M^^.^^^^; ARGUMENT ;ounseI for the Managers for the Assembh Impeachmeel Trial of William Sulzer AT THE CAPITOL, IN THE CITY OF ALBANY 1913 ffl0meU Hwmitg pihtJ^t^g THE GIFT OF ..f J^4taiLdlMjC ..Q,%.9odr^^ A-^c)oSf3- ^|?j:i|.ijf. 3777 The date shows when this volume was taken. To renew this book copy the call No. and give'to **-3-Hb — ■-- the-Hbrarian >- HOME USE RULES. All Boaks subject to Recall All books.must be re- turned at end of college year for inspection and repairs. Students must re- turn all books before leaving town. Officers should arrange for the return of books wanted during their absence from town. Books needed by more than one person are held on the reserve list. Volumes of periodi- cals and of pamphlets are held in the library as much as possible. For special, purposes they are given out for a limited time. Borrowers should tiot use their library privileges for the bene- fit of other persons. Books of special value and gift books, when the giver wishes it, are not allowed to circulate. Readers are asked to report all oases of books marked or mutilated. Do not deface books by marks and writing. , & it, can in the slightest degree affect the actual existence of the power as granted by the Constitution, nor in the slightest degree affect the obligation to exercise the power when properly asked. Mann v. Fearson, 9 How. (U. S.) 248, 269; Mayor v. Fargo, § Hill 612; People v. Albany, 11' Wend. 539, 542, 543; Phelps v. Hawley, 52 E". Y. 23, 27; Hagadom v. Koux, 72 ¥. Y. 583, 586. In the language of Mr. Tilden, the enlarged rule in the Con- stitution prevails over the statutory iteration, in 1881, of the words of the Constitution of 1821. Another method of reaching the same result is that section 12 of the Criminal Code thus passed in 18.81 was repealed by the adoption of the present Constitution in 1896, again giving to the Assembly the unlimited power of impeachment in the same lan- guage as of the Constitution of 1846 and the judiciary article of 1867. The adoption of the Constitution of 1895 operated as the repeal of such section 12 — a repeal of a higher body and cer- tainly as effectual as though such a repeal had been by the Legis- ture itself passing a repealing act. Mr. Tilden based something of argument upon the statutes of 1830. If deemed of consequence it will be found that section 30 of the present public officers law is the same as the law of 1831. It comes then that this opinion of Mr. Tilden, statesman that he was, a man of the broadest views as well as a most eminent law- yer, that the position from which he spelled his conclusions ex- isted in 1872 precisely as the conditions exist now, and the con- clusions that he reached there are compelling in favor of the con- tention of the managers here. We have then no embarrassment whatever over the existence of section 12 of the Criminal Code. The questions under consideration are to be settled in precisely the same way as though it had never been passed. It is, however, now claimed by the learned counsel for the defendant that section 7 of article 10 affects the situation, justi- fies this section 12 of the Criminal Code as constitutional and defeats this, our, contention. The section thus invoked reads as follows : " Provision shall be made by law for the removal for mis- conduct or malversation in office of all officials, except ju- 53 dicial, whose powers and duties are not local or legislative, and who shall be elected, at general elections and also for supplying vacancies created by such removal." This section first came into the organic law as section 7 of article 10 of the Constitution of 1846, and has since remained without change. The process of reasoning that seeks to give this section any applicability to the question under argument is obscure; how it may be used to justify any limitations of the unlimited power of impeachment granted to the Assembly by the Constitution, is not at all apparent. The language of the section and its physical position in the organic instrument, alike, evidence its nonapplica- bility to any phase of impeachment proceedings or of the power of impeachment. We have seen that impeachment and impeachment trials are governed by article 6, section 13, article 6 being the one on the judiciary, where provisions for impeachment are properly and naturally placed. The subjects of the Executive and his power are treated in article 4, the other State officers, except the judiciary, by article 5, the judiciary by the various sections of article 6. Article 7 covers the matter of State credit, power to contract debts, the sinking fund, etc. ; article 8 relates to corporations, commissions and boards; article 9 to schools, and then comes article 10, in which the section under discussion is found. It begins by treat- ing the subject of county officers, sheriffs, clerks, district attor- neys and the like (article 10, section 1). Section 2 provides for the appointment or election of county and lesser officers ; section 3 relates to the duration of term of officers, where such term is not provided for by the Constitution; section 4 provides that " The time of electing all officers named in this article shall be prescribed by law;" section 5 treats of the filling of vacancies; section 6 defines the political year and then comes this section 7 before quoted in full. The Constitution has come down in this article, away from the offices of Governor, Lieutenant Governor, judges and legislators, and is here treating the subject of officers of lower rank. If the 54 ■defendant's counsel are right, this continuous diminuendo sud- denly ceases, and we at once have the tremendous crescendo of a return to the power of impeachment, which, as mere arrange- ment, would be grotesque. The section refers to inferior officers, other than judicial, in- ferior to Governor and Lieutenant Governor, and provides that their removal may be provided for by law. The Constitution, deeming it beneath its dignity to treat of such lesser subjects, it is remitted to the Legislature to provide by law for such removal. And this contention is enforced by the fact that the Legislature has provided by law for such removal of such lesser officers, but nowhere for the removal of Governor or Lieutenant Governor (public officers law, sections 32—36). Section 32 of the public officers law provides that the Secre- tary of State, Comptroller, Treasurer, Attorney General, or State Engineer and Suiweyor, may be removed by the Senate, on the recommendation of the Governor, for misconduct or malversation in office, if two-thirds of all the m.embers elected to the Senate shall concur therein. Section 33 takes care of the cases of removal by the Governor, of officers appointed by him to fill vacancies in minor places. Section 34 allows the taking of testimony in removal eases, while 35 relates to mere procedure and 36 to removal of town and village officers by the court. This practical construction by the Legislature, by the various revisers and codifiers of the statute, nowhere saying a syllable about removal of the Governor or Lieutenant Governor, nowhere liere mentioning impeachment, either its power, or its proceeding, is some — slight perhaps, but still some — evidence of construc- tion of this constitutional section. But that this article 10 does not, in any part, refer to, or affect, the office of Governor and Lieutenant Governor is demonstrated beyond challenge by the language of section 4 of the article, be- fore quoted : " The time of electing all officers named in this article shall be prescribed by law." The time of electing the Governor and Lieutenant Governor is fixed by article 6, section 3 as the same time when members of Assembly are chosen, which 55 is (article 3, section 9) the Tuesday succeeding the first Mon- day in JSTovember, until otherwise directed by the Legislature. When, therefore, section 4 of article 10 remits to the Legisla- ture the power to prescribe the time of electing all officers "named in this article," the officers named in the article are other than those the time of whose election is fixed by the Con- stitution in its other parts. The contention of the defendant, however, still is that this article 10, section 7, gives to the Legislature the power to enact section 12 of the Criminal Code, and renders it forceful and not obnoxious to the Constitution. The language does not purport to limit in any way the general grant of the power of impeachment given to the Assembly by section 13, article 6. As to judicial officers, by the Constitution itself is given: (a) The power of impeachment (article 6, section 13) ; (b) Eemoval by both houses by a two-thirds vote of each house (article 6, section 1). This power of removal of judges under this constitutional pro- vision in no way limits or affects the power to impeach them. The proceedings are concurrent. If this be so — if a constitu- tional power to remove does not affect impeachment proceedings — how can a legislative power of removal have any effect on im- peachment proceedings ? Twice within the decade the power of removal of a justice of the Supreme Court has been invoked in the Legislature, but no counsel, the most zealous, has ever claimed in brief or argument, that such power of removal precluded or limited the power of impeachment. It stands true, then, that as to the judiciary, by the Constitu- tion itself, we have both the power of impeachment and the power of removal ; as to all other officers except members of the Legisla- ture who are taken care of by the power of expulsion, the power of impeachment is given by the Constitution and, as to all such other officers but the Governor and Lieutenant Governor, the right to enact laws for their removal is given to the Legislature, and it has acted under this power. But nowhere may the Legislature limit, in any way, the right given to the Assembly in broadest phrase, to impeach any officer, executive or judicial, for any reason it sees fit. 56 We liave thus far argued for the power of impeachment in the Assembly and the right of conviction in the court of impeachment, first, upon the general doctrine applicable anywhere in the Ee- public, and second, upon the proper construction of our State Constitution. There is another line of reasoning that reaches the same result and, at the same time, accentuates and confirms the previous argu- ment. The argument has proceeded upon the concession (although for the argument only) that the crimes here charged against the de- fendant were committed not only outside the day of his term of office, but totally disconnected therefrom. But no such lack of connection exists; on the contrary, the crimes charged are im- mediately and vitally connected with the defendant's official term — so vitally connected that it is no violence of speech to say that they were official acts and must be so treated here. The election law (chapter 22 of the Consolidated Laws), passed in 1909, which codified the various corrupt practices acts up to that time, and which was amended by chapter 891 of the Laws of 1911, has imposed new duties upon one running for office, has created new relations between a candidate for office and official duty when office is finally assumed — relations so close and so well defined as to render any ancient precedents on the subject, whether crimes committed prior to the official term are impeachable or not, largely obsolete. A detailed examination of the provisions of this election law is not necessary. It is sufficient to say that among other things it is designed to control the expenditure of funds, and generally to prescribe the duties of candidates and of those in charge of the selection of nominees and the election of candidates. Of the laws in force at the time of the general election in 1912, immediately affecting the question here discussed, were sections 546 of the election law and 7T6 of the Penal Law. The first, that of the election law, requires to be filed within twenty days after election a statement setting forth all the receipts, expenditures, disbursements and liabilities of a committee and of every officer, member and other person in its behalf, which shall include the amount received, the name of person or committee from wliom received, the date of its receipt, the amount of every ex- 57 penditure or disburBement exceeding five dollars, the name of the person or committee to whom it was made, and the date thereof and, except where made to a-other committee, the purpose of the expenditure or disbursement. A candidate is required to file the same statement and, in ad- dition, all contributions made by him. The latter (section 776 of the Penal Law) requires to be filed a statement by a candidate within ten days after election, showing in detail all the moneys contributed or expended by the candidate, directly or indirectly, by himself or through any other person, in aid of his election. It requires that there shall be given the names of the various persons who received the moneys, the specific nature of each item and the purpose for which it is expended, or contributed. To this there must be attached an affi- davit, subscribed and sworn to by such candidate, setting forth that the statement is in all respects true and a full and detailed statement of all moneys contributed or expended by him, directly or indirectly by himself or through any other person in aid of his election. It will thus be seen that from the time a person is nominated for ofiice he comes under the provisions and directions of the law. He is not yet an officer, but he is seeking to become one and, in order to become one, is required to conform to these direc- tions of the statute. Th&re has thus been prefixed to the office what we may call an official vestibyle, so placed that a person entering into the office must pass through it. And it is no stretch of language to say that the law practically makes an officer .of a candidate — and of an officer-elect. He is certainly subject to the direction of the law "from the moment he is nominated. The object of all this is patent. Misconduct as a candidate corrupts public duty in office. Wickedness in a candidate is as surely inherited by the official as any hereditary taint by the child from the parent. The title to one of the acts leading up to the present law ex- presses it fully — "An act to amend the election law in relation to the publicity of contributions to, and expenditures of, cam- paign funds, and providing for judicial inquiries thereto." (Chap- 58 ter 502, Laws 1906.) The purpose of the statute is not captious. It is genuine and for the purpose of aifording positive information to all interested, to the people at large, not only how much and for what the candidate himself has contributed, but the persons who have made contributions to him, so that there may be no misunder- standing either as to the amount of contributions thus made, or the character of those who made them. It was intended that the people should have this information, so that, among other things, during the administration of the office, it could be observed whether there was any attempt being made to reward by official patronage, or appointment, those who had made undue contribu- tions in aid of the election of the official dispensing such patron- age. While the act of filing the statement of expenses is required to be done before the official takes his office, its purpose is to insure pure conduct in the preliminary struggle for the office, and it has become a matter of the deepest concern to all the people of the State that the various candidates shall comply with this pro- vision, fully and completely. I^ot once since this policy embodied in the corrupt practices acts has been entered upon, has there been any variableness or shadow of turning, with respect to it. Every step in legislation has been to strengthen and complete the scheme and to make stronger its provisions. It was attempted to make forfeiture of office one of the results of failing to file a statement as prescribed by law, but this was held unconstitu- tiona], as creating an extra constitutional test for offi.ce. (Saxe on Elections, p. 174, and cases there cited.) The charge here made (among others), is that the defendant, William Sulzer, made and filed a grossly false statement under these provisions of the statute, and then corruptly swore that it was true. The statement thus filed showed receipts by the de- fendant from sixty-eight contributors to the amount of $5,460 and expenditures aggregating $7,724.09. It is charged that con- tributions eniunerated in the article, to the amount of $8,500, were made to the candidate and not reported. By this corrupt practices legislation, the position of a candi- date is legally, indissolubly linked with that of the official. It is as much required that he shall make this statement of the amounts 59 received by him and the expenditures, as it is required that he shall take the ofRoial oath as Governor, when inaugurated. The one cannot be separated from the other, and one is as positive a direction as is the other. The making of a false statement of receipts and expenditures, is just as much a violation of duty and the commission of a crime, as is the violation of the official oath taken upon induction into office. It comes then, instead of the candidate being required to take but an oath before he enters upon the duties of his office, he is required to make this certificate during the inchoate period, just after he has been voted for as a candidate, and to take the oath when he assumes the duties of the office. The falsity of statement of receipts and expenditures is as surely a violation of official duty, not perhaps as noxious in its effect and yet in view of the purposes of the statute scarcely less so, and just as much scandalizes the State and is just as much evidence of moral unfit- ness for the office, as the violation of the inaugural oath taken at the beginning of tlie term. He who deliberately fills out a false statement in November is not fitted, nor fit, for public office in January; he who commits larceny in October may not be in- trusted with the responsibilities of high office three months later. Where is the harm that can come to the State from the violation of the oath of office that does not come from a false certificate as to what has been done while a candidate for office — where the shame in the one case, that does not follow in the other? Indeed, the falsity of the certificate as to the receipts and expenditures is the more precisely provable and the more precisely wrong than is the violation of the official oath, because it relates to specific and absolute facts, while the violation of the official oath may have something of difference of opinion as to what constitutes official duty in a given case, in its defense. But there can be no possible defense or palliation of the act of suppressing con- tributions and expenditures or in making a false affidavit as to them. In all this there is nothing of effort to convict the defendant for lying. The world hates a liar, but it is not for lying that we ask conviction of William Sulzer. In pursuance of the impera- tive directions of the statute — a statute based on the soundest eo reasons — he is charged with filing a false certificate of contri- butions made to him. In doing so he violated the law and com- mitted a crime. Appended to this false statement, thus filed, is an affidavit, duly sworn to before a magistrate, attesting to the correctness of the statement. Argaiment is not here had as to whether the crime of perjury may be predicated upon this fake affidavit. It is had on another phase of the case, by another counsel who will succeed me. But, whether guilty of legal per- jury, or whether, on a quibble that finds its congenial atmosphere at the Old Bailey, or the Tombs Police Court, he shall escape judgment of that loathsome crime, he intended to commit perjury and believed that he was committing it, in subscribing this oath. All the blackness of heart ; all the intention to do wrong ; all the revelation of infajnous character, that are demonstrated by a legally false oath, are demonstrated by this intention to commit perjury, as too, by the certificate itself, the violation of the stat- ute designed to prevent corruption at the polls. It may be urged that the statute creates no penalty of forfeit- ure of office, for a false certificate of receipts and expenditures, during the candidacy of the person making the oath. It is true. But, as before seen, it attempted to do so, but was declared impos- sible under the Constitution. If it could, no impeachment would, perhaps, be necessary. We are not here arguing any question of automatic removal, but the question of what is an impeachable offense. To repeat, varying the phrase very slightly — no man may now legally become Governor of the Empire State, unless and until he shall have done two things: one, certified to his receipts and expenditures while a candidate, and appended thereto his affi- davit that it is correct ; the other, the oath he takes upon his in- auguration, the instant that he becomes the highest official of the State. Both are connected with his office, one as much as the other; both precede his actual investment with the powers and duties of the position, the one by a few weeks, the other by a single instant. A person making a false certificate of contributions and ex- penses is guilty of a misdemeanor (Penal Law, sec. TTG), for the filing of a false statement is, of course, not a compliance with Gl section 776 which requires the filing of a true one, which has not been done. Will it be claimed by the learned counsel for the defense that, if it were clearly alleged and proved here that the defendant were guilty of the crime of bribery in the purchase of votes at the elec- tion where he was chosen, it would not be an impeachable offense because the crime was committed before the beginning of the ofh- cial term? I cannot think that they will make any such conten- tion. If they do, I suspect that they will be without the support of a single member of the Court. Yet bribery is not mentioned in the Constitution as an impeachable offense, and, if it is such, it is only under the general grant of the power of impeachment, without attempt at definition, only as a high crime and misde- meanor, and if it is so guilty and impeachable, as of course it is and must be, it is for a crime committed before the official term began, is something done as an individual, not any act as Gov- ernor, nor any malversation in oifice, nor for misconduct in office. How may an official be impeached for bribery committed before his term began, but connected with his election to the office held, and not be impeached for evasion of the statute as to filing a certificate of receipts and expenditures connected with his election? Bribery at the election is not mentioned as a cause of impeachment, neither is a false certificate as to election expenses. Either, if impeachable at all, must be because of the commission of a crime. Both are done in connection with the election to the very office held and one is as corrupting to the party doing it, as much an evidence of the moral unfitness that disqualifies the offender from continuing to hold his office, and is as truly impeachable, as the other. All the cases of expulsion from a legislative body for bribery in obtaining election to the office are applicable here. Expulsion from a legislative office for bribery is but the equivalent of impeachment of an executive or judicial officer for the same offense. Impeach- ment of a legislative member is not a proper method of procedure, and so far as counsel have discovered was done only in the Blount case in the early part of the last century — never in this country before or since. The Lorimer case, fresh in the minds of all, is the latest, where expulsion was had for such cause. In that case. C2 in all cases where action has been had for bribery in securing the office, the offense has been committed, of course, and of necessity, before the official term began. It stands true, then, that in the State of New York the offenses here charged are impeachable ; that, if proven, they show a moral unfitness to fill the office of Governor, or any office, and the defend- ant's contention with respect to the nature and effect of the crimes charged must be overruled. APPENDIX (Accompanying Mr. Brackett's argument) Federal imDeachments William Blount, Senator from Tennessee. Impeached July 7, 1798, for conspiring while a senator to con- duct hostile expedition against Spain in the Floridas and Louisi- ana, in order to conquer same for Great Britain. Also for excit- ing and encouraging Creek and Cherokee Indians to begin hos- tilities in the Floridas and Louisiana for the same purpose — all in violation of treaty between United States and Spain. Blount filed a plea to the jurisdiction on ground that he was not then a senator, and was not then, or at the time of the offenses charged, a civil officer of the United States. (He had been expelled by the Senate before his impeachment. ) Plea sustained 14 to 11 and Blount acquitted; the result of this ruling being that none but a civil officer can be impeached. Managers included Messrs. James A. Bayard and Robert G. Harper, Samuel W. Dana, Dennis, Evans, Gordon, Hosmer, Pinck- ney, Sewal, Imlay and Kittera. Eespondent's counsel. — Jared Ingersoll and A. J. Dallas. John Pickeeing, United States District Judge, N. H. Impeached February, 1803, for delivering ship Eliza to claim- ant after attachment, without requiring bond as provided by law ; refusing to hear testimony offered by district attorney on behalf of United States; refusing to allow an appeal from his judgment; drunkenness on bench and using profane language. Pickering did not appear ; but his son, through Eobert Harper as counsel, filed a petition that Pickering was insane and asked 63 more time. Denied. Trial proceeded, Pickering being absent and not represented. Guilty 19 to 7 on each article. Sentenced to removal from office. Managers. — Messrs. Nicholson, Early, Rodney, Eustis, John Randolph, jr., Samuel L. Mitchell, George W. Campbell, Black- ledge, Boyle, Joseph Clay, and Newton. Samuel Chase, Justice Supreme Court, United States. Impeached March, 1804, for misconduct on trials of John Fries for treason, and James T. Callender for sedition; an im- proper attempt to induce a grand jury to find an indictment against a certain newspaper; and for delivering a political harangue to a grand jury in Maryland and other misconduct in office. Chase answered at length, admitting many facts; but explain- ing them by able argument. Acquitted. — Highest vot© against him, 19-15. Aaron Burr, Vice President, presided at trial. Managers. — John Randolph, Joseph Nicholson, Eodney, Early, Boyle, Nelson, and G. W. Campbell. Respondent's counsel. — Luther E. Martin, R. G. Harper, Joseph Hopkinson, and Philip B. Key. James H. Peck, Judge United States District Court, Missouri. Impeached in April, 1830, for pxmishing Luke Edward Law- less for contempt, because he published a letter pointing out errors in one of Judge Peck's decisions regarding a Spanish land claim. Peck answered, justifying his act. Acquitted. — 22 guilty; 21 not guilty. Managers. — James Buchanan, Henry R. Storrs, Ambrose Spencer, George McDufSe and Charles A. Wickliffe. Respondent's counsel. — William Wirt and Jonathan Meredith. West H. Humphreys, United States District Judge, Tennessee. Impeached May, 1862, for accepting and discharging duties of judge under Confederacy without resigning as United States judge, and other treasonable acts. Humphreys did not appear. Tried as if plea of " not guilty " had been entered. G-l Convicted, and sentenced to removal and disqualification to hold an ofiice by unanimous vote. Managers. — Bingham, Pendleton, Trin and Dunlap. AsTDEEVf JoiixsoN, President of United States. Impeached, Eebrnary 24, 1868, for removing Stanton as- iSec- retary of War in violation of tenure of office act, and an act to define certain conspiracies; for making speeches contemptuous of Congress. Johnson answered raising leg'al questions only. Chief Justice Chase presided. Trial occupied from March 30 to ilay 6, 1868. Acquitted. — 35 guilty, 19 not guilty. Managers. — Benjamin F. Butler, Thaddeus Stevens, John A. Bingham, George S. Boutell, James F. Wilson, Thomas Williams and John A. Logan. Respondent's counsel. — Henry Stanbery, Benjamin E. Curtis, William M. Evarts, William S. Groesbeck and Thomas A. K. ISTelson. William W. Belknap, Secretary of War. Impeached, 18Y6, for bribery, receiving $6,000 to $12,000 a year from post-trader appointed by him. Belknap resigned and President Grant accepted his resigna- tion. Immediately thereafter, and on the same day, he was im- peached. Plea was filed to jurisdiction upon ground that Belknap was not an officer of United States when impeached. Overruled by vote of majority, but less than two-thirds. Counsel for Belknap refused to plead further and trial pro- ceeded as if Belknap had pleaded " not guilty." Acquitted. Managers. — Scott Lord, J. Proctor Knott, W. T. Lynde, John A. McMahon, Eldridge G. Lapham, George P. Hoar, Jenks. Eespondent's counsel. — JMatthew H. Carpenter, Jeremiah S. Black and Montgomery H. Blair. Charles Swayne, Judge United States District Court, Florida. Impeached December, 1904, for claiming and receiving $10 a day for expenses while holding court outside his district; for not residing in his district; for abuse of judicial power by causing a receiver of railroad, appointed by him, to furnish him with free transportation, private car, etc., for unlawfully adjudg- ing certain lawyers in contempt of court. Swayne answered. Acquitted. Managers. — ^^ Messrs. Palmer, Jenkins, Gillet, Clayton and Smith. Eespondents' counsel. — Anthony Higgins and John M. Thurs- tOD. Egbert W. Aechbald, Jvdge United Staies Commerce Court. Impeached 1912, for unlawfully, and through his influence as a judge, making contracts and obtaining options, valuable to him, from railroad companies and others, who were litigants before him ; for accepting presents of money, from lawyers and litigants to pay his expenses on a pleasure trip; for appointing as com- missioner of jurors, a general attorney for a railroad company. Archbald answered. Convicted, removed, and disqualified. Managers. — Henry D. Clayton, Edwin Y. Webb, John C. Floyd, John W. Davis, John A. Sterling, Paul Howland and •George W. Worris. Respondent's counsel. — E. W. Archbald, Jr., A. P. Worth- ington, M. J. Martin and Alexander Simpson. State impeachment Arkansas Powell Clayton, Governor of Arkansas. Impeached, 1871, for conspiring with members of the state Supreme Court to unlawfully deprive Lieutenant Governor James W. Johnson of his office, to which he had been elected and for which he had duly qualified; for unlawfully removing a county probate judge; for aiding in frauds in the election of members of the state legislature ; for accepting bribes, etc. At the same time a resolution was passed, suspending Clayton from performance of his duties as Governor, and the members of 3 66 the House of Kepresentatives by force locked him into the execu- tive chamber and nailed the door, in order that he might not escape and act. The next day he notified the Assembly that lie was advised by counsel that the Assembly had no power to sus- pend him from office. The next day after the impeachment of Governor Clayton the House of Representatives adopted a resolution of impeachment against John McClure, chief justice of the state, for engaging in the conspiracy with the Governor above mentioned. As soon as a quorum of the Senate was present, articles of im- peachment against the Governor and chief justice were presented. Other state officers were impeached about the same time. The Senate thereupon adopted rules for impeachment, which for- bade the managers from argviing any preliminary or interlocutory question during the trial for more than ten minutes, and otherwise restricting the managers. Thereupon, the managers reported to the House that in their opinion no fair or impartial trial could be had. The report was accepted and the managers discharged, and the speaker of the House authorized to appoint another board of managers, which was done. The new managers then reported that they were unable to find sufficient evidence which would war- rant the preparation of particular articles of impeachment against the Governor, and requested that they be discharged. The House thereupon resolved " that further proceedings in the impeachment of Powell Clayton be dispensed with, and that the action of this House heretofore taken, be set aside and cancelled ; that the Sen- ate be informed of the action of this House in the premises, by the clerk of the House, and that the committee of the board of managers be discharged." On the same day Governor Clayton sent the Senate a message, declining to accept the position of United States Senator. A single article of impeachment was presented against Chief Justice McClure for unlawfully issuing an order restraining James M. Johnson, as Lieutenant Governor, from exercising the duties of the office of governor during the period above mentioned. A compromise was arranged under which Johnson resigned and was appointed Secretary of State. Governor Clayton was re- elected to the Senate of the United States and accepted the office. 67 A special chief justice was appointed by the Governor to pre- side on the trial of Chief Justice McClure, who filed a demurrer to the articles upon the ground that although he was charged with unlawfully issuing an order it was not alleged that he did it with corrupt motive. The demurrer was unanimously sustained. Califobnia William E. Tuenee, Judge of the Eighth Judicial District. Impeached in 1851, for committing Stephen J. Field for con- tempt of court to an imprisonment for forty-eight hours and a fine of $500, and his disbarment for taking legal steps to set aside the contempt proceedings, and the similar treatment of two other members of the bar who assisted him in the matter. Mr. Fields was released by habeas corpus immediately after his arrrst, but Judge Turner had him arrested again, threatening with com- mitment the judge who granted the writ, and after the at- torneys had been restored to the bar by a mandamus from a higher court, attempted again to disbar them. The matter was compromised by a passage of a law, redividing the state into judicial districts, and assigning Judge Turner to another part of the state. He subsequently resigned to avoid an impeachment for habitual drunkenness and other charges. Henry Bates, State Treasurer: Impeached 1857, for conspiracy to defraud the State through loans and deposits of the state's funds, and other ofiicial mis- conduct. The respondent pleaded to the jurisdiction of the court in his answer, which alleged that his resignation had been accepted by the Governor, and that he was no longer in oflace when the articles were adopted by the Assembly. The managers filed a replication which alleged that the re- spondent was treasurer of the state at the time of the impeach- ment; that if he had been indicted, the indictment was found after the articles had been presented. To this Bates filed a plea which claimed that the allegations in his answer, which were not G8 denied by the replication, were snfScient to show that the court had no jurisdiction. The Senate overruled th« objection to the jurisdiction and ordered a further answer, which the respondent refused to make. Convicted, removed from office and disqualified in a judgment which recited the fact that he had resigned after his impeachment. James H. Hakdy, Judge of the Sixteenth Judicial District. Impeached 1862, for wilfully and wrongfully making decisions for the benefit of his friends in civil and criminal suits pending before him; for drunkenness upon the bench and other miscon- duct in office. He was convicted by a two-tliirds vote, under the fifteenth article of impeachment, which charged him with profane lan- guage out of court, expression of sympathy with secession, Jeffer- son Davis and the Confederacy. Sentenced to removal from office. rLOEIDA Haeeison Eeed, Governor. Impeached 1868, for lying while transacting business with members of the Legislature; for giving commissions to officers in blank; and for embezzlement. The articles of impeachment were presented to the Senate in the presence of only eight senators, twenty-four being the entire number of the Senate when full, but several elected being dis- qualified by the acceptance of inconsistent offices, and vacancies existing also through resignation, so that eight was> a majority of the number of senators in office. By the state Constitution on impeachment of the Governor, he was suspended from office until the end of the trial. Immediately, the Lieutenant Governor issued a proclamation that he was acting Governor. Governor Eeed refused to surrender possession of his office and requested an opinion of the Supreme Court on the question of whether a quorum of the Senate had been present when the impeachment was presented, and whether the proceedings had the effect of sus- pending him from office. The Lieutenant Governor wrote to the 69 court, claiming that it ought not to give a legal opinion upon the questions which were within the exclusive jurisdiction of the Senate and Assembly. The court held unanimously that no quorum of the Senate was present when the impeachment was presented, and, consequently. Governor Eeed had not been sus- pended from ofRce. In the Matter of the Executive Communication of the 9 th of November, 1868, 12 Florida, 653. In the meantime the Legislature had adjourned, and when it reconvened, both houses recognized Governor Eeed in office, and the impeachment was abandoned. Geoegia Heney Osborne, Judge Superior Court, Camden County. Impeached 1791, for falsification of election returns. Convicted, removed and disqualified for thirty years, and fined $600 to defray expenses of impeachment. John Loving, Samuel Jackson and Fleming F. Adeian, Commissioners of Fraction Sales. Impeached 1825, for retention of moneys collected by them as cash payments for sales of fractional parts of surveys; for with- holding large number of state grants so that they might execute complete titles to the purchasers of said fractional surveys, and for the mutilation of records, etc. Acquitted. Washington L. Goldsmith, Comptroller General. Impeached 1879, for the collection of illegal fees; for making false returns, and converting to his own use moneys collected as insurance taxes and fees which belonged to the state, etc. Demurrer to several articles, which was sustained as to one and overruled as to all the others. Court permitted evidence of offenses charged in articles which were committed during a term of the same office preceding that then held by the respondent. Convicted, removed and disqualified. TO John W. Eenfeoe, State Treasurer. Impeached 1879, for corruptly receiving eominissions from banks in return for depositing with them state funds. Acquitted. Illinois Theophilus W. Smith, Justice of the Supreme Court. Impeached 1833, for permitting his son, then a minor, to bargain off the office of cleric of the Circuit Court of Madison county, and to hire another to do the work thereof at $25 a month, reserving the fees of said office to himself. For com- mitting a Quaker to jail and certifying that he was incompetent to serve as a juror, by reason of want of soundness of mind, be- cause he presented himself to the court with his hat on, and other improper conduct in office. Acquitted. Iowa John L. Beown, Auditor of the State. Impeached 1886, for failure to keep proper accounts and to make reports of office; for bribery and for other misconduct in office. Acquitted. Kansas Charles Robinson, Governor. Impeached 1862, for complicity in the sale of bonds of the state of Kansas, par value $56,000, to the United States, at 85 per cent upon their amount, of which the state received only 60 per cent, the remainder being retained by one Stevens, a leading Kansas politician, who made the sale of the bonds. Acquitted upon the gTound that there was no evidence of his complicity in the act. John W. Eobinson, Secretary of State and George S. Hilyee, State Auditor. Impeached in 1862 for their complicity in the bond transac- tion above described. Each of them was convicted and removed from office. 71 Theodosius Botkin, Judge of the Thirty-second Judicial Dis- trict. Impeached 1891, for habitual drunkenness both on and off the bench, and for other misconduct in office. Demurrers were sustained to the articles, which charged drunk- enness when not engaged in discharge of his official duties; the illegal purchase of intoxicating liquors and the frequenting of places where he knew that liquor was illegally sold. Acquitted. The case is interesting as giving a view of the state of civiliza- tion in Kansas at that time. Louisiana Benjamin Elliott, Judge of the City Court, City of Lafayette. Impeached 1844, for failing to keep records of the naturaliza- tion of aliens, and for permitting his clerk to issue false certificates of naturalization. Convicted and removed from office. George M. Wickcliffe, Auditor of Public Accounts. Impeached 1870, for bribery and incompetence. Convicted, removed and disqualified. Heney C. Waemoth, Governor. Impeached 1872, for forcibly expelling from office the Secretary of State and the issuing of a commission to another in his place. For the unlawful appointment, after the adjournment of the Sen- ate, of an Attorney General and judge and other officers. For the offer of a bribe of $50,000 to the Lieutenant Governor, etc. Eespondent appeared by counsel and filed exceptions, disputing the legality of the court and the lower house, on the ground that they were not lawful bodies. The court rejected these and refused to permit them to be filed. Before any further proceedings the Senate requested the advice of the chief justice, whether the trial should proceed after the respondent's term of office had expired. Chief Justice Ludeling delivered an opinion that it could not, saying: " I question the policy of kicking a dead lion." The Sen- ate adopted this opinion and adjourned. 72 Massachusetts William Geeenleaf, Sheriff of ^Yorcester County. Impeaclied 1788, for converting public money to bis own use. Demurred and pleaded not guilty. Convicted and removed from office. 'N. HuA'T, Justice of the Peace. Impeacbed 1794, for making false record entries. Pleaded not guilty. Convicted and suspended-for one year. John Vinal, Justice of the Peace. Impeacbed 1800, for bribery, etc. Pleaded not guilty. Convicted, removed and disqualified. Moses Copeland, Justice of the Peace. Impeacbed 1807, for entering judgments in tbe name of a fic- titious endorsee upon promissory notes owned by bim. For tak- ing judgments in cases before bour of return of summons and refusing to vacate judgments, and for accepting a bribe of $1.50. Acquitted. James Pkescott^ Judge of Probate County Court of Middlesex. Impeacbed 1821, for extortion in collection of exorbitant fees in excess of amount autborized by statute. Fifteen articles in all, and be was acquitted on all except two. Convicted and removed. Among respondents' counsel were Samuel Hoar and Daniel Webster. Samuel Elagoe, Justice of the Peace. Impeacbed 1826, for making false certificates tbat negroes and Indians bad appeared before bim and declared tbat tbey were free and resided in free states. Acquitted. 73 Michigan Charles A. Edmonds, Commissioner of the State Land Office. Impeached 1872, for corruptly withholding land for sale for the benefit of certain land dealers, in return for moneys paid to himself and deputies and clerks; for furnishing secret infor- mation concerning such lands to land dealers, whose profits he shared, and for other corrupt conduct in office. And for deposit- ing in the post office of the United States in the state of Indiana an obscene newspaper and circulating such newspaper in the state of Michigan, and for other immoral personal conduct. Acquitted. Defended by John B. Shipman. Minnesota William Seegee, State Treasurer. Impeached 1873, for concealment of delinquencies of his pre- decessor in office and loaning state funds to private individuals, some of them his bondsmen. Seeger resigned, and the Governor accepted his resignation, but the Senate voted twenty-six ayes and ten nays that they would receive no evidence concerning such resignation. Seeger's counsel then filed a plea of guilty with a disclaimer of corrupt motives. The Senate thereupon found him guilty and sentenced him to removal from office. Sherman Page, Judge of the Tenth Judicial District. Impeached 1878, for maliciously adjourning for four years a trial of an indictment for libel against him, pending the adjournment holding the accusor under heavy bail ; for refusing to make orders fixing the number of deputies for the sheriff; for nonattendance upon terms of court, and for preventing the payment of such deputies ; for maliciously attempting to induce a grand jury to indict a county treasurer who had committed no crime, and for other improper conduct in office. Acquitted. ]\Ianagers were ordered to furnish a bill of particulars as to 74 certain articles which the respondent moved to quash because too indefinite. E. St. JuLiEisr Cox, Judge Ninth Judicial District. Impeached in 1881, for drunkenness in discharge of his official duties. Convicted. Managers vs^ere ordered by court to secure bill of particulars as to certain articles to which the respondent had demurred be- cause too indefinite. MlSSOUEl KiCHAED S. Thomas, Circuit Judge. Impeached 1826, for refusing to recognize the rightful clerk of his court; for putting his own son in the place of the clerk, and for other improper conduct in oflSce. Convicted. Albert Jackson, Circuit Judge. Impeached in 1859, for insulting, absuive and tyrannical con- duct toward parties and counsel; for imposing illegal imprison- ments and refusing writ of habeas corpus, and other improper conduct in office. Acquitted. James Proctor Knott was one of the managers on this trial. Judge Jackson defended in person. Philaj^bee Lucas, Judge Fifth Judicial Circuit. Impeached 1872, for certifying bills of costs in blank against a county in his circuit, and for other improper conduct in office. Respondent answered and defended. Articles were withdrawn at the conclusion of the evidence offered in their support. Mississippi Albert Ames, Governor. Impeached 1876, for failure and refusal to comply with a re- quest of the county treasurer to suspend a sheriff and tax col- lector, who had failed and refused to make reports and payments 75 of taxes collected; for the appointment of justice of the peace and constables for partisan purposes; for permitting the State Treas- urer to remain in office and in possession of the treasury after the state Attorney General had notified the Governor that his bond was insufficient. For defrauding the State of $43,750 by grant- ing contracts without competitive bidding, etc. Governor Ames wrote to the Legislature that he would resign if the impeachment proceedings were dismissed. The articles of impeachment were withdrawn and he resigned. Alexandee K. Davis, Lieutenant Oovernor of Mississippi. Impeached 1876, for selling a pardon to a convicted murderer, while the Governor was absent from the state. Although he at- tempted to resign, he was convicted, removed and disqualified. Thomas W. Caedozo, Superintendent of Education. Impeached 1876, for embezzlement of state funds. Pending the proceedings, he resigned, whereupon the Assembly abandoned the impeachment, and the Senate, sitting as a court, adjourned. ISTebeaska David Butlee, Governor. Impeached 1871, for having stolen state funds, receiving bribes and other corrupt acts in office. The articles of impeachment in this case were adopted at an extraordinary session, called by the Governor to consider specific legislation. There was no mention of impeachment in the call. The respondent filed a special plea to the jurisdiction of the court on this ground, which was overruled. Convicted. John Gillespie, State Auditor. Impeached 1871, for corrupt connivance with Butler in refer- ence to expenditure of state funds and other misconduct in office. This impeachment was never tried, and the following year, 1872, was withdrawn by the succeeding House of Kepresentatives. 76 AViLLiAJi Leese, Fonnerly Attorney General. Impeached 1893. Articles dismissed upon the ground that no impeachment could be sustained against a man who was not in office. GfiOEGE Hastings, Attorney General; John C. Allen, Secre- tary of State, and Augustine E,. Humpheet, ■Commissioner of Public Lands. Impeached 1893. Articles charged misappropriation to their own use of public funds. Acquitted because of lack of proof of criminal intent. New Jeeset IIeney Millee, Justice of the Peace. Impeached 1830, for prosecuting before another justice of the peace for his own benefit a note which had been placed in his hands for prosecution and collection before himself for the bene- fit of the true owner thereof; for attempting to intimidate a de- fendant from appealing and for failing to keep accurate docket of the proceedings in his court. Convicted and removed. Daniel C. Cozens, Justice of the Peace. Impeached 1837, for issuing summons, entering judgment with- out the knowledge or consent of the plaintiff named therein, and for using profane language on the bench. Acquitted. Pateick Laveety, Keeper of State Prison. Impeached 1886, for improper relations with women prisoners. Convicted, removed and disqualified. Pateick W. Connelly, Justice of the Peace. Impeached March 15, 1895, for assaulting lawyer who had called upon him upon official business, and for falsification and alteration of his docket. Convicted and removed. 77 JS'eW HAMPSI-irEB WooDBUEY LAWGDOig-, Judge Superior Court. Impeached 1790, for unlawfully failing to hold court at ap- pointed terms. Eesigned, and proceeding was quashed. ISTjiw York John C. Mathee, Canal Commissioner. Impeached 1853, for corruptly faYoring contractors j for letting contracts to personal friends for high prices; for neglecting in- spection of canals; for claiming and receiviBg unlawful mileage and other improper conduct in oiEce. Answered. G-eneral denial. At opening of trial, counsel for respondent moved to quash first five articles on ground that none of them stated impeachable of- fenses, the principal point being that the statute under which contracts had been let had been adjudged unconstitutional. Motion denied. Acquitted. Managers. — E. Philfaxed Loomis, Marshal B. Champlain, Or- lando Hastings, Solomon B. ISToble, Walter Sessions, John McBur- ney, Daniel P. Wood. Managers' counsel. — John K. Porter. Eespondent's counsel. — James T. Brady and Rufus W. Peck- ham. Egbert C. Doen, Canal Commissioner. Impeached 1868, for conspiracy and bribery in letting con- tracts and other improper conduct in office. Eespondent moved to quash one article as too indefinite. Granted. Ees-pondent then moved to quash other articles on the same ground. Denied for reason that motion to quash articles mu'st be made as to all articles at one time. Acquitted. Managers. — John C. Jacobs, John F. Little, Edmimd L. Pitts,, M. P. LeBeau, William S. Clark, William B. Quinn, John L. Flagg, Alpheus Prince. 78 Managers' counsel. — Smith W. Weed, David J. Mitchell. Eespondent's counsel. — Henry Smith, John H. Eeynolds, Wil- liam A. Beach. Geoege G. Baenaed, Justice of Supreme Court. Impeached 1874, for unlawfully aiding as such justice, James Fiske and J. Gould to obtain control of the Erie Eailroad and Union Pacific Railroad ; for improperly favoring certain attorneys ; for using obscene and vulgar language while on the bench, and for other improper conduct in office, during his then present term, and during a prior term of the same office. Respondent moved to quash articles charging improper conduct during a prior term of the same office. Denied. Convicted, removed and disqualified. Managers. — Thomas G. Alvord, W. W. ISTiles, Albert L. Hays, David B. Hill, James W. Husted, John C. Jacobs, Cyrillo S. Lin- coln, L. Bradford Prince and Commodore P. Vedder. Managers' counsel. — Josiah M. Van Cott, Daniel Pratt, Jolin E. Parsons, Albert Stickney. Respondent's counsel. — ^William A. Beach, John H. Eeynolds, William O. Bartlett and Rufus F. Andrews. ISToETH Caeolina WiLi.iAii W. HoLDEN, Governor. Impeached 1870, for wrongfully proclaiming coimties of Ala- mance and Caswell in insurrection and occupying the same by military force ; for causing imlawful arrests ; for refusal to obey writs of habeas corpus, etc. Trial interesting as it reveals Ku Klux secrets. Convicted, removed and disqualified. Ed:mund W. Jones, Judge Superior Court, Second Judicial Dis- trict. Impeached 1871, for drunlcenness in public places. A few days after impeachment he resigned, but the Governor refused to accept his resignation imless articles of impeachment were dis- posed of. The House, thereupon, withdrew the articles. T9 Ohio Cal\-in Pease, Presiding Judge, Third Circuit of Ohio. Impeached 1808, for deciding that a law giving justices of peace jurisdiction of a claim for more than twenty-five dollars and to prevent plaintiffs in other courts from recovering costs when they recovered judgment for more than twenty dollars and less than fifty dollars, was repugnant to both the State and Fed- eral Constitution, and consequently void. Answered, admitting facts and alleging that he only did his judicial duty as he saw it. Acquitted. Judge Tod. Impeached at about the same time and for similar charges as against Judge Pease; ■was also vindicated. JoiiJT Thompson, Judge. Impeached 1811, for arbitrarily and illegally restricting coun- sel, in defending trial of one James Graham for larceny, to five minutes, for the purpose of summing up, against the respectful objection of such counsel; for refusing to sign a bill of excep- tions when legally tendered, and making improper erasures in such bill of exceptions, and for other improper conduct as a judge. Acquitted. James Ferguson, Justice of the Peace. Impeached 1813, for unlawful discharge of persons arrested under a warrant for assault ; for refusing to permit the complain- ant in same case to testify on the part of the state, and for other improper conduct as a justice of the peace. Acquitted. Pennsylvania Feancis Hopkinson, State Judge of Admiralty. Impeached 1780, for accepting bribes and presents. Charges dismissed for lack of proof. Court concluded their decision so witli an opinion expressing their disapproval of the acceptance of presents by public officers. James Wilson, afterwards Justice of the United States Su- preme Court, and Jared D. IngersoU were among attorneys for respondent. John Nicholson, Comptroller General. Impeached 1793, for improper recognition of new loan cer- tificates, which had been issued in pursuance to previous act of the Legislature, which had been annulled by a later act. For certifying that they were redeemable, and for appropriating the proceeds of some certificates to his own use. Acquitted, but he resigned immediately thereafter. On the same day, both houses of the Legislature passed a reso- lution for his removal as comptroller. Upon the Governor being notified of this action, he advised the Legislature that the respond- ent had superseded the removal by resigning his office. Alexandek Addison, Presideiit of the Court of Common Pleas in the Fifth Judicial District. Impeached 1802, for making political harangues in addressing grand juries, and for insulting associate judges in court. Convicted and removed from office. Prosecution conducted by Alexander J. Dallas and McKean, as counsel for House of Representatives. Addison defended him- self in person with great vigor and ability. Challenge of members of court not sustained. Edwaed Shippen, Jasper Yeates, and Thomas Smith, (being all of the Judges of the Supreme Court of Pennsylvania, ex- cept Judge BrecTcenridge, the only democratic member thereon) . Impeached 1804, for illegally adjudging one Pasmore guilty of contempt and sentencing him to jail for thirty days — the con- temptuous action not being in the presence of the court. This was apparently a political impeachment and failed. Respondents were acquitted. 81 Walter Feanki,in, President, and Jacob Hibshman, Mid Thomas Clabk, Associate Judges of the Court of Common Pleas of Lancaster County. Impeached in 1816, for improperly refusing to compel certain attorneys to pay over client's money which they had collected and unjustly retained. Acquitted. The same Judge Walter Franklin was again impeached in 1825 for delaying administration of justice. Acquitted. Egbert Poetee, President Judge of the Third Judicial District. Impeached 1825, for refusal to furnish his reasons for a re- port which he made as referee and for dismissing exceptions to such report, for the reasons assigned by the party in whose favor the report was made; for insulting litigants in court; for com- pounding a felony; for intimidation of jurors, etc. Acquitted. Silas Chapman, President Judge of Eighth Judicial District. Impeached in 1826, for illegal arrest; for refusal to file his opinion in case where unsuccessful party desired to review by writ of error, and for favoritism on the bench. Acquitted. Tennessee Thomas W. Feaziee, Judge of Criminal Court of Davison County. Impeached 1867, for issuing a writ of habeas corpus against members of the Legislature, who had been imprisoned by the Legislature, and for refusing to accept a return of the sergeant at arms of the Legislature, stating said fact, and punishing said sergeant at arms for contempt of court. Convicted, removed from office and disqualified. 82 West Virginia John S. Buedett, Treasurer of West Virginia. Impeached 1875, for agreeing to keep state moneys on deposit in banks wliicli would loan moneys to his son, and for accepting gratuities ;. careless conduct of the business of his ofHce. Convicted, removed and disqualified during remainder of term. Edwaed a. Buedett, Auditor West Virginia. Impeached 1876, for failure to keep account of moneys re- ceived and disbursed by him; for refusing to make official reports, etc. Acquitted. Wisconsin Levi Hubbell, Justice of Second Judicial Circuit. Impeached 1853, for consulting with one of the counsel in a case pending before him during and after the trial, at the same time borrowing from the same counsel $200. For presiding and adjudicating cases in which he was personally and pecuniarily interested; for other improper and indecent conduct in office. Acquitted. S3 Final argument on behalf of the Managers, October lo, 1913. Mr. Brackett. — With the permission of the Court: I think myself happy, members of the Court, that it is given to me to speak to you at this time. The time, the place, the cause, conspire to high thought and mighty endeavor. " The blood more stirs to rouse the lion than to start the hare." The pulse runs higher, the heart beats stronger, in defense of the honor of the Commonwealth, here fearfully assailed from within, than in a cause less sacred. He to whom is given the opportunity to aid in shielding the mother who bore him, the father who begot, or the state which has nur- tured him, is thrice happy and blessed among men. JSTo one, even slightly acquainted with the history of this gi-eat- est of the states, and of the names that make that history a glori- ous one, can avoid a prideful satisfaction that, in the performance of duty, it is given to him to plead in behalf of her good name. It is with that pride and that satisfaction, that the managers of this impeachment come before you in this iinal stage of this his- toric trial, to press upon you that you cast from her service one who has forgotton her honor and has been faithless to the trust that she reposed in him. In doing this, I beg you to believe that there is nothing akin to professional exultation in having been able to develop the facts requiring the conviction of the defendant, but, rather, only a feel- ing of the performance of a solemn duty to the people of the State. At the time of the commencement of this proceeding a few weeks ago, it was something over forty-one years since the As- sembly of the State, the representatives of all the people more truly than any other officer or body known to the law, in the per- formance of a great duty, exercised the functions laid upon it by the Constitution and the laws, in the impeachment of a high official of the State. In our freedom from high crime in public place, we had almost forgotten the machinery for its redress. In 84 a revision of our organic law made during tliat period, the pro- visions for the impeachment of a public official were regarded as so little likely to require use, that they received scant attention at the hands of the learned men reviewing them, and left open for high disciission here questions that could have been speedily and defi- nitely settled there. Through the mists of the years that last State trial rises he- fore us with singular distinctness. In the course of our proceed- ings here it has been looked to with profoundest respect for pre- cedent and for argument. And as I have studied its record, I have prayed that it would be given to us here, each in his own place, members of the Court, counsel, the officials who have served us, to take high courage from the examples there set us, amd to meet our duty here as they met theirs there. And yet I do not remind you of this high occasion, nor of the exemplars who have gone before, to render you timid in the per- formance of your work. The intelligence that has been given to us is for use in the doing of great, as well as of small, duties. We must take the final steps in this proceeding in precisely the sajne spirit that we do our daily round of petty duties through the years. Unawed by responsibility, unafraid of the consequences of any result, unafraid of any result itself, except a wrong one, with ap- preciation of the gTeat opportunity given us to do a lasting ser-, vice for the right, laying aside any baser motives, let us here highly resolve to proceed, as it is given to us to see the light, and with manly hearts. Not speaking now to the members of the Coxirt accustcmied daily to render judgment, to whom the ascertainmait of right is a study and justice a habit, but only to those others unacquainted with judicial work, let me, as one familiar with every temptation that can come to you in the performance of such duty, address myself to you a moment. From the beginning of the impeachment proceedings brought against William Sulzer, nay, from the time that his crimes were first whispered around these halls, on behalf of the defendant there has been a persistent and studied attempt to terrorize the mem- bers of this Court and every person associated with the prosecu- tion. Every art known to the demagogue has been attempted to ac- complish it. The press, a few of its members venal, many of them thoughtless of the grave situation presented, have daily paraded much hopelessly bad law and have direfuUy threatened those who were so singular as to say that they doubted the wisdom of allowing a criminal to remain in the executive chair. Politi- cal extinction has been threatened to those bold enough to urge that it might be well to have an orderly investigation of the matters charged against this man. Counsel have been warned that their appearance for the people here would result in savage attacks upon them. We have witnessed the indecency — for I think it can be called nothing less — of public meetings called to over- awe your judgment and to give you instructions how to decide this cause, before a single word of sworn testimony had been given to you. In season and out, it has been preached that justice would not be done here, when justice was the last thing desired by the preachers. No such campaign has ever been devised as the one that has thus attempted to influence and to terrify you from the performance of jonv duty. Against all this I hold up to you the simple oatli that you took at the beginning of this trial. Its solemn words are fresh with you, and I know that in their presence the least thoughtful will be sobered to the fullest sense of his duty, as I know too that this wave of clamor will never rise in its influence to the level of the soles of your feet. I recall to your minds the words of one of the senators upon the trial of the President, when, standing the heroic flgure that he was, in very travail of soul, he wrote : " To the suggestion that popular opinion demands the con- viction of the President on these charges, I reply that he is not on trial before the people, but before the Senate. In the words of Lord Eldon, upon the trial of the Queen, ' I ' take no notice of what is passing out of doors because I am supposed, constitutionally, not to be acquainted with it. It is the duty of those on whom a judicial task is imposed to meet reproach and not court popularity.' The people have not heard the evidence as we have heard it. The responsibility is not on them bnt upon us. They have not taken an oath to ' do impartial justice according to the Con- stitution and the lavps.' I have taken that oath. I cannot render judgment upon their convictions, nor can they trans- fer to themselves my punishment, if I violate my own. And I should consider myself undeserving the confidence of that just and intelligent people who imposed upon me this great responsibility, and unworthy a place among honorable men, if for any fear of public reprobation, and for the sake of securing popular favor, I should disregard the convictions of my judgment and my conscience. The consequences which may follow either from conviction or acquittal are not for me with my convictions to consider. The future is in the hands of Him who made and governs the universe, and the fear that He will not govern it wisely and well would not excuse me for a violation of His law." Still another distinguished senator, in announcing his judg- ment in the same case, said this : " My duties are clearly judicial, and I have no concern with, or responsibility for, the consequences, political or other, that may flow from my decision." Brethren of the Senate, men many of whom I know of my own knowledge, and all of whom I believe, to be of high mind and lofty ideals, men with many of whom through the years it has been my privilege to clasp hands in love and friendship, unless and until you shall reach the spirit of these great men who thus spoke, you do not come up to the mark of your high calling, but, having reached it, you are worthy to sit in judgment in this air of judicial calm that may not be found outside. Whatever may be thought elsewhere, here you will place your " bark upon the highest promontory of the beach and wait for the rising of the tide to make it float." And that every one of you 87 will come up to this level in your deliberation and your judgment, I have never for a moment entertained a doubt. " So nigh is grandeur to our dust, So near is God to man. When duty whispers low, ' thou must,' The youth replies, ' I can.' " So, to all those who have professed doubts as to whether justice would here dominate, who have sought to discredit in advance the patient fairness by which every right of the defendant has been here conserved throughoiit the days, to all " Eight Reverends " and " Wrong Reverends," everywhere, who profess to find here, not the solemn performance of a public duty laid on you by the law, but only an opportunity to scourge and strike a political enemy, I send greetings and, inviting them to learn from the great apostle moderation of speech, ask them to come and see how, under the strictest forms of law, divesting themselves of every unworthy motive and thought, the representatives of a free people come to- gether and give judgment. The charges against the defendant William Sulzer are eight in number. I shall not consider some of them at any length. Three of them may be treated together. The first charges the defendant with having made and filed a false statement of his election receipts and expenditures; the second with having made a false statement and having attached thereto a false affidavit; and the sixth with having made collections of campaign contributions which he failed to report in the statement and which he converted to his own use, whereby he was guilty of larceny. The third article charges the defendant with having kept cer- tain witnesses from attending before the Frawley committee ; the fourth with having kept certain witnesses named, and all other persons, from going before the Frawley committee so that they could not and would not give testimony; the fifth with bribery, if I recall; the sixth is the one for larceny; the eighth is the matter of the stock speculations. What answer has the defendant made to these charges ? The answer which he has brought here, signed with his own hand, and 88 filed with this Court to stand on the records to the end of recorded time, is typical of the man and typical of his every effort and act that has been proved in the case. He comes into this Court, having exhausted every dilatory motion and every point of law which the ingenuity of the most learned counsel in the State could discover to raise here, having exhausted all these in an effort to secure the dismissal of these charges without being called iipon to meet the great, crucial fact as to whether or not he is guilty, and without being called upon to put in any evidence, he comes here and files his answer, files a false answ^er over his own name. What is that answer, in the light of the testimony that is here unanswered in the slightest degree, uncontradicted to the extent of a syllable — what is that answer ? He comes, and, admitting the mere formal facts set out, that he was a candidate for Governor and is now Governor, and that he did file a statement, every one of which facts, of course, was susceptible of proof here within ten minutes from the time that the Court convened, thereu]Don, solemnly, in the face of all the people of the State, files with this great Court an answer which is itself an infamous lie, saying that he denies each and every one of the other than these formal facts set iip in article 1. If you will consider from now to the end of the chapter that it is typical of this defendant, wherever he thinks the proof cannot be found, to submit a denial, you will find the key to the answer of many a question that will be put to yoii in the consideration and final decision of this case. These being the pleadings, what is the proof? And when I come to the question of proof, I confess to you that I am embar- rassed beyond measure. Ordinarily it is given to counsel, where there has been evidence submitted on the trial of the case, to argue that this bit of evidence is true, and that not ; to argue that this witness has sworn truthfully and that one not; to balance the probabilities in the case; to see where reason and experience point the line of truth between conflicting statements. But here, what is there? If I commenced to argue before this Court as to the truth of the evidence submitted on behaK of these managers, I would be justly called by the Presiding Officer, who might say, Why do you argue to something as to which there 89 is no possible contradiction ? And so it is like arguing witli the east wind, or it is similar to wrestling with the ague. You can- not get ahead by anything that can be said, because the simple statement of the facts demonstrates that the evidence given on our behaK here is true, and that there is not a single word of contra- diction with respect to any part of it. In the statement that was filed by this defendant, made out on the 13th of November, and filed in the Secretary of State's ofiBce on the next day, he certified to the Secretary of State and to all the people of the State by whose grace and favor he had received a majority of the votes at a previous election, that he had received as contributions during his campaign the sum of only $5,460, the donors of which were named and were sixty- eight in number. He certified that the expenses which he had incurred during that campaign were $7,724.09, and thereby he meant to have the people of the State, and any one who would come and read, to believe that he had been elected by the contribu- tions of but sixty-eight small contributors who, altogether, had given him during his campaign less than $100 apiece as an average. The thought that was in his little mind as he did this was, posing as he had posed during the years, as one who was still in the Congress a poor man, fighting the people's battle, that it would appear that the great common people were the ones who were his friends and the only ones who had contributed anything to his election ; that they, people of most moderate means, had risen in their might and chosen him; that all the great interests that cluster around Broad and Wall streets, all the interests that might come here and want legislation, all those interested in poli- tics, were opposed to him and that it was only the little men con- tributing, as I say, less than $100 apiece who had made William Sulzer the Governor of the State. It was only they who had con- tributed to the expenses of his election, as he certifies to the Secre- tary of State and the world. The working of his mind on these lines shows his inexpressible littleness. What is the uncontradicted proof with respect to the contribu- tions made to him? What answer does my friend or either of the learned counsel who have argued here, make ? What answer is there ? The uncontradicted proof stands here — you will find the 90 details of it in the sheets that have been passed around, and which, while one of the learned counsel says they are incorrect, have not had their incorrectness pointed out in the slightest de- gree — it stands that every entry made in this sheet is proved and proved beyond cavil and without contradiction by the evidence in the case, and reference is made in the paper itself to where that evidence will be found. By that paper it is shown, and by the evidence therein referred to it is proved, that during the time of his campaign, although he had reported receipts of but $5,460, there had been paid to him in the way of contributions, checks that had been actually traced to him, and upon which there are marks which he could not avoid or escape, $12,700, or more than twice as much un- reported as he had reported. It is demonstrated that there was of cash that has been traced to him, unreported in this state- ment which he thus filed, the sum of $24,700, or nearly five times as much as the amount which he admitted in his state- ment he received. And it has been demonstrated, the shame- ful fact has been demonstrated, that, although when nominated he had no money and was deeply in debt during the time of the campaign, he paid to brokers in Wall street securities $40,462, much of which was in the very checks which were handed to him for campaign purposes. Ah, but, says the defendant, " these people were so enraptured with my previous personal history, they were so in love with the situation that made it possible for me to be Governor, that, know- ing the necessities with which I was afflicted, they made a purse for my personal comfort and to relieve me from the slough of debt in which I had been wallowing for years." I want to stand for the proposition, that he who is nomi- nated a candidate for a public office, who receives contributions during that campaign, if nothing is said on the subject, receives them with the implied understanding and obligation that they are for the purposes of his campaign. There shall be no opportunity for hair-splitting as to my position on this point. The man who so far refines that he can claim to himself or to another, let alone 91 to this high Court, that, having been nominated for an office by a great party in the State, when contributions are made to him, whether by personal friends or by persons interested in the success of the party, he may out of his own grace, if I use the language of the catechism right, say, " This check is mine; this large check is mine; that little one is for the purposes of a per- sonal campaign; this one I will not report; that one I must and will " — the man who thinks that he may do that is the first in all our history to do it, for no other human being from the time we have had popular elections until the present moment has ever had the hardihood to come and make any such claim. What is the exact situation in which a candidate for place, who receives contributions, stands ''. He is not nominated for his own glory, however this defendant may have thought that he was. It was not for the glorification of William Sulzer that he was nominated as the candidate of the Democratic party for Governor on that morning of the 3d of October, 1912, at Syracuse. He was nominated as a representative of a party; he was nominated to be supported by the party, and when the contributions came in from that moment, any man who had any conception whatever, not simply of ethics, but of decency, knew and recognized, and must have known and recognized to the full, that they were con- tributions because the contributors desired the candidate of the party should be elected to the place for which he had been nomi- nated and because the contribixtors had an interest in the success of that party. But it is said " These were personal." " These were personal," and one or two had been marked " For his personal campaign," and it is claimed that that differentiates between two elements of the personal. A contribution may be personal, in that it is to be for the candi- date's personal campaign particularly, in that the contribution is made by some friend for the purpose of enabling some par- ticular machinery to be put in motion, some particular committee to be appointed, some particular thing to be done for this par- ticular candidate as distinguished from all the others that are taken care of by friends in the same way — their friends. There 93 the contribution is made for the personal campaign. And if it is thus regarded as made by friends, or shown to have been made by friends, if it is said that it was for the personal campaign, or if nothing is said with respect to it, and it is handed to the candidate, then there is every presumption, not only presumption, the fact demonstrates in such case, that the contribution is made to the individual for his personal campaign. But when he, calmly ignoring that fact, says that it is for his personal use, he ignores an essential basic fact which cannot properly be ignored, and he makes conversion of the money. And, when added to that, he indulges in the ridiculous proposition that the con- tributions that are made to him for his personal campaign may properly be put to the bucking of the stock market, he has drawn a picture of himself which needs very little else to paint in, full and complete. What is there about this element of personal contributions? It is not necessary to support these charges that it should be shown that every contribution given to him was for a campaign purpose, and not personal to his own use, that is, his private use. If we show a reasonable amount, if we have shown that there are enough 0:6 such contributions for campaign purposes, in number and in amount, that they could not have been overlooked by any possible doubt, that no honest man could have failed, when he came to put his name to the affidavit or his name to the certificate, to remember them, then we have shown that he has been gTiilty of not reporting contributions that he should have reported, and we have shown that he has been guilty of (1) a false certificate; (2) a false affidavit to the certificate; (3) a conversion of such con- tributions to his own use and, therefore, larceny under our statute. If we show a half dozen or ten contributions thus made, of sub- stantial amount, and which he failed to report, it is not of any consequence in the settlement of the question of his guilt or inno- cence that there may have been one or two as to which there was a doubt, as to whether they were personal contributions to buy him a hat and a suit of clothes. What contributions are shown here now, as to which there is no possible doubt of their purpose? 93 In this list I leave out those where there is any doubt whatever. I do not mean to include any -except those as to which no honest man can read the testimony and believe that they were anything else than campaign contributions, either for use in the general campaign, or in his personal campaign, but certainly for the cam- paign. There was the cheek of Mr. Pinclmey for $200. There was the check of Mr. Gwathmey for $100 which he says in so many words, in a letter, was for his personal campaign. There is the check of Mr. Coler for $100. There is the check of Morris Tekulsky. The check of Peter Doelger for $200. The check of Abram I. Elkus, which he says expressly in his letter, with whieh it was enclosed, was to be used for campaign expenses, $500. The check of Mr. Uhlman for $300. The cheek of Mr. Spalding for $100. And the cash from Thomas F. Eyan of $10,000. Net one of these items which I have thus detailed to you can by any possible torturing of the evidence, be made to warrant the ,use of the funds for private purposes; not one of them. Take the contribution of Mr. Eyan. What does Secretary McGlone say ? He says that the candidate asked for money, $Y,500 or as much more as they would give him; that he was about to go up cam- paigning in Westchester county and needed the money for that purpose. MeGlone carried to him the ten one thousand dollar bills and gave it to him, as he said, for his personal campaign. Do you think — and Mr. Presiding Judge, I hesitate to ask the ques- tion as an insult to your intelligence — do you think, can any rational man think for a single minute, that when, on the 13th day of ISTovember, 1912, William Sulzer affixed his signature to the statement that he had received during the campaign $5,460, only, there was not running in his mind at the very instant that he did it, "And I have $10,000 of Thomas P. Eyan's money in my pocket this minute, as clear gain " ? What about the $2,600 from Mr. Schitf ? Now, I am not at all going to pass over, nor slur, nor fail to meet, the very merry con- tention of counsel on behalf of this defendant that Mr. Schiff's contribution was personal to him and that he had a right to use 94 it for anything he pleased. The internal evidence, aside from any oral evidence, demonstrates the utter falsity of that claim. Mr. Schiff himself said that it was for his personal campaign, and as evidence of precisely what was Mr. SchifE's intention, you have endorsed on the check, in his own handwriting, made afterward, but at a time when the matter was under investigation and when he was telling the counsel for the committee the purpose for which it was given, in which he stated that it was for campaign purposes. Do you think that Jacob H. Schiff, the head of one of the great houses in ISTew York, did not know in the month of July, 1913, when he made that endorsement on the face of this check, for what he had made his contribution to William Sulzer in the previous October ? But further, let us see about this claim that Mr. Schiff was so touched with William's infirmities that he was going to help him out to the extent of $2,500. What would be the object for a man, an honorable man, like Jacob H. Schiff, if he were going to give William Sulzer a present of $2,500 for his personal use, not to give it to him openly, without concealment or shame ? Would he not have given him a check when Mr. Sulzer came in and asked him how much he was going to help him for his campaign, Mr. Schiff having congratulated him ? Do you think that Schiff, if he was going to give him $2,500 for his personal use, would not say, " I won't give anything to your campaign; I give you $2,500 for your own purposes." But if he did not want, if Sulzer did not want, the $2,500 check floating around so that it would be seen that he had relations with Mr. Schiff — I can imagine that the representative of the great common people, whose apostle he had so long been in Congress, perhaps might feel a little delicacy on the subject of having Mr. Schiff's check for $2,500 with his endorsement — if this was for his personal private use, and they wanted to keep it secret, then Mr. Schiff would have handed him $2,500 in bills. Did he do that? This man having come in and said, " How much will you let me have ? " Schiff having said, " $2,500," to which the defendant rejoined, "Can't you do no more?" — if Mr. Schiff had intended to give a personal contribution for his own benefit, if he meant to make a present to him for his own personal benefit, wouldn't he have handed him the bills ? 95 What was done? " Mr. Schiif, make this payable to Louis A. Sarecky." Who is Sarecky ? Sarecky is the man who had opened the account in the Mutual Alliance Trust Company, and for what? Personal gifts to AVilliam Sulzer. Sulzer had his account, where his personal matters went, in the Farmers Loan and Trust Com- pany. "What did Sarecky have this account there for? It was for the purpose of putting into it what ? The contributions that were made to William Sulzer for the campaign, and nothing else. And thereupon, Mr. Schiff, having carefully written down the name, the check is made to Louis A. Sarecky, and taken over to Sarecky. And what did Sarecky do with it? Put it into this account where campaign contributions went. What on earth was it doing in the Sarecky acco-unt, where there was only, aside from Sarecky's little personal matters, campaign contributions from which the statement was finally made up ? Have you any doubt on the subject? Let us get away from the sham and the pretence that the Schiff check was anything else than a contribution made for campaign purposes. Do yoti think when he came to make his false certifi- cate and to certify to the Secretary of State and to all the world that he, the apostle of the plain people, had been elected with contributions of only $5,460, that he did not know alongside, in his brain, of the fact of Mr. Eyan's $10,000 check, that there was the $2,500 check of Jacob H. Schiff, as to which he was fully the gainer ? For a real friend of the common people, hating every- thing that looks like a trust, I must say that he absorbed a reason- able amount of trust money for one campaign, when he got $10,0'0'0 from Thomas P. Ryan, a gentleman popularly supposed to have some connection with a trust or two, and $2,500 from Jacdb H. Schiff, who is surely not entirely removed from trust influences himself. So the certificate was false. And so the affidavit that was made to it was false. And so he stole the money. I am not now discussing the question of perjury. I am not going over the law, as my associate, skilled on the criminal side of the law, gave it to you here earlier in the trial. We stand here on every line and every word of the brief which he thus filed here, and I shall not go over it again. 9G The certificate was false. The affidavit which he made there was false. Whether or not he can eseai>e prosecution for perjury ■on the claim that, because it was not required by the statute that he should swear to it at all, whether he can escape the penitentiary or the State's prison on that plea, is not here at all. When he put his name to the affidavit and swoTe to it before Abraham J. Wolff, he swore to a lie, and he knew that he was swearing to a lie; and whether or not he was guilty of legal perjury that would justly land him in the State's prison, he was guilty of the moral perjury, he was guilty of all the blackness of intention, of all the guilty heart that he would or conld have had, had the oath been required by statute, as he believed it was. But the first of January comes, and from that moment, says his counsel, he is a converted man. Ah, my brothers, there are some of us here to whom through the years the question of con- version has been very much before our eyes, and yet I cannot fail to remind you that the great Methodist churcli which stands today, as it has stood from the beginning, firm in the beli-ef of the neces- sity of a conversion from sin, before conversion demands re- pentence. My brother from the 2*7th senatorial district, when you were standing behind the sacred desk, a minister of the gospel, never yet have you permitted to join the Church, a man whom you did not believe in your heart had repented of his sins. Oh, but on the first of January, like Saul of Tarsus on his way to Damascus, there came a light. Where, before that moment, he was in gall of bitterness and bondage of sin, although prior to that time he had done nothing but serve the forces of evil, yet from the first day of January, when the light came to him, William became a consecrated man and devoted himself thenceforth to the service of Grod and humanity in the People's House. Oh iSaul ! Saul ! Persecutor of the Saints, but, finally, the greatest of the Apostles, what foolishness has been attempted through the years because of that sudden conversion of yours on the way to Damascus! There is many a man who tries to liken himself to Paid when the only likeness is to that of Saul. And even there the likeness is not strong. Saul saw a light, but he respected it. He repented of his sins. Saul, having seen the light, announced that from that moment he renounced the Devil 97 and all his works. He did not thereafter go around trying to suhom pei-jury. When he got together the few Christians in the upper chamber, wherever he could get them, to preach the Word, after his conversion, he did not whisper to one of them that if he was sworn he hoped that he would be easy on him. Before he opened the meeting with prayer, he didn't call one of them aside and see if he could send word to tamper with the court that was going to try him. And he finally won a glorious martyrdom by sincerity, and not by posing ; by honest work, not by many professions ; by doing the word and not by being a rank hypocrite. Can you imagine Paul telephoning to Gamaliel that he was " the same old Saul," and " can't you make it more than $7,500i? " " Tell your father I'm the same old Bill." Ah ! What a flood of light streams from that single bit of evidence, that stands here undenied — true. " The same old Bill " who, through the years, had been rendering Kyan valuable service, while loudly professing to be the enemy of all trust magnates. " The same old Bill," who wanted to continue the relation at " the same old rate " — ■ $7,500, and " as much more as I can get" per — yes, " the same old Bill " in every way. These are the facts. The certificate was false. The affidavit was made with all the blackness of heart that could cause a man to be guilty of rank perjury. And then he took every dollar that was thus contributed to him, of which I have given you a list, and went to play Wall street, and bought Big Four stock. Oh, well, our friends say, that is all true; that is all true, and it may not have been quite ethical; it was not quite ethical. Perhaps it was unmoral, a little unmoral, but still he has been elected by the people and you can do nothing. Is the election law a joke? Is the statute, for the passage of which, and the perfection of which, high-minded men and women during the years have come here year after year for the purpose of getting it into some kind of shape where, if the use of money in elections can not be prevented, it can at least be exposed — is all this an idle thing? A law which never yet has taken any step backward, where every step that has been taken at all has been in the direction of making it stricter, of making it more 4 perfect, so that no one should be able to slip through its meshes — is this law now discovered to be a joke? Is it only a question of the lighter ethics whether it shall be obeyed or not 'i I read you from Exhibit No. 130 for identification "Sulzer's Short Speeches " : " In my opinion, this publicity campaign contribution bill is one of the most important matters before the House. It is a bill for honest elections to more effectually safeguard the elective franchise, and it affects the entire people of this country. It concerns the honor of the country. The honest people of the land want it passed. All parties should favor it. Recent investigations conclusively demonstrate how im- portant to all the people of the country is the speedy enact- ment of this bill. " I have been for years a consistent advocate of this legis- lation. I have done all in my power to get a favorable report from the committee, and I shall do all I can to enact the bill into law. Many people believe that if a law were on the statute books similar to the provisions of this bill the Repub- licans would not have been successful in the election of 1896. The Republicans succeeded that year because they raised the largest corruption fund in all our history." And then, with a grin, thinking how he was fooling the people, he telephoned Ryan " I'm the same old Bill; I would like $7,500, and as much more as you can make it." " Pigmies are pigmies still, though perched on moiintain peaks, while pyramids are pyramids in vales." My friends have waxed earnest, to say nothing of eloquent, to the proposition that, in all the years while there has been every effort made to make this law so that it would require to be done just what was intended by it, the wisdom of the Legislature and the Executives who have concurred in the passage of this law has been so at fault that today it means nothing. If you hold this man guiltless of crime in this connection, at least, members of the Senate, have the decency to introduce a bill to repeal that portion of the election law known as the corrupt practices acts, and have it done quickly and thoroughly. It is said by my most learned friend, and it is a labor of love to 99 him I know, to say it, that while this does stand in the election law, yet there is no penalty that makes it a crime, and, therefore when this defendant signed this false staitement and filed it and swore to it, he was not guilty of a crime. In the 560th section of the election law, you will find the pro- vision which succeeds the various steps of procedure prescribed by the statute, how there can be an investigation, and after the pro- cedure is thus prescribed down to judgment, follows this language : " If such person or persons," and that comprehends a candidate, " or committee or committees, have failed to file a statement or have filed a false or incomplete statement, and such failure to file or such false or incomplete statement was due to a wilful intent to defeat the provisions of this article," and is there any doubt on that ? — I omit some intervening verbiage not material — " the person or persons, or committee or committees proceeded against shall be liable to a fine not exceeding $1,000 or imprisonment for not more than one year or both." In a previous section the failure to obey the law is continually spoken of as a violation of the section, a violation of law and the punishment there is prescribed. So that the section does provide a punishment for the person who either fails to file a statement or files a false statement, and if it provides the punishment, as it does, of imprisonment or fine, then it is a crime, because under the Code definition, that is a crime which is punished either by fine or imprisonment. It is not of the slightest consequence, in the reading of the section to the punishment of the offender, whether there was any preliminary proceeding before a judge or not. It is not the proceeding before the Supreme Court justice that makes the crime. The crime exists when he files the false statement. ■So it stands. It stands unanswered. It stands unanswered either in law or in fact here that this man had received contribu- tions to the amount stated ; that he had filed a false statement with respect to them ; that he had attached a false oath to it ; that he had committed larceny of the funds, and it stands that in so doing he committed crimes that are punishable by fine or imprisonment. I pass now to the fourth article, and as I remember, while T have not heard all of the arguments of the defendant here, it is an 100 article as to which our friends in their argument sang a very low- song. I purpose to read with your permission, and perhaps to your tiring, a few lines from that article. It charges the defendant, William Sulzer, then the Governor — the formal parts are familiar to you — and while the Erawley committee was investigating: " While such committee was conducting such investigation and had full authority in the premises, he, the said William Sulzer, practiced deceit and fraud and used threats and menaces with in- tent to prevent said committee and the people of the State from procuring the attendance and testimony of certain witnesses, to wit : Louis A. Sarecky, Frederick L. Colwell, Melville B. Fuller, and all other persons, and with intent to prevent said persons named, and all other persons severally, they or many of them hav- ing," and so forth, from giving testimony before that committee. The article then is broad enough to allow testimony of such attempt as constitutes an infraction of the section, and the testi- mony which I note hereafter came in under this article without objection, because it was known to be relevant and competent, and there was no objection that the article was insufficient to receive the testimony. Now, the law on the subject making this a crime, is this, and it is contained in section 814 of the Penal Law: "A person who maliciously practices any deceit or fraud, or uses any threat, menace or violence, with intent to prevent any party to an action or proceeding from obtaining or pro- ducing therein any book or paper or other thing which might be evidence, or from procuring the attendance or testimony of any witness thereon, or with intent to prevent any person having in his possession any book, paper or other thing which might be evidence in such suit or proceeding, or to prevent any person being cognizant of any fact material thereto from pro- ducing or disclosing the same, is guilty of a misdemeanor." Let me now read the words of the section, leaving out words that do not bear directly on the contention here made : "Any person who maliciously practices any deceit or fraud . . with intent to prevent any party to an action or proceeding . . . from proctiring the attendance or testi- mony of any witness ... is guilty of a misdemeanor." 101 There can be no question that the doings of the Frawley com- mittee constituted a proceeding. It was not an action at law to recover from William Sulzer $30,000 which he had converted. It was a proceeding that would result in the wish on William's part that he had repaid it, but was not an action to recover. It was an investigation to discover crime, whether actual or potential, precisely as a coroner proceeds for the same purpose. It was a proceeding. The committee representing the Legislature was a party to the proceeding, as were the people of the State. It will be noted, in limine, that under the section, no consumma- tion is required to constitute the crime. All that is required is malicious deceit or fraud, with intent to prevent the attendance or testimony of any witness. The malicious feature takes care of itself. If the intent is shown the law stamps it as malicious, just as malicious injury to crops is shown when it is shown that the injury was intentional, and all that can be shown in that connec- tion is intention. The word malicious only imports an evil in- tent, as is prescribed in the Penal Law, section 3, subdivision 3. Whether the testimony was actually prevented is not of the slightest consequence. When the deceit is maliciously practiced, with the intent to prevent, the crime is complete. We come now to the proof. Mr. Morgenthau had contributed $1,000 to the defendant on the ,5th day of October, 1912. It was given to help the defendant in his election, in his canvass. If any of you have any question as to the exact correctness of my words, you may look at pages 492 and 420 of the record and you will find Mr. Morgenthau's language. On the 2d or 3d of September of the present year, 1913. the defendant called up Mr. Morgenthau at Port Chester and asked Mm if he would come to Albany at once. Mr. Morgenthau de- clined, giving his reasons, and thereupon the defendant said, " If you are going to testify, I hope you will be easy with me," and then added, as Mr. Morgenthau here testified, " He said some- thing abo'ut that I should treat the affair between us as personal," and the witness added in his testimony here on the stand, " I said that I could not." The damning character of the defendant's request is apparent at a glance. He wanted Mr. Morgenthau not to go before the 102 committee, or, if he did go, to perjure himself to save him, the defendant, from the results of his previous crime in not reporting the Morgenthau contribution made to him during the campaign, and thereby he brought himself precisely within the section of the Code and precisely within article 4, here presented by the Assembly. The Frawley committee was in existence, as it still is, and was holding hearings. The defendant deliberately sought to prevent that committee from securing Mr. Morgenthau's testimony or at least from securing his true testimony and to get the latter, Mr. Morgenthau, to perjure himself in his, the defendant's interest. But the defendant's learned counsel urge that the transaction was personal, that Mr. Morgenthau's contribtition was for personal use; that he asked Mr. Morgenthau to testify only to the truth in the request that he made to be easy on him and to treat it as personal. Do criminals find it necessary to solicit witnesses to tell the trxith? Is it not presumed that they will do so, particularly if they are men of high character, as Mr. Morgenthau is ? What was there in the character of Mr. Morgenthau that led the defendant to believe that he would testify to anything other than the truth ? And that it was necessary to call him tip on the telephone to get him to be sure and tell the truth ? Did he think that, unless thus solicited, the witness would swear to a lie? That is unthinkable. And, mark you, as denominating and stamping and sealing the entire transaction, mark what he said at the end of the conversa- tion. What he wanted done was something that Mr. Morgenthau at once recognized as improper, and told him that he could not do it. It was not the truth he was seeking to have ilr. Morgenthau tell on the stand, because, if it had been the truth, Morgenthau would not have said he could not do it. It is the fact that he wanted Morgenthau to go down, with black perjury on his lips, and testify to save this criminal here on South Eagle street. And the only reason that Morgenthau said that he could not do it was because he at once, instantly, recognized that it was an untruth and a rank perjury that the defendant was soliciting him to commit. The testimony of Peck, the Superintendent of Public Works, 103 is still more direct. Did your Honors notice that, in all of the outburst against Peck by the learned counsel here yesterday and today, they never said a word against Mr. Morgenthau? They carefully looked over the field of vi^itnesses that were convicting this defendant here, to see which ones they should attack as untrue. They did not dare to come and argue in the face of a single member of this Court, that Morgenthau had told an untruth here on the stand. Morgenthau, a man of the highest ideals, a man of large affairs in the city of New York, a man who had just received a certificate of probity and of the highest character in the appointment as Ambassador to the Empire of Turkey; they did not dare to &ay that he had committed perjury. But, ah ! " Peck, Peck, we must attack Peck." Many of you have known Peck longer than I have. I hold no brief here for the purpose of defending him or his char- acter, further than as it is shown by the testimony that he gave in this chair. But I know that this man was appointed to high and most responsible office in this State by a previous Governor. And I know that he was continued in office by the present Gover- nor from the first day of January down, when any moment he could have been removed simply upon the ipso dixit of the defend- ant. I know that he stands, and the presumption is that he stands, in Syracuse, his home, beyond reproach in public or in private life. And to the learned counsel I want to say that the attack on Peck here was wholly unjustified. It was made on grounds outside of the record entirely. It was made on an assumption of which there was not a word of proof here ; the assumption that something had been found wrong in Peck's department. And it only shows the malice that is in the heart of this defendant, that tears down any man, no matter whom, if he thinks that he may thereby better his own condition to save himself from just condemnation. The witness Peck had contributed $500 to the defendant for his campaign, handing it to the defendant personally, in bills, at Troy, in the month of October, 1912. He received a letter from the Frawley committee, asking him to state what contributions he had made, and, somewhere after July 19, 1913, he saw the de- fendant in the executive chamber. He showed to the defendant the letter he thus received from the Prawley committee, and asked 104: him what he, the witness, could do about it. And the defendant made what reply? It was not as these gentlemen of the press reported it — that is, they did not report it all. The report ran that he said to him, " Forget it." What the evidence shows that he actually said is, " Do as I am going to do, deny it." And when Peck, having some regard for his oath, said " I suppose I will be on oath," the defendant said " That is nothing ; forget it." On the 19th day of July, or soon thereafter, this defendant, the Governor of the State of ISTew York, sitting in the chair that has been occupied by men of the highest character, and, praise God, that from the beginning has never been occupied by one suspected of personal dishonesty until William .Sulzer came to it, the chair that within the time of my own official life and recollection was occupied by Levi P. Morton, a man who would no more do a dishonorable act than he would put his right arm in the fire and let it wither; the chair in which next sat the brilliant Frank S. Black, than whom no more knightly soul ever came to that high office; the chair that from the beginning has been made sacred by great names of great men, men who would have scorned a dishonorable thing as they would have shunned a wound; sitting in this chair, the defendant was guilty of the loathsome crime of subornation of perjiiry. It was left to this year one thousand nine hundred and thirteen, this year of wrath, to have in the executive chamber a Governor who could so far forget not only decency and official honor, but who so forgot the limitations not only of the moral but also of the criminal law, as to ask this great officer of the State, under him, to go on the stand and commit rank perjurj^ to save his miserable self from the pimishment that he deserved. Did Peck tell the truth ? Why, there is the easiest way in the world to raise an issue ; the easiest way in the world, for, if Peck did not tell the truth, some witness can come here and testify that he did not. In all the attack on Peck the learned counsel forgot to have the testimony contradicted. I recall one time in the trial of an action how tremendous energies were bent to the im- peachment of a witness who had testified to a fact, but the learned counsel who impeached so devoted their energies to that single fact that they forgot entirely to contradict the witness whom thev 105 impeached. If Peck did not tell the truth here, no one knows better than the learned counsel who sit at the table of this defend- ant how to meet it and how to beat it, and they know, too, that it is not by vociferous denunciation of the witness, who was entirely uncontradicted, that they can convince that he told a lie. If at any time — I take the liberty of saying — if at any time Mr. Sulzer, this defendant, sees fit to join issue as to any question of fact with Mr. Peck, on the witness stand, in any county of the State, Mr. Peck will submit it to the following grand jury to say which one has committed perjury, he or this defendant. If there were no corroboration whatever, there is not a member of this Court that would have the slightest justification for disbeliev- ing Peck; but when you add to Peck's testimony the fact that he is corroborated in the strongest degree by jMorgentliau, whom they do not dare to contradict or claim is untruthful, by Morgenthau to whom he made a similar dishonorable request, you have the testimony of Peck utterly uncontradicted and utterly irrefragible. There still remains to be considered the testimony of Mr. Ryan on this same point. It stands here without contradiction of any kind. The de- fendant asked him to see Senator Root and have the members of this Court solicited to vote in his interest, and to dismiss these proceedings. Can the learned Presiding Ofiicer of this Court imagine, with all the experience that he has, what would become of the law if it was to be administered by a direction from one political chief, or another ? Did this eminent lawyer — I know he must be emi- nent, because Exhibit 130 for identification says so, although I must say that the remarks of Senator Hinman on the opening somewhat shook my faith as to the eminence — did this eminent lawyer think that that is the way justice is administered in this State, and did he think that there was any member of this Court, the youngest and least in experience even, who would listen, who would so far forget his honor that he would listen for an instant to a suggestion from a political leader as to what should be done in court here, after he had lifted up his hand in the presence of his fellow members of the Court, and sworn to well and truly try this defendant upon the evidence ? 106 Did this man believe, for a single instant, that anything that Ryan, or anyone else, could do, would help him in the decision of the legal questions arising on this trial ? Failing in having Eyan see Senator Eoot, then he wanted him to see Mr. Murphy, so as to touch the other political side of the house for the same purpose; and then the cringing, miserable craven that he was, he said he " wotdd do whatever was right if it could be done!" " Whatever was right, if it could be done!" Grod in Heaven ! Can anyone deliberately stand in this or any court and defend a man who is guilty of that? That is the black evidence convicting this defendant under article 4, as to which my friends have carefully refrained from making any argu- ment whatever. The relevancy of this evidence of Peck and Kyan and Morgenthau, aside from the fact that Morgenthau and Peck were solicited not to go there, which makes it directly relevant — but the relevancy, aside from that, is most clearly set out by Judge Vami, in the case of Xowack against the . Metropolitan, in 166 New York. " Evidence tending to show that a party to an action tried to bribe a witness to give false testimony in his favor, although collateral to the issues, is competent as an admis- sion by acts and conduct that his case is weak and his evi- dence dishonest. It is somewhat like an attempt by a pris- oner to escape before trial, or to prove a false alibi, or by a merchant to make way with his books of account, except that it goes farther than some of these instances, for in addition to reflecting on the case, it reflects upon the evi- dence upon that side of the controversy. Wliere it ap- pears that on one side there has been forgery or fraud in some material parts of the evidence, and they are discovered to be the contrivance of a party to the proceeding, it affords a presumption against the whole evidence on that side of the question, and has the effect of gaining a more ready admission to the evidence of the other party. It is not con- clusive even when believed by the jury, because a party may think he has a bad case, when in fact, he has a good one, but it tends to discredit his witnesses and to cast doubt upon his position." 107 So, we have it that, upon the testimony of these witnesses, article 4, which charges acts done by this defendant since he became Governor, which charges him with seeking to prevent the committee from getting evidence of certain witnesses named, and all other persons, that that article stands proven here, standa proven beyond question; and it removes from the consideration of the case all argument or doubt on this matter of impeachable offenses, or of offenses committed before the commencement of the term being impeachable. Here was an act done while he was Governor. It was done at the very time that a legislative committee was seeking light for the purposes of legislation. The defendant deliberately sought to keep these men from going on the stand, from giving true testimony before the Frawley committee, and by so doing he is proved guilty of the crime set out in article 4. And this is the Pharisee, who, pointing to the width of his Phylactery in proof of his own virtue, demanded that Stilwell resign — Stilwell, who, if all the charges against him were true, and more, could still have sat at the feet of this man and learned crime, even as Saul sat at the feet of Gamaliel and became learned in all the wisdom of the ancient Jews- No elaboration is here needed, no argument, no comment. The thing urged by the defendant stands out in all its detest- able lines. He urged Morgenthau to commit perjury, he urged Peck to commit perjury. He declared his own intention to do so ; and he urged Ryan to tamper with this Court, to the end that he might be acquitted, irrespective of his innocence or his guilt. The honored President of this High Goxirt has passed something like thirty-three years on the bench — almost a half century as lawyer and judge together. I wish that he might tell us whether in all his career he has ever seen a more plainly proven, bald, naked violation of law than this; a more shameful attempt to prevent a party from procuring the testimony of witnesses ; a more wicked violation of the moral law relating to the subject. It proves con- clusively the truth of article 4. It removes any question as to the act being during the oiBicial term. It leaves the defendant here stripped naked of any defense at all. And over it all croaks hoarse that blackest raven of all the 108 crimes connected with the administration of justice — suborna- tion of perjury and the declared intention of the defendant him- self to commit perjury. Is there anything further required to convict this defendant and remove him from his high place, and to disqualify him forever from association -with, law-abiding men ? Think of a Governor of the State of New York, against whom charges are made which, if true, render him infamous, who fails to take the stand and deny them. Either the charges are true be- yond denial or his record is too hopelessly bad to stand a cross- examination. The very learned counsel here representing the de- fendant may take such of comfort as they find possible from either of these excusing alternatives. What I have said with respect to article 4 is true, not so con- clusively proven true, but still is proven true and fairly so by a fair preponderance of the evidence, as to article 3. That article charges the defendant with having sought to prevent Sarecky from going before the committee and testifying. And Sarecky did not testify. But, the defendant says, it is not proven that the defend- ant gave him, directly gave him, any advice not to appear before the committee. It is not proven? What is a deduction of fact on which we act every day in courts, and ask juries to find? Here was this man Sulzer babbling to every man he saw the hope- lessly bad law of my brother Marshall's opinion and advising him not to go before the committee. He had told Fuller he wanted him to have Marshall for his attorney. He told Ryan that thej- could not make him appear before the committee. He told the same thing to Peck. Is it likely that, having thus cackled from one to another, whoever came to him, advising him not to go before the committee, is it likely that he did not also tell the boy, who sat at his side and had during many years ? If he did, then he is proven guilty under article 3. Note the succession of events as to how he rewarded Sarecky for not testifying. On the 21st of July Secretary Piatt notified the Civil Service Commission that Sarecky had resigned the position of confidential stenographer as of the 18th of Jxilj. On the 23d, Hanify wrote to the Hospital Commission requesting a suspension of civil service rules for S'areck}-. On the SOth of July, Hanify wrote to the Civil Service Commission requesting exemp- 109 tion of Sarecky from examination, and that Commission passed a resolution complying with the request. On July 30th Sarecky first appeared before the Frawley committee. On July Slst Birdseye, secretary of the Civil Service Commission, wrote Sul- zer, giving a copy of the resolution and asking his approval, and on the same day Sulzer approved it. On the 12th day of August, Hanify notified the Civil Service Commission of Sarecky's ap- pointment. Sarecky had been the confidential stenographer to Sulzer from the 15th day of March to July 18th. From the 15th of May to July 4th, he was out on the road with Hennessy. Then he went back to work in the executive chamber, and he remained so occupied until his appointment as lay deputy in the bureau of deportation on July 18th. About the time the committee began its hearings, the latter part of June, Sarecky packed up a bundle of papers, and some time in July, brought them from Sulzer's office at 115 Broadway to the executive mansion. Hanify was appointed secretary to the State Hospital Commis- sion on the 10th of July, and shortly before that, and after the Frawley committee had begun its hearings, Sarecky saw Hanify about the position of lay deputy. He had been asking Sulzer about a better position, and suggested the lay deputy job. This was in the latter part of May, and he saw Sulzer after he had been subpoenaed before the Frawley committee, although he could not say whether he told Sulzer of the subpoena, until shown his testimony before the Frawley committee that he had told the Governor. That is the succession of events and that succession demon- strates that this man attempted to keep Sarecky from before the committee, and then, Sarecky having failed to testify, that he gave him his reward in the shape of a $4,000 place. It is fortunate for us that in the consideration of the whole case we are not met by serious questions of fact — that the judgment here rendered may never be attacked nor criticised as based on wrong conclusions as to facts. It surely lightens the labor of both Court and counsel that a detailed analysis of the testimony in this long record, with a view of determining what is true and what is false, is unnecessary. 110 Every fact claimed on behalf of the managers stands before you undisputed and uncontradicted. There is practically — nay, more, there is actually — no disputed fact in all the case. The defence has chosen to rest upon legal questions in the case, with the single other claim that its chief witness has sworn himself a criminal. Whatever of .satisfaction may come to the learned counsel for the defence from the fact that Sareeky has testified that in the de- fendant's service he committed forgery, shall be theirs to the full. Whatever of satisfaction comes from the fact that such known forgery has stood not only unrebuked by the defendant to the pres- ent moment, but rewarded by a place in the public service and a salary from the public treasury, shall be ours. And it stands as one of the despotic facts in the case, throwing a powerful side- light upon the defendant's construction of public duty, that when this boy, after ten years of tutelage in his service, with calculated premeditation, with deliberate intention to deceive in his heart, signed in the defendant's name and uttered to the trust company the letter of authority dated " En route," by which he gave to himself the right to dispose of thousands of dollars given to the defendant for a specific purpose, and upon the faith of which the institution to which it was addressed dealt with him as one having authority, that when, to the defendant's knowledge, he had done this, he met and has ever since met with nothing but commenda- tion and promotion at the defendant's hands, and is here put forth as the defendant's chief and practically sole witness, worthy of bearing the brunt of the defence by which he hopes to save him- self from everlasting disgrace. AVhat is there in the testimony of this witness Sareeky favor- able to the defendant, or unfavorable to the prosecution ? He swears that he made up this statement of expenses filed, but he swears too that the defendant never told him of any of the omitted contributions; of Grossman & Seilken's $2,500, of Mor- genthau's $1,000, of Croker's $2,000, of Eyan's $10,000, and a score of others, more than $25,000 in all; not one of these was whispered to the witness by the defendant, who had received them all. If this be so, and the defendant may not challenge it, then the defendant knew beyond cavil, knew beyond cavil, that the boy to in whom he entrusted the making up of this statement, did not know, and could not know, of these thousands of dollars contributed to the defendant's campaign, because, aside from the givers, their secret was locked in his own breast alone. Sarecky testified that he made up the statement as well as he could, but, too, that he destroyed every item of evidence in the de- fendant's office, daily memoranda, checks, check stubs, everything tending to corroborate his story. He testified in every way possible to assist this defendant and to take upon his own body the wrongdoing shown here, but he said that the defendant signed and swore to the statement of expenses filed with the Secretary of State without so much as a glance at, or a word about, its con- tents, and in so swearing he covei'ed himself with infajny as with a garment. Where are the twelve or fifteen books at Eagle street that would today enlighten this Court as to all but three or four of the con- tributions that were made to this man? We have shown you something like $12, TOO checks and $27,000 of cash. Where are the books that would show the balance ? If this is the green tree, what must be the dry ? AVhy, membera of the Court, do I need to ask you as men of experience that, if these managers have been able to wrest from unwilling witnesses who have given the testi- mony here, the evidence to the extent that is named, the evidence of contributions, the evidence of law-breaking to the amount that has been shown here, what would be shown if the defendant would but come on the stand himself, or would send over the books that would show the sums that were received ? He made himself rich by these contributions, except as he made himself poor by his antics in Wall street. Where is Colwell ? The learned counsel says that the defend- ant offered to produce him here if he should be assured he would not be punished under a warrant outstanding for his con- tempt of Assembly. The Assembly consists of 150 members sitting on the other side of this building. Is there any one here who would have the effrontery to stand up in Court, and say, " I stand bound that, if Colwell comes into the State, he shall not be arrested upon a warrant now outstanding for him ? " Oh ! it is so easy to be brave when there is no danger, and our friends are 112 so willing to challenge the good faith of the prosecution in wanting Colwell, because they knew he was outside the State and we could not get him ! Colwell, who knows all about the No. 500 account,, telephoning to have his bag packed to meet the northbound train, saying he was going to Albany to see Sulzer ; and from that date,, so far as this State is concerned, he has vanished off the face of the earth. Do you need to be told that Colwell has been kept out of this jurisdiction of the Court by the advice and connivance of this defendant ? Why was this persistent wish to have cash contributions instead of checks, except that money has no ear-marks? It stands — - recurring again - to Sarecky's testimony — that if all that this young man has testified to on the stand be true, he assumes re- sponsibility for failure to account for $5,200. The unreported items that were deposited by him in the Mutual Alliance, the total deposits in there being something over $12,000, show that he fails to account for $5,200. And it leaves $32,500 unreported and unaccounted for by anybody connected with the case. I appreciate, members of the Court, that there are many de- tails of the evidence into which I could go and upon which I could comment, in corroboration of our presentation of the case and of the evidence that we have produced here, but time fails. In the absence of any contradiction, I decline to go further into the testimony, or to make any analysis of it. The evidence stands, as true. No one accustomed to weighing testimony, no one famil- iar with the trial of cases or the sifting of evidence, can doubt for a single minute, no member of this Court has a single excuse for having any doubt as to the truth of the evidence that has been put in here by the managers of this prosecution. And so, leaving any further analysis, leaving the various points that have been dis- cussed by my associate, with a wealth of learning and an earnest- ness that I can neither have, nor hope to have, the further con- sideration of the case is left to you, as men familiar with affairs, day by day, as men capable of making a correct decision of the case, and it is submitted without any possible doubt as to the result that must be reached. Oh, members of the Court, an acquittal to this man upon this evidence would be a wretched gift indeed. Think of the position li:5 in which he would be placed by such a verdict. Dead forever among honorable men; cut off already by the unanswered evidence- in this record from ever again striking hands in friendship with those who devote their lives to lofty purposes. And yet, an outcast among men, compelled for a brief time to represent the honor and dignity of the Empire State, to meet in official contact those, the latehet of whose shoes he is unworthy to loose, by whom henceforth he is abhorred; charged by the Constitution to see that the laws which he himself has flagrantly violated are faithfully executed against others. Think of him, think of him — if your imagina- tion can carry you to such lengths — solemnly considering an appli- cation for a pardon for one who had been convicted of a violation of the election law as to corrupt practices. Think of him as this fall issuing a proclamation asking the people to come together in thanksgiving for God's mercies to us. Think of him in all the multifarious situations requiring not only actual freedom from things criminal, but even from any suspicion thereof. Think of him " the same old Bill." Knowing full well, appreciating to the utmost, the degradation and the disgrace that must come upon this unhappy man by your verdict of guilty, 1 still beg you not to think that you will mitigate his punishment by a judgment of acquittal of the charges here proven. It will not be your action that will render him infamous for all the future. That future is already his before you speak. If he take the wings of the morning and fly to the uttermost parts of the earth, the record of his disgrace is there before him, to meet and greet and abide with him. If he call upon the mountains and the rocks to fall upon and hide him, he will still know no respite from the disgrace that henceforth must walk by his side. Do not believe that you can lessen his punishment, whatever your decision here. All that you can do is to pronounce, in form of law, in performance of your solemn duty, the judgment that will free the State from the contaminating touch of this man, from this time forth. It is to you alone that the people can look for relief. Much has been said on the part of the defendant that he derives his title to his great office by election by the people and that you may not rightly set aside the choice. Let me remind you that the same 114 people who elected him Governor of the State have placed in your hands, not simply the authority but the mandate, if two-thirds of your number find him guilty of crime unfitting him for the exercise of the duties of his office, to remove him. And there rests no heavier duty upon this body than that of convicting, upon impeachment, any ofiicial proven guilty. Forced upon you by no act or wish of your own, the situation requires you to do justice and fear not. The pen that writes the judgment of this Court will be mightier for the weal or for the woe of this State and for all the people thereof than any implement of war ever wielded by the arm of man — mightier to us awaiting its record — mightier to all the coming ages. If this last and best attempt at self-government, iinder which we have rested in security in all the century and a third of our national life, under which the State has been the leader of all the sisterhood that compose the Republic — if this shall fail at the point that we may not remove from high office men confessedly guilty of crime, then, indeed, are we of all men the most miserable. We can transmit our trust as guardians of the present, " as the heir of all the ages in the foremost files of time," to no successor save the coming generation. If that generation come to its inheritance blinded by the example of corrupt officials unpunished and unrebuked, we are near the fall, as we well deserve to be. You alone can deliver us from the body of this death, oh, wretched men that we are, you alone can deliver us from the body of this death. And so we leave this case with all its vast interests, the inter- ests of all who love the State and are jealous for its honor and good fame, in your hands ; leave it with all that it means to the people and to the future. Words fail me in the contemplation of all that your decision means. If it ever pleases the Father of us all to guide with His own hand those engaged in the perform- ance of a great public duty, may that guidance be yours this day, and may the decision here rendered bear siare impress that it comes from a wisdom that giveth judgment far above the twilight judgments of this world. 115 [JPREME COURT.— ' THE MaTTEE of the HaBEAS COEPUS for Joseph G. Robin. .Memorandum on behalf of the Managers for the Assembly, submitted to the Supreme Court on the application of Joseph G. Robin, for discharge from cus- tody because of a pardon issued to him by W illiam Sulzer. The manifest purpose of the pardon of Robin by Governor ulzer, being to test before the court some of the questions involved 1 his impeachment by the Assembly, now pending in the Court of mpeachment, the counsel for the Managers on such impeachment, ith the permission of the court, file this brief memorandum, stat- ig the position taken by them on the questions involved, without titering into any elaborate argument, they preferring to leave such rgument until the impeachment trial, itself, is heard. It being the manifest, and we doubt not the avowed, purpose " Governor Sulzer, by this proceeding to secure a decision that ^ay in some way affect, or embarrass, his trial in the Court of npeachment, it is suggested to the Special Term that it- is well ithin its rights, and is in accord with the uniform practice of the airts, to decline to entertain the proceeding, or to make any de- sion therein. The impeachment proceeding is pending, awaiting trial, and e court has been summoned for the 18th inst. It is the high- t court in the State, the only one charged with the solemn duty trying such officials. It has among its members the judges of e Court of Appeals. It is presided over, in the case of the im- jachment of the Governor, by the 'Chief Judge of that court. It unnecessary to describe its august character, or to mention the spect due to it. It is enough to say that it is the court of the mstitution provided for the removal of unfaithful officers, and stands, as it has stood for more than one hundred and thirty- ■0 years, as the one court charged with this high duty. IIG It is incongruous that any proceeding should be instituted, or attempt be made in a lower court — and every court in the State is a lower court — to secure a decision previous to the trial of the impeachment, that may in any way embarrass such trial. Such a decision cannot be binding any more than the decision of any court of original jurisdiction is binding on an Appellate Court expressly authorized to review such original decision. Whatever decision this court may give in this proceeding, in so far as it involves a construction of the power of the Court of Impeachment, cannot have the slightest binding force upon that high tribunal, when it meets. It is true that such docisicai will be entitled to a most respectful consideration as the decision of the Supreme Court, and, that a decision by the very learned member of the court before whom the proceeding is brought, against the contention of the managers of the impeach- ment proceedings in any particular, would be sciiitinized and challenged, if challenged at all, only frcm the standpoint of the greatest respect for the justice making it. But as to binding force — as tO', in the remotest degree, controlling the decision of the Court of Impeachment on any subject, — it can have no greater or other effect than stated. Under such circumstances it is submitted to the court — not urged, merely suggested, by the counsel for the managers. — be- cause such counsel are ready to maintain the integrity of the im- peachment proceedings whenever, and wherever deemed properly challenged — whether it is not the part of delicacy to decline to consider any questions thus involved in the impeachment pro- ceedings, on the ground that such proceeding pending, as before stated, and coming on presently for trial, will result in an author- itative and decisive decision of all questions there involved. Where an appeal is pending in the Court of Appeals that will settle authoritatively any question arising in a series of cases, one of which has been tried and is thus in that court, it is, I believe, the universal practice of the court to decline to proceed with the trial of the cases remaining untried, and to await the decision of such court, that will sei-ve as a guide for the trial of the others. The situation here is analogous. 117 II. The prceecdiugs in the Court of Imjieachment, and the steps previous thereto in the Assembly, cannot be attacked collateral]}- here. AVilliani Sulzer, the Governor, stands impeached by the Assem- bly of the State. The journal of the Assembly shows that a reso- lution of impeachment was adopted, that articles of impeachment were adopted, that both the resolution and the articles were pre- sented to the Senate, and the journal of the Senate shows the re- ceipt of such articles, and the action taken thereon by the Senate. The return here made to the writ so sets out. It stands as a fact that may not be gainsayed. The impeachment is an accomplished fact, the proceedings necessary to a trial by impeachment have been begun. It is precisely as thoiigh an action had been begun and were pending in this court. It may be that when the trial comes the defendant will succeed — it may be that the complaint will be dismissed on some technicality — but, until that is done, the action is actually in the court, is actually pending. The im- peachment by the Assembly actually exists and is forceful, and whatever rights are given, or denied, to any one by virtue of the fact that siTch proceeding is pending, cannot be attacked' in am' ether action or proceeding. It may be that this court, sitting here, would decide that the articles of impeachment are insufficient, that they were not properly preferred at a special session of the legislature, that the defendant is not guilty, if such questions were here for determination, but all those questions must be tried in the court where i>ending and cannot be subjected to a collateral attack here. An injunction issued by a court having jurisdiction, and hav- ing been duly served in an action pending, may the party enjoined be heard to say that he is going to succeed in the action and that therefore he will violate the terms of the injunction order? The return here showing that articles of impeachment have been adopted by the Assembly, delivered to the President of the Senate and served upon William Sulzer, the Governor of the State, the counsel for the prisoner in custody will not be heard to claim that such impeachment proceedings are not actually pending, with all the consequent results flowing from such pendency. 118 III. The exercise of the functions of the office of iGovemor by Wil- liam Siilzer ceased on the adoption of the resolution of impeach- ment by the Assembly. Article IV, section 6 of the Constitution provides as follows: " In case of the impeachment of the Governor * * * the powers and duties of the office shall devolve upon the Lieutenant- Governor for the residue of the term, or until the disability s.hall cease." When then is an official impeached — when the Assembly passes its resolution of impeachment, or when the Court of Impeach- ment convicts, on the articles so preferred by the Assembly ? Article VI, section 13, provides " The Assembly shall have the power of impeachment by a vote of a majority of all the members elected." Having the power of impeachment, the Assembly exer- cises that power by passing the resolution of impeachment ; and from that moment the accused official stands impeached. The definition of the word " impeachment " can lead to no other conclusion. The Century dictionary gives this: * * * " 2. A calling in question; accusation of wrong or error " * * * "3. A calling to account; arraignment; the act of charging with a crime or misdemeanor; sjjecifically, the exhibition of charges of maladministration against a high piiblic officer, before a competent tribunal." What an indictment is, in the prosecution of an ordinary crime, impeachment is against a high public official. It is the accusa- tion. It charges the accused with a specified crime. Every school boy remembers Burke's speech, on the trial of Warren Hastings before the House of Lords. " I impeach him of high crimes and misdemeanors." He did not mean that he convicted him, for Hastings was finally acquitted. He meant that he accused Hast- ings ajid asked the Court of Impeachment to convict on the Articles of Impeachment. In his life of Chief Justice Kenyon, Lord Campbell, himself Lord Chief Justice and Lord High Chancellor of England, as a 119 History, referring to Hastings : " At the instance of some of the Whigs, at the head of whom was Burke, he was impeached by the House of Commons." But the House of Commons could not con- vict — it could only accuse. Article II, sec. 4 of the Federal Constitution, recognizes this argument and the distinction between impeachment and convic- tion, where it provides that certain officers shall be removed from office c;n " impeachment for, and conviction of," etc. The Supreme Court in Kilbourn v. Thompson, 103 U. S. 168, 190, does the same: " The House of Representatives has the sole right to impeach officers of the government and the Senate to try them." See, too, to the same effect id. p. 191. There would be little question on this point, even if nothing further were said on the subject, but the Code of Criminal Pro- cedure recognizes the same thing and provides specifically that " 'No officer shall exercise his office after articles of impeachment against him shall have been delivered to the Senate, until he is acquitted." (Sec. 129.) The Code, from which quotation is thus made, cannot of course alter or change the effect of the Constitution. It is, at least, doubtful whether cessation of the functions of the office by the accused does not occur the moment that the resolution of impeach- ment is adopted, but, certainly, under the provision of the Con- stitution and the section of the Code quoted, it ceases when the articles are delivered to the president of the Senate. It might be very interesting to reason on the question as to whether, inter- mediate the time of the adoption of the resolution by the Assembly and the delivery of the Articles of Impeachment, the Governor against whom proceedings were being taken could exercise any function of his office, but the question is not likely to arise in any phase of the Sulzer case. The contra contention is that " impeachment," as used in Ar- ticle 1\", section 6, " In case of the impeachment of the Governor * * * the powere and duties of the office shall devolve upon the Lieutenant-Governor for the residue of the term, or until the disability shall cease," means conviction; that it is only after trial and upon conviction that the functions of an impeached Governor devolve upon the Lieutenant. 120 This claim ignores the plain reading of the Article. "We have seen that in case of impeachment, by Article VI, sec- tion 6, the powers and duties devolve, etc. By section 13 of the same Article the Assembly is alone given the power of impeach- ment. It stands, then, that what causes the power and duties to de- volve is something that the Assembly does and has power to do. The word " impeachment " is not used twice in the same Article with different meanings; it means the same thing in both places and of course. The Assembly cannot convict. It has no part m the trial; all that it can do is to accuse, to impeach. It is that act done by the Assembly, the impeachment, that suspends the powers. Conviction can only be had in the Court ot Impeach- ment, composed of members of the Court of Appeals and of the Senate, which cannot impeach at all, can only try and, either acquit, or convict. And this demonstrates beyond all cavil that the claim that an impeached Governor may continue to exercise the functions ol his office until the conclusion of the trial, is hopelessly wrong. It follows that the exercise of the functions of the office of (lovernor ceases (I believe upon the adoption of the resolution of impeaclnuent by the Assembly, but certainly) upon the delivery of the articles of impeachment to the president of the Senate, and, of necessity, that Mr. Sulzer had no power to issue n pardon to the relator. The writ should, therefore, be dismissed. Saratoga Springs, IST. Y., September 8, 1913.