ment in Great Britain is substantially omnipotent: they may pass ex post facto, retroactive laws, bills of attainder, and even change the constitution itself; therefore, that, when the Commons present any officer of the government for any claimed offence, it is not to be considered whether it is made so by any pre-existing laws; because, if the Commons impeach and the Peers adjudge the party presented guilty, the joint action of the two houses would only be, in effect, to declare the act complained of to be noxious or injurious, although not so enacted by any previous legislation, and that this would be within their clear right. But that our Constitution, by prohibiting the passage of any retroactive or ex post facto law, or any bill of attainder, has limited impeachment for high crimes and misdemeanors to those acts only which have been declared to be such crimes and misdemeanors by pre-existing laws; and, therefore, in this country, whatever might be the case in England, impeachment must be limited to such offences only as are so made by statute, or at common law. There is force and speciousness, to say no more, in this view, and it deserves a careful and candid consideration.

The weight of the argument is derived from the suggestion that the judgment following impeachment is in truth a punishment of crime: that failing, the argument fails. True it is, our Constitution forbids the passage of any retroactive or ex post facto law, or bill of attainder, as a punishment for crime; but it is equally true that it says that "judgment in cases of impeachment shall not extend further than to removal from office and disqualification to hold and enjoy any office of honor, trust, or profit under the United States; but the party convicted shall, nevertheless, be liable and subject to indictment, trial, judgment, and punishment, according to law." Thus it appears that the judgment of impeachment is not a punishment for crimes nor misdemeanors, but extends only to removal from office or disqualification to hold office, leaving the party (if a crime is committed) to be punished therefor by other provisions of law, which shall neither be retroactive, ex post facto, nor in the nature of a bill

of attainder.

This provision would seem, therefore, to make it clear that impeachment is not a punishment for crime. True, an officer may be impeached for a crime, technically, either by common or statute law, but he cannot be punished therefor as a part of the judgment of impeachment. He can only be removed from office, and his punishment, if any, is left to the ordinary courts. We are led to consider, therefore, whether, in the language of the Constitution and laws of the United States, the term "removal from office" is anywhere used as the penalty for a crime. Of course that phrase must have the same construction, whether found in the Constitution, which is paramount law only, or in the statutes enacted in conformity with the Constitution, which are equally laws of the United States.

Now, it is admitted by all sides that any officer may be removed under our laws for any reason, no reason, or for political reasons simply, the contest between the Executive and Congress being as to the person or body by whom such removal shall be exercised-whether by the President alone, or by the President and Senate in concurrence, or whether such right of removal may be restrained by legislation.

This power of removal by somebody is recognized in a variety of statutes, but nowhere as the penalty for crime. The phrase "removal from office" appears only once in the Constitution. Must it not, therefore, have the same meaning and construction there as it does in the other laws of the United States? Is not this construction of the phrase "removal from office" made certain by the uniform legislation and practice of the government? And as the phrase “removal from office" is only found in the Constitution as the consequence of conviction upon impeachment, the judgment of which can extend no further than such removal or disqualification for office, is it not equally certain that such judgment is not a punishment for crime, and, therefore, that an officer may be removed by

impeachment for political reasons, as he may be for the same reasons by any department of the government in which the right of removal is vested?

Is not this view of the constitutional provision strengthened by this consideration that by the theory of and practice under the Constitution, every officer, other than the President and Vice-President, may be, and in practice is, removable by the power that appointed him at pleasure; or, in other words, when the service of the government, in the judgment of the appointing power, seems to make such removal necessary and proper? Is it not, therefore, more consonant with the theory of the Constitution to hold that the President may be removed from office by presentment of the House, who represent in his case the people who appointed him, if the reasons for the removal shall be found sufficient by two-thirds of the Senate, who, by the Constitution, are to adjudicate thereupon? Can we not illustrate this by supposing a case of inability in the President to perform the duties of his office because of his insanity? Now, insanity is not a crime, but every act of an insane man might, and almost necessarily would, be a misdemeanor in office.

Is the phrase "misdemeanor in office" any more than the Norman French translation of the English word misbehavior? Judges are to hold office during good behavior. Is not that equivalent to saying they hold office during good demeanor, i. e., while they demean themselves well in office? Are not both phrases the equivalent of the Latin one "dum se bene gesserit?"

How is an insane president or an insane judge to be removed under our Constitution? Clearly, not until his insanity is ascertained. By whom is that to be ascertained? The Constitution makes no provision, save by presentment by the House, and adjudication by the Senate. And it is remarkable, as sustaining this argument, that the first case of impeachment of a judge under our Constitution; Judge Pickering's, was of an insane man, as the defence allege, and clearly made out by evidence. Judge Pickering was removed, the defence of insanity apparently not being considered by the Senate. Is it not clear that the process of impeachment, under the English constitution, being a mode of punishment of all crimes, as well as a method by which an officer whose official or personal conduct was hurtful to the state might be removed, that our Constitution limiting the form of impeachment to removal, only takes away from it its punitive element which it vests in the ordinary courts of law alone; thus leaving the process of impeachment an inquisition of office for any act of the officer or cause which the House of Representatives might present as, and the Senate adjudicate to be hurtful to the state or injurious to the common weal. Will any one say that if the President should veto every bill that should pass the Congress, (and there not be a two-thirds vote against his veto,) and thereby defeat all appropriations, so as to completely block the wheels of gov ernment, that he could not be impeached for an improper use of said power, although he is authorized by the Constitution to use such power? Here would be a case wherein the exercise of lawful power was done in such a way as to become so oppressive and obviously wrong that there must be a remedy, and impeachment would be the only one.

DEFINITION OF CRIMES AND MISDEMEANORS.

Having thus shown that a party can be impeached for offences not punishable by statute law, it behooves us next to inquire what have been the definitions of crimes and misdemeanors as used by writers of acknowledged authority. It is by the light of these definitions that we are to inquire and determine what culpability, if any, attaches to each and all of the acts by the President of which we complain, and how far he may palliate or justify the act after having admitted its performance. These which I shall read are but few among the many authoritative definitions of crimes and misdemeanors.

What is a crime?

Blackstone defines a crime or misdemeanor as being— An act committed or omitted in violation of a public law either forbidding or commanding it. This general definition comprehends both crimes and misdemeanors, which, properly speaking, are mere synonymous terms; though in common usage the word crimes is made to denote such offences as are of deeper and more atrocious dye; while smaller faults and omissions of less consequence, are comprised under the gentler name of misdemeanors only. (Blackstone's Commentaries, book 4, page 5.)

The distinction of public wrongs from private crimes, and misdemeanors from civil injuries, seems principally to consist in this: That private wrongs or civil injuries are an infringement or privation of the civil rights which belong to individuals merely as individuals; public wrongs, or crimes and misdemeanors, are a breach and violation of the public rights and duties due to the whole community considered as a community in its social aggregate capacity. (Blackstone's Commentaries, book 4, page 5.)

When the words high crimes and misdemeanors are used in prosecutions by impeachment, the words high crimes and misdemeanors have no definite signification, but are used merely to give greater solemnity to the charge.-Sentence from a note to Blackstone's Commentaries, (5 Christian.)

Or, to state it stronger even than Blackstone does, that the defendant may have the benefit of it, a crime or misdemeanor is the violation of a public law where there shall be a joint operation of act and intention in the perpetration of the act.

Mr. Blake, in discussing Prescott's case, defines a misdemeanor perhaps better than I have heretofore stated it, I will therefore give his definition :

To misconduct is to misbehave; to misbehave is to misdemean; to misdemean is to be guilty of a misdemeanor-nothing more-nothing less. The term is technical, signifying a crime; hence it follows as a conclusion from these premises that misconduct or misbehavior, in its legal interpretation, can signify nothing less.

INTENTION-HOW DETERMINED.

When the unlawful act is shown, how, then, do we gather the intention? It can only be done from all the circumstances surrounding the commission of the

act.

I believe it is a rule, both in law and morals, that every man is presumed to intend the natural and probable consequences of his own act. A good motive never accompanies a bad act, nor a bad one a good act.

Mr. Buchanan, in the trial of Judge Peck, states this proposition so clearly that I will adopt his language (with his quotations :) "Out of the abundance of the heart the mouth speaketh,' The tree is known by the fruit,' are axioms which we have derived from the fountain of all truth. Actions speak louder than words, and it is from the criminal actions the judges must infer the criminal intention." * * * Speaking of the respondent, Peck, he says: "If he shall, in an arbitrary manner, and without the authority of law, imprison a citizen of this country, and thus consign him to infamy, are you not to infer his intention from the act? Is not the act itself the best source from which to draw the inference? Must we, without any evidence, in the spirit of false charity and mercy, ramble out of the record to imagine a good motive for this bad conduct? Such rule of decision would defeat the execution of all human laws. No man can doubt but that many a traitor during the American Revolution believed in his conscience that he owed allegiance to the King of Great Britain, and would violate his duty to God if he should lend the least aid in the cause of freedom. But if such a man had committed treasonable acts, will any person say he was not guilty of treason, because in his secret heart he might have had a good intention? Does a poor, hungry, naked wretch filch from my pocket a single dollar to satisfy the cravings of appetite, the law infers a felonious intent, and he must be convicted and punished as a thief, though he may have had no other purpose but that of saving himself and his children from starvation. And shall a man who has been selected to fill a high judicial position on account of his knowledge of the laws of the land, be permitted to come before the Senate and

say: 'It is very true that I did against law imprison an American citizen and deprive him for eighteen (18) months of practising that profession by which he lived; it is true that I violated the Constitution of the United States by inflicting on him unusual punishment, but I did not know any better; I had a good intention.""

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And, Mr. President, in the case at bar are we to be told that this violation of law carries with it no bad motive? that the law was broken merely to test its strength? Is a man to be permitted to break a law under the pretence of testing its constitutionality? Are the opinions of a man against the soundness of a law, to shield him from punishment for the violation of said law? If so, the opinion of the criminal becomes the rule by which you are to try him, instead of the law which he has broken. If this doctrine be established, every traitor in the land will find a complete justification for his many crimes against the ernment of the United States, in this, that he believed that secession was no violation of the Constitution. Doubtless every robber and murderer has some reason by which he justifies himself, in his own mind, for the commission of his crimes. But is that a justification or excuse in law? Had Booth (the assassin) been captured alive, doubtless on his trial he would have said that he thought he was doing no wrong in murdering the President, could he thereby have advanced the interests of his friends in the south, and would have also stated, no doubt, that he was advised by his friends to commit the act. And the accused claims the same as an excuse for his conduct. He claims that he was advised by his ministers at the heads of the different branches of the executive department. But, sir, in neither case can such an excuse be consid ered as in the least manner forming any justification or excuse in law. This plea, answer, or excuse pleaded, if believed by the President and his learned counsel as being any excuse whatever for his violations of law, we may here get some clue to the hesitancy in the trial of Jefferson Davis, the great criminal of the rebellion, (inasmuch as he certainly believed he was doing no wrong in breaking the law, as his opinion was that he was maintaining a great principle.) As the counsel, or a part of them, who now defend the President on this principle, must prosecute Jeff. Davis against this principle, it would seem that, by adopting this theory, they will succeed in releasing both instead of convicting either.

Sirs, adopt this new theory, and you thereby unhinge the law, open wide the prison gates, and give safe conduct to every criminal in the land, no matter how high or low his position, or how grave or small his offences.

Having thus shown what are impeachable offences, the definition of crimes and misdemeanors, and how we are to gather the intention of the accused in the violation of a law, it becomes necessary to examine somewhat the basis of the justification stated by the defendant for his action.

RESPONDENT'S DEFENCE TO FIRST TWO CHARGES.

The respondent admits the facts upon which the first charge rest, but denies that they constitute an offence for which he is answerable to this Senate, sitting as a court of impeachment. This denial involves two inquiries :

1. HAD THE PRESIDENT THE POWER TO REMOVE THE SECRETARY OF WAR UNDER THE CIRCUMSTANCES, BY VIRTUE OF THE CONSTITUTION AND THE LAWS AS THEY STOOD PRIOR TO THE PASSAGE OF THE TENURE-OF-OFFICE ACT?

2 HAD HE THE RIGHT TO REMOVE THAT OFFICER UNDER THE TENURE-OFOFFICE ACT?

It must be conceded that a negative answer to either of these propositions is equivalent to a verdict of guilty. The respondent has stated his defence upon the highest possible grounds, and it is of the first importance that his reasons be put to the severest test, for they underlie the whole network of our admirable system of government. The question here involved was crowded into the smallest compass by the respondent's distinguished premier, on a memorable occasion, when

he put to a gaping multitude, heated by the inflammatory speech of this respondent, this question: "Will you have Andrew Johnson President or King?" Sir, it was gratuitious in this respondent to attempt to purge himself by his answer of an intent to violate the Constitution and laws of the land. His answer stands upon a right which he claims began with his high office, and has clung to the President as an undisputed prerogative since the days of Washington by virtue of the Constitution. If he is right, the motive, whether good or bad, cannot make him answerable; if he was wrong, the motive follows. The innocent violation of a law is not supposable. If there was in this action of the President the exercise of a rightful power, he must be acquitted of this charge; if he acted outside and in violation of law, he must be convicted, whatever his motive. Let us, then, examine the two inquiries suggested:

Sirs, I think there exists a widespread and dangerous misapprehension as to the powers and prerogatives of the President. We have been in the habit of speaking of three co-ordinate branches of government in such connection and in such manner as to imply that each possesses coequal power with the other. One of the transcendently valuable results of the late war has been the fixing the powers of our three branches of government where they properly belong, the resolving of hitherto blended powers into the original elements of government. The rebellion was a war of encroachments upon the rights of the people. The people triumphed, and they now insist that the victory shall not be a barren one.

I hold that the President of the United States possesses no power other than that given him by the Constitution and the laws; and I mean by this that there are no inherent powers in the Executive, no reserved authority, no implied prerogatives other than those which are necessarily dependent upon and derivable from the expressed constitutional provisions and the laws.

With the evils of a monarchy so fresh in their memory, the framers of the Constitution sought to surround the President with such checks as to make him a mere executive officer-the servant of the people. His powers were specifically defined. and confined to the narrowest compass; except the high honor of receiving embassies as the representative of the government, he was stripped of all attributes of sovereignty; he was given no jurisdiction over the legislative or judicial branches, but on the contrary was made amenable to the former for his unofficial as well as official conduct; he can create no office, and his appointing power is only conditional; he is unable to declare war, or alone make treaties; his authority is mainly negative, confined chiefly to offering suggestions to Congress, granting pardons and reprieves, to concluding treaties and appointing ambassadors and other public officers "by and with the advice and consent of the Senate." He is the executive only, and "shall take care that the laws be faithfully executed." He is without the least judicial attribute, and Mr. Kent says:

When laws are duly made and promulgated they only remain to be executed. No discretion is submitted to the executive officer. It is not for him to deliberate and decide upon the expediency of the law. What has been once declared to be law under all the cautious forms of deliberation prescribed by the Constitution ought to receive prompt obedience. (Kent's Commentaries, vol. 1, page 291.)

To the legislative is given the power of supervising the Executive's acts, and to remove him from office for "high crimes and misdemeanors." At the time of the formation of our government so jealous were the people of their rights, and so fearful lest the President might assume undue authority and obtain the power of a monarch, that it was only by the most strenuous exertions of the friends of the proposed Constitution, in triumphantly showing that this power of removal made him subservient to Congress, that the public mind became reconciled, and the Constitution was finally accepted by the people. They seemed even then to well understand their rights. The great danger attending the appointing power was perceived. Then, as now, the people feared the enormous