson's Acquit- tal Certain—Senator Fessenden Prepares an Argument Agalast Conviction. Oertain facts have come to light to-day which set- ‘Me beyond doubt the result of the impeachment trial, and which show that the President will surely be ac- quitted. Senator Fessenden, who has all along been suspected by the radicals as doubtful, has, to use the language of a radicat Senator, ‘‘gone clean over to the enemy.” He has prepared an elaborate legal Opinion, covering some twenty-five foolscap pages, on the first three articles of impeachment. ‘Phe substance of this opinion is that he does not think the evidence produced before the Senate by the Managers sufficient to establish the charges at- Jeged against the President in these articles, and he will therefore be compelled to vote for his acquittal mn them. Senator Morrill, the colleague of Mr. Fes- senden, hearing of this, prepared an opinion on the ‘other side, which he took to Mr. Fessenden’s rooms ‘and read to him, with a view of meeting his objec- tions. Mr. Feasenden, after hearing Mr. Morrill’s argument, said he was not convinced, and saw BO reason to change his views as set forth in the opinion he had prepared. He further signitied to Mr, Morrill that he did not think the President could be Justly convicted on any of the articles brought to ‘the bar of the Senate by the Managers. Several other republican Senators here have prepared simi- lar opinions to that of Mr. Fessenden, Senator ‘Grimes stated openly to-day that he had neither seen Dor heard anything so far that would justify him in voting for conviction, and at the close of Mr. Bing- am’s speech to-day he expressed his opinion that it ‘Was as good an argument as he had heard for the President. It is conceded by the most radical members @f the Senate and House that Mr. Fessenden will carry ‘with him enough republican Senutors to acquit the President by a handsome majority. In view of this ‘Rew development there ts fearful demoralization in im the ranks of the ‘republicans to-night. They virtually give up the case. Many of them openly eccuse Mr. Fessenden, and those who it is known will act with him, with having been bought. In addition to mr. Morrill, several of the Maine delegation in the House have been to sce Fes- senden, but they report him to be inexorable and have finally given him up. Various causes are as- signed’ by the Radicals for Fessenden’s course. One story is to the effect that a new party is to be forined, of which Chase will be the head, and in which Fes- genden, Grimes, Henderson, Trumbull, Anthony and others will be the shining lights. This party will, it {9 said, nominate Chase for the Presidency on what ‘will be called the “people's ticket,” and run him aguinst Grant. I have received these facts ata late Donr, and have no chance to verify them to acer- tainty, but they seem to come from a reliable source. @Opening of Manager Bingham’s Argument— The French Minister on Innpeachment—tte Does Not Believe the President Will Be Removed—Threatcning Notices to Repub- Mean Senators Who Won’t Perjure Them- selves—Probabilities of Conviction or Ac- quittal. a ‘The Court looked as full and fine to-day as it has since the beginning of the trial, Manager Bingha came to time promptly, dressed with unusual ne ess and cleanly shaved, He started out well, sj ing extemporely, and growing pathetic ever 2 anon, so much so a8 to make scveral sympathen® ladies in the galleries weep. He talked in a circ: till four o’clock, his only pomt being that the Pres: dent attempted a judicial interpretation of the laws of Congress, and this point he varied with wondertui skill of language, prescuting it over fifty times tn Gifty different suits. “The other morning a “solitary individual, James, the novelist, would say, might have bee siowly wending his way through one of the stre of this city. His manner was thatof one absorbe in deep thonght, His hands were behind his and his eyes were on the ground as he slowly moved on his way. A window was suddenly raised as Huis solitary footman passed along, and a voice witha strong French accent might have beon heard. “Good morning, mon ami,” said the gentieman ‘with the French acceut to the solitary footman. “Good morning,” answered the litter, stopping and bowing very graciously, “What's the news to day!’ said the gentleman at the window. “Don’t hear much. What have you strange your- self? You have better opportunities for getting news than I,” returned the solitary footman. “Tcan only tell you one thing, ant you can be sure of it; your President is not going to be im- peached. That is certain. Good morning,” replied the Frenchman. “Good morning—good morning,” and down went ‘the window, while off walked tie absorbed pedes- trian, The incident without explanation would doubt seem insignificant; but when I state that the gentie- man at the window was no less # personage than Mons. Berthemy, the French Minister, perhaps it ‘will not be considered so trifling after all. “But why should the French Minister know about ak- ae seen ts impeachment more than anybody else’ some people will naturally ask, and 1 will tell. Berthemy, though apparently a very easy going man, ts said to understand the knack of keeping himself posted better thav any other foreign Minister. He always knows the news, and can tell pretty shrewdly whenever anything unusual is about to happen in the social, political or diplomatic cir- cles, He makes it his business to post his govern- ment, and this is the reason why he should know something about the result of this impeachment trial, which #0 puzzies people in general and about the isene of which so much uncertainty ts felt. Foreign goveruments feel a deep interest in the mat- ter, aud receive bints and pointa from their repre- sentatives here by every Mail, The fact, therefore, of the French Minister stating so positively “Your NEW YORK HERALD, Twas about to exclaim, ‘How strange it would be if, after all the time, trouble, expense, buncombe, vituperation, quibbling and acres of small talk, this impeachment plot should really end in smoke and leave that great criminal, A, J. the Second, again master of the situation!” But strange is not the proper word to use, for in such an application it woule imply @ doubt as to the propriety of a judgment of acquittal. What I mean is, how surprising it would be to find all the Senators, notwithstanding threats, intimida- tons, scoldings and proposed assassinations, voting according to their oaths and consciences and not 10 Please radical autocrats, like the indomitable Thad- deus, of Lancaster, or would-be dictators, but very small “potaters,” likeséhe publisher of “my two papers, both daily.” What an upsetting of planus uiere would be, to be sure! What a shattering of hopes and ambitious aspirations! What a legion of disappointed office hunters would be left to weep and wail and curse Andrew Johnson, Sehators, Managers and everybody else mstrumental in raising sanguine expectations only to blast them! Whatua fine opportunity blutf Old Ben Wade would have to chew the cud of bitter fancy and ponder over the truthful saying that “hope deferred maketh the heart sick!” Verily, there will be asad time indeed should Andrew Johuson, in the wisdom and forbearance of the Senate, be permitted quietly to serve out the balance of his or Lincoln’s term (whichever you may choose to cailitj), and not be condemned to removal and disqualification for the high crimes and misde- meanors so verbosely charged against him by the windy Managers, But 1am not predicting that this will be the result, for I confess I have been unable to form a fixed opinion on the subject since the second week of the trial, | merely present you with what can be gathered from all quarters, leaving the infer- ence to be drawn by your readers. It is unmistakably the opinion of numbers of peo- ple that conviction is certain, This is particularly the case among radical politicians. Ask one of them what he thinks and he will. answer:—* Pshaw ! Think! I have only had one opinion from the start, and that has been daily strengthened—that the President will be removed. The Senate must con- vict; it cannot go back on the House.” Going back on the House, translated freely, means that the radical Senators dare not oppose their weak wills to the superior genius of Butier, Boutwell, Stevens and men of that stamp, who have clam- ored so loudly for impeachment for year and who have defied the Senate so impude: ly and arrogantly to dare sequit Andrew Johnson, guilty or not guilty, butler and Stevens have not attempted to resirain their pugnacious tendercy to anti-impeachment Senators; they have given ‘full vent to their feelings in and out of the High Court. Butler continually attempted to buily both the Chief Justice and ring the trial, and Stevens had the har pugn the honesty of one of them (Doolittic, off Wisconsin) in his sin; Yr aren. ment for the prosecution, Some of the Senators have been syrved with threatening notices, and warned to obnyict on pain of political destruction, aud even assassination, There is not a particle of ex. aggeration in this statement. Fessenden, Powler, Ross and Van Winkle known t been served respectively with from three to ten no- tices breathing the most divefal threats of assassina- tion if they tail to do radical Carbonari—nain ove vote squat Pp ters have come from Pennsylvania, from York and R ing and other places, and are supposed to be the work of some mem- bers of that exemplary body, the Loyal League. These notices, of course, have had uo effect upon men like Grimes, Fessenden aud the others mentioned, who lave resolved to vote conscientiously, and not to please the progressive firm of ©o., who frankly confess thems: that old fashioned instrument, the constitution, Bat though it has not caused them to trembie or hesitate in their duty, it has filled them with an intense dis- gust for the men who prefer dishonor with party suc- cess to justice even with the wreck of the great par- ty of moral ideas. Libtak it pretty sate toassume that the five Senaiors I have named, to wit—Fessenden, Grimes, Fowler, Ross and Van Winkle—will not be found on the side of conviction when the time for voting arrives, however other Senators may vote and in spite of whatever pressure may be empioyed to induce them to go the way Thaddeus and ber min would lead them. It is true that this will only swell the number for acquittal to seventeen in all, but there are so many doubiful, like Sherman, Trumbuil, Frelingimysen, Henderson and Anthony, that it realiy does seem as though the required additional two votes can be counted ou with probability at least. How can Sherman vote for conviction consistent with the record he has made—a record which shows that at the time of the Pp of the civil tenure bill he believed Stanton’s was not within its provisions, and further that it was not to be supposed any honorable man would con- tinue in a Cabinet after the politest hint that his services were ho longer required’ How can the just Anthony, the logical Trumbull or the upright Fre- linghuysen and Henderson permit themselves to be dragooned into the commission of a great crime by voting against what must be their convictions—to wit, that the President has done nothing deserving removal from ofice, however undignified, indiscreet or headstrong he may have stiown hitmselry But will it not be asad thing, after all the folly of this impeachment, after the demonstration of its uiter want of constitutional pretext or cause, after the powerfal exposure of its weakness by th polished argoments of Curtis, Evarts and Groesbeck, and after the evident dishonesty of some of its pro- dmoters, to see all the radical Senators placing theni- selves on the roll of infumy by voting for the re- moval of Andrew Johnson? How much nobler and better for them to show themselves faithful to their oaths as iinpartial judges. How much more ad- vantageous to them, even in @ political point of view, to range’themselves unanimously on the side of jus Uce and acquittal. For I am among those wao believe that they wonid gain more by proving them- mas weil as ig to the revolutionary spirit ny a fleeting triumph of mere seives pure and disinterested states s than pane MINGS OF TILE COURT, Thirtte hb Day. UNITED STATES SENATE Crasmen, WASHINGTON, Muy 4, E808. f PROCE The gaileries were filed at noon, and ¢ Chief Justice had taken his seat the menbe House of Representatives entered the chamber in greater force than they have yet appeared in since the first week of the trial. ARGUMENT OF MANJ BINGHAM. Mr. BIN@AM then began his address. He said he yught to the discussion of this great question ao ng of resentment. He did his‘duty in the Interest f of the people of the United: States, in the interest of the Jaws and of te constitution. ‘The sn- premacy of the jawa had been outraged, and an atiempt was beiug made to justify and do- fend that violation, At the close of the war th word went forth to the country and to the worid that the Ainerican republic Was saved—saved ty thy valor, patriotism and self-sacriiice of the people; saved for all tine to come, and ready to go forward in its great mission of freede At this period an assassiif's hand took away the life of the Chict Magis. trate, and Andrew Johason came into the exercise of the executive power. He took an oath to uphold and defend the laws of the republic, and the ques. tion was now before the Senate of the United States how thig man had fulfilled his trust. If he had failed in™his duty he was just as amenable to the laws as the humblest man in the community. Whatever laws were made in conformity with the constitution were supreme over every ofiicer of the government until they were repealed or changed the whole people of the United States. Washing- ton, the first and foremost of his countrymen, de clared jaws made in accordance with the constitu. tion incumbent on him, Statements were made here by the counsel for the President of the most fagrant audacity he had ever heard in eourt of justice, Uiat the Execative can interpret laws for himself and deciare those null and void Which do not agree with his judgment. They assert, and he wished it was burned into the brains of Senators, that the Prest- dent can decide laws judicially for himself. He re- eS submitted that the constitution which they had been taught to believe waa the sacred charter of their liberties was now @ constitution of cokes f and ruin, which countenanced every violation of law, and shielded the violator from jus- tice. They (the counsel) might try to screen ‘the President from the criminality of his but the issue now before the Senate was, whether he can de- cide and anual the constitution afd the laws of this . He assumed to himself as an Executive prerogrative, to interpret for himself and execute or disregard at his discretion either te constitution or laws of the United States, The man who does n understand this as the issue has been denied by Almighty the use of that intellectual facuity whieh we caij reason, The Senate, having the sole power to try impeachment, must be vested by the constitution with all tha power to Investigate every issue of law and efiect bearing on the ease; yet it has been the endeavor here to prove that gentleman from New York th it the o way to make his immortal was to make it eternal, Continutug, Bingham said:—What becomes of his long drawn out sentences here about the right of the accused and guilty man who stands this day clothed with perjury as with a garment in the presence of the PY ogcagg to be tried, first m the Supreme Court United States, before the Senate shall proceed to trial and judgmeuty Sena- tors, the people of the United States, through their representatives In Congress assembled, have made provisions for such unfortunates as, not able to take care of themselves, cross the crown of youder green hill where they can be cared for (alluding to the National Insane Asylum). ‘The Senate is vested with the sole and exclusive power to Uy this question, and the Supreme Court of the United States has no more power to imtervene or to have judgment of the premises than. has tie Court of St. Petersburg. The peopte of the United States, I hesitate not to say, will hold, nevertheless, Clear and manifest as this proposition is, it has been insisted upon here, from the opens of this defence to the close, by all th sel whi have participated in this Supreme Court is the final arbiter vis all questions arising under the constitution, I do not state the proposition too broadly, Senators; my occu- pations have beea of such a nature since the com- mencement of the trial to this hour that I have relied more upon my memory of what counsel said than upon “any reading which I have give luminous and endless arguments in ¢ accused, but [ venture to say that the propo: hot more broadly sted by me than it lade boven stated by them, Tsudmitto the Senate that there may be many questions arising under the const.tu- tion, which by no possibility can be considered as original questions either in the Supreme Court or in any other court of the United States, For exaniple, my learned and accomplisted friend, who honors me with his attention, and who represents the great ant growing Commonweaith of Ilingis on iis Moor, Senator Trumbull is here and is to remain here, uot by foree of any decision that tae Supreme Court has made, or may hereafter make. It is not a question within their jurisdiction. lilinois is one of those great Commonweaiths which, since the o1 of the constitution, and within the memory of living man, have sprung up from the shores of the beautiful Ohio and the golden sands of the Paciiic, 18 here under the direct obligations of the constitution of the United States. The poople Ms their constitution did provide that the Congress shall have power to admit new States into the Uniou, and when the Congress passed upon the question of whether the people of {filinois had organized a gov, eroment republican in form and well entitled to’ assume their p) in the sisterhood of the commion- the decision was final, and the Judge of the Supreme Court who dates to challenge the great of the State which the Senator represents would instantly ched from his place he wou tuereby dishonor and digrace une power of the people, speakiag and the pro- cess of impeachment, It docs not belong in any sense of the word to the judicial power of the United states to decide ail questions arising wider the constitution and laws, According to the loxic of the counsel for the President, the Supreme Court would com in judgement at last on the power given exclusively to each House to judge of the election and qualides- tions of its own members. Senators, the judic: power of the United States is entitled to all ry wit to all consideration here and el judicial power, as {t is well known to Senators, is defined and limited by the terns of the constitu. tion, and beyond that limitation or outside of it that tribunal camot go. 1 read from the constitution tue fons, in answer to the argument of the gentle- nization Srerion 1. The § cial power of the United States shall be vested in « eme Court and da such oF Courts as ae to time ordain aud establish. ‘The an. Inferior courts shall hold lor, and shall receive at stated jees a cont h shall not be pu ite E and maritime jurisdiction; to cont United states “shall be a ) tween two or more States, between a State of another State; between citizens of different st: tween ettizens of the same 81 of aitfere States, and citizens: thervof, aud forelgh State all eases affecting ambaasadora, oth consis, mablic mialsters’ and ich mw late shall bow party, th aud those in y, orginal jurisdiction; in ail the of all crimes and suc sluil bave been committed ; any State the tral shel a8 tay by law h Ske. 3. Treason agaiont the United States shall consist only in jevylng acuinst them or in athering to their enemies, alvin; them ald an person shail be guilty of treason wo Witneswes to’ the aa atlainder ture, except lave the punishmen hall work corraption of during the life of the person attainte: As I said before, inasmuch as the the United States has the sole power to try tmpeach- ment, and therefore the sive power finally to decide ail questions thereon, it results that its deet- sion can neither be restricted by judgments in ad- vance, made either by (ae Supreine Court or by any other court of the’ Uni ates, nor can the judgment of the Senate on impeachment view by the several courts of the United Staies or to revisal by the Executive pardon; for it is written in the constitution that the pardon- ing power shall not extend to impeachment, and im- peachinent is uot a case in law and eguily Within the Meaning of the term as employed in the third articie of the coustitation, which T just read, Itisin nate of hav no sense a case Within the general judicial power of N the United States Senators. nough to the United States and clearly 1 and avow that the Supreme try impeachments, si assumed in this that le may suspend the Iw peril to bis ofictal position, interpret and consirue the ¢ without perit to his ome either after the eri one is eitner bold ad in nen wre of wi opeqiy proclana rt has the power to vertheless the de‘ence for the position wecused 8 = withont and ‘titution for ttsels, | position, if he stares fact that his oniy suspending bie ay 4 judicial con- decision on ibe the Senate is ment for high ction of the one j validicy of the other, and the no! to hold him to ar crime and misdemesii # the propo- sition, and no man © mit; that Lie court ut last has as rover this un limited and) wnresir vested by the people in the Hou and over this unrest ait Veatod ny thy ates, On that prope defying any man here a iy position by t “d means Ht does not mean that ud to ra anu wus nothing. If 1 by an idiot of sound and ta sigaifying nothing.”’ Now, t K you, Senators, What color cuse there is for Monstrous proposition ag fia n of the & tend to a case of ‘tive text of tt y read, that the wie Court is, by ex- rie to foreign and consuls and a@ party. al jurisdiction of the iter of th OnsUtUTION, Tes ainbaseadors, other public minis to cases to wht t cused is not @ forelg not @ forein minister and t accused not, as yet, thank ther used 18 noe within the original jaris dictios nirt of the United states, ‘The coan dent, who dwelt so rega- 0 long on this question, quoting from case of Marbury vs. Madie ted that the Chief ME teat dy and taminous baht of the councry fog a third of a centy no man has questioned Ural the original of the Supreme Court as laid down in the text of lie constitation can uelther be enlarged nor restricted by Congressional enactiaeut, These gentienea should have revoliected further, when they Invoked the tn- vervention of the Supreme Court, of any otier court, between the people and the accused President that tie appeliate juriadictiot the Supreme Court, b. innumerable decisions, depends exclusively und the constitution upon the will of Congress, so (i they must go to some other tribunal for a settieme of this great question between the people and tv President, unless Congress choose to jet them 0 to the Supreme Court by @ special enactment decision, and Ww for their own benetii, The appellate jurisdiv« tion of the Supreme Co ax defined in the constitution by words clear aad plain and incapable of any wieuhuerstanding ov miscousteuct des the o¢ a ease of hupe; y nited States—either its Dis- trict or Circuit or Supreme Court. The Senate will notice that on the terms of tie constitution the ap- ellate jurisdiction of the District and Cireutt courts iS united and restricted to the cases in law and in equity and the other caves specifically named in th constitution, none of which embrace the case of tu peachment, There ia, therefore, Senators, no roon jor invoking the decision of the Sapretie Court of the United States on any question touching the liability of the President to answer impeachment by the people's representat at the bar of the Senate. What excuse, therefore, Lask, for the pretence that tie President may set aside and dispense with the execution of the laws, allor any of them enacted bv the Congress, under pretext of defending the consti- tution by invoking a judicial inquiry in te court of the United States, Butt know, Senators, that the only tWo questions Which by possibility cond | come a subject of judicial decision and which have been raise by tie learned ang astuie cour sol Who attempted to make this defence h viy beon de a ‘The first is that the heads seeretarica cide t by the Supreme Cour of departmenys are the mere registering TUESDAY, MAY 5, 1868—TRIPLE SHEET. cate craece eee of the living—knew right well that the Supreme Court had solamnty decided both questions them. Now for the proof as to the obligation the heads of Separimongs to learn their duty under the law from the will of the Executive. The Senate will recollect that the learned gentieman from New York quoted the great case of Marbury vs. Madison with wondrous skill and dexterity. He took good care, however, not to quote that part of the decision which absolutely settled this question as to the liability of the secretaries to respond to the will of the Executive. Ile took care to ep that in the background. Verhaps he assumed that he knew all that the Managers of the House know about this case and then that he knew ali that he knew himself besides—(laughter)—gathered from the pust, from Cicero, against Cataline, and from Cicero against Verres, and from that speech of Cicero in de- fence of Milo, which happened never to have been made until after poor Milo was convietad; for he was made to cry out that if Cicero had made that speccl for him on his trial he would not on that day be undergoing punishment, 1 will read. now the 4 cision of Chief Justice Marshall in the case of Mar- bury v8. Madison touching this allegation of an obli- gation of the heads of departments to take the will of the Executive as their law. Chief Justice Mar- shall says (p. 158, first Cranch):—“It is the duty of the Secretary of State to conform to the law, and not to obey the instructions of the President.” This only illustrates the proposition that neither the President nor his secretaries are above the constitution or above the laws which the people enacted. As to the other proposition, Sena- lors set up in the defence of this accursed and guilty President that he inay with impunity, under the constitution of the United States, interpret the constitution and sit in judicial judgment, as the gen- tloman from Massachusetts (Mr. Curtis) words it, on the validity of your laws, That question has aiso been ruled upon by the Supreme Court of the United States, and from that hour to this the decision has never been challenged, although an attempt was made to drag the illustrious name of the Chief Justice Wihio presides at this moment over this deliberative and judicial assembly to their help, It was made in vain, as} shail show before [have done with this part of the maticr. I say that the position assumed for the President by his counsel, that he is the judi- clary to interpret the constitution for himself, that he i8 the judge to determine the validity of laws and to execute or suspend them or dispense with their execution at his pleasure and to defy the power of the people to bring him to trial and judgment, has: been settled against him thirty years ago by the Su- preme Court of the United States, and that decision has never been questioned since by any authorita- tive writer on the constitution or by any subsequent decision of the courts, Mr. Bingham, in this cou- nection, referred to the case of Rendall versus’ the United States, reported in 12th Peters, where Justice Thompson, pronouncing the judgment of tie court, declared that the claim of the President to suspend the execution of alaw growing out of the constitu- tional provision that he shall take care that the laws: be faithfully executed was a doctrine which could not receive the sanction of that court, as it woula be vesting the Presiient with dispensing power which had no countenance for its support in any part, and the effect f which would be to clothe the President h power to co trol the legislation of Congress and to paraly. the administration, Mr. Bingham continued:—I ask you, Senators, whether | was not justified in saying it Was a tax upon one’s patience to sit here and lis- ten from day to day and week to week to those learned arguinents made in defence of the Presl- dent, all resting upon his asserted executive pre- rogative to dispense with the execution of the law, and to protect himself from trial and. im- ema nisiey because, as he said, he only violated the its vaiidity la the Supreme Court, when that court had already decided thirty years ao that any such assumed prerogative would ena- bie hin to swee; all the legisiation of aud to prevent the adininistration of justi and that it found no countenance in the constitu- tion, 1 suppose, Senators, that the learned ex-Attorpey General thought that there was some- thing here which might disturb ue harmony and order of their arguments, And his concluding: argument for the accused he attempted to fortify uston by calling his aid the de- n of the present Chief Justice of the United Wes in what is Known as ihe Mississippi case. ow with all due respect to the learned ex-Attorney aoral, and to all Mis associates engaged in this 1, I take itupon me to say that the jon pro- nounced by his Honor, the Chief Jusiiee of the United States, ssissippl case, has no more to do in with the « cstion involved in this controversy than has the Ka % Mohammed, and the genUeman is ulteviy lnexcurable for attempting to force that de- cision Inte Gus .ase in aid of any such proposition as that involved in this controversy. What dig his Honor tie Chief Justice decide in the Mis- sissippi case’ Noting in the world but thir, which is Well Known to cvery lawyer in America, even to every student in the law versed not beyond the born books of his profession, that when the law vested the President with discretionary power his ndgmeat in the exercise of his disci be overraied by the legisla includes all parties, houors me with his attention, knows that , was born that question was’ declded precisely in tie same way in the great State which he so ‘ably represents here to-day, and is report in twelfth Wheaton, But it does not tonch the question af all, and the proposition isso foreign to the question that It is like one of those propositions referred to by Mr. Web- ster on Ove occasion, When le said that to make it to. aright minded man Was to iusult his intelligence, He noted from Chief Justice Chase’s ¢ Mr. Bingham decision in tie M i the dat forcem ecu pi injunction cases to show seeing to the en- tion laws was purely ex- ft hin ne diseretion whatever, and * of the counsel in introducing these Missisippi cases in support of their argument was perfectly imexcusabie, as they were whoily un- able tO un a singtc polit to prove that the Pxecutive of the Untied States had a right to interoret laws for himeelf, The y uty of the President is that presentativ poo- properly condu: They had heard much of the practice of government for over eighty years, but they had heard of no Violation of a law of the United States that tue peoplo did not promptly crush out aud punish. Andrew dackson, not unmindfal of t thoagh holding doubts of the constitution- taw tn re: South Carolina, raised and volee 3 a, he must and sha. Union Bingham) believed th (Mtr. was unconstitutional, It a reward to magist rman beines with immortal sos r jiyst aud best principle of luumanity— people aatd ‘let the law "be rept sand ye: wit se Bl by uni own laws, Binghem said: rined to your M s point chat was made in a sumplion of Executive prerog use with ie execution af aie lamented and neoin. In God" ih tan storns its awn “ heaven, ane cea on che peril or tls soul he kept his futh to the end ae « beantfat und shanderert to bolster up this # live to suxpend or at of the laws witiven nd ard r uumulatod now is dead, tha! Aat bet bonus we and that he “ rable to speak for himself, by the boli false Violated the laws y? I speak warily, ‘ man thos outrwred in tte | eof the Seuat: eluized world was not only personal friead, but was the friend deny that for a single moment Le was i EF li Fi es iat Fag gee qu mn; it has of ya and it has ton the highest Jaw and that it constitution of the United States. I have answered, Senators, and I trust I have answered satisfactorily, ail that Kas been sald Uy the counsel for the Pres: dent for the purpose giv! some color of justifi- cation to the monstrous plea which t! have inter- posed for the first time in history that ft pertains to the executive pre! tive to interpret the constitution judicially for himself and to determine judicially the validity of every law roms by Congress, to execute, or to suspend or to dispense with the execution at bis Lnpee a ‘The court here, at fifty minutes past one o'clock, took a recess for fifteen minutes, After the reassembling of the court, Mr. Bingham proceeded and sai Not is more cleurly settled under the American constitution than that the citi- zen upon whom a law operates unfairly has the right of appeal. But there ts no such clearly settled right of the executor of the law to appeal against what he is simply ordained to execute, Every bill which shall have passed the Congress of the United States and shall have been signed by the President, or, not being sixned, passed over his veto, shall become @ law ; but according to the reasoning of couusel, it shati not be a law unless it agrees, as they say, with the constitution; and yet the constitution says it is a law. Mr. Bingham continued:—I admit that when an enactment of Congress shall have been set aside by the constitutional authorities of this country it thenceforward ceases to be a law, and the President himself may well be protected for not thereafter cognizing itasalaw. [ admit it; gentlemen on that side of the chamber (democratic) will pardon me if L make an allusion. [have no disrespectful purpose in saying—I say It ratherfbecause it has been pressed into tais oontroversy on the other side—that it was the doctrine taught by a man called the great apostle of democracy in America, that the Supreme art of the United States could not decide the constitution- ality of any department of this government; that they only decided for themselves and the suitors at their bar, and what earthly use this citation from Jefferson was Intended to be put to by the learned gentleman from Tennessee, who first referred to it, and by the learned Attorney General I cannot for the life of me comprehend in the light of the answer iu terposed here by the President. He tells you, Senator: by his answer that he only violated the law, he only asserted this prerogative that would have cost any crowned head in Europe this day his life; that he only violated it innocently for the purpose of taking the judgment of the Supreme Court, And here comes his learned advocate, the Attorney Gene quoting: an opinion of Thomas Jeiferson to show that at least the decision of the Supreme Court could not control at all that; it could not decide question, I am not disposed to cast any reproach upon Mr. Jetfer- son. I Know weil that he was one of the framers of the constitution; I Know well he was one of the builders of the fabric of American liberty—one of those who worked out the emancipation of the American peor from the domination of British ride, and that he deserves well of his country as one of the authors of the Declaration of Independence. Yet I know well that his opinions that subject are not accepted at this by the great body of the American aud find no place in the authorities and writings upon the constitution, He was a maa, doubtless, of fine philosophical mind. He was a man of nobie, patriotic impuises, He rendered great ser- vice to his country, and deserved well of his country, but he is not an authoritative exponent of the princi- ples of your constitution, aad never was. [| may be pardoned furtter here for saying in connection with this claim that is made here, right in face of the answer of the accused, that his only object in violat- ing the law was to have the decision of the Sapreine ‘ourt upon the subs tuat the » was anotier dis- tinguished man of the democratié party, aiterwatds lifted to the Presidency of the United States, who in his place tn the senate Chamber years ago, in the con- troversy about the constitationality of the Uni States Bank, said that, while he should give respect. e. on day ople, he ful attention to the decisions of the Supreme Court of the United States touching the constitationality of an act of Congress, he shouid, nevertheless, as a Senator upon its oath, hold himself not bound by It atall That was Mr. Buchanan. One thing is very —that these authorities, quoted by those great do sustain in some sort, if it gives any support at all, the position that I have venturned to assume before this Senate—that upon all trials of im- chment presented by the House of Rep- tives the Senate of the United States the highest judictal tribunal of the land and is th exclusive judge of the law, and infact no matier whut any court may have said touching any question involved in the issue, Allow me now, Senators, bo take one step further in this argument touching this position of the President, for I tend in every step L take to stand with the constitution of my country, the obligations of which are upon me as @ represen tative of the people. 1 refer to another provision of the constitution—that which defines aud limits the exeoutive powers of the President:—*The President shal! be commander-in-chief of the army and navy of the United States and of the militia of the several States when called into the actual service of the United States, ie may require the opinions in writing of the principal! officers in each of the executive depart- iments upon any subject relating to the duties of their respective oriices, and he shall have power to grant ‘prieves and pardons for offences against the Unit es, except in cases of impeachment. He sli by and with the advice and consont of ies, provided two-tiirds of Senators present concur, and he shall nominate and, by and with the advice and consent of tie seoate, siall appoint ambassadors, other public ininisters and consuls, judges of the Supreme Court, wad all other officers of the United States whose ap- poluiments are not herein otherwise provided for and which shall be established by law; but the Congress may by law vest the appointment of such tn officers as they think proper in the Presi alone io the courts of iaw or in the heads of depart- ments. The President shall have power to fiil all vacancies that may happen during the recess of the Senate by granting comsniasions which shall expire al tae end of their next session. He shall, from time to tue, give to the Congress information of the state of the Union, and recommend to their consideration stich measures as he shall judge necessary and expe- dient. He may, on extraordinary occasions, conve: both houses or either of them, and in case of di greement between then with res) adjourament, he may adjourn them to such tine is li ct to the time of suall think proper, &c. These are the specitic powers conferred upon the President by the consiitation, I shail have occasion hereafter, im tne course of unis argument, to take notice of that other provision wiich says that the executive powers shall be vested in the President, This provision of the constitution grants to the President of the United Siates veither legislative nor judicial power. Both of these pow e and judicial, are nv ily involv set up by te Bs ovo counsel, that he may judi the constitution for himself aud judicially de upon the validity. of every enactment s; and in the position assumed by hinveelf and for I here at your bar, as a ¢: word ad- interpret | ‘This power with thelr 1ion wot such time " asure to lest (hem in a& court of ju 1S are. the time being, and if It be sustained ty nate may last daring his natural life, if t) ican people shoud so long tolerate him in tie of Chic Magistrate of the nation, to argue ti question whether a the legista and judicial be asstitioed he ent that all jadiclal powers shall be ve stipreime Court and in such infertor court Congress Gay by law establish, subject, never jest to the limitation of, and donative power en. sewed In, the constitudon’ The assumption upon elence resis-—ihat he shall only execute approves—is an which a judd er, in the express worda of the travention of i, if t mit the President m is. pense with the act of Congress up his own discretion, may he not, in like man- her, dis with every act of Congress? 1 «you, Senators, whether tis conciusion does ardices of the obligations of hits oath or of th uirements of the constitution, [ deny that he ver violated your lawa 1 deny that he ever as- i power claimed by this aposty t this day to suspend the laws and ds, wit) (heir execution, from ihe grave, and | ask Senators, when ome to consider tits accusation against ther murdered President, (0 ponder on the words of his first inang- ural, wheo, Manifestly alluding to the Fugitive Si. law, he said to the Alnerican people that, how A we ntiy dislike laws upon our statute books, we are not at hberty to defy them, or to disregard them, “1 them aside, but must await the action of «people and their repeal by lawmaking powe oh, but, aay the gentiemen, he suspended the ty beas corpus. The gentlemen were too learned not to know that it Das been a settied law, from the earti- Umnes to this hour, that in the midst of arms the laws are silent. You cannot suppress war by a aayistrate’s Wartant or & constabie’s stat Alra- Lincoln simply followed the accepted yof the civiinzed world in doing what he did. [answer far- ther, for | want Co leave no particle unanswered, [ would coant myself dishonored, being able to speak ise Though dead, he yet speaks bere foc hin when he cannot speak for himself, if J lett any colorable authority for that assault on his’ character unauswered and upehatienged, But, say the gentlemen, you have passed your Indemnity gets. Who is there so weak as not to kn that iti vain that you pass indem- nity acts votect the President, if after all, his acts were une nional’ You must go a step further than that; you must deny jurisdiction to the courts; you must shut the doors of your temple of justice; you must silence your ministers of the law, befor you pass an tnidemnity act that will protect them if his act ab last Was unconstitutional, That was not the purpove ofthe act. If it was the General Inde. nity act (hat Was referred to T hart the honor to draw it inysel/, although f claim no personal credit for it. tt ia not onknown Jo the legisianon of this country oF Congresé passed w similar wer in 1362, ot to whicn | refer was Phat act Was simply declaring Wat ser) 1D 1867. he acts of the hot fecessurily result as necessarily as effect follows suMcient cause? If not, pray why not? Is the Sen- ate of the United States, in order to shelter this rr pt the bold assumption of uare- siricied prerogative—the wild and guilty phantasy that tie King can do no wrong—and thereby clothe the Executive of the American people with power to suspend and dispense with the ey ation of their laws ai his pleasure, to dnterpret their constitution for himself, and thereby inherit their government? Senators, | have endeavored to open this uestion before you in all its magnitude, trust that 1 have succeeded. Be assured of one thing—(hat, Le to the best of my ability, in the presence of the representatives of the nation, I have not been unmindful of my oath, and | beg leave to say to you, Senators, in all candor this day, that in my judgment no question of mightier import was ever before presen' to the American Senate; to say further, that no question of greater magnitude ever came by ibility before the Amer- ican Senate, or any question upon the decision of which graver Interesis necessarily depended, In considering, Senators, vhis reat uestion of the power of the President by virtue his execative authority to suspend the laws and dispense with their execution, | pray you consider that the constt- tution of your country, essential to your national life, cannot exist without legislation duly enacted by the representatives of the people in Congress asseni- bied and duly executed by their chosen f Magia. trate, Courts neither supreme nor inferior can exist without legislation, Is the Senate to be told that departinent of the government essential to the peu of the republic, esvential to the general admitisira. tion of tance between man and man—those 1inis ters of justice who in the simple oath of the parer days of the republic were sworn to do eqnal Justice between the poor and the rici—snall hot administer justice at all if chauce te = Preside of the United States may 088, W ongrees comes to enact a law for the organization of tie judiciary pases 1 doxpite ii Oyection LO the contrary, in accor coustitution, by a twothirda vote, wo «ae clare tha a aie according to his judgment and con it vio- lates the constitution of the country there- fore it shall not be into ng judiciary act— whereby for the first time, if rf Please, in your his- tory, or for the you by some Strange intervention of Providence by which the ex- isting judges have perished from the earth—I would like to know what becomes of this wicked and bold retence, unfit to be played upon children, that the resident only violates the law innocently to have the question decided in the court, and le hax the power lo prevent any court sitting upon it, Repre- Sentatives to the Congress of the United States can- not be chosen without legisiation; first, the legislation of Congress apportioning representation among the Several States according to the whole number of representative population; second, the enactment, either of Congress or of the islatures of the se: eral States, fixing the time, place and manner of holding the elections, is possibly that the President of the United States, in the event of such legislation by Congress, clearly authorized by the very terms of the constitution and essential to’ the very existence of the government, is permitted in the exercise of his judicial executive authority to sit down in judg- ment upon your constitution and say that it shall not be executed. Why? This power given by the con- stitution to the Congress to prescribe the time, place and manner of holding electiona for representatives to Congress in the several States was, in the words of the framers of the constitution, to enable the people, through the natjonal legisla- ture, to perpetuate the I lative department of this be told here, and we are patter and we are 0 deliberate upon it from day to day and from week to week, that the President is, by virtue of his ex- ecutive office and his executive prerogative, clothed with the authority to determine the validity of your Jaw, to suspend and dispense with Its execution at his pleasure. Again, a President of the United States to execute the laws of the people, enacted by their representatives in Congress agsembled, cannot be chosen without legislation, Are we to be told that the President, at every step, is vested wilh authority to dispense with the execution of the laws and to mene their operation until he can have a decision, if you please, in the courts of justice? If the President may set aside all laws and suspen their action at pieasure, it results that he may aanvi the constitution and annihilate the government. That is the issue before the American Senate. I do not go outside of the President’s answer to estab- lish it. The constitution itself, accord to this assumption, is at his mercy as 1 as the laws, and the people of the United States are to stand by and to be mocked and derided in th own Capitol when, in accordance with the express provisions of their constitution, they bring him to t..e bar of the Senate to answer for his great crime, tian whic none greater was ever committed since that day when the first crime was committed on this planet as it sprang from the hand of its Creator—that me which covered one man’s brow will (he palenes: of death, and covered the brow of another mar with the daianing biotch of fratricide, The peopic of the United States are not to be answered ab this bar that it is in vain that they have yur Mito the hands of their representatives tie powcr fo impeac’ such a malefactor and try bim; the express words of their constitution have given to the senate the ower, the exclusive power, the gole power to try im for his high crimes and miscemecanors. The question touches the nation’s life ; but 1 kuow, Sena- tors, that your matchless constitutional government— the hope of the straggling friends of iiberty in all lands, and for the perpetuity di otriumph of which millions of hands are lifted this day in prayer to the God of nations—can no more exist without laws duly enacted by the law making power than can the peopie of the United States themselves exist without air or without the light of Heaven which shines above us, filled with the light and breath of the Almighty. A constitution and laws which are not and cannot be enforced are dead, The vital princi- ple of your constitution and laws is that they shall be the supreme law of the land; supreme in every State, supreme in every Territory, supreme in every road, supreme on every deck covered with your flag in every zone of the globe; and yet we are debating here to-day whether a man whose breath is in his nostrils, a mere servant of the people, may not sus- pend the execution both of the constitution and of the laws at | Jeasure and defy tie power of the people. If fam right in the proposition that the acts of Congress are law and are to be ex) “t until re- peated or reversed in the mode prescribed by the constitution in the courts of the United States acting within their jurisdictéon and under the limitations of the constitution, it results that the violation of such acts by the Presilent of the United States and his re- fusal to execute them are a high crime and misde- meanor under the terms of the constitution, for which he is impeachable, and for Lot if he be guilty, he ought to be convicted and remot froin the ofice he has dishonored, it is not needtut to inquire whether only crimes and misdemeanors, specially made such by the constitution of the United 1 able, because by the laws of the United all crimes and misdemeanors at com- mon law, committed within the District of Columbia, are made indictable. I believe it is conceded on every hand that a crime or misdemeanor made in- dictable by the laws of the United States, when com- mitied by an officer of the United States, in his omece alter violation of his sworn duty, is a high crime and misdemeanor within the meaning of the constitution. At all events if that be not accepted 8 atrue and self-evident proposition by the Senate, it would be in vain that [should argue further, for I might as well expect to kindle life under the riba of death as persuade a Senate so lost to every sense ot duty and to the voice of reason itscif, to come to the conclusion that after all itis not a high crime and misdemeanor under the constitution for the Presi- dent of the United States deliberately and p' ely, in violation of his oath, in violation of the plain let- ter of the constitution that he should take care that the laws shonid be faithfully executed, to set aside the laws and to declare defiantly that he wiil not ex- ecate them. Mr. Bingham, in this connection, referred to the act of 1801, extending the common law of Maryland to the District of Columbia, and ed from it and frou the opinion of the court in the Kendall case that the were indictable in the District, and that bemg indictable they must therefore be impeach- able. Mr. Bingham then continned:—I do not pro- ose, Senators, to waste words in noticing what but. for the respect and fear to the learned counsel from Massachusetts (Mr. Curtis) I woutd cal! the mere law- ex's quibble of the defence, that even ifthe President be guilty of the crimes laid to his charge in the arti cles presented by the House of kepresentatives, sti! | they are not high crimes and misdemeanors within the meaniag of the constitution, because ar not kindred to the great crimes of treason and bribery. It is enough, Senators, for me to remind you of what T have already said, that th: re crimes which touch the life of the nation; which touch the stability of our institutions; that they are crimes which, if tolerated by this, the highest tribunal of the land, would yest the President by Us solemn judgment with a power under the constitution t ‘suspend, vt his pleasure, all laws upon your staltitg books, and thereby to annthilate your Government, ‘They have heretofore been held eriues ia history, and crimes of such magnitade that they have cost their perpetrators their lives—not merely the offices, but thelr lives, Of that I imay have more to say hereafter, but | return tomy proposition, The defence of the President Is not waether indictable crimes or oifences are laid to his charge, but it 1 the broad proposition, a8 already stated, i hment does not lay splot him for any vi tlon of ihe const! ition or of the lay werted Mi right judicialiy to interpret every provision of the constitution for limseif, and also to interpret for himself the validity of eve law and to exclude or disregard, at his ¢ tlon, provision either of the constitu. tion or* of tie law, and especially if he act orafter the fact, that his only ing the one or the ocher is to have « f the constitution in the one case rmination of the validity of the courts of the United States, “Ido not s the position of the President, too , although f pray Senators to notice—for I would acouuit my selfa dishonored man if, purposely, here or elsewhere, T should misrepreseat the position assumed by the ident—that the counsel for the de Cards, in his opening, ue statement as T have of the Prosident rests » assumption as stated in bis answer. Mr. Curtis, in his opening aires, #ays:—"'But when,Senators, a question arisox Whether a particular law bas cul off a power cou filed to hin by the people through the constitution and he alone can raise that question aud be aloue can cause a judictal decision to come between the two branche: he government to say which of them is th a judicial « ir in the e this, right, anc dite deliberation, with advice of those who age tis proper advisers, he setties down Ormiy upon the dpinion that such is the character of the jaw, itrematne to be settled by you whether there is any violation of his daty When he takes the needful steps to raise that question and have it orcefully decided.’ Now | ask, Senators, in all can- dor, what there is to hinder the President if by force of (he constitution, as the learned counse! argues, he ix vested with judictal authority to inter. pret the cons!\tndon and to decide on the validity of any law of Cougress—what is there to hinder him from saying of every law of the land that it cuts off some power confided to him by the people? The learned geutieman from Massachusetts was too self-poised and he manifestly is too profound 4 man to lavoch out on this stormy sea of anarchy, careless of all success, In the manner tn which some of his associates did. Refe: to the position assumed on this question by Mr. Evarts, he read from a pam phiet written by Mr. Curtis in 1862 the expressions of a contrary view, which he commended as good law. He went on to aasert that no man who tid not adit the assumption that the President possessed judicial as well as executive powers could deny that his written orders clearly showed his viojation of jaw and proved him worthy of conviction. Mr. Binghant then cited le; authorities to show that averment and proof of evil intent are not nec ~{ in pro- ceedings against any class of persons, except judicial ofticers, aud in that case alone can ignorance of the law be adiaitted as an excuse, With regard to the defence that the President suspended Mr. Swanton Under the constitution and supplied the vacancy under the jaw of 1 he claimed that the Fresiae nes answers showed viviation of the laws = lied the tenuce of such appointments to six me and the Presidout appointed General Ti indefnite period. Mr. Bingham then argument (iat al jont 1s bound to incervene to protect the » from waconstivitiona: jaws, and aid that it was a fallacious position. » peop are guardia i owa Louor Cougrese is “ 1 tied «&