years ago traitors had been quickly seized and speedily punished, there would never have been a shot fired in rebellion. If plotters had been made to feel the early gripe of the law, there never would have been a resort to arms. When we looked back and recalled the memories of our battle-fields-when we saw the carnage amid the slain, the unutterable woe of the wounded-when we remembered the shriek of the widow, and the sob of the orphan-when we reflected on the devastation of our land, and the burdens now on our people-when we turned us about and saw in every direction the miseries and the mischiefs which follow every war, no matter how just, and when we reminded ourselves that all this would not have been, had treason been executed for its overt acts before yet its hands were red; and when we felt, as we do all feel, that to delay might bring all this and more again upon us, we could not and did not pause. We urged this trial at "railroad speed." In view of such results, self-preservation would have dictated that we should ask for "lightning speed." Ought he to complain? If he is guilty, then there is no speed too great for his deserts. If he is innocent, there is none too great for his deliverance. It is the fact, then, that we have desired to advance this case with all possible speed; but it is not the fact that we have advanced with all possible rigor. We only desired to be just; we did not wish to be severe. If we had been actuated by any spirit other than a sense of our high duty, we might have given the President cause to complain. We might have asked, and asked it in the strength of authority, too, that pending the trial he should have been placed under arrest, or at least suspended from his office. The English practice would have sanctioned this. May, in his treatise on the law, privilege, &c., of Parliament, says:

If the accused be a peer he is attached or retained in custody by order of the House of Lords; if a commoner, he is taken into custody by the sergeant-at-arms attending the Commons, by whom he is delivered to the gentleman usher of the black rod, in whose custody he remains until he is admitted to bail by the House of Lords, or otherwise disposed of by their order. (Chapter 23.)

In Wooddison, we find it was customary for the Commons to request the Lords that the person impeached "may be sequestered from his seat in Parliament, or be committed, or that the peers will take order for his appearance according as the degree of the imputation justifies more or less severity." The Commons demanded that Clarendon be sequestered from Parliament and committed. (6 Howell's State Trials, 395; 11 Howell, 733.)

Lord Stafford was sequestered in 1641. (2 Nalson's Collections, 7.)

In the matter of the impeachment of Blount, it was ordered by the Senate as follows, July 7, 1797:

That the said William Blount be taken into the custody of the messenger of this house until he shall enter into recognizance, himself in the sum of $20,000, with two sufficient sureties in the sum of $15,000 each, to appear and answer such articles of impeachment as may be exhibited against him.

On the 18th day of June, 1788, in the Virginia convention, George Mason objected to the pardoning power vested in the President for ordinary crimes. Mr. Madison in reply said: "There is one security in this case to which gentlemen may not not have adverted; if the President be connected in any suspicious manner with any person, and there be grounds to believe he will shelter him, the House of Representatives can impeach him; they (evidently referring to the Senate, or the Senate in connection with the House) can remove him if found guilty; they can suspend him when suspected, and the power will devolve upon the Vice-President."

Therefore, as we have not asked what we might have so consistently demanded, I feel that he has no ground of discontent with us. What, then, is he to answer? He is to make defence to the charge of high crimes and misdemeanors which the people of the United States, in virtue of their sovereignty, do proclaim against 2 Ir-Vol. ii

I wish to be distinctly understood, when I say that the allegation comes from the people in their sovereignty-in their supreme capacity as the rulers of us all. By remembering this, we may escape from the narrow confines of legal technicalities, and be governed by more extended and liberal rules than prevail in the courts of the common law. It shall not be truthfully said that the charges which come from a whole people are frivolous and vain; it shall not longer be claimed that that which a community in its aggregate capacity asserts is insufficient and of no avail; the mighty mass of men who are the nation-the great unit of minds who are this Union-of minds enlightened, of thoughts profound, of discrimination quick, and purpose steady, of hearts free, of souls resolved, of all the elements which make this nation what it is a nation young in years, but mature in action. The murmur of this nation is mighty, and its accusations cannot be ignored. Here, at least, it may be said: "Vox populi vox Dei"-"the_voice of the people is the voice of God." It is for this reason that neither a demurrer to test any questions of law, or a motion to quash, to decide any questions of fact, have ever been permitted to be interposed against any article of impeachment, no matter wherever or whenever such have been presented. And yet, before issue joined upon the present occasion, it was asseverated against those who favored this proceeding that they were about to pervert the Constitution, to submerge the law, and further their partisan ambitions by the proclamation of charges, which on their face are fabulous and weak, if not absurd and contumacious; and in the answer which this respondent has made he has announced, as one of the issues upon which you are to pass, that several of our articles are insufficient in law, and inadequate in fact. I repeat, sirs, that this is an anomalous answer. The fiat of a people when solemnly pronounced against one to whom they have delegated official favors, and whom they have charged with derelictions of official duty, can never be treated as an empty sound, nor their inquiry regarded as an idle ceremony. And here I wish to impress upon these triers the important fact, that every article which we here present stands in the light of a separate count in an indictment, and must be decided as a separate issue on its own merits. It should not be permitted, where any count is found to contain matter of substance, that the accused should have a verdict of not guilty, because of insufficiency in matters of form.

It is the rule that all questions of law or of fact are to be decided, in these proceedings, by the final vote upon the guilt or innocence of the accused. It is also the rule, that in determining this general issue senators must consider the sufficiency or insufficiency in law or in fact of every article of accusation. But the insufficiency which they are to consider is not the technical insufficiency by which indictments are measured. No mere insufficiency of statement-no mere want of precision-no mere lack of relative averments—no mere absence of legal verbiage, can inure to the benefit of the accused. The insufficiency which will avail him must be such an entire want of substance as takes all soul and body from the charge and leaves it nothing but a shadow. Neither shall the respondent be allowed to escape because of any immaterial variance between the averment and the proof. If we have succeeded in sustaining the principal weight of each separate article, then we are entitled to a finding upon each. These are the propositions, which I gather from the following authorities Trial of Judge Peck, page 232, (Mr. Wirt, counsel for respondent;) Mr. Webster, in the trial of Judge Prescott, page 25; Mr. Shaw, in the same case, page 45; Report from the committee of the House of Commons appointed to inspect the Lords Journals, April 30, 1794.

Story on the Constitution says:

It is obvious that the strictness of the forms of proceeding in cases of offences at common law, are ill-adapted to impeachments. The very habits growing out of judicial employments, the rigid manner in which the discretion of judges is limited and fenced in on all sides in

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order to protect persons accused of crimes, by rules and precedents, and the adherence to technical principles which, perhaps, distinguishes this branch of the law more than any other, are all ill-adapted to the trial of political offences in the broad course of impeachThere is little technical in the mode of proceeding; the charges are sufficiently clear, and yet, in a general form, there are few exceptions which arise in the application of evidence, which grow out of mere technical rules and quibbles; and it has repeatedly been seen that the functions have been better understood, and more liberally and justly expounded by statesmen than by mere lawyers. An illustrious instance of this sort is upon record in the case of the trial of Warren Hastings, where the question whether an impeachment was abated by a dissolution of Parliament, was decided in the negative by the House of Lords, as well as the House of Commons, against what seemed to be the weight of professional opinion. (Story, sec. 762, 763.)

WHAT ARE IMPEACHABLE OFFENCES?

The next question which it is proper to ask is, For what crimes and misdemeanors may an officer be impeached? Can he be impeached for any other than an indictable offence? The authorities certainly sustain the managers in asserting that he may be. We cannot search through all the cases, as they are too numerous, but will call the attention of the Senate to some that should be regarded as good authority, and the opinions of those who should be regarded as learned in the law.

Mr. Madison, in discussing the power of the President, used the following language:

What will be the motives which the President can feel for the abuse of his power and the restraints that operate to prevent it? In the first place, he will be impeachable by this house before the Senate for such an act of mal-administration; for I contend that the wanton removal of meritorious officers would subject him to impeachment and removal from his own high trust. (Annals of Congress, 1804-'5, vol. i, page 517.)

The trial of Blount, 1788-'89. Story, in speaking of that case, says:

In the argument upon Blount's impeachment, it was pressed with great earnestness that there is not a syllable in the Constitution which confines impeachment to official acts, and it is against the plainest dictates of common sense that such a restraint should be imposed. (Story, sec. 802.)

Trial of Judge Chase, February 26, 1805. Mr. Manager Nicholson says: If, therefore, the President of the United States should accept a bribe, he certainly cannot be indicted for it, and yet no man can doubt that he might be impeached. If one of the heads of departments should undertake to recommend to office for pay, he certainly might be impeached for it, and yet I would ask under what law and in what court could he be indicted. (Judge Chase's Trial, page 564.)

In the trial of Judge Chase, Mr. Manager Randolph says:

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It has been contended that an offence to be impeachable must be indictable. For what, then, I pray you, was it that this provision of impeachment found its way into the ConstituIf the Constitution did not contemplate a distinction between an impeachable and an indictable offence, whence this cumbrous and expensive process, which has cost us so much labor and so much anxiety to the nation? Whence this idle paradethis wanton waste of time and treasure-when the ready intervention of a court and jury alone was wanting to rectify the evil? (Annals of Congress, 1804–’5, page 642.)

By permission of the senators I will read some extracts that I have made from the speeches of some of the most learned men of England on this same question, which was discussed in the trial of Queen Caroline in the year 1820. Earl Grey, in speaking of the powers of Parliament, said:

He must maintain this principle, supported on the ground of parliamentary law, and bottomed on the constitution of the country, that on all occasions, when a great state necessity or a matter of great state expediency exists, Parliament were vested with extraordinary powers, and it became their duty to exercise those extraordinary powers in order to procure that remedy commensurate with such state necessity or expediency, which no proceeding in a court of law could effect. (1st vol. p. 8, Trial Queen Caroline.)

In the same case, Brougham (since made a lord) said:

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Impeachment was a remedy for cases not cognizable by the ordinary jurisdiction. The House of Commons might impeach for whatever was indictable, but they also might impeach in cases where no indictment could be found. He submitted, therefore, that some

satisfactory reason ought to be stated why impeachment was not resorted to in this instance. (Vol. 1, p. 22.)

Again, he says:

The learned attorney general had held that no impeachment could lie unless some law was violated; but the opinion was contrary to the doctrine laid down by the greatest writers on the law of impeachment. Lord Coke did not so limit the power of Parliament. He regarded this power as most extensive, and in describing it quoted this remarkable expression: "That it was so large and capacious that he could not place bounds, to it either in space or time." In short, this maxim has been laid down as irrefragable, that whatever mischief is doue, and no remedy could otherwise be obtained, it is competent for Parliament to impeach. Why was impeachment competent in the case of the misdemeanor of a public functionary? Expressly because no remedy was to be found by any other means; because an act had been committed which justice required should be punished, but which could only be reached by Parliament.

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It happened that the very first impeachment which occurred in the history of Parliament was one which neither related to a public officer nor to any offence known to the law. It was the case of Richard Lyons and others, who were complained of for removing the staple of wool to Paris, for lending money to the king on usurious contracts. The statute against usury had not then been passed, and there were various other charges against the parties which formed no legal offence. The case was one in which merchants were, among other things, charged with compounding duties with the king for a small percentage.

Also the "case of Sir Giles Mompessen, for the sale of patents." This was not an indictable offence, and is the more remarkable from being recorded in Coke's Institutes." Hence, we find that in the very inception of trials of impeachment no indictable offence need have been committed.

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Again, we find Mr. Brougham stating:

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"That the house would exercise the right of impeachment, not because the offence was liable to a five pounds penalty-not because it was indictable, but because some evil had been committed which the ordinary courts of law could not reach. This he conceived was the only constitutional principle upon which impeachment rested. The case of Mr. Hastings illustrates his argument, for of the articles of impeachment preferred agaisnt him, four out of five were for offences of a nature of which no court of law could take cognizance. (Vol. 1, pp. 62 and 63.)

I again call attention to the arguments and opinions of learned men of our own country, which most clearly sustain our view on the point now under discussion.

On the trial of Judge Peck, Mr. Manager Buchanan says:

A gross abuse of granted power, and an usurpation of power not granted, are offences equally worthy of and liable to impeachment. (Page 428.)

In the same case, Mr. Manager Wickliffe's remarks are so applicable to the conduct of the respondent that I may be pardoned for giving them in this connection. He says:

Take the case of the President of the United States. Suppose him base enough-or foolish enough, if you please to refuse his sanction to any and every act which Congress may pass. This is a power which, according to the Constitution, he can exercise. Will it be contended that he could be indicted for it as a misdemeanor in any court, state or federal? Yet, where is the man who would hesitate to remove him from office by impeachment? (Peck's Trial, 1831, page 309.)

In the same case, Mr. Wirt, of counsel for the respondent, said:

(Constitution, art. 2, sec. 4.) "The President, Vice-President, and all civil officers shall be removed from office on impeachment for, and on conviction of, treason, bribery, or other high crimes or misdemeanors." The Constitution itself defines treason, but it does not define bribery, nor does it define those other high crimes and misdemeanors for which these officers may be impeached and removed. Now, what does the Constitution mean by the expression high crimes and misdemeanors? It has a meaning; what is it? and where are you to look for it? The phrase is obviously borrowed from the common law; this instrument thus, by its own terms, connects itself, in this instance, with the common law, and authorizes you to go to that law for an explanation of its meaning. In the very proceeding, therefore, in which you are now engaged, the common law is in force for the definition of the high crime or misdemeanor which you are called on to punish. (Peck's Trial, pp. 498 and 499.5

Mr. Story, in discussing what are the functions to be performed in impeachments, says:

The offences to which the power of impeachment has been and is ordinarily applied as a

remedy, are of a political character,

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what are aptly termed political offences, growing out of personal misconduct or gross neglect, or usurpations, or habitual disregard of the public interests, in the discharge of duties of political office These are so various in their character, and so indefinable in their actual involutions, that it is almost impossible to provide systematically for them by positive law. They must be examined upon very broad and comprehensive principles of public policy and duty. They must be judged of by the habits, and rules, and principles of diplomacy, of departmental operations and arrangements; in short, by a great variety of circumstances, as well those which aggravate as those which extenuate or justify the offensive acts; which do not properly belong to the judicial character in the ordinary administration of justice, and are far removed from the reach of municipal jurisprudence. (Story on Const., see 762.)

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Treason is defined in the Constitution itself; bribery is defined by common law; and Mr. Story, in discussing the definition of impeachable crimes, says:

The only practical question is, What are deemed high crimes and misdemeanors? Now, neither the Constitution nor any statute of the United States has in any manner defined any crimes except treason and bribery to be high crimes and misdemeanors, and as such impeachable. In what manner, then, are they to be ascertained? Is the silence of the statute book to be deemed conclusive in favor of the party until Congress have made a legislative declaration and enumeration of the offences which shall be deemed high crimes and misdemeanors? If so, then, as has been truly remarked, the power of impeachment, except as to the two expressed cases, is a complete nullity; and the party is wholly dispunishable, however enormous may be his corruption or criminality. (Story s Com., Sec. 794.)

In further reasoning upon the same subject, he says:

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There are many offences, purely political, which have been held to be within the reach of parliamentary impeachments, not one of which is in the slightest manner alluded to in our statute books. And, indeed, political offences are of so various and complex a character, so utterly incapable of being defined or classified, that the task of positive legislation would be impracticable, if not almost absurd to attempt it. The only safe guide, in such cases, must be the common law, which is the guardian at once of private rights and public liberties; and however much may fall in with the political theories of certain statesmen and jurists, to deny the existence of a common law belonging to and applicable to the nation in ordinary cases, no one yet has been bold enough to assert that the power of impeachment is limited to offences positively defined in the statute book of the Union as impeachable high crimes and misdemeanors. (Sec. 798.)

Also same authority:

In examining the parliamentary history of impeachments, it will be found that many offences not easily definable by law, and many of a purely political character, have been ́ deemed high crimes and misdemeanors, worthy of this extraordinary remedy. Thus lord chancellors and judges and other magistrates have not only been impeached for bribery, and acting grossly contrary to the duties of their office, but for misleading their sovereign by unconstitutional opinions, and for attempts to subvert the fundamental laws, and introduce arbitrary power. So, where a lord chancellor has been thought to have put the great seal to an ignominious treaty; a lord admiral to have neglected the safeguard of the sea; an ambassador to have betrayed his trust; a privy counsellor to have propounded or supported perBicious and dishonorable measures; or a confidential adviser of his sovereign to have obtained exorbitant grants, or incompatible employments-these have been all deemed impeachable offences. (Story's Com., book 3, chap. 10, sec. 798.)

Mr. Story, after his examination of impeachment trials in England and the few cases in this country, came to the following conclusion in regard to the rule applicable to trials of impeachment before the Senate of the United States :

Congress have unhesitatingly adopted the conclusion that no previous statute is necessary to authorize an impeachment for any official misconduct, and the rules of proceeding, and the rules of evidence, as well as the principles of decision, have been uniformly promulgated by the known doctrines of the common law and parliamentary usage. In the few cases of impeachment which have hitherto been tried, no one of the charges has rested upon any statutable misdemeanor. (Story's Com., book 3, chapter 10, section 797.)

Although we have shown that both English and American authorities sustain us in the position that an offence need not be punishable or indictable by statute law to be an impeachable offence, yet we are told that British precedent should not influence the case, because they hold the ministers of the Crown accountable for the honesty, legality, and utility of measures proposed by them, and punishable by impeachment for failure in any of these particulars; yet that construction of the law of impeachable offences has obtained because Parlia