charge in these articles are not lapses, defects, errors of common human frailty, which, as we know and feel, we can allow for. We charge this offender with no crimes that have not arisen from passions which it is criminal to harbor with no offences that have not their root in avarice, rapacity, pride, insolence, ferocity, treachery, cruelty, malignity of temper; in short, in nothing that does not argue a total extinction of all moral principle, that does not manifest an inveterate blackness, dyed ingrain with malice, vitiated, corrupted, gangrened to the very core. If we do not plant his crimes in those vices which the heart of man is made to abhor, and the spirit of all laws, human and divine, to interdict, we desire no longer to be heard on this occasion. Let everything that can be pleaded on the ground of surprise er error upon those grounds be pleaded with success; we give up the whole of those predicaments. We urge no crimes that are not crimes of forethought. We charge him with nothing that he did not commit upon deliberation; that he did not commit against advice. supplication, and remonstrance; that he did not commit against the direct command of lawful authority; that he did not commit after reproof and reprimand, the reproof and reprimand of those who are authorized by the laws to reprove and reprimand him. The crimes of Mr. Hastings are crimes not only in themselves, but aggravated by being crimes of contumacy. They were crimes not against forms, but against those eternal laws of justice which are our rule and our birthright. His offences are not in formal, technical language, but in reality, in substance and effect, high crimes and high misdemeanors. (Burke's Works, vol. 7, pp. 13. 14.) And so the articles charged them, not leaving it to the declamation or invention of the orators of that great occasion. I need not insist, in repetition of the very definite, concise, and I must think effective argument of the learned counsel who opened this case for the respondent, [Mr. Curtis,] upon the strict constitutional necessity, under the clause prohibiting ex post facto laws, and under the clause prohibiting bills of attainder, and under the clauses that fix the trial as for crime in the Constitution under the designation in the articles of enumeration of "treason" and "bribery" alone, the highest great crimes against the State that can be imagined, that you should have here what is crime against the Constitution and crime against the law, and then that it should have those public proportions that are indicated in the definition of the opening manager, and those traits of freedom from error and mistake and doubt and difficulty which belong, in the language of Mr. Burke, to an arduous public station. And then you will perceive that under these necessary conditions either this judgment must be arrived at, that there is no impeachable offence here which covers and carries with it these conditions, or else that the evidence offered on the part of the respondent that was to negative, that was to countervail, that was to reduce, that was to refute all these qualifications should have been admitted; and when a court like this has excluded the whole range of evidence relating to the public character of the accused and the difficulties of an arduous public situation, it must have determined that the crimes charged do not partake of that quality, or else it would have required them to have been affirmatively supported by proofs giving those qualifications, and permitted them to be reduced by countervailing evidence. And when a court sits only for a special trial, when its proceedings are incapable of review, when neither its law nor its fact can be dissected, even by reconsideration within its own tribunal, the necessary consequence is that, when you come to make up your judgment, either you must take as for granted all that we offered to prove, all that can fairly be embraced as to come in, in form, in substance, in color, and in fact, by the actual production of such proof, so that your judgment may thus proceed; or else it is your duty before you reach the irrevocable step of judgment and sentence to resume the trial and call in the rejected evidence. I submit it to you that a court without review, without new trial, without exception, and without possible correction of errors, must deal with evidence in this spirit and upon this rule. And unless you arrive, as I suppose you must, at the conclusion that the dimensions of this trial relate to the formal, technical infraction of the statute law that has been adduced in evidence here, it will be your duty to reopen your doors, call the respondent again before you, and go into the field of inquiry that has been touched in declamation, but has not been permitted in proof.

But, Mr. Chief Justice and senators, there is no better mode of determining whether a crime accorded to a particular jurisdiction and embraced within a

particular prohibition is to be a high crime and misdemeanor, and what a high crime and misdemeanor means, and what the lowest level and the narrowest limit of its magnitude and of its height must be, than to look at its punishment. Epithets, newly-invented epithets, used in laws do not alter the substance of things. Your legislation of the 2d of March, 1867, introducing into a statute law the qualifying word "high," applied to a misdemeanor, is its first appearance in the statute law of this country or of the parent country from whom we draw our jurisprudence. It means nothing to a lawyer. There is in the conspiracy act of 1861 the same introduction of the word "high" as applied to the body of the offence there called "a crime." A "high crime" it is called in this little conspiracy act of 1861, and there in the one instance and here in the other an epithet is thrown into an act of Congress. But, Mr. Chief Justice and Senators, when the legislative authority in its scale of punishment makes it, as the common sense of mankind considers, great in its penalty, terrible in its consequences, that is a legislative statement of what the quality of the crime is. When you put into a statute that the offence shall be punished by death you need no epithet to show that that is a great, a heinous crime; and when the framers of this Constitution put into it, as the necessary result of the trial of the President of the United States and his conviction, that his punishment should be deprivation of office, and that the public should suffer the necessity of a new election, that showed you what they meant by "high crime or misdemeanor."

I know that soft words have been used by every manager here on the subject of the mercy of our Constitution and the smallness of the punishment; that it does not touch life, limb, or property. Is that the sum of penalties? Is that the measure of oppression of punishment? Why, you might as well say that when the mother feels for the first time her new-born infant's breath, and it is snatched from her and destroyed before her eyes, she has not been deprived of life, liberty, or property. In a republic where public spirit is the life, and where public virtue is the glory of the state, and in the presence of public men possessing great public talents, high public passions, and ambitions, made up, as this body is, of men sprung, many of them, from the ordinary condition of American life, and by the force of their native talents, and by the high qualities of endurance and devotion to the public service, who have lifted themselves into this eminent position, if not the envy, the admiration of all their countrymen, it is gravely proposed to you, some of whom from this elevated position do not disdain to look upon the presidency of the United States as still a higher, a nobler, a greater office, if not of pride, yet of duty, that you shall feel and say that it is a little thing to take a President from his public station and strike him to the ground, branded with high crime and misdemeanor, to be a byword and reproach through the long gauntlet of history forever and forever. In the great hall of Venice, where long rows of doges cover with their portraits the walls, the one erased, the one defeatured canvass attracts to it every eye; and one who has shown his devotion to the public service from the earliest beginning, and you who have attended in equal steps that same ascent upward, and now, the very height and flight of your ambition, feel your pinions scorched and the firm sockets of your flight melted under this horrid blaze of impeachment, are to be told, as you sink forever, not into a pool of oblivion, but of infamy, and as you carry with you to your posterity to the latest generation this infamy, that it is a trifling matter, and does not touch life, liberty, or property! If these are the estimates of public character, of public fame, and of public disgrace by which you, the leaders of this country, the most honored men in it, are to record your estimate of the public spirit and of the public virtue of the American state, you have indeed written for the youth of this country the solemn lesson that it is dust and ashes.

in

Now, what escape is there from this conclusion, in every true estimate of the

character of this procedure and of the result that you seek to fasten upon this President if justice requires it, to say that it is trifling and trivial and that formal and technical crime may lead to it? Do the people of this country expect to be called to a presidential election in the middle of a term, altering the whole calendar, it may be, of the government, because there has been an infraction of a penal statute carrying no consequences beyond? It is accidental, to be sure, that the enforced and irregular election that may follow upon your sentence at this time concurs with the usual period of the quadrennial election; but it is merely accidental. And yet these, senators, are gravely proposed to you as trivial results that are to follow from a judgment on an accusation of the character and of the quality that I have stated in fact, as compared with the quality and the character that it should bear in truth.

In reference to this criminality of the infraction of the statute, which in the general remarks that I am making you will see furnishes the principal basis of charge that I am regarding, we may see from the statute itself what the measure of criminality there given is, what the measure under indictment would be or might be, and then you will see that that infraction, if it occurred, and if it were against the law and punishable by the law under the ordinary methods and procedures of our common courts of justice, furnishes not only no vindication of, but no support to, the notion that upon it can be ingrafted the accusation of impeachment, the accusation of criminality that is impeachable, any more than any other topic of comparatively limited and trivial interest and concern. The provision is not that there must be a necessary penalty of gravity, but that under the scale of imprisonment and fine the only limit is that it shall not exceed $10,000 of pecuniary liability and five years of imprisonment. Six cents fine, one day's imprisonment, according to the nature of the offence, within the discretion of the court, may satisfy the public justice under indictment in regard to this offence which is claimed as the footing and front of the President's fault.

Nor was this open, unrestricted mercy of the law unattended to in debate. The honorable senator from Massachusetts, [Mr. SUMNER,] in the course of the discussion of this section of the bill, having suggested that it would be well, at least, to have a moderate minimum of punishment that would secure something like substance necessarily in the penal infliction, and having suggested $1,000 or $500 as the lower limit, basing upon this wise intimation that some time or other there might be a trial under this section before a court that had a political bias and the judge might let the man off without any substantial punishment, he was met by the honorable senator from Vermont, [Mr. Edmunds,] and the honorable senator from Oregon, [Mr. Williams,] who seemed to have the conduct of the bill, at least in respect to these particular provisions, in the way to which I will attract your attention. Mr. SUMNER said:

Shall we not in this case, where political opinion may intrude on the bench, make a provision that shall at least secure a certain degree of punishment?

Mr. EDMUNDS defended the unlimited discretion of punishment.

Mr. WILLIAMS said:

I concur in the views expressed by the senator from Vermont, for the reason, in the first place, that this is a new offence created by statute, and it does not define a crime involving moral turpitude, but rather a political offence; and there is some ground to suppose that mistakes may be made under this law by persons in office; and I think that in such case there should be a large discretion left to the court.

So much for indictment; so much for the wise reasons of our legislators; and then, that being the measure and the reason, there is clamped upon this a necessary, an inevitable, an inexorable result that is to bring these vast consequences to the state and to the respondent. But even then you do not know or understand the full measure of discretion, unless you attend to the fact that such formal, technical crimes when made the subject of conviction and of sentence in obedience to the law are, under a principle of our Constitution and of 19 I P-Vol. ii

every other just, I will not say merciful, government in the world, made subjects of pardon; but under this process of impeachment, with but one punishment, and that the highest in the public fame and character of men that is known or that can be conceived, we have this further, this terrible additional quality, that the punishment is immitigable, immutable, irreversible, unpardonable, and no power whatever can lighten or relieve the load with which an impeached and convicted public servant goes forth from your chambers in a just exercise of this power of impeachment with a punishment heavier than he can bear.

And now, what answer is there to this but an answer that will take a load of punishment and of infamy from him and place it somewhere else? True it is that if he be unjustly convicted, if he be convicted for technical and formal faults, then the judgment of the great nation, of intelligent and independent men, stamps upon his judges the consequences that they have failed to inflict upon the victim of their power. Then it is that the maxim si innocens damnatur, judex bis damnatur, finds its realization in the terrors of public opinion and the recorded truths of history.

I have introduced these considerations simply to show you that these notions that if you can prove that a man has stumbled over the statute it is essential that he should bear these penalties and these consequences find no support in reason, none in law, none in the Constitution, none in the good sense of this high tribunal, none in the habits and views of the great people whom we represent. Indeed, we should come under the condemnation of the speaker in Terrence if we were to seek upon this narrow, necessary view, as it is urged, of law, such consequences as I have stated: Summum jus sæpe summa est malitia, an extremity of the law is often the extremity of wickedness.

And now I am prepared to consider the general traits and qualities of this offence charged; and I shall endeavor to pursue in the course of my argument a consideration, perhaps not always formal nor always exactly defined, of three propositions:

1. That the alleged infractions of these penal statutes are not in themselves, nor in any quality or color that has been fastened upon them by the evidence in this cause, impeachable offences.

2. Having an application to the same conclusion, that whatever else there is attendant, appurtenant, or in the neighborhood of the subjects thus presented to your consideration, they are wholly political, and not the subject of jurisdiction in this court or in any court, but only in the great forum of the popular judgment, to be debated there at the hustings and in the newspapers by the orators and the writers to whom we are always so much indebted for correct and accurate views on subjects presented for such determination. If I shall have accomplished this I shall have accomplished everything. I shall have drawn attention to the true dimensions in a constitutional view of the crime alleged even if it has been committed, and shall have shown by a reflex application of the argument that it is mere error and confusion, perhaps pardonable in an impeaching authority, but unpardonable in a court of judgment, to confound things political with things criminal.

And then, third, I shall ask your attention to the precise traits and facts as disclosed in the evidence charged in the articles, and bring you, I think, to a safe, an indisputable, firm, and thorough conclusion that even the alleged infractions of penal law have none of them, in fact, taken place.

Now, let us look at this criminality in the point upon which, in the largest view of any evidence in support of it given on the part of the managers, it must turn. We must separate, at least for the purpose of argument, the inuendoes, the imputations, the aggravations that find their place only in the oratory of the managers, or only in your own minds as conversant with the political situation and enlisted zealously in the rightful controversies which belong to it as a polit

ical situation, and we are then to treat the subject in this method: that up to twelve o'clock on February the 21st, 1868, the President was innocent and unimpeachable, and at one o'clock on the same day he was guilty and impeachable of the string of offences that fill up all the articles except that devoted to the speeches, the tenth; for whatever he did was done then at that point of time, leaving out the Emory article, which relates to a conversation on the morning of the 22d, and which I also should have excepted from these observations. What he did was all in writing. What he did was all public and official. What he did was communicated to all the authorities of the government having relation to the subject. Therefore you have at once proposed for your consideration a fault, not of personal delinquency, not of immorality or turpitude, not one that disparages in the judgment of mankind, not one that degrades or affects the position of the malefactor; it is, as Mr. Senator Williams truly said, a "new offence," also, an offence "not involving turpitude, and rather of a political character."

Now, too, upon these proofs the offence carries no consequences beyond what its action indicates, to wit: a change in the head of a department. It is not a change of the department. It is not an attempt to wrest a department or apply an office against the law, contrary to the regulations of the government, and turn its power against the safety or peace of the state; not in the least. Whatever imaginations may suggest, whatever invective and opprobrium may intimate, the fact is that it had no other object, had no other plan, would have had no other consequences-I mean within the limits of this indictment and of this proofthan to substitute for Mr. Stanton some other citizen of the United States that by and with the advice and consent of the Senate should be approved for that high place, or to fill it until that advice and consent should be given by some legal ad interim holder of the office, not filling it, but discharging its duties.

If, then, the removal had been effected, if the effort to assert a constitutional authority by the President had been effectual, no pretence is made, or can be made, that anything would have been accomplished that could be considered as a turning of the government or any branch of its service out of the authority of law. Neither did it in purpose or consequences involve any change in the policy of the Executive of the United States in the War Department or in its management. Whatever there might have been of favor or support in public opinion, in political opinion, in the wishes and feelings of the Congresses of the United States in favor of Mr. Stanton for that post, and however well deserved all that might be, senators cannot refuse to understand that that does not furnish a reason why the offence committed by a change of the head of a department should be exaggerated into a crime against the safety of the state.

But I think we may go further than that, and say that however great may have been the credit with the houses of Congress and with the people, or with the men of his own party, which the Secretary of War, Mr. Stanton, enjoyed, it cannot be denied that there was a general and substantial concurrence of feeling in this body, among all the public men in the service of the government, and among the citizens in general, that the situation disclosed to public view and public criticism of an antagonism between the head of a department and the President of the United States was not suitable to the public service, and was not to be encouraged as a situation in the conduct of the executive government, and that there was a general opinion among thoughtful and considerate people that however much the politics of the Secretary of War might be regarded as better than the politics of the President, if we would uphold the frame of government and recognize the official rights that belong to the two positions, it was a fair and just thing for the President to expect that the retirement should take place on the part of the Secretary rather than that he, the President, should be driven to a forced resignation himself, or to the necessity of being maimed and crippled in the conduct of the public service.