argument of john a bingham 1868

8/17/2019 Argument of John a Bingham 1868

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M . A R G U M ENT

º QF

r

º t

JOHN A. BINGHAM

CIIAIRMAN OF THE MANACERS ON THE PART OF THE IOUSE,

i s ºr( )

t º

e

THE SENATE OF THE UNITED STATES,

SITTING

FOR

TIE

TRIAL

( º r

YxDREW

JOHNSON,

PRESIDENT OF TH t º UNITED STATES

. . IAIPEACHED

OF IIIGII CRIMES AND

MISDEMEANORS,

MAY 4, 5,

ANI)

(, 1863.

WA S H

IN

GT

ON

:

F. & J . RIVES & GEO. A. BAILEY,

REPORTERS

AND

PRINT

CRS OF THE DEBATES OF CONGRESS.

1868.


2/66

Tocuments Dept.

-

:


3/66

JK's 75

/2 & 3 .

E’ſ

Jºe.”

--

22*.*.*

tº

ARG

U

M

ENT.

Hon.

JOHN

A. BINGHAM one of

the

Managers

of

the

impeachment

on the

part of

the House of Representatives, closed the argu

ment, as follows: -

Mr.

PRESIDENT

and

SENATORs: I protest,

Senators,

that in no mere

partisan

s p i r i t , in

no

s p i r i t of resentment or prejudice do I come

to the argument of t h i s grave i s s u e . A Rep

resentative of th e p eo pl e , upon th e responsi

bility

and

under

th e

obligation

of

my

oath,

by

order of

the

people's Representatives, in

th e

name of the people, and for th e supremacy of

their

Constitution

and laws, I this day speak. I

F. you, Senators, “hear

me for my

cause.”

ut

yesterday th e

supremacy

of

the Constitu

tion and

la ws was

challenged by

armed

rebel

lion; to - day

the

supremacy

of

th e

Constitution

and laws

i s challenged

b y executive usurpation,

and i s

attempted to

b e

d efende d

in

th e pres

ence

of the Senate of th e United States b y th e

retained

advocates of

the

accused.

For four years millions of men disputed b y

arms

the

supremacy

of

American

law

onAmer

ican s o i l . Happily f o r our common country,

happily

f o r

our

common humanity,

on

the

9th

day of A p r i l , i n

the year

of

our Lor d 1865, the

broken battalions of treason and armed resist

ance

to

law surrendered to

the victorious

l e g i o n s of the Republic. On that day, not with

out

s a c r i f i c e ,

no t

without

suffering, no t without

martyrdom,

the laws

were vindicated.

On

that

d ay

the word went

out a l l over

our own

sorrow.

s t r i c k e n land

and t o every

n a t i o n a l i t y t h a t the

Republic, the l a s t refuge of c o n s t i t u t i o n a l lib

e r t y ,

the

last sanctuary of an

inviolable

justice,

s

saved

by th e

virtue and valor of

i t s children.

the 14 th

day

of April, in th e year of our

65 , amid the joy and

gladness

of the

*

their

great

deliverance, here in th e

- n

assassin's

hand,

f e l l

Abraham

L i n c o l n ,

P r e s i d e n t

o f t h e

United S t a t e s ,

s l a i n

not f o r his

crimes, b ut

for his

virtues,

and

e s p e c i a l l y f o r h i s f i d e l i t y t o duty—that highest

word

revealed by

God

t o

man.

Upon t h e

d e a t h

o f

Abraham

L i n c o l n ,

An

c a p i t a l ,

b

drew Johnson, then

Vice

President, by force

of

the

Constitution, became President of the

United

S t a t e s , upon

taking the prescribed oath

that he would faithfully execute

th e o f f i c e of

President,

and

preserve, p r o t e c t ,

and

defend

the Constitution of the United States. The

people,

bowing

with

uncovered

head i n the

|.f the s t r a n g e , great

sorrow

which

had

come upon them, forgot for

the moment

th e

disgraceful

part

which

Andrew

Johnson

had played here

upon

the tribune of the Sen

ate

on

the 4th

d ay

of

March, 1865,

and accepted

the

oath thus taken b y him

as the

successor of

Abraham Lincoln as confirmation

and

assur

ance

that

he

would

take care

that

the

laws

be

f a i t h f u l l y executed.

I t

i s with the people an

i n t u i t i v e

judgment,

the highest conviction of

the human

intellect,

that

the oath faithfully to

execute

the

o f f i c e

of President, and to

preserve,

p r o t e c t , and defend the Coustitution

of

the Uni

te d

States, means, and must

forever

mean–

while

the

Constitution remains

as i t is—that the

President

w i l l

himself

obey,

and

compel

others

t o

obey,

the laws enacted by the

l e g i s l a t i v e de

partment o f the Government, u n t i l the same s h a l l

have been repealed or reversed. This, wemay

assume, for the

purpose

of

this

argument, to be

the general judgment of the people of t h i s

coun

t r y .

Surely

i t i s

the

pride

of every

i n t e l l i g e n t

American that none

are

above and none be

neath

th e

laws; that

the

President

i s

as much

th e subject

of

l aw as the

humblest peasant on

th e

remotest frontier of our

ever

advancing

civilization. Law i s th e only sovereign, save

God,

r e c o g n i z e d b y

t h e

American

p e o p l e ;

i t

i s

a rule of c i v i l action hot only to the individual,

but

to

the million ; i t

binds

alike each and

a l l ,

the o f f i c i a l

and

th e

u n o f f i c i a l ,

th e

citizen and

th e

great people themselves.

This,

Senators—and

I am almost fearful that

I may

offend

in saying it—is of the traditions

of

the

Republic,

and i s

understood from the

Atlantic t o the

P a c i f i c

shores by the

f i v e

and

t h i r t y

millions

of p eop le who

dwell between

t h e s e oceans and h o l d i n t h e i r hands t o - d a y the


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4

greatest

t r u s t ever committed i n the providence

of

God to

a political society.

I f e e l myself j u s t i f i e d , entirely justified, in

saying

that i t rests

not

simply

upon

th e

tradi

t i o n s

o f

t h e

p e o p l e ,

b u t

i s

embodied

i n

t h e i r

written record from the

day when they

fired

th e f i r s t

gun

on th e

f i e l d of

Lexington

to

this

hour.

Is

i t not

declared in that

immortal Dec

laration which w i l l

live

as

l ong as our

language

lives, as

one

of the

causes

of revolt against

th e

king of

Great

Britain, whose character

was

marked b y e ve r y act

which

may define a tyrant,

that he had forbidden his

governors

to pass

laws, unless suspended in their operation

until

the y shoul d have received his assent—I us e

th e words of the

Declaration, which,

like th e

words of Luther, w e r e half battles—the law

should b e

suspended

until his

assent

should

be

obtained. That was the f i r s t utterance against

the cl aim o f e xe cutiv e power to suspend th e

laws

by those

immortal men with whom

God

walked

through

the

night and

storm

and

dark

ne ss of th e

Itevolution, and whom

he taught

to

lay here at the going

down

of th e sun th e

foundations of those

institutions

of civil and

religious liberty which have since become th e

hope of

the world.

ſºhe w r i t t e n

record

f u r t h e r , s t i l l ask

ing pardon of the

Senate,

praying them to

remember that

I

speak

this

day

not

simply

in

the presence of Senators, but i n

the

presence

of an

expecting and

waiting

people, who

have

commissioned you

to discharge this high trust,

and have committed

to

your hands, Senators,

th e issues of l i f e

and

death to the Republic.

I refer

next

to

the words of

Washington,

f i r s t

of Americans and foremost of men,

who de

clared

that

the Constitution which at any time

exists

until changed b y the act of the whole

people i s

sacredly

obligatory upon

a l l .

I refer next to

a

s t i l l higher authority, which

i s

the

expression

of

th e

collective

power and

will of th e whole people of th e United States,

in which i t is

asserted

that—

“This Constitution, and the laws made in pursu

ance

thereof

and

al l treaties made or which shall

be

made

by

th e

authority

o f t he

United

States, shall

be th e supreme law

of

th e land; and th e judges

in

e v e r y State

slal

b e bound thereby,

anything

in th e

constitution and laws of any State to the contrary

notwithstanding.”

That is the solemn declaration of the Con

s t i t u t i o n ; and pending t h i s t r i a l , without a

arallel

in th e history of the nation,

i t should

{ .

written

upon

these

w a l l s .

How

ar e

these

propositions, so

p l a i n

and

simple t h a t “the wayfaring man coul d not e r r

therein,” met b y the retained counsel

who

ap

pear t o defend

t h i s

treason of

the

President,

this

betrayal

of the g r eat trusts of the people?

Theproposition i s

met by s t a t i n g

t o

the Senate,

with an audacity that has scarcely a parallel in

th e history

of

judicial

proceedings, that e v e r y

o f f i c i a l may

challenge

at pleasure

the

supreme

law of the land, and especially that the Presi

dent of the United States,

charged

b y his oath,

charged by

the express l e t t e r of the Constitu

tion,

that

“he

shall

take care that the laws be

faithfully

executed,”

i s

nevertheless invested

with the power to interpret the

Constitution

for

himself, and

to determine

judicially–Sen.

ators,

I

use

th e

word

used b y

th e

learned

gen

tleman who

opened

the case for th e accused

—to determine judicially whether th e laws de

clared b y th e Constitution to b e supreme ar e

after

a l l

not

null

and void, because they

do

not

happen to accord with his judgment.

That i s th e defense which i s p re se nte d h er e

before

th e S enate of th e

United

States, and

upon which

they

ar e asked to deliberate, that

the Executive i s clothed with power judicially

—I repeat

their

own w o r d , and I desire

that

i t may

b e burned

into the b rain

of Senators

when they

come to deliberate

upon this

ques

tion—that

the

President

may

judicially

con

strue th e Constitution

for himself, and judi

cially determine finally for himself whether

th e

laws, which

b y

your

Constitution ar e

de

clared to

be

supreme,

ar e

not, after a l i ,

null

and

void

and

of no e f f e c t , and no t to b e exe

cuted, because i t

s u i t s the pleasure

of

h i s

high

n e s s , Andrew Johnson,

f i r s t king

of the

peo

pl e

of

the

United

S t a t e s ,

i n i m i t a t i o n of George

III, to suspend their execution.

He

ought to

remember, when he comes

with

such a defense

as that before the Senate of the

United

States,

that

i t

was

said

by one

of

those

mighty

spirits

who

put

the Revolution

in

motion and who con:

tributed to th e organization of this great

and

powerful

people,

t h a t Caesar had h i s

Brutus,

Charles

I

had

his Cromwell and George III

should p r o f i t by t h e i r example. Nevertheless

—and

this

i s th e

central point of

this

entire

discussion—the

p o s i t i o n i s assumed

here

i n

t h e

presence of

the

Senate, i n the presence of the

people

of

the United S t a t e s ,

and i n

the pres:

ence

of th e

civilized

world, that th e

President

of

th e

United States i s invested with the judi

c i a l

power

t o

determine

the

force

and

e f f e c t

of the Constitution, of his own obligations

under i t , and th e force and effect of e ve ry

l aw

passed

b y the Congress

of

th e United States.

I t must

be

conceded,

i f e ve r y o f f i c i a l may

chal

lenge the l aws as

unconstitutional, and

espe:

c i a l l y i f th e President may, at his pleasure,

declare any

act of

Congress unconstitutional,

r e j e c t , d i s r e g a r d , and v i o l a t e

i t s

p r o v i s i o n s , and

t h i s , too, b y th e authority

of

the Constitution,

that instrument

is

itself a Constitution

of

an:

archy, not

of

order, a

Constitution

authorizing

a

violation

of

law,

no t

enjoining

obedience

t o

law.

Senators, establish

any such

rule as t h i s

for

o f f i c i a l conduct,

and

you

will

have

p r o v e d

yourselves the a r c h i t e c t s of your country's

ruin; you w i l l

have

converted t h i s land o f

law

and

order,

of

l i g h t and

knowledge,

i n t o

a land

of darkness, the very l i g h t whereof w i l l

be

darkness—a land

“Where

eldest

Night

And Chaos,

ancestors

of nature, w i l l hold

E ie r m al a na r ch y , amidst th e nºise * >

Of e nd l e ss w ar s ,

and by confusion

stand.

D i s g u i s e , g l o z e

o v e r , a n d ,

by

s p e c i o u s and


5/66

IX * O5

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pr to l ofcal sin, R de

t is ( s d i the Co8on l ac c a hcted tas in s oce a- he wa orad; at he a ce r y o w e T wol dfse o e Pr e t o Gd oseo t b ros h e i s jce w d o e ed o sr r ao H br w we wl ae e wen oson ad f e im wn eh, y wc e Un


6/66

the great

h e r e a f t e r . I t ru s t.

I

s h a l l

be saved i n

the providence of God, b y His grace, from be

coming,

as

have some of th e counsel

for

the

President in this august presence, a mere eat

er -up of

s y l l a b l e s , a mere

snapper-up of uncon

sidered

t r i f l e s .

1

propose

to

deal

in this

dis

cussion with

principles,

not with

“trifles light

as air.” I care no t i f th e gentlemen

choose

to

call

th e Senate

sitting in

the t r i a l

of

an

impeach

ment a court. The Constitution calls it the

Senate.

I know, as

e v e r y intelligent

man

knows, that the Senate of th e United States,

sitting upon

th e

t r i a l of impeachment, i s the

highest judicial tribunal of th e land. That i s

conceding

enough

t o put an

end

t o a l l t h a t

was

said

on

that point—some

of

i t

most solemnly—

by th e stately argument of th e learned

gentle

man

from

Massachusetts,

[Mr.

Curtis;]

some

of

i t

most tenderly by th e

effective and

adroit

argument

of

my

learned

and accomplished

friend from Ohio, [Mr. Groesbeck,

and

some

of i t most wittily—so w i t t i l y

that

he held his

own

sides l e s t

he

should explode with laughter

at his own wit—by th e learned gentleman from

New York, [Mr. Evarts, who

displayed

more

of

Latin

than of l aw in

his argument, and more

of rhetoric than

of

logic,

and

more

of

intellect

ual pyrotechnics than of e i t h e r .

[Laughter.]

But,

Senators, I am no t to be diverted

b y

these

fireworks,

by

these

Roman

candles,

by

these f i e r y

flying

serpents that ar e l e t off at

pleasure,

and

t o order, by the

accomplished

gentl e man fr om

New

Yor k, fr om the point

made here between th e peop le and th e Presi

d ent b y

his advocates.

I stand upon th e plain,

clear l e t t e r of the Constitution,

which declares

that

“the Senate shall

have

the sole

power

to

tr y a l l impeachments;”

that

i t necessarily in

vests the Senate with the sole

and

exclusive

power

t o

determine f i n a l l y and f o r e v e r e y e r y

i s s u e of law and f a c t a r i s i n g i n the c a s e . This

i s one of

those s e l f

evident

propositions aris

ing

under

th e Constitution

of

th e

United

States

of w hich

Hamilton

spoke i n

wo r ds c l e a r and

strong, which must carry conviction

t o

the

mind

of e v e r y

man, and which I beg leave to

read

i n the hearing

of

the

Senate.

Said Hamilton, a

man who was

g i f t e d by

Providence with

one

of those commanding

intellects, whose

thoughts indelibly impressed

themselves

wherever they f e l l :

“This i s one

of

those truths

which, to

a correctand

unprejudiced mind,

carries

i t s

own

evidence

along

with

i t ,

and may

be obscured but

cannot

be

made

plainer

by

argument

or

reasoning.

It

rests

upon

axioms as simple as they are universal—the means

ought

to

b e proportioned

to th e end; th e

persons

from

whose agency th e

attainment of

any

end i s ex

ected ought to possess th e means

by

which i t i s to

e

attained.”—Federalist, No. 23 .

The end

required

by

th e

letter of your

Con

stitution of the Senate of the United States is

that

th e Senate

decide

f i n a l l y

and

for

themselves

e v e r y

issue of

l aw and fact arising between the

people

and

t h e i r accused President. What

comes then, I want

to

know,

Senators,

of th e

argument of

the

learned gentleman from

New

York? The most significant

lesson to b e

gath

e re d

from which i s this: that the right way and

the

effectual

way by

which

a man may make

h i s speech immortal i s t o make i t e t e r n a l .

[Laughter.] What becomes of h i s long drawn

out sentence

here

about

th e

right

of

this

accused

and g u i l t y man, who stands t h i s d ay clothed

with perjury as

with a garment

i n the presence

of the people,

t o

be

heard

f i r s t

i n

the Supreme

Court of the United States before the Senate

s h a l l proceed

t o

t r i a l and jud g me nt? The

Senate is

vested

with the sol e and exclusive

power t o

t r y t hi s

question,

and

the Supreme

Court of

th e

United States

has no

more

power

to intervene

either

before

or

after judgment

in

the

premises

than

has the Court

of St. Peters

burg;

and so

the people of the United S t a t e s ,

I

hesitate

not

to say ,

will

hold.

Nevertheless, clear and manife st as this

proposition i s , i t has been i n s i s t e d

upon

here

from the opening of t h i s defense t o i t s c l o s e by

a l l th e counse l who have participated in the

discussion, that the Supreme Court i s the final

arbiter

for

the

decision of

a l l questions arising

under the Constitution.

I

do

not

state the

proposition too broadly,

Senators.

My

occu

pations

hav e b ee n

of such

a nature from the

commencementof this trial to this hour that I

have relied more upon my

memory

of

what

counsel said than upon any reading which I

have

given

t o t h e i r

voluminous

arguments

in

defense

of

the

accused; but I

venture

to say

t h a t the proposition i s not

more

broadly

s t a t e d by me

than

i t has b e en s t a t e d b y th em.

I submit

to

th e

Senate that the

proposition

for th e d e fe ns e

i s not warranted

by th e

Consti

tution;

that

there ar e many questions arising

under the

Constitution

of the United

States

w hich b y

no p o s s i b i l i t y

can

be considered

as

o r i g i n a l questions e i t h e r i n the Supreme Court

or i n any othe r court of the United

S t a t e s .

For example, my

learned

and accomplished

friend

who

honors

me

with

his

attention, and

r ep resents the great

and

growing Common

wealth of Illinois upon

this

f l o o r ,

[Mr.

TRUM

BULL,

J i s here and

i s

to remain

h e r e , not

b y

force

of

any decision

which

the SupremeCourt

of th e

United States

has

made,

or b y

force

of

any decision

which the Supreme Court of

the

United States may hereafter

make.

I t

i s not

a question

within

t h e i r j u r i s d i c t i o n . I l l i n o i s

i s one of those great Commonwealths which,

since the

organization

of the Cnnstitution

and

within

th e memory of living men, have sprung

up

from

the

shores

of

the

beautiful

Ohio

away

t o the

golden

sands of C a l i f o r n i a , gildling the

continent

across

with a cordon of

f ree

Common

wealths

under

the d i r e c t operation of the Con

stitution of th e United States. The people by

that Constitution did provide t h a t the Congress

s h a l l have power t o

admit

new States i n t o the

Union,

and

when the Congress passed upon

the question

whether the people of I l l i n o i s had

organized a

government republican

i n form

and were entitled to assume their place in the

sisterhood of f ree Commonwealths the

decis


7/66

7

io n was f i n a l , and th e judge

of

th e

Supreme

Court

who da res

to

challenge

th e gr e at

seal

of

the State of l l l i n o i s ,

which

th e gentleman rep

r e s e n t s , ought t o be i n s t a n t l y e j e c t e d from h i s

place,

which

he

would

thereby dishonor

and

disgrace,

b y th e supreme

power

of th e peop le

speaking

and acting through the

process of

impeachment.

I t does not belong i n

any

sense

of

the word

to the j u d i c i a l power of the United States t o

decide a l l q u e s t i o n s , a r i s i n g under

t h e Consti

tution and laws. Why,

according to this

logic,

the

Supreme

Court

would

come t o

s i t i n judg

ment a t l a s t upon the power given exclusively t o

each House

t o

judge

of

the e l e c t i o n

and quali

fication

of

i t s

own members.

S enato r s, the

judicial power of th e United States i s entitled

to

a l l

respect

and

t o

a l l

consideration

here

and

everywhere

else; but that judicial powe r, as

i s w e l l known t o Senators, i s d e f i n e d and

limited by th e ter ms of th e Constitution, and

beyond those limitations or outsid e of those

grants that tribunal cannot go. I read

from

the Constitution the provision

i n answer

t o

the argument of the gentleman touching the

judicial power

of

the United

States:

“Thejudicial power of the United States shall be

vested in one Supreme Court, and in such

inferior

courts as the Congress may from time

to

timeordain

and establish.” * *

*

* * *

*

“The

j u d i c i a l

power

s h a l l

extend

t o

a l l

c a s e s ,

in

law and equity a r i s i n g under

t h i s

Constitution, the

laws of theUnited States, and treaties made, or which

shall be made,

under their authority;

to

al l cases

affecting embassadors, other,

public ministers,

and

consuls: to a l l

cases

of

admiralty and

maritime

juris

diction; to controversies to which the

United

States

shall be a par ty ; to

controversies

between

two

or

more States:

between

a State

and

citizens

of

another

State; between citizens of different States: between

citizens

of

thesameStateclaiming lands

under

grants

of different

States,

and between a State, or the citi

zens thereof

and

foreign States, citiz ens or subjects.”

“In al l

cases

affecting embassadors,

other

public

ministers, and consuls, and those in which a State

shall

be a

party,

th e Supreme

Court

shall have ori

ginal

jurisdiction.

In

a l l

the

other

cases

before men

tioned

th e

Supreme Courtshall

haveappellate

juris

diction, both as

to

law and fact, with such

exceptions

and under such regulations as the Congress shall

make.”—Constitution, article 3.

As I s a i d

b e f o r e ,

inasmuch a s t h e

Senate

o f

the

United

States

has

the s o l e power t o t r y

a l l

impeachments, and

therefore

the exclusive

power

t o f i n a l l y

determine a l l q u e s t i o n s

a r i s i n g

therein, i t results

that

i t s

decisions can

neither

be restricted b y

judgments in

advance,

made

b y e i t h e r the Supreme Court or any other court

of the United S t a t e s , nor

can

the f i n a l judgment

of

t h e

Senate

upon impeachment be

s u b j e c t e d

to r eview

b y

th e

c i v i l courts

of th e United

States

or

t o

r e v e r s a l by e x e c u t i v e pardon. So i t i s

written

i n the Constitution, t h a t the pardoning

power

s h a l l

not

extend t o impeachments. Im

peachment

i s

n o t

a c a s e i n “law o r e q u i t y , ”

w i t h i n t h e meaning of

t h e terms

a s employed

i n the t h i r d a r t i c l e of t h e C o n s t i t u t i o n , which

I

have

j u s t

r e a d . .

I t

i s i n no s e n s e a

c a s e

within the general j u d i c i a l

power of

the United

States. •.

Senators, no one

i s

either

bold enough or

Senate

of th e

United

States

and

clearly and

openly

proclaim and avow that th e Supreme

Court

has

the power t o t r y

impeachments.

Nevertheless, the position

assumed

in this

defense

for

th e

accused

that

he

may

suspend

the

laws,

dispense with their execution, and

interpret

and

construe th e Constitution fo r

himself to th e

hur t of

th e Republic,

without

peril to his o f f i c i a l position, i f he accompanies

i t either at the time or after the fact

with

a

statement

that his only

object

in violating

th e

Constitution

or

in

suspending the

laws and

dis

pensing with their execution

was

to obtain at

some

future day a judicial construction of the

one

or a judicial decision upon the validity of

the

other, th e

Senate i s

not to

hold him

to

answer upon impeachment f o r high crimes and

misdemeanors,

does

involve

the

proposition,

and

no man can get

away

from i t , that the

courts

at last have a

supervising

power over

this

unlimited

and unrestricted

power

of im

peachment vested by the people i n the House

of

Representatives, and t h i s unrestricted power

t o t r y

a l l

impeachments vested by the

people

in the

Senate.

On this proposition I am will

ing t o stand, defying any man here or

else

where t o challenge i t s u c c e s s f u l l y . The posi

tion assumed b y th e accused means that or i t

means

nothing.

If

i t does not mean that i t i s

like

unto—

“A tale told

by

an idiot,

Full

of

sound

and

fury, signifying nothing.”

Just nothing. Now, I ask you, Senators,

what colorable excuse i s there for presenting

any such monstrous

proposition

as t h i s t o

the

consideration of

the Senate

of

the United

States? I think myself in this

presence

justi

f i e d i n r e i t e r a t i n g the wo r ds of John Marshall

upon

one occasion,

that

i t i s reasonable

to

presume that the Senate knows something.

The o r i g i n a l

j u r i s d i c t i o n of

the

Supreme

Court

of

th e

United

States

cannot

by

any

pos

s i b i l i t y extend

t o a case

of impeachment. Sen

ators w i l l please remember the text of the

Con

stitution which

I

havejust read,

that

th e original

j u r i s d i c t i o n

of

the Supreme Court

of

the

United

States i s

by th e

express letter

of the Constitu

t i o n r e s t r i c t e d t o f o r e i g n embassadors, other

public m i n i s t e r s , and consuls, and t o cases i n

which

a State

may

be a

party. The accused

i s not a foreign embassador; the accused i s

not

a

foreign minister;

the

accused

i s no t

a

consul;

.

he accused

i s

not

as

yet, thank

God,

“the

State.”

Therefore,

th e

accused

i s

not within the o r i g i n a l j u r i s d i c t i o n

of

the Su

preme Court

of

the

United

S t a t e s .

When

the gentlemen

were dwelling so

learn

edly and

so

long upon

t h i s

question, and read

ing

from the great case of Marbury v s . Madi

son, they ought t o have remembered t h a t the

Chief Justice

who pronounced that d e c i s i o n ,

and whose i n t e l l e c t , f u l l - o r b e d ,

shed

a steady

and luminous

l i g h t on

the jurisprudence of

the

country f o r a t h i r d of

a

century, d e c l a r e d ,

what

no

man has since questioned,

t h a t the

orginal

j u r i s d i c t i o n

of

the Supreme Court

a s

defined


8/66

A.

in this text of the Constitution could

neither

be enlarged

nor restricted b y congressional

enactment.

These gentlemen ought

to

have

remembered, further, when

they

invoked th e

intervention of

th e Supreme Court or any other

court,

between

th e

people

and

this

accused

President,

that th e ap pe ll ate jurisdiction

of

th e Supreme

Court,

b y

numerous decisions,

depends exclusively under the Constitution

upon th e

will of

Congress.

I t

results,

there

fore, that

they

must go

to

some

other

tribunal

f o r the

settlement

of

t h i s great

question

between

the

people and

the

President, unless Congress

chooses t o

l e t them

go t o the Supreme Court

by a special enactment for their

benefit. The

appellate

j u r i s d i c t i o n , Senators,

o f

t h e

Supreme

Court

as defined

i n the

Constitution

b y words

clear

and

plain

and

incapab le of

any

misunder

standing or misconstruction,

exclude

th e con

clusion that a

case

of impeachment can by any

possibility be

within

th e

jurisdiction

of any of

the courts of th e United States, either i t s dis

t r i c t , i t s c i r c u i t , or i t s Supreme Court. The

Senate w i l l

notice

that by th e terms of th e

Constitution the appellate j u r i s d i c t i o n from

the

district and circuit

courts is limited

to

the

cases in l aw

and equity

and th e other cases

named

in

th e

Constitution,

none of

which

em

brace a case of impeachment.

There

i s ,

therefore,

Senators,

no

room for

invoking the decision

of

the Supreme

Court

of

the

United States

upon

any question touching

th e l i a b i l i t y of the

President to

answer upon

impeachment by

the

people's I R e p r e s e n t a t i v e s

at the bar of the Senate. What excuse,

there

fore, I a s k , i s there f o r the pretense t h a t the

President

may

s e t aside and dispense with the

execution of th e laws, a l l

or

any of

them,

en

acted by the Congress under the p retext of

defending

the Constitution by invoking

a

judi

c i a l

inquiry

in the cour ts of the United States.

Be i t known, Senators, t h a t

but

two ques

tions

which

b y

possibility

could

become

the

subject

of

judicial

decision,

have been

raised

by

th e

learned and

astute

counsel who have

attempted

to

make

this defense.

The

f i r s t

i s

that th e heads of Departments ar e the mere

r e g i s t e r i n g

s e c r e t a r i e s

of the President

of

the

United States,

and ar e

bound to recognize his

will as their

sworn duty.

I

deny

that propo

sition;

and

I think that th e learned gentieman

from New

York d id

well, remarkably well, as

he does everything well, to quote in advance

for our instruction when we should

come

to

reply

t o

him

upon

t h i s

p o i n t ,

those

divine

words of

the great Apostle

to th e

Gentiles,

whe rein

he sp eak s o f charity as long patient

and

suffering. I t required a

charity,

Senators,

broader

than the c h a r i t y of the Gospel, t o

s i t

patiently

by

and hear these

gentlemen invoke

th e decision

of

th e Supreme

Court

upon

either

of th e questions involve d in

this

issue, when

we

knew that

these gentlemen,

overflowing

as

they manifestly ar e with a l l

learning, ancient

and

modern, the l ear ning of th e dead as well

as the learning of

the l i v i n g ,

knew r i g h t well

that the Supreme

Court of

th e United States

had

solemnly

decided

both questions against

them.

Now for th e proof. As to th e obligation of

the heads of the

Departments

to learn their

duty

under

th e

l aw

through

th e

w i l l

of

an

Ex

ecutive, th e Senate will remember that the

learned gentleman from New York handled

th e great case of Marbury v s . Madison

with

wondrous s k i l l and dexterity.

He

took care,

howe ve r, not to quote that part of the decision

which

absolutely settles this

question

as to the

obligation of the Secretaries

t o

respond t o the

will

of th e Executive in questions of l aw ; he

took

care

not to quote

i t , and

to keep i t in th e

back ground.

Perhaps,

Senators, he assumed

that he knew a l l that th e poor Managers of th e

House

knew

about

this

case,

and

then

he

knew

a l l

that he

knew

besides, gathered from Taci

t u s , i f y ou p l e a s e , and from the p h i l l i p i c s of

Cicero

against Cataline and from

t h a t

speech

of

his

in

defense

of

Milo, which i t

happens he

never made until

after

poor \ l i l o was convicted

and banished

and was heard to

cr y

out in th e

agony of h i s s o u l i f he had made t h a t speech

f o r him on the t r i a l , “I would not be t o d ay

here i n Marseill es eating mullets.” Laughter.]

I read

now

in th e hearing of th e Senate th e

decision of

Chief

Justice Marshall in the case

of

Marbury

v s .

Madison,

touching

t h i s

alleged

obligation of

the h ead s o f Departments to

take

the will of the Executive as their law. Mar

shall

says

on page

15 8

of I

Cranch

:

“It

i s

th e duty of the

Secretary of

State

to

conform

to

the law,

and in

this he i s an officer of

the

United

States,

bound

to

obey

the laws.

He acts in

this

re

spect, as has

been

v e ry p r op er l y state d at

th e

bar,

under the autho rit y of law and not b y th e instruc

tions

of the

President.”

If he should

disobey

th e law.

does i t

not

logically

result

that the President's commands

cannot

excuse him ; that the people might well

depose him from his o f f i c e whether the Presi

d ent

willed

i t

or

not?

I t

only

illustrates

th e

proposition

with which I started out, that

neither the President nor

his

Secretaries are

above the Constitution or above thelaws which

th e people

enact.

As

f o r the other proposition, Senators, at

tempted

to b e set up here for this

accused

and

g u i l t y President, t h a t he may, with impunity,

under theConstitution and

laws of

the United

States, interpret the Constitution and s i t in

judicial judgment as th e gentleman from Massa

chusetts [Mr. C u r t i s ] urged i t ,

upon

the valid

i t y

of

your

l a w s , t h a t

question

has

also

been

ruled in th e

Supreme

Court of th e

United

States, and from

that

hour

to

this has nev er

been challenged. Although an attempt was

made to d rag the illustrious name of th e Chief

Justice

who

presides, under th e Constitution,

at this moment

over this

deliberative and

judi

c i a l assembly, t o t h e i r h e l p , i t was made i n

vain, as I shall show before I have done with

this

argument. I say

that

th e position assumed

for th e P r es id e nt b y a l l his counsel that he i s

to

judicially

interpret th e Coustitution for him.


9/66

9

self;

that he i s

to

judicially

determine

the

validity

of laws, and execute them or suspend

them and

dispense with

their

execution

at his

| . . . .

and defy the power of the people to

oring

him

to

t r i a l and

judgment, was settled

against

him

thirty

years

ago

b y

the

Supreme

Court of the United States, and that decision

has never been

questioned

since

b y

any authori

t a t i v e w r i t e r

upon

your

Constitution

or

by any

subsequent decision in your tribunals of justice.

I

read, i n

the f i r s t p l a c e , the syllabus

as

c o l l a t e d

b y th e reporter

[Mr. Worthington]

from the

report i t s e l f , and then I will read

the

decision

ofthe court. It is the case of IKendall vs. the

United States, 12 Peters. In th e syllabus i t i s

stated that—

“By an act f o r

the

r e l i e f of the r e l a t o r s in the case

the

Solicitor

of

the

Treasury

was

directed

to

audit

their claims for

certain services, and the Postmaster

General was directed

to

credit them with the suum

thus found

due: The

Postmaster, General upon the

settlement of the claim b y the S o l i c i t o r credited

the

relators with a

part of the

amous i t found due, but

refused t o

crediº-them

with

the

remainder. w h º

tº

damnus was applied

for

and

issued by

thecircuit

court

of the D i s t r i c t , whereupon the Postmaster, General

brought

th e

case before

th e

SupremeCourt b y

a

writ

of error.”

Upon the hearing of t h a t case i n the Supreme

Court, Justice Thompson pronounced th e uni

ted judgment of the court

as

follows:

“It

was

urged

a t

the b ar

that

the

Postmaster

Gen

eral was alone subject to thedirection and control of

th e P re sid e nt with respect

to

t he e xe cut io n of th e

duty imposed upon him by this law; and this right

of the P r esident i s claimed as growing

out

of the

obligation imposed upon

him

b y th e Constitution,

to

take car e t hat the

laws b e

faithfully

executed. This

i s

a

doctrine that cannot

receive

the sançtion of

t h i s

court. It

would

be vesting

in

the President

a

dis

pensing power. which has no countenance

fo r

its sup

port i n any part of the Constitution, and i s asserting

a principle which,

i ſ

carried out i n i t s

r e s u l t s

t o a l l

cases falling within i t , would be clothing the Presi

dent with a power e n t i r e l y t o control the l e g i s l a t i o n

# Congress and pa ra ly ze the

administration of

jus

lce.

“To contend t h a t , the obligation imposed on the

President

t o

see

the

laws

f a i t h f u l l y

executed

implies

a

power to for bid their execution, i s a novel con

struction of

th e Constitution, and entirely

inadmis

sible.”–12 Peters, p. 612.

I ask you, Senato rs, to consider whether I

was

not justifiable

in

saying that i t

was

a tax

upon one’s patience to s i t here and l i s t e n from

day to day

and

from week to

week

to these

learned arguments made i n defense

of

the Pres

i d e n t , a l l r e s t i n g upon

h i s asserted executive

prerogative to dispense with th e execution

of

the laws

and

protect himself from t r i a l

and

conviction

before

this

tribunal,

b e caus e h e

said

that

he

only v i o l a t e d the

laws

i n order t o t e s t

their

validity in

th e Supreme

Court,

when

that

court

had already decided

t h i r t y years ago that

any

such assumed

prerogative

i n

the

President

enabled him to sweep away a l l

th e

legislation

of Congress and

prevent

the administration of

ustice i t s e l f , and fºund no

countenancein

th e

onstitution? I

suppose, Senators,

t h a t

the

learned e x : Attorney

General

thought t h a t there

was

something here t h a t might d i s t u r b the har

mony and

the

order of

t h e i r argument

i n

t h i s

decision of

Kendall v s .

th e

United States, and

so in

his

concluding argument for th e accused

he

attempted to f o r t i f y against

such

conse

quences b y c a l l i n g t o his aid the decision of

th e present Chief Justice in what i s known as

th e Mississippi

case. With

a l l respect

to

the

learned

ex-Attorney

General,

and

to

a l l

his

associates engaged

in

this

t r i a l ,

I take i t upon

me to

say

that

the

decision pronounced

b y

his

honor

the

Chief

Justice

of

the United States

in th e Mississippi

case

has no more

to

do

with

the question

involved

in

this

controversy than

has the Koran of Mohammed, and th e gentle

man

was utterly inexcusable

in attempting to

force that decision into

this

case in

aid

of any

such proposition as that involved in

this con

troversy, and made, as I shall show before I

have done with i t , directly b y the

President

himself

in

his

answer,

as

well

as

by

the

lips

of

his retained counsel.

What

did his honor the Chief Justice decide

in th e Mississippi case ?

Nothing

in th e wo r l d

but

t h i s ,

as

i s

w e l l known

t o

every lawyer i n

America,

e v en

to

ever y

student of th e law

v er sed not

beyond

the

horn-books

of

his pro

fession,

that where th e l aw vested th e Presi

d ent

with discretionary power his judgment in

the exe rcise

of

his

discretion, under

th e

law,

until that

judgment

was overruled by the l egis

l a t i v e power

of the

nation, concluded

a l l par

t i e s .

We

agree

to

i t .

The

learned

Senator

from

New York,

who honors me

with

his

atten

t i o n , [Mr. CoNKLING, J knows

that

before he

was

born

t h a t

question

was

decided precisely

in the

same

way

in

the

gr e at S tate which

he

so honorably represents here to-day,

and

i s

reported

i n 12

Wheaton ;

but i t

does

not touch

t h i s question a t

a l l ,

and the proposition

i s

so f o r e i g n t o the question that i t i s l i k e

one

of those

suggestions referred

t o

by

Webster

upon

one

occasion

when he s a i d

t o make

i t t o

a right-minded

man

i s to insult

his

intelli

g e n c e . . .

I

r e a d ,

however,

from

t h e o p i n i o n

of

th e Chief Justice,

and

in

reading from

i t

I

wish to be understood that I agree with e v e r y

word

and

letter and

syllable

which

th e

Chief

Justice uttered; but

i t does

not touch this

ques

t i o n . TheAttorney General,

i n

c i t i n g , prefaced

i t

with these words:

“It i s s u f f i c i e n t upon t h i s point t o c i t e a l a t e opinion

of

the Supreme

Court of

th e

United States,

in

what

i s called, th e Mississippi injunction case, d ecid ed

April, 1867. Mr.

Chief

Justice Chase,

delivering

th e

o p in io n o f t he court, says:

“ .

I t i s assumed b y the counsel f o r the State of

Mis

s i s s i p p i that

the President

i n

the

execution of the

reconstruction

acts i s

required

to

perform

a

mere

ministerial

duty...

In

this assumption

there

i s , we

think,

a confounding, of the terms ministerial and

executive, which ar e b y no means

equivalent

in im

p o r t . . A

ministerial

duty, the performance of

which

i m a y , i n

proper

c a s e s , b e required of a head of a De

partment

by judicial process, i s

one, in r espect to

which nothing i s l e f t to discretion.

I t

i s , a

simple,

d e f i n i t e

duty,

a r i s i n g

under

conditiºns admitted or

proved to

exist, or

imposed by

law.’”

After c i t i n g some cases of mere ly m i n i s t e r i a l

duty, the Chief Justice proceeds a s follows:

“In

each

of

these cases

nothing was

l e f t

to

discre

t i o n . There

was no room f o r the

exercise

of

judg

inent.

The law required

th e

performance of a single,


10/66

I0

specific a c t . and that nerformance, i t was held,

might

b e required by

mand'ſ

mus. Very different i s

th e

duty

of the President

in the

oxercise

of the power to see

that

th e

laws

ar e faithfully executed, and among

th e

laws the acts named

in

the bill.”

What acts? The reconstruction act that

vested

him with

a

very

l a r g e

d i s c r e t i o n

t o the

hurt of

the

nation:

“The duty thus

imposed

on the

President

is in no

j u s t sense m i n i s t e r i a l . I t i s purely executive and

political. An

attempt on the

part

of

the

judicial

department

of the

Government to

enjoin

theperform

ance of such duties by the President might

be

justly

characterized, in the language of Chief JusticeMar

shall, as an

“absurd and excessive

extravagance.”

It

is true th at , i n the instance before us, the interposi

tion of the

court

i s not sought to enforce

action

by the

executive under constitutional legislation, but to

restrain

such action under legislation

alleged

to be

unconstitutional. Dut

we

are

unableto perceive

that

this circumstance takes th e case out of th e g ene r al

principle

which

forbids judicial interference

with the

exercise

of

executive discretion.”

What

on

earth has that t o d o with the ques

tion in

issue here 2

I

may

have

occasion,

Sen

ators, and you will pardon mei f I avail myself

of

th e opportunity, to say that the law

which

i s called

in question

he re this

day leaves

no

discretion

whatever

in

th e Executive,

and,

in

the language of

h i s

honor the

Chief J u s t i c e ,

imposed upon him

a

p l a i n

unequivocal duty,

about which he was not even mistaken him

s e l f .

I count

myself,

t h e r e f o r e ,

j u s t i f i e d ,

even

a t t h i s stage of my argument, i n r e i t e r a t i n g

my

assertion that

th e

decision

in

th e

Missis

sippi case has nothing whatever

to

do w ith th e

principle involved in this controversy, and that

the President has no

excuse

whatever

for

at

tempting

to interfere with

and

set

aside

th e

l a i n

mandates

and requirements of

the

law.

There was no d i s c r e t i o n l e f t

i n

him

whatever;

and even h i s counsel had

not the audacity

t o

argue here before the Senate that

th e

act of

1867

which i s

c a l l e d

i n question

by t h i s

Ex

e c u t i v e , who has v i o l a t e d i t s p r o v i s i o n s , d is

pensed with i t s

execution, and d e f i e d

i t s

a u t h o r i t y ,

l e f t

any

d i s c r e t i o n

i n

him.

The

point

they

make

i s

that

i t

i s

unconstitutional

and no

law; and

t h a t

i s the

very

point s e t t l e d i n Ken

dall v s . the United States, that th e power

y e s t e d i n t h e P r e s i d e n t

“to

t a k e c a r e

t h a t t h e

laws

b e

faithfully executed

” vests

in

him no

power

t o

s e t

a s i d e

a law o f

t h e United

S t a t e s ,

and

to dir ect th e

head

of

a Department to dis

obey i t , and

a u t h o r i z e

t h e head o f t h e

D e p a r t :

ment

t o

plead

h i s royal

mandate in

a court of

justice in excuse and justification of his re

fusal to obey th e plain requirement of the law.

It is written in the Constitution that “he

shall

take

care

that

th e

laws

be

faithfully

executed.”

Are we to mutilate the Constitution, and for

th e

benefit

of th e accused

to interpolate

into

the Constitution

a

word

which

is

not there and

the introduction of which would annihilate the

whole

system, that

i s to say , that “the Presi

dent s h a l l take care that the laws w hich he ap

proves, and only the laws which

he

approves,

shall b e faithfully executed?”

This

i s at last

the p o s i t i o n assumed

f o r

t h e President by

him

self in his answer and assumed for him b y his

counsel in his defense; and th e assumption

conflicts

with a l l that

I have already

read

from

the Constitution, with a l l that I have already

r ead of i t s

judicial

interpretation and

construc

tion ; and

i t conflicts as well with a l l

that

re

mains

of

the

instrument

itself.

It

is

useless

t o multiply wo r ds

t o make plain a s e l f - e v i d e n t

proposition; i t

i s useless

to attempt to

imply

this

power

in the P resident

to set

aside

and

|

pense with

th e

execution of th e laws

in th e face

of th e

express

words

of

the

Constitution,

that

“all

legislative

power granted by this

Consti

tution

shall bevested in a Congress

which shall

consist of

a

Senate

and

a House of Represent

atives,” that he shall besworn

“faithfully

to

execute th e

o f f i c e of President,” and therefore

f a i t h f u l l y t o discharge every obligation which

the Constitution

enjoins,

f i r s t

and

foremost

of

which obligations

i s thus

written on

the

very

f o r e f r o n t of

the

instrument,

t h a t he

s h a l l take

care t h a t the laws enacted by the people’s rep

resentatives

in

Congress assembled shall b e

faithfully

executed—not some

of th e laws;

not

th e laws which heapp roves; b ut the laws shall

be executed until the same

shall

have been

duly

repealed by

the power

t h a t made them or

s h a l l have been c o n s t i t u t i o n a l l y reversed by the

Supreme

Court of

the

United

States acting

within the limitations and

under

the restrictions

of the

Constitution itself.

We

have

heard

much,

S e n a t º r s ,

i n t h e

pr o

gress

of this

discussion,

about the

established

custom of the people of t h i s country; we have

heard

much

about the long-continued p r a c t i c e

of eighty

years under

the Constitution

and

laws of the United States. You have listened

i n

v a i n ,

Senators, f o r

a

s i n g l e c i t a t i o n

of

a

s i n g l e instance i n the

h i s t o r y

of the Republic

where

there

was an open

violation

of th e writ

ten l aw of this land,

either

b y the Executive,

by

S t a t e s ,

or b y combinations of men,

which

the people did not crush

a t

the

o u t s e t and put

down.

That

i s

a

f a c t i n

our

h i s t o r y

creditable

t o the American people,

and

a f a c t that ought

t o be considered by

the

Senate when they

come

t o

s i t

i n

judgment

upon t h i s case

now

made

before them for the

first

time

under

the Con

s t i t u t i o n of the United

S t a t e s , whether

the

President

i s above the laws and

can dispense

with

t h e i r execution

with impunity

i n

the ex

e r c i s e

of what i s a d r o i t l y

c a l l e d

h i s

j u d i c i a l

power of interpretation.

I need

not

remind Senators

of

that fact

i n

our e a r l y h i s t o r y when,

by i n s u r r e c t i o n ,

a

c e r t a i n

act

was

attempted

t o

be

r e s i s t e d

i n the

State

of

Pennsylvania, when Wash

ington took

measures

promptly

t o crush

the

f i r s t

uprising of insurrection against the

majesty of the l a w s . The gentlemen have

attempted

t o

summon t o t h e i r aid the great

name

of

the hero

of

New Orlean

.

It is

fresh

within

th e recollection of S enator s, as

i t is fresh within the recollection of millions

of the people of this country, that when th e


11/66

lXI *PATRCH

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e e s a se ie c of Sars � r

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siu; a w I , a, u c r e n·te e rk c s r ud e i w fhh Wr e s jnl ay w _ i s r e aw c rd e o e OTru o e n t "ry e j uo n ry c s ue of ame cav nr h b inos oris e a o e li Rl; aw wc or a rwrd e is ic to e d o he r w c occe o e c l hecnce of civz , ade i cre ge o e ls, a obence to h rcs o ne as·er, o ge o ar to ta asad ph a aw n pefsang a cre o cris u iies c ae erce o immorliy wch tsrd a io c,a tg of e, c r a rord e c e o d i te r i e o n r is on t res \l a s a r e ic of oi d r [sg

.Gc] o e

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i bbe ad pon er br usby e cs y ue of s w, i r ideny r's co e he i bre is oid b hr o oss of r c

c o th od o ve i hr oaow o e o c ino is of a boge er oao o Araa aw d e Amican peleee o ta day e Aoy Br edi chan ner e haw of Hll,wre ey od li' eplher

nd ere ls e rgra arr i tese o Ara nedce, to e i a e i tle of ice rs h cais and u y aosad ye he poe od y a ai e

aw be xc i i b rdel bo e i peopenng e of any Pr o a e s! o os knw wor a hs c 2 the rrlea s ue i ore i o me y os upn e v rr" o e yr e r Grn oc l c i o Cs t

un hve >e re s r r a er e s cvn. o o is i e q r ee l c d ce f i i a .-a ly r i ks r c ae cr d s am Ac p dy Arc's r; y t l nm r cen acd s , e s ca ai y e o of a eSas o s U xc u eis cue s ovoous y , oweer oesve y b o t d cocc oe le o ied e o civile word.

A ow c co s tntln d o cme e e a he Se t i s the tr cof ia e ow tr o so e y e o ie re o a ne r r b s l o he . I bn de

t n, Sors, e crai , t ecld o e c yr c ao l s e r o r aso e e ie a


12/66

I2

in

our

history,

of

the right

of

th e

Executive,

by

his executive prerogative, to suspend

and

dis

pense with

the

execution of

th e

laws, and that

was the reference which was made to your

lamented

and martyred President, Abraham

Lincoln. In God's

name,

Senators, was i t

no t

enough

that

he

remembered

in

the

darkest

hours

of your t r i a l and

when th e

pillars of your

holy temple

tremb l e d

i n th e

storm of battle that

oath

which, in

his own simpl e w or d s , was “regis

tered in heaven,” and which he must obey on

th e peril

of

his soul—was

i t

not

enough that

he kept his faith unto

th e end

and

f i n a l l y laid

down his

life

a

beautiful

sacrifice

in

defense

of

the Republic and th e l a ws w ith out slandering

and calumniating his memory now

that

he

i s

dead, t h a t h i s tongue i s mute, unable t o speak

for himself, by th e bald,

naked, and false

asser

t i o n t h a t

he

violated

the

laws

of

h i s

country’

I speak earnestly, 1 speak

warmly

on this sub

ject,

because th e man

thus slandered

and

out

raged in th e presence of th e Senate and th e

c i v i l i z e d world was not only my own personal

friend, b ut he was the friend of our common

country

and our common

humanity.

I

deny

t h a t ,

f o r

a

s i n g l e moment, he

was

regardless

of

the obligations

of

h i s oath or of

the require

ments

of

the Constitution. I deny that he

ever v i o l a t e d your l a w s . I de ly t h a t he ever

assumed to himself th e power

claimed

by this

apostate President

t h i s

day

t o

suspend your

laws

and dispense with

t h e i r

execution. Though

dead, he yet

speaks from the

grave;

and I

ask

Senators

when they come to consider this

accu

sation

against

t h e i r

murdered President,

t o

ponder

upon the words

of

h i s f i r s t

inaugural,

when manifestly alluding to the fugitive slave

law,

which violated

e v e r y conviction

of

his

nature,

from which

he went back with abhor

rence, he yet nevertheless i n that inaugural

said to

the

American people, however much

we

may

d i s l i k e

c e r t a i n

laws upon our statute

books,

we

ar e

not

at liberty

to

defy

them,

nor

to disregard them, nor

to

set them

aside; b ut

we must await the action of

the

people and

t h e i r repeal

through the

law-making power.

I do no t

quote

th e

exact wor ds, but I quote

the substance; I

doubt

not they ar e as f a m i l i a r

to th e minds of

Senators

as they ar e to me.

Oh, but s a i d the gentleman, he suspended

the

habeas

corpus

a c t .

Thegentleman was too

learned not to know

that

i t has been settled law

from the earliest times to this hour that in

the

midst

of arms

th e

laws

ar e s i l e n t , and that i t i s

written

in

th e

Constitution

that

“the

privilege

of

th e writ

of

habeas corpus shall not b e sus

pended unless

when

i n cases of r e b e l l i o n or

invasion

the

public

s a f e t y may require i t . ” I t

was not

Mr . Lincoln that suspended

the habeas

corpus act;

i t

was

that great public,

solemn,

c i v i l war that covered your heavens with black

ness and f i l l e d the habitations of your people

with mourning and lamentation for their beauti

f u l , s l a i n upon

the

high

places

of

the l a n d .

Senators,

the

best answer that I can maketo this

a s s e r t i o n

t h a t

your murdered P r e s i d e n t

was

responsible for

what

necessarily resulted from

this atrocious and

unmatched rebellion, I

make

in the words of t i l a t grand and noble man, than

whom a purer, a

wiser, or

better

s p i r i t

never

ascended the chair of c i v i l magistracy in this

or

in

any country, i n this age or i n any age—I refer

to

John

Quincy

Adams—when he

said

that

in th e

presence

of public war,

either

domestic

or foreign, a l l the limitations of

your

Constitu

tion are silent, and in theevent of insurrection

in any of the States, a l l th e institutions of the

States

within which i t

rages, to

use his

own

terse, strong words, “go by the board .” You

cannot prosecute war b y

a

magistrate's war

rant and a constable's s t a f f . Abraham Lincoln

simply

followed th e accepted

l aw

of th e civil

i z e d world i n doing what he d i d . I answer

further, for

I

leave

no

part of i t

unanswered,

I

would

count myself

dishonored,

being able

to

speak here for him when he

cannot

speak fo r

himself, if I l e f t any

colorable

excuse for this

assault

upon

his character

unanswered

and

unchalienged.

Why,

say the gentlemen, y ou passed your

indemnity acts. Now, who i s there

in this

Senate of the United States so weak as not to

know that i t i s in vain that you pass indemnity

acts

to

protect th e

President

of th e United

States, i f , after a l l , his acts

were

unconstitu

tional—to the hur t of private right. You

must go

a

ste p fur th er

than

that

;

you

must

deny

jurisdiction to

th e

courts, you

must

shut

the doors of your te mp le of justice, you must

silence th e

ministers

of the

l aw

before

you

pass

an indemnity act which will protect him

if his act at last

be

unconstitutional. That

was

no t th e

p ur p o se o f

th e

act.

If the gentle

man

r e f e r r e d t o the

general indemnity a c t ,

I

had

th e honor to

draft

i t

myself. I claim no

p a r t i c u l a r c r e d i t f o r

i t .

I t i s not unknown t o

the

l e g i s l a t i o n of

t h i s country

and

of

other

c o u n t r i e s . TheCongress of

the

United S t a t e s ,

as

Senators

w i l l

remember,

passed

a

similar

act

i n

1862. The

general act t o which

I

r e f e r

was

passed

i n 1 8 6 7 .

That

act was simply de

claring that the acts of the President during

th e

rebellion and of those

acting

for

th e

Presi

dent

i n the premises,

should

be a bar t o

prose

cutions against them in

th e courts.

What was

th e object of it? If i t

b e

in th e power

of

th e

nation to

defend i t s e l f , if i t b e constitutional to

defend the Constitution, i f i t be constitutional

for th e P r esid e nt to

summon

th e people

to

th e

defense of their own laws and the defense of

their

own firesides and

the defense

of their

own nationality, th e

law

said that this

should

be an authority to the courts to dismiss th e

proceeding, on th e ground that th e act was

done under,the order of the President. But

how

could we make his act valid

under

the

Constitution

i f

i t was

unconstitutional, i f th e

limitations of the Constitution operated 2

I

d o

no t

stop

to

argue

th e question.

I t has b e en

argued by wager

of

battle,

and

i t

has

been

s e t t l e d beyond review i n t h i s t r i b u n a l or i n any

tribunal t h a t t h e public s a f e t y

i s

the highest


13/66

13

law,

and that i t

i s a part and parcel

of

the

Constitution of

the

United

States. I

I

have answered,

Senators, and I trust

have answered sufficiently, a l l that has been

said

by

th e counsel for the President for the

purpose

of

giving some colorable justification

for

th e

monstrous

plea

which

they

this

day

in

terpose

for

th e f i r s t

time in our history that i t

pertains to

th e

executive

prerogative

to inter

pret the Constitution judicially for himself and

to determine

judicially th e validity

of

e v e r y law

passed by

Congress

and

to

execute i t or sus

pend i t or dispense with i t s execution a t h i s

pleasure.

Mr. SHERMAN. If the honorable Man

ager w i l l

pause

a t

t h i s point of the argument I

will submit a motion that the Senate take a

recess for

fifteen minutes.

The

motion

was

agreed

t o .

At the expiration of the recess the

Chief

Justice

resumed

the chair and cal l ed

the

Sen

ate to order.

Mr .

Manager BINGHAM. Mr . President

and Senators,

th e last words

which I

had the

honor to utter

in

th e p r ese nce o f the

Senate

were

to the effect that I had endeavored to

answer

what

had

been

said b y

the

counsel for

the accused in defense

of

the

monstrous

prop

osition made

for

the f i r s t

time

in the history

of

the Republic

that

th e Executive may suspend

and dispense

with

the execution of thepeople's

laws

at

h i s

pleasure.

I

beg

the

pardon

of

the

Senate

f o r

having forgotten t o notice the ver y

astute argument made by th e l e ar ne d counsel

from New

York [Mr.

Evarts] in behalf of

the

President touching th e broker who refused

to

pay the l i c e n s e under your revenue laws, and

under

the

advice of the learned

counsel

was

f i n a l l y protected

in

th e

courts.

Senators,

par

don me

for

saying again that the introduction

of

such

an

argument as

that

was

an insult to

the i n t e l l i g e n c e of the American Senate; i t

does

not touch the

question,

and th e man who

does not

hat

proposition

i s

no t

f i t

to

stand in

th e

presence

of this tribunal

and

argue

for

a

moment

any issue

involved

in this

controversy.

Nothing i s

more

c l e a r l y s e t t l e d , Senators—

and I ought to ask pardon

at

e v e r y

step

I

take

in this argument

for

making such a statement

to

the

Senate—nothing i s more clearly settled

under the American

Constitution in

al l

its in

terpretations than that the c i t i z e n upon whom

the

law

operates

i s authorized

by the Consti

tution

to decline compliance without

resist

ance

and

appeal

to

the

cour ts for

his

protec

tion.

That was

the case

of

the

New

York

broker

to which th e

learned counsel

referred;

and desperate must be the defense of h i s c l i e n t

i f

i t hangs upon

any such slender

thread.

Who

ever

heard of

that rule of

universal

ap

p l i c a t i o n i n t h i s country of the r i g h t of the

citizen peacefully,

quietly,

without resistance,

without meditating resistance, to appeal to th e

courts against the oppression of the law being

applied t o the sworn executor of the law The

learned gentleman from

New

York

would have

giv en us more

light on

this subject

i f

he had

informed us t h a t

the

c o l l e c t o r

under your

r evenue law had dared, under a letter

of

au

thority of Andrew Johnson, to set aside a

s t a t u t e ,

and

upon h i s

own a u t h o r i t y , coupled

with

that

of

his

chief,

to

ºcſy

your power.

The two questions

ar e

as distinct

as l i f e

and

death, as

light

and darkness, and

no further

word

need

b e said

by

me

to th e American

Sen

ate in answer

to that

proposition.

.

I may be pardoned

now,

S e n a t o r s , f o r r e f e r

ring to other provisions of the Constitution

which do sustain and make clear the position

I assumed as

the

basis of my

argument,

that

the

l e t t e r

of the

law

passed by the

people's

Representatives in Congress assembled

con

cludes th e Executive. I have given you al

ready

the

solemn

decision

of

the

Supreme

Court

of the

United

States

upon

that s u b j e c t ,

unquestioned

and

unchallenged from that

d ay

to t h i s . I now turn

to

a higher and a

more

commanding authority, the

supreme law of

the

l a n d o r d a i n e d by t h e

people

and f o r t h e

peo

p l e , i n which they have s e t t l e d t h i s question

between the peop le and the Executive beyond

t h e reach o f a c o l o r a b l e d o u b t . I r e f e r t o the

provisions of the Constitution which declare

that—

“Every b i l l

which shall

have passed

th e

House of

Representatives and the

Senate shall,

before itbe

come

a

law,

be

presented

to

the President

of

the

Uni

ted States;

if

he

approve,

he shall sign

i t ,

but if

not, he

shall return it with

his

objections to that IIouse in

which it shall have originated, who shall enter the

objections at

large

on

their Journal and proceed to

reconsider i t . If, after such

reconsideration,

two

thirds of that House

shall

agree to

pass

the b il l, it

shall be sent, together

with

the objections, to

the

other House, by which it shall

likewise

be recon

sidered. and

if approved by

two

thirds

of that House

it shall become a law.” * * * * * *

“Ifany b i l l

shall

no t be

returned by

th e President

within ten

days (Sundays

excepted) after

it

shail

have been presented

to

him thesame

shall

be a law

in like manner as if hehad signed i t , unless

theCom

gress

b y

t h e i r adjournment prevent i t s

return, in

which

case

it

shall

not be

a

law.”

I ask th e Senators to please

note in this

con

troversy

between

the R ep r ese ntativ es of th e

people and t h e a d v o c a t e s o f t h e P r e s i d e n t t h a t

i t i s there w r i t t e n i n the Constitution so p l a i n l y

t h a t no

mortal man can g a i n s a y i t ,

t h a t

e v e r y

b i l l

which

s h a l l

have

passed t h e Congress of

#.

United

S t a t e s ,

and been

presented t o t h e

resident

and

s h a l l have

received

h i s

signature

s h a l l

b e

a

law; that

i t

further provides

that

every b i l l which he s h a l l disapprove and return

t o

t h e

House i n which i t

o r i g i n a t e d w i t h

h i s

o b j e c t i o n s ,

i f

reconsidered

and

passed

b y

the

Congress

of

the

United States

by

a

two-thirds

v o t e ,

s h a l l become a law; and t h a t e v e r y h i l l

which

shall have

passed

th e

Congress of

the

United

S t a t e s and

s h a l l have been p r e s e n t e d

t o t h e P r e s i d e n t f o r h i s a p p r o v a l which he

s h a l l r e t a i n f o r

more

than ten

days,

Sundays

excepted, during th e session

of

Congress, shall

be a l a w . That i s the language of the Consti

t u t i o n ; i t

s h a l l

be a law i f he approves i t ; i t

s h a l l

be a law

i f

he disapproves i t and

the

Con


14/66

gress pass

i t over h i s

veto;

i t s h a l l be

a law

i f

he

retain

i t for more than

te n d a ys

during th e

session of Congress, Sundays excepted . In

each such case i t shall b e a

law. I t

i s in vain,

altogether

i n v a i n , against t h i s bulwark of the

Constitution, that gentlemen come,

not

with

their

r i f l e d

ordnance,

but

with

their

small

arms

laying

upon

i t , and telling the

Senate of

th e

łº

States

and

th e

people of the United

States in

the

face of

th e

plain words of

th e

Constitution that i t

shall

not

be a law. The

people meant

p r e c i s e l y

what they s a i d , that i t

shall

b e a l aw

;

though

the

President give never

so

many reasons, b y v e t o , why he deems i t

unconstitutional, nevertheless,

i f

Congress by

a two-thir ds vote pass i t

over

his veto, i t

shall

be the law. That i s the language of the Con

stitution.

What

is

their answer?

“It

is not

to

be

a

law

unless

in

pursuance of the Constitution.”

An

unconstitutional law,

they

s a y ,

i s

no

l aw a t a l l .

We

agree

to

that;

b ut th e

executive—and that

i s

the

point in controversy here—is not th e

department of

th e Government

to

determine

that i s s u e

between

the

people and

t h e i r Rep

resentatives;

and

th e man

i s

inexcusable,

ab

solutely

inexcusable, who

ever

had

th e

advan

tage

of common schools and

learned

to

argument of john a bingham 1868

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