Opinion of Senator Tucker.

Although much time has been spent by the Court in this trial, and a cloud of witnesses produced and sworn, the material testimony might be compressed into a very few pages. I venture to assert, that such a mass of irrelevant and incompetent testimony was never before admitted in any cause, civil or criminal, since tribunals were first established among men. It was insisted by the prosecution that the Court had a right to all the testimony, and would, of course, reject that which turned out to be irrelevant; but, has the Court or the prosecution a right to the admission of any testimony, not bearing upon the issue, which the prosecution have seen fit to make for themselves? I think not. The well established rules which govern the admission of testimony, have not been so established to aid the guilty to escape, or to thwart the ends of justice; but on the contrary, these rules contain the concentrated wisdom of successions of ages, and have been adopted after long experience, repeated discussions, and frequent tests, as best calculated to elicit the truth. It does not become us in this day and age to lay these rules aside. Irrevalent testimony must always do harm, and even more especially in a case like this than in an ordinary criminal case. Take the testimony of R. D. Silver for an example. Mr.S.was produced and sworn for the purpose of proving certain corrupt contracts of the respondent, to which the witness was a party. No such contracts are even alluded to in the

articles; not the slightest notice or opportunity was given for defense. Yet it is one of the plainest principles of common sense as well as of law, that the accused shall not be called upon to answer, and for a stronger reason shall not be prejudiced by the admission of anything not charged against him. I do not pretend to say that anybody believed Mr. Silver, notwithstanding the starblind character of his narative. Forgery and perjury are not the most promising gratifications to entitle a witness to belief. But this was merely accidental. Even dishonest witnesses are not generally so lost to all moral sense as to impeach themselves.

But I will leave this discussion and in my remarks shall confine myself to what I regard as material and relevant testimony in the case, and to that only, as it bears upon what is confessedly the only charge which there is sufficient evidence to bring to our notice, namely, the first specification under the first article, which reads as follows:

SPECIFICATION 1st. That having said sum of $16.881.26 under his control and subject to his order, he, the said David Butler, Governor, as aforesaid, did corruptly and unlawfully neglect, and refuse to pay the same into the Treasury of the State of Nebraska; and from the time said money was under his control and subject to his order, to the time of exhibiting these articles, has so neglected and refused to pay the same into said Treasury."

There is some testimony, I admit, which tends to prove all, but the gist

of this charge. There is some testimony which goes to show, that having this money under his control he neglected to pay it over to the State Treasury which, unexplained would amount, under the circumstances to a refusal in law, but there is no testimony which tends, in the least, to prove that this neglect was fraudulent or corrupt, which is the very thing to be proved, but of which there is not a single fact shown, to raise even a presumption.

Mr. Sweet, the State Treasuer at the time of this transaction, testifies that the first time he ever had his attention called to this fund being due the State, was during the extra session in 1870.-nearly a year after this money was collected; and that he afterward had conversations with the respondent in which respondent stated that he had loaned ten thousand dollars of the money to a friend in Pawnee county and was obliged to take lands for it, and could not pay it over, and that he, the respondent, desired to secure the payment of the money by mortgage, which the Auditor, demanding that the money should be paid into the Treasury, refused to allow.

Mr.

If this story be true, is it not rather strange, that this Pawnee county friend cannot be traced any farther by all the testimony produced at the trial. Mr. Sweet's testimony cannot possibly be reconciled with Church's. One or the other must be false. Mr. Sweet's testimony is vague, indefinite, uncertain and unsatisfactory; he remembers no dates and complains of a defective memory. Mr. Church's testimony is certain and definite. What he says he says positively. He is clear about date and minute in details. He was a member of the Legislature during the extra session of 1870; was a member of the Investigating Committee; the Auditor's report failed to show the $17.000-as it was called; Mr. Church demanded of Mr. Sweet an explanation and that explanation as first given, was very minute, particular and satisfactory. When questioned again, Mr. Sweet knew nothing about the money, and went back on all that he had previously said. But if the testimony of Mr. Church is to have

any credit, unless his story is manufactured out of whole cloth, Mr. Sweet did know very much about the money; he knew the exact amount to a cent, and turned to his books to find it. Mr. Hathaway's testimony strongly coroberates Mr. Church's and so does Mr. Seymour's and many other witnesses. It is clear that Mr. Sweet's statements before the Court cannot be reconciled with his statements out of Court upon the same matter, but are totally contradictory. In no particular can they be reconciled. Mr. Sweet does not pretend to reconcile them. He admits one of them repeatedly, persistently, and deliberately made, to be false. The same objection may be urged with even a stronger force against Mr. Brock's testimony. Mr. Brock was called to prove that he had no knowledge of the source from which this money was derived, that he collected it for the respondent under an impression derived from the respondent, that it belonged to the respondent, personally and not in his official capacity. Mr. Brock's testimony is not only flatly contradicted by testimony which shows that he did know the nature of this fund, and by the circumstance that he was deputy State Treasurer at the time, but he too swears that he has made statements. repeated, solemn, deliberate, public. official, to the contrary, in which he says there was no word of truth, and which were intended to deceive. Is a man to be convicted upon the testimony. of liars self-doomed? Which of their statements is to be taken as true? are they to be believed at all? Is any weight whatever to be given to their testimony, corroborated by no attending circumstances, and given under the pressure of a strong public sentiment, and the bias of self-interest? It shocks the common sense of mankind to say so. No jury of twelve men would consider such testimony for a moment. Moreover, the double character which Mr. Brock assumes, of Banker and Deputy State Treasurer, shifting so ingeniously and artfully from one to the other, in my opinion stamps his whole testimony with strong suspicion. Another thing to be taken into consideration is the public notoriety of the whole transaction. The fact that it was published in the

newspapers, and discussed in the political campaign. Nothing has been proved here which was not notorious before, distinctly and openly confessed and avowed, in public and private. This fact, if material for no other purpose, certainly negatives and disproves any notion of fraud and corruption.

I have thus far confined myself to the discussion of the facts in the case. I am clearly of the opinion that they do not prove the charge made. I am still more clearly of the opinion that if the charge was fully and conclusively proved, this Court has no jurisdiction to pronounce conviction. An argument from convenience, an argument that otherwise, great public offenders might go unpunished by conceali g their misdeeds to the end of their term of office, is entitled to no consideration whatever. We sit here not to make but to administer the law; we are a body of strict powers; we have what powers a fair construction of the Constitution gives us, and no more. If the Constitution gives us too little, it should be changed, not disregarded. I am confident of proving that the construction of the Constitution which is contended for by some-namely-that it gives to this Court jurisdiction to try offences committed in a previous term of office, involves a practicle absurd

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ity. But I shall forbear, and confine myself to the argument used upon the trial of this cause from the analogy of the English law. Such an analogy I regard as very dangerous. It is well known that what Parliament enacts is law. There are no Constitutional limitations upon its powers, consequently, whatever powers it claims. it has. In the origin of impeachment trials, the executive officers of the Commonwealth were appointees of the Sovereign and held during his will and pleasure, which might, if they were subservient and unscrupulous extend to life; there was no such thing as a fixed term of office, which expired by its own limitation, when the people could exercise their pleasure about re-electing the incumbent. There was no such thing as an election, and with such essential differences between the two forms of government, there can be no analogy. The powers assumed by the English Commons were a necessity. They lacked two means of protection which we possess, namely, a Constitution and fixed terms of office. The power to impeach, as here advocated, is not a necessity, we do not need it, and if we did, it would make no difference, for the Constitution does not give it.

GEORGE P. TUCKER.

[NOTE. This argument is presented under the agreement of counsel at the close of the last day's proceedings. It is written out from the notes and material, prepared, more fully than I am accustomed to prepare them, as the basis of an oral argument which I was expected to make. It is, in all respects, substantially what I intended to say. É. WAKELEY.]

Argument of Mr. Wakeley Submitted by Agreement.

MR. PRESIDENT AND SENATORS:You know what my professional connection with this cause has been. I was absent, from necessity, during the former portion of the trial, and during the delivery of the arguments of counsel. Your order, afterwards made, that the cause be continued, and that new proofs might be made, was the occasion of my being here to take part in the proceedings of the last three days.

I presume, therefore, I shall not be expected to sum up evidence, or to reply to arguments which I did not hear. All this has been done, and been well and fully done by others.

I think, if there remains any professional duty, which I can usefully or properly do, it is only to state the result of the evidence which I find reported, and of that which has just been given, I will make no attempt to analyze, or to review it. I will endeavor, in the short time I shall occupy, only to present some general views of the cause for your fair and just consideration.

What, then, Mr. President and Senators, do these proofs now before you establish?

They show, in few words, that the respondent has been faithless to his high trust; that he has dishonored his exalted station; that he has abused and betrayed the confidence reposed in him.

In the chief civil office of his State, at the beginning, and when the foun dations of its policy were to be fixed, he had great and rare opportunities. If he could not have attained to eminence, or distinction as a statesman, he could have achieved a good and lasting fame. He could, at least, have served with humble fidelity the young State which had so greatly honored him. He might have used the vast power, and unusual privileges intrusted to him to promote its welfare, and advance its interests. No Governor

of any infant State, has had larger means for good to employ.

They

How has he turned these opportunities to account? With such incentives to influence and inspire him, what has been his record? Let thes accumulated proofs answer. show that his whole official career has been marked by disregard of public duty. They show that private advantage, aggrandizement and extortion, have been the chief ends of his administration, and lawlessness and corruption the chief means of attaining them.

Elected and sworn to execute the laws, he has habitually and constantly violated them. Through his whole incumbency of office he has exhibited