The CHIEF JUSTICE. The present consideration being objected to, the order will lie upon the table.

Mr. Manager BUTLER. Shall these papers, Mr. President, which have been read be placed upon the records of the court now, so that we can get at them? The originals I desire.

The CHIEF JUSTICE. The Chief Justice is unable to answer that question. He takes it for granted that the counsel will submit them to the honorable managers.

Mr. Manager BUTLER. I beg your pardon. They were only submitted under insult.

Mr. NELSON. All I desired to do was this: the honorable gentlemen asked me to submit the letters to them. I said I would most assuredly let them have them if he would return the originals; and I would hand the letters and copies to them. The gentleman can take them with the understanding that he returns them to me.

The CHIEF JUSTICE. There can be no further discussion of this matter except with the consent of the Senate.

Mr. NELSON. There are the letters, [sending the papers to Mr. Manager Butler.]

Mr. Manager BUTLER. No, sir; let them go on the files.

Mr. NELSON. I will deposit them with the Secretary for the present.

Mr. Manager BUTLER. Let them go on the files.

[The papers were handed to the Secretary.]

The CHIEF JUSTICE. The counsel for the President wil proceed with the argument.

Mr. EVARTS. Mr. Chief Justice and Senators, if indeed we have arrived at a settled conclusion that this is a court, that it is governed by the law, that it is to confine its attention to the facts applicable to the law, and regard the sole evidence of those facts to be embraced within the testimony of witnesses or documents produced in court, we have made great progress in separating, at least, from your further consideration much that has been impressed upon your

attention heretofore.

If the idea of power and will is driven from this assembly, if the President is here no longer exposed to attacks upon the same principle on which men claim to hunt the lion and harpoon the whale, then, indeed, much that has been said by the honorable managers, and much that is urged upon your attention from so many quarters, falls harmless in your midst. It cannot be said of this Senate, fertur numeris leges solutis, that it is carried by numbers unrestrained by law. On the contrary, right here is might and power; and, as its servants and in its investigation and pursuit, your sole duty is exhausted. It follows from this that the President is to be tried upon the charges which are produced here, and not upon common fame, and least of all is he to be charged in your judgment, as he has been inveighed against hour after hour in argument, upon charges which the impeaching authority of the House of Representatives deliberately threw out as unworthy of impeachment and unsuitable for trial. We, at least, when we have an indictment brought into court and another indictment ignored and thrown out, are to be tried upon the former and not upon the latter. And if, on the 9th of December of the last year, the House of Representatives, with whom, by the Constitution, rests the sole impeaching power under this government, by a vote of one hundred and seven to fifty-seven, threw out all the topics that fill up the declamatory addresses of the learned managers, it is enough for me to say, that for reasons satisfactory to that authority, the House of Representatives, that bill was thrown out and those charges were withheld.

So, too, if it be a trial on public prosecution, and with the ends of public justice alone in view, the ordinary rule of restraint of the conduct of the prosecu

ting authorities applies here; and I do not hesitate to say that this trial-to be, in our annals, the most conspicuous that our history will present; to be scrutinized by more professional eyes, by the attention of more scholars at home and abroad; to be preserved in more libraries; to be judged of as a national trait, a national scale, a national criterion forever-presents an unexampled spectacle of a prosecution that overreaches judgment from the very beginning and inveighs and selects and impugns and oppresses as if already convicted, at every stage, the victim they pursue. The duty, the constraint upon a prosecuting authority under a government of law pursuing only the public justice, is scarcely less strict and severe than that which rests upon the judge himself. To select evidence, having possession of better; to exclude evidence, knowing that it bears upon the inquiry; to restrict evidence, knowing that the field is thus closed against the true point of justice, is no part of a prosecuting authority's duty or power. Whatever may be permitted in the private contests of the forum, in the zeal of contending lawyers for contending clients, there is no such authority, no such duty, no such permission by our laws in a public prosecution. Much less, when the proofs have been thus kept narrow, when the charges are thus precise and technical, is it permissible for a prosecuting authority to enlarge the area of declamation and invective. Much less is it suitable for a public prosecution to inspire in the minds of the court prejudice and extravagance of jurisdiction beyond the points properly submitted.

It has usually been supposed that upon actual trials involving serious consequences forensic discussion was the true method of dealing with the subject, and we lawyers appearing for the President being, as Mr. Manager Boutwell has been polite enough to say, "attorneys whose practice of the law has sharpened but not enlarged their intellects," have confined ourselves to that method of forensic discussion. But we have learned here that there is another method of forensic controversy which may be called the method of concussion. I understand the method of concussion to be to make a violent, noisy, and explosive demonstration in the vicinity of the object of attack, whereas the method of discussion is to penetrate the position, and if successful to capture it. The Chinese method of warfare is the method of concussion, and consists of a great braying of trumpets, sounding of gongs, shouts, and shrieks in the neighborhood of the opposing force, which rolled away and the air clear and calm again, the effect is to be watched for. But it has been reserved for us in our modern warfare, as illustrated during the rebellion, to present a more singular and notable instance of the method of warfare by concussion than has ever been known before. A fort impregnable by the method of discussion, that is, penetrating and capturing it, has been on the largest scale attempted by the method of concussion, and some two hundred and fifty tons of gunpowder in a hulk moored near the stone walls of the fort has been made the means and the occasion of this vast experiment. Unsatisfied with that trial and its result, the honorable manager who opened this case [Mr. Butler] seems to have repeated the experiment in the vicinity of the Senate. Laughter.] The air was filled with epithets, the dome shook with invective. Wretchedness and misery and suffering and blood, not included within the record, were made the means of this explosive mixture. And here we are surviving the concussion, and after all reduced to the humble and homely method of discussion which belongs to "attorneys whose intellects have been sharpened but not enlarged by the practice of the law." [Laughter.]

In approaching, then, the consideration of what constitutes impeachable offences, within the true method and duty of that solemn and unusual procedure and within the Constitution, we see why it was that the effort was to make this an inquisition of office instead of a trial of personal and constitutional guilt; for if it is an inquest of office, "crowner's quest law" will do throughout for us, instead of the more solemn precedents and the more dignified authorities and duties which belong to solemn trial. Mr. Manager Butler has given

us a very thorough and well-considered suggestion of what constitutes an impeachable offence. Let me ask your attention to it; and every one of these words is underscored by the honorable manager:

We define, therefore, an impeachable high crime or misdemeanor to be one in its nature or consequences subversive of some fundamental or essential principle of government, or highly prejudicial to the public interest, and this may consist of a violation of the Constitution, of law, of an official oath, or of duty, by an act committed or omitted, or, without violating a positive law, by the abuse of discretionary powers from improper motives or for any improper purpose."

See what large elements are included in this, the manager's definition! It must be "subversive of some fundamental or essential principle of government,' "highly prejudicial to the public interest," and must proceed from improper motives" and for an "improper purpose." That was intended, in the generality of its terms, to avoid the necessity of actual and positive crime; but it has given us in one regard everything that is needed to lift the peccability of these technical offences of mere statutory infraction out of the region of impeachable offence. It is not that you may accuse of a definite and formal crime, and then have outside of your indictment, not covered by charge or admitted for proof or countervailing proof, large accusations that touch these general subjects, but that the act under inquiry, charged and proved or refuted by proof, must be of itself such as, within its terms and regular and natural consequence, thus touches vital interests or fundamental principles. The fallacy of these general qualifying terms is in making them the substance of the crime instead of the conditions of impeachability. You must have the crime definite under law and Constitution, and even then it is not impeachable unless you affect it with some of the public and general and important qualities that are indicated in this definition of the learned and honorable manager.

We may look, perhaps, at the statement made by the managers of the House of Representatives on this subject of what constitutes an impachable offeuce in the trial of Judge Peck, Mr. Buchanan, of Pennsylvania, chairman of the managers, being the speaker:

What is an impeachable offence? This is a preliminary question which demands attention. It must be decided before the court can rightly understand what it is they have to try. The Constitution of the United States declares the tenure of the judicial office to be "during good behavior." Official misbehavior, therefore, in a judge, is a forfeiture of his office; but when we say this we have advanced only a small distance. Another question meets us. What is misbehavior in office? In answer to this question, and without pretending to furnish a definition, I freely admit we are bound to prove that the respondent has violated the Constitution, or some known law of the land. This, I think, was the principle fairly to be deduced from all the arguments on the trial of Judge Chase, and from the votes of the Senate in the articles of impeachment against him. (Peck's Trial, p. 427.)

That crime, in the sense of substantial guiltiness, personal delinquency, moral opprobrious blame, is included even under the largest and most liberal accusation that was espoused and defended by the managers in Hastings's impeachment, is to be gathered from one of the many splendid passages of Burke's invective in that cause:

As to the crime which we charge, we first considered well what it was in its nature, and under all the circumstances which attended it. We weighed it with all its extenuations and with all its aggravations. On that review we are warranted to assert that the crimes with which we charge the prisoner at the bar are substantial crimes; that they are no errors or mistakes, such as wise and good men might possibly fall into; which may even produce very pernicious effects without being, in fact, great offences. The Commons are too liberal not to allow for the difficulties of a great and arduous public situation. They know too well the domineering necessities which frequently occur in all great affairs. They know the exigency of a pressing occasion which in its precipitate career bears everything down before it, which does not give time to the mind to recollect its faculties, to re-enforce its reason and to have recourse to fixed principles, but by compelling an instant and tumultuous decision too often obliges men to decide in a manner that calm judgment would certainly have rejected. We know, as we are to be served by men, that the persons who serve us must be tried as men, and with a very large allowance indeed to human infirmity and human error. This, my lords, we knew, and we weighed before we came before you. But the crimes which we

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

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

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

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

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