The New York herald., 1868-04-24

nation beats perturbedy, ntfully pauses when we
| pause, and goes forward when we 20 forward. and
able Managers acting for all the people of the
United States. ! may have something to say Sena-
tors before close ~ %y ~, remarks but shal postpone
able Managers told you That the public pulse beats
perturbedly, that 1t panses when you pause and
goes forward when you go forward" and YOU have
been told time and time again that the people ont OF
doors are anxious for the conviction OF the President
guilty OF the indecOrum almost OF saying one
word about myself and am only doing SO by
the way OF stating my argument. In the whole
course OF my professional career, nom the time
came first young man to practice law until the
present moment, I never had the impudence or the
case in which was concerned. My arguments be-
fore him have always been made In court. nave
aa hser od S the e 70 nrace
profession to take Ii for granted that they were men
OF honor men Of ntelligehce, and that they would
not hear any remark which ! should make to
them out of doors and not in the presence OF my ad-
versary. But the doctrine here is that "the public
pulse beats" All have we come to thats Is this
to be tried before the greatest court In Chrsten
dom, not upon the law, not upon the evidence, not
under the Instructions of the Chief Justice OF the
Uuited States, but to be tried on common rumOrS
And Is it to become interesting to cease to be in
teresting Just according to the beating OF the
that do not intend to say one word
designed to be orensive to any gentleman on the
regard this as an insulting argument. But do not
make use of that expression. 1t is not my intention
the sensiblities Of any one or give just cause of
offence to anybody connected with the But
Gs fa fo thu at nuSc to Try ne
ment to advance to the American Senate!
what an argument to put forward in the American
OF gross, outrageous injustice which has been done
In criminal trials trials in Parliament and trials in
courts Of Justice; ay and our own country has not
where public clamor was allowed to influence the
Judgment Of the judges. Those instances that
n inCfo nf
blood, and Of murder, land of outrage
and wrong perpetrated in the name OF justice are an
nothing TO do with this trial. Senators, regarding
every man whom address az judge-as sworn
tion to one great trial in this country Mr.. Nelson
then referred to the trial of Burr and spoke in
high terms Of Judge Marshall, who presided.
He hoped that the Senators would initiate
the example Of that illustrOus jurlst and went on
saying trust Senators, that the result will be such
as to command the appreciation not only OF your own
cOnscences, not only of the States which you have
the honor to represent but the appreciation Of Him
who is greater Judge than you are, and the appro-
pretation adverted to by Chief Justice Marshall
In the trial to which l have referred. (Burr'ss
used in the constitution, he said that
1t was technical term, and that it must he
1t was employed in England, unless the contrary was
proved by the context unless it was incompat-
BILE with other parts OF the constitution. He held
that 1t was used in the same sense In which II was
used in England in the statute of Edward the Third,
from which it was borrowed. Now, the words
''trcason," ''bribcry,n "crlmes" and imisdemean-
0rs were words Just as familiar to the trainers OF tho
constitution as they are to rs. one OF the honorable
Managers made an argument here TO show that be-
Dr.. Franklin was in London al the time OF the
Warren Hastings trial. tnat had a good deal to do
with the proper mode of constituting the American
constitution on the subject Of the power OF the Chief
Justice These words were almost as familiar
to the lawyers at the time Of the forma-
tion of the constitution as they were to
the lawyers and judges Of the present day.
In one passage of Burke he says that crimes and
another and further exposition he undertakes TO
show and does show that the word ''crime' Is used
In the sense OF charges, such as usually fall within
the denomination OF felony; and that the word
'misdemeanOr Is used in the sense OF those trivial
and lighter offences which are not punishable
with death, but with fine or impeachment
both Now what Ia the rule OF Interpretation?
1t is not necessary for me TO turn 10 authorities ON the
subject. Words are to be construed in the connec-
ton in which they are used and in the sense Of those
being OF the same kind. II correctly apprehend the
law at the date OF forming the constitution, treason
by the law OF England was felony punishable with
death. Bribery was misdemeanor, not punishable
with death, but punishable with fine and imprison-
ment. When the words ''crmes," therefore is used
in the constitution II Is TO be construed In the
sense as the word ''treason" II Is TO be under
| stood felonious offence, offence punish
able with death or imprisonment In the pen
tentiary. The word "miedeneanors has reference 20
for the expression In the constitution is. "high
| crimes and misdemeanOrs," high crimes referring,
| OF course. to such crimes as are punishable with
death, and high msdcmeanOrs referring 10 such mis-.
| demeanors are punishable by fine and imprisol-
| meDt, and not to such simple msdemeanOrs as
| assault. What then, IL the argument upon that'
| What Is the true meaning of the words ''crimes
and misdemeanors' as embodied In the constitu-
tlon of the United StatcsY One set OF constructions
lists held that you are not to look at the
common law TO ascertain the meaning OF the words
'crirnes aud misdemeanors,r but that you are to
look at the parliamentary law 10 ascertain 10. And
now, far rs have any knowledge of IL, the par
liamentary law does not define and did never under
misdeIneanors.n What did the parliamentary law
undertake to dor 1t undertook to punish, not only
its members, but citizens for offences which were
regarded as offences against the government; afcr
without turning the offender to the
courts, the Parliament mpeached him, or proceeded
against him I'm manner similar TO impeachment.
but there was no definition, so far az know, OF
crilnes and misdemeanors" Parliament was, 10 use
the language OF the honorable Manager. ''in great
part law unto ltself;' hut when the trainers Of the
constitution incorporated those words in charter
did they borrow them from parliamentary law or did
from other writers on the criminal law IN
Englands They got them from the common law of
England and not from the law OF Parliament. Then
what proposition follows as coroiary from the
premises have laid down II the premises be
"crlmes ana misdcmeanors' arc received in the
sense In which they are employed by writers on
criminal r ad,IrNy. law in England ing dcgb, whether
within the meaning Of the American
constitution, right TO create new crime and
new misdemeanor from something which ~as not
known Us crime or misdemean0r at The date OF
the adoption Of the American constitution. I think
II is matter OF great doubt. TO say the least of H.
It is, Mr. Chief Justice, on these and Kindred oues
tions, that ] respectfully submit that we have a
right respectfully TO demand at the hands
OF your Honor judicial exposition OF the
meaning OF the constitution. IL will be for you,
under your own sense OF duty, under your own
construction OF the powers conferred upon You by
the constitution or our common country, to decide
for yourselves whether this respectful question win
be answered or not.
Senator YATES at four O'Clock suggested that IL
the counsel desired IL the court might adjourn.
Mr.. NELSON intimated that he did feel somewhat
faligued, but would proceed II the court did not
now desire TO adjourn.
The Senators submitted the question and the
court thereupon adjourned.
on motion OF Mr.. MORRILL, the Senate then took
up the hill 10 provide for deficiencies Impeachment
expenses, &C., and concurred in the House amend
mcnts The bill was then passed and the Senate
adjourned.
An IMPORTANT AND TIMELY SCRAP or HISTORY.