Beruflich Dokumente
Kultur Dokumente
A R G U M ENT
QF
JOHN A. BINGHAM,
CIIAIRMAN OF THE MANACERS ON THE PART OF THE IOUSE,
is r () t e
..
W A S H IN G T O N :
1868.
Tocuments Dept."
* -:
JK's 75
/2 & 3.
E
Je. -22*.*.* t
A RG U M ENT.
A Rep
The
Lincoln,
President of the United States, slain
not for his crimes, but for his virtues, and
Wq695
4
greatest trust ever committed in the providence
Nevertheless
-----
--
Digitized by
ment a court.
power to determine finally and forever eyery original questions either in the Supreme Court
issue of law and fact arising in the case. This
is one of those self evident propositions aris
It rests upon
What
The people by
7
ion was final, and the judge of the Supreme
Court who dares to challenge the great seal of
the State of lllinois, which the gentleman rep
like unto
States?
power to finally determine all questions arising public ministers, and consuls, and to cases in
which a State may be a party.
The accused
A.
The
Mar
United States, and are bound to recognize his tempted to be set up here for this accused and
will as their sworn duty. I deny that propo guilty President, that he may, with impunity,
sition; and I think that the learned gentieman under the Constitution and laws of the United
from New York did well, remarkably well, as States, interpret the Constitution and sit in
he does everything well, to quote in advance judicial judgment, as the gentleman from Massa
for our instruction when we should come to
9
self; that he is 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 trial and judgment, was settled
against him thirty years ago by the Supreme
|...".
In the syllabus it is
stated that
# Congress and
lce.
I0
specific act. and that nerformance, it was held, might
be required by mand' mus. Very different is the duty
of the President in the oxercise of the power to see
What acts?
It is useless
power of interpretation.
It is
This is at last
l'IXI I *PATRICH
--------
11
Digitized by
I2
in our history, of the right of the Executive, by
his executive prerogative, to suspend and dis
pense with the execution of the laws, and that
was the reference which was made to your
lamented and martyred President, Abraham
Lincoln. In God's name, Senators, was it not
enough that he remembered in the darkest
hours of your trial and when the pillars of your
holy temple trembled in the storm of battle that
oath which, in his own simple words, was regis
tered in heaven, and which he must obey on
the peril of his soulwas it not enough that
he kept his faith unto the end and finally laid
down his life a beautiful sacrifice in defense of
indemnity acts.
I deny that he
Abraham Lincoln
I answer
That
If the gentle
I claim no
13
law, and that it is a part and parcel of the
pleasure.
Mr. SHERMAN.
tion.
The
stitution.
Was.
IT SIIALL BE A LAW.
15
and limits the executive power of the Presi
dent.
stitution:
of impeachment.
IHe shall have power, by and with the advice and
consent of the Senate, to make treaties, provided
two thirds of the Senators present concur: and he
shall nominate, and by and with the advice and con
proper, &c.
ment?
stop to argue the question whether such a simple oath of the purer days of the Republic,
power as this, legislative and judicial, may be
PIX! I *PATRIOT
-------------
10
._
at nll if perchance the Presiclent of the Uni
tecl Stales muy choose, when the Congress
.:?<lines to enact a la IV for the organization of
the jucliciary, and e11act it even despite l,is ou
jections to the contrnry in accordauce with the
Co11stit.ntion Ly u. tw,1- thirds vote, to cleclaretbu.t
al'corcling to his judgment and hi11 convictions
it violates the Constitution oft.be country, and
tberefure it shall not Le put into execution 'l
S<'nntnrs, if he has the power to sit in judg
meut judicially-aud I use the word of his
advocate-upo11 the tenure-of-ot6ce 11ct of1867,
he has like puwer to sit in judgment judicially
upon every other ttct of Co11gress ; aml in the
eve11t. of the President of the United States
interferin with the execution of a judiciary
act estuhlisl,ing fort he first tii,ie, ifyou please,
in your hitory, or for the second time, if you
pJ.,ase, ii lJy some strane intervPntion of Provi
dence the existing juJges should pnish from
the enrth, I would like to know wuat becomes
of thi naked ancl bald prtense ( unfit to be
played with 1,y children, much les, Ly full-grown
men) of 1.he l'reside11t, that ha only \'iolate the
laws i11nocently and harmlessly, to have the
quest ion decid,!d in the courts, when he arro
gates to him,elf the power to prevent any court
sittin iu judgu,ent. upon the quest.ion'!
lt .. presentatives to the Congress of the Uni
ted ::ita1.e:1 c>11111ot be chosen without legisla
tion; first, the legislation oft.he Congress ap
portio11i11g representation among the Revera!
:::Otates 11ccording 10 the whole numuer of r<'pre
se11tative popu!aiion in euch; und secoml, an
e11act111P11t either of t.he Congress or of the
Legisla111res of the several S1a1es fixi11g the
time, place. a11d manner of holding the elcc
ti,,1111. ls it possihle that the President of the
Unitrd States, in the event. ofsuch legislation
by the Congress, clearly authorized by the very
ter11111 of the Co11stitutiou, and esseut.ial to the
very existe11ce of the Government, is permit
ted, in the exercise of hiR judicial executive
an1.hori1y, tu sit. in judgment. upon your stat.ute
a11d av that it shall not be executed 'l This
power given uy your Constirution to the Con
gress to precrilJe the time and ph1ce and man
11er of holding elections fur ltepresentatives in
Congress in the several States, and to alter as
well 1he provisions of the State Lt>gislatures,
in the words ofone ofthe framers of the Con
st itut.iou, was put iuto the instrument to enable
the people through the national Legislat.ure to
pPrpetuate the legislative department of their
own Government in the event ofthe defection
of the S1ate Legislatures; and we are to ue
told hl're. and we ore to d,diberate upon it from
day t.o day and from week to week, that the
PresidPnt of the United Stales is, by virtue of
his executive otlice and his execut.ive preroga
tive, clotht,d with the authority to determine
the validity of your law and to suspend it auJ
diapl'ue with its execution at11ltmsure.
Again. a Presirlent of the United 8tat.es to
execute the laws of the pl'ople e11acted by their
Representatives in Congress assembled, can
Digitized by
Goog Ie
17
cution both of the Constitution and of the laws
It is not need
302, letter E.
.# to read
ernment.
District.
District.
18
.. the111ereauthor
it11 to command an armv i not an authorit11 to diaobet1
the Latos of the cou11tr11."
Digitized by
Goog Ie
19
repeal one. He can only execute the laws. He can
It is written in the
It
admitted it.
There is no escape
from them.
If this order is a clear violation of the tenure
-
He adds:
The doctrine which holds a judge exempt from a
20
to answer for an error of judgment. He would
only be impeachable, however erroneous his
I am at the
about it.
Several SENATORs.
Go on!
Go on 1
He indefinitely sus
respect for his learning, and I could not but swer, that under the act of 1795 he supplied the
think he knew betterbut he intimated that
as to the other.
21
he makes another, and so on until the end of
established than
pointed them.
adjourned.
I shall be very
It
is only coming back to the old proposi
tion.
22
Mr. Manager BINGHAM. Mr. President and
Senators, I would do injustice, Senators, to
myself; I would do injustice to the people
whom I represent at this bar, if I were not to
acknowledge, as I do now, my indebtedness to
honorable Senators for the attention which they
gave me yesterday while I attempted to demon
strate to the Senate in behalf of the people
of the United States, that no man in office or
out of office is above the Constitution or above
proved.
I deny it.
Sometimes, my
It is a
23
innocents, with their sunny faces and sunny
hearts, that they might send them at once to
heaven, was of any avail in the courts of justice.
I read also of a Swedish minister who found
I never
. Senators,
If the
place.
read yesterday:
The President
shall nom
is act of removal and appointment? And not otherwise provided for in this Constitution,
re, Senators, although I may have occasion
24
by and with the advice and consent of the Sen
ate? It is useless to waste words upon the
proposition. It is plain and clear. It must
be so unless the appointments of the heads of
Departments, in the words of the Constitution,
are otherwise provided for ; and I respectfully
ask Senators wherein are they otherwise pro
vided for in the Constitution ?
The heads of
offices.
25
whatever may be his pretensions, to say that
this trial.
tion.
It
N.
A man who is be
the United States that the opinions expressed acts of 1789 and fill them indefinitely at his
y Representatives or Senators in Congress
pleasure ? What practice in the Government
Pending the discussion of any bill are not to be
received as any authoritative construction or
! would be a sad day for the American people of Pickering ; but the gentlemen ought to re
f the time should ever come when the utter
"terward as the true construction and inter expressly authorized by the act of 1789; I
... Prelution of law. Senators, look to the acts,
26
act unless removed by the President; it is
a grant of power, and Webster so interprets
it on page 194 of the fourth volume of his
I ask Senators
It is a matter of
It is
ists.
z-
27
ted States in Congress assembled, and all officers so
the diplomatic
and consular
I took
sence of express law is limited to such vacan a moment fasten, save the words that the
cies as may happen during the recess of the executive power shall be vested in a Presi
Senate, it necessarily results that an appoint
ment made during the session of the Senate,
without the advice and consent of the Senate,
dent.
of the head of a Department, in the absence tion, what decision of your courts, what utter
of any law authorizing it to be made tempo ances of all the great statesmen who have in
rarily or otherwise, as did the act of 1795, is the past illustrated our history, have ever inti
unconstitutional and unlawful; and that is my mated that this provision of the Constitution
answer to all they have said on that subject. was a grant of power? It is nothing more,
But that act of 1795 is repealed by your stat
ute of 1867, as also by your act of 1863, as I
shall claim. If the President may issue it, into anything more than a mere designation
it must be a commission according to his own
claim of authority, arising under this unlimited mitted, under the Constitution and subject to
executive prerogative, which can never expire
i.
:*
*
but by and with his consent; and if any man ations of the law enacted in pursuance of the
can answer the proposition I should like to Constitution, the executive power of the Gov
have it answered now. If notwithstanding all ernment. Adopt the construction that it is a
that is on your statute-books; if, notwithstand: grant of power, and why not follow it to its
ing this limitation of your Constitution which I
28
people, of their power to limit by a written
Constitution every department of the Govern
ment? Is it not as plainly written in the Con
stitution that all legislative powers herein
granted shall be vested in a Congress of the
United States, which shall consist of a Senate
and House of Representatives?'' Is anybody
to reason from that designation of the body to
whom the legislative power is assigned a grant
of power, and especially an indefinite authority,
to legislate upon such subjects as they please
without regard to the Constitution? Is it not
also just as plainly written in the Constitution
that the judicial power of the United States
shall be vested in one Supreme Court and in
such inferior courts as the Congress may, from
time to time, ordain and establish by law
Is anybody thence to infer that this is an in
definite grant of power authorizing the Supreme
Court or the inferior courts of the United States
power.
And again:
29
emnly ruled, without a dissenting voice. that
the assumption of power claimed by the Presi
dent would defeat justice itself and annihilate
the laws of the people. I have done it also to
fortify the text of your Constitution and to
make plain its significance, which declares that
every bill which shall have passed the Congress
with or without the President's approval, even
over his veto, shall be a law. The language
is plain and simple. It is a law until it is
annulled; in the words of Hamilton, as recorded
in the seventh volume of his works, a law to
the President; a law to every department of
the Government, legislative, executive, and
30
his retainers, He rules by the grace of God
and of divine right; but I cannot understand,
nor can plain people anywhere understand,
what significance is to be attached to this ex
pression, the omnipotence of Congress " a
Congress the popular branch of which is chosen
every second year by the suffrages of freemen.
I intend to utter no word, as I have uttered no
word from the beginning of this contest to this
hour, which will justify any man in intimating
that I claim for the Congress of the United
States any omnipotence. I claim for it simply
the power to do the people's will as required
by the people in their written Constitution and
enjoined by their oaths.
It does not result, because we deny the power
and
tllelm.
themselves.
Among the
31
He stands charged further with an unlawful
attempt to influence Major General Emory to
disregard the requirements of the act making
peachable has been shown. . To deny that articles of impeachment need not be drawn up
they are impeachable is, as I have said, to with the precision and strictness of indictments.
into their master, the executor of their laws
for
And what answer is made when we come to venience to try the question in the courts of
your bar to impeach them ; when we show him
32
the significance of the opening argument, that
he could only be convicted of such high crimes
and misdemeanors as are kindred with treason
and bribery.
Mr. SHERMAN.
my motion.
is conceded.
the
si, all hold their offices respectively for and during the
term of the President by who in they may have been
mission.
What
33
During the recess of the Senate, and not at
any other time, shall the President suspend
him and report within twenty days after their
next meeting to the Senate the fact of suspen
sion, the reasons and the evidence upon which
it is made.
In his
2.B.
34
had suspended Edwin M. Stanton, was a fur
ther recognition of the fact on his part that Mr.
#.
If he believed he was
office?
guilty.
But the President is responsible if, without in this country whether the laws are to be
any of the reasons assigned by the law, he supreme, whether they are to be vindicated,
nevertheless availcd himself of the power con whether they are to be executed, or whether
ferred under the law to abuse it and suspend at last, after all that has passed before our
the Secretary of War though he knew he was eyes, after all the sacrifices that have been
not disqualified for any reason, though he made, after the wonderful salvation that has
knew that there was no colorable excuse for been wrought by the sacrifice of blood in the
charging that he was guilty of misdemeanor vindication of the people's laws, their own
or crime or that he had become in any manner Chief Magistrate is to renew the rebellion with
35
impunity and violate the laws at his pleasure
and set them at defiance.
When the Senate took its recess I had
I have said
36
tional law is no law.
*.
acceptance.
...',
that you assumed the duties of the offige. You
new it was the Presidents purpose to prevent Mr. Stan
President's purpose? It would be, it seems to
me, and I say it with all reverence, beyond the
You knew
The Presi
men.
He says further on :
He could not
He
37
is an afterthought.
not institute
the proceeding?
I think
38
visions of this act, and the making, signing, sealing,
countersigning, or issuing of any commission or let
ter of authority for or in respect to any such appoint
mentor employment. shall be deemed, and are hereby
declared to be, high misdemeanors; and, upon trial
and conviction thereof, every person guilty thereof
shall be punished by a fine not exceeding $10,000 or
make?
What answer
in his suspension.
39
the limitations of the Constitution. The Thirty
It is
He
40
oaths, careless of the influence of power and
position touching this question, when the mes.
sage of the President came to them that he
your country.
thereof.
refer to
41
The act of 1795, on the other hand, gave him
#.
Congress assembled.
I do
42
out the same result, to prevent the execution
of the laws and to violate their provisions. So
.#: You
Further on he says:
It is reason
this coconspirator.
..?...!!!"
Cabinet meetings, you mean.
Answer. Cabinet meetings.
-4
....
Continually 2
Answer. Continually.
...!!!".
Down to the present hour?
nswer. Down to the present hour.
..?..."
gested 2
....
43
erately conferring together about violating,
not simply your tenure-of-office act, but your
act making appropriations for the Army of 2d
of Representatives.
Mr. President
W.
44
act of 1789 could be filled during the session
of the Senate by the appointment of a new
head to that Department without the consent
of the Senate as prescribed in the Constitu
tion. . No precedent whatever has been fur
nished.
45
inferior officers of the several Departments as
vision of 1795?
President to remove?
able.
of the Senate,
All present
shall be en
office.
How, appointed 2
In like manner ap
The reason
If
46
The counsel who
duly qualified.
It is the
of the
and for one month thereafter.
Give effect to the words the term of the
47
It will not do.
He had no term.
No effect
I read
without a constitutional or lawful Secretary of this law, and these heads of Departments might
State, without a constitutional Secretary of the avail themselves of it.
In the act of 1792 my attention is called to
Treasury, without a constitutional Secretary of
the Navy, and without a constitutional Secre another provision of it, which I did not read,
tary of War, because accepting the assumptions which shows the operation of this word term
of these gentlemen, that by this word term still more strongly than does the provision of
in the statute is meant the term in which they the twelfth section, which I did read. It is
were appointed and not the term of the Presi
and Vice
President shall both become vacant the Secretary of
State shall forth with cause a motification thereof to
be made to the Executive of every State, and shall
::
48
taries of the various Departments are under
It is the
It must be a successor,
are :
#:
sk
sk
t:
operation in
#.
1
But this
49
belonging to such office shall be exercised by such
other officer as may by law exercise such powers and
50
I read in the
sentatives.
. But I ask Senators to consider whether the
Presidentfor I observe the counsel did not
the king sent to its bar his order that the rep
51
his guilty march ; and accordingly he ventured,
operations.
the District.
Army.
It was a confession, Senators, by indirection,
to be surethat confession, however, which
always syllables itself upon the tongue of guilt
when guilt speaks at allthat General Grant,
the hero of the century, who led your battal
ions to victory upon a hundred stricken fields,
unconstitutional law.
There were
It is the rule
What com
I
dangerous
to the security of American institu
tions.
But I pass it.
I heard a sneer
52
I read from
part of
soldier.
disregard law.
But, say counsel, this is his guarantied right for the more efficient government of the rebel
under the Constitution. The freedom of speech, States.
Why, said the learned gentleman from Ohio,
says the gentleman, is not to be restricted by
a law of Congress. How is that answered by [Mr. Groesbeck, J the evidence that we introduce
this act of 1806, which subjects every soldier to support this last averment of the eleventh ar.
in your Army and every officer in your Army ticle, it appears, was a thing done by the Presi
to court-martial for using disrespectful words dent some months before the act was passed.
of the President or of the Congress or of his The gentleman was entirely right in his dates,
superior officers ? The freedom of speech guar but he was altogether wrong in his conclusions.
antied by the Constitution to all the people of the We introduced the telegram for no such pur
United States, is that freedom of speech which pose. We introduced the telegram in order
respects, first, the right of the nation itself, to sustain that averment of the eleventh article
which respects the supremacy of the nation's that he attempted to defeat the ratification of
laws, and which finally respects the rights of the fourteenth article of amendment, an amend
every citizen of the Republic. I believe in ment essential to the future safety of the
that freedom of speech. That is the free Republic, by the judgment of twenty-five mil
dom of speech to which the learned gentleman lion men who have so solemnly declared by its
from New York referred when he quoted the ratification in twenty-three of the organized
words of Milton: Give me the liberty to States of the Union.
This fourteenth article of amendment, as the
know, to argue, and to utter freely according
That is
53
sent this telegram to Governor Parsons, of
Alabama, dated January 17, 1867:
What possible good can be obtained by reconsid
ering the constitutional amendment?
*.
the
Gvernment in accordance with its original de
Slgll.
Coupled with his messages to Congress, cou
led with the utterances of his counsel from
8.
The President
ARTICLE XIV.
works no forfeiture?
54
to eiect members to Congress, they thereby
Constitution?
#.
for slaves forever impossible in the
and, either by congressional enactment or by
State legislation.
review them.
55
-
amendment to the Constitution; and by all and to annihilate the Government of the peo
these several acts did attempt to prevent the
execution of the tenure-of office act, the ex
ecution of the Army appropriation act, and the
ple.
only enforce conviction upon the Senate, in my as specified in the articles, are impeachable,
judgment, but they will enforce conviction as
well upon the minds of the great body of the high crimes and misdemeanors, indictable and
people of this country.
punishable as such.
Nothing remains, therefore, Senators, for me
And yet the President has the audacity in
further to consider in this discussion than the
I have an
It
That is the
by the people in their House of Representa civil tribunals of this country, under the Con
tives, he may suspend the laws and dispense stitution, can by no possibility have any power
to determine any such issue between the Pres
with their execution at his pleasurel
That is the position of the President. These
I do not propose to
56
consider, that if the courts shall be allowed to
intervene, and in the first instance decide any
uestion of this sort between the people and
}.
#.
and the
people !
#.
When twelve million people, standing within der of the Pagan world, was doomed to drink
the limits of eleven States of this Union, en
tered into confederation and agreement against
the supremacy of the Constitution and laws,
people's laws.
tues.
to the same assumption of power by a single dent is no more above the law than the poorest
i'IXI I *PTRIOT
:::
)ij
[,
57
and most friendless beggar in your streets.
The usurpations of Charles I inflicted untold
injuries upon the people of England, and finally
cost the usurper his life. The subsequent
usurpations of James II-a'nd I only refer to
it because there is between his official conduct
and that of this accused President the most
remarkable parallel that I have ever read in
history-filled the brain and heart of England
with the conviction that new securities must
be taken to restrain the prerogatives asserted
by the Crown if they would maintain their
ancient constitution and perpetuate their liber
ties. It is well said by Hallam that the
usurpations of James swept away the solemn
ordinances of the legislature. Out of those
usurpations came the great revolut.ion of 1688,
which resulted, as the Senate well know, in
the dethronement and banishment of James,
in the elevation of William and Mary, in the
immortal Declaration of Rights, of which it is
well said that it is" The germ of the law which gave religious free
dom to the Dissenter; which secured the independ
ence of the judges; which limited the duration or
Parliaments; which placed the liberty of the press
under the protectieu of juries; wbicb prohibited the
sle.ve trade; which abolished the sacramentnl test;
which relie,ed the Roman Catholics from civil dis
abilities; which reformed the representative sys
tem-of every good Jaw which has been passed dur
ing a hundred and sixty years; of every good Jaw
which mny berenfter in the course of ages be found
necessary to promote the public weal and to satisfy
the demands of public opinion."
Senators, that great Declaration of Rights
contains in substance these words of accusation
llgainst this king of England: he has endeav
ored to subvert the liberties of the kingdom
in this, that he has suspended and dispensed
with the execution of the laws; in this, that he
has issued commissions under the great seal
contrary to law; in this, that he has levied
monei to the use of the Crown contrary to
law; m this, that he has caused cases to be
tried in the king's bench which are cognizable
onl:y: in the Parliament. (The Lords Journal
of Parliament, vol. 14, p. 125.)
I ask the Senate to notice that these charges
against James are substantially the charges
presented against this accused Presideut and
confessed here of record, that he has suspended
the laws and dispensed with the execution of
the laws, and in order to do this has usurped
authority as the Executive of the nation, de
claring himself entitled under the Constitution
to suspend the laws and dispense with their
execution. He has further, like James, issued
a commission contrary to law. He has further,
like James, attempted to control the appro
priated money of the v.eople contrary to law.
And be has fnrther, hke James, although it
is not alleged against him in the articles of
impeachment, it is confessed in his answer,
attempted to cause the question of his responsi
bility to the l?eople to be tried, not in the king's
bench, but m the Supreme Court, when that
que stion is alone cognizable in the Senate of
the United States. Surely, Senators, if these
Digitized by
58
to its tribunals of justice for every injury done
either to the citizen or to the State.
cial power.
decree :
ment?
the Republic.
I know that I
59
must obey the law; that none are above the
law; that no man lives for himself alone, but
each for all; that some must die that the State
may live ; that the citizen is at best but for to
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