Addition to first note on page 1, 130, ante.

In the Convention the plan of the Committee of the Whole referred the trial of impeachments to the Supreme Court. This was changed so as to give the jurisdiction to the Senate. Curtis, referring to this, says:

The cognizance of impeachments of national officers was taken from their [the Supreme Court jurisdiction, and the principle was adopted which extended that jurisdiction to "all cases arising under the national laws, and to such other questions as may involve the national peace and harmony."-2 Curtis Hist. Const., p. 176.

Hon. John C. Hamilton, in an able article, says:

It is urged on behalf of the President that it was with much doubt and hesitation that the jurisdiction to try impeachment at all was intrusted to the Senate of the United States. The grant of jurisdiction to the Senate was deferred to the last moment.

The intrustment of this power to the Senate was not delayed because of any doubt or hesi tation; nor was it deferred. The proposed intrusting this power to the Supreme Court was before it was determined that the appointment of the judges should be made by the President with the consent of the Senate. This mode of appointment was agreed to unanimously in the Convention on the 7th of September, 1787; and the next day, the 8th of September, Roger Sherman raised the objection that the Supreme Court was "improper to try the Pres ident, because the judges would be appointed by him. This objection prevailed, and the trial was intrusted to the Senate by the vote of all the States with one exception; and thus, on the same day, immediately after, the subjects of impeachment were extended from treason and bribery to other high crimes and misdemeanors," and thus intrusted and thus enlarged, it was on the same day made to embrace "the Vice-President and other civil officers of the United States."

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Thus it is seen that while the Supreme Court-a judicial body-was contemplated as the court for the trial of impeachments, its jurisdiction was proposed to be limited to two crimesstatutory offences-and therefore to be governed by "strict rules" of law; but when confided to the Senate-a political body-the jurisdiction was extended to political offences, in the trial of which, from "the nature of the proceeding a national inquest," a commensurate discretion necessarily followed. Thus it is a strange venture for any man to declare in the presence of this whole country "that it is impossible to observe the progress of the deliberations of that Convention upon this single question, beginning with the briefest and most open jurisdiction and ending in a jurisdiction confined in its terms, without coming to the conclusion that it was their determination that the jurisdiction should be circumscribed and limited." It is here averred, and the evidence is positive, that from the progress of the deliberations of the Convention, the opposite conclusion is the only one to come to.

Addition to second note on page I, 131, ante.

The question of the power to suspend the President is discussed in speeches of December 13, 1867, February 24 and 29, 1868, in the House of Representatives. (See Congressional Globe.)

Addition to third note on page 1, 131, ante.

On these citations from the Federalist Hon. John C. Hamilton remarks: This quotation exhibits three most important facts: first, that the subjects of the jurisdic tion "of the court for the trial of impeachments" are those offences which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. Second, that in the delineation and construction of those offences the nature of the proceeding

Mark the words, "nature of”

can never be tied down by the strict rules which, in common cases, limit the discretion of courts; that the discretion of the court for the trial of impeachments, thus unlimited in its proceedings, is "an awful discretion," and that its exercise was contemplated to be applied toward the most confidential and the most distinguished characters of the community.

And how high the discretion of this national inquest it was expected might reach is seen in these words, vindicating the constitution of the executive department from popular distrust:

The President of the United States would be liable to be impeached, tried, and, upon conviction of treason, bribery, or other high crimes or misdemeanors, removed from office.

Addition to third note on page I, 136, ante.

In England and the United States there are different systems of law, each with its appropriate tribunals, jurisdiction, and mode of procedure established. The judicial courts have a jurisdiction and procedure well understood. They are governed by the Constitution, statutory and common law. Military law is a branch of the law of nations recognized in and adopted by the Constitution; has its tribunals, with their appropriate jurisdiction and procedure. They try and punish offences relating to the army and navy and the military and naval service defined mainly by common, unwritten military law, and only to a limited extent by statute. (Attorney General Speed's opinion of July, 1865, on the trial of the assassins) Parliamentary law has its tribunals, with legislative, and, for some purposes, a judicial power, including the right to summon witnesses before committees of investigation, punish and even imprison for contempt of its powers or privileges, expel or otherwise punish its members, and with the power of impeachment. These different tribunals do not administer the same law nor for the same purposes. Each has its own independent law, governed by its own principles and reasons.

The same reasons which enable military tribunals to try offences undefined by statute authorize impeachment for misdemeanors defined by no written law. The Senate administers the common parliamentary law of impeachable misdemeanors, and establishes its procedure on principles peculiar to its organization and objects, uncontrolled by the powers of either judicial or military tribunals.

Additional note to page I, 141, ante.

The following charges, among others, were drawn up by Hon. John Minor Botts against John Tyler, in 1842:

I charge John Tyler with a gross usurpation of power and violation of law.

I charge him with the high crime and misdemeanor of endeavoring to excite a disorganiz ing and revolutionary spirit in the country, by inviting a disregard of and disobediency to a law of Congress, which law he has himself sworn to see faithfully executed.

I charge him with the high crime and misdemeanor in office of withholding his assent to laws indispensable to the operations of government.

I charge him with gross official misconduct in having been guilty of a shameless duplicity, equivocation, and falsehood, with Congress, such as has brought him into disgrace and contempt with the whole American people, and has disqualified him from administering this government with advantage, honor, or virtue.

I charge him with an arbitrary and despotic abuse of the veto power, to gratify his personal and political resentment, with such evident marks of inconsistency and duplicity as to leave no room to doubt his total disregard of the interests of the people, and of his duty to the country.

I charge him with the high misdemeanor of arraying himself in open hostility to the legislative department of the government, by the publication of slanderous and libellous letters over his own signature, with a view of creating false and unmerited sympathy for himself, and bringing Congress into disrepute and odium with the people, by which means that harmony between the executive and legislative departments, so essential to good government and the welfare of the people, has been utterly destroyed.

I charge him with pursuing such a course of vacillation, weakness, and folly, as must, if he is permitted to remain longer at the head of the government, bring the country into dishonor and disgrace abroad, and force the people into a state of abject misery and distress at home.

I charge him with being utterly unworthy and unfit to have the destinies of this nation in his hands as Chief Magistrate, and with having brought upon the representatives of the people the imperious necessity of exercising the constitutional prerogative of impeachment. (Congressional Globe, vol. 12, p. 144, third session 27th Congress.)

Additional note to page 1, 142, ante.

Only two of the acts charged against West W. Humphreys could be deemed treason. The authorities which define that crime are conclusive on that subject. A mere conspiring and a mere assemblage is not treason. (4 Cranch, 75; 1 Dallas, 35; 2 Wallace, jr., 139; 2 Bishop, Crim. Law, 1186 and 1204.)

The overt act must be one which in itself pertains to warlike operations. It must in some sense be an act of war. (23 Boston Law Reporter, 597, 705.)

If a convention, legislature, junto, or other assemblage, entertain the purpose of subverting the government, and to that end pass acts, resolves, ordinances, or decrees, even with a view of raising a military force to carry their purpose into effect, this alone does not constitute a levying war. (Sprague, J., charge to grand jury; 23 Law Reporter, 705; ibid., 597, 601.)

If war be actually levied, that is, if a body of men be actually assembled for the purpose of effecting by force a treasonable purpose, all those who perform any part, however minute or however remote from the scene of action, and who are actually leagued in the general conspiracy, are to be considered traitors. (Per Marshall; 4 Cranch, 75, 126; Burr's Trial, Coombs's ed., 322; 1 Bishop, 54.)

Additional note to page I, 145, ante.

In the case of The State of Mississippi vs. Andrew Johnson, President of the United States, before the Supreme Court of the United States, April 11, 1867, a motion was made for leave to file a bill praying for an injunction to restrain the President and his military officers from executing the "reconstruction acts" of Congress. Henry Stanbery, then Attorney General, (but now of counsel for the President on the impeachment trial,) appeared on behalf of the President to resist the motion for leave to file the bill, and in argument said:

The President of the United States is above the process of any court or the jurisdiction of any court to bring him to account as President.

There is only one court or quasi court that he can be called upon to answer to for any dereliction of duty, for doing anything that is contrary to law or failing to do anything which is according to law and that is not this tribunal, but one that sits in another chamber of the Capitol. There he can be called and tried and punished, but not here while he is President; and after he has been dealt with in that chamber and stripped of the robes of office, and he no longer stands as the representative of the government, then for any wrong he has done to any individual, for any murder or any crime of any sort which he has committed as President, then, and not till then, can he be subjected to the jurisdiction of the courts. (The Reporter, Washington, 1867, vol. 3, p. 13.)

Additional note to page I, 146, ante.

It has been said that

If a law passed by Congress be equivocal or ambiguous in its terms, the Executive, being called upon to administer it, may apply his own best judgment to the difficulties before him, or he may seek counsel of his advisers or other persons; and acting thereupon without evil intent or purpose, he would be fully justified, and upon no principle of right could he be held to answer as for a misdemeanor in office.

But this standing alone and unqualified is not sound law, if construed to mean that the President is not guilty of an impeachable misdemeanor in case he honestly misinterprets a law and executes it according to his construction in a mode subversive of some fundamental or essential principle of government or highly prejudicial to the public interest.

It is a very plausible view that punishment should not be inflicted on any person who, in good faith, does what he believes the law authorizes. But such a rule has never been applied in any court or tribunal-civil, criminal, military, or parliamentary-except in certain cases for the protection of judges of courts. At common law he who violates any civil right of another is liable to an action, no

1.

matter how much the violation may have resulted from the mistaken belief that it was justified by law. In the criminal jurisprudence of every country it is no excuse for a party indicted that his act is only criminal by the construction given by the court to a statute "equivocal or ambiguous in its terms." To hold otherwise would be to make the law depend on the opinion of the accused, and not on the determination of the court. The court is the sole judge of what the law is, and the rule applies

Good faith is no excuse for the violation of statutes. Ignorance of the law cannot be set up in defence, and this rule holds good in civil as well as in criminal cases. (1 Sedgwick, 100.) (See Kent's Com., 529; 3 Greenleaf's Evidence, 15.)

And this is so in parliamentary impeachments, as has already been shown. The power of impeachment may frequently be exerted not for any purpose of punishment, but as protection to the public. If the President should err in the assertion of a constitutional power, or in the interpretation of a statute, so as to establish a principle dangerous to the public interests, impeachment is a mode, and often the only one, of correcting his error, and of protecting the rights of the people.

If the Supreme Court should, however, honestly interpret the Constitution or laws, even upon words "equivocal or ambiguous," so as to settle a principle dangerous to public liberty, there is a remedy by impeachment, employed not for punishment, but for protection, exercised in the nature of a writ of error, to reverse a decision subversive of civil liberty and republican government. The Supreme Court is not a court of last resort. The high court of impeachment is the only court of last resort, and its decisions can only be reviewed and reversed by the people in the selection of a Congress holding different views; so that at last the Senate, as the Constitution declares in effect, is "the sole judge of the law and the facts" in every case of impeachment, subject to reversal by successors chosen in the constitutional mode.

If a public officer should misinterpret a law in a case where adequate remedy could be had without resort to impeachment, or on a question not vital to any fundamental principle of government or of the public interests, the House of Representatives would never prefer articles to invoke the judicial powers of the Senate.

The House of Representatives in some sense and in proper cases may exercise a pardoning power by withholding articles, or by a failure or refusal to demand judgment after conviction when its purposes may be practically accomplished, but it never can be tolerated that the high conservative power of impeachment, so essential to finally settle great questions of constitutional law, can be stricken down or its jurisdiction destroyed by the state of mind or the mental idiosyncracies or mistaken opinions of an officer who violates the Constitution or laws as construed by the sole and final judges thereof in the high court of impeachment. The words of Pym, on the trial of Strafford, may be well applied: To subvert laws and government-they can never be justified by any intentions, how good soever they be pretended.

This view of the law of impeachment popularizes our institutions, and makes the people at last the great depositaries of power, clothed with the ultimate right of interpreting their own Constitution in their own interests, and herein rests the greatest security for popular liberty.

While any citizen upon whom a statute is to be executed may rightfully take measures to test its constitutionality, the executive officer of the law can never be permitted to do so, because as to him the presumption of the constitutionality of a law is incontrovertible and conclusive, at least until reversed by a court of competent authority, if such there be.

DEBATE

ON THE

RIGHT OF SENATOR WADE TO SIT AS A MEMBER OF THE COURT.

IN SENATE, March 5, 1868.

[For the proceedings see volume 1, page 11.]

The CHIEF JUSTICE. Senators, the oath will now be administered to the senators as they will be called by the Secretary in succession. (To the Secretary.) Call the roll.

The Secretary proceeded to call the roll alphabetically, and the Chief Justice administered the oath to Senators Anthony, Bayard, Buckalew, Cameron, Cattell, Chandler, Cole, Conkling, Conness, Corbett, Cragin, Davis, Dixon, Drake, Ferry, Fessenden, Fowler, Frelinghuysen, Grimes, Harlan, Henderson, Hendricks, Howard, Howe, Johnson, McCreery, Morgan, Morrill of Maine, Morrill of Vermont, Morton, Norton, Nye, Patterson of Tennessee, Pomeroy, Ramsey, Ross, Sherman, Sprague, Stewart, Sumner, Thayer, Tipton, Trumbull, and Van Winkle. The Secretary then called the name of Mr. Wade, who rose from his seat in the Senate and advanced toward the Chair.

Mr. HENDRICKS. Before the senator just called takes the oath I wish to submit to the presiding officer and to the Senate a question. The senator just called is the presiding officer of this body, and under the Constitution and laws will become the President of the United States should the proceeding of impeachment, now to be tried, be sustained. The Constitution providing that in such a case the possible successor cannot even preside in the body during the trial, I submit for the consideration of the presiding officer and of the Senate the question whether, being a senator, representing a State, it is competent for him, notwithstanding that, to take the oath and become thereby a part of the court? I submit that upon two grounds-first, the ground that the Constitution does not allow him to preside during these deliberations because of his possible succession, and second, the parliamentary or legal ground that he is interested, in view of his possible connection with the office, in the result of the proceedings-he is not competent to sit as a member of the court.

Mr. SHERMAN. Mr. President, this question, I think, is answered by the Constitution of the United States, which declares that each State shall be entitled to two senators on this floor, and that the court or tribunal for the trial of all impeachments shall be the Senate of the United States. My colleague is one of the senators from the State of Ohio; he is a member of this Senate, and is therefore made one of the tribunal to try all cases of impeachment. This tribunal is not to be tested by the ordinary rules that may apply in cases at civil law; for the mere interest of the party does not exclude a person from sitting as a member of the Senate for the trial of impeachment, nor does mere affinity or relation by blood or marriage. The tribunal is constituted by the Constitution of the United States, and is composed of two senators from each State, and Ohio is entitled to two voices upon the trial of this case. It seems to me, therefore, that the question ought not to be made.

If this were to be tested by the rule in ordinary civil tribunals the same objection might have been made to one other senator, who has already taken the oath